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Commonwealth of Pennsylvania v. Mark Wallace

May 25, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK WALLACE, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK GREEN, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK GREEN A/K/A MARK WALLACE, : APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK WALLACE, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK WALLACE, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK WALLACE, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JAMES SMITH, APPELLANT :
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK WALLACE, APPELLANT



Appeal from the Order Entered May 20, 2010, Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-0127801-1992. Appeal from the Order Entered June 28, 2010, Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-1059771-1998. Appeal from the Order Entered June 28, 2010, Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. CP-51-CR-0204911-2001; MC-51-CR-0001841-2007; MC-51-CR-0007002-2007; MC-51-CR-0020961-2007; MC-51-CR-0412481-1990; MC-51-CR-0512751-1992; MC-51-CR-0512771-1992; MC-51-CR-0904091-1988; MC-51-CR-0911491-1988. Appeal from the Order Entered May 20, 2010, Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-1157451-1998. Appeal from the Order Entered July 6, 2010, Court of Common Pleas, Philadelphia County, Criminal Division, at No. CP-51-CR-1109501-1998. Appeal from the Order Entered October 6, 2010, Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. MC-51-CR-1028961-1991; MC-51-CR-1028971-1991. Appeal from the Order Entered October 6, 2010, Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-0719321-1991. Appeal from the Order Entered February 22, 2011, Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. CP-51-CR-0332611-1988; MC-51-CR-0218521-1988; MC-51-CR-0403331-1988; MC-51-CR-06032521-1988; MC-51-CR-0632531-1988; MC-51-CR-0911487-1988; MC-51-CR-0920171-1988; MC-51-CR-0920181-1988.

The opinion of the court was delivered by: Shogan, J.:

BEFORE: SHOGAN, LAZARUS and PLATT*fn1 , JJ.

Appellant, Mark Green a/k/a Mark Wallace a/k/a James Smith, appeals pro se from orders denying his motions for expungement of charges contained in multiple non-conviction arrest records.*fn2 We vacate and remand.

Appellant's criminal record spans 14 pages and contains 19 arrests by Philadelphia police. Between February 15, 1988 and January 29, 1992, Appellant faced various and sundry charges, such as: unauthorized use of a vehicle, theft by unlawful taking, receiving stolen property, burglary, aggravated assault, carrying a firearm without a license, carrying a firearm on a public street or property, resisting arrest, criminal trespass, unsworn falsification to authorities, securing documents by deception, using altered, forged or counterfeit documents, passing bad checks, theft of services, retail theft, robbery, conspiracy, terroristic threats, reckless endangerment, simple assault, forgery, credit card fraud. The record indicates that some of the charges during this period were transferred to family court, some were transferred to the juvenile division, some were held for court, and others were dismissed. The record does not indicate that any of the charges terminated in acquittals or convictions.

Between May 14, 1992 and December 2007, state and federal authorities arrested Appellant and charged him with, inter alia, the following offenses: theft by deception, mail, bank, and credit card fraud, possessing and uttering a forged security, forgery, robbery, threatening a federal law enforcement officer, possessing an instrument of crime, Public Assistance Act violations, Medicaid fraud, conspiracy to commit arson, kidnapping, endangering the welfare of children, unlawful restraint, false imprisonment, causing catastrophe, arson, criminal mischief, aggravated assault, reckless endangerment, terroristic threats, simple assault, possessing instruments of crime, theft by receiving stolen property, theft by unlawful taking, unauthorized use of a motor vehicle, fleeing or attempting to elude an officer, giving false identification to an officer, conspiracy, aggravated identity theft, and unauthorized use of an access device. The record indicates that some of these charges resulted in guilty pleas, acquittals, and convictions, while others were held for court, nolle prosequied, dismissed, or withdrawn.

Between April 2010 and January 2011, while incarcerated in a federal detention center, Appellant filed a series of motions in the Philadelphia Court of Common Pleas, seeking the destruction of fingerprints, photographs, and arrest records associated with charges that did not result in convictions.*fn3 In each instance, Appellant claimed that the records caused him "to suffer loss of job opportunity, and embarrassment and irreparable harm." Petition to Expunge Criminal Record (1895 EDA 2010), 5/21/10, at ¶ 4. The trial court denied the motions, and Appellant filed timely appeals. We consolidated the eight appeals, all of which raise the same issues:

1. The trial judge abused his discretion in denying Appellant's motion to expunge arrest record where the charges were to be dismissed and the Commonwealth did not carry it's burden to justify retention of the arrest record and the court abused it's discretion in not considering all of the factors set out and the court improperly applied Wexler in it's 1925(b) opinion by (i) wrongly shifting the burden to the defendant (ii) and wholly ignoring [(]4) of the Wexler factors each of which did strongly supported expungement.

2. The trial court abused it's discretion when it failed to hold a hearing and it denied the defendant due process of law under the Fourteenth Amendment of the U.S. Constitution.

Appellant's Brief (1631 EDA 2010) at v (full capitalization omitted; punctuation and grammatical errors in original).*fn4

In each appeal, Appellant contends the trial court improperly denied his expungement motions because the Commonwealth failed to sustain its burden of demonstrating its superior interest in preserving the arrest records. Appellant's Brief (1631 EDA 2010) at vii. Appellant also claims the trial court erred in not conducting a hearing. Id. at 6. Thus, Appellant requests that we reverse the trial court's orders and remand with a directive that the trial court conduct a hearing and/or expunge his non-conviction arrest records. Appellant's Brief (1631 EDA 2010) at 7.

"The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. We review the decision of the trial court for an abuse of discretion." Commonwealth v. Waughtel, 999 A.2d 623, 624-25 (Pa. Super. 2010).

Our Supreme Court recently reiterated the law regarding 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 adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186, 188 (Pa. 2002). . . 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, 604 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 nonexhaustive list of ...


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