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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM S. HARPER :
:
Appellant : No. 1992 EDA 2017
Appeal from the Order May 18, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0009871-1990
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM S. HARPER :
:
Appellant : No. 1995 EDA 2017
Appeal from the Order May 18, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0008371-1991
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 19, 2018
Appellant William S. Harper challenges the orders1 entered in the
Delaware County Court of Common Pleas, denying his petitions for limited
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1 As discussed in greater detail below, the court denied Appellant’s petitions
for limited access to his 1991 and 1992 convictions. Appellant filed separate
notices of appeal, and this Court assigned a separate docket number for each.
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access to his criminal record information pursuant to 18 Pa.C.S.A. § 9122.1.
Order for limited access. Section 9122.1 is part of the Criminal History
Record Information Act (the “Act”), 18 Pa.C.S.A. §§ 9101-9183. The Act
regulates the collection, compilation, maintenance, and dissemination of
criminal history record information. And § 9122.1 provides an avenue for
people convicted of certain misdemeanors to apply to limit dissemination of a
criminal history record to only a criminal justice agency or a government
agency as defined in the Act. This appeal requires us to interpret § 9122.1.
After careful review, we reverse the trial court’s orders, and remand for further
proceedings.
The relevant facts and procedural history of this case are as follows.
Appellant was arrested in 1990 for possession of cocaine. He pled guilty to a
misdemeanor on July 15, 1991, and was sentenced to twelve months of
intermediate punishment. Appellant was arrested again, also for possession
of cocaine, in 1991. He entered a guilty plea on January 14, 1992, and was
sentenced to three to twelve months’ incarceration. Appellant was then
arrested once more in 2011, for possession of drug paraphernalia. He pled
guilty on December 12, 2011, and was sentenced to one year of probation.
Appellant, a self-employed glazier, cannot compete for public school
contracts in New Jersey due to his drug convictions. See N.T., 5/18/17, at 4-
5. So, on April 7, 2017, Appellant filed separate limited access petitions at
____________________________________________
His appellate issues are combined in a single brief. For ease of review, we
consolidate these appeals sua sponte.
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each docket. After realizing the 2011 conviction did not qualify for relief under
§ 9122.1, Appellant withdrew that petition. He proceeded to a hearing on his
remaining two petitions.
At the hearing, the Commonwealth opposed limiting access to
Appellant’s 1991 and 1992 convictions. The Commonwealth averred the
statute requires a petitioner to be free of arrest or prosecution for ten years
before submitting a petition for limited access. In the Commonwealth’s view,
because Appellant was convicted of an offense in 2011, in 2017 he was
ineligible to seek limited access even for his 1991 and 1992 convictions. The
trial court agreed, based on language in the statute directing the common
pleas court to calculate the date “following conviction or final release from
confinement or supervision, whichever is later[.]” 18 Pa.C.S.A. §
9122.1(a)(1). The court found the “whichever is later” language stripped it of
discretion by requiring consideration of the most recent offense—here,
Appellant’s 2011 conviction. The court therefore denied both of Appellant’s
petitions. He filed a timely notice of appeal, and this matter is now properly
before us.
Appellant’s lone issue on appeal asserts the trial court incorrectly
interpreted the language of § 9122.1(a)(1). Appellant asks this Court to reject
the trial court’s reading of the statute, and remand for a hearing on the merits
of his limited access petition.
This issue raises a question of statutory interpretation. In matters of
statutory interpretation, our scope of review is plenary, and our standard of
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review is de novo. See Commonwealth v. DeNapoli, ___ A.3d ___, ___
2018 WL 4907785, *1 (Pa. Super., filed October 10, 2018).
In interpreting any statute, appellate courts must take note of the
principles of statutory interpretation and construction. The
principal objective of interpreting a statute is to effectuate the
intention of the legislature and give effect to all of the provisions
of the statute. In construing a statute to determine its meaning,
courts must first determine whether the issue may be resolved by
reference to the express language of the statute, which is to be
read according to the plain meaning of the words. When analyzing
particular words or phrases, we must construe them according to
rules of grammar and according to their common and approved
usage. Words of a statute are to be considered in their
grammatical context. Furthermore, we may not add provisions
that the General Assembly has omitted unless the phrase is
necessary to the construction of the statute. A presumption also
exists that the legislature placed every word, sentence and
provision in the statute for some purpose and therefore courts
must give effect to every word.
