J-A24026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

INSUN PARK

                            Appellant                 No. 671 EDA 2015


                  Appeal from the Order of February 20, 2015
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0004689-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                          FILED OCTOBER 30, 2015

       Insun Park appeals the February 20, 2015 order that denied her

petition to expunge a nolle prossed charge from her record. We affirm.

       The trial court summarized the factual and procedural history of this

case as follows:

       According to the affidavit of probable case filed on the record in
       the above-captioned matter, on May 3, 2013, in the parking lot
       of a department store, passers-by called the police when they
       heard a child crying in a mini-van at approximately five minutes
       before noon. Although the two rear windows of the van were
       opened about one inch, Montgomery Township Police Officer
       Taylor Jones, who responded to the call, observed the child to be
       “in distress, crying and sweating.” The outdoor temperature was
       63 degrees. When [Park] arrived at the scene, she told Officer
       Jones [that] she took her three-and-one-half year-old daughter
       into the store with her, but left her sixteen-month-old son
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       unattended in the mini-van because he was sleeping and she did
       not want to waken him.          Officer Jones reviewed a video
       recording of the parking lot that morning and learned that [Park]
       had parked her car and entered the department store at 11:44
       a.m. and did not return to her vehicle until 12:08 p.m.

       Officer Jones charged [Park] with the first-degree misdemeanor
       of endangering the welfare of a child, 18 Pa.C.S. § 4304(a)(1)[,]
       and the summary offense of leaving an unattended child in a
       motor vehicle, 75 Pa.C.S. § 3701.1(a). [Park,] through counsel,
       waived her right to a preliminary hearing. . . .

       After the magisterial district justice transferred the charges to
       the [C]ourt of [C]ommon [P]leas, defense counsel applied to the
       District Attorney for Accelerated Rehabilitative Disposition
       (A.R.D.)[.] On October 17, 2013, the District Attorney denied
       the A.R.D. application, noting “crime against a child” as the
       reason. On March 26, 2014, and again on June 4, 2014, the
       District Attorney reconsidered the A.R.D. application and denied
       it for the same reason. The consistent refusal to give [Park]
       A.R.D. is circumstantial evidence that the District Attorney did
       not doubt that the evidence against [Park] was sufficient and
       persuasive enough to support a conviction on the misdemeanor
       charge.

       [Park] entered a plea of guilty to the summary charge on July
       29, 2014, approximately eight months [before the trial court
       authored its opinion]. Although the sentencing sheet lists the
       disposition as an “open” guilty plea,[1] the prosecutor stated that
       the parties agreed to “a recommended sentence of three
       months’ probation plus costs” and twenty-four hours’ community
       service, and the Honorable Judge Thomas P. Rogers imposed
       that exact sentence. The sentencing sheet also indicated that
       the misdemeanor charge was nolle prossed by the
       Commonwealth, and Judge Rogers stated on the record, “The
       motion of the district attorney to nol[le]-pros is granted,” but the
       prosecutor did not file a written motion to nolle pros the
       misdemeanor charge, nor did she make an oral motion to do so
       at the plea hearing. Judge Rogers sentenced [Park] to pay the
       costs of prosecution for the misdemeanor charge, which is
____________________________________________


1
      However, both the docket and the July 30, 2014 call of the trial list
note that it was a negotiated plea.



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     circumstantial evidence of a compromise: the Commonwealth
     would refrain from prosecuting the misdemeanor in exchange for
     [Park] paying the Commonwealth’s costs of prosecuting that
     charge. It is also circumstantial evidence that the prosecutor did
     not concede that she could not prove [Park] guilty beyond a
     reasonable doubt, and that Judge Rogers did not assume she
     lacked evidence that was sufficient and persuasive enough to do
     so. Notwithstanding the foregoing circumstantial evidence, the
     transcribed notes of the guilty plea hearing do not include any
     testimony or statement by [Park], her lawyer or the prosecutor
     indicating whether the prosecutor nolle prossed the charge of
     endangering the welfare of a child in exchange for [Park’s]
     agreement to plead guilty to the summary offense of leaving an
     unattended child in a motor vehicle; and if so, why.

     At the hearing on [Park’s] petition for expungement, [Park] was
     not sure whether expungement was part of the negotiated plea
     agreement, nor whether she expected at the time of her plea
     that the record of her arrest for the misdemeanor charge would
     eventually be expunged.        Her lawyer stated that he could
     stipulate that a promise of expungement was not one of the
     terms of the negotiated plea agreement, and although the
     Commonwealth’s lawyer did not reject the offer to stipulate, he
     did not accept it, and neither did the court.

     The Commonwealth’s lawyer did not claim that [Park] agreed to
     forgo expungement in the future, but he did state on the record,
     “The charges were not nolle prossed or withdrawn on our part
     because of a lack of evidence or inability to show guilt on her
     side. It’s because we agreed to this as a plea agreement.” The
     Commonwealth’s lawyer at the expungement hearing was not
     the assistant district attorney who negotiated the guilty plea,
     and the record is devoid of evidence that the former had
     personal knowledge of the reason the latter moved to nolle pros
     the misdemeanor charge.

