In Re: Order Adopting New Rule 791 and Amending Rules 490 and 790 of the Pennsylvania Rules of Criminal Procedure

FINAL REPORT1

Adoption of new Pa.R.Crim.P. 791
Amendments to Pa.Rs.Crim.P. 490 and 790

CONTENTS OF EXPUNGEMENT PETITIONS AND ORDERS; PROCEDURE FOR
LIMITED ACCESS ORDERS

On November 9, 2016, effective November 14, 2016, upon the recommendation
of the Criminal Procedural Rules Committee, the Court adopted new Rule 791
(Procedure for Obtaining Order for Limited Access in Court Cases; Order for Limited
Access) to provide procedures for the petition and order for limited access as provided
in Act 5 of 2016, and amended Rules 490 (Procedure for Obtaining Expungement in
Summary Cases; Expungement Order) and 790 (Procedure For Obtaining
Expungement In Court Cases; Expungement Order) to: (1) permit the Commonwealth to
waive the requirement that a petitioner’s Pennsylvania State Police criminal history
record be attached to the petition; (2) eliminate the 30-day stay on the expungement
order during which time the Commonwealth may appeal in a case in which the
Commonwealth has consented to the expungement; and (3) add a cross-reference to
the Comments of both rules to the webpage where the AOPC forms for expungement
petitions and orders are found.

Expungement Rules 490 and 790

Beginning in early 2015, the Committee had considered suggested amendments
to the procedures contained in the expungement rules, Rules 490 and 790. Some of
these suggestions related to complaints that it was taking lengthy amounts of time for

1
The Committee's Final Reports should not be confused with the official Committee
Comments to the rules. Also note that the Supreme Court does not adopt the
Committee's Comments or the contents of the Committee's explanatory Final Reports.

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the Pennsylvania State Police (PSP) to provide criminal history reports required for the
expungement petition. It was suggested that this requirement be eliminated or modified
so that the PSP criminal history could be replaced with an alternative such as the AOPC
web docket sheets. The Committee concluded that the PSP report represents the best
available criminal history record information and that alternatives were either incomplete
or inapt for purposes of determining criminal history. Therefore, the Committee
concluded that this requirement should be retained in the expungement rules.
However, the Committee determined that there are jurisdictions in which very
large numbers of expungement petitions are being filed and, as a result, protocols have
been developed between petitioners and district attorney’s offices to speed the process
of expungement in a large majority of cases. In these jurisdictions, the district attorney’s
office will agree to waive the requirement for a PSP report because those offices have
the means of alternative confirmation of a petitioner’s criminal history. The Committee
agreed that practices such as these ensure speedy resolution of meritorious petitions
and should not be impeded. Therefore, Rules 490 and 790 have been amended to
provide that the requirement for the attachment of the PSP report may be waived by the
attorney for the Commonwealth. The Comment has been revised to state that the
waiver may be made orally, in writing, or averred in the petition in order to permit
flexibility in this waiver practice.
During the discussion of this point, it was reported that some judges refuse to
order the PSP report as part of the petition even in those cases where the attorney for
the Commonwealth has not waived the requirement. To clarify that the general rules
requires a PSP report, language has been added to paragraph (A)(3) of Rules 490 and
790 stating, “Absent a waiver by the Attorney for the Commonwealth, the court shall not
rule upon the petition until the Pennsylvania State Police criminal history report is filed.”
Another suggestion received by the Committee was to eliminate, in those cases
in which the Commonwealth has filed a consent to the expungement, the 30-day stay
on the expungement order provided in Rules 490(B)(4)(b) and 790(B)(4)(b) during
which time the Commonwealth may appeal. The consent provisions in Rules 490(B)(1)

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and 790(B(1) recognize that the Commonwealth may join in the desire to expedite an
expungement. The Committee concluded that it is logical that the stay provision be
curtailed where the Commonwealth has consented and a provision has been added to
both rules precluding the stay in cases in which the Commonwealth has consented to
the expungement.
Another suggestion the Committee considered was to require a single standard
form for expungement petitions and orders to enable courts and agencies more
uniformly process these requests. Rules 490 and 790 require specific contents for the
petitions and orders but do not mandate a specific form. The Committee ultimately
rejected the idea of requiring one particular form. There was a concern that a petition
could be rejected solely on the basis of not being the approved form while still
containing the other information necessary for an expungement. The Committee noted
that the AOPC already had developed form petitions and orders for expungements
under Rules 490 and 790 that are publically available on the UJS website. The
Comments to Rules 490 and 790 already mention the AOPC forms. The Committee
concluded that adding a cross-reference to the webpage where the AOPC forms for
expungement petitions and orders are found would be helpful to encourage use of the
standard forms. This direct cross-reference has been added to the Comments of both
Rules 490 and 790.

