J-A27004-17


                              2018 PA Super 19

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MICHAEL ALLEN PRESHER,

                         Appellant                    No. 97 WDA 2017


            Appeal from the Order Entered December 19, 2016
              In the Court of Common Pleas of Greene County
            Criminal Division at No(s): CP-30-CR-0000168-2016


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

OPINION BY BENDER, P.J.E.:                      FILED FEBRUARY 2, 2018

      Appellant, Michael Allen Presher, appeals from the trial court’s

December 19, 2016 order directing authorities to fingerprint Appellant

pursuant to 18 Pa.C.S. § 9112, after a jury acquitted him of the criminal

conduct that triggered the statute’s fingerprinting mandate.          Appellant

contends that the trial court erred in applying Section 9112, and/or that the

statute violated his constitutional rights. After careful review, we reverse.

      The facts underlying Appellant’s alleged criminal conduct are not

germane to this appeal.     The Commonwealth charged him with theft and

receiving stolen property by criminal complaint dated March 22, 2016, and

then proceeded against Appellant by summons. Appellant failed to appear

for his April 19, 2016 preliminary hearing before the district magistrate.

Consequently, the magistrate bound the charges over to the Court of
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Common Pleas. Trial Court Order and Opinion (hereinafter “TCO”), 1/31/17,

at 8. Ultimately, a jury acquitted Appellant of all charges following a one-

day trial held on December 7, 2016.              However, on December 9, 2016,

pursuant to the Commonwealth’s request, the trial court issued an order for

Appellant to be processed and fingerprinted pursuant to 18 Pa.C.S. §

9112(b)(2) (mandatory fingerprinting for defendants “proceeded against by

summons”).

       Appellant objected to the order by filing a motion for reconsideration

on December 19, 2016.            The next day, the trial court issued an order

denying Appellant’s motion for reconsideration. Appellant then filed a timely

notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement.1

The trial court filed its Rule 1925(a) opinion on January 31, 2017.

       Appellant now presents the following questions for our review:

        I.    [Does] Pennsylvania's mandatory fingerprinting statute
              violate the Due Process Clause of the U.S. and
              P[ennsylvania] constitutions?

       II.    Did the [trial] court err in finding the fingerprint statute[]
              provides constitutional equal protection[] for persons
              acquitted of crimes?

____________________________________________


1
  Appellant filed his notice of appeal from the order denying his motion for
reconsideration. It appears that there is some confusion about the date of
the order. Appellant’s notice of appeal, and the trial court’s opinion, both
identify the order in question as filed on December 19, 2016. However, the
order was dated and filed on December 20, 2016, according to the lower
court docket. In any event, it is clear to this Court from which order
Appellant appealed.



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     III.   Does Pennsylvania's fingerprinting statute violate the
            P[ennsylvania] and U.S. constitutions by allowing for
            unlawful search and seizure of United States citizens?

      IV.   Does the Pennsylvania fingerprinting statute violate the
            Eighth Amendment by allowing innocent persons to be
            subject to punitive orders?

       V.   Did the [trial] court … abuse its discretion in ordering
            [A]ppellant to post acquittal punitive orders after a jury
            had rendered a verdict of not guilty?

      VI.   Has the [trial] court misinterpreted the scope of the
            Pennsylvania fingerprinting statute to unlawfully include
            "processing" as part of its application?

Appellant’s Brief at 13-14.

      We begin with our standard of review.

            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.A. § 1921(a);
      Commonwealth v. Brown, 423 Pa. Super. 264, 266, 620 A.2d
      1213, 1214 (1993); Commonwealth v. Edwards, 384 Pa.
      Super. 454, 460, 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.A. § 1903(a). See Commonwealth v.
      Berryman, 437 Pa. Super. 258, 649 A.2d 961 (1994) (en banc).

             When construing one section of a statute, courts must read
      that section not by itself, but with reference to, and in light of,
      the other sections because there is a presumption that in
      drafting the statute, the General Assembly intended the entire
      statute to be effective.         1 Pa.C.S.A. § 1922.          See
      Commonwealth v. Mayhue, 536 Pa. 271, 307, 639 A.2d 421,
      439 (1994); Commonwealth v. Berryman, supra at 268, 649
      A.2d at 965. Statute headings may be considered in construing
      a statute. 1 Pa.C.S.A. § 1924. However, the letter of the
      statute is not to be disregarded under the pretext of pursuing its
      spirit. 1 Pa.C.S.A. § 1921(b); Commonwealth v. Reeb, 406 Pa.
      Super. 28, 34, 593 A.2d 853, 856 (1991), appeal denied, 530
      Pa. 665, 610 A.2d 45 (1992).

