*1 645, Bronson, 66, 71, A.2d v. Pa. (1974), Washington quoting Commonwealth ex rel. v. Maroney, 427 Pa. 352-353 235 A.2d (1967) (emphasis present rec- original). Given ord, I would trial coun- find difficult to characterize strategy “designed sel's behavior as a to effectuate af- Nevertheless, client’s interests.” counsel should be opportunity forded the he reasons hearing judge have acting had for were as he If the did. as- determine that ineffective had received sistance, appellant argue permitted file and should be post-trial pro appeal to tunc, motions nunc taken inef- from their found denial. If counsel were not fective, judgment reinstated. sentence should be
HOFFMAN, J., joins opinion. in this
Argued March Decided Dec. *2 McNees,
David B. Disney, Nurick, Harris- Wallace & appellant. burg, for Atty., Harris- Dist. MacIntyre,
Marion E. Second Asst. burg, appellee. JACOBS, Judge, WATKINS,
Before President PRICE, HOFFMAN, CERCONE, der VOORT VAN SPAETH, JJ. Judge:
HOFFMAN, impression question The instant case raises a of first Pennsylvania: entitled to a whether an accused *3 expunge- hearing he to determine whether has ment of his arrest the are dismissed record after preliminary hearing. at the Harris- 16, 1975, appellant
On June was arrested charged involun- burg, and commit with solicitation to tary the ar- deviate sexual At the time intercourse.1 police finger- appellant’s photograph the and rest, took prints part “booking” procedure. On as of the normal 23, 1975, charge against appellant was June the dis- the preliminary the hearing. missed at Dauphin Thereafter, petition appellant filed a County requested he Court of Pleas in which Common police expunged that the court or- the record be and that Harrisburg der the request Police a return of Chief of appellant’s record from the F.B.I. 19 P.S. § police authority to other to forward records fighting hearing agencies. Appellant requested crime the merits of his claim. Code, 6, 1972, 1. The Crimes Act December P.L. No. 1; 902, 3123(5). § §§ Pa.C.S. 27, 1927, 4; amended, 29, 1937, April § 2. Act of P.L. as June 2; April 28, 1943, § § P.L. P.L. August peti- 20, 1975, the On the lower court denied tion hearing. part, without lower the relevant opinion this “[appellant] court’s asked stated that Harrisburg Po- Court to order made the Department, Pennsylvania lice the the Police and State Investigation expunged Federal Bureau of to be no destroyed. their files Unfortunately there Pennsylvania authority for such action. statutory au- only lack of is not
“. . . [T]here legis- relief but Pennsylvania grant thority in ”. . . contrary . appears to the to be lative intent appeal followed. relief properly denied Whether first, did questions: turns on the resolution of two expunge police to authority court have the to order exists, under authority second, record; and, if properly what exercised. circumstances is Pennsylvania Initially, argues that the Commonwealth By expungement. courts lack the to order “to statute,3 Pennsylvania are authorized Police State de- pictures, procure photographs, file for record scriptions, information fingerprints, such other may . . . persons be of all pertinent, this within crime hereafter . convicted Further, . . . .” P.S. § Commonwealth of bureaus duty “. .it of the chiefs shall be daily, to to furnish all cities within fingerprints copies Police, State *4 persons arrested and, possible, photographs, of all if of jurisdiction charged the commission within with their fugitives felony, are they to believe have reason Finally, § justice . . . .” 19 P.S. § men- person any “[n]eglect of or refusal makes required herein report in this act to make the tioned ” con- The a misdemeanor. 27, 1927, supra, April n. of 3. Act “ onspicuous by
eludes that in this statuto- its absence [c] ry language judicial authority to or- reference to general der the au- destruction of arrest Such records. thority clearly fly would of the affirmative face duty imposed Pennsylvania on the Police State § complete system of develop carry 1404 to on a § duty is but- this identification. We note tressed of arrest which the destruction makes § establish, provisions records a criminal offense. These contemplating least, legislature not was judicial construing a expungement when it enacted laws system.” criminal identification
The lower reasoning opinion court relied on the of an in a similar Dauphin case County of Com- Court mon Pleas. Durham Straub, No. Misc. Docket 1973, the court held that The Sub- because Controlled stance, Drug, Device provides ex- and Cosmetic Act4 pungement of the arrest if dismissed are or the accused acquitted, legislature’s failure provide a remedy similar in other instances is evidence of a contrary. Further, to the approval cited analysis in Commonwealth v. Magaziner, 50 (1970): D. “The & C.2d act nowhere directs destruction of of that material in cases acquittal. Thus, police required local chiefs of are destroy such persons acquitted or whose bills of indictment by grand jury, lack dismissed and we power or authority positive to order them to do so. The direction contained in section requiring 5 of the act dis- attorneys trict destroy fingerprints persons acquit- 14, 1972, amended; April 4. Act seq., § P.L. 1 et No. § 35 P.S. seq. 780-101 et 1405(c) 5. Section provides attorneys district “[t]he several taken crime and keep arrange fingerprints, counties shall files provisions act, persons under the convicted destroy acquitted.” shall fingerprints persons of all Apparently, records, contemplates the statute two those sets maintained kept by attorney. and those the district Thus, § bearing 1405has no on the instant case.
