J. S35009/16
2016 PA Super 110
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KYLE RAINEY, : No. 1601 EDA 2015
:
Appellant :
Appeal from the Order Entered May 18, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0708341-1994
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.
OPINION BY FORD ELLIOTT, P.J.E.: FILED MAY 25, 2016
Kyle Rainey appeals, pro se, from the order of May 18, 2015, denying
his petition for expungement. We affirm.
In a prior memorandum affirming appellant’s judgment of sentence on
direct appeal, this court set forth the history of this case as follows:
On June 1, 1994, appellant and three
co-conspirators robbed a jewelry store. During the
commission of the robbery, the gunman,
Nathan Riley (Riley), shot and killed storeowner
Sun Yoo Kang in front of his wife, Mahlee Kang.
Officers of the Philadelphia Police Department
interviewed Mrs. Kang and Al-Asim M. Abdul-Karim,
a witness who was present outside the store in a
parked automobile. Both individuals provided
information regarding the identity of two males who
had entered the store, another male who remained
in a car parked in front of the store, and a fourth
male who closed the store door after the two males
entered the store.
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On June 17, 1994, Riley surrendered to the
police and gave a statement, which was reduced to
writing by the interviewing detective, Albert Maahs.
Riley signed the statement. In his statement, Riley
admitted that he had taken part in the robbery and
had fired the shot that fatally wounded Mr. Kang.
On June 26, 1994, Mrs. Kang and
Mr. Abdul-Karim positively identified appellant from a
photo array as a participant in the events of June 1,
1994. Two days later, after obtaining a search
warrant, the police searched appellant’s home and
found a .38 caliber weapon with bullet casings
matching those bullets used in the robbery. Police
also discovered a small gold-colored price tag which
Mrs. Kang identified as a tag from her store with her
handwriting on it. The police also searched the
house of Sharon Bell, the girlfriend of Darrell Wallace
(Wallace), another accomplice to the crime. Inside
the house, the police found the same type of jewelry
that Mrs. Kang described as stolen from the store.
The police arrested appellant and Wallace and
charged them with a host of crimes stemming from
the events of June 1, 1994. Prior to trial, appellant
moved to sever his trial on the basis of antagonistic
defenses. The trial court denied appellant’s motion.
A jury trial commenced on May 12, 1995. Following
the two-week trial, the jury convicted appellant of
[one count of first degree murder, two counts of
robbery, one count of aggravated assault, one count
of recklessly endangering another person, one count
of criminal conspiracy, one count of possessing
instruments of crime, and one count of carrying
firearms on public streets or public property.1] After
the jury deadlocked during the penalty stage, the
Honorable John J. Poserina imposed a mandatory
term of life imprisonment.
Commonwealth v. Rainey, 704 A.2d 1121 (Pa.Super. 1997) (unpublished
memorandum at 2-3), appeal denied, 723 A.2d 1024 (Pa. 1998). On
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October 15, 1997, this court affirmed the judgment of sentence; and on
May 26, 1998, the Pennsylvania Supreme Court denied allowance of appeal.
Id.
In October 1998, appellant filed a timely petition under the
Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, which was denied. This court affirmed on September 11, 2000.
Commonwealth v. Rainey, 766 A.2d 891 (Pa.Super. 2000) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
the Pennsylvania Supreme Court.
Subsequently, appellant timely filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of
Pennsylvania. Appellant advanced six claims for relief, including a layered
ineffectiveness claim that his trial and appellate counsel were ineffective for
failing to challenge his first degree murder conviction on the ground that the
evidence was insufficient to prove his shared intent to kill. This claim was
raised previously on state PCRA review and found to be without merit.
The case was referred to a Magistrate Judge, who issued a Report and
Recommendation concluding that appellant was entitled to habeas relief
based on his layered ineffectiveness claim. Specifically, the Magistrate
Judge concluded that (1) the evidence at trial was insufficient to establish a
shared intent to kill, (2) appellant’s trial and appellate counsel rendered
1
18 Pa.C.S.A. §§ 2502, 3701, 2702, 2705, 903, 907, & 6108, respectively.
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deficient performance in failing to raise the sufficiency claim; and (3) this
deficient performance prejudiced appellant.
The District Court approved and adopted the Report and
Recommendation in part, rejected it in part, denied the petition, and
declined to issue a certificate of appealability. Specifically, the District Court
held that appellant had properly exhausted his layered ineffectiveness claim,
that there was insufficient evidence of appellant’s shared intent to kill, and
that his counsel rendered deficient performance in failing to challenge the
sufficiency of the evidence at trial or on direct appeal. With respect to
prejudice, however, the District Court concluded that appellant suffered no
prejudice because, although the evidence may not have been sufficient to
sustain a first degree murder verdict, it was sufficient for a second degree
felony murder conviction. Appellant was sentenced to life imprisonment on
the first degree murder conviction, the same sentence he would have
received had he been convicted of second degree murder.
