J-S29009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GARY LEE SMITH

                            Appellant                No. 1820 MDA 2013


                   Appeal from the Order September 25, 2013
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000885-1989


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

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 05, 2014

        Appellant, Gary Smith, appeals pro se

denying his motion to expunge his record of an arrest in 1989 for

harassment by communication.1 Smith contends that the trial court abused

its discretion in denying the expunction of his arrest records because they

should have been expunged in 1990 when his charges were expunged

pursuant to Pa.R.Crim.P. 186.2 We affirm.

        On April 10, 1989, Smith was arrested and charged with harassment

by communication. Smith was later admitted to an Accelerated Rehabilitation
____________________________________________


    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. 5504(a).
2
    Pa.R.Crim.P. 186 is now renumbered Pa.R.Crim.P. 320(A).
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harassment charges would be expunged. On November 29, 1990, the trial

court ordered the charges to be expunged and the Commonwealth agreed

without objection.

      Seven years later, Smith was arrested in Arkansas following a sexual

assault, pled nolo contendere to the charges, and registered as a sex

offender. The trial court in Arkansas withheld imposition of sentence for a



      During that five-year period, Smith took sexually explicitly photos of a

nude 12 year-old girl. He later distributed the photograph over the Internet

and by mail. See United States v. Smith, 367 F.3d 748 (8th Cir. 2004).

The United States District Court for the Western District of Missouri



Courts of Appeals for the Eighth Circuit affirmed.

      On April 4, 2013, Smith filed a petition in the Pennsylvania trial court

seeking to expunge his 1989 arrest record. Following the denial of that

motion, Smith filed a motion for reconsideration. The trial court held that the

motion would be granted absent a showing from the Commonwealth why it




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                                         crimes that occurred in Arkansas and

Missouri.



crimes in Arkansas and Missouri as the reason for objecting to the

expunction of his arrest record. The trial court found merit in the

C

record. Smith then filed this timely appeal.

         Smith raises the following issues:

    I.      Whether the Court of Common Pleas erred in assimilating the
                                                           motion for dismissal,
            in violation of PA Rule 320 (B)?
            A. Whether the Court of Common Pleas erred when suggesting that
               Appellant had an obligation to move for an expungement
            B. Whether the Court of Common Pleas has a duty under PA Rule
               320 to enter an order of expungement?
            C. Whether the Appellant has been harmed by the Court of
               Common Pleas refusal to enter an order of expungement?
            D. Whether the Court of Common Pleas had statutory authority to
               accept and consider objections from the Commonwealth 22
               years after the motion for dismissal?



         Before turning to the merits of the appeal, we must determine if Smith

has properly preserved all of his issues for our review in accordance with

Pa.R.A.P. 1925(b). See Commonwealth v. Castillo, 888 A.2d 775, 780



statement and/or raised in accordance with the provisions of this paragraph

                       See also Commonwealth v. Lord, 719 A.2d 306, 308




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(Pa. 1998). Therefore, we will not review any issues that have not been

                                                    See id.

      Here, the Commonwealth contends that Smith has waived issues I.A

through I.C. as they were not included in his Rule 1925(b) statement.

However, we find that each of these sub-issues is essentially asking if the



1989 arrest record. Each sub-question that Smith lists is not a separate

issue raised for our review, but a question postulated to support his main

argument for the preserved issue that is being raised on appeal. We

therefore find that Smith has properly preserved this issue for appeal.

      The decision to grant or deny a request for expunction of an arrest

record lies in the sound discretion of the trial judge. See Commonwealth

v. Furrer, 48 A.3d 1279, 1281 (Pa. Super. 2012). As such, we review the

                                              See Commonwealth v. Lutz,

788 A.2d 993, 996 (Pa. Super. 2001). A trial court abuses its discretion if in

reaching a conclusion, the law is overridden or misapplied, or the exercised

judgment is manifestly unreasonable or is the result of partiality, prejudice,

bias, or ill will. See Commonwealth v. Hann, 81 A.3d 57, 65 (Pa. 2013).



expungement of a criminal arrest record. This right is an adjunct of due



Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005)


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arrest record should not be expunged. . .      Commonwealth v. Wexler,

431 A.2d 877, 879 (Pa. 1981).

      We have noted that an individual may suffer harm as a result of the

                                                   See Commonwealth v.

Malone, 366 A.2d 584, 587-88 (Pa. Super. 1976). Because of this hardship,

there are certain circumstances in which substantive due process guarantees

an individual the right to have his arrest record expunged. See id. In



record, the trial court is required, when prosecution has been terminated

without conviction or acquittal because of an ARD program, to balance a

non-exclusive list of factors as set forth in Commonwealth v. Wexler, 431

A.2d 877 (Pa. 1981):


      against the petitioner, the reasons the Commonwealth gives for
      wishing to retain the records, the
      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., at 879 (citation omitted).

      With this legal framework in mind, we turn to the merits of this appeal.

The court order dated in 1990 only expunged the harassment charges, not

his arrest record. See Order, 11/29/90, at 1. The trial court in 1990 was

required, pursuant to P


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absent some compelling state interest. See, e.g., Commonwealth v.

Armstrong, 434 A.2d 1205 (Pa. 1981). However, Smith did not assert his

                                                                 arrest record



court was well within its rights to consider the objections submitted by the

Commonwealth to prevent the expunction of his 1989 arrest record pursuant

to Pa.R.Crim.P. 320 after Smith filed a motion to expunge his arrest record

pursuant to Pa.R.Crim.P. 319.

      Here, once the Commonwealth filed its objections, the trial court

correctly applied the list of factors set forth in Wexler

prosecution of the harassment charge was terminated because of his

successful completion of the ARD program. The trial court was well within its

discretion when it considered the length of time it took for Smith to assert

                                                                   conduct in




each of the factors were properly considered and that the trial court did not

abuse its discretion.

      Smith asserts that notwithstanding the balancing of the Wexler

factors, the trial court abused its discretion in failing to consider the harm

caused by his arrest record. Smith contends that the arrest record causes

harm as the United States District Court used it as a factor to depart from


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the sentencing guidelines in his child pornography conviction and that harm




difficulties and hardships that may result from an arrest on record including

                                                                        Doe

v. Zappala, 987 A.2d 190, 194 (Pa. Cmwlth. 2009) (citing Commonwealth

v. Butler                                         n expungement affords an

individual some protection, but cannot entirely protect him from the

                                       Butler, 672 A.2d at 809 (citation

omitted).

                                                    a more severe sentence

on his child pornography conviction    was a result of his further criminal

conduct and not of the type of harm contemplated in the case law, namely

the harm to his reputation and an opportunity to advance in society. As

                                                    o deny the expunction of



     Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/5/2014


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