J-S25001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL WEIMER,
Appellant No. 336 WDA 2013
Appeal from the Order dated January 4, 2013
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001941-1992
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 09, 2015
Appellant, Paul Weimer, appeals from the trial court’s order denying
his petition for expungement. After careful review, we affirm.
Appellant filed a pro se motion to expunge a portion of his criminal
record,1 which was denied by the trial court by order dated January 4,
2013.2 The trial court docket indicates that this order was issued by Court of
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*
Retired Senior Judge assigned to the Superior Court.
1
Appellant seeks to have expunged charges from 1992 (based upon conduct
alleged to have occurred in 1989) that were nolle prossed as a result of a
negotiated plea agreement entered in 1993. No further action has been
taken by the Commonwealth to pursue those charges.
2
The order denying Appellant’s expungement petition was dated January 4,
2013, but docketed on January 7, 2013. The trial court docket does not
indicate the date on which Appellant filed his petition, nor does that petition
appear in the certified record.
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Common Pleas Judge John. F. DiSalle. On February 4, 2013, Appellant filed
a timely, pro se notice of appeal from the trial court’s order denying the
petition for expungement. For the previous 2½ years, however, this matter
has remained in limbo due to numerous issues, as set forth in the following
procedural history.
On April 12, 2013, the trial court purportedly issued an order for
Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant maintains that he
did not receive a copy of the order. Although a docket entry from the trial
court indicates that Judge DiSalle issued a concise statement order on April
12, 2013, no such document exists in the certified record.
This Court issued notice of a delinquent record to the trial court on
May 6, 2013. Subsequently, on January 15, 2014, Appellant filed a motion
to compel the trial court to issue an order for Appellant to file a Rule 1925(b)
statement, a motion to compel the trial court to comply with our May 6,
2013 notice, and a motion to compel the trial court to reveal the name of
the judge who issued the January 2013 order denying expungement. In
response, this Court issued the following order:
Upon consideration of Appellant Weimer’s January 15, 2014
“Motion to Compel the Name of the Judge that Issued the
Expungement Denial; Compel Said Judge to issue an[] Order for
Appellant’s Concise Statement of Matters; and Compel the Lower
Court Pursuant to Pa.R.A.P. 1931 Governing the Transmission of
the Record from the Trial Courts to the Appellate Courts and
Hold the Lower Court in Contempt in Having Violated the
Prothonotary’s Notice of Delinquent Record Pursuant to Pa.R.A.P.
1935(a),” the motion is DENIED. As the record was due in this
Court on April 5, 2013, it is hereby ORDERED that the trial court
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is directed to complete, certify, and transmit the record to this
Court forthwith.
Superior Court Order, 1/27/14, at 1.
Appellant then filed an “Application for Clarification,” seeking again to
determine which trial court judge had issued the order denying his
expungement petition. He also filed a motion seeking the appointment of
counsel. This Court responded to these matters as follows:
Upon consideration of Appellant Weimer’s January 22, 2014
“Petition for Appointment of Counsel for Appeal,” the petition is
DENIED WITHOUT PREJUDICE to [A]ppellant’s right to seek the
appointment of counsel in the lower court. Should the lower
court deny Appellant’s request for counsel, Appellant may again
seek counsel in this court once the original record has been
transmitted to this court.
Upon consideration of Appellant’s January 28, 2014 letter
addressed to a deputy prothonotary of this Court, docketed by
the prothonotary as a January 31, 2014 “Application for
Clarification,” it is hereby noted that Judge John DiSalle is now
listed on the lower court docket. Previously it appears that
Judge Gladden was presiding.
Superior Court Order, 2/10/14, at 1.
On February 28, 2014, the trial court issued its Rule 1925(a) opinion.
Therein, the court concluded Appellant waived all of his claims due to his
failure to file a Rule 1925(b) statement in compliance with the court’s April
2013 order. Trial Court Opinion, 2/28/14, at 2-3. The court recommended
that the instant appeal be “quashed and dismissed” on that basis. Id. at 3.
On March 17, 2014, Appellant responded to the trial court’s opinion by
filing a motion in the lower court to rescind the opinion based on the trial
court’s failure to serve him with the concise statement order purportedly
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issued in April of 2013. That motion was ultimately denied on August 11,
2014. Appellant also filed an ostensibly untimely Rule 1925(b) statement on
April 4, 2014.
