J-S68016-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTONIO VAZQUEZ

                            Appellant                No. 2682 EDA 2012


                 Appeal from the Order Entered August 9, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0951381-1999
                            MC-51-CR-0804201-1996
                            MC-51-CR-1034411-1997
                            MC-51-CR-0607401-1998
                            MC-51-CR-1054371-1999
                            MC-51-CR-0143201-1998


BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 29, 2014

        Antonio Vazquez1 appeals pro se from the order entered August 9,

2012, in the Philadelphia County Court of Common Pleas, denying his

petitions for the expungement of his criminal record in six prior cases. In a

prior decision, this panel concluded the Wexler2 hearing conducted by the

trial court did not comport with the requirements of due process. Therefore,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In prior filings in both the trial court and this Court, the appellant’s last
name has been misspelled as “Vasquez.”
2
    Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981).
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we vacated the order denying Vazquez’s petitions for expungement and

remanded for a proper Wexler hearing. See Commonwealth v. Vazquez,

97 A.3d 811 (Pa. Super. 2014) (unpublished memorandum). Thereafter, the

Commonwealth filed a petition for allowance of appeal in the Pennsylvania

Supreme Court.        By order dated September 3, 2014, the Supreme Court

granted the Commonwealth’s petition, vacated our prior order, and

remanded this case back to this Court to reconsider our decision in light of

its recent holding in Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014).

See Commonwealth v. Vazquez, ___ A.3d ___, 2014 WL 4357430 (Pa.

2014). After due consideration of the Wallace decision, we now affirm the

order denying Vazquez’s petitions for expungement.

       The facts underlying this appeal are well-known to the parties and we

need not recite them in detail herein. For purposes of this appeal, we note

that on May 11, 2010, Vazquez entered a guilty plea to the charge of third

degree murder for the 1999 shooting death of Melvin Coleman, and was

sentenced to a term of 15 to 30 years’ imprisonment. 3 On July 12, 2012,
____________________________________________


3
  Vazquez was originally convicted of first-degree murder for the shooting,
and sentenced to life imprisonment on July 20, 2000. However, he was later
granted a new trial by the Third Circuit Court of Appeals. See Vazquez v.
Wilson, 550 F.3d 270 (3d Cir. 2008). When the case was returned to the
trial court, Vazquez entered the guilty plea to third-degree murder, and was
sentenced to 15 to 30 years’ imprisonment with credit for time served. At
the time Vazquez filed his brief in the present appeal, he was still
incarcerated.




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while still incarcerated on the murder charge, Vazquez filed six petitions for

expungment of non-conviction charges originating from arrests which

occurred between 1996 and 1999.4 Although an expungement hearing was

conducted on August 9, 2012, Vazquez, who was proceeding pro se, did not

appear because he was incarcerated in Western Pennsylvania on the murder

conviction.     That same day, the trial court entered an order denying

Vazquez’s petitions for expungement. This appeal followed.5

        Vazquez raises two related issues on appeal.6 First, he contends the

trial court abused its discretion when it failed to conduct a hearing on his

petition. Next, he argues the trial court abused its discretion when it failed

to    apply   the   balancing    factors       listed   in   Wexler   and   to   hold   the

Commonwealth to its burden to justify the retention of his non-conviction

arrest records.

        It is well settled that “[t]he 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
____________________________________________


4
  In each case, all of the charges were dismissed within two to nine months
after his arrest.
5
  On September 5, 2012, the trial court entered an order directing Vazquez
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Vazquez complied with the court’s directive and filed a
Rule 1925(b) statement on September 12, 2012.
6
    We have reordered Vazquez’s issues for ease of disposition.




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A.3d 989, 993 (Pa. 2011). Generally, when a petitioner has been tried and

convicted of charges, those charges are subject to expungement only under

“very limited circumstances that are set forth by statute.”    Id., citing 18

Pa.C.S. § 9122. Conversely, when a petitioner has been tried and acquitted

of charges, “the petitioner is ‘automatically entitled to the expungement of

his arrest record.’”   Id., quoting Commonwealth v. D.M., 695 A.2d 770,

772–773 (Pa. 1997). However,

      [w]hen a prosecution has been terminated without conviction or
      acquittal, for reasons such as nolle prosse of the charges or the
      defendant’s     successful    completion   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.”

