J. S35009/16


                              2016 PA Super 110

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                   v.                     :
                                          :
KYLE RAINEY,                              :          No. 1601 EDA 2015
                                          :
                        Appellant         :


                Appeal from the Order Entered May 18, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0708341-1994


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


OPINION BY FORD ELLIOTT, P.J.E.:                          FILED MAY 25, 2016

      Kyle Rainey appeals, pro se, from the order of May 18, 2015, denying

his petition for expungement. We affirm.

      In a prior memorandum affirming appellant’s judgment of sentence on

direct appeal, this court set forth the history of this case as follows:

                  On June 1, 1994, appellant and three
            co-conspirators robbed a jewelry store. During the
            commission     of   the   robbery,    the  gunman,
            Nathan Riley (Riley), shot and killed storeowner
            Sun Yoo Kang in front of his wife, Mahlee Kang.
            Officers of the Philadelphia Police Department
            interviewed Mrs. Kang and Al-Asim M. Abdul-Karim,
            a witness who was present outside the store in a
            parked automobile.      Both individuals provided
            information regarding the identity of two males who
            had entered the store, another male who remained
            in a car parked in front of the store, and a fourth
            male who closed the store door after the two males
            entered the store.
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                On June 17, 1994, Riley surrendered to the
          police and gave a statement, which was reduced to
          writing by the interviewing detective, Albert Maahs.
          Riley signed the statement. In his statement, Riley
          admitted that he had taken part in the robbery and
          had fired the shot that fatally wounded Mr. Kang.

                On    June   26,    1994,     Mrs.   Kang     and
          Mr. Abdul-Karim positively identified appellant from a
          photo array as a participant in the events of June 1,
          1994.    Two days later, after obtaining a search
          warrant, the police searched appellant’s home and
          found a .38 caliber weapon with bullet casings
          matching those bullets used in the robbery. Police
          also discovered a small gold-colored price tag which
          Mrs. Kang identified as a tag from her store with her
          handwriting on it. The police also searched the
          house of Sharon Bell, the girlfriend of Darrell Wallace
          (Wallace), another accomplice to the crime. Inside
          the house, the police found the same type of jewelry
          that Mrs. Kang described as stolen from the store.

                The police arrested appellant and Wallace and
          charged them with a host of crimes stemming from
          the events of June 1, 1994. Prior to trial, appellant
          moved to sever his trial on the basis of antagonistic
          defenses. The trial court denied appellant’s motion.
          A jury trial commenced on May 12, 1995. Following
          the two-week trial, the jury convicted appellant of
          [one count of first degree murder, two counts of
          robbery, one count of aggravated assault, one count
          of recklessly endangering another person, one count
          of criminal conspiracy, one count of possessing
          instruments of crime, and one count of carrying
          firearms on public streets or public property.1] After
          the jury deadlocked during the penalty stage, the
          Honorable John J. Poserina imposed a mandatory
          term of life imprisonment.

Commonwealth v. Rainey, 704 A.2d 1121 (Pa.Super. 1997) (unpublished

memorandum at 2-3), appeal denied, 723 A.2d 1024 (Pa. 1998).        On




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October 15, 1997, this court affirmed the judgment of sentence; and on

May 26, 1998, the Pennsylvania Supreme Court denied allowance of appeal.

Id.

        In   October   1998,   appellant   filed   a   timely   petition   under   the

Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, which was denied.         This court affirmed on September 11, 2000.

Commonwealth v. Rainey, 766 A.2d 891 (Pa.Super. 2000) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal with

the Pennsylvania Supreme Court.

        Subsequently, appellant timely filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of

Pennsylvania. Appellant advanced six claims for relief, including a layered

ineffectiveness claim that his trial and appellate counsel were ineffective for

failing to challenge his first degree murder conviction on the ground that the

evidence was insufficient to prove his shared intent to kill. This claim was

raised previously on state PCRA review and found to be without merit.

        The case was referred to a Magistrate Judge, who issued a Report and

Recommendation concluding that appellant was entitled to habeas relief

based on his layered ineffectiveness claim.            Specifically, the Magistrate

Judge concluded that (1) the evidence at trial was insufficient to establish a

shared intent to kill, (2) appellant’s trial and appellate counsel rendered



1
    18 Pa.C.S.A. §§ 2502, 3701, 2702, 2705, 903, 907, & 6108, respectively.

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deficient performance in failing to raise the sufficiency claim; and (3) this

deficient performance prejudiced appellant.

      The   District   Court   approved     and   adopted     the   Report    and

Recommendation in part, rejected it in part, denied the petition, and

declined to issue a certificate of appealability. Specifically, the District Court

held that appellant had properly exhausted his layered ineffectiveness claim,

that there was insufficient evidence of appellant’s shared intent to kill, and

that his counsel rendered deficient performance in failing to challenge the

sufficiency of the evidence at trial or on direct appeal.       With respect to

prejudice, however, the District Court concluded that appellant suffered no

prejudice because, although the evidence may not have been sufficient to

sustain a first degree murder verdict, it was sufficient for a second degree

felony murder conviction. Appellant was sentenced to life imprisonment on

the first degree murder conviction, the same sentence he would have

received had he been convicted of second degree murder.

      The Third Circuit Court of Appeals granted appellant’s motion for a

certificate of appealability as to the layered ineffectiveness of counsel claim,

and affirmed the District Court’s denial of habeas relief. Rainey v. Varner,

603 F.3d 189 (3rd Cir. 2010), cert. denied, 562 U.S. 1286 (2011).             The

Court of Appeals agreed that appellant had failed to satisfy the prejudice

prong of the ineffectiveness test under Strickland v. Washington, 466

U.S. 668 (1984), where the evidence was unquestionably sufficient to prove



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second degree murder and he would have received the identical sentence of

life imprisonment without parole:

            [Appellant] was convicted of first degree murder, for
            which he is serving a life sentence. The jury also
            convicted [appellant] of robbery. Assuming that the
            evidence presented at trial was insufficient to
            establish a shared intent to kill, it was nonetheless
            sufficient to establish the elements of second degree
            felony murder.        [Appellant] was convicted of
            robbery, and the evidence clearly established that a
            death occurred during that robbery, which is
            sufficient to prove second degree murder under
            Pennsylvania law.       See 18 Pa. Cons.Stat. Ann.
            § 2502(b) (“A criminal homicide constitutes murder
            of the second degree when it is committed while
            defendant was engaged as a principal or an
            accomplice in the perpetration of a felony.”). Under
            Pennsylvania law, “[a] person who has been
            convicted of murder of the second degree shall be
            sentenced to a term of life imprisonment.” 18 Pa.
            Cons.Stat. Ann. § 1102(b) (1995); accord Castle v.
            Pennsylvania Bd. of Probation & Parole, 123
            Pa.Cmwlth. 570, 554 A.2d 625, 627 (1989) (holding
            that a conviction for second degree murder carries a
            mandatory life sentence under Pennsylvania law).
            Accordingly, had [appellant] been retried and
            convicted of second degree murder, he would have
            received the same sentence.

Id. at 202 (emphasis in original). Relying on Clark v. Maggio, 737 F.2d

471 (5th Cir. 1984) (no prejudice occurs if a petitioner was wrongfully

convicted of an offense for which there was insufficient evidence but is

serving the same sentence that he would have been serving had he been

properly convicted of the offense for which there was sufficient evidence),

the Court of Appeals held that appellant failed to establish prejudice, i.e.,

that there was a reasonable probability that, but for counsel’s unprofessional


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errors, the result of the proceeding would have been different: “Here, the

result of the proceeding--a life sentence--would have been the same had

counsel challenged the sufficiency of the evidence.         Accordingly, appellant

cannot show that he was prejudiced and cannot prevail on his claim of

ineffective assistance of counsel.”      Rainey, 603 F.3d at 203.              Since

appellant could not prove that he suffered prejudice from counsel’s failure to

challenge the sufficiency of the evidence, the Court of Appeals affirmed the

District Court’s denial of appellant’s petition for habeas relief. Id.

      On   January   29,   2015,   appellant    filed   a   pro    se   petition   for

expungement, asserting that he is entitled to have his first degree murder

conviction expunged due to the District Court’s determination that the

evidence was insufficient to support the conviction.              Following several

hearings on the motion held on April 17, 2015, May 4, 2015, and May 18,

2015, appellant’s petition was denied.           This timely appeal followed.

Appellant was not ordered to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b); however, on November 10, 2015,

the trial court filed a Rule 1925(a) opinion.

      On appeal, appellant claims that the trial court abused its discretion in

denying his petition for expungement when he was “acquitted” of first

degree murder as a result of the federal habeas proceedings. (Appellant’s




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brief at 4.)2 While this case presents an interesting procedural question, we

determine that the trial court did not abuse its discretion in denying

appellant’s petition for expungement of his first degree murder conviction.

            “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.” Commonwealth
            v. Waughtel, 999 A.2d 623, 624-25 (Pa.Super.
            2010) (quoting Commonwealth v. Hanna, 964
            A.2d 923, 925 (Pa.Super. 2009)). In Waughtel, we
            provided a comprehensive outline of the law
            applicable to expungement.           Defendants in
            Pennsylvania have a due process right to petition for
            expungement that is not dependent upon statutory
            authority.   Id. at 625; see Commonwealth v.
            Wexler, 494 Pa. 325, 431 A.2d 877, 879 (1981).
            Where 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.
            Waughtel, supra; Commonwealth v. Maxwell,
            737 A.2d 1243, 1244 (Pa.Super. 1999). “At the
            opposite extreme, if the defendant is acquitted, he is
            generally entitled to automatic expungement of the
            charges for which he was acquitted.” Waughtel,
            supra at 625 (citing Commonwealth v. D.M., 548
            Pa. 131, 695 A.2d 770 (1997)).