     Less than four months after [Park] pled guilty, she filed a
     petition in which she asked the court to expunge the nol[le]
     prossed charge of endangering the welfare of a child. During
     that short time, [Park] had paid the fines and costs imposed as
     part of her sentence, and completed the community service
     obligation that was part of her sentence. Her petition averred
     that: [Park] had not been arrested since she had entered her
     guilty plea; she was 31 years old and a college graduate; and
     the arrest record would be “harmful to [Park’s] reputation and

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     calling, and is likely to interfere with her earnings and
     livelihood.” At the hearing on the petition, [Park] testified that
     prior to pleading guilty in the above-captioned matter, she had
     never been arrested. The Commonwealth produced no evidence
     to the contrary.

     [Park] also testified that she wished to apply for a job as a
     “medical interpreter” for patients who do not speak English, but
     she was told by one prospective employer, Phoenix Language
     Services, that it checks the criminal records of job applicants,
     and “[i]t has to be clear. Nothing has to be on the record . . . .”
     Nonetheless, the arrest and conviction did not prevent [Park]
     from continuing her vocation of teaching piano to children.

     Finally, [Park] testified that she had lawful permanent resident
     status in the United States, but was not a citizen. She stated
     that she wished to become a citizen, but the record of her arrest
     would disqualify her from being granted citizenship. Neither her
     lawyer nor the lawyer for the Commonwealth cited authority
     supporting or disproving the legal conclusion to which she
     testified.

     The lawyer for the Commonwealth did not express a desire to
     deny expungement at a later date. He conceded that a judge of
     [the Court of Common Pleas] could exercise his or her discretion
     to expunge the record of the summary conviction when five
     years had elapsed after that conviction . . ., but asked “to at
     least keep these charges on the record” during that period, “in
     case she does have further contacts with the police.” Nor did
     [the trial court] judge order that [Park] be permanently denied
     expungement. . . . Noting also that “this just occurred, and this
     is not even within eight months of where we are right now,” the
     [trial court] judge weighed the circumstances and denied the
     petition [on February 20, 2015].

Trial Court Opinion (“T.C.O.”), 4/20/2015, at 1-5 (citations to record

omitted).

     On March 10, 2015, Park filed a notice of appeal.        The trial court

ordered, and Park timely filed, a concise statement of errors complained of




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on appeal pursuant to Pa.R.A.P. 1925(b). On April 20, 2015, the trial court

filed its Pa.R.A.P. 1925(a) opinion.

      Park raises one issue for our review: “When the Commonwealth failed

to present any evidence, did they meet their heavy burden of producing

compelling evidence that the endangering welfare charge they nol[le]

prossed should not be expunged.” Park’s Brief at 2.

      “The decision to grant or deny a petition to expunge rests with the

sound discretion of the trial court, and we review that court’s decision for

abuse of discretion.”   Commonwealth v. Moto, 23 A.3d 989, 993 (Pa.

2011).

      In Moto, our Supreme Court outlined how a trial court should analyze

an expungement petition:

      Judicial analysis and evaluation of a petition to expunge depend
      upon the manner of disposition of the charges against the
      petitioner.   When an individual has been convicted of the
      offenses charged, then expungement of criminal history records
      may be granted only under very limited circumstances that are
      set forth by statute. 18 Pa.C.S. § 9122. When a petitioner has
      been tried and acquitted of the offenses charged, we have held
      that the petitioner is “automatically entitled to the expungement
      of his arrest record.” Commonwealth v. D.M., 695 A.2d 770,
      772-73 (Pa. 1997). When a prosecution has been terminated
      without conviction or acquittal, for reasons such as nolle prosse
      of the charges or the defendant’s successful complete of an
      accelerated rehabilitative disposition program (“ARD”), then this
      Court has required the trial court to “balance the individual’s
      right to be free from the harm attendant to maintenance of the
      arrest record against the Commonwealth’s interest in preserving
      such records.” Commonwealth v. Wexler, 431 A.2d 877, 879
      (Pa. 1981).




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      To aid courts in applying the balancing test for expungement, we
      also adopted in Wexler the following non-exhaustive list of
      factors that the court should consider:

         These factors include [1] the strength of the
         Commonwealth’s case against the petitioner, [2] the
         reasons the Commonwealth gives for wishing to retain the
         records, [3] the petitioner’s age, criminal record, and
         employment history, [4] the length of time that has
         elapsed between the arrest and the petition to expunge,
         and [5] the specific adverse consequences the petitioner
         may endure should expunction be denied.

      Wexler, supra, at 879 (citation omitted).

      We have emphasized that in applying the balancing test and
      considering the above factors, the court must analyze the
      particular, specific facts of the case before it.

