Com. v. Briley

• Decision Date: 06 June 1980
• Citation: 420 A.2d 582,278 Pa.Super. 363
• Parties: , 11 A.L.R.4th 947 COMMONWEALTH of Pennsylvania v. John BRILEY, Appellant.
• Court: Pennsylvania Superior Court

Page 582

420 A.2d 582

278 Pa.Super. 363, 11 A.L.R.4th 947

COMMONWEALTH of Pennsylvania v. John BRILEY, Appellant.

Superior Court of Pennsylvania.

Argued March 21, 1980.

Filed June 6, 1980.

James A. Burgess, Jr., Philadelphia, for appellant.

David M. McGlaughlin, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.

Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, WICKERSHAM, and HOFFMAN, JJ.

SPAETH, Judge:

This is an appeal from an order denying a petition for expungement of an arrest record. The appeal was originally argued before a three-judge panel of this court, but because of the importance of the issues raised and a potential conflict in our cases, reargument before the court en banc was ordered. Having heard reargument, for the reasons stated below we now reverse.

On May 28, 1975, appellant was arrested and charged with aggravated assault upon a police officer, resisting arrest, and failure of a disorderly person to disperse. Appellant was one of a large number of persons involved in a streetcorner celebration of the Philadelphia Flyers Ice Hockey Team's victory in the Stanley Cup Finals. Police were concerned that the crowd was becoming unruly, and posed a threat to passersby; they therefore took steps to disperse it. In the subsequent pushing and shoving, appellant was allegedly involved in an altercation with police, who arrested him. At a preliminary hearing, the district justice found a prima facie case, and ordered appellant bound over for trial. ¹ Shortly before trial, however, on February 19, 1976, the lower court entered an order admitting appellant into the Accelerated Rehabilitative Disposition Program (hereafter ARD), see Pa.R.Crim.P. 175 et seq., 19 P.S. Appendix, the conditions of admission being that he serve 18 months probation and pay a fine of $200. Appellant complied with these conditions, and on August 2, 1978, filed a petition for expungement of his arrest record. On October 2, 1978, a hearing was held, ² following which the lower court denied the petition. ³

In Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976), this court recognized, in an opinion by Judge HOFFMAN, that in certain circumstances substantive due process guarantees an individual the right to have his arrest record expunged. This right arises from the serious harm an individual may suffer from the Commonwealth's retention of his arrest record:

"Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual's reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal; or they may be considered by a judge in determining the sentence to be given a convicted offender."

Id. at 68-69, 366 A.2d at 587-88, quoting Menard v. Mitchell, 139 U.S.App.D.C. 113, 117, 430 F.2d 486, 490-91 (1970).

Accord: Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979); Wert v. Jennings, 249 Pa.Super. 467, 378 A.2d 390 (1977). See also Gough, The Expungement of Adjudication Records of Juvenile and Adult Offenders: A Problem of Status, 1966 Wash.U.L.Q. 147, 150-62 (describing at length the kinds of prejudice a person with a criminal record may suffer). The fact that an individual may suffer serious harm from the Commonwealth's retention of his arrest record does not by itself give the individual the right to have his arrest record expunged; it must also appear that the harm is so unwarranted that the interests of justice compel the court to order expungement of the record. Whether in a particular case justice does compel expungement is determined by balancing the individual's interest in the expungement of his arrest record against the Commonwealth's interest in retaining the record. This balancing, in turn, involves consideration of such factors as the strength of the Commonwealth's evidence of the individual's guilt, the Commonwealth's reasons for wishing to retain the arrest record, the type and seriousness of the offense, the individual's age at the time of the arrest, his employment history, whether he has any other criminal record, whether he has a history of drug or alcohol abuse, his stability in the community, the length of time that has elapsed between the arrest and the petition to expunge, and the adverse consequences the petitioner may suffer should expungement be denied. Commonwealth v. Iacino, --- Pa.Super. ---, 411 A.2d 754 (J. 700/79, filed Oct. 5, 1979) (concurring opinion by SPAETH, J., joined by CERCONE, P. J.).

