Com. v. Spencer, V.

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2023
• Docket: 1585 MDA 2022
• Status: Unpublished

Opinion

J-A16011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VAUGHN DOUGLAS SPENCER : : Appellant : No. 1585 MDA 2022

Appeal from the Order Entered October 6, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000851-1986

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM BY PANELLA, P.J.: FILED: DECEMBER 13, 2023

Vaughn Spencer appeals from the order denying his petition for

expungement of a decades-old conviction. Spencer asserts the trial court

incorrectly determined he was ineligible for expungement based on a faulty

interpretation of the relevant provision in the expungement statute. See 18

Pa.C.S.A. § 9122(b)(1). We affirm.

In 1987, Spencer entered a negotiated guilty plea to aggravated assault.

The trial court sentenced Spencer to five years’ probation. Spencer thereafter

remained free from arrest or prosecution for almost three decades.

In 2017, Spencer was charged with conspiracy to commit federal

programs bribery. He was convicted a year later by a federal jury.

On August 4, 2022, while in federal prison on the unrelated offense,

Spencer filed a petition for expungement of the aggravated assault charge. J-A16011-23

Spencer’s reasons for seeking expungement mirrored language pursuant to

Section 9122(b)(3), which provides:

(b) Generally.--Criminal history record information may be expunged when:

(1) An individual who is the subject of the information 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.A. § 9122(b)(1). Specifically, Spencer argued the “offense was

thirty-six years ago”; the offense “was the result of an emotional response to

the tragic death of Spencer’s daughter at the age of 6”; and that he was “now

74 years old and was free from arrest or prosecution for more than ten years

following his release from confinement for this offense.” Petition for

Expungement, 8/4/2022.

A few days later, the trial court entered an order stating no hearing

would be scheduled unless the Commonwealth opposed the petition. The court

further issued and served on the Commonwealth a rule to show cause why

the petition for expungement should not be granted.

On October 6, 2022, the Commonwealth filed a response, stating it

objected to the trial court granting expungement on the basis that Spencer

was not eligible for expungement. Specifically, the Commonwealth stated due

to Spencer’s new federal conviction in 2018, ten years from final release from

confinement or supervision had not passed, as required by Section

9122(b)(1).

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The next day, the trial court entered an order denying the petition for

expungement, reiterating the same basis stated by the Commonwealth.

On October 21, 2022, Spencer filed a motion to reconsider and vacate

the order denying expungement. This timely notice of appeal followed shortly

thereafter.1

On November 7, 2022, the trial court ordered Spencer to file a concise

statement of errors complained of on appeal within 21 days, as prescribed by

Pa.R.A.P. 1925(b)(3). Spencer filed a 1925(b) statement on November 22,

2022. Although the concise statement was timestamped by the Berks County

Clerk of Courts on November 22, 2022, there is no entry on the trial court

docket for the concise statement on this date. However, there is a docket

entry for a concise statement on January 4, 2023.

On January 11, 2023, the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a). In the opinion, the court opined that Spencer’s issues

should be waived due to an untimely concise statement, relying on the

docketed date of January 4, 2023. The court nevertheless addressed the

issues raised in the concise statement. It is unclear from the record why the

concise statement is listed on the docket in January 2023 despite bearing a

timestamp from the clerk of courts for Berks County from November 2022. As

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1 The trial court did not respond to the motion to reconsider either before or

after the notice of appeal was filed.

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the concise statement is time-stamped by the clerk of courts well within the

21-day time frame, we find it was timely filed.

First, Spencer claims the trial court misapplied the relevant statute in

determining whether he was eligible for expungement. Spencer asks this

Court to reject the trial court’s reading of the statute, and remand for a

hearing on the merits of his petition.

This issue presents a question of statutory interpretation; therefore, our

standard of review is de novo and our scope of review is plenary. See

Commonwealth v. Haag, 981 A.2d 902, 904 (Pa. 2009) (citation omitted).

In all matters involving statutory interpretation, we apply the Statutory Construction Act, 1 Pa.C.S. §§ 1501 et. seq, which directs us to ascertain and effectuate the intent of the General Assembly. To accomplish that goal, we interpret statutory language not in isolation, but with reference to the context in which it appears. A statute’s plain language generally provides the best indication of legislative intent. Only where the words of a statute are ambiguous will we resort to other considerations to discern legislative intent.

Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016) (citations and

parentheticals 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).

“There is a long-standing right in this Commonwealth to petition for

expungement of a criminal arrest record, a right that is an adjunct of due

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process.” Commonwealth v. Moto, 23 A.3d 989, 993 (Pa. 2011) (citation

omitted).

[T]he law provides a distinction between situations where the charges have and have not resulted in a conviction. In matters which have resulted in a conviction, expungement may occur only where 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years or 2) where the individual has been dead for three years. [18 Pa.C.S.A. § 9122(b)]. Where a suspect was charged but not convicted, however, the courts are to engage in a balancing test as outlined in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981).

Commonwealth v. Wolfe, 749 A.2d 507, 508 (Pa. Super. 2000) (some

citations omitted).

Here, Spencer seeks expungement of his aggravated assault conviction.

Accordingly, expungement could only occur if he met the two requirements

under Section 9122(b)(1). The conflicting interpretations at issue in this

appeal turn on the statute’s second requirement that reads that the individual

must be “free of arrest or prosecution for ten years following final release from

confinement or supervision.” 18 Pa.C.S.A. § 9122(b)(1).

Spencer argues he was released from supervision for the aggravated

assault charge, for which he seeks expungement, in December 1992 and

remained free of arrest or supervision for the next 26 years. Spencer therefore

contends that he satisfied the second requirement.

