J-S51031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 CRAIG E. MOSS,                           :
                                          :
                     Appellant            :        No. 971 MDA 2019

                   Appeal from the Order Dated April 24, 2019
                in the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000776-1996

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                       FILED OCTOBER 29, 2019

      Craig E. Moss (“Moss”) appeals, pro se, from the Order dismissing his

Petition to Expunge. We affirm.

      In its Opinion, the trial court set forth the relevant factual background

as follows:

            On July 9, 1996, [Moss] was arrested and charged for
      [r]obbery and [t]heft by [u]nlawful [t]aking, [m]ovable
      [p]roperty[,] at [Franklin County] docket [number] 776-1996
      (“776-1996”). [Moss] was arrest[ed] again on August 1, 1996[,]
      and charged with [a]rson, [c]riminal [m]ischief, and eight counts
      of [r]ecklessly [e]ndangering [a]nother [p]erson at [Franklin
      County] docket [number] 1036-1996 (“1036-1996”).

            On January 13, 1997, [Moss] entered a plea of nolo
      contendere to the charge of [a]rson [at 1036-1996,] in exchange
      for the Commonwealth’s dismissal of the remaining charges at
      [776-1996 and 1036-1996].

            On April 17, 2019, [Moss] filed a Petition to Expunge his
      record at [776-1996]. On April 24, 2019[,] [the trial court] issued
      an Order [dismissing] his Petition to Expunge. A [timely] Notice
      of Appeal to [this Court] was filed on May 24, 2019[,] and on June
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       5, 2019[,] [Moss] filed a [court-ordered Pa.R.A.P. 1925(b)]
       Concise Statement of [] Matters Complained of on Appeal….

Trial Court Opinion, 6/6/19, at 1-2 (footnotes omitted).

       On appeal, Moss raises the following questions for our review:

       I. Did the [trial] court abuse its discretion when it [dismissed]
       [Moss’s] request for expungement[,] when the Commonwealth
       never objected to the Petition [to Expunge,] and for failing ot [sic]
       conduct a hearing to determine if expungement was applicable?

       II. Is [Moss] entitled to expungement of the offense at [776-
       1996,] per the terms of his plea agreement?

Brief for Appellant at 2 (capitalization omitted).

       In both of Moss’s issues, which we address together, he alleges that the

trial court abused its discretion in dismissing his Petition to Expunge. Id. at

2-5. Moss argues that the trial court erred by (1) failing to consider the five-

factor expungement test set forth by our Supreme Court in Commonwealth

v. Wexler, 431 A.2d 877 (Pa. 1981); (2) failing to hold an expungement

hearing; and (3) disregarding Moss’s plea bargain. See Brief for Appellant at

2-5.

             The decision to grant or deny a request for expungement of
       an arrest record lies in the sound discretion of the trial judge, who
       must balance the competing interests of the petitioner and the
       Commonwealth. We review the decision of the trial court for an
       abuse of discretion. … Defendants in Pennsylvania have a due
       process right to petition for expungement that is not dependent
       upon statutory authority.

Commonwealth v. Rainey, 139 A.3d 261, 264 (Pa. Super. 2016) (quotation

marks and citations omitted).

             When a prosecution has been terminated without conviction
       or acquittal, for reasons such as nolle prosse of the charges[,] …

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      then this Court has required the trial court to balance the
      individual’s right to be free from the harm attendant to the
      maintenance of the arrest record against the Commonwealth’s
      interest in preserving such records.

             In Wexler, [supra] this Court set in place the following five
      factors that the trial court must balance when considering a
      petition for expungement:

         (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; (5) and the specific adverse consequences the
         petitioner may endure should expunction be denied.

Commonwealth v. Wallace, 97 A.3d 310, 317-18 (Pa. 2014) (citation

omitted).

      However, the due process right to expungement does not apply to

individuals who are incarcerated at the time of filing such petition. Id. at 321-

22.   The Wallace Court set forth numerous factors weighing against an

incarcerated petitioner’s private interest in expungement: (1) “[T]he risk of

an erroneous deprivation of [an incarcerated petitioner’s] private interest in

his reputation … is slim”; (2) “nothing is preventing [an incarcerated

petitioner] from petitioning for expungement once he is released from

custody”; (3) incarcerated petitioners have other means of repairing their

reputation while incarcerated; (4) “the Commonwealth has a compelling

interest in retaining” an incarcerated petitioner’s records, as “these records

may be needed for use in penalization if [the petitioner] commits any offenses

while in prison”; and (5) transporting an incarcerated petitioner for


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expungement hearings puts a strain on prison budgets, and presents security

concerns. Id. The Wallace Court concluded that based on these factors, “an

inmate does not have the right to petition for expungement while

incarcerated.” Id. at 322.

       Here, it is evident from the record that Moss was incarcerated at the

time he filed his Petition to Expunge.1 Pursuant to the dictates of Wallace,

supra, he has no due process right to seek expungement of his criminal

records while he remains incarcerated. Accordingly, we are constrained to

conclude that the trial court did not abuse its discretion in dismissing Moss’s

Petition to Expunge.

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2019

____________________________________________


1 Although the record is unclear as to why Moss is currently incarcerated, Moss
lists his address, in all of his court filings, as the Mahanoy State Correctional
Institute in Frackville, Pennsylvania. See, e.g., Brief for Appellant, cover
sheet; Notice of Appeal, certificate of service; Petition to Expunge, certificate
of service.

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