Com. v. Charnik

• Decision Date: 03 April 2007
• Docket Number: No. 1185 WDA 2006.,No. 975 WDA 2006.,975 WDA 2006.,1185 WDA 2006.
• Citation: 921 A.2d 1214
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Theodore CHARNIK, III, Appellant Janine H. Charnik, Appellee v. Theodore Charnik, III, Appellant.
• Court: Pennsylvania Superior Court

921 A.2d 1214

COMMONWEALTH of Pennsylvania, Appellee v. Theodore CHARNIK, III, Appellant Janine H. Charnik, Appellee v. Theodore Charnik, III, Appellant.

No. 975 WDA 2006.

No. 1185 WDA 2006.

Superior Court of Pennsylvania.

Submitted November 13, 2006.

Filed April 3, 2007.

Karen Hassinger, Washington, for appellant.

John C. Pettit, Asst. Dist. Atty., Washington, for Com., appellee.

Janine H. Charnik, appellee, pro se.

BEFORE: MUSMANNO, KLEIN and POPOVICH, JJ.

OPINION BY KLEIN, J.:

¶ 1 In these consolidated appeals Theodore Charnik III challenges the trial court's April 24, 2006 order denying his petition to expunge his indirect criminal contempt convictions and the June 23, 2006 order denying his petition to expunge his record of the order entered against him under the Protection From Abuse Act (PFAA), 23 Pa.C.S.A. § 6101 et seq. The indirect criminal contempt convictions arose out of two violations of a Protection From Abuse (PFA) order.¹ Because section 9122(b) of the Criminal Code restricts expungement of conviction records to situations not applicable here, we find no abuse of discretion in the trial court's order denying the petition to expunge the indirect criminal contempt convictions. see Criminal History Record Information Act, 18 Pa.C.S.A. § 9122(b); see also Commonwealth v. Rodland, 871 A.2d 216 (Pa.Super.2005). With respect to expungement of his PFA record, Charnik presents a novel question. Neither the expungement statute nor the PFAA speaks to expungement of PFA records, and the case law does not address final PFA orders. Therefore, we must determine whether Charnik is entitled to expungement of his PFA record where a final PFA order has been entered, and, if so, whether a Wexler² balancing test is required.

¶ 2 We are guided by the Pennsylvania Supreme Court's decision in Carlacci v. Mazaleski, 568 Pa. 471, 798 A.2d 186, 190 (2002) and this Court's decision in P.E.S. v. K.L., 720 A.2d 487 (Pa.Super.1998). Having considered these decisions, the expungement statute, and policy concerns, we conclude that Charnik is not entitled to expungement of his PFA record and therefore we need not address the Wexler issue. A PFA order, entered after a full hearing and supported by a fair preponderance of the evidence, which is not overturned on appeal, is more analogous to a conviction record than to a non-conviction record. Recognizing the logical appeal of Charnik's argument that allowing a Wexler balancing test where a final PFA order has been entered is a natural extension of Carlacci, we nonetheless conclude that extending that language is inappropriate in this case.

Facts

¶ 3 Janine H. Charnik (Wife) filed a PFA petition against Charnik on November 17, 2004. On December 14, 2004, following a hearing, Judge Mark E. Mascara granted Wife's petition and entered a final PFA order excluding Charnik from the marital residence. In February, 2005, Charnik moved back into the marital home, apparently with Wife's consent. On April 24, 2006, following an argument, Wife left the marital residence with the parties' 2½-year-old son. Wife received a call on her cell phone from Charnik indicating he had called in an Amber alert for his child. Wife contacted Officer Griffith of the East Washington Borough Police Department to report that her husband was trying to file an Amber alert. While on the phone with Wife, Officer Griffith received a call from the Pennsylvania State Police indicating that Charnik was at the state police barracks trying to get information on the whereabouts of his son. Charnik, who had partial custody of the child, had gone to the state police barracks in an attempt to locate his son, and had presented his PFA order and admitted to state police that he was residing at the address from which he was excluded by the PFA order. Charnik was arrested at that point for indirect criminal contempt.

