Com. v. Romeo, J. , 153 A.3d 1084 ( 2017 )


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  • J-S81041-16
    
    2017 PA Super 1
    COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JOHN ROMEO
    Appellant                     No. 272 EDA 2016
    Appeal from the Order December 18, 2015
    In the Court of Common Pleas of Montgomery County
    Criminal Division at No(s): CP-46-CR-0001745-1983
    BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
    OPINION BY STEVENS, P.J.E.:                            FILED JANUARY 03, 2017
    John Romeo (“Appellant”) appeals from the order entered by the Court
    of Common Pleas of Montgomery County denying his motion to expunge the
    record of his 32 year-old conviction for third-degree felony criminal trespass.
    He claims the court’s reliance on statutory law prohibiting expungement of
    conviction history under his circumstances1 deprived him of his due process
    right to a judicial assessment of his interest in avoiding harm attendant to
    maintenance of the conviction record against the Commonwealth’s interest
    in preserving the record. Guided by decisional law standards finding no due
    process basis for application of this balancing test—reserved for requests for
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    1
    See the Criminal History Record Information Act (CHRIA), 18 Pa.C.S. §
    1922, infra.
    J-S81041-16
    discretionary expungement of arrest records in cases terminated without
    conviction or acquittal—to expunge conviction records, we affirm.
    The lower court sets forth an apt case history as follows:
    On October 7, 2015, Defendant [hereinafter “Appellant”] filed a
    pro se petition pursuant to Pa.R.Crim.P. 790(A). It set forth
    Appellant’s date of birth as October 1, 1954 (indicating that he
    was sixty-one years old when the petition was filed), his date of
    arrest (May 7, 1983), and the specific charges to be expunged
    and their respective dispositions as follows: first-degree-felony
    burglary and third-degree misdemeanor loitering and prowling,
    which were nolle prossed; and third-degree-felony criminal
    trespass (Crimes Code § 3503(a)(1) and first-degree-
    misdemeanor prohibited offensive weapon (Crimes Code §
    908(a)), to which he pled guilty.
    Paragraph 13 of the petition         set   forth   “the   reason   for
    expungement:” as follows:
    13: The reason for expungement: It’s been over 30
    years. It would be nice to put this behind me. Not a
    day goes by I don’t think about this. It’s not a good
    feeling carrying this. I can’t hold any public office
    positions. That was a different person in 1983.”
    On December 18, 2015, the [lower court] held a hearing on the
    petition. Appellant appeared with counsel, who narrowed the
    focus of the petition for expungement solely to the felony
    criminal trespass conviction. . . .
    Counsel presented the following argument in support of the
    petition:
    John Romeo pled guilty to, among other things in
    1983 . . ., felony criminal trespass, surreptitiously
    entering, a felony of the third degree.
    He had filed this pro se motion for expungement. I
    represented him before in other matters and he
    asked me to help him out on this.
    -2-
    J-S81041-16
    So basically his argument, Your Honor, is that after
    32 years, it’s the only felony on his record. The
    felony itself has prevented him from voting, serving
    on a jury[,] and getting a job with the police
    department in his local community.
    I realize under the statute that he has no right to an
    expungement of a criminal conviction. My argument
    is more premised, Your Honor, on the due process of
    the Pennsylvania Constitution and the Federal
    Constitution under these specific facts that after 32
    years, he’s asking that this felony 3 criminal trespass
    be expunged.
    I realize the weight of the statutory law is against
    me and I’m not arguing that, it’s clear. What I’m
    arguing is one of Constitutional due process to allow
    him to fully exercised [sic] his right to life, liberty[,]
    and the pursuit of happiness, among other things,
    and that the Court would consider granting this
    expungement of that one – it would be just one Bill,
    1743 [sic] of ’83, Count 2, criminal trespass, a felony
    of the third degree.
    Mot./Pet. Expungement, 12/18/15, at 2-3.
    The Commonwealth[] countered with:
    Your Honor, defense counsel has admitted there
    certainly is no statutory basis for this expungement.
    The Appellant pled guilty in 1983 to criminal
    trespass, a felony of the third degree, and an
    offensive weapons charge, a misdemeanor of the
    first degree, which defense counsel is not seeking to
    have expunged.
