What Crimes and Felonies Cannot Be Expunged?

What Crimes and Felonies Cannot Be Expunged?

People with criminal records may have an option to have these records expunged from their criminal history. In short, this can allow a person’s criminal history to be treated as if it never happened, with some exceptions.

Not all crimes can be expunged. It depends on the crime and applicable state law. Expungement laws, rules, and procedures vary drastically by state. Continue reading to learn more about what crimes and felonies typically cannot be expunged and the expungement process.

Why Consider Expungement?

Expungement is a legal process in which a person can petition the applicable state or local court to have their criminal records sealed from public databases.

A main advantage of petitioning for an expungement, if eligible, is that potential employers will have a harder time finding out about prior crimes or arrests. Records for the conviction, arrest, or both can be expunged and sealed from public databases and background check databases.

Persons that get crimes expunged from their records also can usually answer no to questions about whether they have past criminal convictions. Moreover, expungement can help people with prior convictions when they are applying for housing or higher education. It may also open more access to voting where criminal convictions are preventing their eligibility to vote.

Limits to Sealed Records

Note that there are some exceptions to sealed records and the access or disclosure of them. Most law enforcement agencies will still have access to records for an expunged conviction and arrest records. Also, some states require disclosing criminal records that were expunged to potential employers for certain types of jobs. These may include jobs that involve working with children, law enforcement, or financial services. Moreover, expunged records may still need to be disclosed when applying for some professional licenses.

What Crimes Can and Cannot Be Expunged?

While expungement varies by state law, the types of crimes for which expungement is available typically include minor offenses and crimes committed by a juvenile. Also, non-conviction records can often be expunged.

Crimes involving violence, endangerment to children, kidnapping, sexual assault, robbery, arson, terrorism, and severe injury or death of another person typically are not eligible for expungement. This is not always the case though in every state and may not be the case based on the specifics of the person’s charges that are seeking to have a criminal record expunged, including whether there was a conviction.

Felony charges are also extremely difficult to expunge, especially if they resulted in a conviction. Sometimes it is not possible to have a felony conviction expunged. Felonies are serious crimes. Since the focus of expungement is on the nature of the crime and the facts surrounding it, then crimes that result in felony charges or felony convictions are going to be much more difficult in general, regardless of the state, to get expunged.

State Law

Arrest records can often show up in background checks and public databases even if they did not result in a conviction. Most states will expunge non-conviction records. Some states will also expunge criminal records for certain crimes that resulted in a conviction.

Usually, juvenile crimes and most misdemeanors or minor crimes are easier to get expunged. Difficulties can arise though if the person has an extensive criminal record.

Arrest Records

Arrest records are not always made public but may show up in background checks. This is so even if there was no conviction. Some states will expunge them, especially when there was no conviction. If they resulted in a conviction, then they may be expunged as part of the petition to expunge the criminal record. The process on arrest records and how they are expunged varies by state.

The laws on this are complicated and nuanced. Anyone concerned about non-conviction records or arrest records should inquire about the state’s expungement rules for such records. This may also be necessary even when a petition is requested for a criminal conviction to be expunged. While the criminal conviction records may be expunged through a successful petition with the court, it is not always the case that the arrest records are expunged as well.

Future Crimes and Expungement

A successfully expunged criminal record may not stay sealed if the person is later involved again with the criminal justice system. Moreover, many states will not expunge a criminal conviction if someone already had another earlier crime expunged from their record, especially if it is the same offense. Here the first crime may possibly stay expunged, but it may still be used as a factor in the severity of charges brought for the later crime(s), and also the expunged crime may be considered during sentencing, resulting in more severe penalties.

If a person is seeking to get a crime expunged but has criminal charges that have occurred after that crime, then it will add another hurdle. Subsequent criminal history will be considered when a petition to expunge a criminal conviction is reviewed. In some states or instances, other criminal history will bar persons from seeking expungement of criminal charges entirely.

Can My Felony be Expunged?

Some states will allow for felonies to be expunged. However, this is very difficult and may not be possible depending on the state, the time that has gone by since the conviction, the person’s criminal record, and the nature of the crime. Some states may expunge more easily for felonies and other criminal convictions if there has been a long period of time since the crime was committed.

Also, if a person is trying to have a felony conviction expunged that occurred in another state, then the other state’s laws and procedures need will determine expungement eligibility. For example, there are some states that will expunge DUI/DWI convictions while others will not.

Usually states will not allow felonies to be expunged for violent felonies, sexual assaults, and other serious crimes such as endangerment to children, crimes involving weapons or arson, and perjury. While the exact laws vary by state, these types of crimes are unlikely to be eligible for expungement, especially if it is a felony.

