THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 4 AND 7 ]
Proposed Amendments of Pa.Rs.Crim.P. 490 and 790
[45 Pa.B. 3978]
[Saturday, July 25, 2015]The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Rules 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order) and 790 (Procedure For Obtaining Expungement In Court Cases; Expungement Order) for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.
Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.
Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.
The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:
Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.usAll communications in reference to the proposal should be received by no later than Friday, September 4, 2015. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.
By the Criminal Procedural
Rules CommitteePAUL M. YATRON,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 4. PROCEDURES IN SUMMARY CASES
PART H. Summary Case Expungement Procedures Rule 490. Procedure for Obtaining Expungement in Summary Cases; Expungement Order.
(A) Petition for Expungement
(1) Except as provided in Rule 320, an individual who satisfies the requirements of 18 Pa.C.S. § 9122 for expungement of a summary case may request expungement by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.
(2) The petition shall set forth:
(a) the petitioner's name and any aliases that the petitioner has used, address, and date of birth[, and social security number];
* * * * * (B) Objections; Hearing
* * * * * (4) If the judge grants the petition for expungement, the judge shall enter an order directing expungement.
(a) The order shall contain the information required in paragraph (C).
(b) [The] Except when the attorney for the Commonwealth has filed a consent to the petition pursuant to paragraph (B)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.
(5) If the judge denies the petition for expungement, the judge shall enter an order denying the petition and stating the reasons for the denial.
(C) Order
(1) Every order for expungement shall include:
(a) the petitioner's name and any aliases that the petitioner has used, address, and date of birth[, and social security number];
* * * * *
Comment This rule, adopted in 2010, provides the procedures for requesting and ordering expungement in summary cases. Any case in which a summary offense is filed with a misdemeanor, felony, or murder of the first, second, or third degree is a court case (see Rule 103). The petition for expungement of the summary offense in such a case would proceed under Rule 790.
See also Rule 320 for the procedures for expungement following the successful completion of an ARD program in a summary case and Rule 790 for court case expungement procedures.
This rule sets forth the only information that is to be included in every expungement petition and order.
Paragraph (A)(3) requires the petitioner to attach a copy of his or her criminal record to the petition.
[A form petition is to be designed and published by the Administrative Office of Pennsylvania Courts in consultation with the Committee as provided in Rule 104.]
A form petition and form order of expungement has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.
''Petition,'' as used in this rule, is a ''motion'' for purposes of Rules 575, 576, and 577.
* * * * * Official Note: Adopted September 22, 2010 effective in 90 days; amended , 2015, effective , 2015.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendment regarding the stay on expungement when the Commonwealth has consented and petition and order forms published for comment at 45 Pa.B. 3979 (July 25, 2015).
CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES
PART C. Court Case Expungement Procedures Rule 790. Procedure for Obtaining Expungement in Court Cases; Expungement Order.
(A) Petition for Expungement
(1) Except as provided in Rule 320 and 35 P. S. § 780-119, an individual who satisfies the requirements for expungement may request expungement by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.
(2) The petition shall set forth:
(a) the petitioner's name and any aliases that the petitioner has used, address, and date of birth[, and social security number];
* * * * * (B) Objections; Hearing
* * * * * (4) If the judge grants the petition for expungement, the judge shall enter an order directing expungement.
(a) The order shall contain the information required in paragraph (C).
(b) [The] Except when the attorney for the Commonwealth has filed a consent to the petition pursuant to paragraph (B)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.
(5) If the judge denies the petition for expungement, the judge shall enter an order denying the petition and stating the reasons for the denial.
(C) Order
(1) Every order for expungement shall include:
(a) the petitioner's name and any aliases that the petitioner has used, address, and date of birth[, and social security number];
* * * * *
Comment * * * * * An order for expungement under The Controlled Substance, Drug, Device, and Cosmetic Act, 35 P. S. § 780-119, also must include the information in paragraph (C).
[A form petition is to be designed and published by the Administrative Office of Pennsylvania Courts in consultation with the Committee as provided in Rule 104.]
A form petition and form order of expungement has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.
''Petition'' as used in this rule is a ''motion'' for purposes of Rules 575, 576, and 577.
* * * * * Official Note: Adopted September 22, 2010 effective in 90 days; amended , 2015, effective , 2015.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendment regarding the stay on expungement when the Commonwealth has consented and petition and order forms published for comment at 45 Pa.B. 3979 (July 25, 2015).
REPORT
Proposed amendment of Pa.Rs.Crim.P. 490 and 790
Contents of Expungement Petitions and Orders Recently, the Committee had considered suggested amendments to the procedures contained in Rules 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order) and 790 (Procedure For Obtaining Expungement In Court Cases; Expungement Order). Some of these suggestions related to complaints that it was taking lengthy amounts of time for the Pennsylvania State Police (PSP) to expunge records and to provide criminal history reports required for the expungement petition. As a result, Committee members met with representatives of the PSP to discuss these problems and possible rule changes that might help alleviate the problems. From these discussions, it appeared that most of the problems were of an administrative nature not amenable to correction by rule amendment. However, the PSP representatives suggested two possible changes that might assist their processing of expungement requests.
One of the things that was claimed to contribute to delay was that each county used a different type of expungement order. The PSP suggested that requiring a standard expungement order would help with this problem. The Committee considered this suggestion and noted that the AOPC has developed form petitions and orders for expungements under Rules 490 and 790 that are publically available on the UJS website. Additionally, the Committee noted that this problem has not been reported from other agencies that process large numbers of expungement orders including the AOPC.
The Committee ultimately rejected the idea of requiring one particular form. There was a concern that a petition could be rejected solely on the basis of not being the approved form while still containing the other information necessary for an expungement. The Comments to Rule 490 and 790 already mention the AOPC forms. The Committee concluded that adding a cross-reference to the webpage where the AOPC forms for expungement petitions and orders are found would be helpful to encourage use of the standard forms.
The PSP representatives also suggested removing the requirement of including the defendant's social security number in the expungement order due to identity theft concerns. Prior to the adoption of the current expungement rules, the Committee had considered removing this requirement and had, in 2008, recommended to the Court that the requirement for the defendant's social security number be removed. However, the Committee withdrew that recommendation as a result of communications from the State Police stating that the social security number was needed to ensure the defendant whose record was to be expunged was properly identified. This was particularly so for summary case expungements, because there were fewer defendant- and case-identifiers in such cases. Since that time, it appears that better processes for identifying particular defendants have been put in place and the social security number now is not needed. Therefore, this requirement would be removed from both expungement rules. Since the social security number would no longer be required for the order, similar amendments would remove the requirement to include the social security number in the expungement petition.
Another suggestion received by the Committee was to eliminate, in those cases in which the Commonwealth has filed a consent to the expungement, the 30-day stay on the expungement order provided in Rules 490(B)(4)(b) and 790(B)(4)(b) during which time the Commonwealth may appeal. The consent provisions in Rule 490(B)(1) and 790(B)(1) recognize that the Commonwealth may join in the desire to expedite an expungement. Some of the members believed that it is logical that the stay provision be curtailed where the Commonwealth has consented. On the other hand, some members were concerned about the rare case where the Commonwealth discovers reasons for appeal after having given consent and the stay period is the last chance for the Commonwealth to correct such a mistake before a record is eliminated. The Committee ultimately concluded that the Commonwealth has a responsibility to thoroughly investigate the defendant's circumstances before consenting to expungement in the first place and agreed to add a provision precluding the stay in cases in which the Commonwealth has consented to the expungement.
[Pa.B. Doc. No. 15-1365. Filed for public inspection July 24, 2015, 9:00 a.m.]
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