Opinion
J-S84036-17 No. 1169 MDA 2017
04-10-2018
ERNEST R. WHOLAVER, JR. Appellant v. COMMONWEALTH OF PENNSYLVANIA, GOVERNOR TOM WOLF, MIDDLETOWN POLICE DEPARTMENT, CHIEF JOHN T. BEY, DAUPHIN COUNTY SHERIFF'S OFFICE, NICHOLAS CHIMIENTI, JR., AND DAUPHIN COUNTY DISTRICT ATTORNEY'S OFFICE, EDWARD M. MARSICO, JR.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 21, 2017
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2016-CV-8172-CV BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J. MEMORANDUM BY OTT, J.:
Ernest R. Wholaver, Jr., appeals pro se from the order entered in the Court of Common Pleas of Dauphin County, denying his pro se petition for mandamus, the aim of which was to expunge from his criminal record certain sexual crimes of which he had been acquitted. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm based on the sound reasoning of the trial court in its Opinion, dated June 22, 2017.
This is a frivolous appeal. Wholaver was convicted of the first-degree murders of his wife, Jean, and daughters, Victoria and Elizabeth, and was sentenced to death. Our Supreme Court affirmed the sentences in 2006, and it appears Wholaver remains under the sentence of death. Prior to the murder charges, Wholaver had been charged with sexual assault against the two daughters he murdered. Wholaver was acquitted of the sexual assault crimes.
In 2012, Wholaver filed a petition for expungement of the sexual crimes, asserting he was entitled expungement due to his acquittal of those charges. The trial court denied Wholaver's petition and the Superior Court affirmed that order on January 10, 2014. Essentially, the trial court determined, and a panel of our Court agreed, that sexual crimes against the children were inextricably intertwined with the murders of those children and their mother. Therefore, pursuant to Commonwealth v. Rodland , 871 A.2d 216 (Pa. Super. 2005), Wholaver's claim failed. See Wholaver , 2014 WL 10999137 at *4-5.
See Memorandum Opinion and Order, 1/13/2013.
See Commonwealth v. Wholaver , Jr., 96 A.3d 1079 (Pa. Super. January 10, 2014) (unpublished memorandum). For text, see Commonwealth v. Wholaver , 2014 WL 10999137.
In 2016, Wholaver filed the instant mandamus, seeking to compel the Middletown Police Department, Dauphin County Sheriff's Office, and the Dauphin County District Attorney's Office to expunge the same charges that were the subject of Wholaver's 2012 petition. Here, the trial court correctly determined that this action is nothing more than the 2012 action recast as a mandamus action. Wholaver was not entitled to relief on his initial action and is not entitled to relief now.
Our scope of review in a mandamus action is limited to determining whether the trial court abused its discretion, committed an error of law or whether sufficient evidence exists to support the findings. Orange Stones Co. v. City of Reading , Zoning Hearing Board , 32 A.3d 287, 289 (Pa. Cmwlth. 2011). As to questions of law our scope of review is plenary. Crozer Chester Medical Center v. Department of Labor and Industry , Bureau of Workers' Compensation , 610 Pa. 459, 466, 22 A.3d 189, 194 (2011). Our standard of review of a trial court's grant of mandamus is de novo. Id .County of Carbon , v. Panther Valley School District , 61 A.3d 326, 331 n. 3 (Pa. Cmwlth. 2013).
We have reviewed the trial court's decision and discern no abuse of discretion nor error of law. Accordingly, we affirm. The parties are directed to attach a copy of the trial court's opinion dated June 22, 2017, in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/10/2018
Image materials not available for display.