ChesterNewMatterFall2017 - 7

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prosecution for five years immediately following
her convictions for the offenses which she wished
to expunge of harassment and public drunkenness,
she was free of arrest and prosecution for more than
sixteen years following her subsequent conviction for
criminal mischief.
HOLDINGS: [1]-The petitioner was eligible for
expungement of the criminal history record of her
harassment and public drunkenness convictions,
as well as her criminal mischief conviction,
because she stayed arrest-free for almost two
decades. Accordingly, remand to the trial court was
appropriate for consideration of all factors relevant
to the discretionary determination of whether the
summary offenses were to be expunged.
Outcome - Judgment reversed, and case remanded for
further proceedings."
The Supreme Court looked at the lower court's reasoning on
how to compute the look-back period of 5 years and decided
that the lower court's had misinterpreted the language and
inserted its own verbiage.
"The panel recognized penal statutes are to be strictly
construed under the rule of lenity, with ambiguities
resolved in favor of the defendant. Id. at 204.
However, the panel considered the language of
Section 9122(b)(3)(i) to be clear and unambiguous
and held the language supported the trial court's
reading of the term "free of arrest or prosecution
for five years following the conviction." Id. The
panel interpreted the statutory language as requiring
appellant to remain free of arrest or prosecution
for "the" five years "immediately following her
conviction for the 1997 offense[s]," rather than for
"any" five-year period following those offenses.
Id. (emphases in original). In the panel's view, the
reading proffered by appellant treated as surplusage
the concluding statutory phrase, "following the
conviction for that offense." Id." (Emphasis by the
court).
The Supreme Court discusses in detail the use of language
that is in the statute and that which is added by the lower
court's interpretation.
"The parties here argue Section 9122(b) is clear and
unambiguous and that its plain terms support their
respective readings - which are squarely opposed.
When the parties read a statute in two different ways
and the statutory language is reasonably capable
of either construction, the language is ambiguous.

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Id. Unlike the Commonwealth, we believe this
provision is, at a minimum, ambiguous. Appellant's
textual points concerning the language of the
statute are certainly plausible, so much so, in fact,
the Superior Court resorted to adding words to the
statute in order to dismiss appellant's argument. For
example, the statute does not include the definite
article "the" or the word "immediately" in order to
circumscribe the time period referenced in Section
9122(b)(3)(i); the Superior Court itself supplied
this limiting language to the statute by concluding
a defendant must remain arrest-free for "the" five
years "immediately following" the 1997 convictions.
Giulian, 111 A.3d at 204 (emphasis in original).
The Commonwealth likewise interpolates the
word "immediately" in insisting the statute lacks
ambiguity. This Court has cautioned, however,
"although one is admonished to listen attentively to
what a statute says[,] one must also listen attentively
to what it does not say." Commonwealth v. Johnson,
611 Pa. 381, 26 A.3d 1078, 1090 (Pa. 2011), quoting
Kmonk-Sullivan v. State Farm Mut. Auto. Ins.
Co., 567 Pa. 514, 788 A.2d 955, 962 (Pa. 2001).
Continued on page 8

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