Commonwealth v. Homison , 253 Pa. Super. 486 ( 1978 )

VAN der VOORT, Judge:

On February 17, 1971, petition was filed in Butler County Juvenile Court alleging that the then-17 year old Daniel J. Homison sold hashish to another boy. The case was certified to the criminal division of Common Pleas Court on March 31, 1971, and on July 19,1971, Homison entered a plea of guilty. Homison was sentenced on September 28, 1971, to pay a fine of $500.00 and undergo imprisonment for two to five years, with the imprisonment suspended upon payment of the fine and costs. No direct appeal was taken.

On November 5, 1974, Homison was granted a pardon by the Governor, Milton J. Shapp, and on November 29, 1974 filed a petition to expunge the record. The lower court, relying on Cohen v. Barger, 11 Pa.Cmwlth. 617, 314 A.2d 353 (1974),¹ dismissed the petition, finding that Homison did not prove, or even allege, that the pardon had been granted because of innocence. Appeal was taken to our Court from the Order of November 29, 1974, dismissing the petition. The sole issue before our Court is whether the grant of a full pardon (for reasons other than innocence) by the Governor of our State entitles one who has been convicted of a crime to expunction of his criminal record.

Our research has disclosed no Supreme or Superior Court decisions exactly on point. In Commonwealth ex rel. v. Smith, 324 Pa. 73, 187 A. 387 (1936), however, our Supreme Court held that an offense for which a pardon had been granted could be considered by a court in sentencing under a second offender statute, and in Commonwealth v. Cannon, 386 Pa. 62, 123 A.2d 675 (1956), cert. denied, 352 U.S. 898, 77 S.Ct. 139, 1 L.Ed.2d 90 (1956), the Supreme Court found admissible at trial, in connection with the imposition of sentence, evidence of a prior crime of which the defendant had been convicted and pardoned. Notwithstanding dictum in Commonwealth v. Zimmerman, 215 Pa.Super. 534, 258 A.2d 695 (1969), we believe that Smith and Cannon require us to find that the lower court in the case before us did not err in refusing to expunge appellant’s criminal record. We therefore affirm the Order of November 29,1974, dismissing appellant’s petition.

HOFFMAN, J., files a dissenting opinion. WATKINS, former President Judge, did not participate in • the consideration or decision of this case.

1 . In Cohen, a plaintiff who had been granted a full pardon by the Governor of Pennsylvania filed a complaint in equity to have his criminal record expunged. Since there had been no allegation that the pardon had been granted because of innocence, the Commonwealth Court sustained preliminary objections and dismissed the • plaintiff’s complaint.