J. S35009/16

2016 PA Super 110

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KYLE RAINEY, : No. 1601 EDA 2015

:

 Appellant :

Appeal from the Order Entered May 18, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0708341-1994

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J. 

OPINION BY FORD ELLIOTT, P.J.E.: FILED MAY 25, 2016

Kyle Rainey appeals, pro se, from the order of May 18, 2015, denying 

his petition for expungement. We affirm.

In a prior memorandum affirming appellant’s judgment of sentence on 

direct appeal, this court set forth the history of this case as follows:

On June 1, 1994, appellant and three 

co-conspirators robbed a jewelry store. During the 

commission of the robbery, the gunman, 

Nathan Riley (Riley), shot and killed storeowner 

Sun Yoo Kang in front of his wife, Mahlee Kang. 

Officers of the Philadelphia Police Department 

interviewed Mrs. Kang and Al-Asim M. Abdul-Karim, 

a witness who was present outside the store in a 

parked automobile. Both individuals provided 

information regarding the identity of two males who 

had entered the store, another male who remained 

in a car parked in front of the store, and a fourth 

male who closed the store door after the two males 

entered the store.
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On June 17, 1994, Riley surrendered to the 

police and gave a statement, which was reduced to 

writing by the interviewing detective, Albert Maahs. 

Riley signed the statement. In his statement, Riley 

admitted that he had taken part in the robbery and 

had fired the shot that fatally wounded Mr. Kang.

On June 26, 1994, Mrs. Kang and 

Mr. Abdul-Karim positively identified appellant from a 

photo array as a participant in the events of June 1, 

1994. Two days later, after obtaining a search 

warrant, the police searched appellant’s home and 

found a .38 caliber weapon with bullet casings 

matching those bullets used in the robbery. Police 

also discovered a small gold-colored price tag which 

Mrs. Kang identified as a tag from her store with her 

handwriting on it. The police also searched the 

house of Sharon Bell, the girlfriend of Darrell Wallace 

(Wallace), another accomplice to the crime. Inside 

the house, the police found the same type of jewelry 

that Mrs. Kang described as stolen from the store.

The police arrested appellant and Wallace and 

charged them with a host of crimes stemming from 

the events of June 1, 1994. Prior to trial, appellant 

moved to sever his trial on the basis of antagonistic 

defenses. The trial court denied appellant’s motion. 

A jury trial commenced on May 12, 1995. Following 

the two-week trial, the jury convicted appellant of 

[one count of first degree murder, two counts of 

robbery, one count of aggravated assault, one count 

of recklessly endangering another person, one count 

of criminal conspiracy, one count of possessing 

instruments of crime, and one count of carrying 

firearms on public streets or public property.1] After 

the jury deadlocked during the penalty stage, the 

Honorable John J. Poserina imposed a mandatory 

term of life imprisonment.

Commonwealth v. Rainey, 704 A.2d 1121 (Pa.Super. 1997) (unpublished 

memorandum at 2-3), appeal denied, 723 A.2d 1024 (Pa. 1998). On 
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October 15, 1997, this court affirmed the judgment of sentence; and on 

May 26, 1998, the Pennsylvania Supreme Court denied allowance of appeal. 

Id.

In October 1998, appellant filed a timely petition under the 

Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, which was denied. This court affirmed on September 11, 2000. 

Commonwealth v. Rainey, 766 A.2d 891 (Pa.Super. 2000) (unpublished 

memorandum). Appellant did not file a petition for allowance of appeal with 

the Pennsylvania Supreme Court.

Subsequently, appellant timely filed a pro se petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of 

Pennsylvania. Appellant advanced six claims for relief, including a layered 

ineffectiveness claim that his trial and appellate counsel were ineffective for 

failing to challenge his first degree murder conviction on the ground that the 

evidence was insufficient to prove his shared intent to kill. This claim was 

raised previously on state PCRA review and found to be without merit.

The case was referred to a Magistrate Judge, who issued a Report and 

Recommendation concluding that appellant was entitled to habeas relief 

based on his layered ineffectiveness claim. Specifically, the Magistrate 

Judge concluded that (1) the evidence at trial was insufficient to establish a 

shared intent to kill, (2) appellant’s trial and appellate counsel rendered 

 

1 18 Pa.C.S.A. §§ 2502, 3701, 2702, 2705, 903, 907, & 6108, respectively.
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deficient performance in failing to raise the sufficiency claim; and (3) this 

deficient performance prejudiced appellant.

The District Court approved and adopted the Report and 

Recommendation in part, rejected it in part, denied the petition, and 

declined to issue a certificate of appealability. Specifically, the District Court 

held that appellant had properly exhausted his layered ineffectiveness claim, 

that there was insufficient evidence of appellant’s shared intent to kill, and 

that his counsel rendered deficient performance in failing to challenge the 

sufficiency of the evidence at trial or on direct appeal. With respect to 

prejudice, however, the District Court concluded that appellant suffered no 

prejudice because, although the evidence may not have been sufficient to 

sustain a first degree murder verdict, it was sufficient for a second degree 

felony murder conviction. Appellant was sentenced to life imprisonment on 

the first degree murder conviction, the same sentence he would have 

received had he been convicted of second degree murder.

