J-S31042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                           Appellant

                      v.

BRYON K. SMITH

                           Appellee               No. 1755 MDA 2014


              Appeal from the Order Entered on October 8, 2014
               In the Court of Common Pleas of Franklin County
                 Criminal Division at No.: CP-28-CR-647-1996


COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                           Appellant

                      v.

BRYON K. SMITH

                           Appellee               No. 1756 MDA 2014


              Appeal from the Order Entered on October 8, 2014
               In the Court of Common Pleas of Franklin County
                   Criminal Division at No.: OTN: E596889-6


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                            FILED JULY 17, 2015

     The Commonwealth appeals the October 8, 2014 orders that expunged

Bryon K. Smith’s 1995 and 1996 summary offenses for retail theft.     After

review, we reverse.
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      The trial court summarized the procedural and factual history of this

case as follows:

      [Smith] was convicted of two separate retail theft summary
      offenses on October 19, 1995 and September 16, 1996. On
      August 13, 2014[, Smith] petitioned [the trial court] for
      expungement of the summary offenses under 18 Pa.C.S.
      § 9122(b)(3). A hearing was held on October 8, 2014. At the
      conclusion of the hearing[, the trial court] issued Court Orders
      expunging the retail theft convictions under docket no. 647-1996
      and OTN: E596889-6. . . .

      The two convictions that [Smith] seeks expungement of involve
      summary offense convictions on October 19, 1995 and
      September 16, 1996 of retail theft under 18 Pa.C.S.
      § 3929(a)(3). A criminal background check shows that [Smith]
      also has: a conviction of theft by deception on November 16,
      1998; an arrest and [Accelerated Rehabilitative Disposition] for
      [driving under the influence] in 1998; and convictions for two
      counts of theft of services on November 12, 2006.          It is
      undisputed that [Smith] has been free from arrest from 2006 to
      the present.

Trial Court Opinion (“T.C.O.”), 10/30/2014, at 1.

      On October 9, 2014, the Commonwealth filed a notice of appeal, a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and a motion for reconsideration. On October 30, 2014, the trial

court denied the motion for reconsideration and filed a Pa.R.A.P. 1925(a)

opinion.

      The Commonwealth raises one issue for our review: “Whether the

lower court erred in interpreting 18 Pa.C.S. § 9122(b)(3) to permit

expungement of convictions when the petitioner had not been free of arrest




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or prosecution for the five years following conviction for that offense?”

Commonwealth’s Brief at 4.

      The expungement statute, in pertinent part, states:

      (b) Generally.--Criminal history record information may be
      expunged when:

                                  *    *    *

      (3)(i) An 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 offense.

      (ii) Expungement under this paragraph shall only be permitted
      for a conviction of a summary offense.

18 Pa.C.S.A. § 9122.

      The issue here is the meaning of “free of arrest or prosecution for five

years following the conviction for that offense.” The trial court understood

that to mean the five years prior to the expungement hearing. T.C.O. at 2-

3. The Commonwealth contends that it means the five years immediately

after conviction.   Commonwealth’s Brief at 9.      The Commonwealth also

notes, and Smith concedes, that our Court has decided this precise issue

during the pendency of this appeal.    Commonwealth’s Brief at 10; Smith’s

Brief at 3.

      In Commonwealth v. Giulian, 111 A.3d 201 (Pa. Super. 2015), the

appellant sought to have two summary convictions expunged, one from

1997 and one from 1998. The Commonwealth objected to expungement of

the 1997 conviction, arguing that, due to the 1998 conviction, the appellant


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had not remained free of arrest or prosecution in the five years following the

1997 conviction.   Id. at 202.   Ultimately, the trial court agreed with the

Commonwealth and denied expungement for the 1997 conviction. The issue

before this Court was “whether the language contained in 18 Pa.C.S.

§ 9122(b)(3)(i) allowed expungement when the petitioner is free of arrest or

prosecution for any five-year period following conviction, or for the five-year

period immediately following the conviction.”        Id. at 203 (emphasis

omitted).   In applying the rules of statutory construction, we determined

that the General Assembly’s use of the phrase “following the conviction for

that offense” would be rendered mere surplusage if the statute were

interpreted to mean any five-year period. “Because we may not disregard

statutory language as mere surplusage, we agree[d] with the trial court’s

interpretation that [the appellant] was required to remain free of arrest or

prosecution for the five years immediately following [the] conviction.” Id. at

204 (citation and emphasis omitted).

      Under Giulian, the trial court erred in determining that, because

Smith was free of arrest for the five years prior to the hearing, he met the

criteria for expungement pursuant to 18 Pa.C.S.A. § 9122(b)(3).       Because

Smith was convicted of offenses in 1998, he was not free of arrest or

prosecution for the five years following his 1995 or his 1996 conviction.

Therefore, the trial court erred in granting his petition for expungement of

those convictions, and we reverse its orders.

      Orders reversed. Jurisdiction relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




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