Commonwealth v. Giulian v. Aplt.

[J-49-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

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, :
:
Appellant : ARGUED: April 6, 2016

OPINION

JUSTICE DOUGHERTY DECIDED: July 19, 2016
We consider the statutory requirements for expungement of criminal history

record information for summary convictions pursuant to 18 Pa.C.S. §9122(b)(3) and

conclude the lower courts erred in holding expungement unavailable as a matter of law

in this matter. We therefore reverse and remand.

Appellant Victoria C. Giulian, then twenty years old, was arrested on April 20,

1997, and ultimately pleaded guilty to the summary offenses of public drunkenness, 18

Pa.C.S. §5505, and harassment, 18 Pa.C.S. §2709(a)(1). At this same time, appellant

was also charged with the misdemeanor offense of disorderly conduct, 18 Pa.C.S.

§5503(a)(2), a charge later withdrawn, and the summary offense of underage drinking,

18 Pa.C.S. §6308(a), to which she pleaded guilty. Appellant was then arrested on

September 27, 1998, and pleaded guilty to the summary offense of criminal mischief, 18

Pa.C.S. §3304.
 Appellant has had no arrests since September 27, 1998. On May 8, 2013,

appellant filed a petition seeking expungement of these summary convictions from her

criminal history record under Section 9122(b)(3), which provides:

(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 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. §9122(b)(3).1
The Commonwealth did not object to expungement of the withdrawn disorderly

conduct charge and the guilty plea conviction for underage drinking, and the record of

these charges was expunged. The Commonwealth did oppose expungement

respecting the other offenses, however. The Centre County Court of Common Pleas

granted the petition with regard to the 1998 criminal mischief conviction, but denied

expungement of the records relating to the 1997 public drunkenness and harassment

convictions. The court acknowledged appellant was “conviction free for 16 years” after

1998, but determined appellant was not entitled to expungement of the earlier

convictions because her 1998 arrest and plea meant she did not remain free of arrest or

prosecution for “at least five years following the 1997 convictions” as required by

subsection (b)(3)(i). Trial Court Opinion, 7/16/14, slip op. at 4.

1
Subsection (b) also allows discretionary expungement when an individual “reaches 70
years of age and has been free of arrest or prosecution for ten years following final
release from confinement or supervision,” 18 Pa.C.S. §9122(b)(1), or “has been dead
for three years.” 18 Pa.C.S. §9122(b)(2).

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 Appellant filed an appeal to the Superior Court, which affirmed the trial court in a

brief published decision. Commonwealth v. Giulian, 111 A.3d 201 (Pa. Super. 2015).

The panel recognized penal statutes are to be strictly construed under the rule of lenity,

with ambiguities resolved in favor of the defendant. Id. at 204. However, the panel

considered the language of Section 9122(b)(3)(i) to be clear and unambiguous and held

the language supported the trial court’s reading of the term “free of arrest or prosecution

for five years following the conviction.” Id. The panel interpreted the statutory language

as requiring appellant to remain free of arrest or prosecution for “the” five years

“immediately following her conviction for the 1997 offense[s],” rather than for “any” five-

year period following those offenses. Id. (emphases in original). In the panel’s view,

the reading proffered by appellant treated as surplusage the concluding statutory

phrase, “following the conviction for that offense.” Id.

Appellant filed a petition for allowance of appeal, and this Court granted review of

the following question:

Did the Superior Court commit an error of law in finding that the Petitioner
was not statutorily eligible to have her summary convictions expunged
pursuant to 18 Pa.C.S.A. § 9122(b)(3) despite the fact that Petitioner has
been free of arrest and prosecution for more than sixteen years following
the convictions, over ten years longer than the statutory requirement?

Commonwealth v. Giulian, 122 A.3d 1029 (Pa. 2015).

