No. 73 January Term, 1979, Appeal from Order of the Superior Court, Affirming Order of the Court of Common Pleas, Criminal Division, of Montgomery County, at Nos. 1476-77, 1557-77 and Juvenile Division No. 292-77
Martin Wexler, I.P.P., Montgomery Co., for appellants.
Ronald T. Williamson, Asst. Dist. Atty., Montgomery Co., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, and Kauffman, JJ.
This is an appeal from an Order of the Superior Court that affirmed an Order of the Court of Common Pleas, Montgomery County, denying appellants' petition for expungement of their arrest records.
Appellant Martin Wexler was arrested and charged with corruption of a minor on April 7, 1977, following a search of his residence and the confiscation of marijuana and drug paraphernalia discovered in the bedroom of Vicki Wexler, his minor daughter. Appellant Vicki Wexler was also arrested at that time and charged with possession of marijuana with intent to manufacture or deliver and criminal conspiracy with Howard Erdreich, a minor, who was also arrested at the scene.
Mr. Wexler was incarcerated for six days following his arrest. Bail, originally set at $20,000 straight, was reduced at the preliminary hearing to $10,000 straight. At the preliminary hearing on the charge of corruption of a minor (where he appeared pro se), appellant Martin Wexler was advised of an added charge of criminal conspiracy and the complaint was amended at that time. It appears, from the comments of the presiding district justice, the procedure utilized by the assistant district attorney was, at the very least, a questionable one.*fn1 Appellant, Estelle Wexler, Martin Wexler's wife, present at her husband's preliminary hearing, was arrested at that time and also charged with criminal conspiracy and corruption of a minor.
On May 9, 1977, appellant Vicki Wexler entered into a consent decree in Juvenile Court pursuant to § 8.1 of the Juvenile Act.*fn2 In accordance with the consent decree she was released to the care and custody of her parents under the supervision of the Probation Office of Montgomery County, said decree to remain in effect for a period of twelve months unless terminated sooner with the Court's approval. On August 1, 1977, the Commonwealth filed a Petition for Nolle Prosequi of the charges against Mr. and Mrs. Wexler and the petition was granted. Thereafter, appellants filed a petition to expunge their arrest records. Following a hearing on January 27, 1978, the hearing judge denied the petition in an order dated January 31, 1978. Appellants appealed; the Superior Court affirmed per curiam. This appeal followed. For the reasons set forth below we reverse.
The serious harm an individual may suffer as a result of the Commonwealth's retention of an arrest record has been set forth in Commonwealth v. Malone, 244 Pa. Super. 62, 68-69, 366 A.2d 584, 587-88 (1976). Because of this potential hardship, the Court in Malone recognized that in certain circumstances substantive due process guarantees an individual the right to have his or her arrest record expunged. In determining whether justice requires expungement, the Court, in each particular case, must balance the individual's right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records. The Superior Court, in Commonwealth v. Iacino, 270 Pa. Super. 350, 411 A.2d 754 (1979) (Spaeth, J., concurring) ...