Com. v. Debnam, P.

J-S15032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PEGGY DEBNAM,
Appellant No. 1075 EDA 2015
Appeal from the Order Entered March 20, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1206551-2000
BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 29, 2016
Appellant, Peggy Debnam, appeals pro se from the order denying her
petition to redact charges which were dropped as part of a plea agreement
fifteen years earlier when she entered a guilty plea to one count of witness
intimidation as a felony of the third degree. Appellant maintains there was
no plea agreement and the trial court erred by applying Commonwealth v.
Lutz, 788 A.2d 993 (Pa. Super. 2001), instead of Commonwealth v.
Wexler, 431 A.2d 877 (Pa. 1981). We affirm.
We derive the facts of the case from the trial court’s opinion and our
independent review of the record:
On June 7, 2001, Appellant pled guilty to one count of
witness intimidation and on the same date the trial court granted
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S15032-16
the Commonwealth’s motion for nolle prosequi on one count
each of retaliation against a witness, terroristic threats, and
obstruction of justice. Appellant was sentenced to time served
to a maximum of twenty-three months of confinement followed
by three years[’] probation. On March 20, 2015, Appellant
petitioned this court pro se to redact the nolle prossed charges.
The stated reasons for Appellant’s request was that she was
seeking a pardon for the charge she pled guilty to and that she
was unable to apply for a nursing degree. The Commonwealth
objected to the redaction on the basis that the redaction of these
charges was not part of the benefit of the bargain of the plea
agreement. The guilty plea colloquy indicated that the District
Attorney promised to recommend a sentence of not more than
time served to twenty-three months[’ incarceration] and three
years reporting probation in exchange for their motion for nolle
prosequi on all other charges. Because a redaction of these
charges was not part of the plea agreement, this [c]ourt denied
Appellant’s petition for redaction.
(Trial Court Opinion, 7/09/15, at 1-2) (record citations omitted).
On April 13, 2015, Appellant timely filed a notice of appeal from the
court’s order of March 20, 2015.1
Appellant presents four questions for our review:
[1.] Did the [trial] Court Abuse it’s [sic] Discretion when it
failed to consider the Wexler factors when determining whether
to grant or deny the Motion for Redaction of charges?
[2.] Did the [trial] Court error [sic] when it relied on
Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. [20]01),
which is no longer good law?
[3.] Did the [trial] Court error [sic] when it determined
that there was a plea agreement between Appellant and the
Commonwealth and did the Court error [sic] when it determined
____________________________________________
1
The trial court did not order a statement of errors. See Pa.R.A.P. 1925(b).
The court filed an opinion on July 9, 2015. (See Trial Ct. Op., 7/09/15); see
also Pa.R.A.P. 1925(a).
-2-
J-S15032-16
that the charges were nolle prosequi, without any record support
or for that matter any evidence [whatsoever] to support such
conclusion?
[4.] Did the [trial] Court error [sic] in failing to grant the
Motion for Redaction of Charges?
(Appellant’s Brief, at iv) (capitalization in original) (questions verbatim
except as noted by brackets).
As recognized by Appellant, her petition for redaction is actually a
request for expungement. (See, e.g., Appellants’ Brief, at 1).
Our Supreme Court has recently reaffirmed the standard of review for
expungement:
[The Pennsylvania Supreme] Court has consistently found
that the right in this Commonwealth to petition for expungement
of criminal records is an adjunct of due process. The decision to
grant or deny a petition for expungement lies in the sound
discretion of the trial court, who must balance the individual’s
right to be free from harm attendant to maintenance of the
arrest record against the Commonwealth’s interest in preserving
such records.
Commonwealth v. Wallace, 97 A.3d 310, 317 (Pa. 2014) (quotation
marks and citation omitted). Accordingly, “[w]e review the decision of the
trial court for an abuse of discretion.” Lutz, supra at 996 (citation
omitted). A trial court abuses its discretion if in reaching a conclusion, the
law is overridden or misapplied, or the exercised judgment is manifestly
unreasonable or is the result of partiality, prejudice, bias, or ill will. See,
e.g., Commonwealth v. Hann, 81 A.3d 57, 65 (Pa. 2013). To the extent
Appellant’s arguments raise questions of law, our appellate standard of
-3-
J-S15032-16
review is de novo, and the scope of our review is plenary. See
Commonwealth v. Sanford, 863 A.2d 428, 431 (Pa. 2004).
In general, the Criminal History Record Information Act at 18
Pa.C.S.A. §§ 9101-9183, and specifically Section 9122, governs the
expungement of criminal records.2 There is no dispute, and Appellant does
not argue, that she meets any of the statutory criteria.
