Commonwealth v. Romeo

J-S81041-16

2017 PA Super 1

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOHN ROMEO

Appellant No. 272 EDA 2016

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 BY STEVENS, P.J.E.: FILED JANUARY 03, 2017

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 circumstances1 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
____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
See the Criminal History Record Information Act (CHRIA), 18 Pa.C.S. §
1922, infra.
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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.

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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 counsel is not seeking to
have expunged.

The remaining counts that were [nolle prossed] were
burglary and loitering and prowling.

The Commonwealth then reviewed the factual basis
for the plea of guilty and argued the serious nature
of the charges.

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The Court took the matter under advisement and
handed down a decision denying the petition later
that day.

Appellant filed a Notice of Appeal . . . on January 19,
2016.[2]

Lower Court Opinion, 4/15/16, at 1-3.

Appellant presents the following questions for our consideration:

I. IS APPELLANT ENTITLED TO AN EXPUNGEMENT OF A
SINGLE, 32-YEAR OLD MINOR FELONY CONVICTION AS A
MATTER OF DUE PROCESS SO HE CAN ONCE AGAIN ENJOY
THOSE RIGHTS AND LIBERTIES MOST AMERICANS TAKE
FOR GRANTED?

II. WAS ERROR OR THE APPEARANCE OF ERROR COMMITTED
BY THE LOWER COURT’S ORDER WHICIH [SIC] FIRST
GRANTED THEN INEXPLICABLY DENIED APPELLANT’S
EXPUNGEMENT REQUEST?

Appellant’s brief at 4.

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, 568 Pa.
471, 798 A.2d 186, 188 (2002). [See, infra, Commonwealth
v. Malone, 366 A.2d 584 (Pa.Super. 1976)]. 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

____________________________________________

2
Thirty days from the December 18, 2015, order was Sunday, January 17,
2016. Monday, January 18, 2016, was Martin Luther King, Jr. Day, an
observed holiday. Appellant, therefore, had until Tuesday, January 19,
2016, to file a a timely notice of appeal. See Pa.R.A.P. 903(a) (notice of
appeal “shall be filed within 30 days after the entry of the order from which
the appeal is taken”); 1 Pa.C.S.A. § 1908 (excluding weekends and holidays
from the computation of time when the last day of the time period falls on a
weekend or holiday).

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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, 603 Pa. 156, 983 A.2d 627, 633 (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.,
548 Pa. 131, 695 A.2d 770, 772–73 (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.”).

Commonwealth v. Moto, 23 A.3d 989, 993 (Pa. 2011).

Herein, Appellant summarily concedes that Section 9122 affords him

no opportunity for relief, presumably because he fails to meet statutory

requirements for expungement of conviction history.3 He advances, instead,
____________________________________________

3
Relevant for purposes of the present appeal, the CHRIA provides:

§ 9122. Expungement

***
(b) Generally.--Criminal history record information may be
expunged when:
(Footnote Continued Next Page)

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a constitutional challenge positing that the same due process rights requiring

performance of a balancing test where neither conviction nor acquittal was

obtained are, likewise, implicated in a petition to expunge a conviction

record.4 See Appellant’s brief at 13. In support of this position, Appellant

argues by analogy that just as constitutional interpretation continues to

evolve on issues relating to fundamental liberty interests and punishment,

so too should it evolve to allow expungement of conviction records through

the same process applicable to nonconviction records:

The law does not perpetually remain static. As we have seen
over the last several years our federal constitution has been
interpreted to reflect changing societal values. That evolution
_______________________
(Footnote Continued)

(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.

(2) An individual who is the subject of the information has been
dead for three years.

****
18 P.S.C.A. § 9122.
4
Appellant specifically refers neither to the Due Process Clause of the
Fourteenth Amendment of the United States Constitution nor to Article I,
Section 9 of the Pennsylvania Constitution, but instead expresses a generic
due process claim. The lack of specificity is of no moment to our review,
however, as our courts have generally treated the Due Process Clause of the
United States Constitution and Article I, Section 9 of the Pennsylvania
Constitution as coextensive. See, e.g., Commonwealth v. Sims, 919 A.2d
931, 941 n. 6 (Pa. 2007).

