PA EXPUNGEMENT LAW OVERVIEW

Summary of PA Expungement Law & Purpose

To understand Pennsylvania’s expungement rules, one must first recognize that Pennsylvania’s Constitution grants greater liberties than what the United States Constitution affords. In particular, Pennsylvania emphasizes an individual’s privacy rights. Pennsylvania also acknowledges a person’s “inherent” right to defend their reputation. Pa. Const. art. I, § 1; see Simon v. Commonwealth, 659 A.2d 631, 639 (Pa. Commw. Ct. 1995) (explaining that preservation of an individual's reputation, is fundamental as it is recognized and protected by the Pennsylvania constitution.

Pennsylvania courts have long recognized that the Commonwealth’s retention of an arrest record, in and of itself, may cause serious harm to an individual. Commonwealth v. Malone, 366 A.2d 584, 588 (Pa. Super. 1976) (noting possible effects of maintaining an arrest record, including economic and non-economic losses and injury to reputation). As explained below, however, this does not mean that the Commonwealth does not have a legitimate interest in maintaining certain criminal records.

PA law defines “Expunge” as:

     (1) To remove information so that there is no trace or indication that such information existed;

     (2) to eliminate all identifiers which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes; or

     (3) maintenance of certain information required or authorized under the provisions of section 9122(c) (relating to expungement), when an individual has successfully completed the conditions of any pretrial or posttrial diversion or probation program.

In addition to permitting an accused an avenue to protect their reputation, the purpose of Pennsylvania’s expungement laws is to protect defendants from the difficulties and hardships that may result from an arrest on record. Commonwealth v. Butler, 672 A.2d 806 (Pa. Super. 1996). Indeed, there is a right to petition for expungement of a criminal arrest record, “a right that is an adjunct of due process.” Commonwealth v. Romeo, 153 A.3d 1084 (Pa. Super. 2017). Of course, the right to file a petition for expungement and to have a hearing on the petition, does not equate to a right to have any record expunged.  

Thus, when a prosecutor objects to an expungement petition, and/or before a court can deny it, a hearing must be held to consider why the petition should not be granted. In Commonwealth v. Wexler, our Supreme Court announced that a court reviewing an expungement petition “must balance the individual's right to be free from the harm attendant to the maintenance of the arrest record against the Commonwealth's interest in preserving such records.” 431 A.2d 877, 879 (Pa. 1981). In doing so, they court must consider factors such as, “the strength of the Commonwealth's case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner's age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.”

However, when granting an expungement is a matter of right, it must be granted. Thus, in those situations, is improper for a court to apply the Wexler balancing test. Graham v. Flippen, ___ A.3d. 2018 ___ (Pa. Super. 2018); PA Super 20 (Feb. 2, 2018) (citing Commonwealth v. Charnik, 921 A.2d 1214, 1219 (Pa. Super. 2007).

Thus, the key question of expungement analysis is whether a court must grant a petition as a matter of right or if the Wexler balancing test should be applied.

Pennsylvania’s Expungement Continuum

In Charnik, the Superior Court explained where types of cases stand on Pennsylvania’s expungement continuum. However, some dispositions fall in between these three categories, depending on various circumstances.

Expungement as a Matter of Law

An expungement is proper as a matter of law for: illegal or void civil commitments; acquittals in criminal cases; and, PFA matters that have not been proven or brought to a final order.

Judicial Decision: Wexler Expungement Test

At an expungement hearing for non-conviction dispositions or arrest records (e.g., nol pros or ARD), the court must apply the Wexler balancing test. Here, the court must balance the petitioner’s interest in clearing their record with the Commonwealth’s interest in maintaining it.

Conviction Records

When there is a record of conviction, there is no right of expungement except by statutory authorization in limited circumstances.

Pathways to PA Expungement Relief

In Pennsylvania, expungement eligibility is dependent on how, and sometimes when, a case was resolved. With limited expectations, misdemeanor and felony convictions are not eligible for expungement. See 18 Pa.C.S. § 9122. Otherwise, felony and misdemeanor offenses are only expungement eligible when they result in a non-conviction. The extent to what information an expungement will ultimately remove is also reliant on a case’s final disposition. In sum, not all expungements are equal and not all will fully erase a criminal record.

Expungement of Convictions in General – Age, Death, Governor’s Pardon

Expungement of Pardoned Convictions

A conviction that has been pardoned is entitled to expungement.

Reaching Age 70

A felony or misdemeanor conviction is eligible for expungement when a person reaches age 70 and has been free of arrest or prosecution for ten years following final release from confinement or supervision.

Death

A felony or misdemeanor conviction is eligible for expungement when a person has been dead for three years.

Pennsylvania’s Specific Expungement Rules & Issues

Due to the length of the analysis concerning the following topics, they are discussed separately.

The Value of an Expunged Criminal Record

A clean record is priceless. Here are some examples of how an expungement, limited access order, or pardon can remove barriers concerning:

• Employment
• Education
• Housing
• Firearm Ownership
• Volunteering for certain Youth Activities
• Voting (depending where you live)
• Adoption or Forster Parents (depending where you live)
• Expungements and Limited Access Orders also remove public access to all docket sheet and conviction data on Pennsylvania’s UJS Web Portal.

Call Now to Speak with a Pennsylvania Expungement Lawyer

Thanks again for visiting Lampman Law. Please call us at 570-371-3737 if you would like to discuss expunging a record. The call is free of charge and without pressure. We hope to hear from you today.