Before my client, "Robert," came to me, he had hired an attorney to try to get his Chester County criminal cleaned up as best as possible bearing in mind the limitations of Pennsylvania state law.  Robert had unfortunately experienced a difficult and emotional divorce which involved a custody dispute of his young son.  During the course of the divorce proceedings, Robert's then-wife had attempted to liquidate the family assets and move to her home country with their son (she was not originally from the United States).  Robert thankfully learned of his then-wife's plan and was able to prevent her from leaving with his son.  Before the divorce ended, however, Robert's then-wife threatened him with false allegations of domestic violence and domestic assault. 

Robert, living in another state at the time, was accused by his then-wife of calling her in Pennsylvania and threatening her with physical violence.  Robert's then-wife called the local police department in Chester County to make her false allegations, and the police in turn contacted Robert regarding the matter.  Robert was thereafter charged with the following offenses:

• Terroristic Threats with Intent to Terrorize Another (18 § 2706 §§ A1 - a misdemeanor of the first degree)
• Harassment – Communicates Lewd, Threatening, Etc. Language (18 § 2709 §§ A4 - a misdemeanor of the third degree)  

At the time Robert's criminal case was disposed (prior to my involvement), the two criminal offenses with which he had been charged were withdrawn in exchange for Robert pleading guilty to two summary offenses.  Specifically, Robert, plead guilty to the following:

• Harassment – Course of Conduct with No Legitimate Purpose (18 § 2709 §§ A3 - a summary offense of which there were two counts each)  

Can domestic violence charges be expunged in Pennsylvania?

Under Pennsylvania expungement law, Robert was eligible to petition the Chester County Court of Common Pleas to have the charges were withdrawn against him in exchange for his guilty plea to the summary offenses.  Although Robert was eligible under the law, I have seen many District Attorney's Office throughout Pennsylvania make a disingenuous argument to try to prevent such an expungement from taking place.  (The technical term for such relief is a "partial expungement;" also known as a "redaction.)  Although I did not get into the specific reasons why, Robert was concerned about his engagement with the attorney who he had initially engaged to try to have his record cleared up as best as possible.  For this reason, Robert contacted me to see if I could help.  

For what reasons will the District Attorney object to an expungement petition?

I explained to Robert that was eligible to petition the Court to have his record expunged and that the Chester County District Attorney's Office could consent or object to such an expungement petition.  I also explained that District Attorney Offices throughout Pennsylvania will generally only object for policy reasons.  Such considerations that District Attorney Offices will take into account are the specific criminal offenses sought to be expunged, the specific circumstances of the alleged incident, the length of time that has passed from the date the criminal case was disposed of and the date the expungement petition is filed, the complainant's position when applicable, if there are any outstanding obligations owed by the defendant to the Court, and so forth. 

Although there are an exhaustive number of considerations that District Attorney Offices throughout Pennsylvania take into account when deciding whether to consent or object to an expungement petition, one of the most important considerations is whether the criminal case involved allegations of domestic violence or domestic abuse.  Expungement petitions involving such offenses will always be viewed critically by the applicable District Attorney Office because, among other reasons, parties will often remain in abusive relationships; the Chester County District Attorney's Office is no exception.  Because a complainant may pursue criminal charges against a partner only to no longer pursue such charges before the defendant's case is decided on the merits, District Attorney Offices generally prefer to maintain the criminal records of such alleged incidents so that they can take action as they deem appropriate against a defendant when applicable.

In Robert's case, my specific concern was that the Chester County District Attorney's Office may object because: 1) the case involved allegations of domestic violence and domestic abuse; and 2) although the Chester County District Attorney's Office withdrew the misdemeanor charges against him and Robert instead plead guilty to the two summary offenses.

What is the "bargained-for-exchange" argument that Pennsylvania District Attorney Offices will try to use to defeat an expungment petition?

