author: Justice DOUGHERTY. Justice BAER, Justice WECHT,

text:
    141 A.3d 1262
    COMMONWEALTH of Pennsylvania, Appellee v. Victoria C. GIULIAN, Appellant.
    Supreme Court of Pennsylvania.
    Argued April 6, 2016.
    Decided July 19, 2016.

      SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
    Matthew Dale Janssen, Thomas Ian Plotkin, Pepper Hamilton LLP, Philadelphia, for Juvenile Law Center, et al., Amicus Curiae.
    Jason S. Dunkle, JD Law, P.C., State College, for Victoria C. Giulian, Appellant.
    Crystal Lynn Hundt, Centre County Dist. Atty’s Office, Stacy Parks Miller, for Com. of Pa., Appellee.
   OPINION

Justice DOUGHERTY.

We consider the statutory requirements for expungement of criminal history record information for summary convictions pursuant to 18 Pa.C.S. § 9122(b)(3) and conclude the lower courts erred in holding expungement unavailable as a matter of law in this matter. We therefore reverse and remand.

Appellant Victoria C. Giulian, then twenty years old, was arrested on April 20,1997, and ultimately pleaded guilty to the summary offenses of public drunkenness, 18 Pa.C.S. § 5505, and harassment, 18 Pa.C.S. § 2709(a)(1). At this same time, appellant was also charged with the misdemeanor offense of disorderly conduct, 18 Pa.C.S. § 5503(a)(2), a charge later withdrawn, and the summary offense of underage drinking, 18 Pa.C.S. § 6308(a), to which she pleaded guilty. Appellant was then arrested on September 27, 1998, and pleaded guilty to the summary offense of criminal mischief, 18 Pa.C.S. § 3304.

Appellant has had no arrests since September 27,1998. On May 8, 2013, appellant filed a petition seeking expungement of these summary convictions from her criminal history record under Section 9122(b)(3), which provides:

(b) Generally. — Criminal history record information may be expunged when:
⅜ ⅜ ⅜
(S)(i) An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense.
(ii) Expungement under this paragraph shall only be permitted for a conviction of a summary offense.

18 Pa.C.S. § 9122(b)(3).

The Commonwealth did not object to expungement of the withdrawn disorderly conduct charge and the guilty plea conviction for underage drinking, and the record of these charges was expunged. The Commonwealth did oppose ex-pungement respecting the other offenses, however. The Cen-tre County Court of Common Pleas granted the petition with regard to the 1998 criminal mischief conviction, but denied expungement of the records relating to the 1997 public drunkenness and harassment convictions. The court acknowledged appellant was “conviction free for 16 years” after 1998, but determined appellant was not entitled to expungement of the earlier convictions because her 1998 arrest and plea meant she did not remain free of arrest or prosecution for “at least five years following the 1997 convictions” as required by subsection (b)(3)(i). Trial Court Opinion, 7/16/14, slip op. at 4.

Appellant filed an appeal to the Superior Court, which affirmed the trial court in a brief published decision. Commonwealth v. Giulian, 111 A.3d 201 (Pa.Super.2015). 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)© 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.

Appellant filed a petition for allowance of appeal, and this Court granted review of the following question:

Did the Superior Court commit an error of law in finding that the Petitioner was not statutorily eligible to have her summary convictions expunged pursuant to 18 Pa.C.S.A. § 9122(b)(3) despite the fact that Petitioner has been free of arrest and prosecution for more than sixteen years following the convictions, over ten years longer than the statutory requirement?

Commonwealth v. Giulian, 632 Pa. 640, 122 A.3d 1029 (2015).

Appellant argues she is eligible to have the records of her 1997 summary convictions expunged because she has been free from arrest and prosecution for more than sixteen years following those convictions, over ten years longer than the five-year requirement set forth in Section 9122(b)(3)(i). Appellant asserts the Superior Court incorrectly read into the statute a requirement that the five arrest-free years be “immediately” following the conviction sought to be expunged, when the actual text of the statute does not include that qualifier. Appellant claims courts should not add words or phrases when construing a statute unless the words are “necessary for a proper interpretation, do not conflict with the obvious intent of the statute, and do not in any way affect its scope and operation.” Appellant’s Brief at 11, citing Commonwealth v. Segida, 604 Pa. 103, 985 A.2d 871, 875 (2009). Appellant points out the General Assembly has used “immediately following” in other statutes when it intends to qualify timing in this way, and thus the omission of the phrase from Section 9122(b)(3)(i) is telling. Appellant’s Brief at 12, citing, e.g., 18 Pa.C.S. § 9143 (Office of Attorney General has power to promulgate guidelines for implementation of statute for period of “one year immediately following the effective date of this section”).

In a second textual argument, appellant points to the absence of the definite article “the” to circumscribe the period referenced in Section 9122(b)(3)(i); she argues the Superior Court improperly supplied this limiting language to the statute when it interpreted it as requiring her to remain arrest-free for “the” five years “immediately following” the 1997 convictions. Giulian, 111 A.3d at 204. Appellant further stresses the Legislature’s use of the present perfect tense— “has been free of arrest” — supports her interpretation that the statute does not refer to any particular five-year period, and that period can occur recently, as opposed to the Superior Court’s conversion of the language, in the Anal paragraph of its opinion, to read “was not free of arrest or prosecution.” Id. (emphasis added). Moreover, appellant argues, the Superior Court’s concern that her reading renders the final phrase of the statute surplusage is misplaced because the words “following the conviction for that offense” are necessary to establish the possible start date for any five-year waiting period, ie., the period begins after conviction for the summary offense.

According to appellant, even if Section 9122(b)(3) is ambiguous, it is a penal statute which must ordinarily be strictly construed, see 1 Pa.C.S. § 1928(b)(1), and under the rule of lenity any ambiguity must be construed in her favor. See Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66, 74 (2008) (if ambiguity exists in penal statute it should be interpreted in light most favorable to accused; where doubt exists, accused should receive benefit of doubt). In the alternative, appellant argues exceptions to remedial legislation — such as this ex-pungement provision — are narrowly construed against the Commonwealth, because such a statute should be “construed liberally to effectuate its humanitarian objectives.” Appellant’s Brief at 22, quoting School Dist. of Phila. v. WCAB, 632 Pa. 10, 117 A.3d 232, 242 (2015).

Finally, appellant argues the General Assembly intended to allow rehabilitated individuals like herself to secure expungement of their minor summary citations, in order to achieve better access to jobs or housing, and so, to the extent there is an ambiguity, this Court should interpret the statute with this particular legislative intent in mind. Appellant claims the Superior Court’s interpretation will produce absurd and unreasonable results, as it has here — where the record of the more recent summary citation was expunged while the older ones remain intact — and this cannot be the intent of the Legislature. See, e.g., 1 Pa.C.S. § 1922(1) (presumption that General Assembly does not intend absurd, impossible or unreasonable result); Banfield v. Cortes, 631 Pa. 229, 110 A.3d 155, 168 (2015) (same).

Echoing the interpretation of the courts below, the Commonwealth responds that appellant’s 1997 summary convictions cannot be expunged because she failed to remain free of arrest or prosecution for five years, due to her subsequent 1998 arrest and conviction. The Commonwealth claims the statute is clear and unambiguous in its meaning: “a defendant must be arrest or prosecution free for five years immediately following the conviction for the offense she wishes to expunge.” Appellee’s Brief at 8. The Commonwealth agrees Section 9122(b)(3) is a penal statute, see id. at 9, but, like the Superior Court below, claims it is free from ambiguity and so the rule of lenity does not mandate a reading in appellant’s favor. See Giulicm, 111 A.3d at 204. The Commonwealth asserts the statute makes plain the Legislature’s intention that a conviction for a summary offense, no matter how old, can never be expunged if there is another conviction within five years of that first offense; under such circumstances, “the opportunity to expunge the initial summary offense disappears upon a defendant’s subsequent arrest or prosecution and the focus turns to the new, subsequent offense.” Appellee’s Brief at 10.

