Commonwealth v. Garner

• Court: Pennsylvania Superior Court
• Writing for the Court: OPINION BY LAZARUS, J.
• Citation: Commonwealth v. Garner, 301 A.3d 462 (Pa. Super. Ct. 2023)
• Docket Number: 597 MDA 2022,No. 597 MDA 2022
• Decision Date: 27 July 2023
• Parties: COMMONWEALTH of Pennsylvania v. Jack Clark GARNER, Appellant

301 A.3d 462

COMMONWEALTH of Pennsylvania v. Jack Clark GARNER, Appellant

No. 597 MDA 2022

Superior Court of Pennsylvania.

Argued June 6, 2023

Filed July 27, 2023

Reargument Denied October 3, 2023

Ronald L. Clever, Allentown, for appellant.

Ryan H. Lysaght, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. ^*

OPINION BY LAZARUS, J.:

Jack Clark Garner appeals from the order, entered in the Court of Common Pleas of Dauphin County, dismissing his petition for limited access to his criminal record pursuant to 18 Pa.C.S.A. § 9122.1. After careful review, we affirm.

At the time of the underlying offenses, Garner was an elected constable for South Hanover Township. On two separate occasions, May 18, 2010 and May 20, 2010, Garner, while driving his private vehicle, followed and stopped two cars in Lower Paxton Township. Garner stopped the first vehicle in a private driveway, around 4:30 p.m., after allegedly witnessing the driver ¹ of the car cut off another vehicle. Garner parked his vehicle no more than 10 feet behind the driver's car and "flash[ed the driver] a badge real quick before putting it back in his pocket." N.T. Jury Trial, 4/11/11, at 46. Garner asked the driver to produce her driver's license, insurance information, and vehicle registration. Id. The driver testified she "thought [she] was dealing with a police officer" and that she did not feel free to leave. Id.

With regard to the second stop, Garner allegedly witnessed the driver and passenger "flick cigarettes" out the windows. Id. at 83. Garner stopped the second vehicle, around noon in a beauty school parking lot, parking his private vehicle close to the stopped car. Garner told the driver that it was a $300 fine for littering, id. , and asked the driver for her driver's license and vehicle registration. Id. at 85. Garner then told the driver to "stay by the car," id. , took her documents back to his vehicle, and then returned to the car three minutes later where he asked for the passenger's information. Id. at 85-86. When the passenger was unable to produce her documents, Garner asked her for her name, address, and date of birth, which she gave him. Id. at 86. Garner then returned the driver her documents and told her that he could not issue her a warning because he was off duty. Id. at 87. Both the driver and passenger of the second car testified that Garner, who was not in uniform, identified himself as "Officer So-and-So" and quickly flashed a badge that "looked like a star." Id. at 82, 97, 113. The driver and passenger both testified that they did not feel free to leave after Garner pulled over their vehicle. Id. at 85, 114. Finally, the driver and passenger testified that they believed Garner was a police officer. Id. at 87, 123.

Following a three-day trial, the jury convicted Garner of three counts of official oppression, 18 Pa.C.S.A. § 5301(1), ² and two counts of impersonation of a public servant, 18 Pa.C.S.A. § 4912. ³ Both crimes are classified as second-degree misdemeanors, punishable by up to two years in prison. See 18 Pa.C.S.A. § 1104(2). On June 29, 2011, the court sentenced Garner to 4-24 months of intermediate punishment, with the first four months to be served in restrictive confinement at the Dauphin County Work Release Center, followed by 8 years of probation. Garner was also ordered to complete 250 hours of community service and pay fines and costs. ⁴ Garner filed post-sentence motions, which were denied.

Garner filed a timely notice of appeal claiming that the jury's verdict was against the weight of the evidence. On July 9, 2012, this Court affirmed Garner's judgment of sentence. See Commonwealth v. Garner , 55 A.3d 126 (Pa. Super. 2012) (unpublished memorandum decision). ⁵ Garner did not seek allowance of appeal in the Pennsylvania Supreme Court.

On August 8, 2013, Garner filed a Post Conviction Relief Act (PCRA) petition, see 42 Pa.C.S.A. §§ 9541 - 9546, that was later amended by counsel. The petition raised several claims of trial counsel's ineffectiveness. Following an evidentiary hearing and the issuance of Pa.R.Crim.P. 907 notice of the PCRA court's intent to dismiss the petition, the court denied relief on February 17, 2016.