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has culminated into the extension of constitutional protection to
same sex marriage and to juveniles convicted of first degree
murder no longer being condemned to death sentences or even
sentences of life without possibility of parole.

Unlike the above-described legal issues, it is a much more
restrained legal evolution to extend due process protections to
those seeking relief from a prior felony conviction where a lower
court engages in the same balancing test utilized in determining
whether to expunge an arrest record.

Appellant’s brief at 12.

In Commonwealth v. Magdon, 456 A.2d 194 (Pa.Super. 1983), this

Court addressed whether due process rights require extending use of the

balancing test prescribed in Wexler to instances where a petition seeks

expungement of conviction records.5 In affirming the denial of petitioner’s

request without application of the test, the Magdon Court discussed the

legal basis for recognizing a right to seek expungement of arrest records and

found such basis inapposite where expungement of conviction records is

sought:

In [ ]Malone,[ ] this Court held for the first time that upon
petition and hearing an accused's record can be expunged if the
evidence at the hearing justifies the expungement. The Court
first concluded that it enjoyed authority to order the
expungement of an arrest record, and next determined the
circumstances under which expungement is proper. In deciding
this first point, the Court in Malone stated its rationale as
follows:

____________________________________________

5
Magdon pled guilty to a charge of selling marijuana and served eighteen
months’ incarceration in Lackawanna County Prison.

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It seems clear, therefore that our appellate courts
recognize the right of an accused to seek
expungement of an arrest record. Cf. Sullivan v.
Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938
(1973). Although our research does not indicate a
stated legal basis for that right in our appellate
decisions, we believe that such a right is an adjunct
to due process. The harm ancillary to an arrest
record is obvious: “Information denominated a
record of arrest, if it becomes known, may subject
an individual to serious difficulties. Even if no direct
economic loss is involved, the injury to an
individual's reputation may be substantial. Economic
losses themselves may be both direct and serious.
Opportunities for schooling, employment, or
professional licenses may be restricted or
nonexistent as a consequence of the mere fact of an
arrest, even if followed by acquittal or complete
exoneration of the charges involved. An arrest
record may be used by the police in determining
whether subsequently to arrest the individual
concerned, or whether to exercise their discretion to
bring formal charges against an individual already
arrested. Arrest records have been used in deciding
whether to allow a defendant to present his story
without impeachment by prior convictions, and as a
basis for denying release prior to trial or an appeal;
or they may be considered by a judge in determining
the sentence to be given a convicted offender.”
Menard v. Mitchell, 139 U.S.App.D.C. 113, 430
F.2d 486, 490-91 (1970). See also, Michelson v.
United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed.
168 (1948). Cf. Wisconsin v. Constantineau, 400
U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).
Thus, it is not hyperbole to suggest that one who is
falsely accused is subject to punishment despite his
innocence. Punishment of the innocent is the
clearest denial of life, liberty and property without
due process of law. To remedy such a situation, an
individual must be afforded a hearing to present his
claim that he is entitled to an expungement -- that
is, because an innocent individual has a right to be
free from unwarranted punishment, a court has the

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authority to remedy the denial of that right by
ordering expungement of the arrest record.

Id. at 69, 366 A.2d at 587-88. [(footnote deleted)].

Once the Court determined that expungement of an arrest
record may be ordered, it went on to articulate a balancing test
to be applied in determining what circumstances the exercise of
that authority is warranted. The Court in Malone noted that the
balancing of societal interests in the retention of arrest records
with the rights of the individual was the salient point of inquiry:

What is ... required is a more delicate balancing of
law enforcement needs against the privacy and other
interests of affected individuals, and a closer analysis
of whether legitimate law enforcement needs may be
served in a manner which does not unduly trench
upon the individual's rights.

