No. 84 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas, Criminal Division, Lebanon County, at No. 10 September Term 1963.
Joseph C. Mesics, Public Defender, Lebanon, for appellant.
Daniel J. McDevitt, Assistant District Attorney, Lebanon, for Com., appellee.
Wickersham, Beck and Montemuro, JJ. Wickersham, J., files dissenting opinion.
[ 325 Pa. Super. Page 527]
This is an appeal from the order of the Court of Common Pleas of Lebanon County denying the motion of appellant, James A. Miller, for expungement of a charge of burglary from his criminal record. Because we conclude that the lower court erred in its determination, the order should be vacated.
The facts relevant to the present appeal are as follows: On October 21, 1963, the appellant, James Miller, was
[ 325 Pa. Super. Page 528]
charged with the burglary*fn1 of a restaurant in Lebanon, Pennsylvania. After twenty hours of interrogation, without counsel being present, the appellant admitted the charges and signed a confession to that effect. On November 22, 1963 the appellant, on the advice of counsel, entered a plea of guilty to the burglary charge. He was sentenced to pay a fine of one hundred ($100.00) dollars, and to a term of eight (8) to sixteen (16) years imprisonment.
Subsequently, after exhausting his state court remedies, the appellant petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The appellant alleged, inter alia, that his trial counsel was ineffective in that he did not inform the appellant that he represented the victim of the alleged burglary in an unrelated civil matter. The Federal Court granted the requested relief and entered an Order directing that appellant be released from custody within sixty (60) days unless during that time he was retried with the effective assistance of counsel. See United States ex rel. James A. Miller v. David N. Myers, 253 F.Supp. 55 (E.D.Pa. 1966).
The appellant then filed, in the court below, a motion to suppress his confession. This motion was never ruled on; however, on September 19, 1966, an order was issued releasing the appellant from prison. The appellant was never retried on the burglary charge.
On May 14, 1981, the appellant filed his motion to expunge the burglary conviction from his criminal record. Hearings were held on October 1, 1981 and February 1, 1982. In an order dated February 23, 1982, the Honorable G. Thomas Gates denied the appellant's motion to expunge. This appeal followed.
The appellant raises only one issue for our consideration; i.e., whether the lower court erred in denying the expungement motion, without requiring the Commonwealth to meet its burden of proof. That burden was delineated by our supreme court in Commonwealth v. Wexler, 494 Pa. 325, 331,
[ 325 Pa. Super. Page 529431]
A.2d 877, 880 (1981): "[I]f the Commonwealth does not bear its burden of proof beyond a reasonable doubt . . . or admits it is unable to bear its burden of proof . . ., the Commonwealth must bear the burden of justifying why the arrest record should not be expunged." (Emphasis in original). This standard was further explained by the court in Commonwealth v. Chacker, 320 Pa. Super. 402, 408-411, 467 A.2d 386, 389-90 (1983), where it was stated:
We read the unequivocal language in Wexler to foreclose explicitly a hearing court from continuing to shift the burden of persuasion to the petitioner seeking expungement merely because the Commonwealth made out a prima facie case of guilt on the part of the petitioner.*fn2 Thus, under Wexler, the burden to present compelling evidence against expungement is placed upon the Commonwealth if it has failed to establish the accused's guilt beyond a reasonable doubt (e.g., before the court of common pleas,) or the Commonwealth "admits that it is unable to bear its burden of proof." (Footnote omitted).
A review of the transcripts of the two hearings at which expungement was at issue, reveals that, with respect to the appellant's guilt, the Commonwealth produced only the following "evidence:"
Q. Taking you back to this 1963, No. 1 [sic, 10], September; you say you weren't represented by Mr. Whitman then?