Also, most states will not expunge felony convictions, regardless of the crime. For those states, however, there may still be an option to expunge felony records if the case did not result in a conviction or if it was dismissed, pardoned, abandoned, or withdrawn.

Process for Expungement

Usually, where an expungement is an option, the person seeking it will need to petition the court for expungement and follow the state-specific rules. There may be conditions that need to be met prior to petitioning the court for expungement. Additionally, there are procedural rules that must be followed. Documents will likely also need to be gathered to support the request for expungement.

Need Help With the Expungement Process?

Due to the complex nature of the expungement process and the varying state laws and procedural rules, anyone considering seeking an expungement for a criminal conviction or a felony should consider contacting an attorney with the facts of their cases to set up an initial consultation on expungement eligibility and process.

If you need help with determining the state requirements for a criminal record that you want expunged, or help with going through the expungement process, contact Mike DiCindio, Esq. by filling out our contact form to receive a call from someone to chat about your possible expungement case.

Can An Aggravated Assault Charged Be Expunged?

Being arrested and charged for a crime can negatively impact your future more than you think, effecting your personal life and limiting your opportunities professionally. Even in cases where charges were ultimately dismissed, your public record will still reflect the charges that you were arrested for.

The Pennsylvania expungement law was recently expanded in 2018 to include some violent offenses, such as aggravated assault. If you have been convicted of aggravated assault, you may be considering getting your criminal record expunged. Removing an aggravated assault criminal charge from your public record is a difficult process, but it can be done if you meet the qualifications. Find out the details of how you can seek removal of your criminal record from the public database.

What is aggravated assault?

Aggravated assault is a felony charge that is not taken lightly in the Pennsylvania justice system. Here are some examples of aggravated assault:

  • Striking or the threat of striking a person with a weapon or object
  • Using a firearm to shoot someone or threatening to shoot or kill someone while pointing a gun at them
  • Committing assault with the intent to commit another felony crime
  • Committing assault that results in serious physical injury to someone else
  • Committing assault against a member of a protected class

Effects of a criminal record

When a person is charged with a crime, they may face jail time and court fees, as well as specific conditions such as probation or parole. The short-term effects are burdensome, but the long-term implications can be just as devastating. A permanent criminal record is filed with the Federal Bureau of Investigation (FBI), as well as the Pennsylvania State Police, local law enforcement, the court, and government agencies. The criminal record contains details pertaining to arrest, conviction, and any supervision details. This means that future employers are able to pull up your criminal record in a background check and see that you have a conviction for aggravated assault. This could have a big impact on current or future employment.

How to get your criminal record expunged

Because of the negative impact a criminal record can have on your life, it is important to consider getting your criminal record expunged wherever possible. Here are the steps that you need to take in the expungement process.

Step 1 – Eligibility

The very first step determines whether you will be eligible to have your record expunged. In Pennsylvania, you are eligible if you were convicted of a crime, and meet any one of the following:

  • You are at least 70 years old and have had a clear record for 10 years you were released from supervision
  • You have a summary offense, and were free of arrest or conviction for 5 years following the date of conviction
  • No disposition was ever received or recorded by the repository within 18 months (proof must be submitted)
  • The court has ordered expungement
  • You are at least 21 years of age and have been convicted of a violation under Section 6308 (relating to the illegal transport or sale of alcohol) and have satisfied all the terms of sentencing, then the court will issue an order to expunge your record.
  • A record can be expunged 3 years after the individual has been deceased.

Step 2 – Obtaining a background check

After determining whether you are eligible to have your record expunged, you must obtain a background check from the Pennsylvania State Police. It takes about 2-4 weeks to receive the results. This background check must be included with the petition that is filed with the court. Without the background check, the clerk of the court may rule the petition as deficient.

Step 3 – Filing the necessary filings with the Court

Filing the necessary paperwork with the court in Pennsylvania will consist of the petition, a proposed Order, a verification form, a certificate of service, a background check, along with any other additional documentation that you feel is necessary. In the case of expungement for an aggravated assault, the defendant must fill out the 790 petition form (which is specific to misdemeanors and felonies). Additionally, a filing fee of $147.00 must accompany the petition.

Step 4 – Service on the District Attorney’s Office

After filing the petition with the court, you must serve the paperwork on the District Attorney’s Office that initially prosecuted the case. In certain counties, the clerk of the court will serve the petition on your behalf, but this should be confirmed prior to filing.

