Com. v. Murphy, C. ( 2019 )

J-A18017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG DEVON MURPHY :
:
Appellant : No. 853 WDA 2018
Appeal from the Order May 16, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009419-2004
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 3, 2019
Appellant Craig Devon Murphy appeals pro se from the order entered
May 16, 2018, which vacated a November 8, 2017 order granting Appellant’s
petition for expungement. Appellant, in relevant part, argues that the trial
court lacked the authority to vacate the November 8, 2017 expungement
order more than thirty days after its entry. In light of the governing statute
and relevant case law, we are constrained to vacate the May 16, 2018 order.
The relevant facts and procedural history are as follows. On November
9, 2004, the Commonwealth filed a criminal information charging Appellant
with theft by unlawful taking, tampering with records, false swearing, unsworn
falsification to authorities, and securing execution of documents by
deception.1 The charges stemmed from a scheme whereby Appellant
____________________________________________
1 18 Pa.C.S. §§ 3921(b), 4104(a), 4903(b), 4904(a)(2), and 4114,
respectively.
J-A18017-19
prepared and recorded a deed that listed him as the owner of real property
that he had not purchased. Appellant then applied for mortgage loans based
on the falsified deed.
Appellant pled guilty to the offenses. On May 2, 2005, the trial court
sentenced Appellant to two years’ probation for tampering with records.
Pursuant to a plea agreement, the trial court imposed no further punishment
for the remaining offenses.2
On September 8, 2017, Appellant filed a petition for expungement. The
trial court granted Appellant’s petition on November 8, 2017, directing various
agencies to expunge all records of Appellant’s 2004 arrest and prosecution.
On November 17, 2017, the Commonwealth filed notice of its objection to the
expungement petition, claiming that Appellant was “not entitled under the law
to an expungement” because a trial court “[c]annot expunge a misdemeanor
conviction.” Notice of Obj., 11/17/17. On May 16, 2018, the trial court
vacated its November 8, 2017 order and determined that Appellant was not
entitled to expungement.
Appellant filed a notice of appeal on June 11, 2018. On July 13, 2018,
Appellant filed a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. The trial court filed a responsive opinion concluding that (1)
____________________________________________
2The sentencing order notes that pursuant to the plea agreement, the offense
of theft by unlawful taking was graded as a first-degree misdemeanor. See
Order, 5/2/05. The remaining offenses were graded as first and second-
degree misdemeanors. See Criminal Compl., 3/31/04, at 3-4 (unpaginated).
-2-
J-A18017-19
Appellant does not meet the statutory requirements for expunction; (2) the
trial court’s expungement order was void ab initio; and (3) the trial court
possessed inherent authority to correct the “clerical error” that resulted in the
entry of the expungement order, even after the expiration of the thirty-day
statutory period for modification of orders.
Appellant now raises five questions for this Court’s review:
1. Did the [trial] court err by vacating a final contested
expungement order more than thirty (30) days after issuing the
order?
2. Did the [trial] court lack jurisdiction to vacate the expungement
order?
3. Did the [trial] court err in determining that Appellant was not
entitled to expungement as a matter of law and equity?
4. Did the [trial] court lack the inherent authority to recreate
expunged records?
5. Did the [trial] court err by utilizing two separate docket
numbers to identify Appellant’s case?
Appellant’s Brief at 8-9.
Preliminarily, Appellant cites Commonwealth v. Cook, 518 A.2d 858,
860-61 (Pa. Super. 1986), for the proposition that a trial court cannot modify
an expungement order after the thirty-day period set forth in 42 Pa.C.S. §
5505. Id. at 14. Appellant maintains that the trial court “attempts to
manufacture a clerical error where none exists,” and the trial court’s own
neglect resulted in its failure to modify the expungement order within thirty
days. Id. at 17.
-3-
J-A18017-19
Appellant also asserts that the Commonwealth untimely filed its notice
of objection to the expungement petition, because Pa.R.Crim.P. 790(B)(1)
requires that the Commonwealth act within sixty days after service of the
petition. Id. at 18.
