Opinion
No. 2149 EDA 2006.
Filed: June 1, 2007.
Appeal from the Order entered July 6, 2006, in the Court of Common Pleas, Monroe County, Criminal, No. CP-45-JV-0030033-1999.
BEFORE: JOYCE, KLEIN, JJ., and McEWEN, P.J.E.
¶ 1 Appellant, A.B., brings this appeal from an order denying the petition to expunge his juvenile record. We reverse and remand.
¶ 2 The facts underlying this appeal are not in dispute, and have been ably summarized by the trial court in the opinion filed in support of its order:
On or about January 29, 1999, a juvenile petition was filed against [A.B.] (hereinafter "juvenile"), alleging that on or about January 26, 1999, at Pocono Mountain Senior High School, the juvenile knowingly or intentionally possessed 185 white pills knowing that that he was not licensed or privileged to do so; the juvenile knowingly or intentionally possessed 185 white pills with the intent to manufacture or deliver the same, knowing that he was not licensed or privileged to do so; and that the juvenile used or possessed with intent to use drug paraphernalia. The juvenile subsequently made an admission to one count of possession with intent to deliver a controlled substance, an ungraded felony if he had been an adult. On March 8, 1999, [the] Honorable Jerome P. Cheslock entered an order placing the juvenile with Youth Services of Pennsylvania and placed [him] on probation for a period of six months.
On April 20, 2006, the juvenile filed a petition to expunge. A hearing on the juvenile's petition to expunge was held on June 28, 2006. On June 29, 2006, the juvenile and the Commonwealth submitted memoranda of law in support of their respective positions. On July 7, 2006, we entered an order denying the juvenile's petition to expunge.
Trial Court Opinion, Worthington, J., October 2, 2006, pp. 1-2 (footnote omitted). This appeal followed.
¶ 3 Appellant, in the brief filed in support of this appeal, contends that the trial court erred in denying his petition to expunge the juvenile adjudication of delinquency because he had fulfilled all of the statutory requirements entitling him to an expungement.
¶ 4 The issue presented in this case is one of statutory construction, and hence raises a pure question of law. Therefore, our scope of review is plenary, and our standard of review is de novo. Commonwealth v. Mullins [No. 10 EAP 2005], ___ Pa. ___, ___, ___ A.2d ___, ___ (March 26, 2007), citing Commonwealth v. Cousin, 585 Pa. 287, 294, 888 A.2d 710, 714 (2005). The statutory section at issue provides:
(a) Expungement of juvenile records. — Notwithstanding the provisions of Section 9105 (relating to other criminal justice information) and except upon cause shown, expungement of records of juvenile delinquency cases wherever kept or retained shall occur after 30 days' notice to the district attorney, whenever the court upon its motion or upon the motion of a child or the parents or guardian finds:
(1) a complaint is filed which is not substantiated or the petition which is filed as a result of a complaint is dismissed by the court;
(2) six months have elapsed since the final discharge of the person from supervision under a consent decree and no proceeding seeking adjudication or conviction is pending;
(3) five years have elapsed since the final discharge of the person from commitment, placement, probation or any other disposition and referral and since such final discharge, the person has not been convicted of a felony, misdemeanor or adjudicated delinquent and no proceeding is pending seeking such conviction or adjudication; or
(4) the individual is 18 years of age or older, the attorney for the Commonwealth consents to the expungement and a court orders the expungement after giving consideration to the following factors:
(i) the type of the offense;
(ii) the individual's age, history of employment, criminal activity and drug or alcohol problems;
(iii) adverse consequences that the individual may suffer if the records are not expunged; and
(iv) whether retention of the record is required for purposes of protection of the public safety.
