Commonwealth v. Cook

518 A.2d 858, 359 Pa. Super. 216, 1986 Pa. Super. LEXIS 13554
CourtSupreme Court of Pennsylvania
DecidedDecember 16, 1986
Docket816
StatusPublished
Cited by9 cases

This text of 518 A.2d 858 (Commonwealth v. Cook) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Cook, 518 A.2d 858, 359 Pa. Super. 216, 1986 Pa. Super. LEXIS 13554 (Pa. 1986).

Opinions

TAMILIA, Judge:

This is an appeal from an Order of the trial court which denied appellant’s Petition for Reconsideration and Rescission of the Expungement Order. On September 12, 1978, appellee Mark A. Cook pled guilty to a charge of criminal conspiracy to commit burglary and was sentenced to five (5) years probation.

On January 12, 1983, the lower court, having been advised that appellee had fully complied with the conditions of his probation, granted appellee’s petition for early termination of probation. On October 2, 1985, appellee filed a petition to expunge the fingerprints, photographs, photographic plates and record of arrest pertaining to the prior criminal action. The same day, a copy of appellee’s petition to expunge was served on the District Attorney’s office and the court then entered a rule upon the Commonwealth to [218]*218show cause why appellee’s petition to expunge should not be granted. A Rule Returnable date was set for October 29, 1985.

The District Attorney’s office did not oppose appellee’s petition and no answer was filed as of the return date. On October 31, 1985, the court entered an Order granting appellee’s petition to expunge, copies of which were sent to appellee’s counsel and the District Attorney’s office. The Commonwealth took no appeal from this Order.

On December 27, 1985, appellant, the Pennsylvania State Police, filed a Petition for Reconsideration and Rescission of the Expungement Order. A hearing was held on the matter, and on March 4, 1986, the court entered an Order denying appellant’s petition. This appeal followed.

Appellant now contends that the appellee was required to notify the Pennsylvania State Police of his petition for expungement of criminal records. Appellant further argues that the court did not have the authority to expunge appellee’s record of conviction even if the district attorney did not oppose the expungement.

Initially, we find no legal authority to support the lower court’s Order granting expungement of appellee’s conviction record. The Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq., specifically section 9122, authorizes expungement in limited circumstances:

§ 9122. Expungement
(a) Specific proceedings. — Criminal history record information shall be expunged in a specific criminal proceeding when:
(1) No disposition has been received or, upon request for criminal history record information, no disposition has been recorded in the repository within 18 months after the date of arrest and the court of proper jurisdiction certifies to the director of the repository that no disposition is available and no action is pending. Ex-pungement shall not occur until the certification from the court is received and the director of the repository authorizes such expungement; or
[219]*219(2) A court order requires that such nonconviction data be expunged.
(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; or
(2) An individual who is the subject of the information has been dead for three years.

The definitional section, 18 Pa.C.S.A. § 9102, elaborates on the term “criminal history record information” as:

Information collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, infor-mations or other formal criminal charges and any dispositions arising therefrom. The term does not include intelligence information, investigative information or treatment information, including medical and psychological information, or information and records specified in section 9104 (relating to scope), (emphasis added)

The term “dispositions” is also defined in 18 Pa.C.S.A. § 9102, and includes: “... acquittal, acquittal by reason of insanity, pretrial probation or diversion, charge dismissed, guilty plea____” (emphasis added).

A fair reading of the expungement statute indicates that section 9122(a) applies to the expungement of non-conviction data contained in the criminal history record, while section 9122(b) applies to the expungement of the entire criminal history record, despite the disposition of the case. In the instant action, appellee pled guilty to the charge against him, therefore, any right to expungement must be found in section 9122(b)(1) or (b)(2). Appellant does not fall within either enumerated section as he is not seventy years of age or older nor has he been dead for three years.

[220]*220Furthermore, this Court, in Commonwealth v. Magdon, 310 Pa.Super. 84, 456 A.2d 194 (1983), determined that there is no authority for granting expungement of criminal records for an individual who has been arrested and convicted of a crime, regardless of his subsequent progress and rehabilitation. While acknowledging a due process right to a hearing on expungement of an arrest record of someone who was not ultimately convicted, for whatever reason, of a crime, the court stated:

This due process right to be heard is not abridged by denying an expungement hearing to one actually convicted of a crime because the conviction itself is based upon a hearing in which the accused was adjudged guilty beyond a reasonable doubt, or upon a plea of guilty which waives many of the formalities of such a hearing____

Magdon, supra, 310 Pa.Superior Ct. at 89, 456 A.2d at 196.

Based upon the following authority, we find appellee, who pled guilty and on that basis was found guilty by the lower court, is not entitled to expungement of his record. This is true despite the failure of the District Attorney’s office to oppose the expungement. When the lower court ordered the expunging of appellee’s arrest record, it was acting ^without a statutory or common law basis. See Commonwealth v. Zimmerman, 215 Pa.Super. 534, 258 A.2d 695 (1969).

The instant action must be distinguished from cases where a special legislative policy exists to provide for expungement of records after completion of specific programs. In Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981), the Supreme Court held that a person who successfully completed an Accelerated Rehabilitative Disposition (ARD) program was entitled to have his or her record expunged. Similarly, in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), the court found that a juvenile who entered into a consent decree, pursuant to the Juvenile Act, was entitled to expungement. Both of these areas involve special programs with specific rehabilitative goals. See Magdon, supra.

[221]

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Cite This Page — Counsel Stack

Bluebook (online)
518 A.2d 858, 359 Pa. Super. 216, 1986 Pa. Super. LEXIS 13554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-cook-pa-1986.