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05/14/97 COMMONWEALTH PENNSYLVANIA v. EDWARD

May 14, 1997

COMMONWEALTH OF PENNSYLVANIA,
v.
EDWARD DRUMMOND, APPELLANT



Appeal from ORDER Entered March 18, 1996, in the Court of Common Pleas of PHILADELPHIA County, CRIMINAL, No. M.C. 9501-0652, M.R. 96-000979. Before YOUNGE, J.

Before: Del Sole, Popovich and Olszewski, JJ., Popovich, J., Concurs in the Result. Opinion BY Olszewski

The opinion of the court was delivered by: Olszewski

OPINION BY OLSZEWSKI, J.:

In the early morning hours of January 6, 1995, Detective Burke, a Philadelphia police officer, was dispatched to the residence of Michele and Edward Drummond. Upon his arrival, the officer encountered Michele Drummond, distraught and obviously injured. Michele told the officer that, at some point on the previous evening, her husband, Edward, had punched her in the face and scalded her arms and chest with boiling water. Additionally, Michele stated that, hours later, Mr. Drummond returned and physically assaulted her yet again. Detective Burke personally observed that Michele's skin was bruised, discolored and partially blistered.

Based upon Detective Burke's interview with Michele, as well as his personal observations, an arrest warrant was issued for Edward Drummond. Later that evening, Mr. Drummond surrendered to the police and was charged with aggravated assault, simple assault and recklessly endangering another person.

A preliminary hearing was scheduled for January 17, 1995, at which time the Commonwealth requested a continuance due to the victim's reluctance to testify against her husband. Accordingly, the hearing was rescheduled to February 23, 1995. Following the victim's second refusal to testify, the charges against Mr. Drummond were dismissed.

On February 7, 1996, Mr. Drummond filed a petition to expunge his criminal record in which he asserted that he had no prior arrests or convictions and that the continued record of the present charges caused him embarrassment and irreparable harm. A hearing was held pursuant to this petition on March 18, 1996. After brief arguments were made by counsel, the Honorable John M. Younge denied the petition without prejudice, stating that appellant could re-petition the court for expungement at a later time. This appeal follows.

An individual who is arrested and charged, but not convicted, of a crime may petition the court for an order expunging the records of such arrest. See 18 Pa.C.S.A. § 9122. The decision of whether to grant or deny such a request lies in the sound discretion of the trial Judge, who must balance the competing interests of the petitioner and the Commonwealth. See, e.g., Commonwealth v. Dobson, Pa. Super. , , 684 A.2d 1073, 1076 (1996); Commonwealth v. Butler, 448 Pa. Super. 582, , 672 A.2d 806, 808 (1996). Mindful that the Commonwealth must prove a compelling interest in retention of the disputed record, the court must consider the individual's right to be free from the ancillary harm that may flow from the maintenance of the record versus the Commonwealth's specific, articulated, arguments opposing expungement. Id.

In order to aid trial Judges in this important function, our Supreme Court long ago outlined five factors that the trial court must address in considering whether expungement in a given case is proper. Specifically, the trial court must consider:

(1) the strength of the Commonwealth's case against the petitioner;

(2) the reasons the Commonwealth gives for wishing to retain the arrest record;

(3) the petitioner's age, employment history and criminal record;

(4) the amount of time that has elapsed between the arrest and the filing of the petition; and

(5) the specific adverse consequences the petitioner may endure should the ...


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