J-S65041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 AMINA M. BRODIE                       :
                                       :
                   Appellant           :   No. 858 MDA 2018

               Appeal from the Order Entered April 23, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-MD-0000608-2018

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 AMINA M. BRODIE                       :
                                       :
                   Appellant           :   No. 859 MDA 2018

               Appeal from the Order Entered April 23, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-MD-0000609-2018

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 AMINA M. BRODIE                       :
                                       :
                   Appellant           :   No. 860 MDA 2018

               Appeal from the Order Entered April 23, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-MD-0000610-2018


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
J-S65041-18



JUDGMENT ORDER BY McLAUGHLIN, J.:                 FILED FEBRUARY 05, 2019

        Amina M. Brodie appeals from the order denying her petitions for

expungement. We vacate and remand for proceedings consistent with this

memorandum.

        In 2015 and 2017, Brodie was charged with simple assault1 on each of

the three above-listed docket numbers. Each of these charges was dismissed

by a magisterial district justice. On April 19, 2018, Brodie filed three petitions

seeking expungement for the dismissed charges pursuant to Pa.R.Crim.P. 790

and 18 Pa.C.S.A. § 9122. The court denied the petition on April 23, 2018,

stating that Brodie was ineligible for expungement because she has not been

free from criminal prosecution for five years, citing 18 Pa.C.S.A. §

9122(b)(3)(i). Brodie filed a motion for reconsideration. The court ordered the

Commonwealth to respond to the motion, but before it did so, Brodie filed the

instant appeal, on May 23, 2018. See Pa.R.A.P. 1701(b)(3) (providing 30-day

period for filing appeal will only toll upon trial court’s express grant of

reconsideration motion). The next day, the Commonwealth filed an Answer

stating that it did not oppose expungement.

        In lieu of filing a Rule 1925(a) opinion, the court filed a statement

asserting that “[a]fter further review of the above-captioned matter, this Court

does not oppose the petition for expungement. To the extent possible, this

Court requests that the above-captioned matter be remanded with leave to

____________________________________________


1   18 Pa.C.S.A. § 2701(a)(1).

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J-S65041-18



grant the petition for expungement or in the alternative that the relief

requested by [Brodie] be granted.” Statement in Lieu of Memorandum

Opinion, filed June 25, 2018, at 1.

      Brodie raises the following issue:

      Whether the trial court erred as a matter of law when it denied
      [Brodie]’s Petitions to Expunge based upon its determination that
      [Brodie] had to be free from arrest or prosecution for a five-year
      period in contravention of 18 Pa.C.S.[A. § ]9122, which does not
      impose such requirement on the non-conviction data for which the
      [Brodie] sought expungement.

Brodie’s Br. at 4. In lieu of a brief, the Commonwealth filed a letter stating

that it “does not intend to argue against the relief that [Brodie] seeks in her

direct appeal. The Commonwealth agrees with the trial court that this matter

should be remanded with leave to grant [Brodie]’s petitions for expungement

or in the alternative that the relief requested by [Brodie] be granted.” Letter,

8/21/18, at 1. We review the court’s ruling on a petition for expungement for

an abuse of discretion. Commonwealth v. Rodland, 871 A.2d 216, 218

(Pa.Super. 2005).

      The trial court denied Brodie’s petition for expungement based upon 42

Pa.C.S.A. § 9122(b)(3). This subsection provides that criminal history may be

expunged where the expungement is for the conviction of a summary offense

and the petitioner has been free of conviction or arrest for five years

subsequent to the summary conviction. See 42 Pa.C.S.A. § 9122(b)(3). As

the trial court has since realized, this section has no application in the instant

case, where the petition requests expungement of charges which did not result

                                      -3-
J-S65041-18



in convictions. We therefore agree with Brodie, the Commonwealth, and the

trial court, that the case should be remanded for consideration of Brodie’s

petition under the appropriate standard. See Commonwealth v. Moto, 23

A.3d 989, 993 (Pa. 2011) (“When a prosecution has been terminated without

conviction or acquittal,” trial court is required “to ‘balance the individual's right

to be free from the harm attendant to maintenance of the arrest record against

the   Commonwealth’s       interest   in    preserving   such   records’”   (quoting

Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981)); see also

Rodland, 871 A.2d at 221 (“Rarely, if ever, will charges dismissed for lack of

evidence fail to qualify for expungement under Wexler”).

      Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2019




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