Com. v. Perry, R.

J-A07025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROSS A. PERRY
Appellant No. 1379 WDA 2016
Appeal from the Order entered August 18, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No: CP-65-CR-0001715-1999
BEFORE: OLSON, STABILE, and STRASSBURGER, JJ.*
MEMORANDUM BY STABILE, J.: FILED JUNE 08, 2017
Ross A. Perry, Appellant, appeals from the order the Court of Common
Pleas of Westmoreland Court entered August 18, 2016, denying his petition
for expungement of his record for an indecent assault conviction. Upon
review, we affirm.
The relevant underlying facts are not in dispute. Briefly, following an
incident that occurred on March 3, 1999, involving a 10-year-old girl
Appellant had been babysitting, the Commonwealth charged Appellant with
aggravated indecent assault and indecent assault. On January 11, 2000,
Appellant pled guilty to indecent assault. The aggravated indecent assault
charge was nolle prossed as part of the plea agreement. As a result of the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A07025-17
conviction, Appellant was sentenced, inter alia, to 2 years’ probation. At the
time of the incident, Appellant was approximately 56. At the time of the
expungement proceedings before the trial court Appellant was approximately
74. There is no record of any arrests, charges, convictions prior to or
following the conviction at issue here.
Appellant argues he met all the requirements set forth in 18 Pa.C.S.A.
§ 9122(b)(1),1 and that the trial court abused its discretion in denying his
petition for expungement. Specifically, Appellant argues (i) the trial court
denied him due process “by apparently deciding the matter before
[Appellant] had an opportunity to be heard,” and (ii) the court decided the
matter “based on speculations and assumptions with no factual basis.”
Appellant’s Brief at 7. We disagree.
Our Supreme Court summarized the law governing the expungement
of criminal records as follows:
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. Carlacci v. Mazaleski, 568 Pa. 471,
798 A.2d 186, 188 (2002). 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. Waughtel, 999 A.2d 623, 624–
____________________________________________
1
Section 9122(b)(1) reads as follows: “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.” 18 Pa.C.S.A. § 9122(b)(1) (emphasis added).
-2-
J-A07025-17
25 (Pa. Super. 2010); Commonwealth v. A.M.R., 887 A.2d
1266, 1268 (Pa. Super. 2005).
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; Hunt v. Pennsylvania
State Police, 603 Pa. 156, 983 A.2d 627, 633 (2009). 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.,
548 Pa. 131, 695 A.2d 770, 772–73 (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 completion 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); D.M., supra at 772 (“We reiterate the authority of
Wexler and the balancing test approved therein as the means of
deciding petitions to expunge the records of all arrests which are
terminated without convictions except in cases of acquittals.”).
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).
-3-
J-A07025-17
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 880–81.
The mere assertion by the Commonwealth of a general interest
in maintaining accurate records of those accused of a crime does
not outweigh an individual’s specific, substantial interest in
clearing his or her record. Id. at 881–82.
Commonwealth v. Moto, 23 A.3d 989, 993-94 (Pa. 2011).
As noted above, Appellant challenged the trial court’s denial of his
petition for expungement2 on two grounds: (1) he was denied the
opportunity to make his case, and (2) in reaching its conclusions, the trial
court relied on speculation, not facts.
Regarding Appellant’s first contention, we note that the trial court held
a hearing on Appellant’s petition for expungement, at which counsel for
Appellant fully and freely made his case.3 A review of the record fails to
____________________________________________
2
As noted in Moto, the judicial analysis and evaluation of a petition for
expungement depends on how the underlying criminal action was disposed
(conviction vs. acquittal vs. otherwise terminated). While in the underlying
petition Appellant seems to pursue the expungement of both the aggravated
indecent assault charge and the indecent assault conviction, in the instant
appeal Appellant addresses only the indecent assault conviction.
