An Expungement Hearing is Not the Same as a Criminal Trial in Pennsylvania

Commonwealth v. Moto
Supreme Court of Pennsylvania
May 26, 2011

Holding: An expungement hearing is not a criminal proceeding and is considered civil in nature; thus, an expungement hearing has its own inquiry and rules that are distinct from a typical criminal trial.

Why This Case is Important: When a case is terminated for reasons of nolle prosse or an accelerated rehabilitative disposition program, the court will examine the factors established by the Wexler case. A non-exhaustive list of those factors are as follows: (1) the strength of the Commonwealth’s case against the petitioner; (2) the reasons for Commonwealth gives for retaining the record, (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 will endure if the record is not expunged.

It is important to not that the Wexler test implemented by the courts is a non-exhaustive, factor-based test. There is a fundamental difference between a factor driven test and an element driven test where it is material to satisfy all requirements of the test. In a factor driven test, the court can make a decision by weighing one factor more heavily than another. As the court did in this case, a court can weigh the first factor in the Wexler case and choose to deny the order of expungement. Conversely, a court can take the same factor and weigh it heavily toward expungement. Not all factors must be discussed in determining whether expungement is necessary. However, a petitioner will greatly benefit if he or she establishes favorable evidence for the factors outlined above.

What evidence can be considered in an expungement hearing is different from a criminal trial. This arises from the fact that an expungement hearing is not a criminal trial. Indeed, an expungement hearing is civil in nature and has its own standards and regulations separate and apart from a criminal trial. As such, a court is not bound to follow traditional rules of a criminal trial in considering evidence, as demonstrated in the facts of this case.

Facts of This Case: In 1987, the petitioner in this case was convicted of rape, involuntary deviate sexual intercourse, robbery, and criminal conspiracy. The petitioner’s conviction was largely the result of the testimony of the victim, who identified the petitioner as the assailant.

In 1992, pursuant to the Post Conviction Relief Act, the petitioner sought DNA testing on the panties worn by the victim on the night of the assault. The petitioner’s DNA was not on the victim’s panties. The petitioner’s conviction was vacated, and he was granted a new trial. Pending the new trial, the Commonwealth could not locate the victim, and therefore could not offer the original evidence that established the petitioner’s former conviction. Solely because the victim could not be located, the Commonwealth sought an order of nolle prosse; i.e. the Commonwealth chose to not pursue a conviction in the second trial because it could not establish beyond a reasonable doubt the defendant was guilty without the victim’s testimony.

The petitioner subsequently filed to expunge his records. The trial court denied the petitioner’s application. The Superior Court reversed, and the Supreme Court of Pennsylvania in this case reversed the Superior Court’s decision, and concluded that the petitioner should be denied expungement.

The Court held that the trial court correctly applied the Wexler factors. The trial court had given significant weight to the strength of the Commonwealth’s case against the petitioner. The trial court considered that the petitioner had already been convicted, and that the DNA finding was not conclusive of the petitioner’s innocence. The trial court also considered that the only reason the Commonwealth sought an order of nolle prosse was because the victim could not be located; if the victim had been located, the Commonwealth would have proceeded with the second trial.

The Supreme Court of Pennsylvania determined that the trial court’s analysis and decision was correctly made. The Court held that the trial court made clear it was applying the Wexler balancing test and that it had adequately explained its rational. The Court also stated that the trial court could give great weight to the fact that the petitioner had originally been convicted of the crime of rape.

The petitioner argued that because he had been granted a second trial, then he should be innocent until proven guilty. The petitioner alleged that because he should be presumed innocent and because of the nolle prosse order, the trial court should not have considered the original conviction in making the determination. The Court disagreed with the petitioner, stating that an expungement hearing was not the same as a criminal proceeding. The Court held that an expungement hearing was civil in nature and that it had its own standards and rules.

As a result, the Supreme Court of Pennsylvania concluded that the trial court did not abuse its discretion in denying the petitioner’s expungement, and the court ordered that the expungement be denied.

Key Language: But an expungement hearing is not the same as a new trial. The Superior Court has recognized that an expungement hearing is not a criminal proceeding and the relief sought is civil in nature. An expungement hearing is characterized by its own inquiry and its own standards, which are distinct from those of a criminal trial.

Expert Advise: “The Wexler case provides a balancing test for the courts to determine whether expungement should be granted. This case demonstrates that one factor can outweigh another in making a decision. Those seeking expungement should seek to establish positive evidence for each factor in order to have the best chances for having expungement granted.” Attorney Mathew Higbee.

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