PA Superior Court: Trial Court May Deny Expungement Petition During Statute of Limitations
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Lloyd, 2025 PA Super 93, affirming the denial of the defendant’s petitions to expunge two sets of charges stemming from alleged domestic violence incidents against his former girlfriend. The defendant sought expungement after the cases were dismissed for lack of prosecution when the complainant failed to appear for multiple preliminary hearing listings.
Procedural History
The Commonwealth charged the defendant at two docket numbers with Aggravated Assault and related offenses. The charges were dismissed a few months later after the complainant failed to appear on three separate occasions. Although the court granted the defendant limited access relief under 18 Pa.C.S. § 9122.2 in November 2022, the defendant filed expungement petitions about six months after the dismissal of the charges. The Commonwealth objected to the expungement of the charges. The Commonwealth cited an alleged pattern of domestic violence-related charges even though all of the charges had been dismissed. After a hearing, the motions judge in the Philadelphia Court of Common Pleas denied the petitions, and the defendant appealed.
Legal Standard
The Pennsylvania Superior Court reviews the denial of an expungement petition for an abuse of discretion. Where charges are terminated without a conviction or acquittal, courts must balance the petitioner’s right to be free from the reputational harm of maintaining arrest records against the Commonwealth’s interest in retaining them. A court must apply the five-factor test outlined in Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981). Those factors are:
Strength of the Commonwealth’s case;
Reasons for retaining the records;
The petitioner’s age, criminal record, and employment history;
Time elapsed since the arrest; and
Specific adverse consequences suffered.
The Commonwealth bears the burden of justifying the retention of the records when the prosecution admits it cannot meet its burden at trial. However, per Commonwealth v. Drummond, 694 A.2d 1111 (Pa. Super. 1997), records may still be maintained until the statute of limitations expires if the evidence is not wholly insufficient.
Arguments on Appeal
The defendant argued that:
The Commonwealth failed to meet its burden because it presented only affidavits of probable cause, which constituted inadmissible hearsay.
The Commonwealth’s reasons for opposing expungement (potential Rule 404(b) use and pending statute of limitations) were too general.
His criminal record was dated, and he faced adverse employment consequences.
The short time since dismissal (six months) should not weigh against expungement.
The Commonwealth and the trial judge countered that:
The affidavits, describing serious physical injuries and identifying defendant, showed a non-frivolous case even though the complainant refused to testify.
The charges were part of a pattern of domestic violence.
The statute of limitations had not expired, allowing potential refiling.
The defendant had not proven specific adverse consequences.
Superior Court Holding
The Superior Court affirmed, finding no abuse of discretion. In making its ruling, the Court emphasized the following:
Only six months had passed between dismissal and the expungement petitions.
The statute of limitations would not expire until 2027, supporting retention in case the complainant later cooperated. This is probably not true - it would be very difficult for the Commonwealth to reinstate charges given that the speedy trial rule likely continues to run even though the charges have been dismissed.
The defendant remained employed part-time and had not clearly demonstrated that the existence of the dismissed charges prevented full-time employment or caused other specific harm.
The Court concluded that the Commonwealth had provided sufficient justification to retain the arrest records and that the defendant had not shown a compelling right to expungement under the Wexler factors.
Practical Takeaway
Commonwealth v. Lloyd reinforces that even when charges are dismissed without a preliminary hearing, expungement is not automatic. Where the Commonwealth can show a plausible reason to retain records—such as the statute of limitations still running, evidence of serious injuries, and potential future cooperation by a complainant—courts may deny expungement even absent a conviction. Defense attorneys should develop a detailed record of specific adverse consequences when seeking expungement and be prepared to argue why retention of a dismissed case would be fundamentally unfair under the totality of the circumstances. Additionally, the defense probably should have argued that even if the statute of limitations had not expired, the speedy trial rule (Rule 600) likely would prevent the Commonwealth from reinstating the charges even if the Commonwealth decided to try to pursue the case again.
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