On the other hand, the Commonwealth opposed Spencer’s petition on

the basis that since Spencer received a new conviction in 2018, ten years from

final release from confinement or supervision had not passed. In other words,

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the Commonwealth interprets Section 1922(b)(1) to mean that ten years has

to pass from release from confinement or supervision from any conviction, not

just the conviction that would be expunged. Importantly, the trial court

seemingly agreed with the Commonwealth’s interpretation of the statute,

using this reasoning as the basis of its denial of the petition for expungement.2

Both Spencer and the Commonwealth believe Giulian supports their

respective positions. There, 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 another

subsection of the expungement statute that governs expungement for

summary convictions, 18 Pa.C.S.A. § 9122(b)(3). That subsection requires a

petitioner to be “free of arrest or prosecution for five years following the

conviction” to be eligible. Giulian, 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 Commonwealth asserted Giulian did

not remain free of arrest or prosecution for the five-year period immediately

2 In its 1925(b) opinion, the trial court no longer focuses on that same basis. Rather, the trial court purports that it exercised its discretion to deny the request for expungement and that it was not an abuse of discretion to do so. However, the court’s denial of the petition for expungement was not based on its discretion. Instead, the court specifically found Spencer was not eligible for expungement as a matter of law pursuant to its reading of the statute. As the court specifically found Spencer was not even eligible for discretionary expungement, the court never formally exercised its discretion. Therefore, we need not address whether or not there was an abuse of discretion.

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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

Section 9122(b)(3) was ambiguous. Specifically, that subsection failed to

specify whether the petitioner's arrest-free five years must immediately follow

the conviction or could be any five-year period following the conviction. The

Supreme Court reasoned that the Commonwealth's reading would produce an

irrational result. In the Commonwealth’s interpretation, a petitioner like

Giulian could not expunge older offenses, even if another fifty arrest-free

years elapse. Further, the Court found that the Superior Court erred by

imputing a requirement that the petitioner needed to be arrest free for “the”

five years “immediately” following the summary conviction. See Giulian, 141

A.3d at 1268 (“[W]e have stressed courts should not add, by interpretation,

a requirement not included by the General Assembly”). Additionally, the Court

credited the view that the General Assembly’s use of the present perfect tense

“has been free of arrest” supports that the subsection does not refer to any

particular five-year period. Accordingly, the Court found the Superior Court

erred in altering the text of the statute in narrowing its scope when it found

Giulian “was” not free of arrest or prosecution for “the” five years following

the 1997 offense. The Court reversed and remanded the case.

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The Commonwealth argues that Spencer’s reliance on Giulian is

misplaced, and that the holding there actually supports the trial court’s

decision. We agree.

Here, the statutory language in Section 9122(b)(1) is similarly

ambiguous, as it is reasonably capable of the two incompatible constructions

provided by Spencer and the Commonwealth. As there is no other qualifying

language to indicate what offense the final confinement needs to be from, it

is not immediately clear when the ten-year period applies to. Spencer

interpreted the clause “ten years following final release from confinement or

supervision” to apply only to the offense for which expungement is sought.

The Commonwealth’s reading applies that clause to the most recent conviction

received by a petitioner.

While Spencer argues the trial court and Commonwealth incorrectly

added words into the statute, we find it is actually Spencer who has incorrectly

read words into the statute. We find the absence of any language qualifying

that the ten years must be from a particular offense persuasive that the

legislature envisioned the requirement applying generally. Spencer’s

interpretation would require us to read the additional phrase “for that offense”

into section 9122(b)(1). As this phrase was used in another section of the

statute, the omission of the phrase from Section 9122(b)(1) is telling. See 18

Pa.C.S.A. § 9122(b)(3)(i) (“An individual who is the subject of the information

petitions the court for expungement of a summary offense and has been free

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of arrest or prosecution for five years following the conviction for that

offense.”). Notwithstanding the exclusion of the phrase “for that offense”,

Spencer asks us to construe Section 9122(b)(1) in a manner which would limit

application of subsection (b)(1) to a ten-year timeframe after final

confinement from only the offense sought to be expunged. If the legislature

had meant for ten years to have passed from final confinement for the offense

at issue only, they would have used the same phrase used later in the statute.

Accordingly, we conclude the trial court did not err in denying Spencer’s

petition based on a finding that he is ineligible for expungement at this time.

In his second and final issue, Spencer argues the trial court erred in

denying him a hearing, and in engaging in a Wexler fact-finding analysis

without a hearing.

As the court specifically found Spencer was not eligible for discretionary

expungement in denying the petition, there was no reason for the trial court

to even reach a Wexler analysis. Accordingly, any such discussion in the trial

court’s opinion is irrelevant.3

3 We note that Spencer’s guilty plea constituted a conviction. Accordingly, because this case involves an attempt to expunge a charge resulting in a conviction, we agree with Spencer and reject as inapposite the trial court’s reliance in its opinion on cases involving charges dismissed pursuant to a negotiated plea agreement, see e.g. Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001); Commonwealth v. Maxwell, 737 A.2d 1243 (Pa. Super. 1999); Wexler. However, as we find the trial court did not err in finding Spencer was not eligible for expungement due to his 2018 conviction, the court’s analysis of inapposite cases does not change our conclusion. The trial (Footnote Continued Next Page)

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As none of Spencer’s issues merit relief we affirm the order denying his

petition for expungement.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/13/2023

court did not need to reach a discretionary analysis since Spencer was not statutorily eligible for expungement.

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