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COMMONWEALTH PENNSYLVANIA v. THOMAS MALONE (12/15/76)

decided: December 15, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS MALONE, APPELLANT



Appeal from the Memorandum and Order of the Court of Common Pleas of Dauphin County at No. 313 Miscellaneous Docket 1975. No. 132 March Term, 1976.

COUNSEL

David B. Disney, McNees, Wallace & Nurick, Harrisburg, for appellant.

Marion E. MacIntyre, Second Asst. Dist. Atty., Harrisburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Jacobs and Price, JJ., join.

Author: Hoffman

[ 244 Pa. Super. Page 64]

The instant case raises a question of first impression in Pennsylvania: whether an accused is entitled to a hearing to determine whether he has a right to expungement of his arrest record after the charges are dismissed at the preliminary hearing.

On June 16, 1975, appellant was arrested in Harrisburg, and charged with solicitation to commit involuntary deviate sexual intercourse.*fn1 At the time of the arrest, the police took appellant's photograph and fingerprints as part of the normal "booking" procedure. On June 23, 1975, the charge against the appellant was dismissed at the preliminary hearing.

Thereafter, appellant filed a petition in the Dauphin County Court of Common Pleas in which he requested that the police record be expunged and that the court order the Harrisburg Chief of Police to request a return of appellant's record from the F.B.I. See 19 P.S. § 1402*fn2 for police authority to forward police records to other crime fighting agencies. Appellant requested a hearing to present the merits of his claim.

[ 244 Pa. Super. Page 65]

On August 20, 1975, the lower court denied the petition without a hearing. In relevant part, the lower court's opinion stated that "[appellant] has asked this Court to order any records made by the Harrisburg Police Department, the Pennsylvania State Police and the Federal Bureau of Investigation to be expunged from their files and destroyed. Unfortunately there is no Pennsylvania authority for such action.

". . . [T]here is not only a lack of statutory authority in Pennsylvania to grant such relief but the legislative intent appears to be to the contrary . . . ." This appeal followed.

Whether the court properly denied appellant relief turns on the resolution of two questions: first, did the court have the authority to order the police to expunge the record; and, second, if the authority exists, under what circumstances is it properly exercised.

Initially, the Commonwealth argues that Pennsylvania courts lack the authority to order expungement. By statute,*fn3 the Pennsylvania State Police are authorized "to procure and file for record photographs, pictures, descriptions, fingerprints, and such other information as may be pertinent, of all persons who . . . may hereafter be . . . convicted of crime within this Commonwealth . . . ." 19 P.S. § 1401. Further, ". . . it shall be the duty of the chiefs of bureaus of all cities within this Commonwealth to furnish daily, to the Pennsylvania State Police, copies of the fingerprints and, if possible, photographs, of all persons arrested within their jurisdiction charged with the commission of felony, or who they have reason to believe are fugitives from justice . . . ." 19 P.S. § 1403. Finally, § 1406 makes "[n]eglect or refusal of any person mentioned in this act to make the report required herein . . ." a misdemeanor. The Commonwealth concludes

[ 244 Pa. Super. Page 66]

    that "[c]onspicuous by its absence in this statutory language is any reference to judicial authority to order the general destruction of arrest records. Such authority would clearly fly in the face of the affirmative duty imposed on the Pennsylvania State Police by § 1403 and § 1404 to develop and carry on a complete system of criminal identification. We note that this duty is buttressed by § 1406, which makes the destruction of arrest records a criminal offense. These provisions establish, in the least, that ...


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