                            [J-49-2016] [MO: Dougherty, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                   :   No. 75 MAP 2015
                                                :
                      Appellee                  :   Appeal from the Order of the Superior
                                                :   Court at No. 906 MDA 2014 dated
                                                :   February 23, 2015 Affirming the Order
               v.                               :   of the Centre County Court of Common
                                                :   Pleas, Criminal Division, at No. CP-14-
                                                :   MD-0000836-2013 dated April 30, 2014.
VICTORIA C. GIULIAN,                            :
                                                :   ARGUED: April 6, 2016
                      Appellant                 :


                                   CONCURRING OPINION


JUSTICE BAER                                                     DECIDED: July 19, 2016
         I concur in the result. I agree that Appellant, Victoria Giulian, is not statutorily

barred      from    seeking   an    expungement       of   her   1997    conviction    under

18 Pa.C.S. § 9122(b)(3)(i). I write separately to provide my statutory analysis, and to

stress that this case does not require the Court to determine whether expungement

statutes are penal or remedial for purposes of statutory construction.

         Like the majority, I find ambiguity in the language of Subsection 9122(b)(3)(i),

providing that an individual may petition for expungement of a summary offense when

she “has been free of arrest or prosecution for five years following the conviction for that

offense.”     18 Pa.C.S. § 9122(b)(3)(i).    As written, the language leaves open the

question: during what five-year period must an individual be free from arrest? Is it, as

Appellant argues, “any” five year period following conviction; or is it, as the

Commonwealth argues, “the” five-year period “immediately” following the conviction?

Because Subsection 9122(b)(3)(i)’s language is “reasonably capable of either

construction,” the statute is indeed ambiguous. Freedom Med. Supply, Inc. v. State
Farm Fire & Cas. Co., 131 A.3d 977, 984 (Pa. 2016). Upon closer review, however, it

becomes apparent that Appellant’s interpretation is the more persuasive construct.

       First, as a principle of statutory construction, we may add words or phrases in

construing a statute only if they are “necessary to the proper interpretation of a statute”

and “do not conflict with its obvious purpose and intent, nor in any way affect its scope

and operation.”     1 Pa.C.S. § 1923(c).     As mentioned above, both interpretations

arguably require us to read in missing words to clarify the applicable five-year period.

However, accepting the Commonwealth’s suggestion – adding “the” and “immediately”

– significantly limits the scope of who may be eligible for an expungement. Specifically,

the Commonwealth’s interpretation excludes individuals, such as Appellant, from

seeking an expungement, notwithstanding that they have been arrest-free well past

multiple five-year periods following their conviction.

       On the other hand, Appellant’s suggestion – adding “any” – does not significantly

alter or limit the statutory language of Subsection 9122(b)(3)(i), because the statute as

written has no limitation on which five-year period would suffice, indicating that any five-

year period is acceptable. Thus, adding the word “any” helps to clarify the legislature’s

intent, rather than significantly alter it. Moreover, regardless of whether we apply the

penal or remedial standard of statutory construction,1 we construe the statute in favor of

Appellant, and therefore, her suggestion of adding “any” is more appropriate than the

Commonwealth’s suggestion to add “the” and “immediately.”

       Next, when conducting statutory interpretation, “[w]ords and phrases shall be

construed according to rules of grammar and according to their common and approved

usage.” 1 Pa.C.S. § 1903(a). Here, the General Assembly’s use of the past perfect



1
 A discussion of remedial and penal standards of statutory construction is set forth infra
at 4-5.



                            [J-49-2016] [MO: Dougherty, J.] - 2
tense “has been” is instructive. The phrase “has been” implies that the five-year period

could be any five-year period following conviction ending with the most recent one. To

accept the Commonwealth’s argument that the General Assembly intended the statute

to include only the first five-year period immediately following conviction would require a

change of “has been” to “was.” Otherwise, as Appellant points out, the statute would

read: “An individual . . . has been free of arrest or prosecution for [the] five years

[immediately] following the conviction,” which, grammatically, is awkward.             See

Appellant’s Brief at 16. If that was the Legislature’s intent, the statutory provision would

properly take the past tense, i.e., requiring that Appellant “was free of arrest or

prosecution for the five years immediately following conviction.”        Thus, Appellant’s

interpretation is more grammatically accurate, weighing in favor of her interpretation.

       Third, Appellant rebuts the Commonwealth’s strongest argument that her

interpretation renders “following the conviction for that offense” to be mere surplusage.

