COMMONWEALTH v. SCHELL (2013)

Timothy Schell (Appellant) appeals from the April 9, 2012, order of the Court of Common Pleas of Berks County (trial court), which denied Appellant's petition for contempt and determined that the Pennsylvania State Police (PSP) did not engage in contempt when it retained investigative information relating to Appellant. We affirm .¹

On July 2, 2007, Appellant, who was then a corporal with the PSP, was arrested and charged with corruption of minors, 18 Pa.C.S. § 6301(a)(1), indecent assault, 18 Pa.C.S. § 3126(a)(8), and unlawful contact with minors, 18 Pa.C.S. § 6318(a)(1). Two charges were subsequently dropped, and only the indecent assault charge proceeded to trial.² The charges arose following an incident on January 5, 2007, between Appellant, who was then 37 years old, and a 15–year–old girl. After a bench trial conducted on February 21, 2008, the trial court found Appellant not guilty of indecent assault.

Following the trial, Appellant filed a petition to expunge the records related to the charges. On June 27, 2008, the trial court issued two orders, ordering the expungement of records with respect to the charges of corruption of minors, indecent assault, unlawful contact with a minor, unlawful use of a computer, stalking, and harassment. Both orders state:

The specific charges as appearing in the Complaint ․ consisting of identifiable descriptions, dates and notations of the arrest[ ] in indictments, informations, or other formal criminal charges and any dispositions arising therefrom against the above-named Defendant, are hereby ordered RETRIEVED, EXPUNGED AND DESTROYED․

Records to be destroyed are to include, but not to be limited to, docket entries, fingerprints and photographs, including any and all records transmitted by any person, entity, or agency to the District Attorney's Office and the Pennsylvania State Police. In addition, any agency not so named herein which has received notification of this expungement shall expunge any and all entries in its possession pertaining to this case and shall notify other entities, agencies or persons that they may come in contact with to do likewise. It is the intent of the Order that any and all records pertaining to this case shall be fully expunged and destroyed by any entity, agency or person who has received the same, with the exception of any records not permitted to be expunged under 18 Pa.C.S.[ ] Section 9122(e), which shall be sealed in their entirety.

(R.R. at P1–P4) (emphasis added).

Following the issuance of the expungement orders, Appellant filed a civil lawsuit against the PSP. In the course of discovery for that lawsuit, Appellant determined that the PSP possessed records that Appellant believed were subject to the expungement orders.

Appellant filed a petition for contempt against the PSP with the trial court alleging:

8. In the course of discovery in the civil action, [Appellant] determined that the [PSP][was] still in possession of all the police reports and documents in this matter. Pursuant to testimony provided by the two lead investigators in this matter, no expungement order had ever been transmitted to them.

* * * *

13. Pursuant to 18 Pa.C.S.[ ][§ ]9122(e) certain records enumerated in 18 Pa.C.S.[ ][§ ]9104(a) are not subject to expunction. None of the records at issue are within the scope of [§ ]9104(a).

(R.R. at P11–P12.)

On February 29, 2012, the trial court conducted a hearing, at which time counsel for Appellant and the PSP engaged in an off-the-record discussion in chambers. (N.T., 2/29/12, at 2.) Thereafter, the trial court announced on the record that the case involved a legal issue and that testimony was not necessary. (Id. at 2–3.) In March 2012, both parties filed briefs with the trial court, which issued a decision on April 9, 2012, denying the petition for contempt. This appeal followed, wherein Appellant argues that the trial court erred in concluding that the PSP was not in violation of the trial court's expungement orders when it failed to destroy investigative information.

A trial court's decision denying a petition for civil contempt will be reversed on appeal only upon a showing that the court misapplied the law or abused its discretion. Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super.2009). “To sustain a finding of civil contempt, the complainant must prove certain distinct elements: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor's violation was volitional; and (3) that the contemnor acted with wrongful intent.” Lachat v. Hinchliffe, 769 A.2d 481, 489 (Pa.Super.2001).

In this case, the trial court determined that in accordance with Doe v. Zappala, 987 A.2d 190 (Pa.Cmwlth.2009), investigative information was outside the scope of the expungement orders. Moreover, the trial court determined that the PSP did not act willfully or with wrongful intent in its decision to not expunge the investigative information.

In Doe, this court reviewed a trial court order that required expungement and destruction of records relating to homicide charges against Doe in connection with the death of James Waite in 2001. The Commonwealth maintained that Doe conspired with Michael Morgan in the death of Waite in 2001. A few days after Waite's death, Morgan was also found dead. A coroner ruled his death a homicide.

In 2002, a jury acquitted Doe of all charges in the Waite case. Thereafter, Doe filed a petition to expunge the records relating to his arrest and prosecution in the Waite case. The trial court issued an expungement order.

In 2007, the Commonwealth charged Doe in Morgan's death. Doe learned that the Commonwealth retained investigative information from the Waite case that it intended to use against him in the Morgan homicide and sought an injunction. The trial court denied Doe's request, and Doe appealed to this court.

On appeal, this court observed that the expungement order required “the expungement and destruction of ‘the official and unofficial arrest, expungement and other documents pertaining to the arrest or prosecution’ “ of Doe relating to his homicide charges. Doe, 987 A.2d at 196 (citation omitted). Although the order did not reference the Criminal History Record Information Act (CHRIA),³ this court interpreted the expungement order “as requiring expungement consistent with the CHRIA.” Id.