____________________________________________
2
In pertinent part, 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 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
(Footnote Continued Next Page)
-4-
J-S15032-16
Here, preliminarily, we are compelled in the interest of clarity to note
that Appellant’s brief is materially and substantively deficient. Appellant’s
three argument sections do not correspond to the first three questions raised
in the statement of questions involved, and she omits any argument in
support of her fourth question altogether. (See Appellant’s Brief, at iv, 1-5).
The argument actually presented is somewhat repetitive, unfocussed and
overlapping.
_______________________
(Footnote Continued)
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.A. § 9122 (a), (b).
-5-
J-S15032-16
[A]lthough this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no
special benefit upon an appellant. Accordingly, a pro se litigant
must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court. This Court may quash or
dismiss an appeal if an appellant fails to conform with the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted).
Nevertheless, here, as in Lyons, in the interest of justice and judicial
economy, we will address the arguments that can reasonably be discerned
from this defective brief. See id. at 252.
Initially, we note that Appellant misapprehends, or simply misstates,
several key facts of record which form the foundation of her arguments.
Notably, she asserts repetitively that there is no plea agreement in this case.
Her claim is incorrect and contradicted by the record.
To the contrary, Appellant herself filed a reproduced record which
consisted of the signed and annotated written guilty plea colloquy. (See
Written Guilty Plea Colloquy, 6/07/01, 1-4). She also identified the colloquy,
(although she neglected to attach it), as Exhibit A of her brief.3
Appellant maintains in particular that the guilty plea colloquy states
“there was no plea agreement in this case.” (Appellant’s Brief, at 2).
____________________________________________
3
The written guilty plea colloquy is included as a supplement to the certified
record. The Commonwealth also attached the colloquy as an exhibit to its
brief. All versions are identical.
-6-
J-S15032-16
Appellant’s reliance on a single sentence, taken entirely out of context from
the first page of the guilty plea colloquy, is misplaced. The very next
sentence states, in the alternative, that:
There is no plea bargain or agreement of any kind except
that the District Attorney promised to:
Recommend a sentence of not more than Time [served] to
23 mos. [years] [months] . . . and 3 yrs. NRP.
Make no recommendation about my sentence.
Drop the charges of (all other charges).
(Written Guilty Plea Colloquy, at 1) (first emphasis added; all other
emphases indicate handwritten insertions). The colloquy is signed by
defense counsel, the assistant district attorney, the judge, and Appellant
herself. (See id. at 3-4).
The inescapable conclusion is that Appellant agreed to a counseled,
negotiated guilty plea which stipulated that in return for her guilty plea to
the charge of intimidation of a witness, the Commonwealth would
recommend a sentence of time served to no more than twenty-three months
of incarceration plus three years of non-reporting probation, in addition to
dropping the remaining charges against her. There is no dispute that the
Commonwealth complied with this agreement. (See Criminal Docket CP-51-
CR-1206551-2000, page 2 of 5) (confirming sentence on guilty plea to
intimidation of witnesses or victims; charges of retaliation against witness or
-7-
J-S15032-16
victim, terroristic threats, and obstructing administration of law [or] other
government function nolle prossed).
Therefore, we agree with the trial court that despite the shorthand
notation in the docket, the remaining three charges were not nolle prossed
in the specific technical sense of withdrawal because the Commonwealth
believed it could not prove the charges beyond a reasonable doubt.4 (See
Trial Ct. Op., at 3); see also Wexler, supra at 880; see generally
Pa.R.Crim.P. 585.
To the contrary, the plain meaning of the guilty plea colloquy is that
the remaining three charges were withdrawn or “drop[ped]” as a
consequence of the negotiated plea agreement. (Written Guilty Plea
Colloquy, at 1). On the evidence of record, this was a plea bargain pure and
simple.
The form may have been inartfully drafted, for example, by not
providing mutually exclusive check boxes for alternative dispositions.
Nevertheless, to insist that no plea agreement existed in this case, as
Appellant does, ignores the facts of record. This was not an “open plea” as
Appellant claims. (Appellant’s Brief, at v). The terms of the plea were
explicitly spelled out in the written agreement, in plain English, signed by all.
____________________________________________
4
Curiously, Appellant concedes that “[t]here is not a scintilla of evidence to
suggest that the charges were nolle prosequi, but instead the charges were
dismissed.” (Appellant’s Brief, at 4).
-8-
J-S15032-16
Appellant’s claim that this completed written form does not constitute a plea
agreement is supported neither by law, the surrounding facts, or any
legitimate semantic distinction. Therefore, her claim is legally frivolous.
Accordingly, Appellant’s first three claims, which all argue or depend on the
supposition that no plea agreement existed, are without merit.