Appellant argues she is eligible to have the records of her 1997 summary

convictions expunged because she has been free from arrest and prosecution for more

than sixteen years following those convictions, over ten years longer than the five-year

requirement set forth in Section 9122(b)(3)(i). Appellant asserts the Superior Court

incorrectly read into the statute a requirement that the five arrest-free years be

“immediately” following the conviction sought to be expunged, when the actual text of

[J-49-2016] - 3
the statute does not include that qualifier. Appellant claims courts should not add words

or phrases when construing a statute unless the words are “necessary for a proper

interpretation, do not conflict with the obvious intent of the statute, and do not in any

way affect its scope and operation.” Appellant’s Brief at 11, citing Commonwealth v.

Segida, 985 A.2d 871, 875 (Pa. 2009). Appellant points out the General Assembly has

used “immediately following” in other statutes when it intends to qualify timing in this

way, and thus the omission of the phrase from Section 9122(b)(3)(i) is telling.

Appellant’s Brief at 12, citing, e.g., 18 Pa.C.S. §9143 (Office of Attorney General has

power to promulgate guidelines for implementation of statute for period of “one year

immediately following the effective date of this section”).

In a second textual argument, appellant points to the absence of the definite

article “the” to circumscribe the period referenced in Section 9122(b)(3)(i); she argues

the Superior Court improperly supplied this limiting language to the statute when it

interpreted it as requiring her to remain arrest-free for “the” five years “immediately

following” the 1997 convictions. Giulian, 111 A.3d at 204. Appellant further stresses

the Legislature’s use of the present perfect tense — “has been free of arrest” —

supports her interpretation that the statute does not refer to any particular five-year

period, and that period can occur recently, as opposed to the Superior Court’s

conversion of the language, in the final paragraph of its opinion, to read “was not free of

arrest or prosecution.” Id. (emphasis added). Moreover, appellant argues, the Superior

Court’s concern that her reading renders the final phrase of the statute surplusage is

misplaced because the words “following the conviction for that offense” are necessary

[J-49-2016] - 4
to establish the possible start date for any five-year waiting period, i.e., the period

begins after conviction for the summary offense.

According to appellant, even if Section 9122(b)(3) is ambiguous, it is a penal

statute which must ordinarily be strictly construed, see 1 Pa.C.S. §1928(b)(1), and

under the rule of lenity any ambiguity must be construed in her favor. See

Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008) (if ambiguity exists in penal

statute it should be interpreted in light most favorable to accused; where doubt exists,

accused should receive benefit of doubt). In the alternative, appellant argues

exceptions to remedial legislation — such as this expungement provision — are

narrowly construed against the Commonwealth, because such a statute should be

“construed liberally to effectuate its humanitarian objectives.” Appellant’s Brief at 22,

quoting School Dist. of Phila. v. WCAB, 117 A.3d 232, 242 (Pa. 2015).

Finally, appellant argues the General Assembly intended to allow rehabilitated

individuals like herself to secure expungement of their minor summary citations, in order

to achieve better access to jobs or housing, and so, to the extent there is an ambiguity,

this Court should interpret the statute with this particular legislative intent in mind.2

2
Amici curiae Juvenile Law Center, Homeless Advocacy Project, Defender Association
of Philadelphia, X-Offenders for Community Empowerment, Pennsylvania Prison
Society, Broad Street Ministry, Impact Services, and Resources for Human
Development filed a brief in support of appellant, expanding on this particular argument
involving the consequences of a narrowing interpretation of the availability of
expungement. Amici posit that Section 9122(b)(3)(i) is ambiguous, and should be
construed in favor of criminal defendants like appellant with low-level offenses, so they
can overcome the substantial barriers created by a criminal record to finding
employment or housing, or pursuing opportunities for higher education. Amici note
research indicates individuals who are permitted to have their criminal records
expunged or sealed are more likely to find jobs and less likely to be rearrested. Amici
argue it is in the best interests of the citizens of the Commonwealth to allow low-level
(continuedN)

[J-49-2016] - 5
Appellant claims the Superior Court’s interpretation will produce absurd and

unreasonable results, as it has here — where the record of the more recent summary

citation was expunged while the older ones remain intact — and this cannot be the

intent of the Legislature. See, e.g., 1 Pa.C.S. §1922(1) (presumption that General

Assembly does not intend absurd, impossible or unreasonable result); Banfield v.

Cortes, 110 A.3d 155, 168 (Pa. 2015) (same).

