J-S12020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAELENE LAFAYE WEAVER

Appellant No. 1450 MDA 2016

Appeal from the Order Entered August 5, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0002795-2008

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED MARCH 15, 2017

Jaelene Lafaye Weaver appeals from the order of the trial court 

entered on August 5, 2016, denying her petition for expungement. On 

appeal, Weaver claims the trial court erred by (1) denying the expungement 

petition as to criminal charges that were “withdrawn,” without providing a 

hearing, and (2) denying the expungement petition as to a criminal charge 

that was “changed,” without providing a hearing. See Weaver’s Brief at 3. 

Based upon the following, we affirm in part and vacate in part, and remand 

for further proceedings consistent with this memorandum.

This appeal has its genesis in an incident that occurred on March 26, 

2008, when Pennsylvania State Police were dispatched to the scene of an 

automobile accident involving Weaver. Weaver was initially charged with:

Count 1 – 75 Pa.C.S. § 3802(a)(1) – Driving Under the Influence 

(DUI): General Impairment (Misdemeanor); 
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Count 2 – 75 Pa.C.S. § 3802(c) – DUI: Highest Rate of Alcohol 

(BAC .16+) (Misdemeanor); 

Count 3 – 75 Pa.C.S. § 3309(1) – Driving on Roadways Laned 

for Traffic (Summary); 

Count 4 – 75 Pa.C.S. § 3361 – Driving Vehicle at Safe Speed 

(Summary);

Count 5 – 75 Pa.C.S. § 3745(a) – Accidents Involving Damage to 

Unattended Vehicle or Property (Summary);

Count 6 – 75 Pa.C.S. § 3746(a)(2) – Failure to Notify Police of 

Accident/Damage to Vehicle (Summary); and

Count 7 – 75 Pa.C.S. § 3714 – Careless Driving (Summary). 

See Criminal Complaint, 4/14/2008. The Criminal Complaint further reflects 

that the charges at Counts 4, 5, and 7, are crossed out by a diagonal line 

with the initialed, undated notation “withdrawn.”1 Id.

The Information, filed July 16, 2008, does not include the three 

“withdrawn” summary charges, and reflects the DUI: Highest Rate of Alcohol 

charge replaced with the charge graded as a misdemeanor of the first 

degree, for a second offense. Specifically, the Information reflects the 

following charges:

Count 1 – 75 Pa.C.S. § 3802(c) – DUI: Highest Amount of 

Alcohol (Misdemeanor 1)(Second Offense);

Count 2 – 75 Pa.C.S. § 3802(a)(1) – DUI: General Impairment 

(Misdemeanor);

____________________________________________

1 The initials appear to be the initials of the charging Pennsylvania State 

trooper.
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Count 3 – 75 Pa.C.S. § 3309(1) – Driving on Roadways Laned 

for Traffic (Summary); and

Count 4 – 75 Pa.C.S. § 3746(a)(2) – Failure to Notify Police of 

Accident/Damage to Vehicle (Summary). 

See Information, 7/16/2008. 

On December 1, 2008, pursuant to a negotiated plea agreement, 

Weaver pleaded guilty to all charges set forth in the Information. The trial 

court sentenced Weaver on Count 1 to five years’ County Intermediate 

Punishment with additional DUI-related conditions and fines, Count 2 

“merged” with Count 1, and no sentence was imposed on the two remaining 

counts involving summary offenses.2 

On July 7, 2016, Weaver filed a Petition for Order Expunging Criminal 

Charges. In her petition, Weaver sought expungement of the summary 

charges that had been “withdrawn,” and the DUI: Highest Rate charge that 

had been changed to DUI: Highest Rate charge — second offense. The trial 

court denied Weaver’s petition by order entered August 5, 2016. This timely 

appeal followed.3

It is well settled that “[t]he decision to grant or deny a petition to 

expunge rests with the sound discretion of the trial court, and we review 

____________________________________________

2 Weaver’s supervision was later modified by the trial court’s order to 

unsupervised, so that Weaver could attend college out of state.

3 Weaver timely complied with the trial court’s order to file a concise 

statement of errors pursuant to Pa.R.A.P. 1925(b). 
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that court's decision for abuse of discretion.” Commonwealth v. Moto, 23 

A.3d 989, 993 (Pa. 2011). 

If the defendant is convicted of a crime, he is not permitted to 

expunge his convictions except under the extremely limited circumstances 

permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244 

(Pa. Super. 1999), citing 18 Pa.C.S. § 9122.4 At the opposite extreme, our 

courts recognize that a defendant is generally entitled to automatic 

expunction of charges for which he or she is acquitted. See 

Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009). However, 

cases pose more difficulty where a defendant is not convicted or acquitted 

and another disposition has been entered. In such cases, courts must use a 

balancing test:

When a prosecution has been terminated without conviction or 

acquittal, for reasons such as nolle prosse of the charges or the 

defendant's successful completion of an accelerated 

rehabilitative disposition program (“ARD”), then this Court has 

required the trial court to "balance the individual’s right to be 

free from the harm attendant to maintenance of the arrest 

record against the Commonwealth’s interest in preserving such 

records. Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 

877, 879 (Pa. 1981); [Commonwealth v.] D.M., [548 Pa. 131, 

695 A.2d 770, 772 (1977)] (“We reiterate the authority of 

Wexler and the balancing test approved therein as the means of 

deciding petitions to expunge the records of all arrests which are 

terminated without convictions except in cases of acquittals.”).