Appellant’s fourth question is waived for lack of any discussion,
pertinent or otherwise, supported by authority. See Pa.R.A.P. 2119(a), (b).
Moreover, Appellant misapprehends our standard of review. The trial court’s
decision to grant or deny expungement is an act of judicial discretion. See
Wallace, supra at 317. Accordingly, we review the decision of the trial
court for an abuse of discretion, not an error of law. See Lutz, supra at
996. Appellant’s fourth claim would fail for that reason as well.
In Wexler, the Commonwealth nolle prossed the charges against
Martin and Estelle Wexler, because, as the prosecutor stated at the
expungement hearing, it could not prove guilt beyond a reasonable doubt. 5
See Wexler, supra at 880.
____________________________________________
5
Martin Wexler was charged with corruption of a minor premised on the
arrest of his daughter, Vicki, after marijuana and drug paraphernalia were
discovered in her bedroom. Mrs. (Estelle) Wexler was arrested at her
husband’s preliminary hearing on charges of criminal conspiracy and
corruption of a minor. Appellant Vicki entered a consent decree and
successfully completed a diversionary probationary program for juveniles.
The Supreme Court considered the special character of a consent decree
under the Juvenile Act a “vital” distinction. Wexler, supra at 881. The
(Footnote Continued Next Page)
-9-
J-S15032-16
In Lutz, this Court affirmed the denial of expungement to an appellant
who agreed to a negotiated plea bargain which provided for the dismissal of
all other charges against him in exchange for his guilty plea to one count of
aggravated assault. See Lutz, supra at 995.
We conclude, after review, that the facts of this case are more aligned
with the facts of Lutz than of Wexler. Pursuant to the holding in Lutz, a
Wexler hearing was not required where the Commonwealth withdrew
charges as part of a negotiated plea bargain. Accord, Commonwealth v.
Waughtel, 999 A.2d 623, 627 (Pa. Super. 2010) (affirming denial of
petition for expungement where plea bargain had been negotiated and it was
understood that remaining charges would be dismissed in exchange for
appellant’s guilty plea to one charge).
Appellant’s argument that Lutz “is no longer good law, assuming it
ever was[,]” does not merit relief. (Appellant’s Brief, at vi; see also id. at
3). Appellant follows, without specific attribution, the concurring opinion of
Judge Klein in Commonwealth v. Hanna, 964 A.2d 923, 929 (Pa. Super.
2009) (Klein, J., concurring). A concurring opinion is not binding precedent.
For any principle of law expressed in a decision of this Court to
be considered precedent, it must command a majority of judges
voting both as to disposition and the principle of law expressed.
Accordingly, a decision authored by just one member of a three-
_______________________
(Footnote Continued)
Supreme Court also considered the prosecutor’s procedure against the
parents “questionable.” Id. at 879.
- 10 -
J-S15032-16
member Superior Court panel, with the remaining two judges
either dissenting or concurring in the result, is of no precedential
value.
Commonwealth v. Davis, 17 A.3d 390, 398 (Pa. Super. 2011), appeal
denied, 29 A.3d 371 (Pa. 2011) (citation omitted).
Here, as in Lutz, Appellant was not acquitted of the charges at issue.
Nor is there anything in the record to support the supposition that the
Commonwealth withdrew the charges because it lacked evidence to proceed
with prosecution.6 We find, as did the trial court, that the charges were
withdrawn as part of a plea bargain. We discern no basis on which to
disturb the discretion of the trial court.
However, we note that the trial court states, inter alia, that it denied
the petition because redaction of the charges at issue was not a part of the
plea agreement. (See Trial Ct. Op., at 2). It reasons that “granting the
petition would give Appellant more benefit than she bargained for and would
effectively overrule Lutz.” (Id. at 3).
We note that this reasoning essentially tracks a principle stated in
Lutz. See Lutz, supra at 1001. We recognize that the benefit of the
bargain is one factor to consider in the review of a petition for expungement.
Nevertheless, as acknowledged by the trial court in its discussion, our
____________________________________________
6
To the contrary, the Commonwealth maintains that “[p]ursuant to a[ ] plea
agreement, she admitted her guilt and the Commonwealth dropped
additional charges.” (Commonwealth’s Brief, at 2).
- 11 -
J-S15032-16
caselaw presents other factors for additional consideration. Mindful of these
additional factors, our reasoning differs somewhat from that of the trial
court.7 However, “[w]e are not bound by the rationale of the trial court, and
may affirm on any basis.” In re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super
2011) (citation omitted).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/29/2016
____________________________________________
7
In any event, we take occasion to express our categorical disagreement
with Appellant’s bald, unsupported claim that “[a]ll of the reasons cited by
the trial court are frivolous and without merit.” (Appellant’s Brief, at 1).
- 12 -