J-S73030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LORI DENISE HEFFNER

Appellant No. 958 MDA 2014

Appeal from the Order Entered May 8, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0001723-2011

BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED APRIL 07, 2015

Lori Denise Heffner appeals from the May 8, 2014 order denying her 

petition to expunge. We affirm. 

Due to events that occurred on March 23, 2011, Appellant was 

charged with two counts of felony retail theft, and one count each of 

receiving stolen property, false identification to law enforcement, and 

unsworn falsification to authorities. These charges were based upon the 

following allegations contained in the affidavit of probable cause attached to 

the criminal complaint. 

Loss prevention officer Jerome Mohler of Redner’s Warehouse Market 

(“Redner’s”), which was located on 1149 Berkshire Boulevard, Wyomissing, 

called police to the store. Wyomissing Police Officer Scott Schaeffer 
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responded, and Mr. Mohler reported the following. He had observed 

Appellant enter the store, place a box of Glad trash bags and two bottles of 

Burt’s Bee wash in her purse, and enter the public restroom. After spending 

twenty minutes there, Appellant exited the bathroom, walked past the cash 

registers, and exited the store without paying for the merchandise in her 

purse. Mr. Mohler and another employee apprehended Appellant and took 

her to the office, where they discovered the three stolen items in her 

handbag with the UPC stickers removed. 

When Officer Schaeffer arrived at the market, Appellant refused to 

provide her name and address but did offer a description of the vehicle that 

she drove to Redner’s. Officer Schaeffer found the vehicle in the store 

parking lot and discovered that it was owned by Michael Heffner. Using Mr. 

Heffner’s address, Officer Schaeffer learned that a woman named Lori D. 

Heffner resided with him. The driver’s license photograph of Lori D. Heffner 

matched Appellant, who denied that she was Lori D. Heffner and stated that 

her name was Lori Maxton. Appellant also gave a birthdate different from 

that listed for Lori D. Heffner. Appellant had a criminal record for “two prior 

convictions (1999 and 2005) for retail theft in Berks County.” Affidavit of 

Probable Cause, 4/27/11, at 1. 

After the present criminal charges were filed, there were various status 

conferences. Trial was scheduled on two separate occasions but the 

scheduling orders were vacated. A bench warrant was issued for Appellant’s 
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arrest on January 24, 2013, after she failed to appear at a January 22, 2013 

status hearing. The warrant was lifted, and on February 7, 2013, Appellant, 

not the Commonwealth, applied for a competency hearing. Although the 

motion for declaration of competency indicated that Appellant expected to 

regain competency in the near future, the court’s finding after a hearing on 

that motion was to the contrary. 

Specifically, the trial court concluded both that Appellant was 

incompetent and that her condition would not improve in the foreseeable 

future. The hearing and exhibits introduced at that proceeding are not 

contained in the record since the trial court sealed the record of the hearing 

as well as reports from a doctor. Hence, we are not able to ascertain the 

reasons for the trial court’s ruling. Based upon the trial court’s ruling, the 

inference is that the reports submitted by Appellant indicated that her 

mental competency would not be regained in the foreseeable future. The 

court dismissed the charges under 50 Pa.C.S. § 7403(d),1 which provides, in 

 

1 That statute states in its entirety:

 Whenever a person who has been charged with a crime has 

been determined to be incompetent to proceed, he shall not for 

that reason alone be denied pretrial release. Nor shall he in any 

event be detained on the criminal charge longer than the 

reasonable period of time necessary to determine whether there 

is a substantial probability that he will attain that capacity in the 

foreseeable future. If the court determines there is no such 

probability, it shall discharge the person. Otherwise, he may 

continue to be criminally detained so long as such probability 
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pertinent part, that if a person charged criminally is adjudicated incompetent 

and if the court ascertains that there is no “substantial probability that [the 

defendant] will attain [his mental] capacity in the foreseeable future,” then 

the court “shall discharge the person.” 