The Commonwealth rejects what it characterizes as appellant’s “public policy” argument that the statute should be interpreted to give her “a break through expungement.” Id. at 13. Instead, according to the Commonwealth, the humanitarian goals of the Legislature are achieved under the statute because a defendant can “rid[ ] herself of the stigma associated with a summary offense conviction if she can simply remain arrest-free for five years following that conviction.” Id. at 14. Otherwise, the Commonwealth claims, a defendant receives a “volume discount” — she could “commit a years-long summary conviction crime-spree, end the spree, then apply for expungement” five years after the last offense. Id. at 17.

Finally, the Commonwealth argues expungement is left to the discretion of the trial court, even after both prongs of subsection (b)(3) are met, and while the court was thus within its discretion to expunge the 1998 offense, the Commonwealth posits there was no abuse of discretion in denial of expungement of the 1997 offense, where appellant was not eligible under subsection (b)(3). Id. at 17-19.

The question presented is one of statutory interpretation and is therefore a question of law; our standard of review is de novo, and our scope of review is plenary. Fithian, 961 A.2d at 71 n. 4. We have stated “|j]udicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner. When an individual has been convicted of the offenses charged, then expungement of criminal history records may be granted only under very limited circumstances that are set forth by statute.” Commonwealth v. Moto, 611 Pa. 95, 23 A.3d 989, 993 (2011), citing, inter alia, 18 Pa.C.S. § 9122. At the same time, the permissive language of Section 9122(b) — providing “[c]riminal record history may be expunged” — clearly vests discretion in the court to expunge a qualifying record. See also Commonwealth v. Wallace, 626 Pa. 362, 97 A.3d 310, 317 (2014) (decision to grant or deny petition for expungement lies in sound discretion of trial court); Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877, 879 (1981) (in determining whether to grant expungement court must balance individual’s right to be free from harm attendant to maintenance of arrest record against Commonwealth’s interest in preserving such record). Subsection (b)(3)(i) then includes the relevant qualifying language regarding timing: the individual seeking expungement must be “free of arrest or prosecution for five years following the conviction for that offense.”

In matters involving statutory interpretation, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). A statute’s plain language generally provides the best indication of legislative intent. See, e.g., McGrory v. Dep’t of Transp., 591 Pa. 56, 915 A.2d 1155, 1158 (2007); Commonwealth v. Gilmour Mfg. Co., 573 Pa. 143, 822 A.2d 676, 679 (2003). In construing the language, however, and giving it effect, “we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.” Roethlein v. Portnoff Law Assocs., Ltd., 623 Pa. 1, 81 A.3d 816, 822 (2013), citing Mishoe v. Erie Ins. Co., 573 Pa. 267, 824 A.2d 1153, 1155 (2003). Accord Commonwealth v. Office of Open Records, 628 Pa. 163, 103 A.3d 1276,1285 (2014) (statutory language must be read in context; in ascertaining legislative intent, every portion is to be read together with remaining language and construed with reference to statute as a whole).

The United States Supreme Court also takes a contextual approach in assessing the plain language of statutes and in determining if an ambiguity exists. See generally King v. Burwell, — U.S. -, -, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (“If the statutory language is plain, we must enforce it according to its terms. But oftentimes the meaning — or ambiguity — of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.” (internal quotation marks and citations omitted)); Yates v. United States, — U.S. -, -, 135 S.Ct. 1074, 1081-82, 191 L.Ed.2d 64 (2015) (“ ‘[T]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.’ Ordinarily, a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.” (internal citations omitted)).

When a statute is ambiguous, we may go beyond the relevant texts and look to other considerations to discern legislative intent. “Where statutory or regulatory language is ambiguous, this Court may resolve the ambiguity by considering, inter alia, the following: the occasion and necessity for the statute or regulation; the circumstances under which it was enacted; the mischief to be remedied; the object to be attained; the former law, if any, including other statutes or regulations upon the same or similar subjects; the consequences of a particular interpretation; and administrative interpretations of such statute.” Freedom Med. Supply, Inc. v. State Farm Fire & Cas. Co., 635 Pa. 86, 131 A.3d 977, 984 (2016), citing 1 Pa.C.S. § 1921(c).

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. 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 (2011), quoting Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 567 Pa. 514, 788 A.2d 955, 962 (2001). Accordingly, we have stressed courts should not add, by interpretation, a requirement not included by the General Assembly. Johnson, 26 A.3d at 1090, citing Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 213 A.2d 277, 282 (1965).

We also credit appellant’s view the General Assembly’s use of the present perfect tense “has been free of arrest” supports that the statute does not refer to any particular five-year period; again, it is notable the Superior Court altered the text in narrowing the scope of the provision. See Giulian, 111 A.3d at 204 (“Therefore, as Appellant was not free of arrest or prosecution for the five years following the 1997 offense, we discern no error or abuse of discretion in the trial court’s order denying her petition to expunge the 1997 offense.”) (emphasis added).

For purposes of decision, we need not dispute that the contrary reading of the provision is also colorable as a textual matter, but it is notable the Superior Court and the Commonwealth easily demonstrate how much clearer the language could be if the provision actually included the terms “the” and “immediately” — or other terms of limitation. Finally, appellant successfully rebuts the Superior Court’s concern her interpretation rendered the final phrase of the statute surplus-age: the clause “following the conviction for that offense” reasonably bears the construction it merely establishes the possible start date for any five-year waiting period, i.e., the period is simply after the conviction for the subject summary offense. Under this reading, there is no surplusage.

Our determination the statute is ambiguous is further supported by viewing the language in its context as part of the overall statutory scheme. See, e.g., 1 Pa.C.S. § 1921(a) (sections of statute should be read together and construed to give effect to all provisions); Roethlein, 81 A.3d at 822 (statutory words not to be interpreted in isolation but read with reference to context in which they appear); Mishoe, 824 A.2d at 1155 (same). See also Sturgeon v. Frost, — U.S.-,-, 136 S.Ct. 1061, 1070, 194 L.Ed.2d 108 (2016) (“Statutory language ‘cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’”). It is undisputed Section 9122 is designed to afford the prospect of expungement relief to certain individuals under specified circumstances. The statute embraces three distinct approaches: situations where expungement must be granted, situations where it cannot be granted, and situations where expungement is possible in the discretion of the trial court. For example, subsection (a) describes situations where criminal record history must be expunged. 18 Pa.C.S. § 9122(a) (criminal history record information shall be expunged when no disposition has been recorded within 18 months of arrest and it is certified no action is pending, or when a person convicted of underage drinking attains 21 years of age and has satisfied all terms and conditions of sentence). Contrarily, subsection (b.l) describes situations where criminal history records can never be expunged. 18 Pa.C.S. § 9122(b.l) (court shall not have authority to order expungement of arrest record where defendant was placed on Accelerated Rehabilitative Disposition for violation of certain enumerated offenses where victim is under 18 years of age). Finally, subsection (b) describes middle-ground situations where the court may grant expungement under certain conditions. 18 Pa.C.S. § 9122(b). Cf. Moto, 23 A.3d at 1000 (Saylor, J., dissenting) (“Expungement is discretionary when sought to purge criminal history record information generally (ie., to wipe the slate clean).”). Here, the reading of the Superior Court and the Commonwealth takes the provision framed in discretionary language and carves out an exception where expungement can never be secured. The overall structure of the statute weighs against this narrowing construction.