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Commonwealth v. Lopez, 663 A.2d 746, 748 (Pa. Super. 1995).

            It is axiomatic that: “[A]ny party challenging the
      constitutionality of a statute must meet a heavy burden, for we
      presume legislation to be constitutional absent a demonstration
      that the statute ‘clearly, palpably, and plainly’ violates the
      Constitution.” Konidaris v. Portnoff Law Associates, Ltd.,
      598 Pa. 55, 953 A.2d 1231, 1239 (2008) (citation omitted). The
      presumption that legislative enactments are constitutional is
      strong. Commonwealth v. McMullen, 599 Pa. 435, 961 A.2d
      842, 846 (2008); see also 1 Pa.C.S. § 1922(3) (in ascertaining
      intent of General Assembly in enactment of statute, presumption
      exists that General Assembly did not intend to violate federal
      and state constitutions). All doubts are to be resolved in favor of
      finding that the legislative enactment passes constitutional
      muster.     Pennsylvanians Against Gambling Expansion
      Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383,
      393 (2005). Moreover, “statutes are to be construed whenever
      possible to uphold their constitutionality.” In re William L., 477
      Pa. 322, 383 A.2d 1228, 1231 (1978).

DePaul v. Commonwealth, 969 A.2d 536, 545–46 (Pa. 2009).

      Given   the   strong   presumption    of   the   fingerprinting   statute’s

constitutionality under our standard of review, we will begin by addressing

Appellant’s fifth claim, which simply asserts that the trial court abused its

discretion by ordering him to submit to fingerprinting pursuant to 18 Pa.C.S.

§ 9112. That is, before considering whether the statute is unconstitutional,

we are obliged to address first whether its text requires or permits its post-

acquittal application. See Commonwealth v. Ludwig, 874 A.2d 623, 628

(Pa. 2005) (recognizing that “courts have the duty to avoid constitutional

difficulties, if possible, by construing statutes in a constitutional manner”).

If the statute does not apply post-acquittal, then we should conclude that




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the trial court abused its discretion by applying it to Appellant, thereby

avoiding the constitutional questions that arise if it does.

      Section 9112, the mandatory fingerprinting statute, is part of the

Criminal History Record Information Act.        See 18 Pa.C.S. § 9101.    It

provides as follows:

      (a) General rule.--Fingerprints of all persons arrested for a
      felony, misdemeanor or summary offense which becomes a
      misdemeanor on a second arrest after conviction of that
      summary offense, shall be taken by the arresting authority, and
      within 48 hours of the arrest, shall be forwarded to, and in a
      manner and such a form as provided by, the central repository.

      (b) Other cases.--

         (1) Where private complaints for a felony or misdemeanor
         result in a conviction, the court of proper jurisdiction shall
         order the defendant to submit for fingerprinting by the
         municipal police of the jurisdiction in which the offense was
         allegedly committed or in the absence of a police
         department, the State Police. Fingerprints so obtained
         shall, within 48 hours, be forwarded to the central
         repository in a manner and in such form as may be
         provided by the central repository.

         (2) Where defendants named in police complaints are
         proceeded against by summons, or for offenses under
         section 3929 (relating to retail theft), the court of proper
         jurisdiction shall order the defendant to submit within five
         days of such order for fingerprinting by the municipal
         police of the jurisdiction in which the offense allegedly was
         committed or, in the absence of a police department, the
         State Police. Fingerprints so obtained shall, within 48
         hours, be forwarded to the central repository in a manner
         and in such form as may be provided by the central
         repository.

      (c) Transmittal of information.--The central repository shall
      transmit the criminal history record information to the criminal
      justice agency which submitted a complete, accurate and
      classifiable fingerprint card.

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18 Pa.C.S. § 9112. Applicable in this instance is Section 9112(b)(2), which

requires the trial court to order the fingerprinting of “defendants named in

police complaints [who] are proceeded against by summons.” 18 Pa.C.S. §

9112(b)(2) (emphasis added).

     Without providing citation to any relevant authority apart from the

statute itself, the trial court declared that this mandate “cannot be

circumvented by delay and later by acquittal.” TCO at 9. The court provides

virtually no analysis to support its assertion. However, we may assume that

the trial court believes it is strictly interpreting the text of Section

9112(b)(2), which appears, at least at first glance, to provide no end-date

for the mandate imposed on the court to order fingerprinting following the

filing of a criminal complaint and summons.     The Commonwealth takes a

more measured approach, arguing that “[s]uch post-acquittal fingerprinting

does not appear to be contemplated by [Section 9112(b)(2)], however had

Appellant wished to avoid being subject to such an order, post-acquittal

expungement      would   have    been     the   most   efficient   remedy.”