____________________________________________

4 18 Pa.C.S. § 9122(a) addresses mandatory expungement, and 18 Pa.C.S. 

§ 9122(b) addresses discretionary expungement.
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To aid courts in applying the balancing test for expungement, we 

also adopted in Wexler the following non-exhaustive list of 

factors that the court should consider:

These factors include [1] the strength of the 

Commonwealth’s case against the petitioner, [2] the 

reasons the Commonwealth gives for wishing to retain 

the records, [3] the petitioner’s age, criminal record, and 

employment history, [4] the length of time that has 

elapsed between the arrest and the petition to expunge,

and [5] the specific adverse consequences the petitioner 

may endure should expunction be denied.

Wexler, supra at 879 (citation omitted).

We have emphasized that in applying the balancing test and 

considering the above factors, the court must analyze the

particular, specific facts of the case before it. Id. at 880-81. 

The mere assertion by the Commonwealth of a general interest 

in maintain accurate records of those accused of a crime does 

not outweigh an individual’s specific, substantial interest in 

clearing his or her record. Id. at 881-82.

Moto, supra, 23 A.3d at 993-994.

Here, the trial court, in its Pa.R.A.P. 1925(a) opinion, explained that it 

denied Weaver’s petition on the basis of Commonwealth v. Lutz, 788 A.2d 

993 (Pa. Super. 2001). The trial court reasoned:

[U]nlike charges for which the defendant has been acquitted or 

nolle prossed, charges withdrawn pursuant to plea agreements 

are not subject to the Wexler test, and require no such hearing. 

See Com[monwealth] v. Lutz, 788 A.2d 993, 1001.

In Lutz, the defendant/appellant pushed the victim to the 

ground and stabbed the victim, causing “serious knife wounds to 

his stomach and liver.” Id. at 995. Appellant was charged with 

“one count of criminal attempt to commit homicide, two counts 

of aggravated assault, one count of simple assault, one count of 

recklessly endangering another person, and one count of 

possessing an instrument of crime.” Id. Appellant was “bound 

... for trial on all charges.” Id. Before the trial however, 
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Appellant chose to enter a guilty plea pursuant to a plea bargain 

negotiated with the Commonwealth; as the trial court reasoned, 

“the consideration received by the parties was that in return for 

Appellant’s guilty plea to the Aggravated [A]ssault charge, the 

Commonwealth would move to dismiss the remaining charges.” 

Id. at 1000. In affirming the trial court’s holding that 

expungement would have been inappropriate, the Superior Court 

reasoned that “[i]n the absence of an agreement as to 

expungement, [an] [a]ppellant stands to receive more than he 

bargained for in the plea agreement if the dismissed charges are 

later expunged.”8

_______________________________________________________

8 The Superior Court also noted that this was 

“particularly” the case “where Appellant [had] already 

been bound over for trial on all charges, the 

Commonwealth [was] fully prepared to proceed against 

Appellant on all charges at trial, and Appellant admit[ted] 

to facts that could essentially constitute culpability for the 

dismissed charges.” Com[monwealth] v. Lutz, 788 

A.2d 993, 1001 (Pa. Super. 2001).

______________________________________

... [H]ere, as in Lutz, [Weaver] pled guilty pursuant to a plea 

agreement; as consideration for that agreement, certain charges 

were “withdrawn,” “merged,” or “negotiated with no further 

penalty.” Further, here, as in Lutz, there was also no 

agreement that these charges would be expunged under the 

negotiated plea agreement. Moreover, as in Lutz, [Weaver] 

essentially admitted to the other offenses when she entered the 

plea, as the charges for which she admitted guilt met the same 

set of facts as the charges the Commonwealth agreed to 

“merge,” “negotiate” or “withdraw.”9 Finally, the “merged” and

________________________________________________________

9 The exception being the charge of DUI: Highest Rate of 

Alcohol, 1st Offense, which the docket notes was changed 

to reflect that it was [Weaver’s] 2nd offense.

_______________________________________

“negotiated” offenses in this case are even more essential to the 

agreement than the offenses in Lutz, as their dispositions 

implicate [Weaver] more than the “dismissed charges in that 
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case. It so follows that if the Court expunged the charges in this 

case, especially those that were “merged” or “negotiated,” 

[Weaver] would be getting even more than she “bargained for” 

than the [a]ppellant sought in Lutz. Accordingly, based on the 

quasi-contractual nature of the plea agreement, I believe I 

reasonably concluded that [Weaver] was not entitled to 

expungement in this case.

Trial Court Opinion, 10/14/2016, at 3–5 (footnote omitted). Based on our 

review, we conclude the certified record is inadequate to resolve the issue 

presented in this case regarding the “withdrawn” charges.