Appellant filed her expungement motion on February 25, 2014, only 

one year after she asked to be declared incompetent and obtained dismissal 

of the aforementioned criminal charges based upon a finding that there was 

no substantial probability that she would regain her capacity in the 

foreseeable future. In her petition, Appellant did not outline any 

employment history nor did she state whether, and to what extent, 

treatment had improved her mental health. The petition contains a bare 

allegation that retention of the record herein would “adversely affect future 

employment prospects and will prejudice [Appellant’s] standing in the 

community.” Petition to Expunge Criminal Record, 2/25/14, at 1. Appellant 

did not outline that she had applied for and been rejected for any specific job 

due to the record in this matter, and failed to provide proof of her criminal 

history.

The Commonwealth objected to the grant of the petition to expunge 

and noted that Appellant failed to attach a current copy of her criminal 

 

exists but in no event longer than the period of time specified in 

subsection (f).

50 P.S. § 7403(d). 
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record, as required by the rules of criminal procedure. It further outlined 

that its proof against Appellant had been exceptionally strong and that 

Appellant’s claimed harm was illusory due to the fact that she already had 

convictions for retail theft and fleeing and eluding police. 

The trial court issued an order requiring Appellant to file a copy of her 

criminal record. Appellant complied with that directive. She pled guilty to 

retail theft on June 9, 1999, and on March 30, 2002, she pled guilty to 

fleeing or attempting to elude a police officer, recklessly endangering 

another person, and driving while her license was suspended or revoked.

The trial court denied the expungement motion, and this appeal 

followed. Appellant raises the following contentions: “1. Did the trial court 

err in failing to hold a hearing on defendant's Petition for Expungement?” 

and “2. Did the trial court err in denying the Expungement Petition?” 

Appellant’s brief at (unnumbered page) 4. 

Appellant first contests the fact that she did not receive a hearing and 

notes that Pennsylvania law mandates that one be held on a petition to 

expunge. Herein, the trial court scheduled a hearing for April 15, 2014, and 

Appellant’s counsel opened by stating that he was not served with notice of 

the hearing date. The trial court ascertained that Appellant rather than her 

counsel received the notice in question. When asked what he wanted to do, 

counsel did not ask that the hearing be rescheduled nor did he indicate that 

he had evidence that he wanted to present. Instead, counsel responded 
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that he wanted the Commonwealth to review his brief. The court then asked 

if there were any expungement cases dealing specifically with dismissal of 

charges based upon a finding of incompetency, and counsel responded that 

he could not find any case law in that respect. The proceedings adjourned. 

We conclude that, under the circumstances, Appellant waived her right 

to a hearing. A hearing was duly scheduled on Appellant’s expungement 

request. At the designated time and place, Appellant’s counsel appeared. 

When asked specifically what he wanted to do about the fact that Appellant, 

rather than her counsel, received notice of the hearing, counsel did not ask 

for a continuance nor did he suggest that there was evidence to present in 

support of the expungement petition beyond that already outlined therein. 

Likewise, on appeal, Appellant does not delineate any proof she would 

present at a hearing if we remanded for one. Appellant’s failure to request 

another hearing on April 15, 2014, is fatal to her ability to contest the failure 

to conduct a hearing now on appeal. Pa.R.A.P. 302(a) (“Issues not raised in 

the lower court are waived and cannot be raised for the first time on 

appeal.”). 

Appellant next avers that the trial court erred in denying the 

expungement petition. Our Supreme Court recently reinforced the principles 

applicable to a defendant’s request for expungement in Commonwealth v. 

Wallace, 97 A.3d 310 (Pa. 2014). First, the Court reinforced that, “The 

decision to grant or deny a petition for expungement lies in the sound 
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discretion of the trial court, which must balance ‘the individual's right to be 

free from harm attendant to maintenance of the arrest record against the 

Commonwealth's interest in preserving such records.’” Id. at 317 (quoting 

Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981)). 

Additionally, the right to expungement, which can be a component of 

due process, differs according to the disposition of the charges in question. 

When an individual has been convicted of the offenses 

charged, then expungement of criminal history records may be 

granted, only under very limited circumstances that are set forth 

by statute. When a petitioner has been tried and acquitted of the 

offenses charged, we have held that the petitioner is 

automatically entitled to the expungement of his arrest record. 

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 the maintenance of the arrest record 

against the Commonwealth's interest in preserving such records.

