J-A24007-23
2024 PA Super 115
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB ADAMS :
:
Appellant : No. 2229 EDA 2022
Appeal from the Order Entered July 25, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: MC-51-CR-0039001-2008,
MC-51-CR-0039002-2008, MC-51-CR-0039003-2008,
MC-51-CR-0039004-2008, MC-51-CR-0039005-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB ADAMS :
:
Appellant : No. 2230 EDA 2022
Appeal from the Order Entered July 25, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: MC-51-CR-0039001-2008,
MC-51-CR-0039002-2008, MC-51-CR-0039003-2008,
MC-51-CR-0039004-2008, MC-51-CR-0039005-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB ADAMS :
:
Appellant : No. 2231 EDA 2022
Appeal from the Order Entered July 25, 2022
In the Court of Common Pleas of Philadelphia County
J-A24007-23
Criminal Division at Nos: MC-51-CR-0039001-2008,
MC-51-CR-0039002-2008, MC-51-CR-0039003-2008,
MC-51-CR-0039004-2008, MC-51-CR-0039005-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB ADAMS :
:
Appellant : No. 2232 EDA 2022
Appeal from the Order Entered July 25, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: MC-51-CR-0039001-2008,
MC-51-CR-0039002-2008, MC-51-CR-0039003-2008,
MC-51-CR-0039004-2008, MC-51-CR-0039005-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB ADAMS :
:
Appellant : No. 2233 EDA 2022
Appeal from the Order Entered July 25, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: MC-51-CR-0039001-2008,
MC-51-CR-0039002-2008, MC-51-CR-0039003-2008,
MC-51-CR-0039004-2008, MC-51-CR-0039005-2008
BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.
OPINION BY STABILE, J.: FILED JUNE 3, 2024
Appellant, Jacob Adams, was sentenced in 2007 to probation for
violating a Protection From Abuse (“PFA”) order against his estranged wife.
In mid-2008, he was arrested five times based on allegations that he
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continued to contact or threaten his wife. One month later, the
Commonwealth withdrew all charges when Appellant’s wife failed to appear in
court to testify. Thirteen years later, in 2021, Appellant filed petitions to
expunge all records in the 2008 cases.1 Relying on hearsay allegations in the
records, the court denied his petition. Applying the balancing test articulated
in Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), we hold that the
court abused its discretion by denying expungement. Accordingly, we reverse.
On August 10, 2007, Appellant was arrested and charged with violating
a PFA order (a third-degree misdemeanor) and harassment (a summary
offense) for conduct relating to his wife. Appellant pled nolo contendere to
those charges and was sentenced to six months’ probation.
In June and July of 2008, Appellant’s wife called the police on five
separate occasions, alleging each time that Appellant had spoken with her in
violation of the PFA order. The police filed five sets of criminal charges, and
on August 4, 2008, Appellant was charged in all five cases for violating the
PFA order and in three of these cases for harassment and terroristic threats.
In each case, the criminal complaint alleged that Appellant either started an
argument with his former wife or made a threat of violence against her. In
one case, Appellant allegedly told his wife that he was “going to stomp her
when he sees her.” N.T., Expungement Hearing 7/25/22, at 8. In another
case, Appellant allegedly told his wife that he was “going to kill her.” Id.
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1 Because the petitions are essentially identical, we will refer to them
collectively as the “petition.”
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The docket reflects that there was no preliminary hearing in any of the
five cases. The court initially scheduled trial in all five cases for September
25, 2008, but trial was continued to November 4, 2008 for reasons not
provided in the records. On November 4, 2008, the Commonwealth withdrew
all charges due to Appellant’s wife’s failure to appear in court to testify.
Appellant asserts, and the Commonwealth does not dispute, that he has
had no other contact with the criminal justice system other than the contacts
in 2007 and 2008.
On February 22, 2022, over thirteen years after withdrawal of the 2008
charges, Appellant filed a petition to expunge all records in the 2008 cases.
Appellant did not seek to expunge the record in the 2007 case in which he
was sentenced to probation.
On July 25, 2022, the court convened an evidentiary hearing on
Appellant’s petition. At the time of this hearing, Appellant was eight days
away from his 66th birthday, N.T., 7/25/22, at 8, and was arrest-free since his
arrest in 2008. Appellant testified on his own behalf during the hearing. He
testified that his wife’s allegations were untrue and that he subsequently
developed a cordial relationship with her. Id. at 12-13. The Commonwealth
called no witnesses. The only evidence offered by the Commonwealth were
the PARS reports2 generated in each case and a copy of Appellant’s secure
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2 PARS, a “Preliminary Arrest Report Summary,” is a document created by the
Philadelphia Police Department immediately after an arrest that provides a
detective’s summary of the allegations in a case.
