Com. v. Park, I. ( 2015 )

J-A24026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
INSUN PARK
Appellant No. 671 EDA 2015
Appeal from the Order of February 20, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0004689-2013
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED OCTOBER 30, 2015
Insun Park appeals the February 20, 2015 order that denied her
petition to expunge a nolle prossed charge from her record. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
According to the affidavit of probable case filed on the record in
the above-captioned matter, on May 3, 2013, in the parking lot
of a department store, passers-by called the police when they
heard a child crying in a mini-van at approximately five minutes
before noon. Although the two rear windows of the van were
opened about one inch, Montgomery Township Police Officer
Taylor Jones, who responded to the call, observed the child to be
“in distress, crying and sweating.” The outdoor temperature was
63 degrees. When [Park] arrived at the scene, she told Officer
Jones [that] she took her three-and-one-half year-old daughter
into the store with her, but left her sixteen-month-old son
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*
Retired Senior Judge assigned to the Superior Court.
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unattended in the mini-van because he was sleeping and she did
not want to waken him. Officer Jones reviewed a video
recording of the parking lot that morning and learned that [Park]
had parked her car and entered the department store at 11:44
a.m. and did not return to her vehicle until 12:08 p.m.
Officer Jones charged [Park] with the first-degree misdemeanor
of endangering the welfare of a child, 18 Pa.C.S. § 4304(a)(1)[,]
and the summary offense of leaving an unattended child in a
motor vehicle, 75 Pa.C.S. § 3701.1(a). [Park,] through counsel,
waived her right to a preliminary hearing. . . .
After the magisterial district justice transferred the charges to
the [C]ourt of [C]ommon [P]leas, defense counsel applied to the
District Attorney for Accelerated Rehabilitative Disposition
(A.R.D.)[.] On October 17, 2013, the District Attorney denied
the A.R.D. application, noting “crime against a child” as the
reason. On March 26, 2014, and again on June 4, 2014, the
District Attorney reconsidered the A.R.D. application and denied
it for the same reason. The consistent refusal to give [Park]
A.R.D. is circumstantial evidence that the District Attorney did
not doubt that the evidence against [Park] was sufficient and
persuasive enough to support a conviction on the misdemeanor
charge.
[Park] entered a plea of guilty to the summary charge on July
29, 2014, approximately eight months [before the trial court
authored its opinion]. Although the sentencing sheet lists the
disposition as an “open” guilty plea,[1] the prosecutor stated that
the parties agreed to “a recommended sentence of three
months’ probation plus costs” and twenty-four hours’ community
service, and the Honorable Judge Thomas P. Rogers imposed
that exact sentence. The sentencing sheet also indicated that
the misdemeanor charge was nolle prossed by the
Commonwealth, and Judge Rogers stated on the record, “The
motion of the district attorney to nol[le]-pros is granted,” but the
prosecutor did not file a written motion to nolle pros the
misdemeanor charge, nor did she make an oral motion to do so
at the plea hearing. Judge Rogers sentenced [Park] to pay the
costs of prosecution for the misdemeanor charge, which is
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1
However, both the docket and the July 30, 2014 call of the trial list
note that it was a negotiated plea.
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circumstantial evidence of a compromise: the Commonwealth
would refrain from prosecuting the misdemeanor in exchange for
[Park] paying the Commonwealth’s costs of prosecuting that
charge. It is also circumstantial evidence that the prosecutor did
not concede that she could not prove [Park] guilty beyond a
reasonable doubt, and that Judge Rogers did not assume she
lacked evidence that was sufficient and persuasive enough to do
so. Notwithstanding the foregoing circumstantial evidence, the
transcribed notes of the guilty plea hearing do not include any
testimony or statement by [Park], her lawyer or the prosecutor
indicating whether the prosecutor nolle prossed the charge of
endangering the welfare of a child in exchange for [Park’s]
agreement to plead guilty to the summary offense of leaving an
unattended child in a motor vehicle; and if so, why.
At the hearing on [Park’s] petition for expungement, [Park] was
not sure whether expungement was part of the negotiated plea
agreement, nor whether she expected at the time of her plea
that the record of her arrest for the misdemeanor charge would
eventually be expunged. Her lawyer stated that he could
stipulate that a promise of expungement was not one of the
terms of the negotiated plea agreement, and although the
Commonwealth’s lawyer did not reject the offer to stipulate, he
did not accept it, and neither did the court.
