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Commonwealth v. Romeo

Superior Court of Pennsylvania

January 3, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN ROMEO Appellant

         Appeal from the Order December 18, 2015 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0001745-1983

          BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E. [*]

          OPINION

          STEVENS, P.J.E.

         John 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[1] 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 affirm.

         The 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 petition:
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 community.
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.

         The 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 ...

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