Past cases have presented this court with a variety of factual situations in which the interests of the individual and the Commonwealth had to be balanced. In Commonwealth v. Malone, supra, we held that due process required the Commonwealth to present compelling evidence justifying the retention of the arrest record when, because of the Commonwealth's failure to make out a prima facie case, the accused had been discharged at his preliminary hearing. We believed that given such demonstrated insubstantiality of the Commonwealth's evidence of the accused's guilt, this heavy burden of proof upon the Commonwealth was required. Similarly, in Wert v. Jennings, supra, we held that due process required the Commonwealth to present compelling evidence justifying the retention of the arrest record of an osteopathic surgeon who had been indicted by a grand jury for perjury and conspiracy but who was never tried because the indictments were subsequently nol pros'd upon the district attorney's confession that he would be unable to establish a prima facie case at trial. Again, in Commonwealth v. Iacino, supra, we affirmed an order directing the expungement of the arrest record of an accused who had been indicted for conspiracy and narcotics offenses but who was never tried because the district attorney nol pros'd the indictments. Finally, in Commonwealth v. Rose, supra, we ordered the expungement of the arrest record of an individual who had been acquitted of retail theft because the Commonwealth failed to establish her guilt at trial before a district magistrate.

In counterpoise with the above cases, where a heavy burden was placed on the Commonwealth, is Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978). In Mueller, the Commonwealth had made out a prima facie case of an accused's guilt at his preliminary hearing but was later precluded from trying the accused because he secured his discharge under Pa.R.Crim.P. 1100, 19 P.S. Appendix. In an opinion by Judge (now President Judge) CERCONE, this court held that in such circumstances the accused does not have a constitutional right to the expungement of his arrest record unless he affirmatively establishes his non-culpability. The reason this burden was placed upon the accused was the perception that the individual's interest in having his arrest record expunged is far outweighed by the Commonwealth's interest in retaining the arrest record of a person whom it believed should have been prosecuted and convicted, whose guilt was indicated by evidence produced at the preliminary hearing, and who was not tried only because of his reliance upon a technical rule that in no way bore upon his guilt or innocence of the charges against him.

The present case differs materially from Mueller. Although the Commonwealth established a prima facie case at appellant's preliminary hearing, its prosecution was not involuntarily terminated because of appellant's actions. Rather, appellant was not tried because the District Attorney of Montgomery County, in the exercise of his discretion under Pa.R.Crim.P. 176, believed that appellant was a good candidate for placement in the ARD program and accordingly moved the lower court for appellant's admission into the program. For this reason, the present case is closer to Rose, Wert, and Iacino than to Mueller. True, in Rose the accused had been acquitted; the Commonwealth's judgment here that appellant should be placed in the ARD program is not equivalent to a jury's acquittal. In practical effect, however, it is not much different, for upon appellant's successful completion of the program, the Commonwealth was forever barred from convicting him on the charges lodged. Moreover, the fact that in Rose the Commonwealth was unable to prove the accused's guilt, and in Wert expressed lack of confidence in its ability to prove the accused's guilt, whereas here there is no affirmative evidence that the Commonwealth would have failed in its proof had appellant been tried, strengthens appellant's contention that justice compels the expungement of his arrest record. In Rose and Wert, though the Commonwealth failed in its proof, at least by its prosecution it demonstrated its belief that the defendants were guilty and deserving of conviction, and its prosecution of them lent credence to the assertion that a need existed to retain the defendants' arrest records for future use. Here, by moving the lower court for appellant's admission into the ARD program, the Commonwealth demonstrated its belief that the nature of appellant's offense and his background and character were such that the interests of society would be best served were he not prosecuted, but diverted out of the criminal justice system as quickly...