Other statutory construction factors also weigh in favor of appellant’s reading. Although the Superior Court affirmed the denial of expungement in this case, the panel nevertheless recognized the purpose of the expungement statute — the occasion and necessity for its enactment, the mischief to be remedied, and the object to be attained — is to ameliorate the “difficulties and hardships” that often result from an arrest record. Giulian, 111 A.3d at 203, quoting Commonwealth v. Butler, 448 Pa.Super. 582, 672 A.2d 806, 808 (1996). “Ex-pungement is a mechanism utilized to protect an individual’s reputation from the stigma that accompanies an arrest record.” Wallace, 97 A.3d at 319. Unlike the defendant in Wallace, who was denied expungement while still incarcerated for multiple, serious crimes, see id. at 322, appellant, whose minor offenses occurred long ago, when she was very young, and who has stayed arrest-free for almost two decades, is the kind of person who would benefit from the elimination of the perpetual stigma of her youthful misconduct.

Amici persuasively supplement appellant’s argument in this regard by gathering and explaining current research and statistical information about the specific consequences experienced by individuals like appellant, with low-level offenses on their records, especially in this new era of easy online access to criminal records through inexpensive background checking services. Amicus Curiae Brief at 10, citing, e.g., Nat’l Center for State Courts, Privacy/Public Access to State Courts: State Links; Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, Washington College of Law Research Paper No. 2015-3 (2015); see id. at 12 (in one survey, 11% of employers reported minor infraction would disqualify candidate from employment; in another study, researchers found existence of criminal record reduced likelihood of callback or job offer by nearly 50%); see id. at 11-18 (collecting information regarding barriers to employment, housing and education created by criminal records). The intended remedial impact of the expungement statute with respect to low-level offenses reveals obvious practical humanitarian objectives, which counsel us to construe the statutory language liberally in favor of appellant. See, e.g., School Dist. of Phila., 117 A.3d at 242.

Accordingly, in our judgment, appellant’s construction of the statute is more persuasive. Moreover, the lower courts’ contrary, stricter reading of the statute has yielded an unreasonable result: appellant’s 1998 conviction has been expunged while the older ones remain intact and, by the lower courts’ reasoning, those 1997 offenses can never be expunged, even if another sixteen, or fifty, arrest-free years elapse. We hold this is not a result the Legislature intended. Instead, we hold appellant is eligible for expungement of the criminal history record of her 1997 harassment and public drunkenness convictions.

Finally, regarding the Commonwealth’s somewhat tautological argument that the trial court did not abuse its discretion because appellant was ineligible for expungement, we note the trial court did not purport to exercise its discretion; the court held instead appellant was not eligible for expungement as a matter of law pursuant to its reading of the statute. Trial Court Opinion, 7/16/14, slip op. at 4. Accordingly, we remand to the trial court for consideration of all factors relevant to the discretionary determination of whether appellant’s summary offenses should be expunged. See, e.g., Wexler, 431 A.2d at 879 (factors to consider in deciding whether to expunge criminal record include (1) strength of Commonwealth’s case; (2) Commonwealth’s reasons for wishing to retain records; (8) petitioner’s age, criminal record, and employment history; (4) length of time between arrest and petition to expunge; and (5) adverse consequences resulting from denial).

Reversed and remanded for further proceedings. Jurisdiction relinquished.

Chief Justice SAYLOR and Justices DONOHUE and WECHT join the opinion.

Justice BAER files a concurring opinion which Justice TODD joins.

Justice WECHT files a concurring opinion.

Justice BAER,

concurring.

I concur in the result. I agree that Appellant, Victoria Giulian, is not statutorily barred from seeking an expungement of her 1997 conviction under 18 Pa.C.S. § 9122(b)(3)(i). I write separately to provide my statutory analysis, and to stress that this case does not require the Court to determine whether expungement statutes are penal or remedial for purposes of statutory construction.

Like the majority, I find ambiguity in the language of Subsection 9122(b)(3)(i), providing that an individual may petition for expungement of a summary offense when she “has been free of arrest or prosecution for five years following the conviction for that offense.” 18 Pa.C.S. § 9122(b)(3)(i). As written, the language leaves open the question: during what five-year period must an individual be free from arrest? Is it, as Appellant argues, “any” five year period following conviction; or is it, as the Commonwealth argues, “the” five-year period “immediately” following the conviction? Because Subsection 9122(b)(3)(i)’s language is “reasonably capable of either construction,” the statute is indeed ambiguous. Freedom Med. Supply, Inc. v. State Farm Fire & Cas. Co., 635 Pa. 86, 131 A.3d 977, 984 (2016). Upon closer review, however, it becomes apparent that Appellant’s interpretation is the more persuasive construct.

First, as a principle of statutory construction, we may add words or phrases in construing a statute only if they are “necessary to the proper interpretation of a statute” and “do not conflict with its obvious purpose and intent, nor in any way affect its scope and operation.” 1 Pa.C.S. § 1923(c). As mentioned above, both interpretations arguably require us to read in missing words to clarify the applicable five-year period. However, accepting the Commonwealth’s suggestion— adding “the” and “immediately” — significantly limits the scope of who may be eligible for an expungement. Specifically, the Commonwealth’s interpretation excludes individuals, such as Appellant, from seeking an expungement, notwithstanding that they have been arrest-free well past multiple five-year periods following their conviction.

On the other hand, Appellant’s suggestion — adding “any”— does not significantly alter or limit the statutory language of Subsection 9122(b)(3)(i), because the statute as written has no limitation on which five-year period would suffice, indicating that any five-year period is acceptable. Thus, adding the word “any” helps to clarify the legislature’s intent, rather than significantly alter it. Moreover, regardless of whether we apply the penal or remedial standard of statutory construction, we construe the statute in favor of Appellant, and therefore, her suggestion of adding “any” is more appropriate than the Commonwealth’s suggestion to add “the” and “immediately.”

Next, when conducting statutory interpretation, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.” 1 Pa.C.S. § 1903(a). Here, the General Assembly’s use of the past perfect tense “has been” is instructive. The phrase “has been” implies that the five-year period could be any five-year period following conviction ending with the most recent one. To accept the Commonwealth’s argument that the General Assembly intended the statute to include only the first five-year period immediately following conviction would require a change of “has been” to “was.” Otherwise, as Appellant points out, the statute would read: “An individual ... has been free of arrest or prosecution for [the] five years [immediately] following the conviction,” which, grammatically, is awkward. See Appellant’s Brief at 16. If that was the Legislature’s intent, the statutory provision would properly take the past tense, ie., requiring that Appellant “was free of arrest or prosecution for the five years immediately following conviction.” Thus, Appellant’s interpretation is more grammatically accurate, weighing in favor of her interpretation.

Third, Appellant rebuts the Commonwealth’s strongest argument that her interpretation renders “following the conviction for that offense” to be mere surplusage. At first blush, the Commonwealth’s argument seems plausible: if the General Assembly intended the arrest-free period to be “any” five-year period after conviction, then it would not have had to say “following the conviction,” and instead could have said simply that a petitioner must be “free of arrest for five years.” According to the Commonwealth, adding “following the conviction” indicates the intent that the five-year period must occur immediately following the conviction. However, Appellant posits that the “following the conviction” language is necessary to set the start date of the five-year period. Appellant suggests other reasonable starting points that the General Assembly could have selected instead, such as: 1) “following final release from confinement or supervision,” the starting point used in 18 Pa,C.S. § 9122(b)(1), governing expungement eligibility for individuals over 70 years of age; or 2) a certain time period since “the individual has satisfied all terms and conditions of the sentence imposed for the violation,” which is contained within 18 Pa.C.S. § 9123(a)(2.2), governing expungement eligibility for certain juvenile records. In light of these other reasonable possibilities, it appears correct that the language “following the conviction” is necessary to discern the earliest possible start date for the five-year waiting period, and therefore, is not rendered meaningless by Appellant’s interpretation.

Finally, the Commonwealth’s interpretation is simply unreasonable, as aptly highlighted by Justice Wecht’s concurring opinion. See Concurring Op. at 227-28, 141 A.3d at 1274 (Wecht, J.). As my colleague observed, the Commonwealth’s interpretation would allow for an individual to reoffend every five years and one day and be eligible, subject to the trial court’s discretion, for expungement of every offense, yet preclude an individual like Appellant from receiving an expungement even if she had been arrest-free for fifty years.

