Commonwealth v. Presher , 179 A.3d 90 ( 2018 )

J-A27004-17
2018 PA Super 19COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL ALLEN PRESHER,
Appellant No. 97 WDA 2017
Appeal from the Order Entered December 19, 2016
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000168-2016
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 2, 2018
Appellant, Michael Allen Presher, appeals from the trial court’s
December 19, 2016 order directing authorities to fingerprint Appellant
pursuant to 18 Pa.C.S. § 9112, after a jury acquitted him of the criminal
conduct that triggered the statute’s fingerprinting mandate. Appellant
contends that the trial court erred in applying Section 9112, and/or that the
statute violated his constitutional rights. After careful review, we reverse.
The facts underlying Appellant’s alleged criminal conduct are not
germane to this appeal. The Commonwealth charged him with theft and
receiving stolen property by criminal complaint dated March 22, 2016, and
then proceeded against Appellant by summons. Appellant failed to appear
for his April 19, 2016 preliminary hearing before the district magistrate.
Consequently, the magistrate bound the charges over to the Court of
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Common Pleas. Trial Court Order and Opinion (hereinafter “TCO”), 1/31/17,
at 8. Ultimately, a jury acquitted Appellant of all charges following a one-
day trial held on December 7, 2016. However, on December 9, 2016,
pursuant to the Commonwealth’s request, the trial court issued an order for
Appellant to be processed and fingerprinted pursuant to 18 Pa.C.S. §
9112(b)(2) (mandatory fingerprinting for defendants “proceeded against by
summons”).
Appellant objected to the order by filing a motion for reconsideration
on December 19, 2016. The next day, the trial court issued an order
denying Appellant’s motion for reconsideration. Appellant then filed a timely
notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement.1
The trial court filed its Rule 1925(a) opinion on January 31, 2017.
Appellant now presents the following questions for our review:
I. [Does] Pennsylvania's mandatory fingerprinting statute
violate the Due Process Clause of the U.S. and
P[ennsylvania] constitutions?
II. Did the [trial] court err in finding the fingerprint statute[]
provides constitutional equal protection[] for persons
acquitted of crimes?
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1
Appellant filed his notice of appeal from the order denying his motion for
reconsideration. It appears that there is some confusion about the date of
the order. Appellant’s notice of appeal, and the trial court’s opinion, both
identify the order in question as filed on December 19, 2016. However, the
order was dated and filed on December 20, 2016, according to the lower
court docket. In any event, it is clear to this Court from which order
Appellant appealed.
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III. Does Pennsylvania's fingerprinting statute violate the
P[ennsylvania] and U.S. constitutions by allowing for
unlawful search and seizure of United States citizens?
IV. Does the Pennsylvania fingerprinting statute violate the
Eighth Amendment by allowing innocent persons to be
subject to punitive orders?
V. Did the [trial] court … abuse its discretion in ordering
[A]ppellant to post acquittal punitive orders after a jury
had rendered a verdict of not guilty?
VI. Has the [trial] court misinterpreted the scope of the
Pennsylvania fingerprinting statute to unlawfully include
"processing" as part of its application?
Appellant’s Brief at 13-14.
We begin with our standard of review.
When interpreting a statute, the court must ascertain and
effectuate the intent of the legislature and give full effect to each
provision of the statute if at all possible. 1 Pa.C.S.A. § 1921(a);
Commonwealth v. Brown, 423 Pa. Super. 264, 266, 620 A.2d
1213, 1214 (1993); Commonwealth v. Edwards, 384 Pa.
Super. 454, 460, 559 A.2d 63, 66 (1989), appeal denied, 523
Pa. 640, 565 A.2d 1165 (1989). 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. 1 Pa.C.S.A. § 1903(a). See Commonwealth v.
Berryman, 437 Pa. Super. 258, 649 A.2d 961 (1994) (en banc).
When construing one section of a statute, courts must read
that section not by itself, but with reference to, and in light of,
the other sections because there is a presumption that in
drafting the statute, the General Assembly intended the entire
statute to be effective. 1 Pa.C.S.A. § 1922. See
Commonwealth v. Mayhue, 536 Pa. 271, 307, 639 A.2d 421,
439 (1994); Commonwealth v. Berryman, supra at 268, 649
A.2d at 965. Statute headings may be considered in construing
a statute. 1 Pa.C.S.A. § 1924. However, the letter of the
statute is not to be disregarded under the pretext of pursuing its
spirit. 1 Pa.C.S.A. § 1921(b); Commonwealth v. Reeb, 406 Pa.
Super. 28, 34, 593 A.2d 853, 856 (1991), appeal denied, 530
Pa. 665, 610 A.2d 45 (1992).
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Commonwealth v. Lopez, 663 A.2d 746, 748 (Pa. Super. 1995).
It is axiomatic that: “[A]ny party challenging the
constitutionality of a statute must meet a heavy burden, for we
presume legislation to be constitutional absent a demonstration
that the statute ‘clearly, palpably, and plainly’ violates the
Constitution.” Konidaris v. Portnoff Law Associates, Ltd.,
598 Pa. 55, 953 A.2d 1231, 1239 (2008) (citation omitted). The
presumption that legislative enactments are constitutional is
strong. Commonwealth v. McMullen, 599 Pa. 435, 961 A.2d
842, 846 (2008); see also 1 Pa.C.S. § 1922(3) (in ascertaining
intent of General Assembly in enactment of statute, presumption
exists that General Assembly did not intend to violate federal
and state constitutions). All doubts are to be resolved in favor of
finding that the legislative enactment passes constitutional
muster. Pennsylvanians Against Gambling Expansion
Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383,
393 (2005). Moreover, “statutes are to be construed whenever
possible to uphold their constitutionality.” In re William L., 477
Pa. 322, 383 A.2d 1228, 1231 (1978).
DePaul v. Commonwealth, 969 A.2d 536, 545–46 (Pa. 2009).
Given the strong presumption of the fingerprinting statute’s
constitutionality under our standard of review, we will begin by addressing
Appellant’s fifth claim, which simply asserts that the trial court abused its
discretion by ordering him to submit to fingerprinting pursuant to 18 Pa.C.S.
§ 9112. That is, before considering whether the statute is unconstitutional,
we are obliged to address first whether its text requires or permits its post-
acquittal application. See Commonwealth v. Ludwig, 874 A.2d 623, 628
(Pa. 2005) (recognizing that “courts have the duty to avoid constitutional
difficulties, if possible, by construing statutes in a constitutional manner”).
If the statute does not apply post-acquittal, then we should conclude that
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the trial court abused its discretion by applying it to Appellant, thereby
avoiding the constitutional questions that arise if it does.
Section 9112, the mandatory fingerprinting statute, is part of the
Criminal History Record Information Act. See 18 Pa.C.S. § 9101. It
provides as follows:
(a) General rule.--Fingerprints of all persons arrested for a
felony, misdemeanor or summary offense which becomes a
misdemeanor on a second arrest after conviction of that
summary offense, shall be taken by the arresting authority, and
within 48 hours of the arrest, shall be forwarded to, and in a
manner and such a form as provided by, the central repository.
(b) Other cases.--
(1) Where private complaints for a felony or misdemeanor
result in a conviction, the court of proper jurisdiction shall
order the defendant to submit for fingerprinting by the
municipal police of the jurisdiction in which the offense was
allegedly committed or in the absence of a police
department, the State Police. Fingerprints so obtained
shall, within 48 hours, be forwarded to the central
repository in a manner and in such form as may be
provided by the central repository.
(2) Where defendants named in police complaints are
proceeded against by summons, or for offenses under
section 3929 (relating to retail theft), the court of proper
jurisdiction shall order the defendant to submit within five
days of such order for fingerprinting by the municipal
police of the jurisdiction in which the offense allegedly was
committed or, in the absence of a police department, the
State Police. Fingerprints so obtained shall, within 48
hours, be forwarded to the central repository in a manner
and in such form as may be provided by the central
repository.
(c) Transmittal of information.--The central repository shall
transmit the criminal history record information to the criminal
justice agency which submitted a complete, accurate and
classifiable fingerprint card.
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18 Pa.C.S. § 9112. Applicable in this instance is Section 9112(b)(2), which
requires the trial court to order the fingerprinting of “defendants named in
police complaints [who] are proceeded against by summons.” 18 Pa.C.S. §
9112(b)(2) (emphasis added).
Without providing citation to any relevant authority apart from the
statute itself, the trial court declared that this mandate “cannot be
circumvented by delay and later by acquittal.” TCO at 9. The court provides
virtually no analysis to support its assertion. However, we may assume that
the trial court believes it is strictly interpreting the text of Section
9112(b)(2), which appears, at least at first glance, to provide no end-date
for the mandate imposed on the court to order fingerprinting following the
filing of a criminal complaint and summons. The Commonwealth takes a
more measured approach, arguing that “[s]uch post-acquittal fingerprinting
does not appear to be contemplated by [Section 9112(b)(2)], however had
Appellant wished to avoid being subject to such an order, post-acquittal
expungement would have been the most efficient remedy.”