Wallace, supra at 317-18 (quoting Commonwealth v. Moto, 23 A.3d 

989, 993 (2011)). Five factors are weighed where neither an acquittal nor a 

conviction is at issue in the matter: 

(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; (5) and the 

specific adverse consequences the petitioner may endure should 

expunction be denied.
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Wallace, supra at 318 (quoting Wexler, supra at 879). This list is not 

exhaustive and the facts of each particular case must be carefully weighed. 

Moto, supra. 

The burden of proof in the expungement setting is dependent upon the 

nature of the Commonwealth’s proof as to the crimes. If the Commonwealth 

cannot carry its burden of proof or admitted prior to trial that it could not 

establish the crimes beyond a reasonable doubt, then the Commonwealth 

bears the burden of justifying why the arrest record should not be expunged. 

Moto, supra; Wexler, supra. 

The importance of our deferential standard of review cannot be 

overstated. In Wallace, supra, the defendant, who was incarcerated, had a 

significant criminal history spanning many years. The defendant sought the 

removal of records of multiple charges that did not result in conviction. The 

defendant’s request for expungement was denied without a hearing. The 

trial court concluded that the Commonwealth’s interest in retaining the 

records outweighed the adverse consequences to the defendant if 

expungement was granted. The Commonwealth reported that it sought to 

retain all the records as a relevant consideration should the thenincarcerated defendant be paroled and thereafter violate that parole. 

Defendant claimed the retention of his arrest records would stigmatize him. 

The trial court rejected defendant’s position based on the existence of 

a record of many charges that resulted in convictions. It did not consider 
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any other factor in its decision denying expungement. This Court reversed 

and concluded that the defendant was entitled to a hearing and separate 

consideration as to whether each charge not leading to conviction should be 

expunged. We opined that some of the charges might be eligible for 

expungement. Our Supreme Court disagreed and reinstated the trial court 

order, which rested, as noted, on the defendant’s inability to prove harm 

from retention of the arrest records since he already had criminal 

convictions. 

In another recent decision, Commonwealth v. Moto, 23 A.2d 989 

(Pa. 2011), the Supreme Court also reversed one of our decisions granting 

expungement in face of the trial court’s denial of that relief. Therein, in 

1987, the defendant was convicted of rape, involuntary deviate sexual 

intercourse, robbery, and conspiracy after the victim of those crimes 

unequivocally and positively identified him as one of two men who attacked 

her. The victim also testified that, during the defendant’s trial, the other 

perpetrator stopped her and threatened to kill her and her children if she 

testified against the defendant.

After he was convicted, the defendant obtained a new trial in 1995 

based upon DNA evidence from the victim’s underwear, which contained 

sperm from three men who were not the defendant. The Commonwealth 

was not able to proceed to a second trial since it could not locate the victim, 

who fled the area due to continued threats. The Commonwealth withdrew 
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the charges in 1996. The defendant then asked for expungement in 2007. 

During the proceedings, the Commonwealth produced witnesses establishing 

that the evidence that resulted in the grant of a new trial did not necessarily 

exonerate the defendant. Specifically, DNA of sperm can remain on clothing 

for years, even after the clothing is laundered, and the defendant may not 

have ejaculated during the event. The Commonwealth reported that its 

decision not to retry the defendant was due solely to its inability to locate 

the victim. The Commonwealth sought to retain the criminal record since 

Appellant had been convicted and based upon the inclusive nature of the 

DNA proof. 

In declining to award expungement, the trial court relied upon the 

strength of the Commonwealth’s case, that fact that the defendant was 

convicted before being granted a new trial, and the public’s interest in 

retaining the arrest record of a person who was convicted of serious crimes. 

We reversed the trial court based upon a conclusion that the Commonwealth 

had not met its burden of proof and that expungement was denied based 

upon consideration of only one factor, which was the strength of the 

Commonwealth’s case during trial. 

