J-A27008-17
2018 PA Super 20
TERRENCE GRAHAM, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LYNNA FLIPPEN,
Appellee No. 649 WDA 2016
Appeal from the Order Entered April 1, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2007-8347
LYNNA FLIPPEN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE GRAHAM,
Appellant No. 650 WDA 2016
Appeal from the Order Entered April 1, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s):
2007-4767
2008-9343
2010-1074
LYNNA FLIPPEN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE GRAHAM,
J-A27008-17
Appellant No. 651 WDA 2016
Appeal from the Order Entered April 1, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s):
2007-4767
2008-9343
2010-1074
LYNNA FLIPPEN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE GRAHAM,
Appellant No. 652 WDA 2016
Appeal from the Order Entered April 1, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s):
2007-4767
2008-9343
2010-1074
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 2, 2018
Appellant, Terrence Graham, appeals pro se from the trial court’s April
1, 2016 order denying his “Petition for Expungement” in three separate
cases involving Protection from Abuse Act (PFA)1 petitions filed by Appellee,
Lynna Flippen, against Appellant (cases 2007-4767, 2008-9343, and 2010-
____________________________________________
1
23 Pa.C.S. §§ 6101-6122.
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1074), and one case involving a PFA petition filed by Appellant against
Flippen (case 2007-8374).2 After careful review, we reverse the orders in
each of the above-docketed cases, and remand to the trial court with
instructions.
The trial court summarized the facts underlying this appeal, as follows:
This matter involves four separate PFA petitions filed
between [A]ppellant and [A]ppellee, Lynna Flippen, now
deceased. These actions chronicle a horrific history of domestic
violence between the parties, which culminated in the murder of
Lynna Flippen and her acquaintance, Earnest Yarbrough, on May
13, 2010. Appellant is currently serving two life sentences [of
incarceration] after having been convicted of their murders.
Three of the PFA petitions in question were filed by the
deceased[, Flippen,] against [A]ppellant, her former paramour
and father of her child.1 The fourth petition was filed by
[A]ppellant as plaintiff against … [Flippen].2
1
See docket numbers: []2007-4767 (650 WDA 2016),
[]2008-9343 (651 WDA 2016) and []2010-1074 (652 WDA
2016).
2
See docket number: []2007-8347 (649 WDA 2016).
On August 17, 2007, upon [A]ppellee’s motion to withdraw
or discontinue the action, the temporary PFA against [A]ppellant
was dismissed at docket number []2007-4767. On October 31,
2008, upon [Flippen’s] repeated failure to appear, the temporary
PFA against [A]ppellant at docket number []2008-9343 was
dismissed. On February 11, 2010, upon [Flippen’s] agreement
to withdraw her request for a continuance, the temporary PFA
against [A]ppellant at docket number []2010-1074 was
dismissed.
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2
Appellant filed a notice of appeal in each of his four underlying PFA cases,
and then filed with this Court a petition to consolidate those appeals. We
granted Appellant’s petition and consolidated his appeals by per curiam
order entered May 23, 2016.
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The PFA petition filed by [A]ppellant as plaintiff and
[Flippen] as defendant at docket number []2007-8347 was
denied a temporary protective order, and a final order was
entered after a hearing on October 26, 2007, denying
[A]ppellant’s petition.
On June 14, 2011, [A]ppellant was found guilty after a trial
by jury, of the first[-]degree murders of … Flippen and Earnest
Yarbrough. Appellant was also found guilty of abuse of [a]
corpse and tampering with evidence. On July 26, 2011, Judge
Paul Pozonsky sentenced [A]ppellant to two life sentences of
incarceration. The guilty verdict and judgment of sentence
[were] affirmed by the Superior Court on February 15, 2013.
[Commonwealth v. Graham, 68 A.3d 364 (Pa. Super. 2013).]
The petition for review was denied by the Supreme Court on
August 23, 2013. [Commonwealth v. Graham, 74 A.3d 125
(Pa. 2013)].
On March 30, 2016, [A]ppellant filed a Petition for
Expungement of Protection From Abuse (“PFA”) Records on all
four of the PFA docket numbers…. On [April 1], 2016, the trial
court entered an order denying expungement of these PFA
records.
Trial Court Opinion (TCO), 6/20/17, at 1-3 (some footnotes omitted).
Appellant filed timely, pro se notices of appeal in each of his four PFA
cases. He also timely filed identical Pa.R.A.P. 1925(b) statements in each
case. On June 20, 2017, the trial court filed a joint Rule 1925(a) opinion.
Herein, Appellant raises three issues for our review:
I. Whether the PFA court erred by failing to address whether
Appellant’s PFA[] records meet the expungement criteria
set forth by the [Pennsylvania] Supreme Court?
II. Whether the PFA court abused its discretion by denying
expungement which is contrary to the expungement
standard set by the [Pennsylvania] Supreme Court?
