No. 218 April Term, 1975, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Butler County, at No. 76 June Term, 1971.
Richard F. Welch, Pittsburgh, for appellant.
Robert F. Hawk, Butler, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 487]
On February 17, 1971, petition was filed in Butler County Juvenile Court alleging that the then-17 year old Daniel J. Homison sold hashish to another boy. The case was certified to the criminal division of Common Pleas Court on March 31, 1971, and on July 19, 1971, Homison entered a plea of guilty. Homison was sentenced on September 28, 1971, to pay a fine of $500.00 and undergo imprisonment for two to five years, with the imprisonment suspended upon payment of the fine and costs. No direct appeal was taken.
On November 5, 1974, Homison was granted a pardon by the Governor, Milton J. Shapp, and on November 29, 1974 filed a petition to expunge the record. The lower court, relying on Cohen v. Barger, 11 Pa. Commw. 617, 314 A.2d 353 (1974),*fn1 dismissed the petition, finding that Homison did not prove, or even allege, that the pardon had been granted because of innocence. Appeal was taken to our Court from the Order of November 29, 1974, dismissing the petition. The sole issue before our Court is whether the grant of a full pardon (for reasons other than innocence) by the Governor of our State entitles one who has been convicted of a crime to expunction of his criminal record.
Our research has disclosed no Supreme or Superior Court decisions exactly on point. In Commonwealth ex rel. v. Smith, 324 Pa. 73, 187 A. 387 (1936), however, our Supreme Court held that an offense for which a pardon had been
[ 253 Pa. Super. Page 488]
granted could be considered by a court in sentencing under a second offender statute, and in Commonwealth v. Cannon, 386 Pa. 62, 123 A.2d 675 (1956), cert. denied, 352 U.S. 898, 77 S.Ct. 139, 1 L.Ed.2d 90 (1956), the Supreme Court found admissible at trial, in connection with the imposition of sentence, evidence of a prior crime of which the defendant had been convicted and pardoned. Notwithstanding dictum in Commonwealth v. Zimmerman, 215 Pa. Super. 534, 258 A.2d 695 (1969), we believe that Smith and Cannon require us to find that the lower court in the case before us did not err in refusing to expunge appellant's criminal record. We therefore affirm the Order of November 29, 1974, dismissing appellant's petition.
HOFFMAN, Judge, dissenting:
Appellant contends that the lower court erred in dismissing his petition to expunge his police record and criminal conviction. I agree and, would therefore, reverse and remand for further proceedings.
On February 17, 1971, Commonwealth officials filed a petition in juvenile court; it alleged that the 17 year old appellant sold hashish. After certification to the Court of Common Pleas of Butler County, appellant pleaded guilty to the sale of hashish.*fn1 The court sentenced appellant to a two to five year term of imprisonment; it suspended the imprisonment pending the payment of the costs and a $500. fine. No appeal followed the judgment of sentence. On November 5, 1974, the Governor of Pennsylvania granted appellant a full pardon for the instant offense. On November 29, 1974, appellant filed a petition ...