Step 5 – Response from the District Attorney’s Office

After the petition and accompanying documents is served upon the Pennsylvania District Attorney’s Office, they will have the chance to decide whether or not they will consent or object to the request for expungement. Generally, the District Attorney’s Offices in Pennsylvania has 30 days from the date of service to make their decision.

If the District Attorney’s Office reaches a decision where they object, a contested hearing will have to be held where testimony, evidence, and defense must be presented as to why the Judge should grant the order of expungement.

Step 6 – Distributing the Order of Expungement

The Order for expungment can be granted by the judge without the need for hearing if the District Attorney’s office consents. Regardless how the order was granted, the next step is for the expungement orders to be forwarded to all necessary law enforcement, court, and government agencies.

The entire expungement process typically takes 4 – 6 months under most circumstances. This means that your criminal record should be cleared by all law enforcement, court, and government agencies within the 4 – 6 month time frame.

Importance of an Attorney

The expungement process requires that you file documents with the court, follow strict procedural rules and present evidence to support the expungement. In order to best represent yourself, you need the experience of a seasoned expungement lawyer. The attorneys at DiCindio Law have significant experience trying expungement cases in Pennsylvania. Contact the experience attorneys at DiCindio Law today!

Sentencing and Penalties Voluntary Manslaughter

All homicide offenses in Pennsylvania are serious crimes, including voluntary manslaughter. If you are convicted of voluntary manslaughter, you may face severe consequences. While all homicides are serious, they are not all treated the same. Voluntary manslaughter is a lesser offense than a murder charge, but it still requires you to mount a vigorous defense. At DiCindio Law, we represent people who have been accused of committing all types of crimes, including homicide offenses. Here is what you need to understand about voluntary manslaughter, the penalties, and the possible defenses.

Criminal homicide and voluntary manslaughter

Criminal homicide is defined in 18 Pa.C.S. § 2501 as being the intentional, reckless, knowing, or negligent killing of another person. Multiple crimes are considered to be criminal homicide offenses, including the following:

  • First-degree murder
  • Second-degree murder
  • Third-degree murder
  • Voluntary manslaughter
  • Involuntary manslaughter
  • Causing or assisting suicide
  • Delivering drugs that cause death
  • Criminal homicide of a law enforcement officer

First-degree murder is the most serious type of criminal homicide and can result in capital punishment or life in prison without parole. Voluntary and involuntary manslaughter are criminal homicide offenses for cases in which the facts do not quite rise to the level of a murder charge. In some cases, however, a prosecutor may charge a defendant with murder as well as voluntary manslaughter when the prosecutor is unsure that he or she will be able to prove the elements of murder beyond a reasonable doubt. Prosecutors do this to try to ensure that they can secure convictions against defendants whom they believe killed people.

The main difference between manslaughter and murder is the degree of culpability. Murder charges require that the killers acted with malice. Manslaughter is an unjustified killing that does not include malice. The penalties for manslaughter are much less severe than they are for murder. Voluntary manslaughter is more serious than involuntary manslaughter, however.

Voluntary vs. involuntary manslaughter

In Pennsylvania, manslaughter is classified into two types, including voluntary and involuntary manslaughter. These two different types of manslaughter are distinguished by the intent and the circumstances. Involuntary manslaughter is found in 18 Pa.C.S. § 2504 and is less serious than voluntary manslaughter. Involuntary manslaughter occurs when a defendant kills another person while he or she is acting recklessly or with gross negligence while performing a lawful or unlawful act. Involuntary manslaughter is a first-degree misdemeanor carrying the potential of up to five years in prison and a fine of $10,000.

Voluntary manslaughter is more serious than involuntary manslaughter and carries harsher penalties. Voluntary manslaughter is found in 18 Pa.C.S. § 2503 and occurs when a defendant kills another person in a heat of passion because of provocation by the victim. It also includes a killing when the defendant is in a heat of passion after being provoked by a third party who the defendant attempts to kill but accidentally kills the victim instead. Finally, it also includes scenarios in which the defendant intentionally killed another person under an unreasonable belief that the killing is justified such as in a case of imperfect self-defense or defense of others.

The provocation for voluntary manslaughter has to be severe enough that any reasonable person would have a passionate reaction. For the killing to be considered to have happened in the heat of passion, the killing must follow the provocation without sufficient time passing for the defendant to calm down. If you are convicted of voluntary manslaughter, it is a first-degree felony that carries up to 20 years in prison and a fine of $25,000.

