J-A34028-14

                              2015 PA Super 42

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                       Appellee          :
                                         :
            v.                           :
                                         :
VICTORIA C. GIULIAN,                     :
                                         :
                        Appellant        :     No. 906 MDA 2014


                Appeal from the Order Entered April 30, 2014,
               In the Court of Common Pleas of Centre County,
              Criminal Division, at No. CP-14-MD-0000836-2013.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.

OPINION BY SHOGAN, J.:                          FILED FEBRUARY 23, 2015

      Appellant, Victoria C. Giulian, appeals from the April 30, 2014 order

that denied her petition for expungement. For the reasons that follow, we

affirm.

      In 1997, Appellant pled guilty to the summary offenses of underage

drinking, harassment, and public drunkenness (“the 1997 offense”).     In a

separate matter, nearly one year later, Appellant pled guilty to the summary

offense of criminal mischief (“the 1998 offense”).

      On May 8, 2013, Appellant filed petitions to expunge both the 1997

offense and the 1998 offense. The Centre County District Attorney objected

to the expungement of the 1997 offense. The objection was based on the

fact that Appellant had been arrested and pled guilty to the 1998 offense;
J-A34028-14



thus, she had not remained arrest or prosecution free for the five years

following her conviction for the 1997 offense as required by 18 Pa.C.S.

§ 9122(b)(3)(i).1   On June 24, 2013, the trial court granted Appellant’s

petition to expunge the 1998 offense because Appellant had been free from

arrest or prosecution following that conviction. However, following a hearing

and an opportunity to brief the issue, the trial court denied Appellant’s

petition to expunge the 1997 offense in an order filed on April 30, 2014.

This timely appeal followed.

      On appeal, Appellant raises one issue for this Court’s consideration:

      Did the trial court commit an error of law in finding that
      [Appellant] was not statutorily eligible to have her summary
      convictions expunged pursuant to 18 Pa.C.S.A. § 9122(b)(3)
      despite the fact that [Appellant] has been free of arrest and
      prosecution for more than five years following the convictions?

Appellant’s Brief at 4.

      “The intent of an expungement statute is ‘to protect that individual

from the difficulties and hardships that may result from an arrest on

record.’” Commonwealth v. Butler, 672 A.2d 806, 808 (Pa. Super. 1996).



1
    As noted above, Appellant also pled guilty to one count of underage
drinking arising from the 1997 offense. However, the underage drinking
conviction was expunged pursuant to 18 Pa.C.S. § 9122(a)(3).             The
underage drinking conviction was a specifically enumerated offense that did
not require Appellant to remain arrest or prosecution free for the five years
following her conviction in order to be eligible for expungement. Thus, the
only convictions for which Appellant was denied expungement in the 1997
offense were harassment and public drunkenness; it is the denial of the
petition to expunge those crimes that underlies this appeal.

                                      -2-
J-A34028-14



However, “the decision to grant or deny a petition for expungement lies in

the sound discretion of the trial court, who must balance ‘the individual’s

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

against   the   Commonwealth’s    interest   in   preserving   such   records.’”

Commonwealth v. Wallace, 97 A.3d 310, 317 (Pa. 2014) (quoting

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

     Appellant’s claim of error requires this Court to determine the correct

interpretation of 18 Pa.C.S. § 9122(b)(3)(i).     Statutory interpretation is a

question of law, and therefore our scope of review is plenary, and our

standard of review is de novo. Commonwealth v. Van Aulen, 952 A.2d

1183, 1184 (Pa. Super. 2008).

     The statute at issue reads in relevant part as follows:

     (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



2
   The Wexler Court also discussed a non-exhaustive list of factors the court
should consider when faced with a petition for expungement, which includes:
the strength of the Commonwealth’s case against the petitioner; the reasons
the Commonwealth gives for wishing to retain the records; the petitioner’s
age, criminal record, and employment history; the length of time that has
elapsed between the arrest and the petition to expunge; and the specific
adverse consequences the petitioner may endure should expunction be
denied. Wexler, 431 A.2d at 879.

                                      -3-
J-A34028-14



              or prosecution for five years following the
              conviction for that offense.

18 Pa.C.S. § 9122(b)(3)(i) (emphasis added).            Thus, the issue is whether

the language contained in 18 Pa.C.S. § 9122(b)(3)(i) allows 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. After review, we agree with the trial court that

the correct interpretation is the latter.

      Basic rules of statutory construction set forth that statutes shall be

construed to give effect to all its provisions, if possible, keeping in mind that

the legislature did not intend any statutory language to exist as mere

surplusage.    Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super.

2013) (citation and quotation marks omitted); 1 Pa.C.S. § 1921(a), (b).

      Words and phrases shall be construed according to rules of
      grammar and according to their common and approved usage;
      but technical words and phrases and such others as have
      acquired a peculiar and appropriate meaning or are defined in
      this part, shall be construed according to such peculiar and
      appropriate meaning or definition.

1 Pa.C.S. § 1903(a).     Additionally, under the rule of lenity, penal statutes

must be strictly construed, and ambiguities must be resolved in favor of the

criminal defendant. Commonwealth v. Rivera, 10 A.3d 1276, 1284 (Pa.

Super. 2010). Here, however, we discern no ambiguity.




                                            -4-
J-A34028-14



        If the General Assembly intended 18 Pa.C.S. § 9122(b)(3)(i) to require

only that Appellant remain free of arrest or prosecution for any period of

five years following her conviction for the 1997 offense, it would not have

utilized the phrase “following the conviction for that offense,” and the statute

would have read, in relevant part, as follows:

        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.

Because we may not disregard statutory language as mere surplusage,

Baker, 72 A.3d at 662, we agree with the trial court’s interpretation that

Appellant was required to remain free of arrest or prosecution for the five

years    immediately      following   her    conviction   for   the   1997   offense.

Therefore, as Appellant was not free of arrest or prosecution for the five

years following the 1997 offense, we discern no error or abuse of discretion

in the trial court’s order denying her petition to expunge the 1997 offense.

Accordingly, we affirm.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2015



                                            -5-