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court summary. The Commonwealth objected to expungement on the ground
that the charges involved allegations of domestic violence and because the
record showed “a course of conduct with respect to the same complainant.”
Id. at 7.
At the conclusion of the hearing, the court denied Appellant’s petition.
Appellant filed a timely appeal to this Court, and both Appellant and the court
complied with Pa.R.A.P. 1925. Appellant raises a single issue in this appeal:
“Did the lower court err and abuse its discretion in denying [Appellant’s]
motion to expunge his arrest record where the charges were withdrawn before
trial and where the Commonwealth failed to present compelling evidence that
expungement was inappropriate?” Appellant’s Brief at 3. We review the
denial of Appellant’s expungement petition for abuse of discretion.
Commonwealth v. Hanna, 964 A.2d 923, 925 (Pa. Super. 2009).
Our Supreme Court has explained that “[j]udicial analysis and
evaluation of a petition to expunge depend upon the manner of disposition of
the charges against the petitioner.” Commonwealth v. Moto, 23 A.3d 989,
993 (Pa. 2011). “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.”
Id. (citing 18
Pa.C.S.A. § 9122; Hunt v. Pennsylvania State Police,
983 A.2d 627, 633
(Pa. 2009)). When the defendant has been tried and acquitted of the offenses
charged, he is “automatically entitled to the expungement of his arrest
record.”
Id. (citing Commonwealth v. D.M.,
695 A.2d 770, 772–73 (Pa.
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1997)). Finally, when the Commonwealth withdraws the charges against the
defendant prior to trial, the situation in the present case, the court must apply
the standards articulated in Commonwealth v. Wexler, 431 A.2d 877, 879
(Pa. 1981), to the expungement petition.
Id.
The Moto court cogently summarized Wexler as follows:
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.” [Wexler,]
431 A.2d [at] 879; 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.”).
To aid courts in applying the balancing test for expungement, we
also adopted in Wexler the following non-exhaustive list of
factors that the court should consider:
These factors include [1] the strength of the
Commonwealth’s case against the petitioner, [2] the
reasons the Commonwealth gives for wishing to retain
the records, [3] the petitioner’s age, criminal record,
and employment history, [4] the length of time that
has elapsed between the arrest and the petition to
expunge, and [5] the specific adverse consequences
the petitioner may endure should expunction be
denied.
Wexler, supra at 879 (citation omitted).
We have emphasized that in applying the balancing test and
considering the above factors, the court must analyze the
particular, specific facts of the case before it. Id. at 880–81. The
mere assertion by the Commonwealth of a general interest in
maintaining accurate records of those accused of a crime does not
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outweigh an individual’s specific, substantial interest in clearing
his or her record. Id. at 881–82.
In addition, Wexler explicitly placed the burden of proof on the
Commonwealth. The case against the Wexler appellants had
been nolle prossed after the Commonwealth had admitted that it
would be unable to sustain its burden of proof at trial. Wexler,
supra at 880. Nonetheless, the trial court denied the appellants’
petition to expunge their arrest records, and the Superior Court
affirmed. [The Supreme] Court reversed and ordered
expungement, concluding that the Commonwealth had not
proffered “compelling evidence” to justify the retention of the
appellants’ arrest records. Id. at 881. Importantly, in general
terms, we held that when the Commonwealth admits that it is
unable to bear its burden of proof beyond a reasonable doubt at
trial, then “the Commonwealth must bear the burden of justifying
why the arrest record should not be expunged.” Id. at 880.
Id. at 993–94.
The defendant’s right to seek expungement of records in a nolle prossed
case does not arise from Pennsylvania’s expungement statute, 18 Pa.C.S.A. §
9122. Moto, 23 A.3d at 993-94. Instead, it is a constitutional right based on
principles of substantive due process. As Wexler states,
[t]he serious harm an individual may suffer as a result of the
Commonwealth’s retention of an arrest record has been set forth
in Commonwealth v. Malone, 244 Pa. Super. 62, 68-69,
366
A.2d 584, 587-88 (1976). Because of this potential hardship, the
Court in Malone recognized that in certain circumstances
substantive due process guarantees an individual the right to have
his or her arrest record expunged.
Wexler, 431 A.2d at 879.
The trial court correctly acknowledged that the Wexler test governed
Appellant’s motion to expunge the records in his five nolle prossed cases.
Pa.R.A.P. 1925(a) Opinion, 2/3/23, at 7, 9. The focus of this appeal is to
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determine whether the court properly exercised its discretion in applying this
test.
