Com. v. Tomer, J. ( 2014 )

J-A28041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY TOMER
Appellant No. 939 EDA 2014
Appeal from the Order February 14, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-MD-0001162-2009
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 05, 2014
Jeffrey L. Tomer appeals an order denying his petition to expunge his
2009 conviction for indirect criminal contempt (“ICC”) arising out of an
alleged violation of a Protection from Abuse (“PFA”) order. Tomer’s petition
claims his ICC conviction is unjustified and harmful to his reputation. Trial
Court Opinion, 5/7/2014, at 1. We affirm on the basis of the well-reasoned
trial court opinion.
The Commonwealth aptly sets forth the underlying factual background
as follows:
On February 24, 2009, appellant's wife
Pure[u]suren Tomer, filed a PFA complaint against
him. On April 2, 2009, counselled appellant agreed
to a Final Protection from Abuse Order before the
Honorable Maureen Fitzpatrick of the Court of
Common Pleas of Delaware County, as follows:
J-A28041-14
Defendant is completely evicted and
excluded from the residence at 507
Corinthian Avenue, Apartment A,
Essington, Pennsylvania 19029, except
for picking up and delivering children at
agreed times and maintenance of
properly only at specific times.
On May 29, 2009, appellant was charged with
Indirect Criminal Contempt on complaint, of his wife,
Pure[u]suren Tomer. [The complaint alleged:]
On May 24, 2009, at 9:00 a.m. I met my
husband at Tinicum Police Station to
drop of our children for their visitation
with their father. I went home and was
out front on my lawn with my neighbors
when at around 10:15 a.m. the
defendant came flying down the street
very fast that he slid and crashed the car
into the curb outside my residence. Our
children were in the car. Defendant
leaned across to passenger side window
and said something to my neighbor
about the lawn mower we were working
on and my neighbor walked away and
the defendant said to me ‘I will get you.’
Defendant left and I called 911 because
he scared me.’ DA's office has copies of
Police Report [. . .] all of which were
against the peace and dignity of the
Commonwealth of Pennsylvania and
contrary to the Act of Assembly, or in
violation of 6114 and of the Title 23
Domestic Relations Act.
Appellant contested the charges and a hearing
was held June 4, 2009 before [the] Honorable
Michael F. X. Coll, with Donna Frank[] representing
the Commonwealth and Jay Feinschil representing
defendant. It was stipulated that the PFA was in
place at the time of the alleged violation. Ms. Tomer
testified that on May 24, 2009, outside their house,
defendant threatened her. He said, ‘I will get you.’
(N.T. 6/14/09, 7).
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Defendant testified and denied the threat ‘I
have never harmed my wife one --- never. I will
never harm my wife. I don't desire any harm for her.
I love her.’ Id. 32.
The court found him guilty of the ICC violation
and sentenced him on June 4, 2009 to six month's
probation. No appeal was taken from the Judgment
of Sentence.
Commonwealth’s Brief at 2-3.
On January 14, 2014, Tomer filed a pro se petition to expunge his ICC
record. On January 30, 2014, the trial court convened a hearing and, on
February 12, 2014, issued an order denying Tomer’s request for
expungement. On March 12, 2014, Tomer filed a timely notice of appeal.
On March 13, 2014, the trial court directed Tomer to file his 1925(b)
statement and, on April 1, 2014, he complied.
Tomer presents the following issues for our review:
1) [Is the appellant entitled to] expungement of an ICC
conviction where the countermand of a questionable
and disputed lower [c]ourt indirect contempt of court
order is merited?
2) [Is the appellant entitled to] a new trial through the
reinstatement of appellate rights based upon the fact
that notification of the 10 day right to file a motion
and 30 day appeal period was not extended to
plaintiff/appellant by the lower [c]ourt in opposition
to PA statute?
Appellant’s Brief at 8.
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We review the decision of the trial court to grant or deny a request for
expungement of an arrest record for an abuse of discretion.
Commonwealth v. V.G., 9 A.3d 222 (Pa.Super.2010).
When a defendant has been convicted of charges, and not merely
arrested, an expungement of the defendant’s criminal history records is only
permissible under limited circumstances set forth in 18 Pa.C.S.A. § 9122.
