HomeMy WebLinkAboutCP-21-MD-0000572-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
BRIAN SCOTT WUBBE, :
Defendant/Petitioner : CP-21-MD-572-2009
IN RE: PETITION FOR EXPUNGEMENT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., November 4, 2009.
In this case, a 34-year-old employee of a financial consulting firm has
petitioned to expunge his criminal history record information as it relates to
several summary offenses that occurred more than a decade ago, pursuant to
1
Section 9122(b)(3)(i) of the Crimes Code. The Commonwealth has opposed the
petition on the ground that its reading of the statutory provision precludes
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expungement of all but the most recent of the summary offenses.
A hearing on the petition was held on October 26, 2009. For the reasons
stated in this opinion, the petition for expungement will be granted.
STATEMENT OF FACTS
Petitioner is Brian Scott Wubbe, 34, a resident of Norristown,
Pennsylvania. He is a college graduate, employed by a firm that provides financial
consulting services. He is currently seeking a Chartered Mutual Fund Counselor
(CMFC) designation.
Petitioner’s criminal record consists of several summary convictions when
he was much younger. Specifically, he pled guilty to driving without a permit in
1992, an incident of harassment in 1994, an incident of harassment and two
incidents of disorderly conduct in 1995, and an incident of retail theft on
September 15, 1997. All fines, costs and restitution were paid with respect to these
1
Petition for Expungement, July 15, 2009.
2
Commonwealth’s Answer to Petitioner’s Petition for Expungement, filed August 5, 2009.
offenses, and the Commonwealth does not argue that any conduct has occurred in
the succeeding 12 years that would otherwise disqualify Petitioner from eligibility
for expungement.
Petitioner’s aforesaid summary offense record has the potential to impede
his advancement in his profession.
DISCUSSION
Under Section 9122(b)(3)(i) of the Crimes Code, it is provided as follows:
Generally.—Criminal history record information may be expunged
when . . . [a]n individual who is the subject of the information petitions the
court for the expungement of a summary offense and has been free of
arrest or prosecution for five years following the conviction for that
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offense.
This provision, enacted in 2008, expanded the availability of discretionary
expungement in the area of summary offenses, which had previously been limited
to situations where the individual (a) had reached the age of 70 and been free of
arrest or prosecution for ten years following final release from confinement or
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supervision or (b) had been dead for three years.
The 2008 amending legislation, which was passed by the Senate without a
negative vote, was described on the Senate floor by Senator Kitchen prior to the
vote as “a very important bill” and one that “will help hundreds of people across
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Pennsylvania . . . .”
With respect to all statutes, “[w]ords and phrases shall be construed
according to rules of grammar and according to their common and approved
6
usage.” In this regard, the verb construction “has been free” is most properly, in
the court’s view, regarded as being in the present perfect progressive tense (“have
3
Act of November 26, 2008, P.L. 1670, §1, 18 Pa. C.S. §9122(b)(3)(i) (2009 Supp.).
4
Act of July 16, 1979, P.L. 116, §2, 18 Pa. C.S. §9122(b).
5
2008 Pa. Senate Journal 64 at 2633-34 (October 8, 2008).
6
Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1903(a).
2
+ be + main verb + ing”), connoting “[a]n action occurring over time that started
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in the past and continues into the present.”
The following general rules of statutory construction also apply:
(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.
(c) When the words of the statute are not explicit, the
intention of the General Assembly may be ascertained by considering,
among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes
upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of
such statute.
Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1921.
In addition, “[i]n ascertaining the intention of the General Assemblly in the
enactment of a statute,” it may be presumed “[t]hat the General Assembly does not
intend a result that is absurd, impossible of execution or unreasonable.” Act of
December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1922(1).
Furthermore, with certain exceptions not here relevant, “[a]ll . . . provisions
of a statute shall be liberally construed to effect their objects and to promote
justice.” Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1928(c).
7
Retrieved from http://www.athabascau.ca/courses/engl/155/support/verb_tenses.htm
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Finally, “[a] remedial statute is [one that is] designed to correct an existing
law, redress an existing grievance, or introduce regulations conducive to the public
good, and generally is to be liberally construed.” 82 C.J.S. Statutes §377 (2009).
In construing remedial statutes, regard should be had to the former
law, the defects or evils to be cured or abolished, or the mischief to be
remedied, and the remedy provided. Remedial statutes are favored by the
courts, and thus, they will be interpreted liberally, to embrace all cases
fairly within their scope so as to accomplish the greatest public good, and
to effectuate the purpose of the statute, by suppressing the mischiefs, and
advancing the remedy, provided it can be done by reasonable construction
of the words chosen by the legislature. Exceptions to remedial legislation
must be narrowly construed.
When necessary to effectuate the legislative intent, remedial statutes
will be construed to include cases within the spirit, or reason, although
outside the letter, of the statute, and to exclude cases within the letter, but
outside the reason. However, the doctrine of liberal construction of
remedial statutes does not permit the court to redraft a clearly written
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statute.
In the present case, which according to counsel is one of first impression, it
is the Commonwealth’s position that the words “has been free of arrest or
prosecution for five years following the conviction for that offense” in the
expungement provision sub judice precludes expungement of a given summary
offense where another arrest or prosecution occurred within the five-year period
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immediately following the conviction in question. Petitioner relies upon a less
restrictive interpretation, whereby his twelve-year-period of crime-free behavior as
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of the present time would qualify him for expungement consideration.
