J

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

COMMONWEALTH OF PENNSYLVANIA

v.

AMINA M. BRODIE

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 858 MDA 2018 Appeal from the Order Entered April 23, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- MD

- 0000608

- 2018

COMMONWEALTH OF PENNSYLVANIA

v.

AMINA M. BRODIE

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 859 MDA 2018 Appeal from the Order Entered April 23, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- MD

- 0000609

- 2018

COMMONWEALTH OF PENNSYLVANIA

v.

AMINA M. BRODIE

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 860 MDA 2018 Appeal from the Order Entered April 23, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- MD

- 0000610

- 2018

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.J

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-

JUDGMENT ORDER BY McLAUGHLIN, J.: FILED FEBRUARY 05, 2019
Amina M. Brodie appeals from the order denying her petition s for
expungement. We vacate and remand for proceedings consistent with this

memorandum

.
In 2015 and 2017, Brodie was charged with simple assault 1 on each of

the three above

- listed docket numbers. Each of these charge s was dismissed
by a magisterial distric t justice. On April 19, 2018, Brodie filed three petition s
seeking expungement for the dismissed charges pursuant to Pa.R.Crim.P. 790

and 18 P a.C.S. A. § 9122

. The court denied the petition on April 23, 2018 , stating that Brodie was ineligible for expungeme nt because she has not been

free from crim inal prosecution for five years, citing 18 Pa.C.S. A. §
9122(b)(3)(i). Bro die fil ed a motion for reconsideration. The court ordered the
Commonwealth to respond to the motion, but before it did so, Brodie filed the
instant appeal, on May 23, 2018. See Pa.R.A.P. 1701(b )(3) (providing 30

- day
period for filing appeal will only toll upon trial court’s express grant of
reconsideration motion). The next day, the Commonwealth filed an Answer
stating that it did not oppose e xpungement.

In lieu of filing a Rule 1925(a) opinion, the court filed a statement
asserting that “[a] fter further review of the above

- captioned matter, this Court
does not oppose the petition for expungement. To the extent possible, this
Court requests th at the above

- captioned matter be remanded with leave to

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. § 2701(a)(1).J

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grant the petition f or expungement or in the alternative that the relief
requested by [Brodie] be granted. ” Statement in Lieu of Memorandum
Opinion, filed June 25, 2018, at 1.

Brodie raises the follow ing issue:

Whether the trial court erred as a matter of law when it denied [Brodie]’s Petitions to Expunge based upon its determination that [Brodie] had to be free from arrest or prosecution for a five

- year period in contravention of 18 Pa.C.S. [A. § ] 9122 , which does not impose such requirement on the non

- conviction data for which the [Brodie] sought expungement.

Brodie’s Br. at 4. In lieu of a brief, the Commonwealth filed a letter stating

that it “ does not intend to argue a gainst the relief that [Brodie] seeks in her
direct appeal. The Commonwealth agrees with the trial court that this matter

should be remanded with leave to grant [Brodie]’ s petitions for expungement

or in the alternative that the relief requested by [Brodie] be granted. ” Letter,
8/21/18, at 1. We review the court’s ruling on a petition for expungement for

an abuse of discretion. Commonwealth v. Rodland , 871 A.2d 216, 218
( Pa.Super. 2005)

. The trial court denied Brodie’s petition for expungement based upon 42
Pa.C.S.A. § 9122 (b)(3) . This subsection provides that criminal history may be
expunged where the expungement is for the conviction of a summary offense
and the petitioner has been free of conviction or arrest for five years
subsequent to the summary conviction. See 42 Pa.C.S.A. § 9122 (b)(3). As
the trial court has since realized, this section has no application in the instant
case, where the petition requests expungement of charges which did not resultJ

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in convictions. We therefore agree with Brodie, the Commonwealth, and the

trial cour t, that the case should be remanded for consideration of Brodie’s
petition under the appropriate standard

. See Commonwealth v. Moto , 23
A.3d 989, 993 ( Pa. 2011) (“ When a prosecution has been terminated without
conviction or acquittal, ” trial court is required “to ‘ balance the individual's right

to be free from the harm attendant to maintenance of the arrest record against

the Commonwealth ’ s interest in preserving such records ’” (quoting

Commonwealth v. Wexler , 431 A.2d 877, 879 (Pa. 1981)); see also

Ro dland , 871 A.2d at 221 (“ Rarely, if ever, will charges dismissed for lack of
evidence fail to qualify for expungement under Wexler ”).
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/05/2019