67 other from all together complete ted, absence or to detectives sections of the of a direction act a shows photographs, destroy fingerprints officers to finger- destroy to limit directions to at- by kept prints acquitted district persons to those ‘Expressio unius torneys chief their detectives. ” est exclusio alterius.’ di decision Pennsylvania appellate court There is no rectly point. Appellant on three does cite citing stat problem. cases which refer to the Without proceeding, utory or constitutional basis for such unjust Supreme aggrieved Court stated that one expunge to contempt present arrest for motion could “ is the case [Appellant] his arrest record: contends re arrested, aas unjustly not moot because he has been However, a sult of which record. he now has now simple is in what proceeding remedy exists [Ap Criminal Division of Common Pleas Court. pellant] expunge the ar can there his motion body proper rest from his record. This Court is presented.” which such Common a motion should be 9, 253 w Magaziner ealth ex rel. Magaziner, 434 Pa. v. Magaziner A.2d distinguished 268 We Pa.Super. Zimmerman, attempting A.2d (1969), was because Zimmerman expunged. have the record a valid criminal conviction In dictum, however, implied who accused we that an acquitted expunged: “We has a to have his record compelled agree with the Commonwealth. not a involving case crime acquitted of a a defendant whose acquittal conduct since that furnishes no basis keeping the circum arrest Unlike alive. Magazi stances in Magaziner v. Commonwealth ex rel. [supra], ner, convict petitioner been case has in this con ed only way crime the record and the viction can exercise erased is a Governor’s power grant Pa.Super. at clemency . . .” discussing again 258 A.2d Finally, at 696. without recently that “[t]he stated right,
the basis of that we been weight that one clear holds *6 expungement falsely illegally is entitled to or arrested fingerprints his his record and removal of Pa. Fredericks, 235 v. files. . .” Commonwealth ex- for (1975). motion Super. 78, 340 505 No A.2d con pungement to do so Fredericks; in failure was made object right to to sub appellant’s stituted a waiver of the sequent unlawfully procured fingerprint-evidence. use
It
clear,
therefore,
appellate
seems
that our
recognize
courts
right
expunge
of an accused to seek
ment of an arrest
Murphy,
record. Cf.
v.
156
Sullivan
U.S.App.D.C. 28,
(1973). Although
478
re
F.2d 938
our
search does not
legal
indicate a stated
for that
basis
right
appellate
in our
decisions,
we believe that such
right
adjunct
is
process.6
an
ancillary
to due
The harm
to an arrest
is
record
obvious: “Information denominat
ed a
arrest,
may
known,
subject
if it becomes
an individual
to serious difficulties. Even if no direct
economic loss is involved,
injury
to an individual’s
reputation may be substantial. Economic losses them
may
selves
be both direct
Opportunities
and serious.
for
schooling, employment,
professional
or
may
licenses
be
restricted or
consequence
nonexistent
a the mere
fact of an arrest,
even if
acquittal
followed
or com
plete
exoneration of the
involved.
rec
An arrest
may
ord
be used
determining
whether
subsequently to arrest
concerned,
or
individual
whether
to
bring
exercise their discretion to
formal
charges against
already
an individual
arrested. Arrest
records have been
deciding
used in
whether to allow a de
fendant
present
story
impeachment by
his
without
Appellant argues
right
expungement
that his
within
ambit of
privacy.
analysis
his
constitutional
We find the
suggested by appellant
amorphous
unwieldly
more
tradi
than
analysis.