    The remaining counts that were [nolle prossed] were
    burglary and loitering and prowling.
    The Commonwealth then reviewed the factual basis
    for the plea of guilty and argued the serious nature
    of the charges.
    -3-
    J-S81041-16
    The Court took the matter under advisement and
    handed down a decision denying the petition later
    that day.
    Appellant filed a Notice of Appeal . . . on January 19,
    2016.[2]
    Lower Court Opinion, 4/15/16, at 1-3.
    Appellant presents the following questions for our consideration:
    I.     IS APPELLANT ENTITLED TO AN EXPUNGEMENT OF A
    SINGLE, 32-YEAR OLD MINOR FELONY CONVICTION AS A
    MATTER OF DUE PROCESS SO HE CAN ONCE AGAIN ENJOY
    THOSE RIGHTS AND LIBERTIES MOST AMERICANS TAKE
    FOR GRANTED?
    II.    WAS ERROR OR THE APPEARANCE OF ERROR COMMITTED
    BY THE LOWER COURT’S ORDER WHICIH [SIC] FIRST
    GRANTED THEN INEXPLICABLY DENIED APPELLANT’S
    EXPUNGEMENT REQUEST?
    Appellant’s brief at 4.
    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). [See, infra, Commonwealth
    v. Malone, 
    366 A.2d 584
     (Pa.Super. 1976)]. 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
    ____________________________________________
    2
    Thirty days from the December 18, 2015, order was Sunday, January 17,
    2016. Monday, January 18, 2016, was Martin Luther King, Jr. Day, an
    observed holiday. Appellant, therefore, had until Tuesday, January 19,
    2016, to file a a timely notice of appeal. See Pa.R.A.P. 903(a) (notice of
    appeal “shall be filed within 30 days after the entry of the order from which
    the appeal is taken”); 1 Pa.C.S.A. § 1908 (excluding weekends and holidays
    from the computation of time when the last day of the time period falls on a
    weekend or holiday).
    -4-
    J-S81041-
    16 A.2d 623
    , 624–25 (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.”).
    Commonwealth v. Moto, 
    23 A.3d 989
    , 993 (Pa. 2011).
    Herein, Appellant summarily concedes that Section 9122 affords him
    no opportunity for relief, presumably because he fails to meet statutory
    requirements for expungement of conviction history.3 He advances, instead,
    ____________________________________________
    3
    Relevant for purposes of the present appeal, the CHRIA provides:
    § 9122. Expungement
    ***
    (b) Generally.--Criminal history record information may be
    expunged when:
    (Footnote Continued Next Page)
    -5-
    J-S81041-16
    a constitutional challenge positing that the same due process rights requiring
    performance of a balancing test where neither conviction nor acquittal was
    obtained are, likewise, implicated in a petition to expunge a conviction
    record.4 See Appellant’s brief at 13. In support of this position, Appellant
    argues by analogy that just as constitutional interpretation continues to
    evolve on issues relating to fundamental liberty interests and punishment,
    so too should it evolve to allow expungement of conviction records through
    the same process applicable to nonconviction records:
    The law does not perpetually remain static. As we have seen
    over the last several years our federal constitution has been
    interpreted to reflect changing societal values. That evolution
    _______________________
    (Footnote Continued)
    (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.
    ****
    18 P.S.C.A. § 9122.
    4
    Appellant specifically refers neither to the Due Process Clause of the
    Fourteenth Amendment of the United States Constitution nor to Article I,
    Section 9 of the Pennsylvania Constitution, but instead expresses a generic
    due process claim. The lack of specificity is of no moment to our review,
    however, as our courts have generally treated the Due Process Clause of the
    United States Constitution and Article I, Section 9 of the Pennsylvania
    Constitution as coextensive. See, e.g., Commonwealth v. Sims, 
    919 A.2d 931
    , 941 n. 6 (Pa. 2007).
    -6-
    J-S81041-16
    has culminated into the extension of constitutional protection to
    same sex marriage and to juveniles convicted of first degree
    murder no longer being condemned to death sentences or even
    sentences of life without possibility of parole.