The Third Circuit Court of Appeals granted appellant’s motion for a
certificate of appealability as to the layered ineffectiveness of counsel claim,
and affirmed the District Court’s denial of habeas relief. Rainey v. Varner,
603 F.3d 189 (3rd Cir. 2010), cert. denied, 562 U.S. 1286 (2011). The
Court of Appeals agreed that appellant had failed to satisfy the prejudice
prong of the ineffectiveness test under Strickland v. Washington, 466
U.S. 668 (1984), where the evidence was unquestionably sufficient to prove
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second degree murder and he would have received the identical sentence of
life imprisonment without parole:
[Appellant] was convicted of first degree murder, for
which he is serving a life sentence. The jury also
convicted [appellant] of robbery. Assuming that the
evidence presented at trial was insufficient to
establish a shared intent to kill, it was nonetheless
sufficient to establish the elements of second degree
felony murder. [Appellant] was convicted of
robbery, and the evidence clearly established that a
death occurred during that robbery, which is
sufficient to prove second degree murder under
Pennsylvania law. See 18 Pa. Cons.Stat. Ann.
§ 2502(b) (“A criminal homicide constitutes murder
of the second degree when it is committed while
defendant was engaged as a principal or an
accomplice in the perpetration of a felony.”). Under
Pennsylvania law, “[a] person who has been
convicted of murder of the second degree shall be
sentenced to a term of life imprisonment.” 18 Pa.
Cons.Stat. Ann. § 1102(b) (1995); accord Castle v.
Pennsylvania Bd. of Probation & Parole, 123
Pa.Cmwlth. 570, 554 A.2d 625, 627 (1989) (holding
that a conviction for second degree murder carries a
mandatory life sentence under Pennsylvania law).
Accordingly, had [appellant] been retried and
convicted of second degree murder, he would have
received the same sentence.
Id. at 202 (emphasis in original). Relying on Clark v. Maggio, 737 F.2d
471 (5th Cir. 1984) (no prejudice occurs if a petitioner was wrongfully
convicted of an offense for which there was insufficient evidence but is
serving the same sentence that he would have been serving had he been
properly convicted of the offense for which there was sufficient evidence),
the Court of Appeals held that appellant failed to establish prejudice, i.e.,
that there was a reasonable probability that, but for counsel’s unprofessional
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errors, the result of the proceeding would have been different: “Here, the
result of the proceeding--a life sentence--would have been the same had
counsel challenged the sufficiency of the evidence. Accordingly, appellant
cannot show that he was prejudiced and cannot prevail on his claim of
ineffective assistance of counsel.” Rainey, 603 F.3d at 203. Since
appellant could not prove that he suffered prejudice from counsel’s failure to
challenge the sufficiency of the evidence, the Court of Appeals affirmed the
District Court’s denial of appellant’s petition for habeas relief. Id.
On January 29, 2015, appellant filed a pro se petition for
expungement, asserting that he is entitled to have his first degree murder
conviction expunged due to the District Court’s determination that the
evidence was insufficient to support the conviction. Following several
hearings on the motion held on April 17, 2015, May 4, 2015, and May 18,
2015, appellant’s petition was denied. This timely appeal followed.
Appellant was not ordered to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b); however, on November 10, 2015,
the trial court filed a Rule 1925(a) opinion.
On appeal, appellant claims that the trial court abused its discretion in
denying his petition for expungement when he was “acquitted” of first
degree murder as a result of the federal habeas proceedings. (Appellant’s
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brief at 4.)2 While this case presents an interesting procedural question, we
determine that the trial court did not abuse its discretion in denying
appellant’s petition for expungement of his first degree murder conviction.
“The decision to grant or deny a request for
expungement of an arrest record lies in the sound
discretion of the trial judge, who must balance the
competing interests of the petitioner and the
Commonwealth. We review the decision of the trial
court for an abuse of discretion.” Commonwealth
v. Waughtel, 999 A.2d 623, 624-25 (Pa.Super.
2010) (quoting Commonwealth v. Hanna, 964
A.2d 923, 925 (Pa.Super. 2009)). In Waughtel, we
provided a comprehensive outline of the law
applicable to expungement. Defendants in
Pennsylvania have a due process right to petition for
expungement that is not dependent upon statutory
authority. Id. at 625; see Commonwealth v.
Wexler, 494 Pa. 325, 431 A.2d 877, 879 (1981).
Where a defendant is convicted of a crime, he is not
entitled to expungement of that crime, except as
outlined by 18 Pa.C.S. § 9122, which is an extensive
statutory provision governing expungement.
Waughtel, supra; Commonwealth v. Maxwell,
737 A.2d 1243, 1244 (Pa.Super. 1999). “At the
opposite extreme, if the defendant is acquitted, he is
generally entitled to automatic expungement of the
charges for which he was acquitted.” Waughtel,
supra at 625 (citing Commonwealth v. D.M., 548
Pa. 131, 695 A.2d 770 (1997)).