Commonwealth’s Brief at 4. Thus, the Commonwealth seems reluctant to
argue that the statute plainly requires the fingerprinting of acquitted
persons, but instead argues that Appellant has chosen an inappropriate
remedial path.
We reject both the trial court’s and the Commonwealth’s interpretation
of Section 9112(b)(2). An acquittal constitutes “the strongest vindication
possible under our criminal tradition, laws and procedures[.]” In re D.M.,
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695 A.2d 770, 773 (Pa. 1997) (requiring the expungement of arrest records,
without qualification, following an acquittal). The trial court’s application of
Section 9112(b)(2) to an acquitted party stands in direct contravention to
this principle and, thus, we begin our analysis with extreme skepticism that
the legislature intended such a result. Fortunately, the text of the statute
does not support the trial court’s interpretation.
Section 9112(b)(2) speaks of “defendants,” not “persons[,]” much less
an acquitted party. 18 Pa.C.S. § 9112(b)(2). Appellant’s status as
“defendant” ceased in the underlying criminal case when the jury acquitted
him of all charges. In both common and formal legal parlance, a
“defendant” is a person who is currently being accused and/or tried for the
commission of a crime, or, at most, a person who is still involved in
proceedings directly related to that criminal process, such as during the
pendency of an appeal. It would be absurd to identify a person as a
“defendant” after his or her acquittal, temporarily or indefinitely. To this
Court’s knowledge, the term “defendant” is neither colloquially nor formally
used to refer to an acquitted party, except in the past tense to describe that
person’s prior status. The formal accusation that is the subject of a criminal
trial is decisively and permanently disposed of when the factfinder, be it
judge or jury, reaches a not-guilty verdict. D.M., supra. On this basis, we
conclude that the trial court abused its discretion when it ordered Appellant
to submit to fingerprinting pursuant to Section 9112(b)(2).
Commonwealth v. Murray, 83 A.3d 137, 156 (Pa. 2013) (“An abuse of
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discretion is not merely an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-
will discretion ... is abused.”) (emphasis added).
Our interpretation is consistent with the terminology used throughout
18 Pa.C.S. § 9112. In Section 9112(a), the statute refers to “persons,”
rather than to “defendants.” 18 Pa.C.S. § 9112. An arrested “person” may
never be subject to a formal accusation in the form of a criminal complaint
or criminal information. Thus, such persons may not technically be
“defendants” at the time of or immediately following their arrest.
Nevertheless, the statute mandates fingerprinting of any such persons if the
basis of the arrest is a “felony, misdemeanor or summary offense which
becomes a misdemeanor on a second arrest after conviction of that
summary offense.” 18 Pa.C.S. § 9112(a). In Section 9112(b)(1), the
legislature transitioned to the term, “defendant.” 18 Pa.C.S. § 9112(b)(1).
That provision only applies to individuals who were “convicted” following the
filing of “private complaints for a felony or misdemeanor….” Id. Hence, the
label “defendant” is used in Section 9112(b)(1) when criminal allegations
have already been proved to the factfinder; however, a conviction is not
itself the final word on guilt or innocence in the criminal process, given the
potential for subsequent appellate review. Thus, the continued, post-
conviction use of the term “defendant” is logical and understandable, if not
the most perfect fit.
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The contemplated temporal/procedural posture of Section 9112(b)(2)
is when a criminal case is proceeding by summons, following the filing of a
criminal complaint. The named person in the summons is unambiguously a
“defendant” when the summons issues, because the summons follows a
criminal complaint, and the “defendant” is literally named as such in the
filing. See Pa.R.Crim.P. 510(A) (“Every summons in a court case shall
command the defendant to appear….”) (emphasis added). However, when
any case results in a complete acquittal, as occurred in the matter at hand,
the Commonwealth has absolutely no recourse to challenge that disposition.
Thus, the label, “defendant,” ceases to apply rationally to a person following
their acquittal.
In sum, we conclude that the trial court abused its discretion when it
ordered Appellant to submit to fingerprinting pursuant to Section
9112(b)(2), as the express terms of that statute do not permit its
application to fully acquitted persons, who are no longer “defendants” within
the meaning of that statute. Because of our disposition in this matter, it is
unnecessary to address Appellant’s remaining issues.2
Order reversed. Jurisdiction relinquished.
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2
Moreover, we deny Appellant’s October 24, 2017 motion to file a
supplemental brief on this basis as well.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2018
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