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COMMONWEALTH PENNSYLVANIA v. ROBERT B. MCKEE. (TWO CASES) (08/25/86)

filed: August 25, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT B. MCKEE. (TWO CASES)



Appeal from the Order of November 1, 1982 in the Court of Common Pleas of Chester County Criminal Division No. 1332-79. Appeal from the Order dated November 1, 1982 in the Court of Common Pleas of Chester County, Criminal Division, No. 1202-82.

COUNSEL

Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellant.

Kathleen J. Boyer, Assistant Public Defender, West Chester, for appellee.

Montemuro, Johnson and Cercone, JJ.

Author: Cercone

[ 357 Pa. Super. Page 334]

These consolidated Commonwealth appeals are from two orders of the Court of Common Pleas of Chester County expunging all records possessed by all agencies of government with respect to appellee Robert B. McKee regarding two acquittals in separate trials for rape and related offenses. In each of the underlying cases, following a full trial, appellee was acquitted by a jury. He subsequently filed a petition to expunge all criminal records related to those two cases.

The Commonwealth has brought this appeal raising several issues for our consideration. It first alleges that the lower court erred in finding that the Commonwealth had not shown compelling reasons for the retention of appellee's arrest records. We agree and, therefore, we need not address the remaining issues raised by the Commonwealth.

In each of the underlying cases, the complaining witness testified extensively as to the sequence of events which led to the alleged rape. At each trial, appellee did not deny that intercourse had occurred but testified that the sexual acts were consensual and not forcible. Both times, appellee was acquitted by a jury.

At the expunction hearing, the Commonwealth submitted extensive expert testimony by which it showed that the facts, as alleged by the complaining witnesses, followed a distinctive and recognizable modus operandi. The Commonwealth presented testimony that sex offenders usually fit into one of several recognized classifications. A Commonwealth witness testified as to the classifications of sex offenders as formulated by both the Federal Bureau of Investigation and by law enforcement authorities in New York state. Based on appellee's criminal record and the incident reports, the witness concluded that the two underlying

[ 357 Pa. Super. Page 335]

    cases fit the New York state offense classification of "Predatory Rapist" and the Federal Bureau of Investigation classification of "Anger Rapist." Appellee presented no evidence to challenge the conclusions asserted by the Commonwealth's expert witnesses, nor did he present any testimony on his own behalf at the expunction hearing.

The Commonwealth alleges that the lower court erred (1) in taking judicial notice of the prejudice which appellee may suffer by having a criminal record and (2) in concluding that the Commonwealth's interest in retaining appellee's arrest records was less compelling than appellee's interest in expunction.

The Supreme Court of Pennsylvania has specifically set forth a balancing test to be applied in these cases which requires the court to consider both the interests of the ...


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