Commonwealth v. V.G., 9 A.3d 222, 223-224 (Pa.Super. 2010) (footnote
omitted).
2
We note that a petition for expungement does not fall within the remedies
afforded by the PCRA and does not constitute a PCRA petition.
Consequently, appellant’s claim is not subject to the eligibility requirements
and/or time constraints of the PCRA. Commonwealth v. Lutz, 788 A.2d
993, 995 n.7 (Pa.Super. 2001).
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Recently, in Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014),
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. The Wallace court found that, “The
Commonwealth has a compelling interest in retaining the records [petitioner]
seeks to expunge, as [petitioner] is currently incarcerated and these records
may be needed for use in penalization if [petitioner] commits any offenses
while in prison[.]” Id. at 321. The court also noted the practical difficulties
of affording inmates the right to petition for expungement while still
incarcerated, including the transportation of prisoners to attend hearings,
“which would put a strain on already tight prison budgets and add to an
already overburdened trial court system. Moreover, any time an inmate is
transported out of the prison setting, there exist security concerns,
especially when the inmate, like Petitioner, is considered a flight risk.” Id.
at 322. Although the Wallace court recognized the petitioner’s reputation
as a protected privacy interest in this Commonwealth, the court found this
factor was outweighed by other considerations, and there was nothing
preventing the petitioner from petitioning for expungement once he was
released from custody. Id. at 321.
In the instant case, appellant is currently incarcerated, serving a life
sentence for murder. Therefore, he cannot petition for expungement.
Wallace. Admittedly, Wallace did not address a situation where an
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incarcerated inmate was actually acquitted of a crime. In Wallace, the
petitioner sought destruction of fingerprints, photographs, and arrest records
from past charges that had not resulted in convictions. Id. at 314.
However, we disagree with appellant that he was “acquitted” of the first
degree murder conviction. Appellant is correct that the federal District Court
determined that the evidence was insufficient, as a matter of law, to sustain
the conviction for first degree murder. However, the District Court refused
to grant appellant habeas relief where he failed to establish prejudice, i.e.,
that the outcome of the proceedings would have been different. The Court
of Appeals affirmed on the basis that appellant failed to meet the Strickland
test for prejudice. The Court of Appeals found that even assuming the
evidence was insufficient to prove that appellant shared the specific intent to
kill Mr. Kang, as required for a first degree murder conviction, it was
unquestionably sufficient to prove second degree murder, which carried the
same sentence. Therefore, appellant was not entitled to federal habeas
relief. In no way can the Court of Appeals’ disposition of appellant’s habeas
petition be construed as a formal acquittal. Cf. Rambo v. Commissioner
of Police, 447 A.2d 279 (Pa.Super. 1982) (petitioner was entitled to
expungement where his conviction of drug possession was overturned on
appeal for lack of evidence, and the record showed that he had a
considerable interest in having his record expunged, including his
employment situation and the need to support his family); Commonwealth
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v. D.M., 695 A.2d 770 (Pa. 1997) (a petitioner is automatically entitled to
expungement of his arrest record where a case is terminated by a trial and
acquittal).
This is a rather unique situation procedurally because after the jury
found appellant guilty of first degree murder, it did not consider lesser
degrees of murder, including second degree murder. Therefore, expunging
appellant’s first degree murder conviction would leave nothing on the record
to show that he is serving a valid life sentence, which the federal courts
have determined should not be disturbed. The evidence was sufficient to
prove second degree murder, and since the jury did not consider lesser
degrees of murder, double jeopardy principles would not prohibit appellant’s
re-trial on second degree murder. Rainey, 603 F.3d at 202 (“Rainey has
not identified any new argument or new evidence that he could have
presented at a second trial such that he would not have been convicted of
second degree murder.”). As the trial court observed,
it just seems like you have an automatic right to
expungement, shouldn’t matter if you’re in custody,
but there’s this wrinkle that what he really did
commit was murder in the second degree according
to that Court, and there’s no -- there’d be no
indication of that on this record which is why I would
probably feel constrained to deny your motion if
there isn’t some other way of doing this. In other
words, I don’t think we can, I don’t know I don’t
think we can change the murder of first degree to
murder of the second degree . . . .
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Notes of testimony, 4/17/15 at 7. In its Rule 1925(a) opinion, the trial court
states, “even if the appellate courts rendered the functional equivalent of an
acquittal, there was not and has never been a recording of guilt on second
degree murder. Granting expungement under these circumstances would be
wildly misleading and unfair.” (Trial court opinion, 11/10/15 at 3.) We
agree with the trial court’s reasoning and find that the trial court did not
abuse its discretion in denying appellant’s petition for expungement.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2016
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