Echoing the interpretation of the courts below, the Commonwealth responds that

appellant’s 1997 summary convictions cannot be expunged because she failed to

remain free of arrest or prosecution for five years, due to her subsequent 1998 arrest

and conviction. The Commonwealth claims the statute is clear and unambiguous in its

meaning: “a defendant must be arrest or prosecution free for five years immediately

following the conviction for the offense she wishes to expunge.” Appellee’s Brief at 8.

The Commonwealth agrees Section 9122(b)(3) is a penal statute, see id. at 9, but, like

the Superior Court below, claims it is free from ambiguity and so the rule of lenity does

not mandate a reading in appellant’s favor. See Giulian, 111 A.3d at 204. The

Commonwealth asserts the statute makes plain the Legislature’s intention that a

conviction for a summary offense, no matter how old, can never be expunged if there is

another conviction within five years of that first offense; under such circumstances, “the

opportunity to expunge the initial summary offense disappears upon a defendant’s

subsequent arrest or prosecution and the focus turns to the new, subsequent offense.”

Appellee’s Brief at 10.

(Ncontinued)
offenders “to have a fair shot at becoming contributing members of society.” Amicus
Curiae Brief at 5.

[J-49-2016] - 6
 The Commonwealth rejects what it characterizes as appellant’s “public policy”

argument that the statute should be interpreted to give her “a break through

expungement.” Id. at 13. Instead, according to the Commonwealth, the humanitarian

goals of the Legislature are achieved under the statute because a defendant can “rid[ ]

herself of the stigma associated with a summary offense conviction if she can simply

remain arrest-free for five years following that conviction.” Id. at 14. Otherwise, the

Commonwealth claims, a defendant receives a “volume discount” — she could “commit

a years-long summary conviction crime-spree, end the spree, then apply for

expungement” five years after the last offense. Id. at 17.

Finally, the Commonwealth argues expungement is left to the discretion of the

trial court, even after both prongs of subsection (b)(3) are met, and while the court was

thus within its discretion to expunge the 1998 offense, the Commonwealth posits there

was no abuse of discretion in denial of expungement of the 1997 offense, where

appellant was not eligible under subsection (b)(3). Id. at 17-19.

The question presented is one of statutory interpretation and is therefore a

question of law; our standard of review is de novo, and our scope of review is plenary.

Fithian, 961 A.2d at 71 n.4. We have stated “[j]udicial analysis and evaluation of a

petition to expunge depend upon the manner of disposition of the charges against the

petitioner. When an individual has been convicted of the offenses charged, then

expungement of criminal history records may be granted only under very limited

circumstances that are set forth by statute.” Commonwealth v. Moto, 23 A.3d 989, 993

(Pa. 2011), citing, inter alia, 18 Pa.C.S. §9122. At the same time, the permissive

language of Section 9122(b) — providing “[c]riminal record history may be expunged” —

[J-49-2016] - 7
clearly vests discretion in the court to expunge a qualifying record. See also

Commonwealth v. Wallace, 97 A.3d 310, 317 (Pa. 2014) (decision to grant or deny

petition for expungement lies in sound discretion of trial court); Commonwealth v.

Wexler, 431 A.2d 877, 879 (Pa. 1981) (in determining whether to grant expungement

court must balance individual's right to be free from harm attendant to maintenance of

arrest record against Commonwealth's interest in preserving such record).3 Subsection

(b)(3)(i) then includes the relevant qualifying language regarding timing: the individual

seeking expungement must be “free of arrest or prosecution for five years following the

conviction for that offense.”

In matters involving statutory interpretation, the Statutory Construction Act directs

courts to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S.

§1921(a). A statute’s plain language generally provides the best indication of legislative

intent. See, e.g., McGrory v. Dep’t of Transp., 915 A.2d 1155, 1158 (Pa. 2007);

Commonwealth v. Gilmour Mfg. Co., 822 A.2d 676, 679 (Pa. 2003). In construing the

language, however, and giving it effect, “we should not interpret statutory words in

isolation, but must read them with reference to the context in which they appear.”

