J-S71010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA 

Appellant

v.

DANIEL J. ERVIN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1154 EDA 2017

Appeal from the Order March 7, 2017

In the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0000218-2004

BEFORE: PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J. FILED MARCH 06, 2018

The Commonwealth of Pennsylvania appeals from the order entered in 

the Delaware County Court of Common Pleas, which granted the expungement 

petition of Appellee, Daniel J. Ervin. The Commonwealth argues the trial court 

did not have the statutory authority to grant expungement of Appellee’s 

simple assault conviction. We agree. 

The relevant facts and procedural history are as follows. On March 7, 

2005, Appellee was convicted of one count of simple assault and one count of 

harassment.1 Eleven years later, at the age of thirty-two, Appellee filed a 

petition to expunge his criminal history record. Despite being served a copy 

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 Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2701 and 18 Pa.C.S.A. § 2709. Appellee’s sentencing sheet 

lists his harassment conviction as a summary offense, but does not provide a 

grading for the simple assault conviction. See Sentencing Sheet, 4/7/05.
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of the petition, the Commonwealth failed to file a response. The trial court 

subsequently granted Appellee’s petition. 

Six days later, the Commonwealth filed a motion for reconsideration, 

citing the trial court’s lack of statutory power to grant the petition. The trial 

court granted the Commonwealth’s motion, vacated its prior order, and held 

hearings on the matter. Following the hearings, the trial court reinstated its 

prior order. This appeal follows. 

On appeal, the Commonwealth alleges the trial court erred by “granting 

expungement of the criminal history record of the conviction where the 

[Appellee] did not show he was eligible under the very limited conditions set 

forth by the applicable statute.” Commonwealth’s Brief, at 2-3. Appellee and 

the trial court counter that the Commonwealth’s failure to timely object to 

Appellee’s petition and the discretion the trial court has in expungement 

matters justifies the grant of the petition. See Trial Court’s Opinion, 5/25/17, 

at 4-9; Appellee’s Brief, at 4-7. 

“The decision to grant or deny a petition to expunge rests with the sound 

discretion of the trial court, and we review that court’s decision for abuse of 

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

omitted). However, a trial court’s discretion is limited by “the manner of 

disposition of the charges an individual wishes to expunge.” Commonwealth 

v. Wallace, 97 A.3d 310, 317 (Pa. 2014). “When an individual has been 

convicted of the offenses charged, then expungement of criminal history 
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records may be granted only under very limited circumstances that are set 

forth by statute.” Id. (quoting Moto, 23 A.3d at 993). 

Section 9122 of the Crimes Code governs expungement following 

conviction. Specifically, it provides, in pertinent part, that a criminal record 

“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. 

(2) An individual who is the subject of the information has been 

dead for three years.

(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.A. § 9122(b)(1)-(3)(i)-(ii). 

Despite the trial court’s claim that it had discretion to grant 

expungement, it is clear that, pursuant to the statute, Appellee does not even 

qualify for discretionary review of his petition. Appellee was a thirty-two year 

old man who was clearly living at the time he filed his petition. While the 

sentencing sheet does not indicate the exact grade of Appellee’s simple assault 

conviction, the statute Appellee was convicted under provides that a simple 

assault conviction is, at the very least, a misdemeanor of the third degree. 

See 18 Pa.C.S.A. § 2701(b)(1). Further, the Commonwealth’s failure to timely 

respond to Appellee’s petition is of no moment: such a failure cannot provide 
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the court with statutory powers it otherwise lacks. Thus, we agree with the 

Commonwealth that the trial court lacked the statutory authority to grant 

Appellee’s request to expunge his simple assault conviction. 

Order reversed in part and affirmed in part.

2

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/18

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2 The trial court’s order also granted Appellee’s request to expunge his 

summary harassment conviction. See Trial Court Order, 3/7/17. As this part 

of the order was not challenged by either party, we shall leave the trial court’s 

expungement of Appellee’s criminal history record, in relation to his 

harassment conviction, intact.