Commonwealth’s Brief at 4.     Thus, the Commonwealth seems reluctant to

argue that the statute plainly requires the fingerprinting of acquitted

persons, but instead argues that Appellant has chosen an inappropriate

remedial path.

     We reject both the trial court’s and the Commonwealth’s interpretation

of Section 9112(b)(2).   An acquittal constitutes “the strongest vindication

possible under our criminal tradition, laws and procedures[.]” In re D.M.,

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695 A.2d 770, 773 (Pa. 1997) (requiring the expungement of arrest records,

without qualification, following an acquittal). The trial court’s application of

Section 9112(b)(2) to an acquitted party stands in direct contravention to

this principle and, thus, we begin our analysis with extreme skepticism that

the legislature intended such a result. Fortunately, the text of the statute

does not support the trial court’s interpretation.

      Section 9112(b)(2) speaks of “defendants,” not “persons[,]” much less

an acquitted party.      18 Pa.C.S. § 9112(b)(2).         Appellant’s status as

“defendant” ceased in the underlying criminal case when the jury acquitted

him of all charges.       In both common and formal legal parlance, a

“defendant” is a person who is currently being accused and/or tried for the

commission of a crime, or, at most, a person who is still involved in

proceedings directly related to that criminal process, such as during the

pendency of an appeal.       It would be absurd to identify a person as a

“defendant” after his or her acquittal, temporarily or indefinitely.    To this

Court’s knowledge, the term “defendant” is neither colloquially nor formally

used to refer to an acquitted party, except in the past tense to describe that

person’s prior status. The formal accusation that is the subject of a criminal

trial is decisively and permanently disposed of when the factfinder, be it

judge or jury, reaches a not-guilty verdict. D.M., supra. On this basis, we

conclude that the trial court abused its discretion when it ordered Appellant

to   submit     to   fingerprinting    pursuant      to   Section   9112(b)(2).

Commonwealth v. Murray, 83 A.3d 137, 156 (Pa. 2013) (“An abuse of

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discretion is not merely an error of judgment, but if in reaching a conclusion

the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-

will discretion ... is abused.”) (emphasis added).

      Our interpretation is consistent with the terminology used throughout

18 Pa.C.S. § 9112.        In Section 9112(a), the statute refers to “persons,”

rather than to “defendants.” 18 Pa.C.S. § 9112. An arrested “person” may

never be subject to a formal accusation in the form of a criminal complaint

or criminal information.          Thus, such persons may not technically be

“defendants”   at   the    time    of   or   immediately   following   their   arrest.

Nevertheless, the statute mandates fingerprinting of any such persons if the

basis of the arrest is a “felony, misdemeanor or summary offense which

becomes a misdemeanor on a second arrest after conviction of that

summary offense.”         18 Pa.C.S. § 9112(a).      In Section 9112(b)(1), the

legislature transitioned to the term, “defendant.” 18 Pa.C.S. § 9112(b)(1).

That provision only applies to individuals who were “convicted” following the

filing of “private complaints for a felony or misdemeanor….” Id. Hence, the

label “defendant” is used in Section 9112(b)(1) when criminal allegations

have already been proved to the factfinder; however, a conviction is not

itself the final word on guilt or innocence in the criminal process, given the

potential for subsequent appellate review.           Thus, the continued, post-

conviction use of the term “defendant” is logical and understandable, if not

the most perfect fit.

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          The contemplated temporal/procedural posture of Section 9112(b)(2)

is when a criminal case is proceeding by summons, following the filing of a

criminal complaint. The named person in the summons is unambiguously a

“defendant” when the summons issues, because the summons follows a

criminal complaint, and the “defendant” is literally named as such in the

filing.     See Pa.R.Crim.P. 510(A) (“Every summons in a court case shall

command the defendant to appear….”) (emphasis added). However, when

any case results in a complete acquittal, as occurred in the matter at hand,

the Commonwealth has absolutely no recourse to challenge that disposition.

Thus, the label, “defendant,” ceases to apply rationally to a person following

their acquittal.

          In sum, we conclude that the trial court abused its discretion when it

ordered      Appellant   to   submit     to    fingerprinting   pursuant   to   Section

9112(b)(2), as the express terms of that statute do not permit its

application to fully acquitted persons, who are no longer “defendants” within

the meaning of that statute. Because of our disposition in this matter, it is

unnecessary to address Appellant’s remaining issues.2

          Order reversed. Jurisdiction relinquished.




____________________________________________


2
  Moreover, we deny Appellant’s October 24, 2017 motion to file a
supplemental brief on this basis as well.



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J-A27004-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2018




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