Submitted September 9, 2013
Appeal from the Judgment of Superior Court entered on May 25, 2012 at No. 1631 EDA 2010 vacating the Order entered on May 20, 2010 in the Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-0127801-1992.
Appeal from the Judgment of Superior Court entered on May 25, 2012 at No. 1894 EDA 2010 vacating the Order entered on June 28, 2010 in the Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-1059771-1998.
Appeal from the Judgment of Superior Court entered on May 25, 2012 at No. 1895 EDA 2010 vacating the Order entered on June 28, 2010 in the Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. MC-51-CR-0001841-2007; MC-51-CR-0007002-2001; MC-51-CR-0020961; 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 and CP-51-CR-0204911-2001.
Appeal from the Judgment of Superior Court entered on May 25, 2012 at No. 2166 EDA 2010 vacating the Order entered on May 20, 2010 in the Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-1157451-1998.
Appeal from the Judgment of Superior Court entered on May 25, 2012 at No. 2850 EDA 2010 vacating the Order entered on July 6, 2010 in the Court of Common Pleas, Philadelphia County, Criminal Division, at No. CP-51-CR-1109501-1998.
Appeal from the Judgment of Superior Court entered on May 25, 2012 at No. 2851 EDA 2010 vacating the Order entered on October 6, 2010 in the Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. MC-51-CR-1028961-1991 and MC-51-CR-1028971-1991.
Appeal from the Judgment of Superior Court entered on May 25, 2012 at No. 3026 EDA 2010 vacating the Order entered on October 6, 2010 in the Court of Common Pleas, Philadelphia County, Criminal Division, at No. MC-51-CR-0719321-1991.
Appeal from The Judgment of Superior Court entered on May 25, 2012 at No. 766 EDA 2011 vacating the Order entered on February 22, 2011 in the Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. MC-51-CR-06032521-1988; MC-51-CR-0920171-1988; MC-51-CR-0920181-1998; MC-51-CR-0218521-1998; MC-51-CR-0911487-1998; MC-51-CR-0632531-1998; MC-51-CR-0403331-1988 and CP-51-CR-0332611-1988.
For Commonwealth of Pennsylvania, Appellant: Hugh J. Burns Jr., Esq., Michael Lee Erlich, Esq.
For Mark Wallace, a/k/a Mark Green, Appellee: Jonathon Mark Frisby, Esq.
For Philadelphia Lawyers for Social Equity, Appellee Amicus Curiae: Michael Hardiman, Esq., Henry McGregor Sias, Esq.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE STEVENS.
MR. STEVENS, JUSTICE
The Commonwealth appeals from the order of the Superior Court vacating and remanding the orders of the Court of Common Pleas of Philadelphia County, which denied Appellee's motions for expungement of charges contained in multiple non-conviction arrest records.
Appellee has a vast criminal history, beginning as a juvenile and continuing well into his adult life. Between 1988 and 1992, Appellee was arrested twelve times in Philadelphia and charged with the following: aggravated assault, carrying a firearm without a license, carrying a firearm on public streets or property, resisting arrest, unsworn falsification to authorities, securing documents by deception, theft by deception, using altered, forged or counterfeit documents, passing bad checks, theft of services and retail theft. On March 31, 1992, Appellee was charged and convicted of three counts theft by deception and sentenced to three years' probation. During this period, Appellee was also charged with multiple instances of the following: criminal conspiracy, terroristic threats, reckless endangerment, simple assault, forgery, credit card fraud, theft by unlawful taking or disposition, theft by receiving stolen property, theft by deception, and unauthorized use of a motor vehicle. These charges did not result in acquittals or convictions, and the record is unclear as to the ultimate outcome of each of these charges.
A United States Postal Inspector began investigating Appellee in 1992 on suspected mail fraud charges. Upon learning of the investigation, Appellee used a contact in the Philadelphia police department to
attempt to obtain the inspector's home address. When this failed, Appellee enlisted the help of a cohort, who called the inspector and threatened to blow up his car. Appellee was ultimately indicted by a federal grand jury of seven counts of bank, credit card, and mail fraud and possessing and uttering a forged security. Appellee pled guilty to each of these charges. He was also tried and convicted of threatening a federal law enforcement officer. Appellee was later awarded a new trial for this charge, but ultimately pled guilty.