The Commonwealth’s lawyer did not claim that [Park] agreed to
forgo expungement in the future, but he did state on the record,
“The charges were not nolle prossed or withdrawn on our part
because of a lack of evidence or inability to show guilt on her
side. It’s because we agreed to this as a plea agreement.” The
Commonwealth’s lawyer at the expungement hearing was not
the assistant district attorney who negotiated the guilty plea,
and the record is devoid of evidence that the former had
personal knowledge of the reason the latter moved to nolle pros
the misdemeanor charge.
Less than four months after [Park] pled guilty, she filed a
petition in which she asked the court to expunge the nol[le]
prossed charge of endangering the welfare of a child. During
that short time, [Park] had paid the fines and costs imposed as
part of her sentence, and completed the community service
obligation that was part of her sentence. Her petition averred
that: [Park] had not been arrested since she had entered her
guilty plea; she was 31 years old and a college graduate; and
the arrest record would be “harmful to [Park’s] reputation and
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calling, and is likely to interfere with her earnings and
livelihood.” At the hearing on the petition, [Park] testified that
prior to pleading guilty in the above-captioned matter, she had
never been arrested. The Commonwealth produced no evidence
to the contrary.
[Park] also testified that she wished to apply for a job as a
“medical interpreter” for patients who do not speak English, but
she was told by one prospective employer, Phoenix Language
Services, that it checks the criminal records of job applicants,
and “[i]t has to be clear. Nothing has to be on the record . . . .”
Nonetheless, the arrest and conviction did not prevent [Park]
from continuing her vocation of teaching piano to children.
Finally, [Park] testified that she had lawful permanent resident
status in the United States, but was not a citizen. She stated
that she wished to become a citizen, but the record of her arrest
would disqualify her from being granted citizenship. Neither her
lawyer nor the lawyer for the Commonwealth cited authority
supporting or disproving the legal conclusion to which she
testified.
The lawyer for the Commonwealth did not express a desire to
deny expungement at a later date. He conceded that a judge of
[the Court of Common Pleas] could exercise his or her discretion
to expunge the record of the summary conviction when five
years had elapsed after that conviction . . ., but asked “to at
least keep these charges on the record” during that period, “in
case she does have further contacts with the police.” Nor did
[the trial court] judge order that [Park] be permanently denied
expungement. . . . Noting also that “this just occurred, and this
is not even within eight months of where we are right now,” the
[trial court] judge weighed the circumstances and denied the
petition [on February 20, 2015].
Trial Court Opinion (“T.C.O.”), 4/20/2015, at 1-5 (citations to record
omitted).
On March 10, 2015, Park filed a notice of appeal. The trial court
ordered, and Park timely filed, a concise statement of errors complained of
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on appeal pursuant to Pa.R.A.P. 1925(b). On April 20, 2015, the trial court
filed its Pa.R.A.P. 1925(a) opinion.
Park raises one issue for our review: “When the Commonwealth failed
to present any evidence, did they meet their heavy burden of producing
compelling evidence that the endangering welfare charge they nol[le]
prossed should not be expunged.” Park’s Brief at 2.
“The 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 A.3d 989, 993 (Pa.
2011).
In Moto, our Supreme Court outlined how a trial court should analyze
an expungement petition:
Judicial analysis and evaluation of a petition to expunge depend
upon the manner of disposition of the charges against the
petitioner. When an individual has been convicted of the
offenses charged, then expungement of criminal history records
may be granted only under very limited circumstances that are
set forth by statute. 18 Pa.C.S. § 9122. When a petitioner has
been tried and acquitted of the offenses charged, we have held
that the petitioner is “automatically entitled to the expungement
of his arrest record.” Commonwealth v. D.M., 695 A.2d 770,
772-73 (Pa. 1997). When a prosecution has been terminated
without conviction or acquittal, for reasons such as nolle prosse
of the charges or the defendant’s successful complete 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.” Commonwealth v. Wexler, 431 A.2d 877, 879
(Pa. 1981).
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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.
Wexler, supra, at 879 (citation omitted).
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.
Id. at 993-94 (some citations omitted; some citations modified).
When a case has been terminated without a conviction, the Wexler
factors should apply. Commonwealth v. V.G., 9 A.3d 222, 227 (Pa. Super.
2010). However, when charges are nolle prossed, as here, the reasons for
the Commonwealth’s request for nolle pros become relevant to the trial
court’s analysis. When the Commonwealth requests nolle pros because it
was unable to meet its burden of proof beyond a reasonable doubt as to the
underlying charges, the Commonwealth bears the burden of proving why
expungement should not be granted. Id. at 225 (discussing Wexler).