III. Whether the PFA court erred by denying Appellant a
hearing in which he would have been able to present facts
and evidence to support expunction as the proper remedy?
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Appellant’s Brief at 4 (citations and unnecessary capitalization omitted).
Appellant’s three issues are interrelated and, thus, we will address
them together. Essentially, Appellant contends that the trial court erred by
denying his petition to expunge his four PFA cases, as he is entitled to
expungement of those records as a matter of law under our Supreme Court’s
decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), and this
Court’s rationale in Commonwealth v. Charnik, 921 A.2d 1214 (Pa. Super.
2007). Alternatively, Appellant claims that the court should have at least
conducted a hearing to determine if he has met the requirements for
expungement.
We begin by discussing the cases on which Appellant relies. First, in
Carlacci, a temporary PFA order was issued against Carlacci; however, that
order was ultimately ordered null and void, as per a stipulation entered by
the parties. Carlacci, 798 A.2d at 187. In ruling that Carlacci was entitled
to expungement of that record, our Supreme Court focused on the fact that
the PFA petition was “discontinued before a hearing at which the plaintiff …
would have had to meet the burden of proving by a preponderance of the
evidence that the allegation of abuse contained in the PFA[] petition[] had
occurred.” Carlacci, 798 A.2d at 190-91. In other words, the trial court
had never issued a permanent order or made any findings of fact that the
allegations of abuse had actually happened; rather, the record contained
only “bald allegations of prior alleged acts of abuse that were contained in
[the plaintiff’s] petition, nothing more.” Id. at 191 (citation omitted).
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After Carlacci, this Court decided Charnik. There, a final PFA order
was entered against Charnik following a hearing. However, the plaintiff
ultimately sought, and was granted, leave to withdraw that final PFA order.
Thereafter, Charnik petitioned for expungement of the PFA record. In
affirming the trial court’s denial of Charnik’s petition, we initially reiterated
Carlacci’s holding that “when a PFA[] petition filed against a PFA[]
defendant has been dismissed by court order, … or the PFA[] proceedings
never evolve beyond the temporary order stage, … expungement is proper
as a matter of law.” Charnik, 921 A.2d at 1219-20 (emphasis added;
relying on Carlacci, supra, and P.E.S. v. K.L., 720 A.2d 487 (Pa. Super.
1998)). However, we also declared that there exists an “expungement
continuum” that “ranges from (a) illegal or void civil commitments,
acquittals in criminal cases, and PFA matters that have not been proven and
brought to final order (such as … Carlacci), where expungement is proper
as a matter of law, to (b) non-conviction or arrest records, as in nol pros or
ARD, where expungement is a matter of judicial decision…, and to (c)
conviction records, where there is no right of expungement except by
statutory authorization in limited circumstances.” Id. at 1220 (emphasis in
original). We then held that Charnik’s PFA record was “closer to a conviction
rather than a non-conviction record[,]” as “a final order was entered … only
after facts were brought forth proving the allegations of abuse by a fair
preponderance of the evidence….” Id. Thus, we held that expungement
was not warranted, presumably because there is no statutory authorization
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for the expungement of a PFA record, id. at 1218, and Charnik also did not
meet the strict requirements for expungement of the records of a convicted
person, id. at 1217.
Applying Carlacci and Charnik to the present case, it is clear that
three of Appellant’s PFA cases - 2007-4767, 2008-9343, and 2010-1074 -
fall under prong (a) on the ‘expungement continuum,’ and warrant
expungement as a matter of law. In those three cases, only temporary PFA
orders were entered against Appellant, and each of those orders were
ultimately dismissed before a hearing was held, at which Flippen would have
had to prove her allegations of abuse by a preponderance of the evidence.
Therefore, the records in those cases contain only bald, unproven allegations
of abuse, to which Appellant is entitled to expungement as a matter of law.
In regard to Appellant’s PFA record in case 2007-8374, the issue is not
as clear. First, it is unusual that Appellant is seeking to expunge a record
that he himself initiated by filing a PFA petition against Flippen. Additionally,
a hearing was held in that case, and a final order was entered. However,
the final order denied Appellant’s request for PFA protection against Flippen.
He was also denied a temporary PFA order against her. Thus, it is clear that
the PFA allegations were never proven in case 2007-8374. Consequently,
that case appears to also fall within prong (a) of the ‘expungement
continuum,’ thereby warranting expungement as a matter of law. See
Charnik, 921 A.2d at 1220 (“The expungement continuum ranges from (a)
illegal or void civil commitments, acquittals in criminal cases, and PFA
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matters that have not been proven and brought to final order…, where
expungement is proper as a matter of law.”) (italicized emphasis omitted;
bolded emphasis added).
