Chase v. King ( 1979 )

WIEAND, Judge:

Appellant, Stuart Cuspard Chase, appeals from the denial of his petitions to expunge the records of two separate arrests. We will affirm the order denying expungement of the record pertaining to appellant’s arrest, trial and acquittal of theft by unlawful taking. The record of his arrest on a charge of assault, however, should have been expunged, and the order denying the same will be reversed.

Appellant’s arrest for assault was based on a private complaint filed by his wife following a domestic quarrel in 1974. At the time of preliminary hearing before the magistrate, this charge was withdrawn. The theft charge arose out of a jewelry store robbery occurring in Harrisburg in 1976. An eyewitness identified appellant from a police photograph and gave incriminating testimony at his trial on a charge of theft by unlawful taking. The jury, however, returned a not guilty verdict.

In Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976), this Court recognized a limited right to expungement of arrest records under “appropriate circumstances.” This right was said to be an “adjunct to due process” and was based upon a need to balance the interest of an accused in his good name and freedom from unwarranted punishment against the legitimate law enforcement need to maintain records of an individual’s prior criminal arrests.

In the instant case, the Commonwealth presented no compelling reason for retaining the record of an arrest arising from a domestic quarrel. The charge had been withdrawn by the complainant, and was not returned to court by the magistrate. Under these circumstances, appellant should be freed from the punishment of ill repute, albeit slight, which would result from retention of the record of his arrest. See: Commonwealth v. Malone, supra, where charges had been dismissed at the preliminary hearing; and Wert v. Jennings, 249 Pa.Super. 467, 378 A.2d 390 (1977), where charges had been nol pressed because the Commonwealth was unable to establish a prima facie case.

Appellant’s trial and acquittal of theft, however, calls for a different approach. In Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978), this Court held in an opinion by Judge (now President Judge) Cercone that “where the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will then have the burden to affirmatively demonstrate nonculpability at a hearing, otherwise his petition to expunge will be denied.” 258 Pa.Super. at 223, 392 A.2d at 765. While the balancing test must nevertheless be applied, the question “is not whether expungement is desirable . . . but whether it is constitutionally required; that is, whether it is necessary in order to prevent punishment of an innocent person.”

In the instant case, appellant suggests that the theft charge against him was a case of mistaken identity. He concedes, however, that the Commonwealth made out a prima facie case against him at trial. Indeed, the court below found that the “witnesses who identified [appellant] from the police photograph made positive in-court identification.” ¹ Appellant failed to demonstrate affirmatively a lack of culpability or a mistaken arrest. His evidence demonstrated only that he had been exonerated of the charge by a jury which had not been convinced of his guilt beyond a reasonable doubt. Appellant has also failed to demonstrate a need for expungement in order to avoid economic loss or personal embarrassment. Although he was suspended from his employment as a postal worker during the pendency of the theft charge, his acquittal resulted in immediate reinstatement.

Under these circumstances, we conclude that the public interest requires retention of the record of those criminal proceedings brought against appellant as a result of the jewelry store robbery.

The order denying expungement of appellant’s record of an arrest for theft by unlawful taking is affirmed. The order denying expungement of the record of his arrest for simple assault is reversed, and the case is remanded for entry of an order consistent with the foregoing opinion.

HOFFMAN, J., files a concurring and dissenting opinion.

1 . This quoted statement appears in the opinion filed by the trial court. The comment of the hearing judge upon which the dissenting opinion relies and which it refers to as “a finding of fact on the record” occurred during an exchange between the court and counsel at the expungement hearing and before completion thereof. The lower court’s written opinion contains no finding that would exonerate appellant from culpability.