Also on April 4, 2014, the trial court sent an incomplete certified
record to this Court. On April 16, 2014, this Court issued an order directing
the Washington County Clerk of Courts to “determine the state of the
original record and complete, certify, and transmit a supplemental record to
this Court of materials constituting the original record not yet transmitted.”
Superior Court Order, 4/16/14, at 1. A supplemental record was not
transmitted to this court until January 16, 2015. The supplemental record,
as noted above, lists a docket entry for an order by the trial court directing
Appellant to filed a Rule 1925(b) statement; however, no corresponding
order appears in the certified record.
Appellant again sought relief in this court due to the trial court’s
purported failure to issue a Rule 1925(b) order directing him to file a concise
statement. See Appellant’s Application For Extraordinary Relief, filed
4/25/14. We denied Appellant’s application without prejudice “to Appellant’s
right to raise all properly preserved issues in Appellant’s brief.” Superior
Court Order, 5/21/14, at 1.
On September 3, 2014, Appellant filed in the trial court a motion for
recusal directed at Judge DiSalle. The proffered basis for recusal was that
Judge DiSalle was an Assistant District Attorney for Washington County who
had prosecuted Appellant’s 1992 case, who negotiated Appellant’s plea
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agreement at that time on behalf of the Commonwealth, and who had
stipulated at the corresponding sentencing hearing that Appellant’s plea did
not involve any sexual conduct or activity.3 On November 25, 2014, the trial
court issued the following order:
AND NOW, this 24th day of November, 2014, upon consideration
of [Appellant]'s request for recusal in his letter to this Court
dated August 11, 2014, and a lengthy search for the records in
this matter from the District Attorney's office, Although [sic] the
Court has no recollection of being involved in the prosecution of
this case, the Court was employed by the District Attorney's
office at the time of [Appellant]'s sentencing, which according to
the Docket, occurred on May 10, 1993, but the transcript
provided by [Appellant] shows the date as being May 10, 1998,
the Court hereby GRANTS [Appellant]'s request for recusal and
hereby ORDERS that the order filed January 7, 2013 is VACATED
and that a new judge be assigned to this matter.
Trial Court Order, 11/25/14, at 1.
Subsequently, on December 22, 2014, this Court issued an order
which, inter alia, acknowledged Judge DiSalle’s November 25, 2014 order,
but noted that the trial court lacked jurisdiction to modify that order
pursuant to 42 Pa.C.S. § 5505 (“Except as otherwise provided or prescribed
by law, a court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed.”).
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3
At Appellant’s 1998 sentencing hearing, defense counsel stated that
Appellant’s plea to furnishing alcohol to minors “would not be in regards to
any alleged sexual conduct or activity,” to which then A.D.A. DiSalle
responded, “We are willing to stipulate to that.” N.T., 5/10/98, at 4.
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The Washington County Clerk of Court finally transmitted a
supplemental certified record to this court on January 16, 2015. Appellant
filed his brief on February, 22, 2015. Therein, he presents the following
questions for our review:
I. Whether the trial court abused it’s [sic] discretion to deny
[the] Petition for Expungement of Nolle Prosequi charges where
expunction should be granted?
II. Whether the trial court abused it[]s discretion to deny [the]
Petition for Expungement of Nolle Prosequi charges where the
Commonwealth failed to meet it’s [sic] burden of justifying the
retention of the arrest records through due process?
III. Whether the trial court committed reversible error as a
matter of law by first denying Appellant's Petition for
Expungement without a hearing to determine the factors set
forth in Commonwealth vs. Wexler, 494 Pa. 325, 431 A.2d
877 (Pa. 1981)?
IV. Whether the trial court abused it's [sic] discretion in denying
Appellant's Petition to proceed In Forma Pauperis when Appellant
is indigent to pay [sic] the filing fee associated with Appellant's
Petition for Expungement?
V. Whether the trial court through bias, ill will and partiality
authored an Opinion frivolous to the law suggesting that
Appellant's appeal be dismissed and quashed for failing to file a
Concise Statement of Matters pursuant to the Lower Court's April
12, 2013 Order concerning the 1925(b), where Appellant
requested the same to this Court and verified never receiving
said Order as verified by the SCT-Fayette Department of
Corrections Officials, and was properly filed through due
diligence thereafter, was an abuse of office through Official
Oppression and an abuse of discretion clearly made intentional
against Appellant?