Cullinane,
process
tional due
U.S.App.D.
Cf. Utz v.
172
67,C.
(1975),
expunge
F.2d 467
held
which the Court
judicial authority
ment was
grant appropriate
inherent
re
lief.
denying release
convictions,
a basis
prior
and as
they
considered
appeal;
prior
trial or an
given a con-
determining
to be
judge
the sentence
Menard,
U.S.App.D.C.
Mitchell, v.
victed offender.”
v.
also, Michelson
(1970).
490-91
F.2d
213, 93 L.Ed.
States,
469, 69
335 U.S.
S.Ct.
United
Constantineau, 400 U.S.
Cf. Wisconsin
hy-
(1971). Thus, it is
91 S.Ct.
situation, individual must be afforded he is entitled to an his claim that *7 right is, innocent individual —that because an has the punishment, be free from unwarranted ordering by remedy right authority to of that denial expungement of the arrest record.7 expunge- may order it is concluded that a court
Once circumstances ment, it must be decided under what properly is exercised. society’s interest argues that The Commonwealth in outweighs limited maintaining arrest in le recognize the rights. We on the individual’s trusion records. arrest society of retention gitimate interest competition with However, recognition of that Thus, wrong looked to the appears below Latin the court jus, maxim; ibi reme- “ubi controlled the maxim this case is dium”, For “expressio alteráis”. est exclusio unius rather than jus, concept ibi remedium” of “ubi of the an excellent discussion Rodos, Implication Private Causes Judicial see McMahon and Retrenchment, 167 Dick.L.Rev. Reappraisal 80 Action: (1976). petition the court an is entitled The conclusion that accused trend reflected current for Philadelphia is buttressed Regula- relating See General Court to A.R.D. rules 440; Gen.Ct.Reg. 73-14, Rule tion as amended March 74-2, certainly to allow the rec- be anomalous 442. It would Rule A.R.D., gone may already person have case of a whose ord expunged grand jury, to have his record see Pa.R.Crim.P. right if the Commonwealth can- while an is denied accused hearing. preliminary prove prima facie case at the not even rights beginning of the properly individual’s is inquiry: court’s is more required “What against delicate balancing needs law enforcement privacy and a individuals, and other interests affected analysis closer legitimate enforcement of whether law unduly may needs be served in which a manner does Cullinane, upon trench rights.” Utz v. individual’s U.S.App.D.C. 467, 475, n. 520 F.2d clearly In instances, some record is retention of arrest “Many acquired invalid: unjustly arrest have individuals records without una even the of an honest and excuse voidable mistake police. District Colum bia alone, literally ar persons were once thousands investigation’ rested ‘for rec but released; then their ords often Dragnet matters remain. are at best arrests memory. occasions, recent far Even worse are those more common think, we where invoca than like to would hope tion of process the criminal with no used—often Hippies ultimate punitive sanction. conviction —as rights literally and civil workers harassed and have been driven by repeated from their ar homes and unlawful rests, often their made under unconstitutional on statutes face. bystanders up swept Innocent ar in mass rests during made to clear the a riot streets either during political lawful Menard demonstrations.” supra Mitchell, (footnotes omitted). at 493-94. also, (W.D.N.C. Goodman, F.Supp. Wheeler v. *8 1969); Hughes (E.D.Pa.1968); Rizzo, F.Supp. v. 881 282 Trilling v. F.2d U.S.App.D.C. States, United 260 104 677 instances, other must the court balance the competing on interests case each involved and resolve its own (10th facts. Linn, United 513 F.2d States v. 1975). Cir. Given the of an accused interest substantial good disability his name the from in freedom flowing from an Com arrest that the record, we believe monwealth must compelling come evidence forward with to justify retention of such information. briefs, issue the
Despite both the rhetoric of the instant case is not whether all individuals prelimi acquitted at the at trial or who are exonerated nary nor hearing expungement; stage are entitled to entitled question appellant presently the whether the a expungement.8 denied to Rather, was the expungement hearing right because on the issue of his grant court believed it without was that that requested supra, discussed, we believe relief. As appropriate a circumstances.9 exists under the We, hearing. therefore, remand the for case a dissenting opinion in VOORT, J.,