Potential defenses to voluntary manslaughter charges

The defenses that your attorney might raise to defend you against voluntary manslaughter charges will depend on the circumstances and facts of what occurred. Your lawyer might examine the evidence and investigate the case to determine whether it might have been a negligent or accidental killing instead of an intentional act. He or she might also look to determine whether you might have been acting in self-defense instead of reacting to provocation and if your beliefs were reasonable.

Your attorney will carefully review the facts to identify all of the defenses that you might be able to raise in your case. If you have been charged with voluntary manslaughter, contact DiCindio Law in West Chester to start building your defense. Fill out our online contact form to request a free consultation.

Possessing Instruments of Crimes

When an object or weapon is involved in the commission of a criminal offense, a common charge that will be levied against an individual is that of “Possessing Instruments of Crimes.” This charge is found in title 18 section 907 of the Pennsylvania Criminal Code.

What must be evaluated in these cases is whether or not the person intended to employ any instrument of crime in a criminal manner. Importantly, there need not be what is generally termed as a “weapon” in order to be found guilty of this offense. Unlike what most may generally think – a knife or a gun, an instrument of crime is defined as anything that fits with in the following definitions. First, anything specifically made or specifically adapted for criminal use. Second, anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses that it may have.  Finally, anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

An example of a situation where a normal everyday object may be viewed as an instrument of crime would be when a crowbar is used to break into somebody’s home or vehicle. That is not the lawful and intended purpose of a crowbar therefore it would fit under the definition of this crime.

If you or a loved one has been charged with a crime or are the subject of a case where Possession of an Instrument of Crime is charged contact Mike DiCindio, Esq. and DiCindio Law, LLC directly today.

 

  • 907.  Possessing instruments of crime.

(a)  Criminal instruments generally.–A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

(b)  Possession of weapon.–A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.

(c)  Unlawful body armor.–A person commits a felony of the third degree if in the course of the commission of a felony or in the attempt to commit a felony he uses or wears body armor or has in his control, custody or possession any body armor.

(d)  Definitions.–As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Body armor.”  Any protective covering for the body, or parts thereof, made of any polyaramid fiber or any resin-treated glass fiber cloth or any material or combination of materials made or designed to prevent, resist, deflect or deter the penetration thereof by ammunition, knife, cutting or piercing instrument or any other weapon.

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“Instrument of crime.”  Any of the following:

(1)  Anything specially made or specially adapted for criminal use.

(2)  Anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

“Weapon.”  Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon.


The above listed information does not include the entire crimes code, annotations, amendments or any recent changes that may be relevant.  The information provided is for informational purposes only and may not reflect the most current legal developments.  These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances.  It is intended solely for informational purposes.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

Self-Defense in Pennsylvania

Self-Defense in Pennsylvania

Under Pennsylvania law when a crime of violence has been alleged a criminal defense attorney must evaluate the circumstances and determine whether or not self-defense would be an available principle of justification and defense in the criminal case. Whether it be a prosecution of simple assault, harassment, aggravated assault, or even a murder or criminal homicide case, self-defense must be evaluated before moving forward with a strategy for legal defense. Under Pennsylvania law the general principle of self-defense is that the use of force towards another is justifiable if the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of force by another person on the pres

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ent occasion. Still, as with any criminal justification defense there are limits to self-defense in Pennsylvania.

For example there is a limit on the level of force that may be reasonably used which becomes a factual determination for  the jury.  There are also limits on the use of deadly force and when it can be used in a justifiable manner. Finally, there are numerous intricate scenarios where the self-defense or use of force in self-protection statute differentiates between the location of the incident.  For example, different rules may apply if someone is acting in self-defense in their home rather than in public.

Putting forth a self-defense justification defense in Pennsylvania is incredibly involved at times and usually based upon the specific circumstances of a given scenario.

If you or a loved one needs representation on any criminal matter – contact Mike DiCindio, Esq. directly.

  • § 505.  Use of force in self-protection.

(a)  Use of force justifiable for protection of the person.–The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

(b)  Limitations on justifying necessity for use of force.–

(1)  The use of force is not justifiable under this section:

(i)  to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful; or

(ii)  to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(A)  the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;

(B)  the actor has been unlawfully dispossessed of the property and is making a reentry or recaption justified by section 507 of this title (relating to use of force for the protection of property); or

(C)  the actor believes that such force is necessary to protect himself against death or serious bodily injury.

(2)  The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:

(i)  the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or

(ii)  the actor knows that he can avoid the necessity of using such force with complete safety by retreating, except the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be.


The above listed information does not include the entire crimes code, annotations, amendments or any recent changes that may be relevant.  The information provided is for informational purposes only and may not reflect the most current legal developments.  These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances.  It is intended solely for informational purposes.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale