J-A27031-18

                                  2019 PA Super 169


    IN THE INTEREST OF: R.E.L., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: R.E.L., A MINOR                 :
                                               :
                                               :
                                               :
                                               :   No. 631 EDA 2018

                Appeal from the Order Entered February 2, 2018
    In the Court of Common Pleas of Pike County Criminal Division at No(s):
                           CP-52-JV-0000010-2012,
                           CP-52-JV-0000074-2011


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                                 FILED MAY 24, 2019

        The Commonwealth appeals from the order granting R.E.L.’s petition for

expungement of his juvenile court records. The Commonwealth contends that

expungement was improper under 18 Pa.C.S.A. § 9123(a)(4) because it did

not consent. We reverse.

        R.E.L. was adjudicated delinquent in 2012 for committing various

violations of the criminal code, including simple assault, harassment, and

burglary.1 He was discharged from placement in a juvenile facility in February

2014, and the court terminated his supervision in September 2017, when he

reached the age of 21.

        On November 3, 2017, R.E.L. filed a Petition to expunge his juvenile

record. R.E.L. alleged that he had completed a Heating, Ventilation, and Air

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1   18 Pa.C.S.A. §§ 2701(a)(1), 2709(a)(1), and 3502(a).
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Conditioning (“HVAC”) program, and obtained several HVAC certificates;

maintained employment; enlisted in the United States Army Reserves;

completed basic training; and received a diploma from United States Army

Military Police School as a Certified Corrections Officer and Certified

Corrections/Detention Specialist. The Petition also alleged that if his juvenile

record was not expunged, R.E.L. could be discharged from the military.

      The Commonwealth did not file a written response to the Petition. The

court held a hearing on December 13, 2017, at which the Commonwealth

orally objected to expungement. The court nonetheless granted the Petition,

and ordered the Clerk of Courts of the Pike County Court of Common Pleas,

the Pennsylvania State Police, and other agencies to expunge R.E.L.’s juvenile

records.

      In its Rule 1925(a) opinion, the trial court explained that it granted the

Petition pursuant to 18 Pa.C.S.A. § 9123(a)(4). The court stated that although

this section of the statute requires both the Commonwealth’s consent to

expungement and the court’s consideration of four enumerated factors, the

Commonwealth had waived objection to expungement by failing to respond to

the Petition within 30 days, as required by Pa.R.J.C.P. 170(D)(2).

      The Commonwealth appealed, presenting the following issue:

      Whether the lower court committed an error when granting . . .
      R.E.L.’s Petition for Expungement pursuant to 18 Pa.C.S.A. [§]
      9123(a)(4), when the Commonwealth did not consent to the
      expungement?

Commonwealth’s Br. at 10.


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      The Commonwealth argues that a court cannot grant expungement

under 18 Pa.C.S.A. § 9123(a)(4) unless the Commonwealth consents, and

that the Commonwealth’s waiver of objections under Rule 170(D)(2) by failing

to file a timely response does not satisfy the affirmative consent required by

the statute. The Commonwealth posits that Rule 170(D)(2)’s imposition of

waiver is applicable to expungement requests which do not rely on the section

requiring the Commonwealth’s consent. The Commonwealth also argues that

this Court examined Section 9123(a)(4) in In re R.R., 57 A.3d 134 (Pa.Super.

2012), and determined “that an expungement cannot be granted unless the

attorney for the Commonwealth consents[.]” Commonwealth’s Br. at 20.

      In return, R.E.L. argues that the court correctly found that the

procedures outlined in Rule 170(D)(2), including waiver of objections by the

Commonwealth, applied to his expungement petition, and that “[t]o find

otherwise would essentially make the Rules of Juvenile Court Procedure

inapplicable to the Commonwealth.” R.E.L.’s Br. at 8.

      The Statutory Construction Act, 1 Pa.C.S.A. §§ 1501–1991, guides our

analysis. See Pa.R.J.C.P. 101(D) (providing that rules of juvenile court

procedure are to be “construed in consonance with the rules of statutory

construction”); Commonwealth v. Hansley, 47 A.3d 1180, 1185 (Pa. 2012).

“[T]he polestar of statutory construction is to determine the intent of the

legislature and to give effect to all provisions of a statute, if possible.” R.R.,

57 A.3d at 139. To do so, we “must give plain meaning to the words of the

statute.” Id.; see also 1 Pa.C.S.A. § 1921. When two rules or statutes

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“appear to conflict, they shall be construed so that effect may be given to

both, if possible.” Hansley, 47 A.3d at 1186 (citing 1 Pa.C.S.A. § 1933); see

also Lohmiller v. Weidenbaugh, 469 A.2d 578, 580 (Pa. 1983).

        Statutory interpretation presents a question of law. R.R., 57 A.3d at

139. Thus, our standard of review is de novo and the scope of our review is

plenary. Id. We apply the same standard to construction of the Rules of

Juvenile Court Procedure. In Interest of D.C.D., 171 A.3d 727, 736 n.13

(Pa. 2017).

        Section 9123(a) of the Criminal History Record Information Act

(“CHRIA”)2 establishes various eligibility requirements for the expungement

of juvenile records. 18 Pa.C.S.A. § 9123(a). Section 9123(a)(4), at issue here,

provides eligibility when the court finds:

        (4) the attorney for the Commonwealth consents to the
        expungement and a court orders the expungement after giving
        consideration to the following factors:

          (i) the type of offense;

          (ii) the individual's age, history of employment, criminal
          activity and drug or alcohol problems;

          (iii) adverse consequences that the individual may suffer if
          the records are not expunged; and

          (iv) whether retention of the record is required for purposes
          of protection of the public safety.

18 Pa.C.S.A. § 9123(a)(4). Despite apparent eligibility established by Section

9123(a), Section 9123(a.1) provides that petitioners are ineligible for
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2   18 Pa.C.S.A. § 9101-9183.

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expungement if they were found delinquent for committing certain offenses

when over the age of 14, or “[u]pon cause shown.” Id. at § 9123(a.1).

      Rule 170 of the Rules of Juvenile Court Procedure is titled “Motion to

Expunge or Destroy Records.” Pa.R.J.C.P. 170. Subsection A of the Rule

generally tracks Section 9123(a)’s eligibility requirements for expungement of

certain juvenile records. See Pa.R.J.C.P. 170(A). Other subsections relate to

court procedures for expungement. See Pa.R.J.C.P. 170(B), (C). Rule

170(D)(2), relevant here, provides that the Commonwealth waives objections

to expungement if it fails to make them within 30 days of the filing of the

expungement petition. The Rule states:

      D. Answer.

         (1) The attorney for the Commonwealth, and any other
         person upon whom the motion was served, may file an
         answer to the motion.

         (2) If objections to the motion are not made within thirty
         days of the filing of the motion, they shall be deemed
         waived.

Pa.R.J.C.P. 170(D).

      We previously considered Section 9123(a)(4) and an apparent conflict

with Rule 170 in In re R.R. In that case, two petitioners sought expungement

of their juvenile records under Section 9123(a)(4). R.R., 57 A.3d at 135-36.

The trial court denied both petitions because the Commonwealth did not

consent to the expungement. The petitioners appealed, arguing that

interpreting the statute to allow the Commonwealth to veto an expungement



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petition undermined the spirit of CHRIA and conflicted with Rule 170(E). Id.

at 137-38. At the time we decided R.R., Rule 170(E) stated, “Unless the

attorney for the Commonwealth consents to expunging the records, the court

shall schedule and conduct a hearing, and thereafter grant or deny the

motion.” Id. at 138 (citing former Rule 170(E)). The petitioners argued that

the Rule’s language indicated that if the Commonwealth did not consent, the

court could still grant the petition after holding a hearing.

        We denied relief. As we “recognize[d] some ambiguity” in the language

of Section 9123(a)(4), we turned to the legislative intent as demonstrated by

discussions on the House floor specifically regarding a proposal to strike the

reference to the Commonwealth’s consent from Section 9123(a)(4). R.R., 57

A.3d at 141. We observed that one opponent to striking the language

explained that the amendment adding (a)(4) “provide[d] an additional avenue

by which juveniles can seek and be granted expungement”:

        First of all, I would point out to the members of the House that if
        the juvenile remains crime free for a period of 5 years, the right
        to expungement is left solely to the court, as the gentleman would
        have it.[3] What we are suggesting in this bill is that if an individual
        who has not had that 5–year period elapse after they had been
        adjudicated delinquent and if they wish to have their records
        expunged, that the only way that can be done or even considered
        by the court is if the district attorney of that county approves or
        consents.

                                           ...

        The reason we are doing that is because the district attorney, as
        the chief law enforcement officer in the county, elected by the
____________________________________________


3   See 18 Pa.C.SA. § 9123(a)(3).

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J-A27031-18


      people of your particular county, is charged with the responsibility
      of helping to insure public safety, and these records may be
      valuable for law enforcement purposes. And so if a record is to be
      expunged before that period of time in which a 5–year timeframe
      elapses in which the person is crime free, we feel, I feel, and the
      sponsors of this bill feel that it is entirely appropriate that the chief
      law enforcement officer in the county put his or her stamp of
      approval on that petition.

Id. at 141-43 (quoting the House Legislative Journal, 2/28/95, at 173-75).

We noted that these remarks evinced the General Assembly’s intent in CHRIA

to “balance[] the help received by the juvenile and the stigma attached to an

adjudication of delinquency against the protection of public safety.” Id. at 143

(citing In re A.B., 987 A.2d 769, 774 (Pa.Super. 2009)).

      In    addition,   we    concluded     that   the    statute    requiring     the

Commonwealth’s consent did not conflict with the hearing procedure outlined

in the previous version of Rule 170(E). Rather, we found the Rule only

indicated that the Commonwealth’s consent could control whether the court

was required to hold a hearing. R.R., 57 A.3d at 143. Ultimately, we held that

Section    9123(a)(4)   “allows   the   Commonwealth        to   deny   consent,    a

determination by the Commonwealth that cannot be overridden by the

juvenile court.” Id. (emphasis added).

      In 2014, following our decision in R.R., the Supreme Court amended

Rule 170. The current version of Rule 170(E) makes no mention of consent by

the Commonwealth, and instead states, “The court shall conduct a hearing or

grant or deny the motion after giving consideration to [four enumerated]




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factors.”4 It thus has no import to the instant case. The Court also added Rule

170(D)(2), requiring the Commonwealth to assert any objection to the petition

within 30 days or waive all objections.5 Thus, the issue of waiver, and whether

Rule 170(D)(2) conflicted with Section 9123(a)(4), was not in issue in R.R.

        However, our analysis in R.R. remains relevant, as it acknowledges that

our legislature crafted Section 9123(a)(4) with explicit consideration that a

petition must not be granted under that section unless the Commonwealth, as

gatekeeper, consents. In light of this, we cannot condone an interpretation of

the statute that equates silence by the Commonwealth as a “stamp of approval

on [a] petition.” R.R., 57 A.3d at 142 (quoting the House Legislative Journal,

2/28/95, at 173-75).

        Moreover, our construction of the statute does not conflict with the plain

language of the Rule. Rule 170(D)(2) addresses the Commonwealth’s ability
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4   Those factors are:

        (1) the type of offense;

        (2) the individual’s age, history of employment, history of
        academic or vocational training, delinquent or criminal activity,
        and drug or alcohol issues;

        (3) adverse consequences that the individual may suffer if the
        records are not expunged; and

        (4) whether retention of the record is required for purposes of
        public safety.

Rule 170(E).

5 In 2012, when we decided R.R., Rule (D) provided that the Commonwealth
“may” file an answer to a petition for expungement; it did not impose waiver
for failing to do so within a certain time frame.

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to lodge an objection to a petition. Black’s Law Dictionary defines “objection”

as, “A formal statement opposing something that has occurred, or is about to

occur, in court and seeking the judge’s immediate ruling on the point.” Black's

Law Dictionary (10th ed. 2014). Accordingly, Rule 170(D)(2) imposes a time

limit in which the Commonwealth may oppose expungement, in order to seek

the judge’s ruling on the grounds for opposition. In contrast, Section

9123(a)(4) requires the court find the Commonwealth gave consent before

granting   expungement.     See    18    Pa.C.S.A.   §   9123(a)(4)   (providing

expungement shall occur whenever the court finds “the attorney for the

Commonwealth consents to the expungement”). “Consent” is defined as, “A

voluntary yielding to what another proposes or desires; agreement, approval,

or permission regarding some act or purpose, esp. given voluntarily by a

competent person.” Black's Law Dictionary (10th ed. 2014). A failure to object

is plainly not the giving of consent.

      In addition, the plain language of Section 9123(a)(4) does not give the

court authority to overrule the Commonwealth’s denial of consent, as the court

may do after an “objection.” Rather, according to its terms, the statute

bestows the Commonwealth with the authority to grant or withhold consent.

Only after the court finds that the Commonwealth consents does the statute

imbue the court with the authority to consider the four enumerated factors

and grant or deny expungement.

      Finally, requiring affirmative consent by the Commonwealth prior to

expungement under Section 9123(a)(4) does not render “the Rules of Juvenile

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Court Procedure inapplicable to the Commonwealth.” R.E.L.’s Br. at 8. The

Commonwealth is still obligated to lodge timely objections pursuant to Rule

170(D)(2) when it opposes any of the other avenues for eligibility provided by

Section 9123(a), or risk waiver of those objections. The Commonwealth could

even lodge a timely objection where it consents to expungement under

Section 9123(a)(4), if, for example, it did not wholly agree with the allegations

in the Petition.

      As the Commonwealth did not consent to the expungement of R.E.L.’s

juvenile records, the trial court erred in granting the petition and ordering

expungement under Section 9123(a)(4). We therefore reverse the order of

the trial court.

      Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/19




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