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DERRICK JACOBS. APPEAL COMMONWEALTH PENNSYLVANIA (06/08/84)

submitted: June 8, 1984.

IN THE INTEREST OF DERRICK JACOBS. APPEAL OF THE COMMONWEALTH OF PENNSYLVANIA


No. 1483 PHILADELPHIA 1983, Appeal from the Order Entered May 4, 1983 in the Court of Common Pleas of Philadelphia County, Family Court Division, Juvenile Section, Nos. 11694-80-1 D.C. No. 23-80-62183, 4720-82-6, D.C. No. 6-82-35156.

COUNSEL

Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.

Tamilia, Johnson and Hester, JJ. Johnson J., filed a concurring opinion.

Author: Tamilia

[ 334 Pa. Super. Page 615]

In this case, the Commonwealth appeals the expungement of a juvenile record in the face of statutory restrictions it alleges were ignored by the court below. Issues raised by this case are:

(1) Whether an increase in the restriction imposed by the legislature on the expungement of a record of a juvenile consent decree, after that decree was entered, serves as an ex post facto increase in penalty.

(2) Whether the court without a hearing, may expunge the record of a petition filed by the Commonwealth, when said petition was refiled after it had been withdrawn without prejudice by the Commonwealth to enable respondent to enter the service, and he failed to do so.

[ 334 Pa. Super. Page 616]

We answer both questions in the negative and reverse the court below.

On December 5, 1980, respondent, Derrick Jacobs, age 16, was apprehended inside a Temple University women's dormitory in possession of a seven (7) inch butcher knife, a length of clothes line, and a cloth and wire gag. As a result of this activity a petition was filed in the Juvenile Section, Family Division, Court of Common Pleas of Philadelphia County. Subsequently, pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6340, a consent decree was entered. At the successful completion of the terms of probation, pursuant to the consent decree, the case was closed.

On June 3, 1982, the respondent was found on the premises of the Pepper, Hamilton and Scheetz law firm, in the company of another, without permission of the proprietors, while the premises were closed to the public. By petition dated June 7, 1982, he was charged with Burglary (F), Theft, Receiving Stolen Property, Criminal Trespass (F), and Criminal Conspiracy. Before this petition reached an adjudicatory hearing, it was withdrawn on June 28, 1982 by the Commonwealth, without prejudice, to enable the respondent to enter the service. When the district attorney learned some time later that respondent had not entered the service, that office reinstated the petition and sought an adjudicatory hearing. On January 13, 1983, the Juvenile Section Judge declined to allow such a hearing. Subsequently, on April 11, 1983, a petition for argument and expungement of the record was presented and continued to May 4, 1983, when expungement of the entire juvenile record was granted. This appeal followed.

It is clear that under the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq. (hereafter called C.H.R.I.A.) expungement of the record was improper unless there was a violation of the ex post facto section of the Federal Constitution, U.S. Constitution, Article I, § 10, or the Pennsylvania Constitution, Article I, § 17.

[ 334 Pa. Super. Page ...


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