J-S10021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS PAUL HUNSBERGER
Appellant No. 2201 EDA 2014
Appeal from the Order dated July 11, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-48-CR-0003235-1986
BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 27, 2015
Appellant Thomas Paul Hunsberger pro se appeals from the July 11,
2014 order of the Court of Common Pleas of Montgomery County (trial
court), which denied his petition for expungement. Upon review, we affirm.
The facts underlying this case are undisputed. As summarized by the
trial court:
On July 28, 1986, Lower Merion Township Police Officer Francis
J. Donato filed a criminal complaint against [Appellant] charging
him with [c]riminal [t]respass-[d]efiant [t]respasser (M3)[, 18
Pa.C.S.A. § 3503(b)(1)(i)]; [d]isorderly [c]onduct (M3)[, 18
Pa.C.S.A. § 5503(a)(1)(2)(3)(4)]; and [h]arassment (S)[, 18
Pa.C.S.A. § 2709(a)(1)(2)(3)]. The charges arose from the
complaint of George Fusaro. Mr. Fusaro called the Lower Merion
Township Police to report that [Appellant] was again on his
property, after he had been asked to leave several times, yelling
obscenities and threatening to kill Mr. Fusaro and refusing to
leave the property. Mr. Fusaro reported that for at least three
months, [Appellant] had been harassing him and his family. On
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S10021-15
November 13, 1986, [Appellant], represented by Carolyn
Tornetta Carluccio, Esquire[, now a judge at the trial court],
entered a negotiated guilty plea to the charge of [c]riminal
[t]respass-[d]efiant [t]respasser, before the Honorable Horace
A. Davonport. [Appellant] was sentenced to be placed on one
(1) year probation. No fine or costs were imposed. As a
condition of probation, [Appellant] was to attend out-patient
psychiatric treatment. As part of the plea agreement, the
remaining charges were nolle prossed by the [Montgomery
County] District Attorney.
Trial Court Rule 1925(a) Opinion, 8/22/14, at 2 (footnotes omitted).
On July 5, 2013, under Pa.R.Crim.P. 790, Appellant petitioned the trial
court for expungement of his 1986 conviction for criminal trespass as well as
the nolle prossed charges for disorderly conduct and harassment. Following
a hearing, on July 16, 2014, the trial court entered an order denying
Appellant’s petition for expungement. Appellant timely appealed to this
Court.
Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of
on appeal, challenging the trial court’s denial of his petition for
expungement. On August 22, 2014, the trial court issued a Pa.R.A.P.
1925(a) opinion, concluding that it denied Appellant’s expungement petition
because Appellant failed to satisfy the requirements of Section 9122 of the
Criminal History Record Information Act (Act), 18 Pa.C.S.A. § 9122.1
____________________________________________
1
Section 9122 of the Act provides in pertinent part:
(b) Generally.--Criminal history record information may be
expunged when:
(1) An individual who is the subject of the information
reaches 70 years of age and has been free of arrest or
prosecution for ten years following final release from
confinement or supervision.
(Footnote Continued Next Page)
-2-
J-S10021-15
On appeal, Appellant argues only that the trial court abused its
discretion in denying his petition for expungement with respect to his 1986
conviction for criminal trespass.2 We disagree.
We observe at the outset that, because Appellant’s issues involve a
petition for expungement, they are not cognizable under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9545-46. Thus, because no remedy is
available to Appellant under the PCRA, his expungement petition cannot be
construed as a PCRA petition. See Commonwealth v. Lutz, 788 A.2d 993,
995-96 n.7 (Pa. Super. 2001) (citations omitted) (holding the appellant’s
_______________________
(Footnote Continued)
(2) An individual who is the subject of the information has
been dead for three years.
(3)(i) An individual who is the subject of the
information petitions the court for the expungement
of a summary offense and has been free of arrest or
prosecution for five years following the conviction for
that offense.
(ii) Expungement under this paragraph shall only be
permitted for a conviction of a summary offense.
18 Pa.C.S.A. § 9122(b).
2
To the extent Appellant here seeks to challenge the 1986 conviction for
criminal trespass because of sufficiency of the evidence, we decline to
address such challenge because the time for challenging the conviction has
long lapsed. Even if the time had not lapsed, we still would decline to
address any challenges to the 1986 conviction because a defendant who
pleads guilty, as Appellant did here, waives all claims except lack of
jurisdiction, validity of the plea, and legality of the sentence.
Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa. Super. 2006).
Appellant does not challenge the trial court’s denial of his petition for
expungement with respect to the nolle prossed charges of disorderly conduct
or harassment.
-3-
J-S10021-15
motion for expungement cannot be considered as a PCRA petition).
Accordingly, Appellant’s underlying expungement petition and the instant
appeal from the order denying the petition are not subject to the eligibility
requirements or time constraints of the PCRA, and thus there is no
impediment to our review. Id.
Addressing the law regarding expungement of criminal records
generally, our Supreme Court has explained:
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, [] 798
A.2d 186, 188 ([Pa.] 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, [] 983 A.2d 627, 633 ([Pa.] 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., []
695 A.2d 770, 772–73 ([Pa.] 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:
-4-
J-S10021-15
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.
Commonwealth v. Moto, 23 A.3d 989, 993-94 (Pa. 2011) (emphasis
added).
Instantly, with respect Appellant’s 1986 conviction for criminal
trespass, expungement is governed by Section 9122 of the Act. See
Commonwealth v. Whiteford, 786 A.2d 286, 288 (Pa. Super. 2001)
(“Conviction records may be expunged only if the requirements of Section
9122 are met.”). As noted earlier, Section 9122 provides in relevant part
that “[c]riminal history record information may be expunged when . . . an
individual who is the subject of the information reaches 70 years of age
and has been free of arrest or prosecution for ten years following final
release from confinement or supervision.” 18 Pa.C.S.A. § 9122(b)(1)
(emphasis added).
Here, the trial court found Appellant has not yet reached the age of
70. See Trial Court Rule 1925(a) Opinion, 8/22/14, at 1 (“[Appellant] is
-5-
J-S10021-15
now [52] years old, not [70]; and he is not dead.”). 3 As a result, we must
agree with the trial court’s conclusion that under Section 9122, Appellant
has not met the preliminary statutory qualification for consideration of
expungement by the trial court. We, therefore, conclude the trial court did
not abuse its discretion in denying Appellant’s petition for expungement with
respect to his 1986 conviction for criminal trespass.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
____________________________________________
3
We observe Section 9122(b)(3) is inapplicable here because the offense of
criminal trespass was graded as a third-degree misdemeanor (M3), i.e., not
as a summary offense.
-6-
Com. v. Hunsberger, T.
Combined Opinion