Expungements In Pennsylvania

By Douglas K. Marsico, Esquire

An "Expungement" is an order of court requiring all relevant law enforcement agencies to erase a record of a criminal arrest or conviction. An expungement is only available when:

  1. The offender has successfully completed an Accelerated Rehabilitation Disposition ("ARD") Program;
  2. The offender is over the age of seventy with no criminal convictions in the preceding ten years;
  3. The offender who was previously convicted of possession, consumption or transportation of alcohol by a minor is now over the age of twenty-one and has satisfied all terms and conditions of their sentence;
  4. The offender's case has no disposition recorded in the central repository within eighteen months after the date of the arrest and no further action is pending;
  5. The offender has been dead for three years. I have yet to receive a request from the dead.
  6. An offense sought to be expunged was a summary offense and the offender has been free of arrest or prosecution for more than five years since the date of the conviction.

Examples of summary offenses are some retail thefts, harassment, simple trespassing, disorderly conduct and public drunkenness. Summary retail thefts are the most common summary convictions that lead to later problems with employment.

Effective November 14, 2016, eligibility for expungement of a criminal record was expanded to include many second and third degree misdemeanor criminal convictions. This provides relief to Pennsylvania citizens with minor criminal records who previously had to obtain a pardon to have their criminal records removed-a process that often took many years.

Under the new law, a person convicted of ungraded, second-degree or third-degree misdemeanors are eligible for a "limited access expungement" of his or her criminal record. To be eligible, the person must be free of arrest or conviction for a period of 10 years following his or her release from supervision. A "limited access expungement" means that the criminal records are unavailable to the public. However, the criminal records are still available to law enforcement and state licensing agencies.

A person convicted of misdemeanors of the first degree or felonies is not eligible for the limited access expungement. Other offenses that are ineligible for the limited access expungement include second degree simple assault cases, intimidation or retaliation of a witness or victim, offenses requiring registration as a sex offender and impersonation of a public official. In addition, a person with four or more misdemeanors of the second or third degree convictions is ineligible for the limited access expungement.

Obtaining an expungement or limited access expungement both require the filing of a petition with the Common Pleas Court where the conviction occurred. An official Pennsylvania criminal background check obtained from the state police must be attached to the Petition. Filing fees vary by county.

If an expungement is granted, the Court will enter an Order directing that all criminal justice agencies must destroy its records pertaining to the offense. The offense should no longer show up on a criminal background check and the offender is free to represent to the world that he or she has no criminal record. I do caution, however, that only official criminal records are destroyed. Newspaper articles on the internet are not subject to the expungement order and references to the arrest or conviction may still be found by someone via internet search engines.

If a limited access expungement is granted, the Court will enter an Order that the criminal record is sealed from being shared with the public and that the related online docket is to be removed from the statewide judicial portal website. The arrest and conviction data will still be available to law enforcement and state licensing agencies. It is important to know that the offender does not need to disclose the existence of the sealed records for employment or other purposes.

As mentioned, the limited access expungement does not prohibit a state licensing agency from considering an applicant's criminal history even after a limited access expungement is granted. Accordingly, even if a person has obtained a limited access expungement of criminal records, a professional licensing agency (i.e. Real Estate Commission, Board of Nursing, Physicians, Car Salesman etc...) will be aware of the conviction and may consider it in accordance with its rules and regulations pertaining to the issuance of a license to practice a profession.

For those with criminal records that are not eligible for an expungement, he or she must try to obtain a pardon in order to have their criminal records removed. Felonies, misdemeanors of the 1st degree, and other misdemeanors not eligible for a limited access expungement can only be removed through the arduous pardons process.

The pardons process begins with an application to the Board of Pardons which is followed by an extensive investigation by agents for the Pennsylvania Board of Probation and Parole. The application is then voted on by the Board of Pardons as whether to even give the offender a hearing. If approved, the offender is allowed to appear for a public hearing before the Board of Pardons. If three of the five members of the Board recommend a pardon, then the offender's application will be presented to the Governor for approval. The pardons process can take several years. Typically, pardons will only be granted to offenders who have been free of arrest for many years and who have made positive changes in their lives since the commission of the crime.

If you believe you are eligible for an expungement or pardon, call Doug Marsico at (717) 232-7661 for assistance.