No. 519 March Term, 1977, Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, in Case No, 182 Misc. Docket 1977.
Carl G. Wass, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for appellees.
Cercone, President Judge, and Wieand and Hoffman, JJ. Hoffman, J., files a concurring and dissenting opinion.
[ 267 Pa. Super. Page 499]
Appellant, Stuart Cuspard Chase, appeals from the denial of his petitions to expunge the records of two separate arrests. We will affirm the order denying expungement of the record pertaining to appellant's arrest, trial and acquittal of theft by unlawful taking. The record of his arrest on a charge of assault, however, should have been expunged, and the order denying the same will be reversed.
Appellant's arrest for assault was based on a private complaint filed by his wife following a domestic quarrel in 1974. At the time of preliminary hearing before the magistrate, this charge was withdrawn. The theft charge arose out of a jewelry store robbery occurring in Harrisburg in 1976. An eyewitness identified appellant from a police photograph and gave incriminating testimony at his trial on
[ 267 Pa. Super. Page 500]
a charge of theft by unlawful taking. The jury, however, returned a not guilty verdict.
In Commonwealth v. Malone, 244 Pa. Super. 62, 366 A.2d 584 (1976), this Court recognized a limited right to expungement of arrest records under "appropriate circumstances." This right was said to be an "adjunct to due process" and was based upon a need to balance the interest of an accused in his good name and freedom from unwarranted punishment against the legitimate law enforcement need to maintain records of an individual's prior criminal arrests.
In the instant case, the Commonwealth presented no compelling reason for retaining the record of an arrest arising from a domestic quarrel. The charge had been withdrawn by the complainant, and was not returned to court by the magistrate. Under these circumstances, appellant should be freed from the punishment of ill repute, albeit slight, which would result from retention of the record of his arrest. See: Commonwealth v. Malone, supra, where charges had been dismissed at the preliminary hearing; and Wert v. Jennings, 249 Pa. Super. 467, 378 A.2d 390 (1977), where charges had been nol prossed because the Commonwealth was unable to establish a prima facie case.
Appellant's trial and acquittal of theft, however, calls for a different approach. In Commonwealth v. Mueller, 258 Pa. Super. 219, 392 A.2d 763 (1978), this Court held in an opinion by Judge (now President Judge) Cercone that "where the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will then have the burden to affirmatively demonstrate nonculpability at a hearing, otherwise his petition to expunge will be denied." 258 Pa. Super. at 223, 392 A.2d at 765. While the balancing test must nevertheless be applied, the question "is not whether ...