Com. v. Perry, R.
Com. v. Perry, R. No. 1379 WDA 2016
| Pa. Super. Ct. | Jun 8, 2017Background
- Ross A. Perry (then ~56 at offense; ~74 at expungement) pled guilty to indecent assault (1999 incident involving a 10‑year‑old he was babysitting) on January 11, 2000; an aggravated indecent assault charge was nolle prossed as part of the plea agreement.
- Perry was sentenced to, inter alia, two years’ probation and has no other recorded arrests, charges, or convictions before or after this matter.
- Perry petitioned under 18 Pa.C.S. § 9122(b)(1) (age 70 + ten years free of arrest/prosecution) to expunge the indecent assault conviction.
- The trial court held an expungement hearing (Perry was not present; counsel appeared) and denied the petition primarily because of the Commonwealth’s interest that employers and the public know of a sexual offense conviction involving a child.
- Perry appealed, arguing (1) denial of due process because the court was predisposed and decided the matter before hearing, and (2) the court relied on speculation/uncharged allegations rather than facts.
- The Superior Court reviewed the denial for abuse of discretion and affirmed the trial court’s order.
Issues
| Issue | Perry's Argument | Commonwealth / Trial Court Argument | Held |
|---|---|---|---|
| Whether Perry was denied due process because the trial court was predisposed and decided before hearing his case | Trial court’s remarks (e.g., "probably wants to get a job in a day care center") show prejudice and a decision made before hearing counsel | Trial court actually held a hearing, counsel fully argued; remarks viewed in context as concerns about public safety and employer notice | Denied: no due process violation; no abuse of discretion in holding/deciding after hearing |
| Whether the court relied on speculation/uncharged allegations rather than the conviction itself | Court’s statements (e.g., would not want Perry around children; quoted "charged") show it assumed unrecorded misconduct and used allegations improperly | Court clarified it recognized Perry’s clean record since conviction but considered the serious nature of the conviction and Commonwealth’s interest in retaining the record for public/employer protection | Denied: court did not improperly rely on speculation; legitimately weighed the seriousness of the conviction and Commonwealth interest |
Key Cases Cited
- Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002) (expungement petition is an adjunct of due process)
- Commonwealth v. Moto, 23 A.3d 989 (Pa. 2011) (summarizes expungement law and distinguishes dispositions)
- Commonwealth v. Waughtel, 999 A.2d 623 (Pa. Super. 2010) (standard of review: trial court discretion; review for abuse of discretion)
- Commonwealth v. A.M.R., 887 A.2d 1266 (Pa. Super. 2005) (expungement principles where conviction involved)
- Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981) (balancing test and non‑exhaustive factors for expungement when prosecution terminated without conviction)
- Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997) (automatic expungement after acquittal; endorses Wexler balancing for other non‑conviction terminations)
- Hunt v. Pennsylvania State Police, 983 A.2d 627 (Pa. 2009) (statutory framework limits expungement after conviction)
- Commonwealth v. V.G., 9 A.3d 222 (Pa. Super. 2010) (defendant who pleads guilty is generally not entitled to expungement of charges dismissed as part of plea)