Our Supreme Court, in turn, reversed this Court. As it had in 

Wallace, our High Court admonished us that the decision as to the grant or 

denial of an expungement request “rests with the sound discretion of the 

trial court, and we review that court's decision for abuse of discretion.” 
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Moto, supra at 993. The Moto Court rejected our conclusion that the trial 

court did not consider all of the Wexler factors. It noted that the trial court 

indicated that it had performed the Wexler analysis and ruled that we were 

required to defer to that representation, even though the trial court did not 

specifically address each factor outlined in Wexler. Our Supreme Court 

continued that the trial court was permitted to deny expungement by placing 

great weight on one factor, which, in that case, was the strength of the 

Commonwealth’s case against the defendant. The Moto Court also observed 

that the defendant had a history of arrests. Since the trial court applied the 

proper standard to the facts of the case, it did not abuse its decision, and 

this Court erred in reversing it. Moto, supra.

In this case, it is clear that the trial court did not abuse its discretion in 

concluding that expungement was not warranted. Indeed, this case is legally 

indistinguishable from Moto since Appellant had a history of criminal 

convictions similar to those at issue in this case and since the 

Commonwealth had compelling evidence that Appellant committed the 

crimes in question. 

The trial court in this matter did initially indicate that it did not believe 

that the Wexler factors were implicated in this case. However, it continued 

that “[e]ven if Wexler is applicable, expungement would still not be 

appropriate.” Trial Court Opinion, 7/7/14, at 8. The court outlined that, 

based upon its review of the file, “it appeared that the Commonwealth had a 
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strong case against the Petitioner.” Id. The court also considered the fact 

that Appellant already had a record and opined that the “existing criminal 

record” demonstrated that “retention of the records at issue is not an 

onerous adverse consequence for the Petitioner.” Id. at 9. 

The court additionally found a public interest in retaining the record. 

Specifically, “In any dealings law enforcement and prospective employers 

might have with the Petitioner, they need to be aware of the Petitioner’s 

potential for dishonesty, whether the intentional products of cognitive 

thought or the by-product of mental infirmity, as well as her potential for 

lack of comprehension of her actions and their consequences.” Id. at 9. 

The court further noted that Appellant made no attempt to cite “even one 

specific instance of a prospective employer denying her employment 

because of the currently contested public record.” Id.

When a defendant is absolved from criminal responsibility due to his 

mental state, the disposition of the charges is not viewed as an acquittal. 

Commonwealth v. B.C., 936 A.2d 1070 (Pa.Super. 2007) (defendant found 

not guilty by reasons of insanity). Rather, the verdict is a finding that the 

defendant committed the act but cannot be held legally accountable due to 

his mental condition. Id. In B.C., we upheld a trial court’s refusal to 

expunge the record, even though the defendant specifically outlined that he 

had been unable to secure a job due to his arrest record. We considered the 

fact that the defendant was not found innocent of committing the acts in 
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question as well as the lack of evidence that the defendant’s mental 

condition had improved. See also Commonwealth v. V.G., 9 A.3d 222 

(Pa.Super. 2010) (affirming denial of expungement of defendant who pled 

nolo contendere but mentally ill). 

Appellant herein obtained dismissal of these charges based on her 

inability to communicate with her lawyer in defending this case rather than 

based upon innocence. Indeed, the Commonwealth’s case was strong. 

There was an eyewitness to Appellant’s theft of three items from a retail 

establishment. Appellant gave a false name and date of birth to a police 

officer. 

Since the Commonwealth did establish that it could have obtained a 

conviction herein founded upon the evidence, it satisfied its burden of proof 

and did not need to articulate any justification for its retention of the 

records. In this respect, we note that Appellant asserts herein that the 

Commonwealth had a “heavy burden of producing compelling evidence that 

the arrest records should be retained.” Appellant’s brief at (unnumbered 

page) 8. In this respect, Appellant relies upon Commonwealth v. Hanna, 

964 A.2d 923 (Pa.Super. 2009). However, Hanna was merely articulating 

the rule of law announced in Wexler. The full Hanna quote is as follows:

In Wexler, [supra,] the Commonwealth nolle prossed

charges against a defendant based on the prosecutor's 

assessment that it could not prove the charges beyond a 

reasonable doubt. The Court held that under those 

circumstances, the defendant was entitled to an expungement 
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hearing where the Commonwealth bore a heavy burden of 

producing compelling evidence that the arrest records should be 

retained, using a multi-factor test.

