Com. v. Abbatiello, A.

J-S75008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY ABBATIELLO
Appellant No. 2847 EDA 2013
Appeal from the Order Entered September 18, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0208351-1999
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED JANUARY 09, 2015
Appellant, Anthony Abbatiello, appeals from the September 18, 2013
order dismissing his motion to redact charges. Upon careful review, we
affirm.
From the certified record, we summarize the factual and procedural
history of this case as follows. On January 9, 1999, Appellant was charged
with numerous offenses including rape, involuntary deviate sexual
intercourse, aggravated indecent assault, false imprisonment, statutory
rape, unlawful restraint, indecent exposure, indecent assault, corrupting a
minor, simple assault, and recklessly endangering another person.1 On
February 12, 1999, several of the charges were dismissed at the preliminary
____________________________________________
1
18 Pa.C.S.A. §§ 3121, 3123, 3125, 2903, 3122, 2902, 3127, 3126, 6301,
2701, and 2705, respectively.
J-S75008-14
hearing. Thereafter, on June 17, 1999, Appellant entered a guilty plea to
one count of indecent assault and one count of corrupting a minor. All of the
remaining charges were nolle prossed by the Commonwealth.
On August 14, 2013, Appellant filed a pro se motion to redact charges,
seeking expungement of the arrest record for the above-mentioned
dismissed and nolle prossed charges.2 The trial court scheduled a hearing
for September 18, 2013. At the time of the hearing, the Commonwealth
informed the trial court that Appellant was “in custody”, whereupon the trial
court dismissed the petition. N.T., 9/18/13, at 3. On October 4, 2013,
Appellant filed a timely pro se notice of appeal.3
On appeal, Appellant raises the following question for our review.
Whether the [trial] court erred in dismissing the
Appellant’s Motion for Redaction of Charges without
holding a hearing[?]
Appellant’s Brief at 7.
____________________________________________
2
Appellant had filed two earlier petitions on October 12, 2012 and on April
17, 2013. The trial court dismissed each of those petitions without a hearing
on December 17, 2012 and May 22, 2013, respectively, citing Appellant’s
alleged incarceration on unrelated charges. Appellant filed a petition under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, on July
31, 2013 also seeking expungement relief. The trial court did not act on
that petition. However, we note, “[a] petition for expungement does not fall
within the ambit of the PCRA….” Commonwealth v. Rodland, 871 A.2d
216, 218 n.3 (Pa. Super. 2005) (citation omitted).
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. We note that Appellant filed his notice of appeal
and Rule 1925 concise statement pro se. Subsequently, counsel was
appointed on January 8, 2014, and filed a counseled appellate brief on
Appellant’s behalf.
-2-
J-S75008-14
We note the following principles guiding our consideration of this
matter.
There is a long-standing right in this Commonwealth
to petition for expungement of a criminal arrest
record, a right that is an adjunct of due process.
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) (citations omitted).
A defendant’s entitlement to expungement of a criminal record is
dependent on the status of the specific charges at issue. Instantly,
Appellant seeks expungement of charges that were dismissed during his
preliminary hearing and charges that were nolle prossed in connection with
his negotiated plea agreement.4 Appellant’s Brief at 10. “Except where
prohibited by statute, petitions to expunge the records of arrests terminated
without convictions for reasons such as nolle prosequi … should be evaluated
according to the factors listed in Commonwealth v. Wexler, 494 Pa. 325,
____________________________________________
4
Expungement of a criminal record for charges on which a petitioner has
been convicted are governed by statute and permitted only under limited
circumstances. See 18 Pa.C.S.A. § 9122; Commonwealth v. V.G., 9 A.3d
222, 224 (Pa. Super. 2010) (noting, “[w]here 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[]”). On the other hand, “[o]ur Supreme Court has held that in
cases terminated by reason of a trial and acquittal, a petitioner is
automatically entitled to the expungement of his arrest record.”
Commonwealth v. Lutz, 788 A.2d 993, 998 (Pa. Super. 2001), citing
Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997). Neither of these
scenarios is at issue in this case.
-3-
J-S75008-14
431 A.2d 877 (1981).” Commonwealth v. Lutz, 788 A.2d 993, 998 (Pa.
Super. 2001) (citations omitted). Balancing “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,” a trial court must
consider, inter alia, the following factors. Wexler, supra, at 879.
[T]he 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. (citation omitted). “At a Wexler hearing, the Commonwealth bears the
burden of affirmatively justifying retention of the arrest record, because it
did not, could not, or choose [sic] not to bear its burden of proof beyond a
reasonable doubt at trial.” Lutz, supra at 999 (citation omitted).
In the instant case, Appellant claims “[the trial] court abused its
discretion by denying the Appellant’s Petition for Redaction without holding a
Wexler hearing.” Appellant’s Brief at 14. “This due process right was
denied to the Appellant when the Commonwealth failed to make
accommodations to have him notified and present at the Petition for
Redaction hearing.” Id. The trial court explained its dismissal of Appellant’s
petition as follows.
In the present case, a Wexler hearing could not be
held on the expungement issue because Defendant
was in federal custody and therefore unable to
-4-
J-S75008-14
appear. Defendant may file a new motion to redact
the nolle prossed charges and a new hearing date
will be issued to determine the issue of expungement
without prejudice.
Trial Court Opinion, 2/28/14, at 2.
Our Supreme Court has recently clarified that the due process
considerations attendant to an individual’s right to petition for expungement
of his or her criminal record are not implicated when the petitioner is
incarcerated. Commonwealth v. Wallace, 97 A.3d 310, 320-322 (Pa.
2014). Accordingly, our Supreme Court held “that an inmate does not have
the right to petition for expungement while incarcerated.” Id. at 322.
Instantly, Appellant acknowledges that he was incarcerated at the time his
petition was filed and on the date scheduled for a hearing on his petition.
Appellant’s Brief at 9.
In light of the foregoing, we conclude the trial court did not abuse its
discretion by dismissing Appellant’s petition to redact his criminal arrest
record, without prejudice and without conducting a Wexler hearing, because
of Appellant’s incarceration status. See Wallace, supra. We therefore
affirm the trial court’s September 18, 2013 order dismissing Appellant’s
petition to redact.
Order affirmed.
-5-
J-S75008-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2015
-6-