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May 21, 1997


Appeal from the Judgment of the Superior Court dated July 28, 1995, at No. 1589 Philadelphia 1993, affirming the Order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, granting expungement at M.C. 92-03-4449 (Misc. No. 92-915542) Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ.

The opinion of the court was delivered by: Flaherty



Appellee, a schoolteacher, was tried for indecent assault and corrupting the morals of a minor, and acquitted in a bench trial in the Philadelphia municipal court. He petitioned for expunction of his arrest record, which was granted by the court of common pleas. The Superior Court questioned the authority of Commonwealth v. Wexler, 494 Pa. 325, 330, 431 A.2d 877, 879 (1981), and affirmed the order of expungement on other grounds. We allowed this appeal to review the Superior Court's application of Wexler and to examine the question of expungement of an arrest record in the context of an acquittal at trial.

The record of appellee's bench trial in the municipal court discloses the following facts. Appellee, D.M., was employed as a substitute music teacher at a middle school in the Philadelphia school district. On February, 21, 1992, an incident occurred between appellee and a student. During the first period of the day, appellee was assigned a class consisting of students with disciplinary, social, and academic problems. During the first period, four students volunteered to assist appellee in cleaning and straightening up the classroom and office during a later period. The complainant, an eleven-year-old girl, and three other students arrived in the classroom during the third period. When they arrived, appellee was seated in his office, which had a door to the classroom and a large window which formed part of the wall between the office and the classroom. Appellee assigned the complainant to straighten up papers in his office while the other girls were to straighten up the classroom. Seated at his desk, appellee could see the girls in the classroom behaving disruptively, so he got up, passed behind the complainant in the two feet of space between the desk and the wall, and entered the classroom to control the girls.

The complainant testified that appellee touched her breast area and pushed up against her buttocks with his erect penis for several seconds when he left the office. She also testified that he apologized at the end of the class period, asking her not to mention it to anyone because he needed his job. Appellee testified categorically that he did not touch the girl inappropriately, and that he inadvertently bumped into her with his left hip on the way out of the office because the space was so confined. He testified that he thought nothing of it because his attention was focused on the girls misbehaving in the classroom. Only later in the period, when the complainant told him, "What you did was wrong," did he remember the incident and apologize. The defense called seven character witnesses who testified that appellee had a reputation for veracity and for being a law-abiding citizen.

After hearing closing arguments by counsel, the court delivered the following verdict:

The court finds this case most difficult. Independently I find each witness to be credible. You can say how can he do that? Well, I'm impressed with both witnesses. Even though there is of course divergence in some of the story. The standard is beyond a reasonable doubt. I realize both witnesses are of a credible nature. The law is that character witnesses alone can create a reasonable doubt. And in this case a deciding factor [is] the character witnesses who have created a reasonable doubt in my mind. Therefore, I find you not guilty.

A month after this acquittal, appellee petitioned the court of common pleas to expunge his arrest record. Following a hearing, the court granted the petition. The court stated:

I am going to grant it. He was found not guilty at trial. The defendant was found not guilty at trial after a full trial. We don't know the reason for this not guilty, presumably it's because the Commonwealth witnesses were not believed. The Commonwealth had an opportunity to fairly address the issue in the case, factual issue, present them and they had their day in court. A full day in court and there was a resolution by the finding of the not guilty. There is nothing else remaining other than the fact that there is an allegation which has been proven--not been proven rather, not been proven which is what this country is all about.

In its written opinion in support of the expungement order, the court quoted the factors set forth in Commonwealth v. Wexler, 494 Pa. 325, 330, 431 A.2d 877, 879 (1981). The court held that the Commonwealth did not sustain its burden of overcoming appellee's interest in expungement following his acquittal. Part of its reasoning was: "The stigma of an arrest for indecent assault and corrupting the morals of a minor is uniquely disproportionate to the [ease] with which such an accusation can be made." Slip op. at 6, October 13, 1993.

On appeal, the en banc Superior Court affirmed the expungement order. Commonwealth v. D.M., 444 Pa. Super. 299, 663 A.2d 792 (1995). The Superior Court's application of Wexler, (supra) , is not entirely clear. In discussing Wexler, the court stated:

While it is true that Wexler espouses a balancing test that in some cases would include some reconsideration of the "strength of the Commonwealth's case" and other trial factors, several aspects of the decision deserve consideration. 1) Wexler was dealing with expunction of records of petitioners whose criminal liability was extinguished by nol pros and not, as here, by acquittal at trial. 2) The approved language by Judge Spaeth in Iacino was from a Concurring opinion with one joinder[ *fn1 ] and was also from a case where non-culpability was not established by verdict (nolle prosse after suppression of evidence).

Commonwealth v. D.M., 444 Pa. Super. at 303-04, 663 A.2d at 794. We reiterate the authority of Wexler and the balancing test approved therein as the means of deciding petitions to expunge the records of all arrests which are ...

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