Accordingly, we will similarly review only the denial of the expungement of
the indecent assault conviction. At any rate, we note the Commonwealth
dropped the aggravated indecent assault charge because Appellant agreed
to a plea agreement. It is well-established that when a defendant pleads
guilty and the Commonwealth agrees to dismiss charges as part of the plea
agreement, a defendant is normally not entitled to expungement of the
dropped charges. See Commonwealth v. V.G., 9 A.3d 222, 225-26 (Pa.
Super. 2010).
3
We also note that Appellant was not present at the hearing. See Trial
Court Opinion, 11/7/16, at 5 n.3.
-4-
J-A07025-17
unveil anything to support the allegation that the trial court decided the
matter before hearing what the parties had to say. The gravamen of his
allegation is based on one sentence proffered by the trial court during the
hearing, which reads as follows: “[Appellant] probably wants to get a job in
a day care center, or something like that.” N.T. Expungement Hearing,
8/18/16, at 6. According to Appellant, the above sentence shows that “the
judge below appeared to be predisposed to deny the petition merely because
of the allegations that had been made against him more than 17 years ago.”
Appellant’s Brief at 11. Appellant fails to construe the statement in its
context. Indeed, it is part of a more articulated concern later expressed by
the trial court, namely, the Commonwealth’s interest “that potential
employers would [] have knowledge that [Appellant] had been convicted of
[a] sexual offense against children.” Trial Court Opinion, 11/7/16, at 5; see
also N.T. Expungement Hearing, 8/18/16, at 8-9. While Appellant disagrees
with the trial court’s stated concern, Appellant’s dissatisfaction is not enough
for us to conclude the trial court abused its discretion in denying his petition.
See V.G., 9 A.3d at 228 (affirming denial of a petition for expungement of
nolo contendere plea where the Commonwealth wished to retain petitioner’s
arrest record due to the serious nature of the criminal charges).
Similarly, Appellant’s second ground for challenging the trial court
ruling does not fare too well. It is based on the following statement the trial
court made at the expungement hearing: “I wouldn’t want this man around
any child I knew, despite the fact he hasn’t been charged, quote, unquote,
-5-
J-A07025-17
with anything prior to this or since this time.” N.T. Expungement Hearing,
8/18/16, at 8-9. According to Appellant, “This statement is troubling for
several reasons. First, the fact that the court verbally put the word
‘charged’ in quotes indicated that [the court] simply assumed that even
though he wasn’t charged with other crimes, that he most likely had
committed others.” Appellant’s Brief at 11-12. Second, Appellant suggests
the trial court considered the allegations levied against Appellant, not merely
the conviction. Id. at 12.
This second argument is meritless for several reasons. First, a review
of the record fails to reveal any support for the allegation the trial court
assumed that Appellant must have committed other crimes, which were not
reflected in his record. Second, Appellant fails to mention that the trial court
made it clear that regardless of Appellant’s “spotless” record since the
conviction, “sexual molestation of a child is a very serious matter” and that
the court “wouldn’t want [Appellant] around any child [it] knew.” N.T.
Expungement Hearing, 8/18/16, at 8-9. As noted above, the trial court’s
main4 concern militating against the granting of Appellant’s petition was
“that potential employers would [] have knowledge that [Appellant] had
been convicted of sexual offense against children.” Trial Court Opinion,
____________________________________________
4
In its opinion, the trial court noted additional reasons for its decision. The
concern stated above is the only one the trial court clearly stated at the
hearing.
-6-
J-A07025-17
11/7/16, at 5. Finally, regarding Appellant’s claim that the trial court
considered the allegations against him as opposed to the conviction,
Appellant, once again, fails to mention the trial court was fully aware of the
distinction, and it clearly stated so. See N.T. Expungement Hearing,
8/18/16, at 8. Having found no support in the record for Appellant’s claim,
we conclude that the claim is meritless.
Because we conclude Appellant failed to establish the trial court
abused its discretion in denying Appellant’s expungement petition, we affirm
the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2017
-7-