Garner filed a collateral appeal and, on January 11, 2017, our Court affirmed the PCRA court's denial of Garner's petition. See Commonwealth v. Garner , 160 A.3d 251 (Pa. Super. 2017) (Table). Garner filed an unsuccessful petition for allowance of appeal with the Pennsylvania Supreme Court. Id. , 170 A.3d 1035 (Pa. 2017). ⁶

On December 13, 2021, Garner filed a Petition for Order for Limited Access, seeking limited access to his three section 5301.1 convictions (official oppression) and two section 4912 convictions (impersonation). ⁷ See Pa.R.Crim.P. 791 ; ⁸ 18 Pa.C.S.A. § 9122.1. The Commonwealth filed a response to the petition, claiming that Garner did not qualify for limited access as his case fell within one of the statutory exceptions under section 9122.1(b). On February 2, 2022, the court denied Garner's petition for limited access, concluding that he was ineligible for limited access because he had been convicted, within the previous 20 years of "four or more offenses punishable by imprisonment of two or more years." 18 Pa.C.S. § 9122.1(b)(2)(ii)(B).

On February 14, 2022, Garner filed a motion for reconsideration. The court rescinded its prior order denying Garner's petition and scheduled argument on the matter for March 18, 2022. Following argument, the trial court denied Garner's limited access petition on March 21, 2022. Garner filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Garner raises the following issues for our consideration:

(1) Is [Garner] eligible for limited access under 18 Pa.C.S.A. § 9122.1(b)(2)(ii)(B) ?

(2) [D]oes the statutory phrase[ in section 9122.1(b)(2)(ii)(B),] "4 or more offenses[,]" refer not to the number of [a defendant's] "convictions," but, rather, to the number of "offenses"?

Appellant's Brief, at 4.

Garner's issues are interrelated; therefore, we will address them together. Garner's claims involve the trial court's interpretation of the term "offense" as found in section 9122.1(b)(2)(ii)(B). Specifically, Garner asserts that while he was convicted of five second-degree misdemeanors, his convictions "arose from two offenses "—impersonating a public servant and official oppression. Defendant's Response to Rule to Show Cause, 2/2/22, at ¶¶ 10, 12. Thus, he contends, the trial court improperly denied his petition for limited access under section 9122.1 because he was not convicted of " four or more offenses punishable by imprisonment of two or more years." 18 Pa.C.S.A. § 9122.1(b)(2)(ii)(B) (emphasis added).

In matters of statutory interpretation, our scope of review is plenary, and our standard of review is de novo . See Commonwealth v. DeNapoli , 197 A.3d 771, 773 (Pa. Super. 2018).

In interpreting any statute, appellate courts must take note of the principles of statutory interpretation and construction. The principal objective of interpreting a statute is to effectuate the intention of the legislature and give effect to all of the provisions of the statute. In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. When analyzing particular words or phrases, we must construe them according to rules of grammar and according to their common and approved usage. Words of a statute are to be considered in their grammatical context. Furthermore, we may not add provisions that the General Assembly has omitted unless the phrase is necessary to the construction of the statute. A presumption also exists that the legislature placed every word, sentence and provision in the statute for some purpose and therefore courts must give effect to every word.

Commonwealth v. Morris , 958 A.2d 569, 578-79 (Pa. Super. 2008) (emphasis added) (internal quotations and citations omitted).

Section 9122.1, titled "Petition for Limited Access," is found in Subchapter C of the Criminal History Record Information Act (CHRIA), 18 Pa.C.S.A. §§ 9102 - 9183. Generally, "CHRIA concerns [the] collection, maintenance, dissemination, disclosure, and receipt of criminal history record information." Commonwealth v. Pa. State Police , 146 A.3d 814 (Pa. Cmwlth. 2016). Section 9122.1 gives a trial court the discretion to enter "an order, under specific circumstances, limiting the dissemination of a defendant's criminal [record] history" solely to criminal justice agencies. See Pa.R.Crim.P. 791, Comment. See DeNapoli , supra at 774 ; id. at 775 ("[ Section 9122.1 ] offers a form of civil relief to qualified individuals under a narrow set of circumstances."). Specifically, a trial court's order entered under section 9122.1 prohibits a court or the Administrative Office of Pennsylvania Courts from disseminating certain criminal history record information to an individual or a non-criminal justice agency. See 18 Pa.C.S.A. § 9121(b)(3).

Limited access relief, which was "originally intended to be an expansion of expungement relief," id. , is considered "civil, rather than penal, in nature." Id. Like the process of expungement, which is meant to "ameliorate the ‘difficulties and hardships’ that often result from an arrest record," Commonwealth v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1270 (2016) (citation omitted), the limited access statute is a tool that benefits those individuals who are able to remain conviction-free, of certain offenses, for 10 or more years. See 18 Pa.C.S.A. § 9122.1(a).

Section 9122.1 provides, in pertinent part:

§ 9122.1 Petition for limited access.

(a) General rule . Subject to the exceptions in subsection (b) and notwithstanding any other provision

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