3
It appears neither Wallace nor Wexler arose out of petitions for expungement filed
pursuant to Section 9122; expungement was sought on different grounds. Wallace, 97
A.3d at 312-14 (inmate with “vast criminal history” of serious offenses sought
expungement and other relief on generic due process grounds; no discussion of
statutory grounds); Wexler, 431 A.2d at 879 (expungement petitions denied in January
1978, prior to 1979 adoption of statutory grounds for expungement). We cite Wexler
because it sets forth useful factors for consideration by a court presented with a
discretionary expungement request, and because it would appear the Wexler factors
still have some force within the context of the statutory expungement scheme. See,
e.g., Moto, 23 A.3d at 1002 (Saylor, J., dissenting, joined by Castille, C.J., and Orie
Melvin, J.) (“[T]here is a colorable argument that the General Assembly intended to
codify, rather than displace, this common law [expungement] scheme when it enacted
Section 9122(a)(2) of the [Criminal History Record Information Act].”).

[J-49-2016] - 8
Roethlein v. Portnoff Law Assocs, Ltd., 81 A.3d 816, 822 (Pa. 2013), citing Mishoe v.

Erie Ins. Co., 824 A.2d 1153, 1155 (Pa. 2003). Accord Commonwealth v. Office of

Open Records, 103 A.3d 1276, 1285 (Pa. 2014) (statutory language must be read in

context; in ascertaining legislative intent, every portion is to be read together with

remaining language and construed with reference to statute as a whole).

The United States Supreme Court also takes a contextual approach in assessing

the plain language of statutes and in determining if an ambiguity exists. See generally

King v. Burwell, __ U.S. __, __, 135 S.Ct. 2480, 2489 (2015) (“If the statutory language

is plain, we must enforce it according to its terms. But oftentimes the meaning — or

ambiguity — of certain words or phrases may only become evident when placed in

context. So when deciding whether the language is plain, we must read the words in

their context and with a view to their place in the overall statutory scheme.” (internal

quotation marks and citations omitted)); Yates v. United States, __ U.S. __, __, 135

S.Ct. 1074, 1081-82 (2015) (“‘[T]he plainness or ambiguity of statutory language is

determined [not only] by reference to the language itself, [but as well by] the specific

context in which that language is used, and the broader context of the statute as a

whole.’ Ordinarily, a word’s usage accords with its dictionary definition. In law as in life,

however, the same words, placed in different contexts, sometimes mean different

things.” (internal citations omitted)).

When a statute is ambiguous, we may go beyond the relevant texts and look to

other considerations to discern legislative intent. “Where statutory or regulatory

language is ambiguous, this Court may resolve the ambiguity by considering, inter alia,

the following: the occasion and necessity for the statute or regulation; the circumstances

[J-49-2016] - 9
under which it was enacted; the mischief to be remedied; the object to be attained; the

former law, if any, including other statutes or regulations upon the same or similar

subjects; the consequences of a particular interpretation; and administrative

interpretations of such statute.” Freedom Med. Supply, Inc. v. State Farm Fire & Cas.

Co., 131 A.3d 977, 984 (Pa. 2016), citing 1 Pa.C.S. §1921(c).

The parties here argue Section 9122(b) is clear and unambiguous and that its

plain terms support their respective readings – which are squarely opposed. When the

parties read a statute in two different ways and the statutory language is reasonably

capable of either construction, the language is ambiguous. Id. Unlike the

Commonwealth, we believe this provision is, at a minimum, ambiguous. Appellant’s

textual points concerning the language of the statute are certainly plausible, so much

so, in fact, the Superior Court resorted to adding words to the statute in order to dismiss

appellant’s argument. For example, the statute does not include the definite article “the”

or the word “immediately” in order to circumscribe the time period referenced in Section

9122(b)(3)(i); the Superior Court itself supplied this limiting language to the statute by

concluding a defendant must remain arrest-free for “the” five years “immediately

following” the 1997 convictions. Giulian, 111 A.3d at 204 (emphasis in original). The

Commonwealth likewise interpolates the word “immediately” in insisting the statute

lacks ambiguity. This Court has cautioned, however, “although one is admonished to

listen attentively to what a statute says[,] one must also listen attentively to what it does

not say.” Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011), quoting Kmonk-

Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001). Accordingly,

we have stressed courts should not add, by interpretation, a requirement not included

[J-49-2016] - 10
by the General Assembly. Johnson, 26 A.3d at 1090, citing Commonwealth v. Rieck

Investment Corp., 213 A.2d 277, 282 (Pa. 1965).

