No. 946 PHILADELPHIA, 1980, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Lancaster County, at Nos. 3219 & 3220 January Term, 1975.
Steve Alexander, Philadelphia, for appellant.
John Kenneff, Assistant District Attorney, Lancaster, for Commonwealth, participating party.
Hester, Cavanaugh and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.
[ 291 Pa. Super. Page 605]
This is an appeal from an order of the Court of Common Pleas of Lancaster County refusing to grant expungement of an arrest record. The procedural history and facts relevant to the issues on appeal are as follows.
Appellant was charged with corruption of minors at Information No. 3218 of 1975, involuntary deviate sexual intercourse at No. 3219 of 1975, and corruption of minors at No. 3220 of 1975. The charge at No. 3218 of corruption of minors was nolle prossed by the Commonwealth on March 7, 1980 after five years of inactivity for lack of evidence.
[ 291 Pa. Super. Page 606]
Appellant was tried before a jury on the other two criminal Informations in a trial which began on January 27, 1976 and ended on February 3, 1976 when the trial judge sua sponte declared a mistrial. The trial judge ordered a mistrial when the jury foreman indicated that the jury would not be able to reach a verdict. Our Court granted a motion to quash the Information because appellant's retrial was barred by his Fifth Amendment right not to be placed in double jeopardy. Commonwealth v. Haefner, 264 Pa. Super. 144, 399 A.2d 707 (1979).
A hearing was held on the petition to expunge on January 25, 1980 at which time the Commonwealth presented no evidence. The trial court granted expungement as to criminal Information No. 3218, and denied expungement as to the two Informations on which appellant was tried. This timely appeal followed.
Appellant contends the trial court erred in imposing upon him the burden of affirmatively demonstrating his non-culpability under the facts herein.
We have held that the right of an accused to seek expungement of an arrest record is an adjunct to due process. Commonwealth v. Malone, 244 Pa. Super. 62, 366 A.2d 584 (1976). We have further held that where the Commonwealth has made out a prima facie case but the prosecution was terminated because of a procedural irregularity or legal technicality unrelated to questions of guilt or innocence, the accused has the burden of affirmatively demonstrating non-culpability. Upon such a showing, the trial court then had to weigh the Commonwealth's interest in retaining the arrest record against the accused's interest in freedom from harm ancillary to the arrest record. Commonwealth v. Mueller, 258 Pa. Super. 219, 392 A.2d 763 (1978); Commonwealth v. Rose, 263 Pa. Super. 349, 397 A.2d 1243 ...