Id. at 70, 366 A.2d at 588, quoting Utz v. Cullinane, 172
U.S.App.D.C. 67, 520 F.2d 467, 475 n. 10 (1975).

***
Instantly, [appellant Magdon] refers to this balancing test and
cites the above-stipulated facts [including laudable post-
conviction attainment of high school and college degrees with
honors, a record of continuous employment and community
volunteerism, a good reputation among co-workers and
neighbors, the automatic denial of promotions because of his
record, and an acceptance into the Physician’s Assistant program
at Hahnemann Medical Hospital conditional on the expungement
of his conviction record] which he alleges tip the scales in his
favor. Despite the strength and number of uncontroverted facts
which appellant asserts in support of his contention that he is a
worthy candidate for expungement, we are unable to examine
his record since we cannot erase the stigma of his conviction.

We commend appellant for his post-conviction accomplishments
and express dismay concerning his inability to obtain desired
employment. However, it is readily apparent from the above
quoted passage in Malone that Judge Hoffman’s rationale for
allowing expungement of an arrest record was based upon the
due process rights of the accused. This due process right to be
heard is not abridged by denying an expungement hearing to

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one actually convicted of a crime because the conviction itself is
based upon a hearing in which the accused was adjudged guilty
beyond a reasonable doubt, or upon a plea of guilty which
waives the many of the formalities of such a hearing. The
convicts’ trial provided a forum in which he or she enjoyed an
opportunity to be heard. Nor further opportunity for a hearing is
required by the due process guarantee.

Magdon, 456 A.2d at 195-96.

Magdon represents binding precedent upon this panel,6 as Appellant’s

challenge presents the same due process narrative—one detailing long-term,

commendable post-conviction conduct despite the real and varied difficulties

of living with a conviction record—deemed, thirty-three years ago by this

Court, ineligible to garner a discretionary expungement of conviction

records. As we did in Magdon, we express sympathetic understanding of

the enduring challenges confronting one determined to live a post-conviction

life of accomplishment and contribution. This panel, however, discerns no

authority to mandate a Malone/Wexler expungement inquiry predicated on

due process rights in the case sub judice when this Court has previously

denied the existence of such rights in the conviction context. In this regard,

moreover, we note that Appellant fails to identify and expound upon what, if

any, newly pertinent considerations would merit a departure from our

precedent. We, therefore, deem Appellant’s first claim unworthy of relief.

____________________________________________

6
See Commonwealth v. Hull, 705 A.2d 911, 912 (Pa.Super. 1998)
(holding prior decisions of the Superior Court are binding precedent on a
subsequent three-judge panel of this Court).

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In Appellant’s remaining claim, he asserts that the lower court’s order

denying his expungement motion impermissibly bore an “inexplicable”

change in wording, specifically, the crossing-out of the word “granted” and

substituting the word “denied.” The sum of Appellant’s argument on this

claim consists of the following:

While the court in its Opinion attempts to explain this oddity
after the fact, the situation requires that the Order be vacated
and the matter remanded for a new hearing to address this
matter.

Appellant’s brief at 13.

Declaring Appellant’s claim “specious,” the court explains in its

Pa.R.A.P. 1925(a) opinion that it fully intended to deny the petition, and it

supports the correction as an exercise of its inherent “power to amend [the

court’s] records, to correct mistakes of the clerk or other officer of the court

[or] inadvertencies of counsel, or [to] supply defects or omissions in the

record.” Lower Court Opinion, at 6-7 (quoting Commonwealth v. Cole,

263 A.2d 339, 341 (Pa. 1970) (citation omitted)). We agree with the court

that no reason exists for vacating and remanding where the court simply

corrected a clerical error with the judgment line to bring the order in

agreement with its intended judgment. Moreover, Appellant’s failure to

develop an argument or cite authority in support of his contention results in

waiver of this claim. See Pa.R.A.P. 2119(a), (b).

Order is AFFIRMED.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/3/2017

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