J-S31042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BRYON K. SMITH

Appellee No. 1755 MDA 2014

Appeal from the Order Entered on October 8, 2014

In the Court of Common Pleas of Franklin County

Criminal Division at No.: CP-28-CR-647-1996

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BRYON K. SMITH

Appellee No. 1756 MDA 2014

Appeal from the Order Entered on October 8, 2014

In the Court of Common Pleas of Franklin County

Criminal Division at No.: OTN: E596889-6

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED JULY 17, 2015

The Commonwealth appeals the October 8, 2014 orders that expunged 

Bryon K. Smith’s 1995 and 1996 summary offenses for retail theft. After 

review, we reverse.
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The trial court summarized the procedural and factual history of this 

case as follows:

[Smith] was convicted of two separate retail theft summary 

offenses on October 19, 1995 and September 16, 1996. On 

August 13, 2014[, Smith] petitioned [the trial court] for 

expungement of the summary offenses under 18 Pa.C.S. 

§ 9122(b)(3). A hearing was held on October 8, 2014. At the 

conclusion of the hearing[, the trial court] issued Court Orders 

expunging the retail theft convictions under docket no. 647-1996 

and OTN: E596889-6. . . . 

The two convictions that [Smith] seeks expungement of involve 

summary offense convictions on October 19, 1995 and 

September 16, 1996 of retail theft under 18 Pa.C.S. 

§ 3929(a)(3). A criminal background check shows that [Smith] 

also has: a conviction of theft by deception on November 16, 

1998; an arrest and [Accelerated Rehabilitative Disposition] for 

[driving under the influence] in 1998; and convictions for two 

counts of theft of services on November 12, 2006. It is 

undisputed that [Smith] has been free from arrest from 2006 to 

the present.

Trial Court Opinion (“T.C.O.”), 10/30/2014, at 1.

On October 9, 2014, the Commonwealth filed a notice of appeal, a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b), and a motion for reconsideration. On October 30, 2014, the trial 

court denied the motion for reconsideration and filed a Pa.R.A.P. 1925(a) 

opinion.

The Commonwealth raises one issue for our review: “Whether the 

lower court erred in interpreting 18 Pa.C.S. § 9122(b)(3) to permit 

expungement of convictions when the petitioner had not been free of arrest 
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or prosecution for the five years following conviction for that offense?” 

Commonwealth’s Brief at 4.

The expungement statute, in pertinent part, states:

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

expunged when:

* * *

(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.

The issue here is the meaning of “free of arrest or prosecution for five 

years following the conviction for that offense.” The trial court understood 

that to mean the five years prior to the expungement hearing. T.C.O. at 2-

3. The Commonwealth contends that it means the five years immediately 

after conviction. Commonwealth’s Brief at 9. The Commonwealth also 

notes, and Smith concedes, that our Court has decided this precise issue 

during the pendency of this appeal. Commonwealth’s Brief at 10; Smith’s 

Brief at 3.

In Commonwealth v. Giulian, 111 A.3d 201 (Pa. Super. 2015), the 

appellant sought to have two summary convictions expunged, one from 

1997 and one from 1998. The Commonwealth objected to expungement of 

the 1997 conviction, arguing that, due to the 1998 conviction, the appellant 
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had not remained free of arrest or prosecution in the five years following the 

1997 conviction. Id. at 202. Ultimately, the trial court agreed with the 

Commonwealth and denied expungement for the 1997 conviction. The issue 

before this Court was “whether the language contained in 18 Pa.C.S. 

§ 9122(b)(3)(i) allowed expungement when the petitioner is free of arrest or 

prosecution for any five-year period following conviction, or for the five-year 

period immediately following the conviction.” Id. at 203 (emphasis 

omitted). In applying the rules of statutory construction, we determined 

that the General Assembly’s use of the phrase “following the conviction for 

that offense” would be rendered mere surplusage if the statute were 

interpreted to mean any five-year period. “Because we may not disregard 

statutory language as mere surplusage, we agree[d] with the trial court’s 

interpretation that [the appellant] was required to remain free of arrest or

prosecution for the five years immediately following [the] conviction.” Id. at 

204 (citation and emphasis omitted).

Under Giulian, the trial court erred in determining that, because 

Smith was free of arrest for the five years prior to the hearing, he met the 

criteria for expungement pursuant to 18 Pa.C.S.A. § 9122(b)(3). Because 

Smith was convicted of offenses in 1998, he was not free of arrest or 

prosecution for the five years following his 1995 or his 1996 conviction. 

Therefore, the trial court erred in granting his petition for expungement of 

those convictions, and we reverse its orders.

Orders reversed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015