    Unlike the above-described legal issues, it is a much more
    restrained legal evolution to extend due process protections to
    those seeking relief from a prior felony conviction where a lower
    court engages in the same balancing test utilized in determining
    whether to expunge an arrest record.
    Appellant’s brief at 12.
    In Commonwealth v. Magdon, 
    456 A.2d 194
     (Pa.Super. 1983), this
    Court addressed whether due process rights require extending use of the
    balancing test prescribed in Wexler to instances where a petition seeks
    expungement of conviction records.5 In affirming the denial of petitioner’s
    request without application of the test, the Magdon Court discussed the
    legal basis for recognizing a right to seek expungement of arrest records and
    found such basis inapposite where expungement of conviction records is
    sought:
    In [ ]Malone,[ ] this Court held for the first time that upon
    petition and hearing an accused's record can be expunged if the
    evidence at the hearing justifies the expungement. The Court
    first concluded that it enjoyed authority to order the
    expungement of an arrest record, and next determined the
    circumstances under which expungement is proper. In deciding
    this first point, the Court in Malone stated its rationale as
    follows:
    ____________________________________________
    5
    Magdon pled guilty to a charge of selling marijuana and served eighteen
    months’ incarceration in Lackawanna County Prison.
    -7-
    J-S81041-16
    It seems clear, therefore that our appellate courts
    recognize the right of an accused to seek
    expungement of an arrest record. Cf. Sullivan v.
    Murphy, 156 U.S.App.D.C. 28, 
    478 F.2d 938
    (1973). Although our research does not indicate a
    stated legal basis for that right in our appellate
    decisions, we believe that such a right is an adjunct
    to due process. The harm ancillary to an arrest
    record is obvious: “Information denominated a
    record of arrest, if it becomes known, may subject
    an individual to serious difficulties. Even if no direct
    economic loss is involved, the injury to an
    individual's reputation may be substantial. Economic
    losses themselves may be both direct and serious.
    Opportunities     for   schooling,    employment,     or
    professional    licenses    may     be   restricted   or
    nonexistent as a consequence of the mere fact of an
    arrest, even if followed by acquittal or complete
    exoneration of the charges involved.          An arrest
    record may be used by the police in determining
    whether subsequently to arrest the individual
    concerned, or whether to exercise their discretion to
    bring formal charges against an individual already
    arrested. Arrest records have been used in deciding
    whether to allow a defendant to present his story
    without impeachment by prior convictions, and as a
    basis for denying release prior to trial or an appeal;
    or they may be considered by a judge in determining
    the sentence to be given a convicted offender.”
    Menard v. Mitchell, 139 U.S.App.D.C. 113, 
    430 F.2d 486
    , 490-91 (1970). See also, Michelson v.
    United States, 
    335 U.S. 469
    , 
    69 S.Ct. 213
    , 
    93 L.Ed. 168
     (1948). Cf. Wisconsin v. Constantineau, 
    400 U.S. 433
    , 
    91 S.Ct. 507
    , 
    27 L.Ed.2d 515
     (1971).
    Thus, it is not hyperbole to suggest that one who is
    falsely accused is subject to punishment despite his
    innocence.     Punishment of the innocent is the
    clearest denial of life, liberty and property without
    due process of law. To remedy such a situation, an
    individual must be afforded a hearing to present his
    claim that he is entitled to an expungement -- that
    is, because an innocent individual has a right to be
    free from unwarranted punishment, a court has the
    -8-
    J-S81041-16
    authority to remedy the denial of that right by
    ordering expungement of the arrest record.
    Id. at 69, 
    366 A.2d at 587-88
    . [(footnote deleted)].
    Once the Court determined that expungement of an arrest
    record may be ordered, it went on to articulate a balancing test
    to be applied in determining what circumstances the exercise of
    that authority is warranted. The Court in Malone noted that the
    balancing of societal interests in the retention of arrest records
    with the rights of the individual was the salient point of inquiry:
    What is ... required is a more delicate balancing of
    law enforcement needs against the privacy and other
    interests of affected individuals, and a closer analysis
    of whether legitimate law enforcement needs may be
    served in a manner which does not unduly trench
    upon the individual's rights.
    Id. at 70, 
    366 A.2d at 588
    , quoting Utz v. Cullinane, 172
    U.S.App.D.C. 67, 
    520 F.2d 467
    , 475 n. 10 (1975).