      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.

            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.

Moto, supra, 23 A.3d at 993-994

      In the present case, we find that we need not address the specific

claims raised by Vazquez on appeal because they are preempted by the

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pronouncement of the Pennsylvania Supreme Court in Wallace that “an

inmate does not have the right to petition for expungement while

incarcerated.” Id., 97 A.3d at 322.

       In Wallace, supra, the defendant had a 14-page criminal record,

which included 228 charges, which were terminated by,              inter alia,

conviction, guilty plea, withdrawal, dismissal and acquittal. Id. at 313-314.

He filed eight petitions to expunge his non-conviction records while he was

incarcerated in federal prison on other charges. Id. The trial court denied

the petitions without first conducting a Wexler hearing, and the defendant

filed an appeal to this Court.

       On appeal, this Court rejected the trial court’s analysis,7 and found

that the record was unclear as to which specific charges might be subject to

expungement.        Therefore, this Court remanded the case for a Wexler

hearing. Id. at 315. The Commonwealth then filed a petition for allowance

of appeal, which the Supreme Court accepted on the following issue:

       Did Superior Court err by holding in a published opinion that an
       incarcerated career criminal has a due process right to a hearing
       at which the trial court must determine—on a charge by charge
       basis—whether over a hundred prior criminal charges against
       him should be expunged?

Id. at 316.
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7
  The panel characterized the trial court’s decision as “imposing a ‘volume
penalty based on the sheer length of [the defendant’s] arrest record and on
speculation that he may re-offend in prison or in Philadelphia County.’”
Wallace, supra, 97 A.3d at 315.



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      On appeal, the Supreme Court first determined this Court’s “conclusion

that the trial court failed to consider Wexler factors lacks support in the

record.” Id. at 318. Indeed, the Supreme Court ultimately concluded there

was no basis upon which to disturb the trial court’s denial of the

expungement petitions because “the trial court’s findings [were] sound and

strongly supported by the record.” Id. at 319-320.

      However, relevant for our purposes, the Supreme Court also held that

“an inmate does not have the right to petition for expungement while

incarcerated.”   Id. at 322 (emphasis supplied).      The Court found no due

process violation in prohibiting incarcerated defendants from petitioning to

expunge non-conviction records, concluding that while a defendant does

have a private interest in protecting his reputation, the “risk of … an

erroneous deprivation [of that interest while he is incarcerated] is slim.” Id.

at 321.   Further, the Court noted that a defendant has “other avenues

available to him while incarcerated that will aid in repairing his reputation[,]”

and that the crimes for which he was convicted, and still imprisoned, will

remain part of his criminal history.”       Id.    Lastly, the Supreme Court

considered the Commonwealth’s interest in retaining the defendant’s entire

criminal record for parole hearings, and for use in penalizing the defendant

should he commit any offenses while incarcerated.         Id.   The Court also

noted the “practical concerns” of transporting inmates for expungement

hearings. Id. at 321-322. Significantly, the Court emphasized that “there is




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nothing    preventing     [an    incarcerated    defendant]   from   petitioning   for

expungement once he is released from custody.”8 Id. at 321.

       In the case sub judice, it is evident from the record that Vazquez was

incarcerated on the charge of third degree murder at the time he filed his

petitions for expungement. 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 compelled to conclude the trial

court did not abuse its discretion in denying Vazquez’s petitions.9

       Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014

____________________________________________


8
  We note the Wallace Court left unanswered the question of whether an
incarcerated defendant may petition to expunge charges for which he was
acquitted. See id. at 318 n.14 (finding challenge to denial of expungement
of acquitted charges waived for failing to file a timely Pa.R.A.P. 1925(b)
concise statement; stating that defendant’s “contention that acquittals must
be expunged, is not of issue instantly[.]”). Here, however, all of the charges
Vazquez seeks to expunge were dismissed prior to trial, and did not result
from an acquittal.
9
  The record is unclear as to when Vazquez will be released from prison.
However, once he is no longer incarcerated, he may re-file his petitions for
expungement.



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