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12/04/97 COMMONWEALTH PENNSYLVANIA v. JOHN WOLF

SUPERIOR COURT OF PENNSYLVANIA


December 4, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
JOHN WOLF, APPELLEE

Appeal from the Order of the Court of Common Pleas of Erie County, Criminal Division at No. 474 of 1988. Before DiSantis, J.

Before: Tamilia, Popovich and Hester, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed December 4, 1997

Appellee pleaded guilty to driving while under the influence of alcohol, *fn1 meeting a vehicle proceeding in the opposite direction *fn2 and minor in possession of an intoxicating beverage. *fn3 On August 8, 1988, he was sentenced to forty-eight hours incarceration and ordered to pay a fine, plus costs. Appellee complied fully with his sentence and he was discharged with regard thereto. On January 3, 1997, he filed a petition to expunge his criminal record. The trial court granted the petition. Following the denial of the Commonwealth's petition for reconsideration and rescission of the expungement order, the Commonwealth filed this timely appeal. We reverse.

The Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq., specifically Section 9122(b), authorizes expungement in the following circumstance:

(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.

18 Pa.C.S.A. § 9122(b)(1), (2). Clearly, appellee does not meet the requirements for expungement under Section 9122(b). He has not reached the age of 70 and he has not been dead for three years.

However, this does not end our inquiry. In this case, the trial court did not rely on Section 9122(b) in granting appellee's petition. Rather, the trial court determined that it was permitted to expunge appellee's record, which consisted of convictions only, pursuant to its common law equitable powers. Specifically, the trial court stated that it would be inequitable and an abuse of the court's discretion not to grant appellee's petition since:

The defendant's conviction was a result of an uncounseled entry of a guilty plea. Although he was aware of his right to counsel and voluntarily waived that right, it appears to [this court] that the defendant may well have qualified for the Accelerated Rehabilitative Disposition Program (ARD) given the facts of this case. Had he availed himself of that remedy, he would have avoided conviction.

Trial Court Opinion 3/4/97 pp. 2-3.

"Pennsylvania has strictly regulated expungement of records of convicted persons." Commonwealth v. Dobson, 454 Pa. Super. 101, 684 A.2d 1073, 1076 (1996). As we stated in Dobson, (supra) , expungement of convictions is permitted only if the requirements found in Section 9122 have been met. We expressly disagree with the trial court's Conclusion that it was permitted to expunge appellee's record on the basis of its common law equitable powers. We have held repeatedly that there is no common law basis for a trial court to grant a petition seeking to expunge a criminal conviction. Commonwealth v. Cook, 359 Pa. Super. 216, 518 A.2d 858 (1986); Commonwealth v. Magdon, 310 Pa. Super. 84, 456 A.2d 194 (1983); Commonwealth v. Zimmerman, 215 Pa. Super. 534, 258 A.2d 695 (1969). Accordingly, since the trial court acted without a statutory or common law basis, the order authorizing expungement of appellee's record must be reversed. *fn4

Order reversed.


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