18 Pa.C.S. § 9123(a).
¶ 5 The Pennsylvania Statutory Construction Act provides in relevant part:
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
1 Pa.C.S. § 1921(a), (b) (emphasis supplied).
¶ 6 The late, legendary Supreme Court Justice James T. McDermott, in Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983), advised:
A statute must be construed if possible to give effect to all of its provisions. Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887 (1974); Commonwealth v. McHugh, 406 Pa. 566, 178 A.2d 556 (1962). It is presumed that every word, sentence or provision of a statute is intended for some purpose and accordingly must be given effect; and if a statute contains its own definitions, the meaning of a term as defined at common law, or as construed under prior statutes is not controlling. See Commonwealth v. Sitkin's Junk Co., 412 Pa. 132, 194 A.2d 199 (1963).
Lobiondo, supra at 603, 462 A.2d at 664 (emphasis supplied). Thus guided, this Court, in Commonwealth v. Lopez, 663 A.2d 746 (Pa.Super. 1995), complemented this pronouncement of statutory construction as follows:
When interpreting a statute, the court must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. 1 Pa.C.S. § 1921(a); Commonwealth v. Brown, 423 Pa. Super. 264, 266, 620 A.2d 1213, 1214 (1993); Commonwealth v. Edwards, 384 Pa. Super. 454, 559 A.2d 63, 66 (1989), appeal denied, 523 Pa. 640, 565 A.2d 1165 (1989). In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. 1 Pa.C.S. § 1903(a). See Commonwealth v. Berryman, 437 Pa. Super. 258, 649 A.2d 961 (1994) ( en banc).
Lopez, supra, 663 A.2d at 748 (emphasis supplied). Thereafter, in Grom v. Burgoon, 672 A.2d 823 (Pa.Super. 1996), this Court further explained:
When the words of a statute are clear and unambiguous, a court cannot disregard them under the pretext of pursuing the spirit of the statute. 1 Pa.C.S. § 1921(a); Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 555 A.2d 72 (1989). Only if a statute is unclear may a court embark upon the task of ascertaining the intent of the legislature by reviewing the necessity of the act, the object to be attained, the circumstances under which it was enacted and the mischief to be remedied. Id. at 517-18, 555 A.2d at 74 (citing 1 Pa.C.S. § 1921(c)).
Grom, supra, 672 A.2d at 825.
¶ 7 It is with these rulings in mind that we commence our examination of the current statute by emphasizing that the relevant provisions of section 9123(a) of the Criminal History Record Information Act (C.H.R.I.A.) are set out in the disjunctive, using the connector "or", as opposed to the conjunctive connector "and". Thus, by the explicit terms of the statute, a petitioner for expungement need not comply with all of the itemized conditions, but is entitled to relief if he or she can satisfy but one of the statutory prerequisites.
Act of July 16, 1979, P.L. 116, No. 47, § 2, 18 Pa.C.S. § 9101 et seq.
This fact was ignored by the Commonwealth in its brief, which chose only to argue that appellant could not satisfy subsection four of section 9123(a), 18 Pa.C.S. § 9123(a)(4).
¶ 8 It would appear from the following excerpt of the opinion of the trial court that it proceeded from an erroneous premise in its consideration of the law of expungement:
We note at the outset that the remedy of expungement is rarely available. Edward M. v. O'Neill, 436 A.2d 628, 633 (Pa.Super. 1981). The judicial remedy of expungement is an adjunct to the inherent rights of Due Process and is proper where an accused's acquittal is consistent with a finding of real innocence and not a result of legal technicalities unrelated to questions of guilt or innocence. Commonwealth v. Rose, 397 A.2d 1243, 1244 (Pa.Super. 1979). The due process interest to be protected is the same with both an adult and a juvenile. O' Neill, 436 A.2d at 634.
Trial Court Opinion, supra, at p. 2 (emphasis supplied). The trial court also cited the decision of this Court in In the Interest of Lowe, 448 A.2d 632 (Pa.Super. 1982), in support of its understanding that "juveniles who had been adjudicated delinquent were not entitled to expungement of their juvenile records." Trial Court Opinion, supra. The trial court proceeded to analyze appellant's request for expungement from this premise and then sought guidance from the decision of the Pennsylvania Supreme Court in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), a decision discussing the substantive due process consideration applicable to a petition to expunge an adult record. However, as more fully explained below, the cases relied upon by the trial court are inapposite to the current case, which involves a request (1) filed pursuant not to the due process clause but to the C.H.R.I.A., (2) to expunge not an adult conviction but a juvenile adjudication.
