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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellee        :
                                        :
                  v.                    :
                                        :
KENAN MUHAMMAD,                         :
                                        :
                        Appellant       :     No. 321 EDA 2015

                  Appeal from the Order January 14, 2015
            In the Court of Common Pleas of Philadelphia County
              Municipal Court No(s).: MC-51-CR-0017300-2014

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                         FILED MARCH 08, 2016

      Appellant, Kenan Muhammad, appeals from the order entered January

14, 2015, in the Philadelphia County Court of Common Pleas, denying

without prejudice his motion to expunge his non-conviction data.     After

careful review, we affirm.

      On May 25, 2014, Appellant was charged with a DUI. On October 10

10, 2014, after numerous continuances, the charges were dismissed for lack

of prosecution.

      On October 15, 2014, Appellant filed a Motion for Expungement,

averring that he works as a part-time parking employee at a country club

where he is trying to get full-time employment but that his employer is

questioning his DUI arrest record.   The trial court held a hearing on the
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motion and, on January 14, 2015, denied the motion, noting that the statute

of limitations for the DUI had not yet run.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issue:

      Did the Trial Court below commit an error of law when it failed to
      balance the competing interests of the [P]etitioner and the
      Commonwealth when the Petitioner sought expungement of his
      criminal record[?]

Appellant’s Brief at 7.

      Appellant argues that the trial court abused its discretion in denying

his Motion for Expungement because “the Commonwealth did not present

any evidence at the Motion hearing other than the expungement petition

was filed too soon after dismissal.”   Appellant’s Brief at 11.   He contends

that the trial court did not appropriately consider the factors listed in

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

      We review a decision to grant or deny a request for expungement of

an arrest record for an abuse of discretion.       Commonwealth v. Hanna,

964 A.2d 923, 925 (Pa. Super. 2009).          The trial court must balance “the

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

arrest record against the Commonwealth’s interest in preserving such

records.”   Wexler, supra at 879. The Commonwealth must prove a

compelling interest in retention of the disputed record. Commonwealth v.

Drummond, 694 A.2d 1111, 1113 (Pa.Super. 1997).


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      18 Pa.C.S. § 9122 governs expungement of criminal history record

information.   Under Section 9122, a defendant acquitted of a crime “is

generally entitled to automatic expungement of the charges for which he

was acquitted.” Commonwealth v. Hanna, 964 A.2d 923, 925 (Pa.Super.

2009). However, this Court has held that expungement is ”only proper in

cases where acquittal is consistent with a finding of real innocence and is not

a result of legal technicalities unrelated to questions of guilt or innocence.”

Commonwealth v. Butler, 672 A.2d 806, 809 (Pa.Super. 1996).

      Appellant cites Wexler, supra, a case in which the Pennsylvania

Supreme Court recognized a non-exhaustive list of factors a trial court

should consider before making its expungement determination.             These

factors include “the 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. at 879.    In addition, the statute of

limitations may be considered in determining when expungement is

appropriate.   See Drummond, supra at 1114 (affirming the denial of

expungement where the statute of limitations had not yet run).




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     In its Pa.R.A.P. 1925(a) opinion, the trial court provided the following

well-reasoned and thorough analysis to support its denial of Appellant’s

Motion for Expungement:

     In the instant case, the Court properly exercised its discretion in
     denying Appellant’s petition. Contrary to Appellant’s assertion,
     the Commonwealth did, in fact, articulate an argument for
     denying expungement. The Commonwealth stated an interest in
     refiling charges, and an interest in maintaining the records in the
     event of its decision to so refile. Moreover, the Commonwealth’s
     interest in potentially refiling charges stems from the recency of
     Appellant’s arrest at the time of the hearing. Appellant was
     arrested only eight months prior to the expungement hearing
     and the case was discharged only three months prior.
     Furthermore, Appellant’s case was discharged because one
     officer was sick and the other failed to appear. This was a
     technicality that prevented culpability from being determined.
     See Commonwealth v. Chacker, 467 A.2d 386, 390 (Pa.
     Super. 1983) (citing Commonwealth v. Rose, 397 A.2d 1243,
     1244 (Pa. 1979).

     The Court balanced these factors against the fact that Appellant
     was currently employed at the time of his hearing and that his
     employers were “questioning” his record when considering him
     for full-time employment.         However, Appellant made no
     assertion that he had actually been denied full-time employment
     because of his record. The Court found that the balance slightly
     favored the Commonwealth at this point in time because the
     Commonwealth has a strong interest in maintaining the record of
     a case it is considering to refile. The Court thus dismissed the
     Motion without prejudice and welcomed Appellant to refile in the
     future in the event that the Commonwealth did not ultimately
     refile the matter; presumably, this would be two years from the
     time of arrest under the relevant statute of limitations, 42
     [Pa.C.S.A.] § 5552[.]

Trial Court Opinion, dated 7/31/15, at 3-4.

     The trial court considered each of Appellant’s concerns, including that

Appellant worked at the time of the hearing and that his employers



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questioned his record when considering him for full-time employment.

Although the trial court opinion noted Appellant’s concerns following the brief

expungement hearing, the trial court reasonably concluded “that the balance

slightly favored the Commonwealth at this point in time[.]”       Trial Court

Opinion at 3. The trial court appropriately balanced the relevant Wexler

factors, and the trial court properly relied on the “recency” of the arrest and

discharge by considering the statute of limitations as part of the Wexler

analysis.   See Drummond, supra at 1114 (affirming the denial of

expungement where the statute of limitations had not yet run and the lower

court relied on this factor in its Wexler analysis).

      Based upon our review of the record, we discern no abuse of

discretion. Accordingly, we affirm the trial court’s Order denying Appellant’s

Motion for Expungement without prejudice.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/8/2016




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