However, if charges are nolle prossed or dismissed as part of a plea
agreement, the petitioner generally is not entitled to expungement under
the Wexler factors. Id. (citing Commonwealth v. Lutz, 788 A.2d 993
(Pa. Super. 2001)). This is because the record no longer would reflect the
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agreement between the petitioner and the Commonwealth and the petitioner
would receive more than he or she bargained for in the plea agreement. Id.
at 226.
Here, Park argues that the endangering the welfare of a child
(“EWOC”) charge was nolle prossed because “the Commonwealth decided
there was insufficient evidence to support the charges.” Park’s Brief at 5.
Because Park believed that the Commonwealth admitted that it could not
prove EWOC, Park asserts that the Commonwealth bore the burden to
demonstrate why the record should not be expunged. Park argues that the
Commonwealth presented nothing and, therefore, could not have met its
burden to prove that the Wexler factors weighed in favor of denying
expungement. Id. at 6-8.
Park is incorrect that the Commonwealth admitted the evidence was
insufficient to prove EWOC; the Commonwealth steadfastly asserted that the
charge was nolle prossed as part of a plea agreement. However, the trial
court found that, because the Commonwealth did not present the testimony
of the prosecutor who struck the plea agreement, it did not prove that the
charge was nolle prossed as part of the plea. T.C.O. at 7. The trial court
determined that, if the nolle pros was not due to a plea agreement, then it
was bound to consider the Wexler factors. Id.
We agree that the trial court had to apply the Wexler factors.
Without a conviction or an acquittal, the Wexler factors control the outcome
of an expungement petition. See V.G., supra. Here, the trial court
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concluded that the expungement was not part of a plea agreement. While
the docket indicated this was a negotiated plea, the details of the plea are
not of record. It is not clear whether the negotiated plea related to the
charges, the sentence, or both. Without record evidence, the trial court did
not abuse its discretion in concluding that this was not a case in which the
EWOC charge was nolle prossed as part of a plea agreement.
Further, the trial court did not abuse it discretion in weighing those
factors. The trial court first considered the weight of the Commonwealth’s
case. Based upon Officer Jones’ proposed testimony, the trial court found it
likely that Park would have been convicted of EWOC because Park would
have been aware that leaving a sixteen-month-old child in a parked car was
dangerous and because she failed to protect the child by doing so. T.C.O. at
8-10. The trial court also found that the Commonwealth provided strong
reasons for retaining the records, namely that Park’s crime involved a child
and her current and prospective employment also involves, or potentially
involves children, and that Park’s children are still young and there is the
possibility of a recurrence of EWOC. Id. at 10-11. The trial court did not
find Park’s age to be a relevant factor. Park’s subsequent clean record was
unconvincing, given the short time between the plea and the expungement
petition. Although the court gave Park credit for maintaining her
employment, it thought that, because her employment involved children, it
weighed in favor of denying the petition. Id. at 11-12.
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Citing Commonwealth v. Persia, 673 A.2d 969, 972 (Pa. Super.
1997), in which the relatively short sixteen months between the filing of
charges and the expungement petition was deemed a reason to retain the
record, the trial court found that the eighteen months in this case between
the charges and the petition for expungement weighed against
expungement. T.C.O. at 12. Finally, the court considered the adverse
consequences that Park cited. Park identified two specific consequences: an
inability to obtain citizenship and an inability to obtain employment as a
medical interpreter because the employer required a clean record. The trial
court determined that the employment issue did not weigh in favor of
expungement because Park averred that she had to have a clean record to
obtain this employment and, even if the EWOC charge were expunged, her
summary charge would still remain on her record. As to the citizenship
issue, the trial court found that Park offered no support for her statement
that an arrest would preclude citizenship and also that, even with
expungement, her record would not be clean.
Considering all this, the trial court concluded that the factors weighed
in favor of the Commonwealth’s interest in retaining the record instead of
Park’s “right to be free from the harm attendant to maintenance of the
arrest record.” Moto, 23 A.3d at 993. As in Moto, where the Supreme
Court affirmed the trial court, “the trial court expressly made clear both its
correct understanding of Wexler’s balancing test, as well as its reasons for
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denying [Park’s] petition. Id. at 996. Therefore, the trial court did not
abuse its discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2015
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