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COMMONWEALTH PENNSYLVANIA v. HENRY MAGDON (02/04/83)

filed: February 4, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
HENRY MAGDON, JR., APPELLANT



No. 637 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, Lackawanna County, at No. 781 of 1972.

COUNSEL

Frank J. Muraca, Scranton, for appellant.

Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Cercone

[ 310 Pa. Super. Page 85]

This appeal presents us with the question of whether an individual who was arrested and convicted of a crime may be granted expungement of his conviction records. Consistent with established precedent, we hold today that there is no authority for granting this form of relief to an individual convicted of a crime.

On September 29, 1972, appellant pleaded guilty to a charge of selling marijuana in violation of the Controlled Substance, Drug, Device and Cosmetic Act. Act of April 14, 1972, P.L. 233, No. 64 § 13, 35 P.S. § 780-113 (1977). He was sentenced by the Court of Common Pleas of Lackawanna County to a term of eighteen months imprisonment

[ 310 Pa. Super. Page 86]

    in the Lackawanna County Prison. After serving three months of the sentence, appellant was released on parole. Appellant complied with all of the conditions of his parole and was completely discharged on September 9, 1974.

On October 10, 1980, appellant filed a petition in the lower court to expunge his criminal record. The Commonwealth opposed the petition and filed an answer in which it stipulated as follows concerning appellant: (1) appellant is 30 years of age; (2) resides with his wife and three minor children, all of whom he solely supports; (3) is a graduate of Scranton Central High School via an external adult education degree program; (4) is a May, 1981, honors graduate of the University of Scranton, with a double major in Psychology and Human Services; (5) has been gainfully employed since 1972, and employed since 1975 by the Community Medical Center of Scranton, Pennsylvania as a Mental Health Therapist; (6) has served as an in-service instructor and a certified C.P.R. instructor at the Hospital; (7) has been a volunteer donor to the Community Medical Center Blood Bank and a member of the Lackawanna County Chapter of the American Red Cross; (8) has not been arrested or convicted of a criminal offense since his conviction in 1972; (9) is of good character and reputation, as evidenced by the testimony of co-workers, friends, neighbors, relatives, and even the arresting Police Chief of the Borough of Throop, Pennsylvania; (10) has applied for numerous jobs since his conviction and has been told approximately 15 times by the employers that the disclosure of his criminal record was the cause of his rejection for said jobs; and, (11) would enter the program for certification as a Physician's Assistant at the Hahnemann Medical Hospital of Philadelphia, Pennsylvania if his petition to expunge is granted. It is the Commonwealth's position that this Court is without authority to expunge a conviction record regardless of the subsequent progress and rehabilitation of the petitioner. We agree.

In Commonwealth v. Malone, 244 Pa. Superior Ct. 62, 366 A.2d 584 (1976) this Court held for the first time that upon

[ 310 Pa. Super. Page 87]

    petition and hearing an accused's record can be expunged if the evidence at the hearing justifies the expungement. The Court first concluded that it enjoyed authority to order the expungement of an arrest record, and next determined the circumstances under which expungement is proper. In ...


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