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COMMONWEALTH PENNSYLVANIA v. DAVID JOHN WELFORD (07/03/80)

filed: July 3, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DAVID JOHN WELFORD



No. 15 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal, of Montgomery County, No. 2797-76.

COUNSEL

David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellant.

Richard J. Gordon, Philadelphia, for appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Hoffman, JJ. Price, J., dissents.

Author: Hoffman

[ 279 Pa. Super. Page 301]

Appellant Commonwealth contends that the lower court erred in ordering expunction of appellee's arrest record. We disagree and, accordingly, affirm the order of the court below.

[ 279 Pa. Super. Page 302]

Appellee was arrested in June 1976 and charged with driving under the influence of alcohol, failure to stop at the scene of an accident, and under-age drinking. After a preliminary hearing, appellee was held for court on all three charges. Subsequently, however, appellee was accepted into the Accelerated Rehabilitative Disposition Program (ARD). Pursuant to the program, appellee was placed on probation for one year, ordered to pay $200.00 restitution, and ordered to complete a safe driver and alcohol program. In November 1978, having complied with the terms of the program, appellee petitioned the lower court to direct expunction of his criminal record. The lower court granted the petition, and the Commonwealth appealed.

The instant case is controlled by our decision in Commonwealth v. Briley, 278 Pa. Super. 363, 420 A.2d 582 (1980). In Briley, we noted that in acting on expunction petitions the court must engage in a balancing process, weighing the individual's due process interest in being free from the stigma of an arrest record against the state's interest in maintaining accurate records relating to persons suspected of criminal activity. Id., 278 Pa. Super. at 368-369, 420 A.2d at 584-585. See also Commonwealth v. Malone, 244 Pa. Super. 62, 366 A.2d 584 (1976). We further held that where the accused is held for trial after his preliminary hearing, but subsequently successfully completes an ARD program, "the Commonwealth has the burden of justifying the retention of appellant's arrest record." Applying these standards, we concluded in Briley that the Commonwealth had failed to sustain its burden of proof because the only reason it offered for opposing expunction was that arrest records must be maintained to prevent offenders from participating in the ARD Program more than once. Additional considerations cited by Judge SPAETH which tipped the balance in favor of the accused included the following:

The ARD Program was created, in large part, to keep persons such as this high-spirited college student out of the criminal justice system, to rehabilitate those who are generally law-abiding, and to protect them from lasting

[ 279 Pa. Super. Page 303]

    damage because of an isolated, relatively minor infraction of the law. These purposes would be seriously undermined were we to raise procedural barriers to expungement in ARD cases. Moreover, it is likely that an individual enters the ARD Program with the understanding that upon completion he will have earned a clean record. The disappointment of his legitimate expectations may result in a bitterness that will thwart his development of a healthy respect for the law and that is contrary to society's best interests. Finally, were we to raise procedural barriers to expungement in ARD cases, participation in ARD would probably become less attractive, and defendants who face only minor sanctions might well decline to participate; since to have their records expunged ...


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