For all of these reasons, I find Appellant’s interpretation much more persuasive than that of the Commonwealth. I point out that the sole issue before us is whether Appellant is eligible to seek expungement for her 1997 conviction. The only facts relevant to whether Appellant is statutorily eligible for expungement is whether she seeks to expunge a summary conviction and whether she has been arrest-free for a five-year period since her conviction for that offense. Any discussion of the general expungement scheme or the factors a trial court should consider when deciding whether to grant an expungement petition is irrelevant to the determination that she is eligible to seek expungement.

To the extent that the majority discusses the penal/remedial rules of construction, it is worth explaining that we need not decide which one applies to Subsection 9122(b)(3)© in this case or should be applied in future expungement cases. To reiterate briefly, if a statute is penal in nature, the rule of lenity applies so that any ambiguity must be strictly construed in favor of a defendant. 1 Pa.C.S. § 1928(b)(1) (providing that penal statutes “shall be strictly construed”); see also Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66, 74 (2008) (explaining that where ambiguity exists in a penal statute it should be interpreted in the light most favorable to the accused). On the other hand, if a statute is remedial legislation, then the statute should be “construed liberally to effectuate its humanitarian objectives.” School Dist. of Phila. v. WCAB (Hilton), 632 Pa. 10, 117 A.3d 232, 242 (2015). These two rules of construction, in this case, seem to arrive at the same result: ambiguity in Subsection 9122(b)(3)(i) should be resolved in Appellant’s favor under both rules because Appellant was at one time the accused, and she is the intended beneficiary of the statute’s humanitarian objectives.

However, I caution that the rules of construction utilize different language. Although they have similar effects, the rule of lenity uses stronger language, that of strict construction, whereas remedial legislation must be liberally construed, a seemingly lower standard. Here, I conclude that Appellant’s position is superior even applying the lesser remedial legislation standard, and thereby avoid any suggestion as to which rule applies to future interpretations of expungement statutes.

Justice TODD joins this concurring opinion.

Justice WECHT,

concurring.

I join the learned Majority’s opinion in full. I agree that the operative language of 18 Pa.C.S. § 9122(b)(3)(i) is ambiguous, and that Victoria Giulian presents the correct interpretation of the statute. The Majority aptly depicts the absurd and unreasonable results that a contrary construction would engender. I write separately to identify a peculiar consequence that would follow from the Commonwealth’s suggested interpretation of 18 Pa.C.S. § 9122(b)(3)(i), which further illustrates the untenable nature of the Commonwealth’s position.

In construing ambiguous statutory language, “we presume to be erroneous any interpretation that leads to an absurd or unreasonable result.” Freedom Med. Supply, Inc. v. State Farm Fire & Cas. Co., 635 Pa. 86, 131 A.3d 977, 984 (2016); 1 Pa.C.S. § 1922(1). I agree with the Majority’s assessment that the Commonwealth’s reading of the statute yields an unreasonable result, in that the 1997 offenses never may be expunged, while, oddly enough, expungement of the 1998 conviction is fully permissible. See Maj. Op. at 221-22, 141 A.3d at 1270-71.

I note, as well, that the Commonwealth’s suggested interpretation would countenance an even more plainly unreasonable and absurd result, as follows. The Commonwealth maintains that “a defendant with a subsequent arrest or prosecution within the five years following the initial summary offense conviction may never have the initial summary offense expunged,” but that a summary offense conviction may be expunged if the defendant “can simply remain arrest-free for five years following that conviction.” Brief for the Commonwealth at 10, 14. The Majority correctly notes that this interpretation would preclude expungement of the 1997 offenses even if Giulian remains arrest-free for another fifty years. However, over a similar fifty-year period, the Commonwealth’s interpretation would allow for the expungement of up to ten offenses, provided merely that five years elapsed between each conviction and subsequent arrest. While an individual that was arrested within five years of a summary conviction would have a criminal record forever, another individual would be free to recidivate in perpetuity, reoffending every five years while never being precluded from expungement as a matter of law. Although occurring over a period of time, this is precisely and ironically the sort of “volume discounting” and “expungement windfall” that the Commonwealth argues should be forbidden under the statute. See Id. at 17. These volume discounts and expungement windfalls would accrue liberally for recidivist offenders under the Commonwealth’s own interpretation.

The Majority’s analysis of the factors supporting Giulian’s construction of 18 Pa.C.S. § 9122(b)(3)(i) is well-reasoned and compelling. Even if those factors were absent, however, the absurdity of the results that flow from the Commonwealth’s position renders its interpretation of the statute erroneous.

      . Subsection (b) also allows discretionary expungement when an individual "reaches 70 years of age and has been free of arrest or prosecution for ten years following final release from confinement or supervision,” 18 Pa.C.S. § 9122(b)(1), or "has been dead for three years.” 18 Pa.C.S. § 9122(b)(2).

      . Amici curiae Juvenile Law Center, Homeless Advocacy Project, Defender Association of Philadelphia, X-Offenders for Community Empowerment, Pennsylvania Prison Society, Broad Street Ministry, Impact Services, and Resources for Human Development filed a brief in support of appellant, expanding on this particular argument involving the consequences of a narrowing interpretation of the availability of expungement. Amici posit that Section 9122(b)(3)(f) is ambiguous, and should be construed in favor of criminal defendants like appellant with low-level offenses, so they can overcome the substantial barriers created by a criminal record to finding employment or housing, or pursuing opportunities for higher education. Amici note research indicates individuals who are permitted to have their criminal records expunged or sealed are more likely to find jobs and less likely to be rearrested. Amici argue it is in the best interests of the citizens of the Commonwealth to allow low-level offenders “to have a fair shot at becoming contributing members of society.” Amicus Curiae Brief at 5.

      . It appears neither Wallace nor Wexler arose out of petitions for expungement filed pursuant to Section 9122; expungement was sought on different grounds. Wallace, 97 A.3d at 312-14 (inmate with "vast criminal history” of serious offenses sought expungement and other relief on generic due process grounds; no discussion of statutory grounds); Wexler, 431 A.2d at 879 (expungement petitions denied in January 1978, prior to 1979 adoption of statutory grounds for expungement). We cite Wexler because it sets forth useful factors for consideration by a court presented with a discretionary expungement request, and because it would appear the Wexler factors still have some force within the context of the statutory expungement scheme. See, e.g., Moto, 23 A.3d at 1002 (Saylor, J., dissenting, joined by Castille, C.J., and Orie Melvin, J.) ("[Tjhere is a colorable argument that the General Assembly intended to codify, rather than displace, this common law [expungement] scheme when it enacted Section 9122(a)(2) of the [Criminal History Record Information Act].’).

      . See Commonwealth v. Furrer, 48 A.3d 1279, 1282 (Pa.Super.2012) (expungement of defendant’s guilty-plea conviction of underage drinking was statutorily required where conditions were met; denial of expungement was abuse of discretion).

      . The Court is not bound by the parties’ agreement the statute is penal in nature and thus, under the rule of lenity, subject to strict construction against the Commonwealth and in favor of appellant. See Commonwealth v. Spruill, 622 Pa. 299, 80 A.3d 453, 460 (2013) ("the parties’ agreement on a legal issue does not control this Court’s independent judgment”) (citing cases). Justice Baer’s concurrence correctly notes the difference in the standards applicable when a statute is deemed remedial or is deemed penal; Justice Baer also correctly notes that, for purposes of decision here, either conclusion would require a construction favoring appellant, and we therefore need not definitively resolve whether the higher standard ("strict construction”) attending penal provisions applies.

      . A discussion of remedial and penal standards of statutory construction is set forth infra at 225-26, 141 A.3d at 1272-73.

