No. 1669 October Term, 1976, On Appeal From Order Dated April 14, 1976 of the Court of Common Pleas, Criminal, Chester County Term, A.D. 1975, at Misc. No. 580.
Charles F. Mayer, Media, submitted a brief for appellant.
William R. Muir, Jr., Assistant District Attorney, West Chester, 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.
[ 249 Pa. Super. Page 469]
The instant case involves one issue: whether a court in Pennsylvania has the authority to order expunction of arrest records, photographs, fingerprints, and any other record of a person who has been charged with, but not convicted of a crime. In a recent decision, we held that a court may do so despite the absence of explicit statutory authorization. Commonwealth v. Malone, 244 Pa. Super. 62, 366 A.2d 584 (1976). Therefore, we remand for a hearing in conformity with our decision in Malone.
In October, 1970, appellant testified as a defense witness at the trial of John Mervin, charged with aggravated assault, arising out of a shooting incident which occurred at the Horse and Hound Lounge in West Chester, Chester County. A jury acquitted Mervin. However, as a result of an investigation by local authorities, Mervin and his defense witnesses, including appellant, were charged with perjury and conspiracy. See Commonwealth v. Mervin, 230 Pa. Super. 552, 326 A.2d 602 (1974).
Although the grand jury indicted appellant on May 17, 1972, the Commonwealth did not proceed to trial. Subsequently, Mervin was acquitted of the charges relating to suborning the perjury of appellant.*fn1 As a result, the Chester County District Attorney sought leave of the court to enter a nolle prosequi of the charges. In the petition, the district attorney stated: "In the opinion of your petitioner the Commonwealth will be unable to establish a prima facie case. In this connection it should be noted that in the trial of John Mervin . . . . Mervin was specifically acquitted of the charge alleging suborning of the defendant herein to commit perjury. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct.Rep. 1189 [25 L.Ed.2d 469] (1970)."
[ 249 Pa. Super. Page 470]
On October 24, 1975, appellant petitioned the court to direct expunction of his record taken at the time of his arrest by the State Police and transmitted to the Federal Bureau of Investigation. The court issued a rule to show cause upon the Chester County District Attorney, the Chief of Chester County Detectives, the West Chester Police Department, the State Police and the F.B.I., why the records should not be destroyed. After the district attorney answered the rule, the parties briefed and argued the issue. The court did not hold a hearing because it did not believe that it possessed the authority to order expunction:
". . . it appears in brief that presently in Pennsylvania, a court may order the expunction of arrest records under the specific and limited authority contained in the Controlled Substance, Drug, Device and Cosmetic Act,*fn2 and in cases involving persons falsely or illegally arrested. A court may of course also direct a district attorney to perform his statutory duty to destroy the fingerprint records in his possession of persons acquitted of criminal charges, as mandated by Section 5 of the Act of 1927.*fn3 Petitioner's case falls into none of these narrow categories.
"We have been cited to no Pennsylvania authority, statutory or decisional, and our research reveals none enlarging the limited power of the court to order expunction. Quite the contrary, we note several interesting ...