VI. Whether the Superior Court of Pennsylvania has the power
and jurisdiction to remedy a constitutional issue that was
previously ruled on by the Third Circuit Court of Appeals
concerning the exact wrongful classification Appellant is once
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again experiencing, where the record demonstrates and the
issue was preserved in the lower court?
VII. Whether this Superior Court can, as a matter of law,
separate the grounds and reason for expungement between the
Wallace case,[4] where Appellant’s case differs completely until
the term incarceration is used, where the Supreme Court never
addressed previously filed or pending cases of expungements by
incarcerated individuals, or where constitutional grounds cannot
be raised or considered where a petitioner is being harmed by
such retention of disposed/unrelated charges?
Appellant’s Brief, at 3-4 (unnecessary capitalization omitted). For the
reasons that follow, we will not address each of Appellant’s claims, although
we do, to some extent, address the issues raised in his sixth and seventh
questions presented for our review.
As a preliminary matter, we address the issue of waiver. It is well-
established that “[a]ny issues not raised in a 1925(b) statement will be
deemed waived.” Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
In Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005), our Supreme
Court applied Lord’s bright-line waiver rule to untimely filed 1925(b)
statements. Here, the trial court found that Appellant waived all claims
because he did not comply with the court’s April 12, 2013 order, as he did
not file his Rule 1925(b) statement until April 4, 2014.
As this Court has noted, “[t]he decision of the Supreme Court in …
Lord … established a bright-line rule for Rule 1925 compliance mandating a
finding of waiver of all issues on appeal in the event of non-compliance with
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4
Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014).
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Rule 1925.” Commonwealth v. Burton, 973 A.2d 428, 430 (Pa. Super.
2009) (footnote omitted) (emphasis added). Here, because the certified
record does not contain the order in question, we hold that Lord’s bright-
line waiver rule is inapplicable. Appellant cannot be held accountable for his
failure to comply with an order that does not exist in the certified record.
“[A]n appellate court is limited to considering only the materials in the
certified record when resolving an issue.” Commonwealth v. Preston, 904
A.2d 1, 6 (Pa. Super. 2006). “Simply put, if a document is not in the
certified record, the Superior Court may not consider it.” Id. at 7.
Accordingly, we decline to find waiver.
However, the Commonwealth asserts, pursuant to Commonwealth v.
Wallace, 97 A.3d 310, 312 (Pa. 2014), that Appellant is not due any form of
relief on appeal from the trial court’s order denying his petition for
expungement because he is currently incarcerated. We are constrained to
agree. In Wallace, an inmate sought expungement of his non-conviction
arrest records. After balancing the interests of the individual against the
Commonwealth, our Supreme Court held that “an inmate does not have the
right to petition for expungement while incarcerated.” Wallace, 97 A.3d at
322. The holding in Wallace was driven by an analysis set forth in
Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981). In Wexler, our
Supreme Court recognized that:
[I]n certain circumstances substantive due process guarantees
an individual the right to have his or her arrest record expunged.
In determining whether justice requires expungement, the
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Court, in each particular case, 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.
Id. at 879.
Among the factors to be considered by a court in balancing these
interests are:
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, and employment history;
(4) the length of time between the arrest and the petition to
expunge; and (5) the adverse consequences the petitioner may
endure if expungement is denied.
Wallace, 97 A.3d at 314 (citing Wexler, 431 A.2d at 879).5
In reaching its conclusion that an inmate has no right to petition for
expungement, the Wallace Court essentially found that an individual’s
incarcerated status was a dispositive factor under the Wexler balancing
test. Although the Wallace Court recognized Wallace’s reputation as a
protected private interest in this Commonwealth, the Court found this factor
was outweighed by many other considerations. First, the court found that
the risk of erroneous deprivation of the appellant’s reputation interest was
“slim.” Wallace, 97 A.3d at 321. The Wallace court recognized denial of
an inmate’s petition for expungement is not the final word on the subject of
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5
Although not specifically mentioned by the Wallace Court, the Wexler
Court noted that “this is not necessarily an exclusive or exhaustive list; other
factors may require examination in a particular case.” Wexler, 431 A.2d at
879.