      . I believe this point is important because this issue is not settled in Pennsylvania law, despite the concession by the Commonwealth in this case that the statute is penal, and the suggestion by the Superior Court below to the same effect. See Commonwealth's Brief at 9 ("[S]ince [Subsection] 9122(b)(3)(i) is a penal statute, the rule of lenity” applies.); Commonwealth v. Giulian, 111 A.3d 201, 204 (Pa.Super.2015) (suggesting that the rule of lenity would apply in this case if the statute was ambiguous, but ultimately determining that the statute is not ambiguous). In fact, an en banc Superior Court determined that the juvenile expungement statute, found at 18 Pa.C.S. § 9123(a), is remedial and not penal. In re A.B„ 987 A.2d 769, 780 (Pa.Super.2009).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    141 A.3d 1274
    Raul A. PEREZ, Appellant, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee.
    Supreme Court of Pennsylvania.
    July 19, 2016.
   ORDER

PER CURIAM.

AND NOW, this 19th day of July 2016, the Order of the Commonwealth Court is AFFIRMED.


text:
    141 A.3d 1275
    COMMONWEALTH of Pennsylvania, Respondent, v. Leon MILLS, Petitioner.
    Supreme Court of Pennsylvania.
    July 19, 2016.
   ORDER

PER CURIAM.

AND NOW, this 19th day of July, 2016, the Petition for Allowance of Appeal is GRANTED. The issue, as stated by Petitioner, is:

Did not the trial court properly grant [P]etitioner’s motion to dismiss pursuant to Pa.R.Crim.P. 600, where the time form a scheduling conference to a status listing consisted of time attributable to the conventional progression of a criminal case and was not judicial “delay,” and was therefore correctly included in the calculation of the 365 days in which to bring [Petitioner to trial, and thus where more than 365 days elapsed before [Petitioner was brought to trial?


author: Justice TODD.

text:
    141 A.3d 1275
    In re Nomination Petition of John H. MORLEY, Jr. As Candidate for the Democratic Nomination for Senator in the General Assembly from the First Senatorial District, Objection of Gaetano Piccrilli; Michael Weiss and Karen Greenberg. Appeal of John H. Morley, Jr.
    Supreme Court of Pennsylvania.
    Submitted April 7, 2016.
    Decided July 19, 2016.
    Kathleen Marie Kotula, Esq., PA Department of State, for Bureau of Commissions, Elections and Legislations.
    City Commissioners of Philadelphia, for City of Commissioners of Philadelphia.

      John H. Morley Jr., for John H. Morley, Jr.
    Kevin Michael Greenberg, Esq., Philadelphia, Flaster Greenberg P.C., for Michael Weiss, Gaetano Piccrilli, Karen Greenberg.
    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
   OPINION

Justice TODD.

On April 19, 2016, by per curiam order, this Court reversed the order of the Commonwealth Court, which struck the nomination petition of Appellant John H. Morley, Jr, (“Candidate”) as a candidate for the Democratic nomination for Senator in the General Assembly from the 1st Senatorial District in South Philadelphia, and directed that Candidate’s name be reinstated on the ballot for the April 26, 2016 election. This opinion follows.

By way of background, on February 16, 2016, Candidate filed a nomination petition seeking to appear on the primary ballot for the Democratic nomination for Senator. Under the Election Code, to appear on the primary ballot, a candidate for Senator must present a nomination petition with a minimum of 500 valid signatures. 25 P.S. § 2872.1(13). Candidate’s petition contained 37 pages, with 1,047 total signatures, all of which were attested to by the Candidate as the circulator. Objectors Gaetano Piccrilli, Michael Weiss, and Karen Green-berg (collectively, the “Objectors”) filed a Petition to Set Aside the Nomination Petition of Candidate in the Commonwealth Court on February 23, 2016. In their petition, the Objectors alleged that all 37 pages of Candidate’s nomination petition were invalid due to defective circulator affidavits and that, even if the circulator affidavits were valid, Candidate did not have a sufficient number of valid signatures to reach the minimum needed for Candidate’s name to appear on the ballot.

On March 31, 2016, Judge James Gardner Colins, in an unpublished single-judge decision, struck numerous signatures, upholding challenges to certain circulator affidavits and individual signature lines. In re: Nomination Petition of Morley, 102 M.D. 2016 (Pa.Cmwlth. Mar. 31, 2016). Critical to the instant appeal, the Commonwealth Court, inter alia, rejected 27 signature lines that were signed by individuals who were not registered at the address indicated on the nomination petition, even though they were duly registered as qualified Democratic electors at a different address within the 1st Senatorial District. The court struck these signature lines based upon this Court’s decision in In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327, 333 (2001), which held that, absent extraordinary circumstances, a signature on a nomination petition must be stricken if the elector declares an address accompanying his or her signature which does not match the address at which the elector is currently registered. The court also cited its split en banc decision in In re Nomination Petition of Vodvarka, 135 A.3d 246 (Pa.Cmwlth.2016) (“Vodvarka I ”), which relied upon Flaherty. The court, however, voiced “vigorous disagreement” with the rationale of these decisions. Ultimately, the court concluded that only 497 of the 1,047 signatures gathered by Candidate were valid — 3 shy of the minimum 500 signatures necessary under the Election Code — and, thus, directed the Secretary of the Commonwealth to remove Candidate’s name from the ballot. Candidate appealed the Commonwealth Court’s order to our Court, specifically challenging the continued viability of Flah-erty and its progeny.

In this regard, our Court, in In re: Nomination Petition of Vodvarka, 636 Pa. 16, 140 A.3d 639, 2016 WL 3448403, 2016 Pa. LEXIS 1323 (2016) (“Vodvarka II”), recently overruled our 2001 decision in Flaherty, reversed Vodvarka I, and held that “the signature of a registered voter whose name appears in the SURE registry may not be stricken from a nominating petition solely because the address set forth on the nominating petition is different from the address at which the signer is currently registered to vote.” Id. at 640-41, 2016 WL 3448403, *1. Based upon the analysis as fully set forth therein, Vodvarka II is determinative of this appeal.

Specifically, the 27 signatures on Candidate’s nominating petition, by individuals who were not registered at the address indicated on the nomination petition but who were nonetheless duly registered as qualified Democratic electors at a different address within the 1st Senatorial District, are valid under Vodvarka II. As the Candidate was otherwise just 3 signatures shy of the 500 signatures required under the Election Code, given the validity of those 27 signatures, Objectors did not meet their burden to strike Candidate’s nomination petition.

Accordingly, for this reason, we entered our April 19, 2016 order reversing the order of the Commonwealth Court.

Chief Justice SAYLOR and Justices BAER, DONOHUE, DOUGHERTY and WECHT join the opinion.

      1. SURE is the acronym for the Statewide Uniform Registry of Electors. 25 Pa.C.S. § 1222. The SURE system allows for electronic searching for registered voters by name and party, and permits a signature to be retrieved for comparison to confirm registration status without the need to input an address. An individual who signs a nominating petition can be identified in the SURE system by first and last name, and his or her identity and registration status can be confirmed by matching the elector’s signature with the signature in the SURE System.


author: Justice WECHT. Chief Justice SAYLOR,

text:
    141 A.3d 1277
    COMMONWEALTH of Pennsylvania, Appellee v. Wayne Cordell MITCHELL, Appellant.
    Supreme Court of Pennsylvania.
    Submitted April 26, 2016.
    Decided July 19, 2016.

      Matthew C. Lawry, Esq., Philadelphia, Federal Community Defender Ofc. for East Dist. of PA, for Wayne Cordell Mitchell.
    Karen T. Edwards, Esq., Ronald Michael Wabby Jr., Esq., Pittsburgh, Allegheny County District Attorney’s Office, Amy Zapp, Esq., Harrisburg, PA Office of Attorney General, for Commonwealth of Pennsylvania.
    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
   OPINION

Justice WECHT.

