J-S71010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 1154 EDA 2017
    DANIEL J. ERVIN

                      Appeal from the Order March 7, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000218-2004


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                FILED MARCH 06, 2018

        The Commonwealth of Pennsylvania appeals from the order entered in

the Delaware County Court of Common Pleas, which granted the expungement

petition of Appellee, Daniel J. Ervin. The Commonwealth argues the trial court

did not have the statutory authority to grant expungement of Appellee’s

simple assault conviction. We agree.

        The relevant facts and procedural history are as follows. On March 7,

2005, Appellee was convicted of one count of simple assault and one count of

harassment.1 Eleven years later, at the age of thirty-two, Appellee filed a

petition to expunge his criminal history record. Despite being served a copy
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1  18 Pa.C.S.A. § 2701 and 18 Pa.C.S.A. § 2709. Appellee’s sentencing sheet
lists his harassment conviction as a summary offense, but does not provide a
grading for the simple assault conviction. See Sentencing Sheet, 4/7/05.
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of the petition, the Commonwealth failed to file a response. The trial court

subsequently granted Appellee’s petition.

      Six days later, the Commonwealth filed a motion for reconsideration,

citing the trial court’s lack of statutory power to grant the petition. The trial

court granted the Commonwealth’s motion, vacated its prior order, and held

hearings on the matter. Following the hearings, the trial court reinstated its

prior order. This appeal follows.

      On appeal, the Commonwealth alleges the trial court erred by “granting

expungement of the criminal history record of the conviction where the

[Appellee] did not show he was eligible under the very limited conditions set

forth by the applicable statute.” Commonwealth’s Brief, at 2-3. Appellee and

the trial court counter that the Commonwealth’s failure to timely object to

Appellee’s petition and the discretion the trial court has in expungement

matters justifies the grant of the petition. See Trial Court’s Opinion, 5/25/17,

at 4-9; Appellee’s Brief, at 4-7.

      “The decision to grant or deny a petition to expunge rests with the sound

discretion of the trial court, and we review that court’s decision for abuse of

discretion.” Commonwealth v. Moto, 23 A.3d 989, 993 (Pa. 2011) (citations

omitted). However, a trial court’s discretion is limited by “the manner of

disposition of the charges an individual wishes to expunge.” Commonwealth

v. Wallace, 97 A.3d 310, 317 (Pa. 2014). “When an individual has been

convicted of the offenses charged, then expungement of criminal history




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records may be granted only under very limited circumstances that are set

forth by statute.” Id. (quoting Moto, 23 A.3d at 993).

      Section 9122 of the Crimes Code governs expungement following

conviction. Specifically, it provides, in pertinent part, that a criminal record

“may be expunged when:”

      (1) An individual who is the subject of the information reaches 70
      years of age and has been free of arrest or prosecution for ten
      years following final release from confinement or supervision.

      (2) An individual who is the subject of the information has been
      dead for three years.

            (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(b)(1)-(3)(i)-(ii).

      Despite the trial court’s claim that it had discretion to grant

expungement, it is clear that, pursuant to the statute, Appellee does not even

qualify for discretionary review of his petition. Appellee was a thirty-two year

old man who was clearly living at the time he filed his petition. While the

sentencing sheet does not indicate the exact grade of Appellee’s simple assault

conviction, the statute Appellee was convicted under provides that a simple

assault conviction is, at the very least, a misdemeanor of the third degree.

See 18 Pa.C.S.A. § 2701(b)(1). Further, the Commonwealth’s failure to timely

respond to Appellee’s petition is of no moment: such a failure cannot provide

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the court with statutory powers it otherwise lacks. Thus, we agree with the

Commonwealth that the trial court lacked the statutory authority to grant

Appellee’s request to expunge his simple assault conviction.

       Order reversed in part and affirmed in part.2


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/18




____________________________________________


2 The trial court’s order also granted Appellee’s request to expunge his
summary harassment conviction. See Trial Court Order, 3/7/17. As this part
of the order was not challenged by either party, we shall leave the trial court’s
expungement of Appellee’s criminal history record, in relation to his
harassment conviction, intact.

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