At first blush, the Commonwealth’s argument seems plausible: if the General Assembly

intended the arrest-free period to be “any” five-year period after conviction, then it would

not have had to say “following the conviction,” and instead could have said simply that a

petitioner must be “free of arrest for five years.” According to the Commonwealth,

adding “following the conviction” indicates the intent that the five-year period must occur

immediately following the conviction. However, Appellant posits that the “following the

conviction” language is necessary to set the start date of the five-year period. Appellant

suggests other reasonable starting points that the General Assembly could have

selected instead, such as: 1) “following final release from confinement or supervision,”

the starting point used in 18 Pa.C.S. § 9122(b)(1), governing expungement eligibility for

individuals over 70 years of age; or 2) a certain time period since “the individual has

satisfied all terms and conditions of the sentence imposed for the violation,” which is

contained within 18 Pa.C.S. § 9123(a)(2.2), governing expungement eligibility for certain


                           [J-49-2016] [MO: Dougherty, J.] - 3
juvenile records. In light of these other reasonable possibilities, it appears correct that

the language “following the conviction” is necessary to discern the earliest possible start

date for the five-year waiting period, and therefore, is not rendered meaningless by

Appellant’s interpretation.

         Finally, the Commonwealth’s interpretation is simply unreasonable, as aptly

highlighted by Justice Wecht’s concurring opinion. See Concurring Op. at 2 (Wecht, J.).

As my colleague observed, the Commonwealth’s interpretation would allow for an

individual to reoffend every five years and one day and be eligible, subject to the trial

court’s discretion, for expungement of every offense, yet preclude an individual like

Appellant from receiving an expungement even if she had been arrest-free for fifty

years.

         For all of these reasons, I find Appellant’s interpretation much more persuasive

than that of the Commonwealth. I point out that the sole issue before us is whether

Appellant is eligible to seek expungement for her 1997 conviction.          The only facts

relevant to whether Appellant is statutorily eligible for expungement is whether she

seeks to expunge a summary conviction and whether she has been arrest-free for a

five-year period since her conviction for that offense. Any discussion of the general

expungement scheme or the factors a trial court should consider when deciding whether

to grant an expungement petition is irrelevant to the determination that she is eligible to

seek expungement.

         To the extent that the majority discusses the penal/remedial rules of construction,

it is worth explaining that we need not decide which one applies to Subsection

9122(b)(3)(i) in this case or should be applied in future expungement cases.2            To

2
  I believe this point is important because this issue is not settled in Pennsylvania law,
despite the concession by the Commonwealth in this case that the statute is penal, and
the suggestion by the Superior Court below to the same effect. See Commonwealth’s
Brief at 9 (“[S]ince [Subsection] 9122(b)(3)(i) is a penal statute, the rule of lenity”
(continuedL)

                              [J-49-2016] [MO: Dougherty, J.] - 4
reiterate briefly, if a statute is penal in nature, the rule of lenity applies so that any

ambiguity must be strictly construed in favor of a defendant. 1 Pa.C.S. § 1928(b)(1)

(providing that penal statutes “shall be strictly construed”); see also Commonwealth v.

Fithian, 961 A.2d 66, 74 (Pa. 2008) (explaining that where ambiguity exists in a penal

statute it should be interpreted in the light most favorable to the accused). On the other

hand, if a statute is remedial legislation, then the statute should be “construed liberally

to effectuate its humanitarian objectives.” School Dist. of Phila. v. WCAB (Hilton), 117

A.3d 232, 242 (Pa. 2015). These two rules of construction, in this case, seem to arrive

at the same result: ambiguity in Subsection 9122(b)(3)(i) should be resolved in

Appellant’s favor under both rules because Appellant was at one time the accused, and

she is the intended beneficiary of the statute’s humanitarian objectives.

      However, I caution that the rules of construction utilize different language.

Although they have similar effects, the rule of lenity uses stronger language, that of

strict construction, whereas remedial legislation must be liberally construed, a

seemingly lower standard. Here, I conclude that Appellant’s position is superior even

applying the lesser remedial legislation standard, and thereby avoid any suggestion as

to which rule applies to future interpretations of expungement statutes.


      Justice Todd joins this concurring opinion.




(Lcontinued)
applies.); Commonwealth v. Giulian, 111 A.3d 201, 204 (Pa. Super. 2015) (suggesting
that the rule of lenity would apply in this case if the statute was ambiguous, but
ultimately determining that the statute is not ambiguous). In fact, an en banc Superior
Court determined that the juvenile expungement statute, found at 18 Pa.C.S. § 9123(a),
is remedial and not penal. In re A.B., 987 A.2d 769, 780 (Pa. Super. 2009).



                           [J-49-2016] [MO: Dougherty, J.] - 5