In this capital case, Wayne Cordell Mitchell appeals the order of the Court of Common Pleas of Allegheny County dismissing his second petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

Mitchell was convicted of first-degree murder and sentenced to death for the September 10, 1997 murder of his estranged wife, Robin Little. Mitchell and Little began dating in high school and had a turbulent relationship marked by frequent arguments. In September of 1996, Mitchell threatened to kill Little if she ever left him. A son, Malik, was born to the couple in January of 1997. Mitchell and Little married in April of 1997, when Little was eighteen and Mitchell was nineteen. Mitchell lived with Little and her mother for several months in the spring of 1997. Little ended the relationship as arguments continued, and she asked Mitchell to move out in July of 1997. Little and Malik moved into her brother’s home in Lancaster, Pennsylvania for approximately a month, but they returned to Little’s mother’s home in Pittsburgh in August of 1997.

On September 1, 1997, Little asked Mitchell if she could borrow his bus pass. He replied that she could do so if she picked it up from him at his place of employment. Upon Little’s arrival, the two began arguing about a man named Brian that Little had been seeing. When Little told Mitchell that she and Brian had engaged in sexual relations, Mitchell became angry, dragged Little into a supervisor’s office, and raped her. Little reported the rape to Pittsburgh police officers and went to Magee Women’s Hospital, where hospital personnel prepared a rape kit.

While Little was in the hospital, the police located and arrested Mitchell. Mitchell waived his Miranda rights and confessed to the rape. Mitchell was charged with rape, ter-roristic threats, unlawful restraint, and simple assault. He remained in jail pending a preliminary hearing, which was scheduled for September 9, 1997. While Mitchell was in jail awaiting the preliminary hearing, Little filed a petition for Protection from Abuse (“PFA”). The court granted Little’s petition and entered a ten-day temporary order directing that Mitchell have no contact with Little pending a final PFA hearing, which was scheduled for September 10,1997.

On September 9, 1997, Mitchell waived his preliminary hearing in exchange for a nominal bond, with a condition that he seek immediate in-patient treatment for alcohol abuse. For reasons that were contested at trial, Mitchell was never admitted to the designated treatment facility. Instead, he went home and began telephoning Little. After several calls, Mitchell convinced Little to allow him to come to her home. Mitchell arrived at Little’s residence at approximately 4:15 p.m., and the two argued about Brian, the man whom Little was seeing. Mitchell left shortly after 6:00 p.m., and spent a portion of the evening drinking alcohol with friends. Upon returning home at 1:00 a.m., Mitchell called Little, apologized, and convinced her to allow him to come to her residence to talk about their son.

Sheila Britton was the former director of a college-counseling program at the high school that Mitchell and Little attended. She had remained in contact with Mitchell after he left the school. Ms. Britton reported that Mitchell called her at approximately 1:00 a.m. on September 10, 1997, and stated that he was going to Little’s house to kill her. Mitchell told Ms. Britton that Little had “disrespected” him and that he planned to dress in black clothing, go to Little’s home, and “do what he had to do.” Notes of Testimony, 10/5/1999 (“N.T. Trial”), at 326-27.

Mitchell arrived at Little’s residence at 1:30 a.m. He found Little sitting with a man on her porch. The man quickly left when Mitchell and Little began arguing. Mitchell punched Little in the face and stomach, then dragged her toward an empty lot near her home, repeatedly striking her when she resisted. Little screamed for help, yelling, “He’s going to kill me.” Id. at 383. Mitchell placed his hand over her mouth and continued to drag her. As they passed a house, Mitchell saw a knife lying on a porch. He punched Little several more times, disabling her, while he retrieved the knife. When Little attempted to stand, Mitchell pushed her down and stabbed her in the stomach. Mitchell then removed Little’s clothes, wrapped his hands around her neck, and raped her, first vaginally and then anally. After the rape, Mitchell stabbed Little multiple times in the neck.

Ms. Britton stated that Mitchell called her again at 4:00 a.m. and told her that “Robin Little is no more.” Id. at 330. He also told her that he was going to his uncle’s house to establish an alibi, and that he planned to attend the PFA hearing later that morning, knowing that Little would not appear. Mitchell attended the PFA hearing, and, when Little did not appear, the court dismissed Little’s petition and vacated the temporary PFA order. When Mitchell returned home, his mother informed him of Little’s death. Mitchell denied any involvement, but his mother was concerned and insisted that he be evaluated at a hospital. Mitchell agreed, and went to St. Francis Hospital at approximately noon on September 10, 1997. Homicide detectives quickly identified Mitchell as a suspect and approached him in the hospital’s waiting area when he was released. Mitchell agreed to accompany the detectives to their office, where he provided a statement in which he confessed to raping Little on September 1,1997, and to raping and murdering her on September 10, 1997. In addition to the charges relating to the September 1,1997 rape, Mitchell then was charged with criminal homicide, rape, involuntary deviate sexual intercourse (“IDSI”), and unlawful restraint. The Commonwealth timely filed and served a notice of its intention to seek imposition of the death penalty.

On October 1, 1999, Mitchell pleaded guilty to the rape, IDSI, and unlawful restraint charges arising from the September 10, 1997 sexual assault and homicide. The trial court deferred sentencing upon those convictions until after the trial on the remaining charges, which commenced before a jury on October 4, 1999. During the guilt phase of the trial, the Commonwealth introduced Ms. Britton’s testimony about the two telephone calls from Mitchell, which occurred shortly before and shortly after the murder. Mitchell pursued a diminished capacity defense based upon a psychological condition and long-term alcohol abuse. The jury rejected Mitchell’s defense and found him guilty of first-degree murder for the September 10, 1997 killing of Little, as well as the remaining charges arising from the September 1, 1997 sexual assault. Because the Commonwealth sought imposition of the death penalty, the jury remained empaneled for a separate penalty phase hearing. The jury found two aggravating circumstances and no mitigating circumstances, and accordingly sentenced Mitchell to death.

On direct appeal, this Court affirmed Mitchell’s judgment of sentence. See Mitchell I, supra n. 1. Mitchell filed a petition for writ of certiorari which the Supreme Court of the United States denied on January 16, 2007. Thus, Mitchell’s judgment of sentence became final on that date. See 42 Pa.C.S. § 9545(b)(3). On February 21, 2007, Mitchell timely filed a pro se PCRA petition. Lawyers with the Federal Community Defender Office for the Eastern District of Pennsylvania subsequently entered an appearance on Mitchell’s behalf. Following several extensions of time, Mitchell filed an amended PCRA petition on April 28, 2009. Among the thirteen claims that Mitchell raised in his amended petition was an allegation of trial counsel ineffectiveness for failure to investigate and develop evidence that would have undermined Ms. Britton’s credibility as a witness. As noted, supra, at Mitchell’s trial in 1999, Ms. Britton testified regarding two telephone calls that she received from Mitchell on the night of the murder. The first occurred at 1:00 a.m., when Mitchell told her that he planned to kill Little because she had “disrespected” him. N.T. Trial at 326. The second call occurred at 4:00 a.m., when Mitchell told Ms. Britton that “Robin Little is no more.” Id. at 330.

In March 2008, then-assistant federal defender Carol Wright interviewed Ms. Britton while preparing Mitchell’s federal habeas corpus petition. At the PCRA hearing, Mitchell presented an affidavit from Attorney Wright, which indicated that she met with Ms. Britton on August 1, 2007, and subsequently spoke with Ms. Britton on the telephone on March 20, 2008. Attorney Wright stated that Ms. Britton did not reveal the information relevant to this appeal during the August 1, 2007 meeting, but that, during the March 20, 2008 telephone conversation, Ms. Britton offered the following information for the first time in the course of these proceedings:

[T]he morning Robin died, Robin’s mother called and [Ms. Britton] went over to her house. The police were there and they questioned her, but she went totally blank and could not remember anything about her conversations with [Mitchell] the previous night. She did not tell the police officers anything about her conversations at that time. That evening when she went to bed all she started to remember [was] her interactions with [Mitchell] the previous night. She told me the following morning she called a mental health facility and made an appointment with a psychiatric social worker. She discussed what she remembered with the social worker.
[Ms. Britton] told me that a different set of police officers questioned her at a later time and she told them all that she remembered about the phone calls with [Mitchell].
Ms. Britton told us that she would have talked with [trial counsel] before trial and was surprised that they did not contact her.

