HomeMy WebLinkAboutCP-21-MD-990-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
JOHN L. HARRINGTON III :
Defendant/Petitioner : CP-21-MD-990-2009
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., May 18, 2010.
In this expungement case involving an issue of statutory construction, the
Commonwealth has appealed from an order expunging two summary offenses from the
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record of John L. Harrington, III. The basis for the appeal has been expressed in the
Commonwealth’s statement of errors complained of on appeal as follows:
The lower court erred in focusing on the result of the expungement
statute and in analyzing the legislative intent when the plain reading of the
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statute is clear and free from all ambiguity.
The validity of the Commonwealth’s position is presently the subject of an
appeal pending in the Superior Court in a similar case, as noted at the conclusion of
this opinion
.
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
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Petitioner, John L. Harrington, III, is a 56-year-old individual who presently
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resides in New Cumberland Borough, Cumberland County, Pennsylvania. He is an
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airline transport pilot.
1
Commonwealth’s Notice of Appeal, filed April 9, 2010.
2
Commonwealth’s Concise Statement of Matters Complained of on Appeal, filed April 27, 2009.
3
N.T. 5, Hearing, March 18, 2010 (hereinafter N.T. __); see Petition for Expungement, filed December 4,
2009 (hereinafter Petition for Expungement). In this case, the Commonwealth did not contest the
petitioner’s factual allegations, but rather challenged a construction of the expungement statute which
would permit expungement under the facts pled; citations to the record herein will thus occasionally be to
the petition.
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N.T. 4.
5
N.T. 5.
Petitioner was convicted of two summary offenses occurring in 2003. He pled
guilty on March 10, 2003, to summary disorderly conduct and paid a fine and costs, and
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on September 26, 2003, he pled guilty to summary harassment and paid a fine and costs.
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No further criminal record was accrued by Petitioner thereafter.
He filed a petition to expunge these two summary offenses from his record
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pursuant to Section 9122(b)(3)(i) of the Crimes Code on December 4, 2009. An
abbreviated hearing on the petition was held on March 18, 2010. At the hearing, the
Commonwealth challenged the propriety of expungement in Petitioner’s case as to the
second of the two offenses only, and as to that offense only on the basis of statutory
9
construction.
More specifically, the Commonwealth reiterated its position asserted in an earlier
case in this court that the expungement statute relied upon by Petitioner did not authorize
an expungement of a summary offense where it was succeeded within five years by
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another offense, regardless of the duration of the petitioner’s good behavior thereafter.
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This position had not been accepted by the court in the earlier case, and was similarly
rejected in the present case.
From the order granting the petition for expungement, the Commonwealth filed an
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appeal to the Pennsylvania Superior Court on April 8, 2010.
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
6
Petition for Expungement, paras. 2-5.
7
N.T. 6; Petition for Expungement, para. 7.
8
Petition for Expungement, para 6.
9
N.T. 3-4, 9.
10
N.T. 3-4, 9; see Commonwealth’s Answer to Petitioner’s Petition for Expungement, filed January 4,
2010.
11
See Commonwealth v. Wubbe, CP-21-MD-572-2009 (Cumberland County).
12
Commonwealth’s Notice of Appeal, filed April 9, 2010.
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expungement of a summary offense and has been free of arrest or prosecution for
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five years following the conviction for that offense.
The Commonwealth’s position that, as a matter of statutory construction, the
occurrence of an offense within the five-year period immediately following another
offense permanently forecloses the possibility of expungement of the earlier offense,
regardless of the duration of crime-free behavior thereafter and prior to the filing of an
expungement petition, was rejected by this court in Commonwealth v. Wubbe, CP-21-
MD-572-2009 (Cumberland Co. November 4, 2009).
The reasoning of the court for its inability to accept the Commonwealth’s
construction of the legislative provision was expressed in an opinion dated November 4,
2009, in Wubbe. That reasoning is applicable to the present case as well, and will be
incorporated herein by the attachment of a copy of the Wubbe opinion rather than
reformulated in the current text.
The same issue raised by the Commonwealth in this case is presently on
appeal in the Superior Court by virtue of the Commonwealth’s appeal of the
Wubbe
decision. The term and number of the pending appeal in the Superior Court
Wubbe
is No. 1948 MDA 2009.
BY THE COURT,
__________________
J. Wesley Oler, Jr., J.
Michele H. Sibert, Esq.
Chief Deputy District Attorney
For the Commonwealth
Gail Guida Souders, Esq.
Guida Law Offices
111 Locust Street
Harrisburg, PA 17101
For the Petitioner
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Act of November 26, 2008, P.L. 1670, §1, 18 Pa. C.S. §9122(b)(3)(i) (2009 Supp.).
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APPENDIX
OPINION IN COM. V. WUBBE