No. 1729 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, Montgomery County, at No. Misc. 167 April Term, 1981.
Harry S. Rosenthal, Wyndmoor, for appellant.
Ronald T. Williamson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Cavanaugh and Montemuro, JJ.
[ 305 Pa. Super. Page 602]
This is an appeal from an order of the Court of Common Pleas of Montgomery County denying appellant's "Petition to Expunge" his arrest records.
On May 21, 1976 appellant, Richard B. Pflaum, was charged with burglary, criminal trespass, theft and disorderly conduct. Following a hearing before a district justice all charges were dropped except for the disorderly conduct charge to which appellant pled guilty.
On April 13, 1981, appellant filed a "Petition to Expunge." On June 17, 1981 a "hearing" was held before the Honorable Frederick B. Smillie. The record, at that "hearing", unequivocally shows that the Commonwealth concurred in appellant's view that as to the charges dropped, expungement was proper, but did not agree with expunging records pertaining to the disorderly conduct offense. Appellant's request to introduce testimony in support of his petition was denied. The lower court concluded that "hearing" without judgment and took the matter under advisement. The next day appellant's petition was denied. On July 7, 1981 appellant filed this appeal. The case was then assigned to the Honorable Vincent Cirillo, who, on August 5, 1981, wrote an opinion supporting the denial of appellant's petition to expunge.
Appellant contends that the lower court erred in denying his petition to expunge the criminal records pertaining to the charges that were dropped or, in the alternative, that the court erred in denying his petition without first taking testimony on the matter. Appellant does not challenge the propriety of the lower court's refusal to expunge the records concerning the disorderly conduct offense.
The brief record from the expungement hearing best describes what transpired:
[ 305 Pa. Super. Page 603]
THE COURT: Let's take the case of Richard Pflaum, Petition to Expunge.
MR. SOMMAR: Your Honor, Mr. Ditter of our office answered this Petition to Expunge.
In that answer he admitted to the facts alleged in the Petitioner's request with the exception of the disorderly conduct, which he felt should not be an expungement.
These arose out of the same incident and the defendant was charged with burglary and criminal trespass and assorted other charges. He plead guilty to disorderly conduct summary offense before District Justice Zepp.
For that reason, Mr. Ditter felt that the other charges should be expunged. However, the ...