J-A01001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK NELLOM
Appellant No. 1529 EDA 2014
Appeal from the Order Dated April 22, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0412681-1987
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 05, 2016
Appellant Frank Nellom files this pro se appeal from the order of the
Court of Common Pleas of Philadelphia County vacating the trial court’s
previous order granting expungement of Appellant’s 1991 rape conviction.
After careful review, we affirm.
Appellant was arrested and charged with robbery, rape, and
involuntary deviate sexual intercourse (IDSI)1 in connection with a sexual
assault that occurred on March 17, 1987, at a Philadelphia adult boutique.
On October 20, 1987, a jury convicted Appellant of robbery but could not
reach a verdict on the rape and IDSI charges. The trial court sentenced
Appellant to one to four years imprisonment for the robbery charge.
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1
18 Pa.C.S. §§ 3701, 3121, 3123, respectively.
*Former Justice specially assigned to the Superior Court.
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After Appellant was granted a retrial on the rape and IDSI charges, a
second jury convicted Appellant on both counts on May 10, 2008. Upon
appeal, this Court vacated Appellant’s judgment of sentence and remanded
for a new trial, finding that the trial court abused its discretion in allowing
the prosecution to cross-examine one of Appellant’s character witnesses as
to Appellant’s previous conviction for robbery, which arose out of the same
incident as the sexual offenses for which he was being tried.
Commonwealth v. Nellom, 565 A.2d 770 (Pa. Super. 1989).
On March 12, 1991, at the conclusion of Appellant’s second retrial, a
jury convicted Appellant of rape but acquitted him of the IDSI charge. The
trial court sentenced Appellant to six to twenty years imprisonment to run
consecutive to his sentence for the robbery conviction. On October 29,
1992, this Court affirmed Appellant’s judgment of sentence. The
Pennsylvania Supreme Court denied allocatur on August 25, 1993.
On September 3, 1998, Appellant filed a pro se PCRA2 petition
challenging the revocation of his parole. The PCRA court appointed counsel,
who subsequently filed a no-merit letter pursuant to Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1993). The PCRA court dismissed
Appellant’s petition as untimely filed and allowed his counsel to withdraw.
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2
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
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On February 2, 2014, Appellant filed a pro se “Motion for Expungement
or Hearing,” arguing that his rape conviction should be expunged as he
suggested that it was inconsistent for the jury to convict him of rape but
acquit him of IDSI. On March 12, 2014, the Honorable Joan A. Brown
inadvertently assigned the proposed order that Appellant had submitted,
granting expungement of the rape conviction.
On March 27, 2014, the Commonwealth filed a motion for
reconsideration arguing the trial court did not have the authority to grant
expungement absent extraordinary circumstances as set forth in 18 Pa.C.S.
§ 9122. On that same day, the trial court entered an order vacating its
previous order expunging Appellant’s conviction, proporting to reinstate
Appellant’s criminal history, and scheduling a hearing on the
Commonwealth’s motion. On April 22, 2014, the trial court held a hearing at
which the Commonwealth claimed the defendant’s draft of an order
proposing expungement had been placed before the trial court under
confusing circumstances. Judge Brown indicated that she was unable to
recall signing the order and acknowledged that Appellant’s rape conviction
should not have been expunged. Appellant continued to argue that the
jury’s decision to acquit him of IDSI somehow required the expungement of
the rape conviction. At the conclusion of the hearing, the trial court vacated
its order granting Appellant expungement of his rape conviction. This timely
appeal followed.
Appellant raises the following issues for our review:
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[1] Did this Court’s finding the Commonwealth after being
unable to obtain convictions on the IDSI and Rape charges
following the first trial, then violating the law to obtain
convictions on those charges following the second trial, demand
both charges be proved again following the third trial, because to
rule otherwise shows the Commonwealth being rewarded after
violating the law with proving less?
[2] Does the March 12, [2014], order of the trial court establish
the Commonwealth having conceded the (Not guilty and guilty
verdict) entered in the trial court record violated
[Commonwealth v. Nellom], 565 A.2d 770 (Pa. Super. 1989),
remand Order demanding both charges be proved again beyond
a reasonable doubt. Require the guilty of Rape charge entered
in the trial court record be Stricken as void on the ground of
violating this Court’s remand Order?
Appellant’s Brief, at 4.
Pennsylvania law has strict requirements for the expungement of
records of convicted persons. Commonwealth v. Wolf, 704 A.2d 156,
156-57 (Pa. Super. 1997). “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.” Commonwealth v. Wallace, 626 Pa. 362, 375, 97 A.3d 310, 317
(2014) (citation omitted). Section 9122 of the Criminal History Record
Information Act authorizes such expungement in the following
circumstances:
(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.
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(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.
Appellant does not cite Section 9122 or argue any reason why
expungement is proper but offers a rambling, incoherent argument
suggesting that he could not be convicted of rape after being acquitted of
the IDSI charge. As Appellant offers no pertinent authority or relevant
analysis to support his petition for the expungement of his rape conviction,
we find Appellant’s claim to be waived for lack of development.
Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super. 2010) (finding
waiver of the defendant’s claim as its lack of development prevented
meaningful review).
Nevertheless, even ignoring Appellant’s failure to develop a claim, his
contention that his record should be expunged is clearly meritless.
Appellant does not meet the statutory requirements for expungement of his
rape conviction as he is not seventy years of age, has not been dead for
three years, and is not seeking to expunge his record of a conviction for a
summary offense. Accordingly, we conclude that the trial court correctly
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vacated its previous order granting expungement of Appellant’s rape
conviction as the trial court had no statutory basis for such expungement.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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