Regarding the first Wexler factor, the strength of the Commonwealth’s
case against Appellant, the court asserted that “the Commonwealth’s case
against expungement was strong after considering the evidence.” Id. at 10.
The court explained:
Appellant’s secured criminal history reflects six criminal matters,
all involving identical charges of violating a [PFA] order pertaining
to the same complainant (one of the criminal matters Appellant
pled nolo contendere and received six months of probation).
Furthermore, this court considered the PARS Reports of the
criminal matters under expungement consideration, which detail
Appellant’s criminal acts associated with the violations of the
protection from abuse order.
Id.; see also id. at 10 (“the court properly considered the strength of the
Commonwealth’s case against the Appellant when it denied the petitions”)
(citations to record omitted). We are constrained to disagree with this
assessment.
Appellant was convicted in a separate case in 2007 for violating a PFA
order relating to his wife (a third-degree misdemeanor) and harassment (a
summary offense). The five nol prossed cases arise from accusations by
Appellant’s former wife in mid-2008. There was no preliminary hearing in any
of these cases, so the Commonwealth never formally presented a prima facie
case against Appellant. Nor was there any trial because the Commonwealth
withdrew all charges. Nor did the Commonwealth furnish any testimony
relating to these cases during the hearing on Appellant’s expungement
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petition. Despite this lack of evidence, the court found “strong” evidence
against Appellant in the five records based on the PARS reports generated at
the time of Appellant’s five arrests.
Further, the PARS reports did nothing more than recite allegations
against Appellant. They were not sworn statements; they were not subject to
cross-examination; and they did not provide a factfinder with an opportunity
to assess witness credibility. They were nothing more than hearsay—that is,
“a statement that (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth
of the matter asserted in the statement.” Pa.R.E. 801(c) (definition of
hearsay). Had the 2008 cases proceeded to trial, limited to the evidence in
the expungement record, the court would have entered judgments of acquittal
at the conclusion of the Commonwealth’s case-in-chief, because the PARS
records would have been inadmissible as hearsay, and the remaining evidence
(the PFA order and Appellant’s 2007 conviction for violating this order) would
not have established criminal misconduct in 2008. We therefore find the court
abused its discretion by determining that the PARS reports provided strong
evidence against expungement.3
____________________________________________
3 We do not wish to suggest that the insufficiency of the evidence in the record
automatically entitles a defendant to expungement when his case is nolle
prossed. The lack of evidence in the record might be due to other factors that
do not support expungement. For example, the record might lack information
because the complaining witness is too scared to come to court to testify. For
(Footnote Continued Next Page)
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Turning to the second Wexler factor, the Commonwealth’s reason for
retaining the records, the court stated:
The Commonwealth’s reasons for retaining the criminal history
information are due to the repetitiveness and nature of the
Appellant’s domestic violence course of conduct. The court agreed
with the Commonwealth after it considered the Appellant’s
secured criminal history and PAR[S] Reports.
Opinion at 10-11 (citations to record omitted). The court adopted the position
taken by the Commonwealth during the expungement hearing, wherein the
prosecutor stated:
[T]he record as presented shows a course of conduct with respect
to the same complainant. And the Commonwealth has a strong
interest in maintaining information based on that course of
conduct. [W]hile the age of the case is … not so recent it does
take place in the 2000’s. The nature of each transcript is similar
showing a disregard for a court order.
N.T., 7/25/22, at 7. We conclude again the trial court abused its discretion in
determining that the Commonwealth had a strong interest in maintaining
these records. The only evidence suggesting “repetitive” behavior or a
“domestic violence course of conduct,” to use the trial court’s terms, were (1)
Appellant’s PFA order and 2007 conviction and (2) hearsay allegations in the
PARS reports about Appellant’s 2008 conduct. As discussed above, this
evidence would not have survived a motion for judgment of acquittal in a
____________________________________________
this reason, we emphasize that even when the Commonwealth’s case lacks
strength, it still is necessary to evaluate the other Wexler factors as well as
other factors that the court deems pertinent. See Moto, 23 A.3d at 993
(Wexler’s list of five factors is “non-exhaustive”).
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criminal trial due to legal insufficiency. Given the weakness or lack of
evidence—particularly the unreliability of the hearsay allegations of 2008
misconduct—the court exercised its discretion improperly in determining that
the Commonwealth had a strong interest in retaining Appellant’s records.
The court failed to evaluate the next two Wexler factors: (1) Appellant’s
age, criminal record, and employment history, and (2) the length of time that
has elapsed between his arrests and the petition to expunge. The record
shows that at the time of his petition to expunge, Appellant was 65 years old
and had remained arrest-free for thirteen years following the charges in 2008.