This court observed that in accordance with the CHRIA, the PSP stores criminal history record information in the central repository. Id. at 194; see also 18 Pa.C.S. § 9106. The CHRIA defines “criminal history record information” as:

Information collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, informations or other formal criminal charges and any dispositions arising therefrom. The term does not include [1] intelligence information, [2] investigative information or [3] treatment information, including medical and psychological information, or [4] information and records specified in section 9104 (relating to scope).

18 Pa.C.S. § 9102. “Investigative information” is defined as “[i]nformation assembled as a result of the performance of any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing and may include modus operandi information.” Id.

This court distinguished criminal history record information and investigative information and noted “ ‘that the former arises from the initiation of a criminal proceeding, i.e., an arrest, whereas the latter is composed of information assembled as a result of the performance of an inquiry into a crime that is still under investigation.’ “ Doe, 987 A.2d at 195 (quoting Department of The Auditor General v. Pennsylvania State Police, 844 A.2d 78, 82 (Pa.Cmwlth.2004)). This court observed that the transformation from investigative information to expungeable criminal history record information only applies to identifiable descriptions, dates and notations of arrest, criminal charges and dispositions. Doe, 987 A.2 d at 195.

Unlike Doe, the expungement orders here specifically reference the CHRIA. The expungement orders direct the expungement of “any and all records ․ with the exception of any records not permitted to be expunged under 18 Pa.C.S. [ ] Section 9122(e), which shall be sealed in their entirety.” (R.R. at P 11–P 12) (emphasis added). Section 9122(e) of the CHRIA, 18 Pa.C.S. § 9122(e), provides that “[p]ublic records listed in section 9104(a) (relating to scope) shall not be expunged.” The records identified in section 9104(a) of the CHRIA are as follows:

(a) General rule.—Except for the provisions of Subchapter B (relating to completeness and accuracy), Subchapter D (relating to security) and Subchapter F (relating to individual right of access and review), nothing in this chapter shall be construed to apply to:

(1) Original records of entry compiled chronologically, including, but not limited to, police blotters and press releases that contain criminal history record information and are disseminated contemporaneous with the incident.

(2) Any documents, records or indices prepared or maintained by or filed in any court of this Commonwealth, including but not limited to the minor judiciary.

(3) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons.

(4) Announcements of executive clemency.

18 Pa.C.S. § 9104(a) (footnotes omitted). The term “expunge” is defined in pertinent part as: “(1) To remove information so that there is no trace or indication that such information existed; (2) to eliminate all identifiers which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes․” 18 Pa.C.S. § 9102.

Unlike Doe, the expungement orders here specifically state that any and all records shall be expunged except those not permitted to be expunged under section 9122(e) of the CHRIA. Section 9122(e) of the CHRIA specifically excludes from expungement those records listed in section 9104 of the CHRIA. Although records under section 9104 do not, by definition, constitute criminal history record information, they are specifically excluded by the expungement orders. By definition, intelligence information, investigative information, and treatment information also do not constitute criminal history record information. Such records, however, were not specifically excluded from the trial court's expungement orders.

As previously stated, the expungement orders require that “any and all records pertaining to this case shall be fully expunged and destroyed․” (R.R. at P11–P12.) The only exception to the expungement orders are those records under section 9122(e) of the CHRIA, 18 Pa.C.S. § 9122(e). Thus, all other records, whether or not they are defined by the CHRIA as criminal record history information, must be expunged. Because investigative information is not exempt from the expungement orders, it is subject to expungement.

Nonetheless, we also observe that civil contempt requires a finding of wrongful intent on the part of the contemnor, which must be proved by a preponderance of the evidence. Lachat, 769 A.2d at 489. Moreover, “[t]o be punished for contempt, a party must not only have violated a court order, but that order must have been ‘definite, clear, and specific—leaving no doubt or uncertainty in the mind of the contemnor of the prohibited conduct.’ “ Id. at 488–89 (citation omitted).

In this case, the trial court stated that “[t]he decision of the PSP not to destroy the investigative reports followed the organization's established practice, which in turn is based on the PSP's understanding of the CHRIA and related case law.” (Trial Ct. Op. at 6.) The trial court concluded that the PSP acted in good faith in its effort to comply with the expungement orders and declined to find the PSP in contempt. (Id.)

Although the trial court determined that the PSP acted in good faith, we are unable to review that determination because no evidence or testimony exists on the record. We nonetheless find it unnecessary to remand. Because the trial court interpreted the expungement orders differently than this court, we conclude that the expungement orders were not “definite, clear and specific.” Lachat, 769 A.2d at 488–89 (emphasis omitted). As such, the PSP cannot be punished for contempt.

Accordingly, we affirm the trial court's order.

ORDER

AND NOW, this 15th day of May, 2013, we hereby affirm the April 9, 2012, order of the Court of Common Pleas of Berks County.

FOOTNOTES

1.  This opinion was reassigned to the authoring judge on January 24, 2013.

2.  Appellant was also charged on a separate occasion with unlawful use of a computer, stalking, and harassment. However, those charges did not proceed to trial.

3.  18 Pa.C.S. §§ 9101–9183.

MEMORANDUM OPINION BY Senior Judge FRIEDMAN.

Judge McGINLEY concurs in the result only.