Next, we briefly discuss the trial court’s attempt to distinguish
Appellant’s PFA cases from Carlacci, and its rationale for deciding that his
expungement petitions were properly denied under Charnik. First, in
distinguishing Carlacci, the court reasoned:
Here, unlike Carlacci, the PFA records which [Appellant]
seeks to expunge were admitted into evidence during
[A]ppellant’s criminal homicide trial held on June 14, 2011. At
the conclusion of the trial by jury, [A]ppellant was found guilty of
first[-]degree murder for the deaths of [A]ppellee Lynna Flippen,
the plaintiff on three of the PFAs in question, and the defendant
on the fourth, and her acquaintance[,] Earnest Yarbrough. Thus,
applying the [Commonwealth v.] Wexler[, 431 A.2d 877 (Pa.
1981),] balancing test,[3] the trial court concluded that there are
legitimate reasons for maintaining the records, namely that the
expungement of the temporary PFA records essentially would be
tantamount to destruction of evidence used in [A]ppellant’s
murder trial.
TCO at 5.
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3
In Wexler, our Supreme Court declared that in the case of a request to
expunge a criminal arrest record, the court “must balance the individual’s
right to be free from the harm attendant to the maintenance of the arrest
record against the Commonwealth’s interest in preserving such records.”
Wexler, 431 A.2d at 879. In conducting this balancing test, certain factors
should be weighed, including, but not limited to, “the strength of the
Commonwealth’s case against the petitioner, the reasons the
Commonwealth gives for wishing to retain the records, the petitioner’s age,
criminal record, and employment history, the length of time that has elapsed
between the arrest and the petition to expunge, and the specific adverse
consequences the petitioner may endure should expunction be denied.” Id.
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The court’s rationale is unconvincing. Initially, we have explicitly
declared that it is improper to apply the Wexler balancing test where, as in
this case, expungement is proper as a matter of law. See Charnik, 921
A.2d at 1219 (declaring that where “expungement [is] proper as a matter of
law[,] … the Wexler balancing test [is] unnecessary”) (citing Carlacci, 798
A.2d at 191). Additionally, we stress that expunging the at-issue PFA cases
from Appellant’s record will not erase them from the evidentiary record of
his murder trial. Appellant’s PFA records were properly admitted at that
trial, and they will remain in the record thereof, regardless of our decision in
this appeal.
Second, the trial court found that our decision in Charnik supports its
conclusion that expungement is not warranted in Appellant’s case. The court
reasoned:
In Charnik, the Superior Court denied appellant Theodore
Charnik’s PFA expungement request on grounds that “it would be
inappropriate, as well as fruitless, to expunge the PFA record
when the criminal record would indicate indirect criminal
contempt convictions stemming from violations of a PFA order.”
… Charnik, 921 A.2d [at] 1221…. Likewise, the trial court found
that it would be inappropriate and fruitless in the instant case to
expunge the temporary PFA records when [Appellant] was
subsequently convicted of murdering the woman who was
seeking protection under the PFAs, especially given that the
temporary PFA records were used as evidence during
[A]ppellant’s murder trial.
TCO at 6.
The trial court misconstrues our holding in Charnik, which was that
Charnik was “not entitled to seek expungement of his PFA record[,]” as it
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was “closer to a conviction record rather than a non-conviction
record.” Charnik, 921 A.2d at 1220 (emphasis added). Directly following
this holding, we stated:
We note that the facts of this case illustrate a typical sequence in
an abusive relationship; the abuse, the remorse, the
forgiveness, and the repetition of that cycle. Absent
extraordinary cause, allowing a hearing to clear a record of
abuse after a final order simply because the victim decided to
forgive or “withdraw,” would not only draft the judiciary into the
psychological struggle, but would overwhelm its already limited
resources. The fact remains that a final PFA order was
entered after notice and hearing, and, in addition, there were
two contempts of that order that resulted in convictions, which
remain on Charnik's record. As the trial court indicated, it would
be inappropriate, as well as fruitless, to expunge the PFA record
when the criminal record would indicate indirect criminal
contempt convictions stemming from violation of a PFA order.
Id. at 1221 (emphasis added). Clearly, not only was this portion of our
decision dicta, but our rationale was premised on the fact that, after a
hearing, a final PFA order had been entered, finding that Charnik had
committed the alleged abuse. The same is not true in Appellant’s four PFA
cases. Accordingly, contrary to the trial court’s conclusion, Charnik does
not support the denial of Appellant’s expungement requests.
For all of these reasons, we reverse the trial court’s orders denying
Appellant’s petitions for expungement filed in each of his four underlying PFA
cases. We remand this case to the trial court to enter an order expunging
the dockets related to the PFA petitions filed in each of Appellant’s four
cases.
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Order in cases 2007-4767, 2008-9343, 2010-1074, and 2007-8374
reversed. Cases remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2018
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