New Rule 791 Regarding Limited Access Orders
While the Committee was conducting its review of expungement procedures, the
Legislature enacted Act 5 of 2016.2 The Act originated from a proposal for an
expansion of the current expungement statute to cover second and third degree
misdemeanors but was subsequently modified to introduce a new concept, a petition for
limited access. The Act added new Section 9122.1 to the Crimes Code, 18 Pa.C.S. §

2
Act 5 of 2016 (originally SB 166 of 2015) was signed into law by the Governor on
February 16, 2016. Act 5 will become effective on November 14, 2016.

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9122.1, that provides that a qualified defendant may petition for an order that would
allow only certain entities access to criminal history record information, primarily criminal
justice or other government agencies. The offenses in question are, with certain
exceptions, misdemeanors of the second and third degree and ungraded offenses
carrying a maximum penalty of no more than two years. The Act also includes an
amendment to Section 9122 of the Crimes Code, 18 Pa.C.S. § 9122, that provides that
a court or the Administrative Office of Pennsylvania Courts may not disseminate
criminal case information that is subject to “a court order for limited access as provided
in Section 9122.1 (relating to order for limited access).”
Because the Act requires a petition to be filed with the court and subsequent
order to be produced, there was a need for procedural rules implementing the Act.
Given the history of the Act, the Committee concluded that the concept of limiting
access to a conviction record is closely related to expungement and that the procedures
should be similar. The procedures for obtaining a limited access order contained in new
Rule 791 are derived from the court case expungement procedures in Rule 790. These
new procedures are in a separate rule rather than an addition to the expungement rule
since the nature and purpose of this procedure is different from expungement and
placing it in the same rule as expungement procedures might have led to confusion.
The new rule immediately follows the court case expungement procedures.
In terms of information required in the petition and order, the same concern, that
of correctly identifying the criminal record, is applicable to limited access procedures as
it is for expungement. Therefore, the required contents of the petition, contained in
paragraph (A), and the contents of the order, contained in paragraph (C), are virtually
identical to those required in Rule 790 for expungement petitions and orders.
Paragraph (A)(3) of Rule 791 contains the requirement that the Pennsylvania
State Police criminal history report shall be attached to the petition. As discussed
above, this is currently required by the expungement rules and the Committee
concluded that, as in expungement procedures, the PSP report is the best means of
verifying the defendant’s criminal history. The Committee also concluded that the

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practice of waiving this requirement as is done in certain jurisdictions for expungements
should be applied to limited access petitions as well. The provision regarding waiver of
the PSP report have been incorporated into Rule 791(A)(3).
Paragraph (B) describes the procedures to be followed once the petition is filed.
Section 9122.1(c) provides that the court notify the district attorney of the petition within
10 days of filing and the district attorney then has 30 days to respond. The current
procedure for court case expungement in Rule 790 requires that the petition be served
on the prosecution concurrent with filing. The Committee believes that simultaneous
service is a more efficient procedure and one that would help in the prosecution
reaching a quicker decision on whether to oppose the petition or not. This does not
constitute a conflict between the Act and the rules, but rather is an additional procedural
step being added to make the process more efficient and ensure proper and timely
notice to the prosecution.
The Act allows 30 days for the prosecution to respond to a petition for limited
access. Paragraph (B)(1) incorporates this time-limit for the prosecution’s response
and requires any response to be filed no later than 30 days following service of the
petition.
The Act requires a petition to be filed requesting the issuance of the order, similar
to expungement procedures. Section 9122.1 describes the effect of the order as
permitting the criminal record to be disseminated “only to a criminal justice agency or a
governmental agency….” However, the language that is added to Section 9121, which
directly states the applicability of the statute to the courts and AOPC, uses the
terminology that they “may not disseminate to an individual, a noncriminal justice
agency or an internet website any information” relating to information that is subject to a
limited access order. In the paragraph (B)(4), the terminology in both statutory
selections is used to describe the order granting the petition so that there is no
confusion concerning the order’s effects.
Rule 790 provides for a 30-day stay on any granted petition to provide time for
the prosecution to appeal. A similar provision is included in Rule 791(B)(4)(b) when the

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petition for limited access is granted. However, this stay would be waived when the
prosecution agrees to the petition. This is similar to the above provision for the
expungement rules.

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