VAN der files a PRICE, join. JJ., which JACOBS and dissenting): VOORT, VAN der Judge( appellant, Malone, appeals The denial Thomas record, petition fol- expungement his for arrest less course, argue that free 8. Of would be the Commonwealth appel protect drastic remedies lant’s interest are available than retaining interest preserving while the state’s Rosen, F.Supp. 804 See, g., v. the record. e. States United against injunction dissemina (S.D.N.Y.1972), suggesting petitioner’s might protect interest. tion be sufficient (C.D.Cal. Inc., F.Supp. also, Gregory Systems, Litton F.2d 1970), modified 472 grounds on & aff’d as modified other concerning questions (9th 1972), 631 dissemination Cir. which raises serious guilt no evidence information that contains Rights Act under Title VII the Civil time, heavy carry bur- a At the the Commonwealth will same Charges against appellant were dis- den in the instant case. is, hearing; preliminary missed at the the Commonwealth’s record) appear so (apparently, evidence does not was for it Appel- prima case. insubstantial that it did not out a facie make finding prob- protection lant has able cause even had not the limited a produced by grand jury; nor has the Commonwealth jury. sufficient evidence to credible reach exists, the not express view on cannot 9. On the record as we hearing it does expungement. was held and propriety No prelimi- appear why charges dismissed at were the record appeared were hearing. example, nary if it For innocence, guilt Com- dismissed for reasons unrelated retaining its records. interest in have monwealth substantial if, hand, example, testimony com- of the On the other could plainant so insubstantial so that was case, prima would seem its interest even make out facie appellant’s interest. relatively insignificant by comparison to the *9 lowing pre- charges against the the dismissal of him at liminary hearing. appeal interesting and raises thought-provoking arguments concerning whether in general of expungement, as a exists principle, the in courts of our Commonwealth.1 are assisted We our issue, be a appears consideration of this which question impression of of appellate first courts in the Pennsylvania, developed ar- excellent briefs and well guments by appellant the and the Commonwealth.
The the lower seeks to have our Court order grant re- hearing expungement him a on his quest. relates, As his hopes show, brief he at hearing, petition denial of the will cause serious stigmatize harm to con- petitioner. Moreover, he tends operate expungement denial of will cause rights vio- privacy, allegedly violation lation of the First Fourteenth Amendments United States Constitution the Penn- and Article One sylvania thorough Constitution. After of all review arguments cases, raised and stat- consideration of the utes and provisions respect- cited, constitutional I must fully majority dissent from holding our of the Court that denying lower court committed error expungement My instant case. conclusion is based upon my interpretation clear respect subject to the of criminal a conclu- records and sion that there has infringement been no constitu- tionally granted right in the instant circumstances case. analysis
In the issue, to examine this useful legal performed record-keeping basis for the functions April various Act law enforcement The authorities.2 circumstances, In certain discussed limited as will be infra opinion, establishing right of legislation there has been in certain limited contexts. Specifically, appellant, sought Court’s petition, in his Harrisburg Order to direct the Com- the Chief of Police finger- expunge missioner of the all Police to State *10 seq., et as seq., 19 P.S. 1 et § P.L. § 414, and Police State provides alia amended, inter includ- personnel, corrections enforcement and other law politi- all police officers of attorneys all ing and district finger- take to shall have cal subdivisions “charged any person with photographs prints and in- “other such records All of crime”. commission pertinent” are to be filed be formation any send to authorities are Police. Local the State agen- police daily Police all the State such records estab- in the effort to participate cies commanded to Appellant investigation. does system for criminal lish a legislative the need mandate and challenge such not system enforce- to our law an identification value of such in our Com- combat crime agencies in ment efforts fur- reasonably The Act contested. be cannot monwealth cooperate Pennsylvania State Police ther orders our agencies and the United of our sister states participate in a com- exchange records and States system interstate, plete even international national and investigation The federal and identification. of criminal provides enabling Unit- statute, U.S.C. § actuality (in Attorney designee General, or ed States Investigation) perform such will Federal Bureau record-keeping functions. provisions April to the of the addition Act of briefly above, particu- outlined other sections are larly germane expungement. issue of For in- stance, pertinent provides, Section P.S. § 1406) (19 part:
“Any person removes, destroys, mutilates or any Police, of the records of the or State attorney, guilty district shall be of a misde- person meanor, shall, upon and such conviction there- prints, photographs, photographic plates, and ar- records of the files, request rest from their and further to have them the return of all information and records furnished to the Federal Bureau Investigation. exceeding fine not one