As a result of these convictions, Appellee was incarcerated in federal prison until 1997, and almost immediately after being released, was charged and pled guilty to Public Assistance Act violations and Medicaid fraud after applying for food stamps, public assistance and medical benefits under three different names.
On October 30, 1998, Appellee was arrested in connection with the fire-bombing of his estranged girlfriend's residence and car, and was later tried and convicted of conspiracy to commit arson. Meanwhile, on October 30, 1998, Appellee was arrested for endangering the welfare of children, unlawful restraint, kidnapping, and false imprisonment. These charges were later withdrawn.
Appellee was incarcerated on his Public Assistance Act violation, Medicaid fraud, conspiracy conviction and violating the terms of his federal supervision, and was released in October of 2006. From January 2007 to May 2007, Appellee was arrested for two counts receiving stolen property, two counts unauthorized use of a motor vehicle, aggravated assault, terroristic threats, simple assault, and reckless endangerment, all of which were eventually withdrawn.
In December 2007, Appellee was federally indicted and in November 2009, convicted of access fraud conspiracy, aggravated identity theft and two counts of unauthorized use of an access device in connection with a scheme in which he used an individual's credit card to purchase over $400,000 worth of goods and services. The federal judge in this case determined Appellee to pose a " serious risk of flight," as he was able to take on many aliases and had access to large amounts of cash. Appellee was ultimately sentenced to an aggregate term of over eleven years' incarceration in a federal prison in Otisville, New York.
Appellee's disciplinary problems did not end with his most recent incarceration. While incarcerated, Appellee has been disciplined for stabbing another inmate in the eye with a writing utensil, attempting to stab this same inmate in the eye with a sharpened broomstick, and refusing to drop his weapon when ordered to do so by prison officials.
Appellee's lengthy criminal record spans 14 pages with a total of 228 charges, terminating in the following: four convictions, four guilty pleas, fourteen withdrawals, fifty-three dismissals, forty-four nolle prosequi, three transfers to family court, sixteen acquittals, five sustained demurrers, thirty
transfers to the juvenile division, and fifty-five held for court.
Between April 2010 and January 2011, Appellee filed eight separate pro se petitions in Philadelphia under the name Mark Wallace, or one of his aliases, Mark Green or James Smith, seeking destruction of fingerprints, photographs, and arrest records from past charges that had not resulted in convictions. Although difficult to discern from Appellee's brief and his lengthy criminal record, the Commonwealth estimates that Appellee sought in total the expungement of approximately 150 charges.
After determining that hearings were unnecessary, the trial court denied each of Appellee's eight petitions in separate orders issued from May 2010 to March 2011. Appellee appealed each of these orders to the Superior Court, filing eight notices of appeal between June 2010 and March 2011. On May 2, 2011, the trial court granted the Commonwealth's April 15, 2011, motion to consolidate seven of the appeals. On October 28, 2011, the trial court granted the Commonwealth's June 28, 2011, motion to consolidate Appellee's eighth and final appeal with the prior seven appeals.
Between August 2010 and April 2011, the trial court issued a similar, if not identical, Pa.R.A.P. 1925(a) opinion for each of Appellee's appeals from the denial of his respective expungement petitions. The trial court determined that Appellee had waived all issues in two appeals, those docketed at 1894 EDA 2010 and 2850 EDA 2010, for failure to comply with the trial court's order to file timely Pa.R.A.P 1925(b) Statements.
In addition, for all the appeals, the trial court concluded that Appellee's expungement petitions should fail on the merits. The trial court first noted, correctly, that the decision to grant or deny an expungement rests within the discretion of the trial court, which must 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, 494 Pa. 325, 431 A.2d 877, 879 (Pa. 1981). The court then listed the factors that must be considered in conducting this balancing test: (1) the strength of the Commonwealth's case; (2) the Commonwealth's reasons for wishing to retain the records; (3) the petitioner's age, criminal record, ...