Commonwealth v. Iacino
| Decision Date | 05 October 1979 |
| Citation | 411 A.2d 754,270 Pa.Super. 350 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Margaret IACINO. |
| Court | Pennsylvania Superior Court |
Argued April 12, 1979.
Frances S. Palmer, Asst. Dist. Atty., Mercer for Commonwealth, appellant.
Stephen J. Mirizio, Sharon, for appellee.
Before CERCONE, President Judge, and PRICE, VAN der VOORT, SPAETH HESTER and WIEAND, JJ.
This is an appeal from the Order of the Court of Common Pleas of Mercer County, Criminal Division, directing the appropriate custodians of criminal records to expunge the official and unofficial records pertaining to charges at the above term and number. The procedural history and facts relevant to the issue are as follows:
Appellee was one of four persons arrested in an apartment in Hermitage Township in Mercer County on November 8, 1972. She was later indicted by the grand jury on ten counts as follows:
(1) Unlawful possession of four ounces of marijuana in violation of Act 64 of 1972, Section 13(a)(16).
(2) Conspiracy with Mark DiBattiste, Doreen J. Price and John DiBattiste and others to possess marijuana in violation of 18 P.S. 3402 (4302).
(3) Unlawful possession of four ounces of marijuana with intent to deliver in violation of Act 64 of 1972, Section 13(a)(30).
(4) Conspiracy with Mark DiBattiste, Doreen J. Price and John DiBattiste concerning the possession of the marijuana with intent to deliver in violation of 18 P.S. 3402 (4302).
(5) Unlawful possession of 189 capsules of Secobarbital, a Schedule III drug, in violation of Act 64 of 1972, Section 13(a)(16).
(6) Conspiracy with Mark DiBattiste, Doreen J. Price and John DiBattiste concerning possession of Secobarbital, in violation of 18 P.S. 3402 (4302).
(7) Unlawful possession of 189 capsules of Secobarbital with intent to deliver in violation of Act 64 of 1972, Section 13(a)(30).
(8) Conspiracy with Mark DiBattiste, Doreen J. Price and John DiBattiste concerning delivery of Secobarbital in violation of 18 P.S. 4302.
(9) Unlawful possession of 2 capsules of Nembutal in violation of Act 64 of 1972, Section 13(a)(16).
(10) Conspiracy with Mark DiBattiste, Doreen J. Price and John DiBattiste concerning possession of Nembutal in violation of 18 P.S. 4302.
The arrest was the result of the execution of a search warrant secured for the premises appellee was residing in with one John DiBattiste. Police officers entered the premises to arrest DiBattiste pursuant to a warrant for sale of a controlled substance. He was later tried, convicted, and sentenced but all evidence secured in the search of the premises was suppressed because of the manner of execution of the arrest warrant on DiBattiste. Subsequently, all charges against appellee were Nolle Prossed.
Appellee filed a Petition to Expunge and a hearing was held on September 6, 1977. Appellee testified that although she had secured a real estate license in Pennsylvania, she was unable to do so in Ohio because of her arrest record. The question on the application was: "Have you ever been arrested?" On September 6, 1977, the lower court entered an order denying appellee's petition. Appellee filed an appeal, which was subsequently withdrawn, and an amended petition filed with the lower court under the auspices of Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976). A hearing was held on the amended petition on December 28, 1977, incorporating the earlier testimony into the record. On January 23, 1978, the Honorable Albert E. Acker granted the prayer of appellee's petition. The Commonwealth filed a timely appeal from the order granting expungement.
Appellant contends the lower court erred in granting the Petition to Expunge contrary to the provisions of the Controlled Substance, Drug, Devise and Cosmetic Act. Act of April 14, 1972, P.L. 233, No. 64, Section 1 et seq.; 35 P.S. 780-101 et seq.
The section entitled, "Expunging Criminal Records", 35 P.S. 780-119 provides as follows:
Although appellee clearly was charged with violating Clause 30 of subsection (a) of section 13, (35 P.S. 780-113(a)(30)) a reading of 35 P.S. 780-119 indicates expunction pursuant to its provisions is a matter of right and is to take place automatically within five days after withdrawal, dismissal or acquittal in court. It is a matter of right only once to have a record expunged provided you were not charged either with a Clause 30 violation, or under a prior Controlled Substance Act of the Commonwealth. We do not interpret this section to mean that anyone charged with a violation of Clause 30 is precluded from filing a petition to expunge an arrest record. On the contrary, section (c) of 35 P.S. 780-119 clearly provides otherwise. We have held that the right of an accused to petition for expungement is an adjunct to due process and is not dependent upon express statutory authority. Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979); Commonwealth v. Malone, supra.
Recently, we have further held that expunction is proper only where acquittal is consistent with a finding of real innocence and is not the result of legal technicalities unrelated to questions of guilt or innocence. Commonwealth v. Rose, supra. Furthermore, in Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978), we held that once a prima facie case had been proven by the Commonwealth, the accused had the burden of affirmatively demonstrating nonculpability. Upon such a showing, the court should then weigh the Commonwealth's interest in retaining the record against the accused's interest in being free of whatever disabilities were caused by the criminal record.
However, these cases were decided subsequent to the instant case, and are inapposite. The controlling standard as set forth in Wert v. Jennings, 249 Pa.Super. 467, 378 A.2d 390 (1977); Commonwealth v. Malone, supra, was for the court to balance the Commonwealth's interest in maintaining the record against the petitioner's right to be free from harm ancillary to the arrest record. Under this standard, the Commonwealth is required to come forward with compelling evidence to justify retention of the information. The sole reason advanced by the appellant to justify retention of the records is the possibility that companion cases would also require expungement due to the fact that appellee was charged along with others in the DiBattiste indictment, which was also nolle prossed. Appellee testified as to her problem in obtaining a real estate license as a result of her arrest record. The lower court in balancing the interests decided the appellant had not advanced an adequate reason to retain the record of arrest.
Accordingly, since we find the provision of the Controlled Substance Act relating to expungement is inapposite, and there has been no abuse of discretion by the lower court, we hereby affirm the Order of January 23, 1978.
VAN der VOORT, J., concurs in the result.
I agree with Judge HESTER that appellee had a right independent of her right under section 119 of the Controlled Substance, Drug Device and Cosmetic Act, to have her arrest record expunged. I also agree that the lower court here properly ordered the record expunged. As my analysis in reaching this conclusion differs somewhat from Judge HESTER's, however, I offer this concurring opinion.
Judge HESTER applies Commonwealth v. Malone, 244 Pa.Super. 62 366 A.2d 584 (1976), but declines to apply Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978), which to some extent limited Malone. His reasoning is that since the lower court's decision in this case was made before Mueller, Mueller does not apply. In my view,...
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