    ***
    Instantly, [appellant Magdon] refers to this balancing test and
    cites the above-stipulated facts [including laudable post-
    conviction attainment of high school and college degrees with
    honors, a record of continuous employment and community
    volunteerism, a good reputation among co-workers and
    neighbors, the automatic denial of promotions because of his
    record, and an acceptance into the Physician’s Assistant program
    at Hahnemann Medical Hospital conditional on the expungement
    of his conviction record] which he alleges tip the scales in his
    favor. Despite the strength and number of uncontroverted facts
    which appellant asserts in support of his contention that he is a
    worthy candidate for expungement, we are unable to examine
    his record since we cannot erase the stigma of his conviction.
    We commend appellant for his post-conviction accomplishments
    and express dismay concerning his inability to obtain desired
    employment. However, it is readily apparent from the above
    quoted passage in Malone that Judge Hoffman’s rationale for
    allowing expungement of an arrest record was based upon the
    due process rights of the accused. This due process right to be
    heard is not abridged by denying an expungement hearing to
    -9-
    J-S81041-16
    one actually convicted of a crime because the conviction itself is
    based upon a hearing in which the accused was adjudged guilty
    beyond a reasonable doubt, or upon a plea of guilty which
    waives the many of the formalities of such a hearing. The
    convicts’ trial provided a forum in which he or she enjoyed an
    opportunity to be heard. Nor further opportunity for a hearing is
    required by the due process guarantee.
    Magdon, 
    456 A.2d at 195-96
    .
    Magdon represents binding precedent upon this panel,6 as Appellant’s
    challenge presents the same due process narrative—one detailing long-term,
    commendable post-conviction conduct despite the real and varied difficulties
    of living with a conviction record—deemed, thirty-three years ago by this
    Court, ineligible to garner a discretionary expungement of conviction
    records. As we did in Magdon, we express sympathetic understanding of
    the enduring challenges confronting one determined to live a post-conviction
    life of accomplishment and contribution. This panel, however, discerns no
    authority to mandate a Malone/Wexler expungement inquiry predicated on
    due process rights in the case sub judice when this Court has previously
    denied the existence of such rights in the conviction context. In this regard,
    moreover, we note that Appellant fails to identify and expound upon what, if
    any, newly pertinent considerations would merit a departure from our
    precedent. We, therefore, deem Appellant’s first claim unworthy of relief.
    ____________________________________________
    6
    See Commonwealth v. Hull, 
    705 A.2d 911
    , 912 (Pa.Super. 1998)
    (holding prior decisions of the Superior Court are binding precedent on a
    subsequent three-judge panel of this Court).
    - 10 -
    J-S81041-16
    In Appellant’s remaining claim, he asserts that the lower court’s order
    denying his expungement motion impermissibly bore an “inexplicable”
    change in wording, specifically, the crossing-out of the word “granted” and
    substituting the word “denied.”    The sum of Appellant’s argument on this
    claim consists of the following:
    While the court in its Opinion attempts to explain this oddity
    after the fact, the situation requires that the Order be vacated
    and the matter remanded for a new hearing to address this
    matter.
    Appellant’s brief at 13.
    Declaring Appellant’s claim “specious,” the court explains in its
    Pa.R.A.P. 1925(a) opinion that it fully intended to deny the petition, and it
    supports the correction as an exercise of its inherent “power to amend [the
    court’s] records, to correct mistakes of the clerk or other officer of the court
    [or] inadvertencies of counsel, or [to] supply defects or omissions in the
    record.”   Lower Court Opinion, at 6-7 (quoting Commonwealth v. Cole,
    
    263 A.2d 339
    , 341 (Pa. 1970) (citation omitted)). We agree with the court
    that no reason exists for vacating and remanding where the court simply
    corrected a clerical error with the judgment line to bring the order in
    agreement with its intended judgment.         Moreover, Appellant’s failure to
    develop an argument or cite authority in support of his contention results in
    waiver of this claim. See Pa.R.A.P. 2119(a), (b).
    Order is AFFIRMED.
    - 11 -
    J-S81041-16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/3/2017
    - 12 -