Id. at 993-94 (some citations omitted; some citations modified).

      When a case has been terminated without a conviction, the Wexler

factors should apply. Commonwealth v. V.G., 9 A.3d 222, 227 (Pa. Super.

2010). However, when charges are nolle prossed, as here, the reasons for

the Commonwealth’s request for nolle pros become relevant to the trial

court’s analysis.   When the Commonwealth requests nolle pros because it

was unable to meet its burden of proof beyond a reasonable doubt as to the

underlying charges, the Commonwealth bears the burden of proving why

expungement should not be granted.        Id. at 225 (discussing Wexler).

However, if charges are nolle prossed or dismissed as part of a plea

agreement, the petitioner generally is not entitled to expungement under

the Wexler factors.     Id. (citing Commonwealth v. Lutz, 788 A.2d 993

(Pa. Super. 2001)). This is because the record no longer would reflect the



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agreement between the petitioner and the Commonwealth and the petitioner

would receive more than he or she bargained for in the plea agreement. Id.

at 226.

     Here, Park argues that the endangering the welfare of a child

(“EWOC”) charge was nolle prossed because “the Commonwealth decided

there was insufficient evidence to support the charges.”   Park’s Brief at 5.

Because Park believed that the Commonwealth admitted that it could not

prove EWOC, Park asserts that the Commonwealth bore the burden to

demonstrate why the record should not be expunged. Park argues that the

Commonwealth presented nothing and, therefore, could not have met its

burden to prove that the Wexler factors weighed in favor of denying

expungement. Id. at 6-8.

     Park is incorrect that the Commonwealth admitted the evidence was

insufficient to prove EWOC; the Commonwealth steadfastly asserted that the

charge was nolle prossed as part of a plea agreement. However, the trial

court found that, because the Commonwealth did not present the testimony

of the prosecutor who struck the plea agreement, it did not prove that the

charge was nolle prossed as part of the plea. T.C.O. at 7. The trial court

determined that, if the nolle pros was not due to a plea agreement, then it

was bound to consider the Wexler factors. Id.

     We agree that the trial court had to apply the Wexler factors.

Without a conviction or an acquittal, the Wexler factors control the outcome

of an expungement petition.      See V.G., supra.     Here, the trial court

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concluded that the expungement was not part of a plea agreement. While

the docket indicated this was a negotiated plea, the details of the plea are

not of record.    It is not clear whether the negotiated plea related to the

charges, the sentence, or both. Without record evidence, the trial court did

not abuse its discretion in concluding that this was not a case in which the

EWOC charge was nolle prossed as part of a plea agreement.

        Further, the trial court did not abuse it discretion in weighing those

factors. The trial court first considered the weight of the Commonwealth’s

case. Based upon Officer Jones’ proposed testimony, the trial court found it

likely that Park would have been convicted of EWOC because Park would

have been aware that leaving a sixteen-month-old child in a parked car was

dangerous and because she failed to protect the child by doing so. T.C.O. at

8-10.    The trial court also found that the Commonwealth provided strong

reasons for retaining the records, namely that Park’s crime involved a child

and her current and prospective employment also involves, or potentially

involves children, and that Park’s children are still young and there is the

possibility of a recurrence of EWOC. Id. at 10-11. The trial court did not

find Park’s age to be a relevant factor. Park’s subsequent clean record was

unconvincing, given the short time between the plea and the expungement

petition.     Although the court gave Park credit for maintaining her

employment, it thought that, because her employment involved children, it

weighed in favor of denying the petition. Id. at 11-12.




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      Citing Commonwealth v. Persia, 673 A.2d 969, 972 (Pa. Super.

1997), in which the relatively short sixteen months between the filing of

charges and the expungement petition was deemed a reason to retain the

record, the trial court found that the eighteen months in this case between

the   charges     and   the   petition   for   expungement   weighed   against

expungement.      T.C.O. at 12.     Finally, the court considered the adverse

consequences that Park cited. Park identified two specific consequences: an

inability to obtain citizenship and an inability to obtain employment as a

medical interpreter because the employer required a clean record. The trial

court determined that the employment issue did not weigh in favor of

expungement because Park averred that she had to have a clean record to

obtain this employment and, even if the EWOC charge were expunged, her

summary charge would still remain on her record.         As to the citizenship

issue, the trial court found that Park offered no support for her statement

that an arrest would preclude citizenship and also that, even with

expungement, her record would not be clean.

      Considering all this, the trial court concluded that the factors weighed

in favor of the Commonwealth’s interest in retaining the record instead of

Park’s “right to be free from the harm attendant to maintenance of the

arrest record.”   Moto, 23 A.3d at 993.        As in Moto, where the Supreme

Court affirmed the trial court, “the trial court expressly made clear both its

correct understanding of Wexler’s balancing test, as well as its reasons for




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denying [Park’s] petition.   Id. at 996.    Therefore, the trial court did not

abuse its discretion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




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