Appeal from the Order Entered March 5, 2008 In the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. CP-51-CR-0603191-1986 & CP-51-CR-0519001-1986.
The opinion of the court was delivered by: Bender, J.
BEFORE: BENDER, SHOGAN, JJ. and McEWEN, P.J.E.
¶ 1 V.A.M. (Appellant) appeals from the order denying his petition for expungement of his arrest and conviction record after he was granted a new trial on charges of rape, involuntary deviate sexual intercourse, robbery, and criminal conspiracy and the re-trial did not take place because the Commonwealth nolle prossed all charges, having failed to locate the complaining victim. We reverse and remand.
¶ 2 The trial court set forth the factual and procedural history of this case as follows:
In 1986, Appellant, [V.A.M.], was arrested and subsequently charged with Rape, Involuntary Deviate Sexual Intercourse, Robbery, and Criminal Conspiracy. He was later convicted of these crimes in 1987 and sentenced to 12 to 24 years in prison. [V.A.M.] served more than ten tears in prison for these crimes until his convictions were vacated in 1996 by the Honorable Joseph Papalini because there was new evidence presented that DNA of three men was found on the victim's clothing, but none of the DNA samples matched [V.A.M.'s] DNA. Once the convictions were vacated, a new trial was ordered by Judge Papalini so this new evidence could be considered. The Commonwealth thereafter nolle prossed all charges against [V.A.M.].
[V.A.M.] filed a Petition for Expungement of his criminal record for these arrests and convictions and a hearing was held before this Court on March 5, 2008, where the Court denied [V.A.M.'s] Petition. [V.A.M.] filed this timely appeal of the Court's decision on April 2, 2008.
On April 7, 2008, this Court ordered [V.A.M.] pursuant to Pa.R.A.P. 1925(b) to file with the Court a Concise Statement of Matters Complained of on Appeal. [V.A.M.] filed his [Rule] 1925(b) Statement with the Court on April 28, 2008.
At [V.A.M.'s] hearing on March 5, 2008, Bill Fisher, the Assistant District Attorney in Philadelphia, who tried [V.A.M.'s] original case back in 1987, testified to the evidence that was presented at [V.A.M.'s] trial that led to his conviction by a jury. This evidence included the victim making a clear identification of [V.A.M.]; a composite sketch of [V.A.M.] drawn a few days after the victim was raped that matched a photograph of [V.A.M.]; and the testimony of the unwavering victim. (N.T., 3/5/08, pgs. 29-36). When asked whether the DNA results, showing none of [V.A.M.'s] DNA on the victim's underpants, had changed his opinion on the case, he stated that "In terms of excluding the defendant as the perpetrator of the crime, yes, I believe there is something wrong with the DNA. I don't believe you can exclude this Defendant based on that DNA." (N.T., 3/5/08, pg. 48). The reasons Mr. Fisher gave for this belief were that the victim testified that only two men had raped her and there was the semen of three men found on her underpants and that DNA can last a very long time on garments and the semen found did not have to be from that particular incident. (N.T., 3/5/08, pg. 42).
Charlie Ehrlich, Assistant District Attorney, who was chief of the Family Violence and Sexual Assaults Unit in 1996, when the case against [V.A.M.] was nolle prossed, testified at the hearing in regard to why the case was nolle prossed. He testified that the reason the case was nolle prossed was because the District Attorney's Office could not find the victim, and if they had, they would have prosecuted the case. (N.T., 3/5/08, pg. 56). He was also asked if the DNA results affected his opinion of the case, and stated that "he does not feel that the results exclude [V.A.M.] as being the perpetrator in this case." (N.T., 3/5/08, pg. 57). His reasons for this include: the fact that there are stains on the victim['s] underpants from other people besides [V.A.M.] does not exclude him as DNA or biological stains can stay on panties for many years; the fact that a defendant does not have to ejaculate during a rape; and the fact that an adult female can be having sex with other partners where biological stains can stay on the panties even after they are washed. (N.T., 3/5/08, pgs. 57-58).
Trial Court Opinion (T.C.O.), 7/1/08, at 1-3.
¶ 3 As indicated by the trial court, Appellant appealed to this Court from the order denying his petition for expungement. In this appeal, Appellant raises the following issues for our review:
1. Did the Trial Court err as a matter of law in holding that it lacked the authority to expunge all records relating to [V.A.M.'s] arrest, subsequent trial and resulting prison term even though the Commonwealth chose to nolle pros all charges after [V.A.M.'s] convictions were vacated and he was granted a new trial based on after-acquired evidence?
2. Did the Trial Court err as a matter of law by first denying [V.A.M.'s] Petition to Expunge without relying on any of the factors set forth in Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981)[,] and then by improperly applying Wexler in its 1925(b) Opinion by: (i) wrongly shifting the burden to the Petitioner; (ii) finding that the Commonwealth's case was strong despite exculpatory DNA evidence that it could not explain beyond theoretical possibilities and based solely on the testimony from two prosecutors who, unremarkably, testified that they subjectively believed their case was strong but failed to ...