Mitchell II, 105 A.3d at 1274-75 (quoting Mitchell’s PCRA Evidentiary Hearing Exhibit 16).

After learning of Ms. Britton’s statements to Attorney Wright, Mitchell included in his first PCRA petition an allegation that his trial counsel was ineffective for failing to interview Ms. Britton prior to his trial. Mitchell argued that, had trial counsel done so, he would have discovered that Ms. Britton “remembered” the content of the telephone calls only after going to bed on the day following the murder, and, further, that Ms. Britton briefly spoke to police officers on the morning after the murder but did not mention the incriminating telephone calls at that time. Because this information could have cast doubt upon Ms. Britton’s trial testimony, Mitchell alleged that he was prejudiced by his trial counsel’s failure to discover the potential impeachment evidence.

Ms. Britton’s trial testimony about the phone calls was consistent with a statement that she provided to police on July 23, 1998, approximately ten months after the murder. Although Ms. Britton did not disclose in either her July 23,1998 statement or during Mitchell’s trial that she had spoken to police officers on the morning after the murder or that she only remembered the telephone calls after going to bed on the following day, she testified at the PCRA hearing that she informed the trial prosecutor of these facts before Mitchell’s trial when she met with the prosecutor to review her statement. Ms. Britton also testified that, had Mitchell’s trial counsel interviewed her prior to trial, she would have disclosed the manner in which she remembered the telephone conversations. Notes of Testimony, 10/15/2012, at 82. Ms. Britton affirmed that her trial testimony was accurate and that, at the time of trial, she remembered the telephone calls “vividly.” Id. at 86. The Commonwealth called the trial prosecutor to rebut portions of Ms. Britton’s testimony, and he stated that, before trial, he was unaware that Ms. Britton had spoken to police officers immediately after the murder, and that Ms. Britton never informed him of the manner in which she remembered the telephone calls.

The PCRA court rejected Mitchell’s ineffectiveness claim, reasoning that the claim presumed that Ms. Britton would have informed Mitchell’s counsel of the salient facts had he interviewed her prior to trial, but that no credible evidence established that she would have done so. To the extent that Ms. Britton’s testimony at the PCRA hearing conflicted with the trial prosecutor’s testimony, the court credited the prosecutor over Ms. Britton. The PCRA court specifically declined to credit Ms. Britton’s testimony that she would have disclosed the manner of her recollection if trial counsel had interviewed her, noting that Ms. Britton did not reveal the relevant information for more than eight years after Mitchell’s trial, despite having numerous prior opportunities to do so in statements to the police, in meetings with the prosecutor, at Mitchell’s trial, or in her first interview with Attorney Wright on August 1, 2007. Because Mitchell failed to establish that an interview with Ms, Britton prior to trial would have yielded the information that Attorney Wright discovered in 2008, the PCRA court concluded that Mitchell failed to prove that he was prejudiced by trial counsel’s failure to conduct such an interview. Thus, trial counsel was not ineffective. On appeal, this Court affirmed the PCRA court’s conclusion, taking note of the PCRA court’s exclusive prerogative to make credibility determinations. See Mitchell II, 105 A.3d at 1276-77.

On February 13, 2015, Mitchell filed an untimely second PCRA petition, arguing that the facts surrounding Ms. Brit-ton’s recollection of the telephone calls constituted after-discovered evidence that entitled him to a new trial. See 42 Pa.C.S. § 9543(a)(2)(vi). Recognizing that his petition was facially untimely, Mitchell invoked the exception to the PCRA’s time bar for the discovery of a new fact. See 42 Pa.C.S. § 9545(b)(1)(ii). Specifically, Mitchell relied upon the PCRA court’s reasoning in denying his ineffectiveness claim in his first petition, arguing that the judicial conclusion that Ms. Britton would not have disclosed the relevant information about the manner of her recollection prior to trial constituted a “fact” that previously was unknown and could not have been discovered by the exercise of due diligence, thereby satisfying the newly-discovered fact exception to the PCRA’s time bar. Furthermore, Mitchell argued that he properly raised this claim within sixty days following the issuance of this Court’s opinion affirming the dismissal of his first PCRA petition, as he had no opportunity to raise the claim prior to this Court’s affirmance.

The PCRA court rejected Mitchell’s newly-discovered fact argument, reasoning that the court’s prior conclusion was not a new fact, but, rather, that “the ‘facts’ upon which the claim is predicated are the facts surrounding the manner, the day after the murder, in which [Ms.] Britton ‘remembered’ the phone calls from [Mitchell].” PCRA Ct. Op., 12/10/2015, at 6. Mitchell learned these facts in 2008, as evidenced by Attorney Wright’s affidavit. The PCRA court noted that Mitchell chose to rely upon the relevant facts as the basis for an ineffective assistance of counsel claim in his first PCRA petition, but then sought to recast the facts in his second petition as establishing a claim premised upon the existence of after-discovered evidence. However, because the claim was not predicated upon previously-unknown facts that could not have been ascertained by the exercise of due diligence, the PCRA court concluded that Mitchell’s petition failed to establish an exception to the time bar, leaving the court without jurisdiction to entertain the petition. Accordingly, the PCRA court dismissed Mitchell’s second petition -without a hearing.

Mitchell appeals the PCRA court’s order dismissing his petition, presenting three questions for our review:

I. Did the PCRA court err when it dismissed the [p]etition as untimely where it was timely filed under 42 Pa.C.S. § 9545(b)(1)(h)?
II. Did the PCRA court err when it determined that the [p]etition was without merit where the after-discovered evidence entitled Mr. Mitchell to a new trial based on (A) Pennsylvania’s after-discovered evidence standard, and (B) Mr. Mitchell’s Fifth, Eighth and Fourteenth Amendment rights to due process and a verdict based on reliable evidence?
III. Did the PCRA court err in finding the petition untimely and denying relief without holding a hearing as to both timeliness and the merits of the petition?

Brief of Appellant at 1.

Our standard of review over the denial of a PCRA petition is well-settled. “In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination ‘is supported by the record and free of legal error.’ ” Commonwealth v. Taylor, 620 Pa. 429, 67 A.3d 1245, 1248 (2013) (quoting Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (2007)). A PCRA petition, including a second or subsequent petition, must be filed within one year of the date that the judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). For purposes of the PCRA, “a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

There are three exceptions to the timeliness requirement, including an exception concerning the discovery of a previously-unknown fact. See 42 Pa.C.S. § 9545(b)(1)(ii). Under this exception, a petitioner must file a PCRA petition within sixty days of the date that the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2). “PCRA time limits are jurisdictional in nature, implicating a court’s very power to adjudicate a controversy.” Commonwealth v. Ali, 624 Pa. 309, 86 A.3d 173, 177 (2014). “Accordingly, the ‘period for filing a PCRA petition is not subject to the doctrine of equitable tolling;’ instead, the time for filing a PCRA petition can be extended only if the PCRA permits it to be extended, ie., by operation of one of the statutorily enumerated exceptions to the PCRA time-bar.” Id. (quoting Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999)). “The court cannot ignore a petition’s untimeliness and reach the merits of the petition.” Taylor, 67 A.3d at 1248. “[A] petition for post-conviction relief in a capital case may be dismissed without an evidentiary hearing if there are no genuine issues of material fact and the petitioner is not entitled to relief.” Commonwealth v. D ’Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004); see also Pa.R.Crim.P. 909(B)(2).