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expungement, as there would be no obstacle to the same inmate seeking
expungement after he or she is released from custody. Id. Furthermore,
the Court found that the impact on Wallace’s reputation from the
expungement of non-conviction arrest records would be minimal in
comparison to the effect on his reputation caused by the convicted offenses
for which Wallace was still serving a sentence of incarceration. Id.
The Wallace Court also found that the Commonwealth had a
“compelling interest in retaining the records” because, among other things, a
complete criminal history record may be needed in order to determine an
inmate's eligibility for parole.” Id. Additionally, the Court considered the
cost and security-related burdens placed on the Commonwealth in
transporting an inmate to court from prison for purposes of holding an
expungement hearing. Id. at 321-22.
Many of these same factors apply equally to Appellant and his petition
seeking expungement. However, we recognize at least one significant
difference. Appellant alleges that the nolle prossed charges at issue are
currently being used against him in “evaluating Appellant’s level of Sex
Offender Classes where Appellant would have to admit to the same[.]”
Appellant’s Brief, at 6. This is cause for concern. We do find it
unconscionable that Appellant should be compelled to admit to charges,
which the Commonwealth nolle prossed more than two decades ago, in
order to comply with a sexual offender program run by state prison
authorities. We are particularly disturbed as this situation is aggravated by
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the fact the Commonwealth nolle prossed the at-issue charges in exchange
for Appellant’s plea to a non-sexual offense, and where the Commonwealth
even stipulated at the time of sentencing that Appellant’s plea was not to be
construed as an admission to any alleged sexual misconduct.
However, while expungement might assist Appellant in combating this
injustice on a rhetorical level, we are not at all convinced that it will compel
the specific relief Appellant seeks to gain through expungement. If state
prison authorities are currently unfazed by the nolle prossed status of the at-
issue charges, it is not at all clear to us that expungement of those charges
will have the desired effect of relieving Appellant of the burden of admitting
to them in order to comply with the institution’s sexual offender treatment
program. And, even if it did, expungement may constitute over-inclusive
relief in light of the general rule announced in Wallace, as the
Commonwealth’s interest in retaining Appellant’s non-conviction records is
no less compelling than it was in Wallace.
To directly address the specific harm complained of, Appellant’s
remedy, if any, lies within the civil court system in a civil rights action
directed at the institution in which he is incarcerated, its officials, and/or the
specific managers of the sexual offender program to which he is subject.6
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6
We acknowledge Appellant’s argument that he previously litigated this
matter in the civil courts. In a bench opinion issue by the Third Circuit in
2000, the Court of Appeals found no basis upon which state correctional and
parole officials could classify Appellant as a sexual offender. Consequently,
(Footnote Continued Next Page)
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We conclude, therefore, that Appellant has not presented
circumstances that would give rise to an exception to the Wallace rule. As
such, all of Appellant’s specific questions presented for our review, although
not waived, are nevertheless rendered moot by our decision to apply the
Wallace rule. Accordingly, we affirm the trial court’s order denying
Appellant’s petition for expungement.
Order affirmed. Jurisdiction relinquished.
Judge Stabile joins this memorandum.
Judge Platt concurs in the result.
_______________________
(Footnote Continued)
the Third Circuit concluded that Appellant “asserted sufficient arbitrary
action under the equal protection clause and thus stated a sufficient claim
upon which relief could be granted to survive dismissal under Fed. R. Civ.
Pro. 12(b)(6).” Weimer v. Horn, 216 F.3d 1078 (3d Cir. 2000)
(unpublished opinion).
However, Appellant has not been continuously incarcerated since that
decision was issued. Appellant is currently incarcerated on different charges
for numerous sexual offenses against minors for which he was sentenced in
2011, and which are unrelated to his 1992 plea. Consequently, we have no
doubt that Appellant is now properly classified as a sexual offender, and the
Third Circuit’s ruling from 2000 is immaterial to that question for that
reason. The Third Circuit’s decision also does not address, and/or is
completely distinct from, Appellant’s specific predicament, which concerns
whether he should be compelled to admit to the allegations underlying the
1992 nolle prossed charges in order to comply with the current sexual
offender treatment program.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2015
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