Commonwealth v. Morris, 958 A.2d 569, 578-579 (Pa. Super. 2008)
(internal quotations and citations omitted).
Penal statutes are to be strictly construed. See Commonwealth v.
Rivera, 10 A.3d 1276, 1284 (Pa. Super. 2010). “Yet, the need for strict
construction does not require that the words of a penal statute be given their
narrowest meaning or that legislative intent should be disregarded.”
Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008) (citations omitted).
“When the parties read a statute in two different ways and the statutory
language is reasonably capable of either construction, the language is
ambiguous.” Commonwealth v. Giulian, 141 A.3d 1262, 1268 (Pa. 2016)
(citation omitted). If ambiguity exists in the language of the statute, that
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language should be interpreted in the light most favorable to the accused. See
Commonwealth v. Price, 189 A.3d 423, 431 (Pa. Super. 2018). “More
specifically, where doubt exists concerning the proper scope of a penal statute,
it is the accused who should receive the benefit of such doubt.” Id. (internal
quotation marks and citations omitted).
Here, the statute governing orders for limited access provides, in
relevant part:
Notwithstanding any other provision of this chapter, upon petition
of a person who has been free of arrest or prosecution following
conviction or final release from confinement or supervision,
whichever is later, for a period of 10 years, the court of common
pleas in the jurisdiction where the conviction occurred may enter
an order that criminal history record information maintained by
any criminal justice agency pertaining to a conviction for a
misdemeanor of the second degree, a misdemeanor of the third
degree or an ungraded offense which carries a maximum penalty
of no more than two years be disseminated only to a criminal
justice agency or a government agency as provided in section
9121(b.1) and (b.2) (relating to general regulations).
18 Pa.C.S.A. § 9122.1(a)(1).
The conflicting interpretations turn on the statute’s clause, “whichever
is later.” In its opinion, the trial court maintains that because of the “whichever
is later” clause, the “conviction” mentioned must relate to the petitioner’s
most recent offense. See Trial Court Opinion, filed 8/25/17, at 5. In the court’s
view, the new 2011 offense “reset the clock” on Appellant’s ability to petition
for limited access to the earlier offenses. N.T. Hearing, 5/18/17, at 9. Because
Appellant did not have ten crime-free years before filing the petitions, the
court denied them.
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Appellant argues the ten-year period started after he finished serving
his sentence on the 1992 conviction. Appellant points to the eighteen years,
from the conclusion of his sentence in 1993 until his new arrest and conviction
in 2011, where he was not arrested or convicted of any new offenses. Though
Appellant does not explicitly say so, this argument necessarily interprets the
clause “whichever is later” as referring to “conviction or final release from
confinement or supervision.” Under that reading, the ten-year period simply
starts after the petitioner concludes any incarceration or probationary period
on the relevant offense. That ten-year period would begin anew if the
petitioner is convicted of any additional crimes before ten years elapses, as
Appellant was in 1992. And, after a petitioner completes a ten-year period
without committing any new offenses, he becomes eligible to petition the court
for limited access to his crimes. Appellant finished that ten-year eligibility
period in 2003, long before he was convicted of another crime in 2011.
Both Appellant and the trial court believe Giulian supports their
respective positions. In that case, Giulian was convicted of public drunkenness
and harassment in 1997, and criminal mischief in 1998. In 2013, she
petitioned the court for expungement of these summary offenses, based on a
statute that governs expungement for summary convictions, 18 Pa.C.S.A. §
9122(b)(3). That statute required a petitioner to be “free of arrest or
prosecution for five years following the conviction” to qualify. 141 A.3d at
1264. The Commonwealth did not object to expungement of the 1998
convictions, but opposed the expungement of the 1997 offenses. The
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Commonwealth asserted Giulian did not remain free of arrest or prosecution
for the five-year period immediately following her 1997 convictions, because
she was arrested in 1998. Giulian’s 1997 convictions were thus ineligible for
expungement. The trial court denied Giulian’s petition on that basis, and this
Court affirmed that decision in an opinion.