Hanna, supra at 925-26 (emphasis added). 

Thus, Appellant’s recitation of the Commonwealth’s burden of proof in 

this case is incorrect. The prosecutor never made an assessment that these 

charges could not be proven, and they were decidedly not nolle prossed. To 

the contrary, the Commonwealth satisfied its burden of proving that it could 

have obtained a conviction. Thus, Appellant errs in suggesting that the 

Commonwealth had to justify its decision to oppose expungement. In 

addition, the trial court articulated a valid public interest in maintenance of 

these records. The public should be aware of Appellant’s history of an 

inability to control herself to avoid dishonest activity. 

Moreover, Appellant’s asserted interest in expungement is that this 

criminal record will adversely affect her ability to gain employment and her 

community standing. As noted by the Commonwealth, this concern is 

illusory given her prior convictions of retail theft and fleeing or eluding 

police, which are similar or identical to the charges at issue in this case. 

Wallace, supra. 

Appellant, who was in her mid-50s, never proffered a single instance 

where she applied for and was denied employment based upon this arrest 

record and did not outline any past employment history. Only two years 

elapsed between the crimes and the expungement request. Finally, 
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Appellant produced no evidence that she had improved her mental condition 

so that she would no longer commit these types of criminal actions due to 

her inability to comprehend that they were wrong. This omission is a critical 

consideration in this matter under B.C., supra. 

There is not a single factor outlined in Wexler that militates in favor of 

expungement in this case, and the trial court did not abuse its discretion. 

In her argument maintaining that expungement is mandated, Appellant 

would have us ignore the Wexler factors and singularly focus on the fact 

that the record herein contains a finding that she was incompetent. 

Appellant maintains: 

The public web docket sheets available at the Unified 

Judicial System's website . . . state that defendant was "declared 

incompetent" and that she was incompetent to stand trial. It is 

also noted that a hearing was held under the mental health 

procedures act. See attached appendix C with highlighted 

portions.

The public docket sheets repeatedly note that Appellant 

was declared incompetent, incompetent to stand trial. These 

docket sheets are available for any member of the public to read 

with a simple search of Appellant's name. This is certainly 

prejudicial to appellant's standing in the community.

. . . . 

The first reason for expungement is the very public and 

open records that (available to anyone with internet access) that 

defendant was "declared incompetent" and was subject to 

hearings under the mental health act. Pennsylvania has a strong 

privacy and confidentiality interest concerning the treatment of 

the mentally ill. See 50 P.S. [§] 7111 and 42 [Pa.C.S.A. §] 5944.
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Appellant’s brief at (unnumbered pages) 7-8, 9. See also id. at 9 (“Clearly 

the Wexler factors are not absolute[;] the Court must consider the harm of 

having defendant’s mental health matters available to the general public.”); 

Id. (“Appellant submits it is almost impossible to get a job with public 

records stating she was ‘declared incompetent.’ Having any member of the 

public able to read official court records describing you as incompetent is 

embarrassing and hurtful.”); Id at 10 (“The adverse consequences are 

clear[;] defendant’s mental health issues have been made part of the public 

record and this will continue to stigmatize defendant if this expungement is 

not granted.”); Id. (“Having a criminal record is one thing. Having a 

permanent public record of mental illness and being ‘declared incompetent’ 

is another.”) 

Simply put, we cannot override the trial court’s discretion, ignore all 

the Wexler factors, and grant expungement based solely upon an alleged 

social stigma attached to Appellant’s incompetency finding. Under Wallace 

and Moto, we are prohibited from re-weighing the factors utilized in an 

expungement decision. Of great significance is the following. It was 

Appellant herself who sought the incompetency determination. It was only 

as a result of this ruling that Appellant obtained dismissal of these charges in 

the first instance. Thus, it was Appellant’s decision to place an 

incompetency determination on the record in this matter. Absent Appellant’s 
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own request to be declared incompetent, she faced overwhelming evidence 

of guilt and a conviction. 

Our decision to reject this particular argument also is premised upon 

the fact that Appellant failed to proffer that her mental condition has 

improved to any extent so that she is unlikely to commit these types of 

crimes in the future. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015