The Third Circuit Court of Appeals granted appellant’s motion for a 

certificate of appealability as to the layered ineffectiveness of counsel claim, 

and affirmed the District Court’s denial of habeas relief. Rainey v. Varner, 

603 F.3d 189 (3rd Cir. 2010), cert. denied, 562 U.S. 1286 (2011). The 

Court of Appeals agreed that appellant had failed to satisfy the prejudice 

prong of the ineffectiveness test under Strickland v. Washington, 466 

U.S. 668 (1984), where the evidence was unquestionably sufficient to prove 
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second degree murder and he would have received the identical sentence of 

life imprisonment without parole:

[Appellant] was convicted of first degree murder, for 

which he is serving a life sentence. The jury also 

convicted [appellant] of robbery. Assuming that the 

evidence presented at trial was insufficient to 

establish a shared intent to kill, it was nonetheless 

sufficient to establish the elements of second degree 

felony murder. [Appellant] was convicted of 

robbery, and the evidence clearly established that a 

death occurred during that robbery, which is 

sufficient to prove second degree murder under 

Pennsylvania law. See 18 Pa. Cons.Stat. Ann. 

§ 2502(b) (“A criminal homicide constitutes murder 

of the second degree when it is committed while 

defendant was engaged as a principal or an 

accomplice in the perpetration of a felony.”). Under 

Pennsylvania law, “[a] person who has been 

convicted of murder of the second degree shall be 

sentenced to a term of life imprisonment.” 18 Pa. 

Cons.Stat. Ann. § 1102(b) (1995); accord Castle v. 

Pennsylvania Bd. of Probation & Parole, 123 

Pa.Cmwlth. 570, 554 A.2d 625, 627 (1989) (holding 

that a conviction for second degree murder carries a 

mandatory life sentence under Pennsylvania law). 

Accordingly, had [appellant] been retried and 

convicted of second degree murder, he would have 

received the same sentence.

Id. at 202 (emphasis in original). Relying on Clark v. Maggio, 737 F.2d 

471 (5th Cir. 1984) (no prejudice occurs if a petitioner was wrongfully 

convicted of an offense for which there was insufficient evidence but is 

serving the same sentence that he would have been serving had he been 

properly convicted of the offense for which there was sufficient evidence), 

the Court of Appeals held that appellant failed to establish prejudice, i.e., 

that there was a reasonable probability that, but for counsel’s unprofessional 
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errors, the result of the proceeding would have been different: “Here, the 

result of the proceeding--a life sentence--would have been the same had 

counsel challenged the sufficiency of the evidence. Accordingly, appellant 

cannot show that he was prejudiced and cannot prevail on his claim of 

ineffective assistance of counsel.” Rainey, 603 F.3d at 203. Since 

appellant could not prove that he suffered prejudice from counsel’s failure to 

challenge the sufficiency of the evidence, the Court of Appeals affirmed the 

District Court’s denial of appellant’s petition for habeas relief. Id.

On January 29, 2015, appellant filed a pro se petition for 

expungement, asserting that he is entitled to have his first degree murder 

conviction expunged due to the District Court’s determination that the 

evidence was insufficient to support the conviction. Following several 

hearings on the motion held on April 17, 2015, May 4, 2015, and May 18, 

2015, appellant’s petition was denied. This timely appeal followed. 

Appellant was not ordered to file a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(b); however, on November 10, 2015, 

the trial court filed a Rule 1925(a) opinion.

On appeal, appellant claims that the trial court abused its discretion in 

denying his petition for expungement when he was “acquitted” of first 

degree murder as a result of the federal habeas proceedings. (Appellant’s 
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brief at 4.)2 While this case presents an interesting procedural question, we 

determine that the trial court did not abuse its discretion in denying 

appellant’s petition for expungement of his first degree murder conviction.

“The decision to grant or deny a request for 

expungement of an arrest record lies in the sound 

discretion of the trial judge, who must balance the 

competing interests of the petitioner and the 

Commonwealth. We review the decision of the trial 

court for an abuse of discretion.” Commonwealth 

v. Waughtel, 999 A.2d 623, 624-25 (Pa.Super. 

2010) (quoting Commonwealth v. Hanna, 964 

A.2d 923, 925 (Pa.Super. 2009)). In Waughtel, we 

provided a comprehensive outline of the law 

applicable to expungement. Defendants in 

Pennsylvania have a due process right to petition for 

expungement that is not dependent upon statutory 

authority. Id. at 625; see Commonwealth v. 

Wexler, 494 Pa. 325, 431 A.2d 877, 879 (1981). 

Where a defendant is convicted of a crime, he is not 

entitled to expungement of that crime, except as 

outlined by 18 Pa.C.S. § 9122, which is an extensive 

statutory provision governing expungement. 

Waughtel, supra; Commonwealth v. Maxwell, 

737 A.2d 1243, 1244 (Pa.Super. 1999). “At the 

opposite extreme, if the defendant is acquitted, he is 

generally entitled to automatic expungement of the 

charges for which he was acquitted.” Waughtel, 

supra at 625 (citing Commonwealth v. D.M., 548 

Pa. 131, 695 A.2d 770 (1997)).