The purpose of the statutory provision in question is obviously to afford
persons who have rehabilitated themselves for a substantial period of time the
opportunity to convince a court that they should be permitted to proceed with their
lives without the impediment of an earlier summary offense record. Although
8
82 C.J.S. Statutes §377 (2009).
9
See Commonwealth’s Answer to Petitioner’s Petition for Expungement, ¶¶3, 8, filed August 5,
2009.
10
See Petitioner’s Petition for Expungement, ¶¶2, filed July 15, 2009.
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either party’s interpretation of the statute is arguably correct, a number of factors
militate in favor of the interpretation advanced by Petitioner.
First, the language “has been free of arrest or prosecution” is in the present
tense and suggests that the focus should be upon a petitioner’s current rather than
past history of rehabilitation. Second, a contrary interpretation would lead to
illogical results (a) where one individual with a recent serious criminal record
would be eligible for expungement and another individual without one would be
excluded and (b) where a more recent summary offense would be subject to
expungement and an older offense would not be. Third, had the legislature
intended to limit the five-year period of crime-free conduct in question to a period
immediately after the summary conviction it could have done so easily by using
the past tense or employing the term “immediately following.” Finally, and most
importantly, the Commonwealth’s interpretation of the statute is not compatible
with the presumptive remedial purpose of the legislation to unfetter a presently
rehabilitated petitioner as opposed a person whose rehabilitative efforts may have
long-since lapsed.
For the foregoing reasons, and the court finding that the expungement
requested in this case will be consistent with both the public interest and the
private interest of Petitioner, it is ordered and directed as follows:
ORDER OF COURT
th
AND NOW, this 4 day of November, 2009, a Petition for Expungement
having been filed on behalf of the above-captioned defendant, following a hearing
held on October 26, 2009, and for the reasons stated in the accompanying opinion,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the
Petition is GRANTED and that all criminal charges listed in the instant Petition
are dismissed and that the keepers of criminal records named below shall expunge
and destroy the official and unofficial arrest and other documents pertaining to the
arrest or prosecution or both of the above-named defendant and that each shall
request the return of such records which its agency made available to State or
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Federal agencies and immediately upon receipt thereof shall destroy such records
and that said keepers of such criminal records shall file with this Court an
Affidavit stating that the mandates of this Order have been fulfilled.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Clerk
of Courts shall expunge the Indices of the official and unofficial arrest and other
documents pertaining to the arrest or prosecution or both of the above-named
defendant in the criminal proceedings listed in the Petition, and shall seal and
impound the aforesaid Affidavits together with the Information, the Complaint and
the original and all copies of this Order, and no person or agency shall be
permitted to examine such documents. The Clerk of Courts may advise the
defendant or the defendant’s counsel or both of the receipt of said Affidavits.
Pursuant to Rule of Criminal Procedure 722 and 18 Pa. C.S. §9122(b)(3)
(i), the expungement information is as follows:
DEFENDANT’S NAME: Brian Scott Wubbe
DEFENDANT’S DATE OF BIRTH: 1/14/1975
DEFENDANT’S SOCIAL SECURITY NUMBER: 053-56-8595
OTN: E882298-4 09-3-04 8/15/1997; Hampden Twp.PD Retail Theft
NT 124-95/264186 09-3-04 2/27/1995; Hampden Twp. PD Disorderly
Conduct
NT 198-95/264207 09-3-04 3/4/1995; Hampden Twp. PD Harassment
NT 235-95/264111 09-3-04 4/8/1995; Hampden Twp. PD Disorderly
Conduct
NT 681-94/264021 09-3-04 8/27/1994; Hampden Twp. PD Harassment
NT 2694-92/226544 09-3-04 9/26/1992; Hampden Twp. PD Permit/
Unlicensed
Driver
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DISPOSITIONS: All guilty pleas with full payment of fines/costs and/or
restitution.
REASONS FOR EXPUNGEMENT: Five (5) years have passed since most recent
summary offense conviction.
LIST OF CRIMINAL JUSTICE AGENCIES UPON WHICH
CERTIFIED COPIES OF THIS ORDER SHALL BE SERVED
BY DEFENDANT OR DEFENDANT’S COUNSEL
1. District Attorney: David J. Freed, Esq., 1 Courthouse Square, Room 202
Carlisle, PA 17013
2. Magisterial District Judge: Office 09-3-04
3. Arresting Officer and Agency: Hampden Township PD
4. Pennsylvania State Police Central Repository, 1800 Elmerton Ave.,
Harrisburg, PA 17110
5. Clerk of Courts of Cumberland County: Dennis E. Lebo, 1 Courthouse Square
Room 205, Carlisle, PA 17013
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
AFFIDAVIT OF EXPUNGEMENT
This is to certify that the official arrest and criminal records and other
documents filed pertaining to the particular arrest or prosecution or both of the
above-named defendant in the above-captioned criminal proceedings, which are in
the custody and control of this office have been expunged and destroyed.
___________________ _______________________
DATE CERTIFYING OFFICER
ALL AFFIDAVITS ARE TO BE RETURNED TO
THE CLERK OF COURTS OFFICE
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Christylee Peck, Esq.
Senior Assistant District Attorney
Robert David Kinnear
Certified Legal Intern
Glenn R. Davis, Esq.
Andrea E. Dean, Esq.
1700 Bent Creek Boulevard
Suite 140
Mechanicsburg, PA 17050
Attorneys for Defendant/Petitioner
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