The trial court was of a mind that the request to expunge a juvenile adjudication should be considered as a matter of judicial "discretion," a focus quite distinct from that of statutory interpretation. N.T., June 28, 2006, p. 8.
¶ 9 This Court, in Edward M. v. O'Neill, 436 A.2d 628 (Pa.Super. 1981), confronted the question of a right of a juvenile, as a matter of due process, to expungement of the mug shot and fingerprints that had been obtained by the police pursuant to a police department regulation that called for the retention of such information for all juvenile arrestees over the age of fifteen regardless of the disposition of the charges. The Court, in concluding that the juvenile enjoyed no such due process right, declared: " the remedy of expungement is rarely available." Id. at 633 (emphasis supplied). The trial court culled that particular statement from the following considerably fuller discussion:
See generally: Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), for a discussion of the factors to be employed in a due process analysis.
[T]he remedy of expungement is not available to the appellees because they were adjudicated delinquent. Therefore, even if the photographing and fingerprinting of juveniles were found to be violative of the Juvenile Act, expungement would not be proper.
We so hold even though the expungement cases upon which we rely deal solely with adult offenders. The due process interest to be protected is the same with both an adult and a juvenile. Likewise, the societal interest in maintaining records is no less present where the accused is a juvenile. We therefore find no basis to distinguish the due process right to expungement of the culpable juvenile from that of the culpable adult. This conclusion finds support in legislation enacted subsequent to the filing of these appeals.
As noted earlier 42 Pa.C.S. § 6308 was amended to provide for the fingerprinting and photographing of juveniles. Section 6308(c)(3) provides:
Fingerprints and photographic records of children shall be immediately destroyed by all persons and agencies having these records if the child is not adjudicated delinquent for reason of the alleged acts. [emphasis added].
Also the Criminal History Record Information Act, 18 Pa.C.S. § 9101 et seq. (effective January 1, 1980), now provides:
§ 9123. Juvenile Records.
(a) Expungement of juvenile records.-Notwithstanding the provisions of section 9105 (relating to other criminal justice information) and except upon cause shown, expungement of records of juvenile delinquency cases wherever kept or retained shall occur after ten days notice to the district attorney, whenever the court upon its motion or upon the motion of a child or the parents or guardian finds:
(1) a complaint is filed which is not substantiated or the petition which is filed as a result of a complaint is dismissed by the court other than as a result of an informal adjustment;
(2) five years have elapsed since the final discharge of the person from commitment, placement, probation or any other disposition and referral and since such final discharge, the person has not been convicted of a felony, misdemeanor or adjudicated delinquent and no proceeding is pending seeking such conviction or adjudication; or
(3) the individual is 21 years of age or older and a court orders the expungement. 18 Pa.C.S. § 9123(a). Of course, should they meet the statutory requirements, appellees are free to seek relief under this section.
Edward M. v. O'Neill, supra, 436 A.2d at 634 (emphasis supplied) (footnote omitted). Thus, the Court in O'Neill declared that, while due process did not afford relief to the applicants, the statute enacted by the General Assembly could. This Court subsequently applied the ruling in O'Neill, supra, to a situation where two juveniles who been adjudicated delinquent sought expungement of their records shortly after they had reached legal adulthood. In a per curiam opinion, the Court held that pursuant to O'Neill, "the remedy of expungement is not available to juveniles who have been adjudicated delinquent," but went on to emphasize that:
The Court in Edward M. v. O'Neill, 436 A.2d 628 (Pa.Super. 1981), also specifically remarked upon the distinct manner in which the C.H.R.I.A. provided for consideration of an adult request for expungement, stating:
In the adult context § 9122 of the Criminal History Record Information Act, 18 Pa.C.S. § 9101 et seq., authorizes expungement in limited circumstances. Subpart (b), which apparently permits expungement despite a finding of guilt, provides that criminal history record information may be expunged when:
(1) An individual who is the subject of the information reaches 70 years of age and has been free of arrest or prosecution for ten years following final release from confinement or supervision; or
(3) An individual who is the subject of the information has been dead for three years.
