J-S75008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

ANTHONY ABBATIELLO

                            Appellant                      No. 2847 EDA 2013


               Appeal from the Order Entered September 18, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0208351-1999


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                                FILED JANUARY 09, 2015

       Appellant, Anthony Abbatiello, appeals from the September 18, 2013

order dismissing his motion to redact charges.            Upon careful review, we

affirm.

       From the certified record, we summarize the factual and procedural

history of this case as follows. On January 9, 1999, Appellant was charged

with   numerous       offenses    including    rape,   involuntary   deviate   sexual

intercourse, aggravated indecent assault, false imprisonment, statutory

rape, unlawful restraint, indecent exposure, indecent assault, corrupting a

minor, simple assault, and recklessly endangering another person.1                On

February 12, 1999, several of the charges were dismissed at the preliminary

____________________________________________
1
 18 Pa.C.S.A. §§ 3121, 3123, 3125, 2903, 3122, 2902, 3127, 3126, 6301,
2701, and 2705, respectively.
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hearing.    Thereafter, on June 17, 1999, Appellant entered a guilty plea to

one count of indecent assault and one count of corrupting a minor. All of the

remaining charges were nolle prossed by the Commonwealth.

       On August 14, 2013, Appellant filed a pro se motion to redact charges,

seeking expungement of the arrest record for the above-mentioned

dismissed and nolle prossed charges.2 The trial court scheduled a hearing

for September 18, 2013.          At the time of the hearing, the Commonwealth

informed the trial court that Appellant was “in custody”, whereupon the trial

court dismissed the petition.         N.T., 9/18/13, at 3.   On October 4, 2013,

Appellant filed a timely pro se notice of appeal.3

       On appeal, Appellant raises the following question for our review.

              Whether the [trial] court erred in dismissing the
              Appellant’s Motion for Redaction of Charges without
              holding a hearing[?]

Appellant’s Brief at 7.
____________________________________________
2
  Appellant had filed two earlier petitions on October 12, 2012 and on April
17, 2013. The trial court dismissed each of those petitions without a hearing
on December 17, 2012 and May 22, 2013, respectively, citing Appellant’s
alleged incarceration on unrelated charges. Appellant filed a petition under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, on July
31, 2013 also seeking expungement relief. The trial court did not act on
that petition. However, we note, “[a] petition for expungement does not fall
within the ambit of the PCRA….” Commonwealth v. Rodland, 871 A.2d
216, 218 n.3 (Pa. Super. 2005) (citation omitted).
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. We note that Appellant filed his notice of appeal
and Rule 1925 concise statement pro se.      Subsequently, counsel was
appointed on January 8, 2014, and filed a counseled appellate brief on
Appellant’s behalf.


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       We note the following principles guiding our consideration of this

matter.

              There is a long-standing right in this Commonwealth
              to petition for expungement of a criminal arrest
              record, a right that is an adjunct of due process.
              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) (citations omitted).

       A defendant’s entitlement to expungement of a criminal record is

dependent on the status of the specific charges at issue.                Instantly,

Appellant seeks expungement of charges that were dismissed during his

preliminary hearing and charges that were nolle prossed in connection with

his negotiated plea agreement.4           Appellant’s Brief at 10.   “Except where

prohibited by statute, petitions to expunge the records of arrests terminated

without convictions for reasons such as nolle prosequi … should be evaluated

according to the factors listed in Commonwealth v. Wexler, 494 Pa. 325,

____________________________________________
4
  Expungement of a criminal record for charges on which a petitioner has
been convicted are governed by statute and permitted only under limited
circumstances. See 18 Pa.C.S.A. § 9122; Commonwealth v. V.G., 9 A.3d
222, 224 (Pa. Super. 2010) (noting, “[w]here a defendant is convicted of a
crime, he is not entitled to expungement of that crime, except as outlined by
18 Pa.C.S. § 9122, which is an extensive statutory provision governing
expungement[]”). On the other hand, “[o]ur Supreme Court has held that in
cases terminated by reason of a trial and acquittal, a petitioner is
automatically entitled to the expungement of his arrest record.”
Commonwealth v. Lutz, 788 A.2d 993, 998 (Pa. Super. 2001), citing
Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997). Neither of these
scenarios is at issue in this case.


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431 A.2d 877 (1981).” Commonwealth v. Lutz, 788 A.2d 993, 998 (Pa.

Super. 2001) (citations omitted). Balancing “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,” a trial court must

consider, inter alia, the following factors. Wexler, supra, at 879.

              [T]he strength of the Commonwealth’s case against
              the petitioner, the reasons the Commonwealth gives
              for wishing to retain the records, the petitioner’s
              age, criminal record, and employment history, the
              length of time that has elapsed between the arrest
              and the petition to expunge, and the specific adverse
              consequences the petitioner may endure should
              expunction be denied.

Id. (citation omitted). “At a Wexler hearing, the Commonwealth bears the

burden of affirmatively justifying retention of the arrest record, because it

did not, could not, or choose [sic] not to bear its burden of proof beyond a

reasonable doubt at trial.” Lutz, supra at 999 (citation omitted).

      In the instant case, Appellant claims “[the trial] court abused its

discretion by denying the Appellant’s Petition for Redaction without holding a

Wexler hearing.”       Appellant’s Brief at 14.   “This due process right was

denied   to   the   Appellant   when   the   Commonwealth    failed   to   make

accommodations to have him notified and present at the Petition for

Redaction hearing.” Id. The trial court explained its dismissal of Appellant’s

petition as follows.

              In the present case, a Wexler hearing could not be
              held on the expungement issue because Defendant
              was in federal custody and therefore unable to

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            appear. Defendant may file a new motion to redact
            the nolle prossed charges and a new hearing date
            will be issued to determine the issue of expungement
            without prejudice.

Trial Court Opinion, 2/28/14, at 2.

      Our Supreme Court has recently clarified that the due process

considerations attendant to an individual’s right to petition for expungement

of his or her criminal record are not implicated when the petitioner is

incarcerated.   Commonwealth v. Wallace, 97 A.3d 310, 320-322 (Pa.

2014). Accordingly, our Supreme Court held “that an inmate does not have

the right to petition for expungement while incarcerated.”       Id. at 322.

Instantly, Appellant acknowledges that he was incarcerated at the time his

petition was filed and on the date scheduled for a hearing on his petition.

Appellant’s Brief at 9.

      In light of the foregoing, we conclude the trial court did not abuse its

discretion by dismissing Appellant’s petition to redact his criminal arrest

record, without prejudice and without conducting a Wexler hearing, because

of Appellant’s incarceration status.    See Wallace, supra.     We therefore

affirm the trial court’s September 18, 2013 order dismissing Appellant’s

petition to redact.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2015




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