¶ 4 At the hearing on the contempt petition, Charnik testified that he was invited back to the marital residence because the parties' child was sick and Wife needed help taking care of him. Wife admitted that the child was sick and she asked Charnik to take care of him because she had to work and she could not bring the child to daycare while he was sick. However, Wife also testified that she asked Charnik to leave, that she wanted things to work out but knew they never would, and she did not call police because she felt threatened. (N.T. Hearing on Petition for Indirect Criminal Contempt of PFA, 4/28/05, at 1-9). Charnik acknowledged he has anger management issues, but complied with the court's order and underwent anger management counseling.

¶ 5 The trial court stated on the record that despite the fact that the court found Wife was complicit in Charnik's moving back into the residence and did not find Wife credible in her testimony that she was afraid to call police, it was Charnik's responsibility to either not move back into the residence or to see that the PFA had been dropped. The court therefore found Charnick guilty of indirect criminal contempt and sentenced him to three months' probation.

¶ 6 On June 14, 2005, the parties were again before Judge Mascara for another charge of indirect criminal contempt for violation of the PFA order. Wife testified that when Charnik was returning their son to her residence, she saw him pull into the driveway and get out of the car in a rage, so she closed the door and locked it and went to find her phone. At that point, Wife testified, Charnik was at the back door with the child, he broke the chain lock on the door, pulled the molding out of the wall, grabbed Wife's phone and pulled the battery out of the phone. Wife ran out of the house and called for Charnik's grandmother, who was waiting in the car. Wife testified that Charnik screamed at his grandmother to get back into the car, and that they left. Wife called the police. (N.T. Hearing on Indirect Criminal Contempt Petition, 6/14/05, at 2-9).

¶ 7 Following the hearing, Judge Mascara again found Charnik guilty of indirect criminal contempt and sentenced him to a term of two to six months' incarceration, with work release, and ordered Charnik to continue anger management classes.

¶ 8 On July 22, 2005, Wife filed a petition to withdraw the PFA order. The trial court, on that date, entered an order setting aside the final PFA order that it had entered seven months prior.

¶ 9 Charnik filed a petition to expunge both the PFA record and the record of his contempt convictions. Judge John F. DiSalle denied Charnik's petition to expunge the record of his contempt convictions and, thereafter, denied Charnik's petition to expunge the PFA record on which the indirect criminal contempt convictions were based. Charnik argues the court abused its discretion in denying the petitions to expunge the record of his criminal convictions and the PFA record. He also argues the court erred in not holding a hearing on the petition to expunge the PFA record.

Discussion

A. Conviction Records

¶ 10 Charnick claims the record of his indirect criminal contempt convictions should be expunged because the underlying PFA order was "withdrawn" by Wife. This is incorrect. A petition may be withdrawn; a final order, however, requires a judicial act to be set aside or vacated. Although the trial court entered an order setting aside the final PFA order, it had no jurisdiction to do so. See footnote 3, infra. Further, contempt proceedings are distinct from PFAA proceedings; PFAA proceedings are initiated in effort to stop perpetration of abuse and are civil in nature, while the indirect criminal contempt actions are criminal in nature and seek punishment for violation of a protective order. See Commonwealth v. Nelson, 456 Pa.Super. 349, 690 A.2d 728 (1997).

¶ 11 The trial court properly denied Charnik's petition to expunge his conviction records. There is a distinction between "conviction data" and "non-conviction data" for purposes of expungement. Commonwealth v. Maxwell, 737 A.2d 1243 (Pa.Super.1999). The Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa.C.S.A. § 9122(b).

¶ 12 Here, Charnik is less than 70 years of age and has not been free of arrest or prosecution for ten years. The trial court's denial of his petition to expunge the indirect criminal contempt convictions was proper. 18 Pa.C.S.A. 9122(b); Commonwealth v. Wolfe, 749 A.2d 507 (Pa.Super.2000).

B. Non-Conviction Records

¶ 13 With respect to the petition to expunge the PFA record, that issue is more complicated.³ In Commonwealth v. Wexler, the Pennsylvania Supreme Court held, in a case of a petition to expunge an arrest record where the case was nol prossed, that if the Commonwealth does not bear its burden of proof beyond a reasonable doubt, or admits prior to trial that it is unable to bear its burden of proof, the Commonwealth must bear the burden of justifying why the arrest record should not be expunged. Wexler, 431 A.2d at 880. In determining whether the arrest record should be expunged, the Court approved a non-exhaustive list of factors: 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. at 879.

¶ 14 In Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770 (1997), the Court reiterated the Wexler balancing test "as a means of deciding petitions to expunge the records of all arrests which are terminated without convictions except in...