No. 25 OCTOBER TERM, 1979, Appeal from Order dated November 29, 1978, Criminal in the Court of Common Pleas of Montgomery County, Pennsylvania, Miscellaneous Division, No. 454, July Term, 1978.
Roger Harrington, Philadelphia, for appellant.
Bert Goodman, Assistant District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 295 Pa. Super. Page 306]
Appellant, on appeal, contends that the lower court committed error in dismissing his petition to expunge his arrest record without holding a hearing thereon.
To properly assess Appellant's contention, we must briefly recount the facts. Bearing in mind that the lower court held no hearing upon Appellant's petition, and there is thus no record, we glean the facts from the petition, the answer thereto filed by the Commonwealth and the opinion of the lower court.
Appellant was arrested in Montgomery County by an officer of the Whitemarsh Township police department upon a charge of public drunkenness*fn1 and taken to the Whitemarsh Township police headquarters building. As Appellant was being placed in a cell, he allegedly swung his belt at the arresting officer, and when finally in the cell, allegedly set fire to a blanket. As the result of such asserted conduct, Appellant was charged with aggravated assault*fn2 and arson endangering property,*fn3 in addition to public drunkenness.
Subsequently, Appellant appeared before a district justice for a preliminary hearing and pleaded guilty to the charge of public drunkenness. The Commonwealth did not proceed upon and apparently withdrew the charges of arson and aggravated assault.*fn4
[ 295 Pa. Super. Page 307]
Thereafter, Appellant filed the instant petition seeking expunction of all records pertaining to his arrest upon the charges of arson and aggravated assault.
In his petition, Appellant averred inter alia, that his arrest upon the latter charges and the record thereof has caused him embarrassment and irreparable harm, and the Commonwealth will not be harmed in the event Appellant's records are expunged. The Commonwealth, in its answer to the petition, asserted, without more, that it would be "greatly harmed" if the petition were granted. In new matter, the Commonwealth averred, again without more, that ". . . under the existing facts and circumstances in the instant case, expungement [sic] is not appropriate". These allegations together with an admission by the Commonwealth that the district justice had granted the Commonwealth's motion for a nolle prosequi and a copy of the criminal complaint constituted the only record before the court at the time it entered the order denying Appellant's petition.*fn5
In its able opinion filed in response to Pa.R.A.P. 1925(a), the lower court referred to the entry of Appellant's plea to the charge of public drunkenness, and the contemporaneous "entry" of the nolle prosequi upon the Commonwealth's request, as a plea bargain. The lower court then reviewed our decisions in Commonwealth v. Malone, 244 Pa. Super. 62, 366 A.2d 584 (1976) and Commonwealth v. Mueller, 258 Pa. Super. 219, 392 A.2d 763 (1978), and distinguished those decisions from the case at hand on the ground that Malone and Mueller mandated hearings in order to "prevent the punishment of an innocent person", while in the case at bar, the charges of ...