On appeal, the Pennsylvania Supreme Court found the language of the
expungement statute was ambiguous. The statute failed to specify whether
the petitioner’s arrest-free five years must immediately follow the conviction,
or could be any five-year period thereafter. Because expungement statutes
are intended to protect those who commit minor offenses from the hardships
of having an arrest record, the Court believed the legislative intent weighed
in favor of Giulian’s interpretation. Further, the Court reasoned that the
Commonwealth’s reading would produce an irrational result—one where a
petitioner like Giulian could not expunge older offenses, even if another fifty
arrest-free years elapse. The Court reversed and remanded the case.
For its part, the Commonwealth disputes the relevance of Giulian to
this case. We agree with Appellant and the trial court that it has significant
similarities to the issues before us.
Here, the statutory language is ambiguous, as it is reasonably capable
of two incompatible constructions. The statute, as noted, dictates that “upon
petition of a person who has been free of arrest or prosecution following
conviction or final release from confinement or supervision, whichever is later,
for a period of 10 years, the court of common pleas in the jurisdiction where
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the conviction occurred may enter an order [limiting access to the petitioner’s
criminal record].” The trial court interpreted the clause “whichever is later” to
refer specifically to the petitioner’s most recent offense. Appellant’s contrary
reading, that the “whichever is later” clause necessarily refers to the end of
the petitioner’s incarceration or supervision for the particular offense at issue,
is supported by the reference to “the conviction” in the same sentence. We
find Appellant’s interpretation of this ambiguous language at least equally
valid, and indeed, more convincing to this Court.
The legislative intent of the limited access statute also dictates a result
favoring Appellant. Much like the expungement statute, the limited access
statute intends to remove the impediments of a criminal record on
employment, housing, and other activities for petitioners who have had minor,
nonviolent brushes with the criminal justice system. As even the trial court
acknowledges in its opinion, the limited access statute stems from “the
Legislature’s desire to remove the stigma of prior convictions for minor
offenses in order to assist the reformed offender to obtain gainful employment
and become self-sufficient.” Trial Court Opinion, filed 8/25/17, at 5.
The trial court’s reading yields the “unreasonable result” warned of in
Giulian. Appellant was free of arrest or prosecution for eighteen years after
his 1992 offense and release from supervision, almost twice the requirement
for filing a limited access petition. Nevertheless, the trial court found Appellant
ineligible to petition for limited access to these now twenty-five-year-old
crimes. This cannot be the result the General Assembly intended. While
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Appellant’s 2011 offenses do not qualify for limited access yet, we find
Appellant is eligible to petition for limited access to his 1991 and 1992 crimes.
Finally, we briefly note the Commonwealth’s sub-argument that
Appellant is also not entitled to a limited access order because the maximum
sentence on his 1992 drug offense exceeded the relevant statutory limitations.
In his reply brief, Appellant responds that he was not charged under a second
offense provision, and thus not subject to a higher maximum sentence which
would disqualify him from seeking a limited access order. The issue is not
before us.
This appeal is intended to resolve conflicting statutory interpretations
about the statute’s ten-year eligibility period. Importantly, this decision does
not grant Appellant’s petition for limited access. Despite our decision to
reverse the trial court’s order on statutory interpretation grounds, we
nevertheless recognize that limiting access to a petitioner’s criminal record is
discretionary. See 18 Pa.C.S.A. § 9122.1(a)(1) (providing “the court of
common pleas in the jurisdiction where the conviction occurred may enter an
order…”). Thus, we remand for a merits hearing on the petition, having
resolved the legal issue of the ten-year eligibility period. The Commonwealth
may present its argument to the court at that hearing.
Accordingly, we remand this case to the trial court, so that it may
consider the merits of Appellant’s petition.
Orders reversed. Cases remanded for further proceedings. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/18
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