Commonwealth v. V.G., 9 A.3d 222, 223-224 (Pa.Super. 2010) (footnote 

omitted).

 

2 We note that a petition for expungement does not fall within the remedies 

afforded by the PCRA and does not constitute a PCRA petition. 

Consequently, appellant’s claim is not subject to the eligibility requirements 

and/or time constraints of the PCRA. Commonwealth v. Lutz, 788 A.2d 

993, 995 n.7 (Pa.Super. 2001).
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Recently, in Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014), 

after balancing the interests of the individual against the Commonwealth, 

our supreme court held that an inmate does not have the right to petition for 

expungement while incarcerated. The Wallace court found that, “The 

Commonwealth has a compelling interest in retaining the records [petitioner] 

seeks to expunge, as [petitioner] is currently incarcerated and these records 

may be needed for use in penalization if [petitioner] commits any offenses 

while in prison[.]” Id. at 321. The court also noted the practical difficulties 

of affording inmates the right to petition for expungement while still 

incarcerated, including the transportation of prisoners to attend hearings, 

“which would put a strain on already tight prison budgets and add to an 

already overburdened trial court system. Moreover, any time an inmate is 

transported out of the prison setting, there exist security concerns, 

especially when the inmate, like Petitioner, is considered a flight risk.” Id.

at 322. Although the Wallace court recognized the petitioner’s reputation 

as a protected privacy interest in this Commonwealth, the court found this 

factor was outweighed by other considerations, and there was nothing 

preventing the petitioner from petitioning for expungement once he was 

released from custody. Id. at 321.

In the instant case, appellant is currently incarcerated, serving a life 

sentence for murder. Therefore, he cannot petition for expungement. 

Wallace. Admittedly, Wallace did not address a situation where an 
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incarcerated inmate was actually acquitted of a crime. In Wallace, the 

petitioner sought destruction of fingerprints, photographs, and arrest records 

from past charges that had not resulted in convictions. Id. at 314. 

However, we disagree with appellant that he was “acquitted” of the first 

degree murder conviction. Appellant is correct that the federal District Court 

determined that the evidence was insufficient, as a matter of law, to sustain 

the conviction for first degree murder. However, the District Court refused 

to grant appellant habeas relief where he failed to establish prejudice, i.e., 

that the outcome of the proceedings would have been different. The Court 

of Appeals affirmed on the basis that appellant failed to meet the Strickland

test for prejudice. The Court of Appeals found that even assuming the 

evidence was insufficient to prove that appellant shared the specific intent to 

kill Mr. Kang, as required for a first degree murder conviction, it was 

unquestionably sufficient to prove second degree murder, which carried the 

same sentence. Therefore, appellant was not entitled to federal habeas 

relief. In no way can the Court of Appeals’ disposition of appellant’s habeas

petition be construed as a formal acquittal. Cf. Rambo v. Commissioner 

of Police, 447 A.2d 279 (Pa.Super. 1982) (petitioner was entitled to 

expungement where his conviction of drug possession was overturned on 

appeal for lack of evidence, and the record showed that he had a 

considerable interest in having his record expunged, including his 

employment situation and the need to support his family); Commonwealth 
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v. D.M., 695 A.2d 770 (Pa. 1997) (a petitioner is automatically entitled to 

expungement of his arrest record where a case is terminated by a trial and 

acquittal).

This is a rather unique situation procedurally because after the jury 

found appellant guilty of first degree murder, it did not consider lesser 

degrees of murder, including second degree murder. Therefore, expunging 

appellant’s first degree murder conviction would leave nothing on the record 

to show that he is serving a valid life sentence, which the federal courts 

have determined should not be disturbed. The evidence was sufficient to 

prove second degree murder, and since the jury did not consider lesser 

degrees of murder, double jeopardy principles would not prohibit appellant’s 

re-trial on second degree murder. Rainey, 603 F.3d at 202 (“Rainey has 

not identified any new argument or new evidence that he could have 

presented at a second trial such that he would not have been convicted of 

second degree murder.”). As the trial court observed,

it just seems like you have an automatic right to 

expungement, shouldn’t matter if you’re in custody, 

but there’s this wrinkle that what he really did 

commit was murder in the second degree according 

to that Court, and there’s no -- there’d be no 

indication of that on this record which is why I would 

probably feel constrained to deny your motion if 

there isn’t some other way of doing this. In other 

words, I don’t think we can, I don’t know I don’t 

think we can change the murder of first degree to 

murder of the second degree . . . .
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Notes of testimony, 4/17/15 at 7. In its Rule 1925(a) opinion, the trial court 

states, “even if the appellate courts rendered the functional equivalent of an 

acquittal, there was not and has never been a recording of guilt on second 

degree murder. Granting expungement under these circumstances would be 

wildly misleading and unfair.” (Trial court opinion, 11/10/15 at 3.) We 

agree with the trial court’s reasoning and find that the trial court did not 

abuse its discretion in denying appellant’s petition for expungement.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/25/2016