of, punished be hundred county imprisonment jail pe- dollars, or in the for a year, by both, exceeding one dis- riod of cretion of court.” proviso upon sanctions for criminal elimination unqualified evidences identification records addi- preserved
tional expunged. Another section of Act is and not even legislature’s more indicative consideration of ex- pungement. 5(c) (19 1405(c) ) Section the Act P.S. § part: provides, in
“(c) attorneys The district of the several counties *11 keep arrange shall and files of fingerprints, the taken provisions persons under the of act, of this convicted destroy fingerprints of per- crime and shall of all acquitted.” sons
Significantly legislation does not extend its mandate for of of destruction records those acquitted criminal any charges attorney other than the district fingerprints nor to posses- record other than attorney. sion of highly significant the said district It is legislature provisions made in same Act only which not permit, but command the collection and retention of identification records of those accused of crime, which only and direct the type destruction of one record-keeping agency such records upon one ac- provision quittal, makes further destruction clearly all such prohibited, other would records point against even to the of criminal sanctions one who ignore prohibition. would Although the April Act 27, gives clear and signal legislative unmistakable subject on expungement, interpretation review and is facilitated legislative other Quite recently, action. the Child Protec- tive Services Law became effective in our Common- wealth. 26, Act of 1975, November 124, P.L. 438, No. § 1 et seq., seq. 11 P.S. statute, pro- et § which keeping by public authorities substantial for vides provides explicitly abuse, for child attempts to curb in of certain child abuse cases of records abuse) certain accusations (such unfounded as Act of November 26, circumstances. well-defined 2214. Another P.S. 124, No. 438, 14, § P.L. 1975, § relatively legislation, The Controlled Sub- recent piece of (Act April 14, Act Drug, Cosmetic stance, Device seq., 1 et P.S. et 64, § P.L. No. 1972, 233, 780-101 § explicit provisos 1972) also contains 14, seq., eff. June circumstances, limited of criminal expungement, for prosecutions under Act resulting from records or or resulted withdrawn dismissed which have been April P.L. acquittals. See Act of No. § Clearly, amended, as 780-119, 35 P.S. amended. § subject ignored expunge- legislature records in of nonconviction. It is ment of criminal cases significant statutory permits highly that our law or even resulting expungement of crimi- records commands, explicitly well-defined limited nal certain circumstances, penalties yet provides de- of similar in all other cases. struction removal The intent could not be more clear. colleagues majority
My on feel that hearing entitled before the lower court to enable *12 arguments support right him to his expungement. The lower court it held has no au- thority expungement, to order I compelled, am interpretation legislative my agree. Not only subject legislature dealt with the of ex- pungement of criminal identification records in our Com- monwealth, very guidelines but has fashioned careful clearly and declared limited circumstances ex- wherein pungement permitted. convincing Moreover, no to be guidelines has been reason advanced indicate that such right any person. violate the constitutional expungement I mindful requests am have been granted by many our trial courts on occasions in
past. For the first time case, however, in the instant we squarely question faced with whether a lower denying expungement commits error in request. personal thoughts may upon No matter what the sub- ject general, I feel constrained result, question impression, by reach this on this of first my interpretation absolutely clear intent. Township Appeal, See Scott 388 Pa. 130 A.2d certainly body There is rea- well thought favoring soned the broader establishment of ex- pungement principles country. laws our Protecting Innocent”, Comment: “Arrest Records — (1974); Tul.L.Rev. 629 “Retention and Dissemination of Arrest Response”, Records: Judicial 38 U.Chi.L.Rev. (1971); LePoole, Hess and “Abuse of the Record Leading Conviction”, Arrest Not 13 Crime and Delin- quency (1967). Perhaps, legislature if the examined guidelines might issue fresh anew, be enacted our permit expungements laws to in our like agree cases the instant I one. cannot however that presently existent I therefore dissent. JJ., join PRICE, dissenting JACOBS and opin- in this ion.
Joseph al., REID Appellants. et Superior Pennsylvania. Court of
Argued Sept. 10, 1975. April 22, Decided Reargument On Dec.