No. 2690 October Term 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, No. 2534, April Term 1975.
James A. Burgess, Jr., Philadelphia, for appellant.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham, and Hoffman, JJ. Price, J., files a dissenting statement.
[ 278 Pa. Super. Page 365]
This is an appeal from an order denying a petition for expungement of an arrest record. The appeal was originally argued before a three-judge panel of this court, but because of the importance of the issues raised and a potential conflict in our cases, reargument before the court en banc was ordered. Having heard reargument, for the reasons stated below we now reverse.
On May 28, 1975, appellant was arrested and charged with aggravated assault upon a police officer, resisting arrest, and failure of a disorderly person to disperse. Appellant was one of a large number of persons involved in a streetcorner celebration of the Philadelphia Flyers Ice Hockey Team's victory in the Stanley Cup Finals. Police were concerned that the crowd was becoming unruly, and posed a threat to passersby; they therefore took steps to disperse it. In the subsequent pushing and shoving, appellant was allegedly involved in an altercation with police, who arrested him. At a preliminary hearing, the district justice found a prima facie case, and ordered appellant bound over for trial.*fn1
[ 278 Pa. Super. Page 366]
Shortly before trial, however, on February 19, 1976, the lower court entered an order admitting appellant into the Accelerated Rehabilitative Disposition Program (hereafter ARD), see Pa.R.Crim.P. 175 et seq., 19 P.S. Appendix, the conditions of admission being that he serve 18 months probation and pay a fine of $200. Appellant complied with these conditions, and on August 2, 1978, filed a petition for expungement of his arrest record. On October 2, 1978, a hearing was held,*fn2 following which the lower court denied the petition.*fn3
In Commonwealth v. Malone, 244 Pa. Super. 62, 366 A.2d 584 (1976), this court recognized, in an opinion by Judge HOFFMAN, that in certain circumstances substantive due process guarantees an individual the right to have his arrest record expunged. This right arises from the serious harm an individual may suffer from the Commonwealth's retention of his arrest record:
"Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual's reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records
[ 278 Pa. Super. Page 367]
have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal; or they may be considered by a judge ...