Hunt v. Pennsylvania State Police, 983 A.2d 627, 633 (Pa.2009). Section
9122 provides:
(a) Specific proceedings.--Criminal history record
information shall be expunged in a specific criminal
proceeding when:
(1) no disposition has been received or, upon
request for criminal history record information,
no disposition has been recorded in the
repository within 18 months after the date of
arrest and the court of proper jurisdiction
certifies to the director of the repository that
no disposition is available and no action is
pending. Expungement shall not occur until the
certification from the court is received and the
director of the repository authorizes such
expungement;
(2) a court order requires that such
nonconviction data be expunged; or
(3) a person 21 years of age or older who has
been convicted of a violation of section 6308
(relating to purchase, consumption, possession
or transportation of liquor or malt or brewed
beverages), which occurred on or after the day
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the person attained 18 years of age, petitions
the court of common pleas in the county where
the conviction occurred seeking expungement
and the person has satisfied all terms and
conditions of the sentence imposed for the
violation, including any suspension of operating
privileges imposed pursuant to section 6310.4
(relating to restriction of operating privileges).
Upon review of the petition, the court shall
order the expungement of all criminal history
record information and all administrative
records of the Department of Transportation
relating to said conviction.
(b) Generally.--Criminal history record information
may be expunged when:
(1) An individual who is the subject of the
information reaches 70 years of age and has
been free of arrest or prosecution for ten years
following final release from confinement or
supervision.
(2) An individual who is the subject of the
information has been dead for three years.
(3)(i) An individual who is the subject of the
information petitions the court for the
expungement of a summary offense and has
been free of arrest or prosecution for five years
following the conviction for that offense.
(ii) Expungement under this paragraph shall
only be permitted for a conviction of a
summary offense.
18 Pa.C.S. § 9122(a), (b).
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While acknowledging the binding precedent of Commonwealth v.
Charnik, 921 A.2d 1214 (Pa.Super.2012), in which this Court affirmed an
order denying expungement of a PFA record, Tomer argues that PFA records
are dissimilar and a case-by-case approach to expungement of such records
is necessary to implement justice. He distinguishes his own circumstances,
namely his consent to a PFA order that contained no admission of guilt, 1
which he claims was done in order to expedite a custody dispute, from the
circumstances in Charnik, wherein the trial court found actual physical
abuse and multiple, clear, willful violations of the PFA order. Appellant’s Brief
at 21-23. In support, he asserts:
[T]he [Charnik] case exemplifies the extreme where
there was [a] finding of actual physical abuse as well
as a clear willful violation of the PFA order on
multiple occasions and a finding of guilty. Rigidly
following the [Charnik] case as exclusive precedent
equates with mistreatment of dissimilar cases, an
abuse of discretion in[sofar] as differentiation was
deemed unworthy of the [c]ourt’s attention.
Appellant’s Brief at 22. Tomer further claims he entered into the PFA order
without knowledge of its permanent status. Id.
In addressing Tomer’s claims, the trial court aptly reasoned:
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1
While Tomer refers to his “consent” to a PFA order, it is unclear whether he
failed to contest his ex-wife’s petition for a PFA order or failed to contest his
subsequent violation of the order. His argument leads us to believe that he
refers to the latter situation, i.e., that he failed to contest his violation of the
PFA order.
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Section 9122(a) sets forth circumstances in
which expungement is mandatory, none of which are
applicable to the case sub judice, as Defendant’s
charges resulted in a conviction, and the conviction
is not for a violation of section 6308 (relating to
purchase, consumption, possession or transportation
of liquor or malt or brewed beverages).[2]
***
In Charnik, the Superior Court applied 18
Pa.C.S.A. § 9122(b) to decide whether or not the
appellant’s request for expungement of his
convictions for ICC which arose out of violations of a
PFA order should be granted. Charnik at 1215. The
Court found that sections (b)(1) and (b)(2) did not
apply to the appellant, and therefore his conviction
for ICC could not be expunged. Here, as in Charnik,
Defendant is less than 70 years of age and he has
not been free of arrest for prosecution for ten years,
and he is alive. Therefore, sections 1 and 2 do not
apply to Defendant.