Filing an untimely objection was not the proper course for the
[Commonwealth] to take, rather the [Commonwealth] should
have filed a timely notice of appeal . . . or a timely motion for
reconsideration of the November 8, 2017 order. Even if the
untimely objection was considered a functional equivalent of a
motion for reconsideration, the [trial] court did not act on it within
thirty (30) days.
Id. Appellant concludes trial court erred in vacating the expungement order
more than thirty days after its issuance. Id. at 14.
The Commonwealth acknowledges that the holding in Cook might
convince this panel to determine that the trial court “did not have the
authority” to vacate the order granting expungement. Commonwealth’s Brief
at 5. In the alternative, however, the Commonwealth contends that the
Pennsylvania Supreme Court has recognized a “limited class of cases
amenable to the exercise by a trial court of the inherent power to correct
patent errors despite the absence of traditional jurisdiction.” Id. at 6 (quoting
Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007)). The
Commonwealth argues that Appellant’s case fits into this limited class,
because the “trial court had no statutory basis for granting expungement” and
the entry of the expungement order “was clearly in error.” Id. The
Commonwealth concludes that this Court is free to decide that the trial court’s
-4-
J-A18017-19
error was “patent or obvious . . . such that the court below had authority to
vacate its expungement order.” Id. at 8.
“The question presented by the parties, regarding the power of courts
to correct allegedly illegal . . . orders absent jurisdiction pursuant to 42 Pa.C.S.
§ 5505 . . . is a question of law. Accordingly, our scope of review is plenary
and our standard of review is de novo.” Holmes, 933 A.2d at 65 (citation
omitted).
“Except as otherwise provided or prescribed by law, a court upon notice
to the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.” 42 Pa.C.S. § 5505. However, “the
limits of jurisdiction enshrined in Section 5505 do not impinge on that time-
honored inherent power of” a court “to correct patent errors despite the
absence of traditional jurisdiction.” Holmes, 933 A.2d at 65 (citations
omitted); see also In re K.R.B., 851 A.2d 914, 918 (Pa. Super. 2004)
(explaining that a court has the power to “amend its records, to correct
mistakes of the clerk or other officer of the court, inadvertencies of counsel,
or supply defects or omissions in the record” (citation omitted)).
Regarding the limitations of this inherent power, our Supreme Court
noted:
This exception to the general rule of Section 5505 cannot expand
to swallow the rule. In applying the exception to the cases at bar,
we note that it is the obviousness of the illegality, rather than the
illegality itself, that triggers the court’s inherent power. Not all
illegal sentences will be amenable to correction as patent errors.
-5-
J-A18017-19
Moreover, the inherent power to correct errors does not extend to
reconsideration of a court’s exercise of . . . discretion.
Holmes, 933 A.2d at 66-67; see also Commonwealth v. Ellsworth, 97
A.3d 1255, 1257 (Pa. Super. 2014) (holding “that the duplicative imposition
of credit for time served constitutes a patent and obvious mistake that is
amenable to correction after the thirty-day period prescribed in [Section]
5505”); Commonwealth v. Robinson, 33 A.3d 89, 92-93 (Pa. Super. 2011)
(holding that the trial court’s failure to give proper consideration to character
evidence was not a patent error that would permit correction of the verdict
following a bench trial, and “[t]he weight accorded by the trial court to
character evidence is hardly patent, but revealed only by the court’s
subsequent explanation of its thinking”).
Despite a trial court’s inherent power to correct patent errors, this Court
has applied Section 5505, without exception, in a case involving a procedural
history similar to the present appeal. In Cook, the petitioner filed an
expungement petition on October 2, 1985. The trial court entered a rule upon
the Commonwealth to show cause as to why it should not grant the petition.
The trial court set a rule returnable date of October 29, 1985. The
Commonwealth did not oppose the expungement petition or file an answer to
the rule returnable, and the trial court granted the expungement petition on
October 31, 1985.
On December 27, 1985, the Pennsylvania State Police (PSP) filed a
petition for reconsideration of the expungement order. Following a hearing,
the trial court denied the PSP’s petition on March 4, 1986. The PSP filed a
-6-
J-A18017-19
notice of appeal, seeking to challenge the trial court’s authority to expunge
the petitioner’s record of conviction even if the Commonwealth did not oppose
the expungement petition.