In such instances, the applicable District Attorney's Office (known as the "Commonwealth" in court proceedings) may argue that, pursuant to a plea agreement, the petitioner received the “benefit-of-the-bargain” at the time of the guilty plea and that the lesser, withdrawn and/or "nolle-prossed" charges should not be expunged. ("Nolle-prossed" is a Latin phrase meaning “will no longer prosecute” or a variation on the same. It amounts to a dismissal of charges by the prosecution.)  For two reasons, this argument generally has no merit.

First, if the Commonwealth has such a “plea agreement,” it should present such to the Court presiding over the expungement petition and side-step best guesses. To avoid supposition, the Commonwealth must support its position with the evidence it has within its possession that: (1) a plea agreement existed; and (2) that the plea agreement expressly includes that the withdrawn and/or nolle prossed charges were withdrawn and/or nolle prossed, not for lack of evidence, but as part of the "bargained-for exchange."

Without such evidence that specifically lists the above details, the Court presiding over the expungement petition and the Commonwealth are bound by the governing statutes and common law. “The expungement continuum 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 J.T., D.M., P.E.S. and 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 (such as Wexler ), and to (c) conviction records, where there is no right of expungement except by statutory authorization in limited circumstances.” Com. v. Charnik, 921 A.2d 1214, 1220 (Pa. Super. Ct. 2007).

What factors will the Court consider when deciding whether to grant or deny an expungement?

Under facts such as Robert's case (and many others that I have successfully resolved throughout Pennsylvania), the Wexler factors govern. 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.

Practice Tip: An additional matter that must be considered before a contested expungement hearing takes place is when the Affidavit of Probable Cause related to the underlying criminal case is incorporated at the time the case is disposed [or at any time for that matter].  The Commonwealth may argue that it sustained its burden of proof regarding the withdrawn or nol prossed charges because of the aforementioned incorporation of the Affidavit at the time the case was disposed.  In other words, the Commonwealth may argue that although the case did not go to trial, and therefore, the Commonwealth did not bear its burden of proof beyond a reasonable doubt at trial, the Commonwealth nonetheless bore its burden of proof because the Affidavit of Probable Cause was incorporated at the time the case was disposed.  If this in fact took place at the time the case was disposed (or at any time for that matter), it may be difficult, if not impossible to exclude the Affidavit.  Nonetheless, it would generally be suggested to try to have the Affidavit excluded if at all possible.

Can the District Attorney's Office be contacted in advance to try to get their agreement to an expungement petition?

Understanding the strong possibility that the Chester County District Attorney's Office may object to the expungement petition, I contacted the assigned prosecutor who was handling the expungement case to advocate on Robert's behalf.  With my prospective strategy in mind, and understanding that Robert's criminal record was severely hindering his career in the medical field as a Ph.D.educated pharmacist, I forwarded extensive documentation to the assigned prosecutor that had previously compiled in an effort to put Robert in the most positive light despite the previous allegations against him; documentation included character letters on Robert's behalf from concerned parties in his life, documentation as to his professional accomplishments and education, and additional supporting documentation.

The assigned prosecutor indicated that my efforts on Robert's behalf were noted and that a decision would be made regarding the Office's position.  (If the assigned prosecutor was not receptive, and if the Chester County District Attorney's Office ultimately objected if other prospective efforts did not meet with success, a contested hearing before a Court of Common Pleas judge would be required where testimony, evidence, and argument would be required as to why we believe the expungement petition should be granted; whereas the Chester County District Attorney's Office would present the same as to why it believes the expungement petition should be denied.)

Robert and I would shortly thereafter receive the good news that the Chester County District Attorney's Office consented to our expungement petition.  Knowing that I was able to help Robert clear his criminal record and his good name and knowing that Robert would be able to start working towards his professional goals made me proud.  I know it is not easy when life presents challenges, but I am always pleased when I can help a client turn their life around.

Pennsylvania Expungement Attorney | Pennsylvania Lawyer to Clear Criminal Record

If you or a loved one is trying to clear a criminal record in Pennsylvania, contact attorney Joseph D. Lento today.