Graham, T. v. Flippen, L.
Graham, T. v. Flippen, L.
Opinion
*86 Appellant, Terrence Graham, appeals pro se from the trial court's April 1, 2016 order denying his "Petition for Expungement" in three separate cases involving Protection from Abuse Act (PFA) 1 petitions filed by Appellee, Lynna Flippen, against Appellant (cases 2007-4767, 2008-9343, and 2010-1074), and one case involving a PFA petition filed by Appellant against Flippen (case 2007-8374). 2 After careful review, we reverse the orders in each of the above-docketed cases, and remand to the trial court with instructions.
The trial court summarized the facts underlying this appeal, as follows:
This matter involves four separate PFA petitions filed between [A]ppellant and [A]ppellee, Lynna Flippen, now deceased. These actions chronicle a horrific history of domestic violence between the parties, which culminated in the murder of Lynna Flippen and her acquaintance, Earnest Yarbrough, on May 13, 2010. Appellant is currently serving two life sentences [of incarceration] after having been convicted of their murders.
Three of the PFA petitions in question were filed by the deceased[, Flippen,] against [A]ppellant, her former paramour and father of her child. 1 The fourth petition was filed by [A]ppellant as plaintiff against ... [Flippen]. 2
1 See docket numbers: [ ]2007-4767 (650 WDA 2016), [ ]2008-9343 (651 WDA 2016) and [ ]2010-1074 (652 WDA 2016).
2 See docket number: [ ]2007-8347 (649 WDA 2016).
On August 17, 2007, upon [A]ppellee's motion to withdraw or discontinue the action, the temporary PFA against [A]ppellant was dismissed at docket number [ ]2007-4767. On October 31, 2008, upon [Flippen's] repeated failure to appear, the temporary PFA against [A]ppellant at docket number [ ]2008-9343 was dismissed. On February 11, 2010, upon [Flippen's] agreement to withdraw her request for a continuance, the temporary PFA against [A]ppellant at docket number [ ]2010-1074 was dismissed.
The PFA petition filed by [A]ppellant as plaintiff and [Flippen] as defendant at docket number [ ]2007-8347 was denied a temporary protective order, and a final order was entered after a hearing on October 26, 2007, denying [A]ppellant's petition.
On June 14, 2011, [A]ppellant was found guilty after a trial by jury, of the first[-]degree murders of ... Flippen and Earnest Yarbrough. Appellant was also found guilty of abuse of [a] corpse and tampering with evidence. On July 26, 2011, Judge Paul Pozonsky sentenced [A]ppellant to two life sentences of incarceration. The guilty verdict and judgment of sentence [were] affirmed by the Superior Court on February 15, 2013. [ Commonwealth v. Graham ,68 A.3d 364 (Pa. Super. 2013).] The petition for review was denied by the Supreme Court on August 23, 2013. [ Commonwealth v. Graham ,621 Pa. 664 ,74 A.3d 125 (2013) ].
On March 30, 2016, [A]ppellant filed a Petition for Expungement of Protection From Abuse ("PFA") Records on all *87 four of the PFA docket numbers.... On [April 1], 2016, the trial court entered an order denying expungement of these PFA records.
Trial Court Opinion (TCO), 6/20/17, at 1-3 (some footnotes omitted).
Appellant filed timely, pro se notices of appeal in each of his four PFA cases. He also timely filed identical Pa.R.A.P. 1925(b) statements in each case. On June 20, 2017, the trial court filed a joint Rule 1925(a) opinion. Herein, Appellant raises three issues for our review:
I. Whether the PFA court erred by failing to address whether Appellant's PFA [ ] records meet the expungement criteria set forth by the [Pennsylvania] Supreme Court?
II. Whether the PFA court abused its discretion by denying expungement which is contrary to the expungement standard set by the [Pennsylvania] Supreme Court?
III. Whether the PFA court erred by denying Appellant a hearing in which he would have been able to present facts and evidence to support expunction as the proper remedy?
Appellant's Brief at 4 (citations and unnecessary capitalization omitted).
Appellant's three issues are interrelated and, thus, we will address them together. Essentially, Appellant contends that the trial court erred by denying his petition to expunge his four PFA cases, as he is entitled to expungement of those records as a matter of law under our Supreme Court's decision in
Carlacci v. Mazaleski
,
We begin by discussing the cases on which Appellant relies. First, in
Carlacci
, a temporary PFA order was issued against Carlacci; however, that order was ultimately ordered null and void, as per a stipulation entered by the parties.
Carlacci
,
After
Carlacci
, this Court decided
Charnik
. There, a final PFA order was entered against Charnik following a hearing. However, the plaintiff ultimately sought, and was granted, leave to withdraw that final PFA order. Thereafter, Charnik petitioned for expungement of the PFA record. In affirming the trial court's denial of Charnik's petition, we initially reiterated
Carlacci's
holding that "when a PFA[ ] petition filed against a PFA[ ] defendant has been dismissed by court order, ... or the PFA[ ] proceedings never evolve beyond the temporary order stage, ... expungement is proper
as a matter of law
."