Since Charnik was decided, Section 9122 has
been amended to include (b)(3), which allows for the
expungement of summary offenses if the defendant
is arrest and prosecution free for five years following
his conviction. 2008 Pa. Legis. Serv. Act 2008-134
(H.B. 1543). This Court was unable to find any case
law applying Section (b)(3) to ICC convictions for
violation of a PFA order. In applying Section
(b)(3) to the instant case, this [c]ourt
determined that it did not have discretion to
grant Defendant's request for expungement for
two reasons: (1) Defendant's conviction for ICC
is not a conviction of a summary offense; and
____________________________________________
2
See 18 Pa.C.S. § 9122(a)(3) (prescribing mandatory expungement for
convictions under section 6308 (relating to purchase, consumption,
possession or transportation of liquor or malt or brewed beverages)).
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(2) even if Defendant's conviction is considered
a summary offense conviction, Defendant has
not been free of arrest or prosecution for five
years following his conviction.
The PFA Act sets forth the punishment for an
ICC conviction arising from a violation of a PFA
order, which may include: a fine of not less than
$300 nor more than $1,000 and imprisonment up to
six months; or a fine of not less than $300 nor more
than $1,000 and supervised probation not to exceed
six months. 23 Pa.C.S.A. § 6114(b)(1)(i). Section
6114 does not grade ICC arising from a violation of a
PFA order, but merely provides the minimum and
maximum sentences for a conviction. Where an
offense is ‘declared by law to constitute a crime,
without specification thereof, [the offense] is a
misdemeanor of the second degree, if the maximum
sentence does not make a felony under this section.’
18 Pa.C.S.A. § 106(d). Therefore, this Court believes
that an ICC charge arising from a violation of a PFA
order is a misdemeanor of the second degree and
not a summary offense. Further, 18 Pa.C.S.A. §
1105 states that the sentence of imprisonment for a
summary offense shall not be more than 90 days.
Section 6114 of the PFA Act allows for imprisonment
for an ICC conviction of up to six months, which is
greater than 90 days, indicating the legislature did
not intend an ICC conviction for violation of a PFA
order to be a summary offense. See 1 Pa.C.S.A. §
1922(2) (stating that in ascertaining the intention of
the Generally Assembly, a court should presume that
‘the General Assembly intends the entire statute to
be effective and certain’); Freundt v. Com. Dept,
of Transp., Bureau of Driver Licensing, 883 A.2d
503, 506 (Pa. 2005) (finding that when interpreting
a statute, ‘individual statutory provisions must be
construed with entire statute of which they are a
part’). Finally, the Defendant's Criminal History
Record was attached to his Petition. At page 1 of 1,
that document shows the Pennsylvania State Police
report[s] Defendant's ICC charge as a misdemeanor
of the second degree.
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Because Defendant's conviction is not a
summary offense conviction, the Court does not
have discretion to grant expungement under Section
9122(b). Even if Defendant's conviction were
considered to be a summary offense conviction,
Defendant has not been free of arrest or prosecution
for five years following his conviction. Defendant was
convicted on June 4, 2009. Therefore, the five[-]year
period would not expire until June 4, 2014.
Trial Court Opinion, 5/7/2014, at 5-7 (emphasis added).
After a thorough review of the record, the parties’ briefs, the
applicable law, and the well-reasoned opinion of the Honorable Ann Osborne,
it is our determination that that the trial court did not abuse its discretion.3
Order affirmed.
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3
Tomer has waived his second argument by failing to develop it with legal
authority or citations to the record. See Pa.R.A.P. 2101 (this Court may
quash or dismiss matter if defects in briefs or reproduced record are
substantial), 2111 (rules governing content of briefs), 2119 (argument
requirements, including a discussion and citation to authority). Reviewing
courts do not act as counsel to develop arguments on behalf of
appellants/petitioners. Commonwealth v. Hardy, 918 A.2d 766, 771
(Pa.Super.2007). When defects in a brief impede a reviewing court from
conducting meaningful appellate review, the court may dismiss the appeal
entirely or find that certain issues are waived. Id. See also
Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super.1996) (issue is
waived where defendant failed to develop argument in his appellate brief
and cited no authority).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2014
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