Moreover, over thirteen years elapsed between the withdrawal of charges and
Appellant’s petition for expungement. The court abused its discretion by
failing to take these factors into consideration.
In another case applying Wexler to a domestic violence case, we held
that a one-year hiatus between dismissal of the charges due to the wife’s
refusal to testify and the filing of the expungement petition was too short,
“when one considers that the statute of limitations for the instant offenses
was two years.” Commonwealth v. Drummond, 694 A.2d 1111, 1114 (Pa.
Super. 1997). Here, unlike in Drummond, Appellant did not file his
expungement petition prematurely. He waited over a decade after expiration
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of the statute of limitations on the most serious charge against him 4 before
filing his expungement petition.
We turn to the court’s analysis of the fifth Wexler factor, the adverse
consequences the petitioner might endure should expungement be denied.
The court properly determined that Appellant failed to present any evidence
that retention of the records will cause him economic harm. Nevertheless, the
court abused its discretion by concluding that retention of the records presents
no danger to Appellant’s reputation because the records are sealed and are
not available to the public. Opinion at 11-12.
Our Supreme Court rejected a similar argument in Wexler, in which
one of the petitioners was a child whose arrest record was sealed following
completion of her probation. The Wexler court rejected the argument that
sealing the record adequately protected the child, reasoning that members of
the public far too often gain access to sealed police records to which they
should not have access. Wexler, 431 A.2d at 882. Therefore, the court
determined that expungement was necessary even when the record was
sealed from public view. The same reasoning applies here: sealing Appellant’s
records does not completely safeguard them from public access.
____________________________________________
4 The most serious charge was Appellant’s alleged violation of the PFA order,
which was graded as a third-degree misdemeanor and thus had a two-year
statute of limitations. See 42 Pa.C.S.A. § 5552(a).
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The court also asserted that denial of expungement of the 2008 records
will not prejudice Appellant because he did not move to expunge his 2007
arrest and nolo contendere plea. Opinion at 12. This reasoning might have
force when a petitioner has an extensive history of convictions. See, e.g.,
Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014) (affirming denial of
expungement where petitioner was incarcerated at time of expungement
hearing and had vast array of state and federal convictions). Here, however,
the 2007 case is Appellant’s only other contact with the criminal justice
system. Prospective employers and other members of the public are likely to
judge Appellant more harshly if they have access to six arrest records instead
of only one. Stated another way, access to six arrest records will harm
Appellant’s reputation more than access to one record.
Noting that Wexler’s list of factors is not exhaustive, the trial court
added one additional factor for denying expungement—its determination that
Appellant’s testimony during the expungement hearing was not credible. The
court opined:
Appellant testified “I never bothered [the complainant],” “I never
harmed [the complainant],” and “I’ll never forgive [the
complainant] ...“ This court found Appellant’s testimony not
credible due to the fact on August 10, 2007, Appellant pled nolo
contendere to identical charges that dealt with the same
complainant, in which Appellant received six months of probation.
Opinion at 12-13. The court suggests that it did not believe Appellant’s
testimony, and that it did believe Appellant continued to harass his former
wife in 2008, simply because Appellant pled guilty to violating the PFA order
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in 2007. The court’s suspicion that Appellant continued to harass his wife in
2008 lacks an evidentiary foundation. The 2008 records contain nothing more
than hearsay, and the Commonwealth presented no evidence during the
expungement hearing that Appellant engaged in any misconduct after 2007.
Thus, the court improperly concluded that Appellant’s testimony warranted
denial of expungement.
In short, we conclude that the court’s analysis of the Wexler factors
constituted an abuse of discretion. The allegations in the records post-2007
admitted to argue against expungement are pure hearsay that have never
been substantiated; the Commonwealth has not demonstrated a strong or
valid interest in retaining these records; over thirteen years passed between
withdrawal of the 2008 cases and Appellant’s petition to expunge the 2008
records; Appellant is now a senior citizen and has had no other contact with
the criminal justice system besides the 2007 PFA order conviction, and the
unsubstantiated 2008 cases; and the fact that the 2008 records are sealed
does not guarantee that they are inaccessible to the public. With regard to
the non-Wexler factor raised by the trial court, the fact that the court did not
find Appellant’s expungement hearing testimony credible does not
demonstrate that Appellant engaged in any misconduct after his 2007
conviction.
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For these reasons, we conclude that the court abused its discretion by
denying Appellant’s expungement petition. We reverse and remand with
instructions to expunge all records relating to Appellant’s 2008 cases.
Order reversed. Case remanded with instructions to expunge all records
relating to Appellant’s 2008 cases. Jurisdiction relinquished.
Date: 6/3/2024
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