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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NON-PRECEDENTIAL DECISION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 its burden of proof beyond a reasonable doubt at trial, then "the Commonwealth must bear the burden of justifying why the arrest record should not be expunged." Id. at 880.

Moto, 23 A.3d at 993-994.

In the present case, the only information provided to this Court about the charges that Vazquez seeks to expunge is that they were all dismissed prior to trial, and, it appears from the certified record that none were dismissed as part of a plea agreement.[6] Therefore, the trial court was required to apply the Wexler test to "balance [Vazquez's] right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records." Wexler, 431 A.2d at 879. Moreover, because the charges were dismissed prior to trial, and presumably due to a lack of evidence, the Commonwealth bore the burden of "justifying why the arrest record should not be expunged." Id. at 880. This Court has stated "[r]arely, if ever, will charges dismissed for lack of evidence fail to qualify for expungement under Wexler." Commonwealth v. Rodland, 871 A.2d 216, 221 (Pa.Super. 2005).

Vazquez first argues the trial court abused its discretion by denying his petitions for expungement without first holding a Wexler hearing. The trial court, however, claims a Wexler hearing was held on August 9, 2012. Indeed, the certified record contains a transcript from that purported hearing. Although Vazquez was not present at the hearing, the court explains that he "was incarcerated and represented himself pro so, so his mere absence from the hearing does not mean the hearing was not held." Trial Court Opinion, 6/21/2013, at 5.

In Matter of Pflaum, 451 A.2d 1038, 1041 (Pa.Super. 1982), this Court held that because "an individual has the right, as an adjunct to due process, to seek expungement of his criminal records … due process requires that a hearing be held to effectuate that right[.]" See also Commonwealth v. Wallace, 45 A.3d 446, 453 (Pa.Super. 2012), appeal granted, 64 A.3d 620 (Pa. 2013) (remanding for Wexler hearing when defendant's record, which included 19 arrests and 228 charges, some of which withdrawn pretrial, transferred to family court, and terminated by guilty plea or acquittal, required clarification; "[w]here a record is silent as to how charges terminated, we have remanded to the trial court to make a record.")[7] (citations omitted). In Pflaum, we found that although an expungement hearing was conducted, the hearing did not comport with due process because the trial court precluded the petitioner from introducing any testimony. Pflaum, 451 A.2d at 1041.

Similarly, we find that the "hearing" held in the present case on August 9, 2012, did not comport with the requirements of due process. Indeed, the entire transcript consisted of the following:

COURT CRIER: Calling Case No. 35, Antonio Va[z]quez. I'll call them one at a time. Expungement.
THE COURT: Any objection to 35?
[PROSECUTOR]: Defendant's in custody, Your Honor, at SCI Fayette.
THE COURT: Who filed the petition?
[PROSECUTOR]: He did.
THE COURT: Denied.
COURT CRIER: 36, Va[z]quez.
[PROSECUTOR]: Same argument.
THE COURT: Denied.
COURT CRIER: 37, Va[z]quez.
[PROSECUTOR]: Same argument.
THE COURT: Denied.
COURT CRIER: 38, Va[z]quez.
[PROSECUTOR]: Same argument.
THE COURT: Denied.
COURT CRIER: 39, Va[z]quez.
[PROSECUTOR]: Same argument.
THE COURT: Denied.
COURT CRIER: 40, Va[z]quez.
[PROSECUTOR]: Same argument.
THE COURT: Denied.
---(Proceeding concludes.) ---

N.T., August 9, 2012, at 1-2.

Most notably, Vazquez was neither present nor represented at the Wexler hearing. Although we recognize he was incarcerated in another part of the state, it appears that neither the trial court nor the Commonwealth took any steps to provide him with the opportunity to participate in the proceeding.[8] Moreover, there is no information in any of the certified records provided to this Court as to why the charges Vazquez seeks to expunge were dismissed, nor was there any explanation provided at the expedited hearing. Therefore, we agree with Vazquez's contention that the trial court abused its discretion in denying his petitions for expungement without first affording him his due process right to a hearing.[9]

The Commonwealth argues, however, that a petitioner does not have "a per se right to an expungement hearing." Commonwealth's Brief at 9. To the contrary, it asserts that pursuant to Pennsylvania Rule of Criminal Procedure 790, the scheduling of a hearing is within the discretion of the trial court. The Rule provides, in pertinent part, that once a trial judge is presented with an expungement petition and response by the Commonwealth, "the judge shall grant or deny the petition or shall schedule a hearing." Pa.R.CrimP. 790(B)(2) (emphasis supplied). Moreover, the Commonwealth contends that "where, as here, the claim is plainly without merit, a hearing would only tax the court's limited resources[.]" Commonwealth's Brief at 9. In support, it cites this Court's recent decision in Commonwealth v. Joiner, 68 A.3d 341 (Pa.Super. 2013), for the proposition that this Court may affirm an expungement order when the absence of a hearing did not result in prejudice to the petitioner.

