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[U] Commonwealth v. Vazquez

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ANTONIO VAZQUEZ Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered August 9, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0951381-1999 MC-51-CR-0804201-1996, MC-51-CR-1034411-1997, MC-51-CR-0607401-1998, MC-51-CR-1054371-1999, MC-51-CR-0143201-1998

BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J. [*]

MEMORANDUM

OTT, J.

Antonio Vazquez[1] appeals pro se from the order entered August 9, 2012, in the Philadelphia County Court of Common Pleas, denying his petitions for the expungement of his criminal record in six prior cases. On appeal, Vazquez argues the trial court abused its discretion when it (1) failed to conduct a hearing on his petitions, and (2) failed to consider the balancing factors for expungement listed in Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), and to hold the Commonwealth to its burden to justify retention of his criminal records. For the reasons that follow, we vacate the order denying Vazquez's petitions for expungement and remand for a Wexler hearing.

The facts underlying this appeal were summarized by the trial court as follows:

Appellant, Antonio Va[z]quez, was arrested a number of times between 1996 and 1999. On August 9, 1996, Mr. Va[z]quez was arrested and charged with Theft and Unauthorized Use of a Vehicle. All charges were dismissed. On October 29, 1997, Mr. Va[z]quez was arrested and charged with Burglary, Harassment, Theft, and Criminal Trespass. Again all charges were dismissed. The list continues: on January 31, 1998 Mr. Va[z]quez was arrested and charged with Intimidation of a Witness, Obstructing Administration of the Law, Retaliation Against a Witness, and Terroristic Threats; all charges were once again dismissed. On June 5 of the same year Mr. Va[z]quez was arrested and charged with two counts of Aggravated Assault, Riot, Terroristic Threats, Simple Assault, R.E.A.P., Disorderly Conduct, Harassment, and Scofflaw. These charges were, again, dismissed. September 11, 1999, saw Mr. Va[z]quez arrested and charged with Aggravated Assault, R.E.A.P., Publicly Carrying a Firearm, Terroristic Threats, Simple Assault, Carrying Firearms without a License, P.I.C., and Attempted Murder, all of which were dismissed. On October 23, 1999, Mr. Va[z]quez was arrested and charged with Intimidation of a Witness, Obstructing Administration of the Law, Retaliation Against a Witness, and Terroristic Threats. Once again, all charges were dismissed.

Trial Court Opinion, 6/21/2013, at 1-2 (footnotes omitted). In each case, the charges were dismissed within two to nine months of his arrest.

On May 11, 2010, Vazquez entered a guilty plea to the charge of third degree murder for the January 31, 1999, shooting death of Melvin Coleman.[2]That same day, he was sentenced to a period of 15 to 30 years' incarceration. On July 12, 2012, Vazquez filed six petitions for expungement of the non-conviction charges in the cases listed above.[3] A hearing was held on August 9, 2012, at which Vazquez did not appear because he was incarcerated in western Pennsylvania on the murder conviction. On August 9, 2012, the trial court entered an order denying Vazquez's petitions for expungement. This appeal followed.[4]

Vazquez raises two related issues on appeal.[5] First, he contends the trial court abused its discretion when it failed to conduct a hearing on his petition. Next, he argues the trial court abused its discretion when it failed to apply the balancing factors listed in Wexler, and failed to hold the Commonwealth to its burden to justify the retention of his non-conviction arrest records.

In Commonwealth v. Moto, 23 A.3d 989 (Pa. 2011), our Supreme Court set forth the relevant considerations when ruling upon a defendant's petition for expungement of criminal records:

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, 624–25 (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).

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.
In addition, Wexler explicitly placed the burden of proof on the Commonwealth. The case against the Wexler appellants had been nolle prossed after the Commonwealth had admitted that it would be unable to sustain its burden of proof at trial. Wexler, supra at 880. Nonetheless, the trial court denied the appellants' petition to expunge their arrest records, and the Superior Court affirmed. This Court reversed and ordered expungement, concluding that the Commonwealth had not proffered "compelling evidence" to justify the retention of the appellants' arrest records. Id. at 881. Importantly, in general terms, we held that when the Commonwealth admits that it is unable to bear ...

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