Id. at 634 n. 4 (emphasis supplied).
This [holding] does not mean that appellees are forever precluded from having their juvenile records expunged. It is entirely possible that appellees may, now or in the future, satisfy the statutory requirements for expungement of juvenile records set out in section 9123(a) of the Criminal History Record Information Act[,] 18 Pa.C.S. § 9123(a). Our decision today in no way prejudices either appellees' right to relief under that section.
In the Interest of Lowe, supra, 448 A.2d at 633 n. 4 (emphasis supplied; citations omitted). Thus, the Court reiterated that a wholly distinct analysis was to be employed by reviewing courts when called upon to consider an application for expungement of a juvenile record filed pursuant to section 9123(a) of the C.H.R.I.A.
In the case of In the Interest of Lowe, 448 A.2d 632 (Pa.Super. 1982), the petitioner Darryl Lowe applied for expungement approximately two and one-half years after the date of his last adjudication, while the petitioner Brian Ross applied for expungement approximately ten months after the date of his last adjudication. Thus, at the time they filed for expungement they could not fulfill the statutory requirements set out in the C.H.R.I.A., and, therefore, did not seek relief under that statute.
¶ 10 This Court ably summarized the statutory intent of section 9123 when it wrote:
The purpose of C.H.R.I.A. [specifically 18 Pa.C.S. § 9123] is to provide an opportunity for children who crash upon the reef of criminal behavior to leave behind the damaging effect of such collision upon a showing that they had exercised sufficient restraint as to reasonably assure the authorities that total redemption was justified. C.H.R.I.A. gave the delinquent and dependent child something they never before had. Although the intent and promise of the juvenile justice movement in this State and Country since the Act of April 23, 1903, P.L. 274 was declared constitutional in Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198 (1905), was to insulate the child from the harshness of the criminal law and to provide treatment and rehabilitation instead of punishment, there was always an elusive stigma attached to an adjudication of delinquency and/or dependency, which the expungement act sought to eliminate. The balance clearly proposed by the legislature was to give the child this additional benefit, but only if deserving, for there is an equal consideration of protection of public safety by having the record of the child available if his chronic behavior and course of conduct presage adult criminal behavior.
In the Interest of Jacobs, 483 A.2d 907, 909 (Pa.Super. 1984) (emphasis supplied). Thus, the innovation of the Act was to provide explicit instructions, beyond the amorphous guidance of "substantive due process," defining those situations where the General Assembly determined that juvenile offenders were entitled to a second chance at a life free from the anchor of a youthful mistake. Furthermore, the Court in Jacobs, specifically analyzed the facts of the petitioner's eligibility for expungement under the C.H.R.I.A., before deciding that he did not comply with the explicit requirements of the Act. Id. at 909.
The petitioner in In the Interest of Jacobs, 483 A.2d 907, 909 (Pa.Super. 1984), had sought expungement prior to the expiration of the statutory five year prerequisite time period.
¶ 11 Consequently, a juvenile is entitled to expungement as a matter of law once he successfully fulfills the burden to establish the statutory factors that have been carefully enunciated by the General Assembly. In the present case, the record establishes that appellant met his burden to establish the "five year" factors set out in subsection (a)(3) of section 9123, and the Commonwealth does not contend otherwise. Therefore, we conclude that appellant sustained his burden to demonstrate his entitlement to the relief of expungement under 18 Pa.C.S. § 9123(a)(3).