The decision in Joiner, however, is plainly distinguishable. In that case, the defendant sought to expunge 70 counts of rape and statutory rape from his criminal record. The charges were part of two criminal informations, with more than 140 charges, which were eventually consolidated for trial. The 70 counts at issue were dismissed by the Commonwealth before trial. Thereafter, the defendant entered a guilty plea to three counts of rape and five counts of corruption of minors. As part of the plea agreement, the remaining charges were nolle prossed. Id. at 342.

After his guilty plea, the defendant petitioned the court for expungement of the 70 charges dismissed prior to trial. The trial court, however, dismissed the motion as an untimely PCRA petition. On appeal, this Court concluded that the trial court erred in considering the petition under the rubric of the PCRA, and remanded for a Wexler hearing on 70 charges dismissed prior to the entry of defendant's guilty plea. Id. at 423-424.

On remand, the trial court did not hold a Wexler hearing. Rather, the trial court entered an order denying in part and granting in part defendant's petition. Specifically, the trial court denied expungement of the charges dismissed as part of the plea agreement, but granted expungement of 67 of the 70 counts purportedly dismissed prior to trial. The remaining three counts at issue were actually charges to which the defendant had entered a guilty plea.[10] The defendant appealed the order, contending the trial court ignored this Court's directive to hold a Wexler hearing. On appeal, however, we affirmed, concluding that the defendant was given the relief he requested, and, therefore, the trial court's failure to hold a hearing did not prejudice him. Id. at 346.

Here, however, Vazquez was denied all relief. Furthermore, we disagree with the Commonwealth's assertion that Vazquez's claim is clearly without merit. The Commonwealth characterizes his arrests as "escalating, " and suggests that Vazquez's charges of intimidation of a witness were dismissed because the witnesses were too frightened to come to court. Commonwealth's Brief at 6. However, the certified record contains no information to support these assertions, nor did the Commonwealth elaborate on the dismissal of the charges during the expedited hearing.

Finally, although the Commonwealth argues that Vazquez will endure no "specific adverse consequences" if these non-conviction arrests remain on his record since they "pale[] in significance" to his murder conviction, [11] we remind the Commonwealth that its "mere assertion … 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." Moto, 23 A.3d at 994.

We also conclude that the Commonwealth's reliance on Pa.R.Crim.P. 790(B)(2) is misplaced. Although the rule does provide that a trial court presented with an expungement petition may grant it, deny it, or schedule a hearing, it is evident that in some circumstances, a hearing is not required. For example, a trial court would outright deny a petition to expunge a conviction if the defendant did not meet the statutory requirements under 18 Pa.C.S. § 9122. Further, a trial court could grant an expungement petition if a defendant had been acquitted of the crime. See Moto, 23 A.3d at 993. For those situations that fall in between those two extremes, such as in the case sub judice, a trial court is required to conduct a Wexler hearing. Although the trial court did conclude in its opinion that three of the five Wexler factors favored retention of the records, it did not consider the Commonwealth's reasons for maintaining those records, which, according to the case law, must be more than a "general interest in maintaining accurate records." Moto, 23 A.2d at 994.

Because we have concluded that Vazquez is entitled to relief on his first claim, we need not address his second issue concerning the trial court's failure (1) to conduct a Wexler analysis, and (2) to hold the Commonwealth to its burden of proof. However, we observe that notably absent from the trial court's opinion is any recognition that "[t]he Commonwealth bears the ultimate burden of justifying the retention of the arrest record." Commonwealth v. Wolfe, 749 A.2d 507, 509 (Pa.Super. 2000), citing Wexler, supra. Therefore, we vacate the order denying Vazquez's petitions for expungement and remand for proceedings consistent with this Memorandum.[12]

Order vacated. Case remanded for proceedings consistent with this Memorandum. Vazquez's Motion to Strike "Brief For Appellee" from the Record is denied.[13] Jurisdiction relinquished.

Strassburger, J., files a concurring memorandum.

Judgment Entered.

CONCURRING MEMORANDUM

STRASSBURGER, J.

Given the current state of the law, I am constrained to join the Majority Memorandum.

However, I agree with the Commonwealth that it is a bad result to allow a criminal serving a lengthy sentence (15 to 30 years) to force the Commonwealth to litigate large numbers of expungement cases. It is an academic exercise that serves no legitimate purpose.

Hopefully, our Supreme Court will correct this problem in Commonwealth v. Wallace, 45 A.3d 446, 453 (Pa.Super. 2012), allocatur granted, 64 A.3d 620 (Pa. 2013), where, as noted in footnote 7 of the Majority Memorandum, the issue in the allocatur grant is:

Did Superior Court err by holding in a published opinion that an incarcerated career criminal has a due process right to a hearing at which the trial court must determine-on a charge by charge basis-whether over a hundred prior criminal charges against him should be expunged?

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