On appeal, this Court determined that the trial court committed an error
of law in concluding that the petitioner was entitled to expungement.
Nevertheless, this Court cited Section 5505 for the proposition that the trial
court did not have “the power to reconsider the October 31, 1985 [o]rder
beyond a thirty-day period.” Cook, 518 A.2d at 860. Because the trial court
did not have authority to reconsider the petition, this Court vacated the March
4, 1986 order disposing of the PSP’s reconsideration request.
Instantly, Appellant filed the petition for expungement on September 8,
2017. The Commonwealth did not timely object. See Pa.R.Crim.P. 790(B)(1)
(stating that “[w]ithin 60 days after service of the petition, the attorney for
the Commonwealth shall file a consent or objection to the petition or take no
action”).3 On November 8, 2017, the trial court granted the expungement
petition.
____________________________________________
3 Without citing to any documents in the certified record, the trial court asserts
that the Commonwealth “promptly noted that [Appellant] was not entitled to
expunction as a matter of law on September 17, 2017.” Trial Ct. Op., 9/12/18,
at 7. The trial court further notes that the Commonwealth’s “opposition to
[Appellant’s] petition was not forwarded to [the trial] court, nor was [the trial]
court aware of the [Commonwealth’s] objection to [Appellant’s] petition” prior
to entry of the November 8, 2017 order granting expungement. Id. at 2
(some capitalization omitted). The record, however, does not provide support
for the trial court’s assertions. The docket provided to this Court does not
reveal any activity during the period between the filing of the expungement
-7-
J-A18017-19
On November 17, 2017, the Commonwealth untimely filed its objection
to the expungement petition. The trial court concluded that the
Commonwealth’s objection was “the functional equivalent to a motion for
reconsideration.” Trial Ct. Op., 9/12/18, at 8. Despite the Commonwealth’s
filing, the trial court took no further action until six months later when it
vacated the expungement order on May 16, 2018.
Even if we agreed with the trial court’s conclusion that the
Commonwealth’s notice of its objection amounted to a reconsideration motion,
the trial court lacked the authority to vacate the expungement order after the
expiration of the thirty-day period set forth in Section 5505. See Cook, 518
A.2d at 860; see also Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.
Super. 2000) (explaining that the filing of a motion for reconsideration does
not automatically toll the thirty-day period for appealing from a final order;
rather, the trial court must expressly grant reconsideration within thirty days
of entry of its order, and the trial court’s failure to do so causes it to lose the
power to act on the reconsideration motion).
____________________________________________
petition and the entry of the order granting the petition. Moreover, the
Commonwealth’s untimely notice of its objection to the expungement petition
provides no indication that the Commonwealth took any action to oppose
Appellant’s petition within the sixty-day period provided by Rule 790(B)(1).
Therefore, the record does not support the trial court’s determination that the
Commonwealth promptly objected to the expungement petition. See In re
S.M., 176 A.3d 927, 934 (Pa. Super. 2017) (reiterating that “an appellate
court cannot consider anything which is not part of the record in the case”
(citation omitted)).
-8-
J-A18017-19
While we acknowledge the trial court’s ability to correct a patent error
despite the absence of traditional jurisdiction, we cannot conclude that the
error at issue was so obvious as to trigger the trial court’s inherent power.
See Holmes, 933 A.2d at 66-67. Significantly, Cook also dealt with a
situation where a trial court committed an error of law in concluding that the
petitioner was entitled to expungement. See Cook, 518 A.2d at 860. Under
the circumstances, however, the Cook Court declined to extend an exception
to the general rule set forth in Section 5505. Id. at 860-61. Consequently,
we must adhere to the decision in Cook. See Commonwealth v. Davis,
188 A.3d 454, 457 n.2 (Pa. Super. 2018) (reiterating that “a [Superior Court]
panel must adhere to the precedents that this Court’s prior panels have
handed down”).
Based upon the foregoing, the trial court did not have authority to
reconsider Appellant’s expungement petition, and we must vacate the May 16,
2018 order modifying the original order granting expungement. See 42
Pa.C.S. § 5505; Cook, 518 A.2d at 860.
Order vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2019
-9-
J-A18017-19
- 10 -