Commonwealth v. V.G., 9 A.3d 222, 223-224 (Pa.Super. 2010) (footnote

omitted).



2
  We note that a petition for expungement does not fall within the remedies
afforded by the PCRA and does not constitute a PCRA petition.
Consequently, appellant’s claim is not subject to the eligibility requirements
and/or time constraints of the PCRA. Commonwealth v. Lutz, 788 A.2d
993, 995 n.7 (Pa.Super. 2001).


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      Recently, in Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014),

after balancing the interests of the individual against the Commonwealth,

our supreme court held that an inmate does not have the right to petition for

expungement while incarcerated.       The Wallace court found that, “The

Commonwealth has a compelling interest in retaining the records [petitioner]

seeks to expunge, as [petitioner] is currently incarcerated and these records

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

while in prison[.]” Id. at 321. The court also noted the practical difficulties

of affording inmates the right to petition for expungement while still

incarcerated, including the transportation of prisoners to attend hearings,

“which would put a strain on already tight prison budgets and add to an

already overburdened trial court system. Moreover, any time an inmate is

transported out of the prison setting, there exist security concerns,

especially when the inmate, like Petitioner, is considered a flight risk.” Id.

at 322. Although the Wallace court recognized the petitioner’s reputation

as a protected privacy interest in this Commonwealth, the court found this

factor was outweighed by other considerations, and there was nothing

preventing the petitioner from petitioning for expungement once he was

released from custody. Id. at 321.

      In the instant case, appellant is currently incarcerated, serving a life

sentence for murder.      Therefore, he cannot petition for expungement.

Wallace.    Admittedly, Wallace did not address a situation where an



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incarcerated inmate was actually acquitted of a crime.         In Wallace, the

petitioner sought destruction of fingerprints, photographs, and arrest records

from past charges that had not resulted in convictions.             Id. at 314.

However, we disagree with appellant that he was “acquitted” of the first

degree murder conviction. Appellant is correct that the federal District Court

determined that the evidence was insufficient, as a matter of law, to sustain

the conviction for first degree murder. However, the District Court refused

to grant appellant habeas relief where he failed to establish prejudice, i.e.,

that the outcome of the proceedings would have been different. The Court

of Appeals affirmed on the basis that appellant failed to meet the Strickland

test for prejudice.   The Court of Appeals found that even assuming the

evidence was insufficient to prove that appellant shared the specific intent to

kill Mr. Kang, as required for a first degree murder conviction, it was

unquestionably sufficient to prove second degree murder, which carried the

same sentence.    Therefore, appellant was not entitled to federal habeas

relief. In no way can the Court of Appeals’ disposition of appellant’s habeas

petition be construed as a formal acquittal. Cf. Rambo v. Commissioner

of Police, 447 A.2d 279 (Pa.Super. 1982) (petitioner was entitled to

expungement where his conviction of drug possession was overturned on

appeal for lack of evidence, and the record showed that he had a

considerable   interest   in   having   his   record   expunged,   including   his

employment situation and the need to support his family); Commonwealth



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v. D.M., 695 A.2d 770 (Pa. 1997) (a petitioner is automatically entitled to

expungement of his arrest record where a case is terminated by a trial and

acquittal).

      This is a rather unique situation procedurally because after the jury

found appellant guilty of first degree murder, it did not consider lesser

degrees of murder, including second degree murder. Therefore, expunging

appellant’s first degree murder conviction would leave nothing on the record

to show that he is serving a valid life sentence, which the federal courts

have determined should not be disturbed.        The evidence was sufficient to

prove second degree murder, and since the jury did not consider lesser

degrees of murder, double jeopardy principles would not prohibit appellant’s

re-trial on second degree murder.      Rainey, 603 F.3d at 202 (“Rainey has

not identified any new argument or new evidence that he could have

presented at a second trial such that he would not have been convicted of

second degree murder.”). As the trial court observed,

              it just seems like you have an automatic right to
              expungement, shouldn’t matter if you’re in custody,
              but there’s this wrinkle that what he really did
              commit was murder in the second degree according
              to that Court, and there’s no -- there’d be no
              indication of that on this record which is why I would
              probably feel constrained to deny your motion if
              there isn’t some other way of doing this. In other
              words, I don’t think we can, I don’t know I don’t
              think we can change the murder of first degree to
              murder of the second degree . . . .




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Notes of testimony, 4/17/15 at 7. In its Rule 1925(a) opinion, the trial court

states, “even if the appellate courts rendered the functional equivalent of an

acquittal, there was not and has never been a recording of guilt on second

degree murder. Granting expungement under these circumstances would be

wildly misleading and unfair.”   (Trial court opinion, 11/10/15 at 3.)    We

agree with the trial court’s reasoning and find that the trial court did not

abuse its discretion in denying appellant’s petition for expungement.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/25/2016




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