In Lutz, “the Commonwealth agreed to dismiss, as part of a 

negotiated plea bargain, certain charges in exchange for Appellant’s guilty 

plea to the remaining charge.” Id. at 1001. As noted by the trial court, 

Lutz holds that denial of expungement of charges dismissed as part of a 

negotiated guilty plea is appropriate, “particularly where Appellant has 

already been bound over for trial on all charges, the Commonwealth is fully 

prepared to proceed against Appellant on all charges at trial, and Appellant 

admits to facts that could essentially constitute culpability for the dismissed 

charges.” Id.

Here, unlike Lutz, at the preliminary hearing,5the charges against 

Weaver for Driving Vehicle at Safe Speed, Accidents Involving Damage to 

____________________________________________

5 The Commonwealth acknowledges, “The summary offenses of Driving at 

Safe Speed, Careless Driving and Accidents Involving [sic] were withdrawn 

at the time of the preliminary hearing.” Commonwealth’s Answer to 

[Weaver’s] Motion for Order Dismissing Criminal Charges and to Expunge 

Criminal Record, 8/2/2016, at 1 n.1.
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Unattended Vehicle or Property, and Careless Driving, were withdrawn, and 

the charge for DUI: Highest Rate — first offense was replaced. The 

Information, filed on July 16, 2008, did not include the aforementioned 

charges. Weaver entered her guilty plea to the charges in the Information 

almost five months later, on December 1, 2008, and there is no mention of 

the withdrawn charges either in the guilty plea slip or in the written guilty 

plea colloquy. As such, also unlike Lutz, this case does not reflect an 

explicit agreement indicating the withdrawn charges were part of the plea 

agreement.6 Here, the docket ambivalently reflects that the charges for 

Driving Vehicle at Safe Speed, Accidents Involving Damage to Unattended 

Vehicles or Property, and Careless Driving were “withdrawn” on 

“06/24/2008,” and “withdrawn” on “12/01/2008.” However, the certified 

____________________________________________

6

In its brief, the Commonwealth maintains:

The charges that were withdrawn at the preliminary hearing 

could have been reinstated by the Commonwealth at any time 

prior to [Weaver’s] plea. Pa.R.Crim.P. 544. The 

Commonwealth, however, did not reinstate those charges, but 

allowed them to remain withdrawn when it drafted the plea 

agreement to the remaining charges. Additionally, the 

Commonwealth amended the DUI-Highest Rate count to reflect 

the proper offense number and grading. Finally, the plea 

agreement entered into by the Commonwealth and [Weaver] 

contained no provision for the expungement of any charges at a 

later date. As such, to grant [Weaver’s] petition would provide 

[Weaver] “more than [she] bargained for in the plea agreement 

....” Lutz. 

Commonwealth’s Brief, at 6. 
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record contains no transcripts of the guilty plea and sentencing hearings that 

would definitively resolve this issue. 

Under these circumstances, we are guided by Commonwealth v. 

Hanna, 964 A.2d 923 (Pa. Super. 2009). In Hanna, this Court addressed 

the trial court’s denial of a petition for expungement where the trial court 

had relied on Lutz to support its decision. This Court found “the current 

state of the record” was “inadequate” to resolve whether the charges at 

issue were subject to the plea agreement. Id. at 928. The Hanna Court 

held:

Lutz is arguably inconsistent with broad language from this 

Court and our Supreme Court, as well as the prevailing trend of 

our case law. Nevertheless, we are not free to ignore Lutz

outright, because it has not been overruled by this Court en banc

or by our Supreme Court. We also recognize that in any given 

case, there may be debate over the factual question of whether 

the parties entered into the type of “quasi-contractual” 

agreement described in Lutz. As noted above, this is such a 

case. In keeping with the spirit of the case law discussed above, 

we now further hold that the Commonwealth bears the burden of 

proving on remand with clear and convincing evidence that Lutz

applies. If the Commonwealth fails to carry that heavy burden, 

then the Wexler test will apply. We also urge the court to 

be mindful of the public policy considerations consistently 

articulated by our Supreme Court and this Court concerning the 

value of expungement to an individual. See [Commonwealth v. 

A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005).]. After the 

remand hearing, the court is free to issue a new order granting 

or denying expungement as to any or all of the charges in 

accordance with the principles set forth in this Opinion. 

Id., 964 A.2d at 928-29.
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Accordingly, applying Hanna to the instant case, we remand for an 

evidentiary hearing on the withdrawn charges, and if the trial court 

determines it is appropriate, a Wexler hearing. 

However, the DUI charge that was “changed” requires a different 

analysis. Weaver was originally charged with DUI: Highest Rate — first 

offense. This charge was then replaced with the charge for DUI: Highest 

Rate — second offense, to which Weaver pleaded guilty. Under these 

circumstances, we conclude no hearing is warranted for the DUI: Highest 

Rate — first offense charge that was amended to reflect the proper offense 

number and grading.

Order affirmed in part, and vacated in part. Case remanded for 

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2017