Charnik
,
Applying Carlacci and Charnik to the present case, it is clear that three of Appellant's PFA cases-2007-4767, 2008-9343, and 2010-1074-fall under prong (a) on the 'expungement continuum,' and warrant expungement as a matter of law. In those three cases, only temporary PFA orders were entered against Appellant, and each of those orders were ultimately dismissed before a hearing was held, at which Flippen would have had to prove her allegations of abuse by a preponderance of the evidence. Therefore, the records in those cases contain only bald, unproven allegations of abuse, to which Appellant is entitled to expungement as a matter of law.
In regard to Appellant's PFA record in case 2007-8374, the issue is not as clear. First, it is unusual that Appellant is seeking to expunge a record that he himself initiated by filing a PFA petition against Flippen. Additionally, a hearing was held in that case, and a final order was entered. However, the final order
denied
Appellant's request for PFA protection against Flippen. He was also denied a temporary PFA order against her. Thus, it is clear that the PFA allegations were never proven in case 2007-8374. Consequently, that case appears to also fall within prong (a) of the 'expungement continuum,' thereby warranting expungement as a matter of law.
See
Charnik
,
Next, we briefly discuss the trial court's attempt to distinguish Appellant's PFA cases from Carlacci , and its rationale for deciding that his expungement petitions were properly denied under Charnik . First, in distinguishing Carlacci , the court reasoned:
Here, unlike Carlacci , the PFA records which [Appellant] seeks to expunge were admitted into evidence during [A]ppellant's criminal homicide trial held on June 14, 2011. At the conclusion of the trial by jury, [A]ppellant was found guilty of first[-]degree murder for the deaths of [A]ppellee Lynna Flippen, the plaintiff on three of the PFAs in question, and the defendant on the fourth, and her acquaintance[,] Earnest Yarbrough. Thus, applying the [
*89 Commonwealth v. ] Wexler [,494 Pa. 325 ,431 A.2d 877 (1981),] balancing test, [ 3 ] the trial court concluded that there are legitimate reasons for maintaining the records, namely that the expungement of the temporary PFA records essentially would be tantamount to destruction of evidence used in [A]ppellant's murder trial.
TCO at 5.
The court's rationale is unconvincing. Initially, we have explicitly declared that it is improper to apply the
Wexler
balancing test where, as in this case, expungement is proper as a matter of law.
See
Charnik
,
Second, the trial court found that our decision in Charnik supports its conclusion that expungement is not warranted in Appellant's case. The court reasoned:
In Charnik , the Superior Court denied appellant Theodore Charnik's PFA expungement request on grounds that "it would be inappropriate, as well as fruitless, to expunge the PFA record when the criminal record would indicate indirect criminal contempt convictions stemming from violations of a PFA order." ... Charnik , 921 A.2d [at] 1221.... Likewise, the trial court found that it would be inappropriate and fruitless in the instant case to expunge the temporary PFA records when [Appellant] was subsequently convicted of murdering the woman who was seeking protection under the PFAs, especially given that the temporary PFA records were used as evidence during [A]ppellant's murder trial.
TCO at 6.
The trial court misconstrues our holding in
Charnik
, which was that Charnik was "not entitled to seek expungement of his PFA record[,]"
as it was "closer to a conviction record rather than a non-conviction record.
"
Charnik
,
We note that the facts of this case illustrate a typical sequence in an abusive relationship; the abuse, the remorse, the forgiveness, and the repetition of that cycle. Absent extraordinary cause, allowing a hearing to clear a record of abuse after a final order simply because the victim decided to forgive or "withdraw," would not only draft the judiciary into the psychological struggle, but would overwhelm its already limited resources. The fact remains that a final PFA order was entered after notice and hearing , and, in addition, there were two contempts of that order that resulted in convictions, which remain on Charnik's *90 record. As the trial court indicated, it would be inappropriate, as well as fruitless, to expunge the PFA record when the criminal record would indicate indirect criminal contempt convictions stemming from violation of a PFA order.
For all of these reasons, we reverse the trial court's orders denying Appellant's petitions for expungement filed in each of his four underlying PFA cases. We remand this case to the trial court to enter an order expunging the dockets related to the PFA petitions filed in each of Appellant's four cases.
Order in cases 2007-4767, 2008-9343, 2010-1074, and 2007-8374 reversed. Cases remanded with instructions. Jurisdiction relinquished.
23 Pa.C.S. §§ 6101 -6122.
Appellant filed a notice of appeal in each of his four underlying PFA cases, and then filed with this Court a petition to consolidate those appeals. We granted Appellant's petition and consolidated his appeals by per curiam order entered May 23, 2016.
In
Wexler
, our Supreme Court declared that in the case of a request to expunge a criminal arrest record, the court "must balance the individual's right to be free from the harm attendant to the maintenance of the arrest record against the Commonwealth's interest in preserving such records."
Wexler
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.