from the Order December 18, 2015 In the Court of Common Pleas
of Montgomery County Criminal Division at No(s):
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.
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 circumstances 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 discretionary
expungement of arrest records in cases terminated without
conviction or acquittal-to expunge conviction records, we
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
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.
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
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.
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 ...