Subsection (a)(3) provides that a petitioner for expungement must demonstrate that "five years have elapsed since the final discharge of the person from commitment, placement, probation or any other disposition and referral and since such final discharge, the person has not been convicted of a felony, misdemeanor or adjudicated delinquent and no proceeding is pending seeking such conviction or adjudication." 18 Pa.C.S. § 9123(a)(3).
¶ 12 The Commonwealth, however, contends that, despite appellant's eligibility for expungement pursuant to the C.H.R.I.A., such relief should be denied based upon the following provision of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq.:
Act of April 14, 1972, P.L. 233, No. 64, § 1, 35 P.S. § 780-101 et seq.
Any records of arrest or prosecution or both for a criminal offense under this act, except for persons indicted for any violations of clause (30) of subsection 13 [which addresses possession with intent to manufacture or deliver controlled substances], or under the provisions previously governing controlled substances in the Commonwealth of Pennsylvania or any political subdivision thereof shall be promptly expunged from the official and unofficial arrest and other criminal records pertaining to that individual when the charges are withdrawn or dismissed or the person is acquitted of the charges[.]
35 P.S. § 780-119(a) (emphasis supplied). This contention, specifically that the subsection prohibits the expungement of records when a criminal defendant is found guilty of possession with intent to deliver a controlled substance, was accepted by the trial court as an alternative basis of support for its decision. However, as the Commonwealth concedes in its brief, this section is not addressed to proceedings filed or prosecuted under the Juvenile Act, which of their nature do not result in "criminal" proceedings. See: 42 Pa.C.S. § 6341 (which provides for "adjudication" of juvenile offenders with "disposition" to follow pursuant to subchapter D of the Juvenile Act). Moreover, as we will discuss, the Commonwealth's interpretation of section 780-119(a) is simply baseless as a matter of statutory interpretation.
Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6301 et seq.
¶ 13 Simply put, section 780-119(a) of Title 35 contains no explicit prohibition on the power of courts to expunge an "arrest or prosecution" for a particular offense. Rather, it provides that any request for expungement of a drug related arrest or prosecution, except one dealing with manufacturing or delivering drugs, "shall be promptly expunged" when charges are withdrawn, dismissed, or the person is acquitted of the charges. Thus, the section provides that a person who has been relieved of the accusation of such conduct shall not have an undue burden in clearing his or her name, and that the remedy of expungement shall be afforded that person without undue delay or obstruction on the part of the Commonwealth. In fact, this Court in Commonwealth v. D.M., 663 A.2d 792 (Pa.Super. 1995), affirmed, 548 Pa. 131, 695 A.2d 770 (1997) emphasized that the intent of section 780-119 was to make the right to expungement in such situations "unconditional." Id., at 794 n. 2. However, 780-119(a) of Title 35 maintained the restrictive expungement standards for the more serious charges of manufacturing or delivering controlled substances, since an adult who had been arrested and prosecuted for such serious charges, regardless of what was perceived as a favorable outcome, was still obliged to proceed under the traditional due process rules governing expungement. Moreover, since the law upon the expungement of an arrest record is in part grounded in a party's constitutional due process rights, Commonwealth v. Malone, 366 A.2d 584 (Pa.Super. 1976), cited with approval in Commonwealth v. Wexler, supra, the General Assembly has power only to restrict — not eliminate — a citizen's entitlement to seek such relief.
¶ 14 Finally, the law is well established that "whenever a general statute purports to establish a uniform and mandatory system covering a class of subjects, such statute shall be constructed to supply and therefore to repeal pre-existing local or special statutes on the same class of subjects." 1 Pa.C.S. § 1971(b). Application of this principle to this case reveals that section 780-119 of Title 35 was enacted in 1972, and last amended in the same year, while the Criminal History Record Information Act was enacted seven years thereafter, in 1979, and sets forth a comprehensive body of provisions governing the administration of criminal records. Consequently, there is absolutely no merit to the Commonwealth's argument that section 780-119(a) precludes the grant of relief to appellant under the circumstances of this case.
¶ 15 Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.