How an Acquittal or Entry of Nolle Prosse Effects Expungement Eligibility in Pennsylvania


Commonwealth v. Wexler
Supreme Court of Pennsylvania
July 2, 1981

Holding: In certain cases, the court will weigh several factors in determining whether expungement should be granted. If the petitioner has been acquitted or has been granted an entry of Nolle Prosse, then the burden will fall on the government to establish factors that the expungement should not be granted.

Why This Case is Important: The state of Pennsylvania recognizes that an individual may severely suffer from an arrest record. Indeed, retention of an arrest record can stunt professional and personal development. In many occasions, the difference in obtaining a job or not can depend on what is on an individual’s criminal background record. As such, in certain circumstances, an individual may have the right to have his record expunged. Whether an individual may have his record expunged depends on whether the court finds it is in the interests of justice to expunge the records.

Courts will look at several factors to determine whether a record should be expunged. It will look to the strength of the case against the petitioner, the reason the District Attorney wants to retain the records, the petitioner’s age, criminal record, employment, the length of time elapsed from the arrest, and specific adverse consequences of retaining the records.

This case establishes that if the petitioner is not convicted because of an acquittal, Nolle Prosse, or ARD program, then the District Attorney has the burden of establishing that expungement should not be granted. As such, the District Attorney must advance evidence at the expungement hearing that the petitioner’s records should be retained. The evidence advanced must be specific reasons for retaining the records. In other words, the District Attorney must point to specific facts for why the petitioner’s record should be retained. The District Attorney may not simply make a general statement for retaining the records (e.g. the court in this case held that the District Attorney’s reason for needing the records to be available just in case they are needed in the future was a general reason that the court held was unpersuasive).

This case also examines why a petitioner in an Accelerated Rehabilitative Disposition program is eligible to have his record expunged. The court made it clear that those placed in an ARD program are on an accelerated track in which they are being diverted out of the criminal justice system as quickly as possible. Persons are placed on ARD because of the belief that the nature of the individual’s character and background and the nature of the offense warrant the placement in a program where the individual is not prosecuted. As such, a petitioner who successfully completes ARD is not convicted of a crime and is eligible for expungement. (Note: in this case, one of the petitioners entered into a consent decree, which allows a juvenile to avoid an adjudication of delinquency; in other words, the juvenile is not “convicted.” The court in this case compared a consent decree to ARD and held that the petitioner who entered into a consent decree was eligible for expungement).

Facts of This Case: This case concerned three petitioners: Martin Wexler, husband; Estelle Wexler, wife; and Vicki Wexler, daughter. In 1977, drug paraphernalia was discovered in Vicki Wexler’s room. Martin Wexler was arrested and charged with corruption of a minor. Estelle Wexler was later also charged with corruption of a minor. Vicki Wexler was charge with possession and intent to manufacture or deliver and criminal conspiracy.

In May of 1977, Vicki entered into a consent decree in Juvenile Court. In August of 1977, the prosecution filed a petition for Nolle Prosse for the charges of Martin and Estelle, and the petition was granted. Martin, Estelle, and Vicki subsequently filed to expunge their criminal records. An expungement hearing was held, and the petition was denied. On appeal, the superior court affirmed the decision to deny their request. The Supreme Court of Pennsylvania reversed the decisions of the courts below.

The Supreme Court of Pennsylvania held that expungement was available in certain instances where justice so requires. The Court stated that in order to determine whether expungement should be granted, courts were to look to the following factors: the strength of the Commonwealth’s case, the reasons for retaining the records, petitioner’s age, criminal record, and employment, the length of time elapsed between the arrest and petition, and the hardships the petitioner will endure.

In the case of Martin and Estelle Wexler, the Court determined that expungement should have been granted. The Court stated that a petitioner who is acquitted or who has been granted an entry of Nolle Prosse does not have the burden of establishing his records should be expunged. Instead, in such instances, the Court held that the District Attorney had the burden of establishing that the records should not be expunged. The Court held that the District Attorney did not present any evidence establishing why Martin and Estelle’s records should be retained. The Court stated that a general interest for retaining the records was not compelling evidence. As a result, the Court ordered Martin and Estelle’s records expunged.

The Court next turned to Vicki’s expungement request. The Court held that Vicki was eligible for expungement because her consent decree was similar to ARD. The Court weighed the factors relevant to expungement and determined that Vicki’s records should also be expunged. In making its determination, the Court considered that four years had passed since the incident of arrest, that Vicki had no subsequent criminal activity, and that Vicki had been regularly employed and had no additional problems. The Court weighed these factors against the District Attorney’s general denial that the records should be retained in case they would be needed in the future. The Court held that such a general reason was not sufficient to establish that expungement should not be granted. As such, the Court granted Vicki’s expungement request as well.

Key Language: In determining whether justice requires expungement, the Court, in each particular case, must balance the individuals right to be free from the harm attendant to maintenance of the arrest records against the Commonwealth’s interest in preserving such records.

Expert Advise: “This case establishes the justice system’s stance on arrest record expungements in Pennsylvania. The Supreme Court in this case authoritatively states where a petitioner is acquitted or is granted an order of Nolle Prosse, the burden falls directly on the District Attorney to establish why the records should be retained. This case law is an important tool for those seeking expungement, and it helps pave the way for individuals seeking to clear their records.” -Attorney Mathew Higbee.

To read about more cases that help to define record clearing relief laws click here.

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