We need only address Mitchell’s first issue, because our resolution of that issue is dispositive of this appeal. Mitchell’s judgment of sentence became final on January 16, 2007. Because Mitchell filed his second PCRA petition on February 13, 2015, the petition was facially untimely. Therefore, Mitchell could establish the PCRA court’s jurisdiction only by pleading and proving an exception to the PCRA’s timeliness requirement. Mitchell pursued the “newly-discovered fact” exception to the time bar, which provides that a PCRA claim need not be filed within the one-year time restriction where “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii). As he argued before the PCRA court, Mitchell maintains that the PCRA court’s prior conclusion that Ms. Britton would not have disclosed the manner of her recollection prior to trial constituted such a “fact.”

Mitchell’s argument is not unlike one that this Court rejected in Commonwealth v. Gamboar-Taylor, 562 Pa. 70, 753 A.2d 780 (2000). In that case, the defendant in a capital case instructed his trial counsel not to defend against the charges and not to present mitigating evidence at the penalty stage, but later claimed that his counsel was ineffective for failing to override the defendant’s decisions. The PCRA court concluded that counsel was not ineffective. The defendant subsequently filed a second PCRA petition, in which he alleged that his first PCRA counsel was ineffective. After the PCRA court dismissed the second petition as untimely, this Court affirmed, noting that the defendant’s “attempt to interweave concepts” of ineffective assistance and newly-discovered facts was insufficient to establish jurisdiction. Id. at 785. This Court explained that “a conclusion that previous counsel was ineffective is not a newly discovered ‘fact’ entitling Appellant to the benefit of the exception for [newly-discovered facts]. In sum, a conclusion that previous counsel was ineffective is not the type of [newly-discovered fact] encompassed by the exception.” Id.

Similarly, in the instant case, the PCRA court correctly concluded that Mitchell failed to prove the existence of a newly-discovered “fact” that he could not have ascertained previously through the exercise of due diligence. The PCRA court’s earlier determination that Ms. Britton would not have disclosed the relevant information to Mitchell’s counsel prior to trial was part of the court’s reasoning for rejecting Mitchell’s ineffective assistance of counsel claim. The court’s legal conclusion, itself, did not establish any new and previously-unknown fact regarding the circumstances surrounding Ms. Britton’s recollection of the telephone calls. Accordingly, Mitchell has failed to satisfy the newly-discovered fact exception to the PCRA’s time bar. Therefore, Mitchell’s petition was untimely, leaving the PCRA court without jurisdiction to entertain his claims. See Ali, supra.

Because Mitchell failed to satisfy any exception to the PCRA’s time bar, the PCRA court did not err in concluding that Mitchell’s petition was untimely, and that it lacked jurisdiction to hear Mitchell’s claims. Accordingly, the PCRA court did not err in dismissing Mitchell’s petition without a hearing.

Order affirmed.

Justices BAER, TODD, DONOHUE and DOUGHERTY join the opinion.

Chief Justice SAYLOR files a concurring opinion.

Chief Justice SAYLOR,

concurring.

I concur in the result. My reasoning, however, does not wholly align with the majority’s rationale insofar as the disposition rests on the proposition that the relevant post-conviction finding — namely, that prosecution witness Sheila Britton would not have apprised trial counsel of circumstances per which she recalled her telephone conversation with Appellant — entails a “legal conclusion.” Majority Opinion at 245-46, 141 A.3d at 1285. In this regard, I also do not discern the direct relevance of Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000), relied upon by the majority. Rather, I would specifically credit the Commonwealth’s position that “appellant is improperly tailoring the factual predicate of his claim in an attempt to circumvent the timing requirements of the PCRA since the information that forms the basis of his claim, ie., Ms. Britton’s statements, were known to him in 2008.” Brief for Appellee at 14. In this respect, I also believe that it should be a rare event in which a post-conviction court’s preponderance-based factual determinations should be treated as after-discovered evidence or facts for purposes of the statutory time restrictions on post-conviction relief.

Nevertheless, in retrospect, I am somewhat circumspect about the PCRA court’s previous disposition of Appellant’s claim of deficient stewardship on the part of his trial counsel in failing to interview Ms. Britton, which rests on a finding, essentially, that the witness would have deceived Appellant’s lawyer or otherwise withheld material information from him. See Commonwealth v. Mitchell, 629 Pa. 572, 603, 105 A.3d 1257, 1276 (2014). It would have been preferable, in my view, to have assessed whether the defense was prejudiced at trial by the attorney’s failure to interview the witness. At this juncture, however, I can merely observe that the Commonwealth advanced a strong position that prejudice was lacking, presently reiterated in a passage of its brief included as an appendix to this concurrence.

Appendix
Excerpt from the Commonwealth’s brief:
Here, the jury was presented with compelling evidence beyond that given by Ms. Britton regarding appellant’s phone calls which overwhelmingly established his specific intent to kill the victim. In addition to the victim’s diary entries, which detailed appellant’s abusive nature and a prior threat to kill her if she ever left him, appellant himself confessed that just nine days before the killing, he brutally raped the victim following an argument regarding a man she was dating. He also admitted to threatening her if she reported the rape. Knowing that he was supposed to report to St. Francis, which was the agreement arranged at the preliminary hearing on the rape charges, he instead went to the victim’s home and continued the argument about the other man. In his articulate, coherent and extremely detailed confession to police, appellant confirmed that he returned to the victim’s home later that night and during yet another argument over her boyfriend, dragged her toward an empty lot, retrieved a knife and then raped, sodomized, choked and repeatedly stabbed her in the neck, and then disposed of incriminating evidence. The jury was also informed of letters appellate had written to Ms. Britton from jail following the murder, in which he referred to the victim as a whore who had gotten what she deserved. Because this evidence overwhelmingly demonstrated appellant intentionally killed the victim after premeditation and deliberation, he has failed to show how the testimony now in issue would have altered the verdict.

Brief for Appellee at 31-32.

      . Our opinion affirming Mitchell’s judgment of sentence on direct appeal discussed the facts underlying his convictions and death sentence. See Commonwealth v. Mitchell, 588 Pa. 19, 902 A.2d 430, 436-44 (2006), cert. denied, 549 U.S. 1169, 127 S.Ct. 1126, 166 L.Ed.2d 897 (2007) ("Mitchell I"). For the purpose of resolving the instant appeal, the facts highlighted in this Court’s opinion affirming the dismissal of Mitchell’s first PCRA petition also are relevant. See Commonwealth v. Mitchell, 629 Pa. 572, 105 A.3d 1257, 1262-65, 1273-77 (2014) (."Mitchell II").

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See 23 Pa.C.S. §§ 6101-22.

      . The "newly-discovered fact” exception provides that a PCRA claim need not be filed within the one-year time restriction where "the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence,” 42 Pa.C.S. § 9545(b)(1)(ii). This exception is distinct from a claim for relief premised upon the existence of "after-discovered evidence,” which the PCRA provides for in 42 Pa.C.S. § 9543(a)(2)(vi). In Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270-73 (2007), this Court clarified the distinctions between the applicable inquiries under both sections of the PCRA and sought to eliminate the confusion that had resulted from prior instances of terminological imprecision. The "newly-discovered fact” exception applies only to the PCRA’s time bar, and it "requires petitioner to allege and prove that there were 'facts’ that were 'unknown' to him and that he exercised 'due diligence.’ ” Id. at 1270. An "after-discovered evidence” claim, by contrast, provides a basis for substantive relief and requires that the proffered evidence be "exculpatory” and that it "would have changed the outcome of the trial.” Id.


text:
    141 A.3d 1286
    COMMONWEALTH of Pennsylvania, Petitioner, v. Saleem SHABEZZ, Respondent. Commonwealth of Pennsylvania, Petitioner, v. Saleem Shabezz, Respondent.
    Supreme Court of Pennsylvania.
    July 19, 2016.
   ORDER

PER CURIAM.

AND NOW, this 19th day of July, 2016, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issue set forth below. Allocatur is DENIED as to all remaining issues. The issue, as stated by Petitioner, is:

Does the Fourth Amendment entitle a defendant to suppress the fruits of a search where it is undisputed that he had no privacy interest in the area searched?