We also credit appellant’s view the General Assembly’s use of the present

perfect tense “has been free of arrest” supports that the statute does not refer to any

particular five-year period; again, it is notable the Superior Court altered the text in

narrowing the scope of the provision. See Giulian, 111 A.3d at 204 (“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.”) (emphasis added).

For purposes of decision, we need not dispute that the contrary reading of the

provision is also colorable as a textual matter, but it is notable the Superior Court and

the Commonwealth easily demonstrate how much clearer the language could be if the

provision actually included the terms “the” and “immediately” — or other terms of

limitation. Finally, appellant successfully rebuts the Superior Court’s concern her

interpretation rendered the final phrase of the statute surplusage: the clause “following

the conviction for that offense” reasonably bears the construction it merely establishes

the possible start date for any five-year waiting period, i.e., the period is simply after the

conviction for the subject summary offense. Under this reading, there is no

surplusage.

Our determination the statute is ambiguous is further supported by viewing the

language in its context as part of the overall statutory scheme. See, e.g., 1 Pa.C.S.

§1921(a) (sections of statute should be read together and construed to give effect to all

provisions); Roethlein, 81 A.3d at 822 (statutory words not to be interpreted in isolation

[J-49-2016] - 11
but read with reference to context in which they appear); Mishoe, 824 A.2d at 1155

(same). See also Sturgeon v. Frost, __ U.S. __, __, 136 S.Ct. 1061, 1070 (2016)

(“Statutory language ‘cannot be construed in a vacuum. It is a fundamental canon of

statutory construction that the words of a statute must be read in their context and with

a view to their place in the overall statutory scheme.’”). It is undisputed Section 9122 is

designed to afford the prospect of expungement relief to certain individuals under

specified circumstances. The statute embraces three distinct approaches: situations

where expungement must be granted, situations where it cannot be granted, and

situations where expungement is possible in the discretion of the trial court. For

example, subsection (a) describes situations where criminal record history must be

expunged. 18 Pa.C.S. §9122(a) (criminal history record information shall be expunged

when no disposition has been recorded within 18 months of arrest and it is certified no

action is pending, or when a person convicted of underage drinking attains 21 years of

age and has satisfied all terms and conditions of sentence).4 Contrarily, subsection

(b.1) describes situations where criminal history records can never be expunged. 18

Pa.C.S. §9122(b.1) (court shall not have authority to order expungement of arrest

record where defendant was placed on Accelerated Rehabilitative Disposition for

violation of certain enumerated offenses where victim is under 18 years of age). Finally,

subsection (b) describes middle-ground situations where the court may grant

expungement under certain conditions. 18 Pa.C.S. §9122(b). Cf. Moto, 23 A.3d at

4
See Commonwealth v. Furrer, 48 A.3d 1279, 1282 (Pa. Super. 2012) (expungement of
defendant’s guilty-plea conviction of underage drinking was statutorily required where
conditions were met; denial of expungement was abuse of discretion).

[J-49-2016] - 12
1000 (Saylor, J., dissenting) (“Expungement is discretionary when sought to purge

criminal history record information generally (i.e., to wipe the slate clean).”). Here, the

reading of the Superior Court and the Commonwealth takes the provision framed in

discretionary language and carves out an exception where expungement can never be

secured. The overall structure of the statute weighs against this narrowing construction.

Other statutory construction factors also weigh in favor of appellant’s reading.

Although the Superior Court affirmed the denial of expungement in this case, the panel

nevertheless recognized the purpose of the expungement statute — the occasion and

necessity for its enactment, the mischief to be remedied, and the object to be attained

— is to ameliorate the “difficulties and hardships” that often result from an arrest record.

Giulian, 111 A.3d at 203, quoting Commonwealth v. Butler, 672 A.2d 806, 808 (Pa.

Super. 1996). “Expungement is a mechanism utilized to protect an individual's

reputation from the stigma that accompanies an arrest record.” Wallace, 97 A.3d at

319. Unlike the defendant in Wallace, who was denied expungement while still

incarcerated for multiple, serious crimes, see id. at 322, appellant, whose minor

offenses occurred long ago, when she was very young, and who has stayed arrest-free

for almost two decades, is the kind of person who would benefit from the elimination of

the perpetual stigma of her youthful misconduct.

Amici persuasively supplement appellant’s argument in this regard by gathering

and explaining current research and statistical information about the specific

consequences experienced by individuals like appellant, with low-level offenses on their

records, especially in this new era of easy online access to criminal records through

inexpensive background checking services. Amicus Curiae Brief at 10, citing, e.g.,

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NAT’L CENTER FOR STATE COURTS, PRIVACY/PUBLIC ACCESS TO STATE COURTS: STATE

LINKS; Jenny Roberts, Expunging America’s Rap Sheet in the Information Age,

WASHINGTON COLLEGE OF LAW RESEARCH PAPER NO. 2015-3 (2015); see id. at 12 (in one

survey, 11% of employers reported minor infraction would disqualify candidate from

employment; in another study, researchers found existence of criminal record reduced

likelihood of callback or job offer by nearly 50%); see id. at 11-18 (collecting information

regarding barriers to employment, housing and education created by criminal records).

The intended remedial impact of the expungement statute with respect to low-level

offenses reveals obvious practical humanitarian objectives, which counsel us to

construe the statutory language liberally in favor of appellant. See, e.g., School Dist. of

Phila., 117 A.3d at 242. 5

Accordingly, in our judgment, appellant’s construction of the statute is more

persuasive. Moreover, the lower courts’ contrary, stricter reading of the statute has

yielded an unreasonable result: appellant’s 1998 conviction has been expunged while

the older ones remain intact and, by the lower courts’ reasoning, those 1997 offenses

can never be expunged, even if another sixteen, or fifty, arrest-free years elapse. We

hold this is not a result the Legislature intended. Instead, we hold appellant is eligible

5
The Court is not bound by the parties’ agreement the statute is penal in nature and
thus, under the rule of lenity, subject to strict construction against the Commonwealth
and in favor of appellant. See Commonwealth v. Spruill, 80 A.3d 453, 460 (Pa. 2013)
(“the parties' agreement on a legal issue does not control this Court's independent
judgment”) (citing cases). Justice Baer’s concurrence correctly notes the difference in
the standards applicable when a statute is deemed remedial or is deemed penal;
Justice Baer also correctly notes that, for purposes of decision here, either conclusion
would require a construction favoring appellant, and we therefore need not definitively
resolve whether the higher standard (“strict construction”) attending penal provisions
applies.

[J-49-2016] - 14
for expungement of the criminal history record of her 1997 harassment and public

drunkenness convictions.

Finally, regarding the Commonwealth’s somewhat tautological argument that the

trial court did not abuse its discretion because appellant was ineligible for expungement,

we note the trial court did not purport to exercise its discretion; the court held instead

appellant was not eligible for expungement as a matter of law pursuant to its reading of

the statute. Trial Court Opinion, 7/16/14, slip op. at 4. Accordingly, we remand to the

trial court for consideration of all factors relevant to the discretionary determination of

whether appellant’s summary offenses should be expunged. See, e.g., Wexler, 431

A.2d at 879 (factors to consider in deciding whether to expunge criminal record include

(1) strength of Commonwealth’s case; (2) Commonwealth’s reasons for wishing to

retain records; (3) petitioner’s age, criminal record, and employment history; (4) length

of time between arrest and petition to expunge; and (5) adverse consequences resulting

from denial).

Reversed and remanded for further proceedings. Jurisdiction relinq uished.

Chief Justice Saylor and Justices Donohue and Wecht join the opinion.

Justice Baer files a concurring opinion which Justice Todd joins.

Justice Wecht files a concurring opinion.

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