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HomeMy WebLinkAboutCP-21-MD-0832-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF V. : CUMBERLAND COUNTY, PENNSYLVANIA STEVEN EVERETT : CP-21-MD-0832 – 2008 : IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, January , 2012 The defendant/petitioner has filed the instant appeal from our order of September 14, 2011 which denied his petition for expungement. We will discuss the reasons for our decision in the opinion that follows. On November 6, 2008, the defendant was charged with sexually abusing a child. The ten-year- 1 old child of his girlfriend. Shortly after the incident, the victim described the attack to her mother, her 2 great aunt, and a child interview specialist at the Children’s Resource Center. However, at the 3 preliminary hearing scheduled on December 10, 2008 the victim declined to testify. As a result the Commonwealth was forced to withdraw the charges against the defendant. In early 2011, less than 3 years after the charges were dismissed, the defendant petitioned this court to expunge his arrest record. We held a hearing on September 14, 2011. The defendant testified that the presence of these charges has prevented him from advancing in and acquiring employment. As a result, he has fallen behind on his child support payments. He also asserted that he has no criminal record, other than an expunged ARD disposition in 2006. The Commonwealth strongly objected, noting that the statute of limitations on these charges has not yet expired. It contended that it was necessary to retain the records to protect both members 1 The charges included Rape of a Child, 18 Pa. C.S.A. § 3121 (a); Aggravated Indecent Assault, 18 Pa. C.S.A. § 3125 (a) (7) and Indecent Assault, 18 Pa. C.S.A. § 3126 (a) (7). 2 The interview at the Children’s Resource Center was preserved on video tape. 3 We note that the victim’s mother did not support her, siding instead with her paramour the alleged molester. of the public as well as the victim if she chooses to file charges in the future. Following the hearing, we denied the petition. DISCUSSION When a prosecution has been terminated without conviction or acquittal, we must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records. See, e.g., Commonwealth v. Dobson, 684 A.2d 1073, 1076 (Pa. Super. Ct. 1996); Commonwealth v. Butler, 672 A.2d 806, 808 (Pa. Super. Ct. 1996). To assist us in applying the balancing test, the Pennsylvania Supreme Court has set forth the following non- exhaustive list of factors to be considered: [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the commonwealth gives for wishing to retain the records, [3] the petitioner’s age, criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied. Commonwealth v. Wexler, 494 Pa. 325, 330, 431 A.2d 877, 879 (Pa. 1981). Applying those factors to the case at bar we were satisfied that the petition to expunge should be denied. The very serious charges against Mr. Everett were dismissed only because the 10 year old victim 4 refused to testify at the preliminary hearing. The Commonwealth’s case was strong, but it could not be pursued without the victim’s testimony. Although there was no physical evidence, the victim did report the incident to a number of individuals, including an interview specialist who taped her statement. Furthermore, the defendant gave statements to the police in which he admitted to crawling into bed with the victim, corroborating portions of her allegations. 4 Given the lack of emotional support from her mother, as well as her young age, her reluctance to testify was understandable. 2 The Commonwealth has advanced compelling reasons to retain the records including protection of the public as well as the victim if she should chose to file charges at a later time. Although Mr. Everett does not have a criminal record, he does have a previous expungement of an arrest record. Perhaps most importantly, the statute of limitations has not yet expired. Because the victim is still very young, preserving her ability to bring charges when she reaches adulthood is critical. To expunge the record would result in the loss of important evidence, including the defendant’s statement. Finally, although the adverse consequences experienced by Mr. Everett appear to be severe, the serious nature of the offenses and the Commonwealth’s desire to protect both society and the victim outweigh any harm he might suffer. In addition, the fact that the charges were withdrawn because of the 10 year old victim’s refusal to testify weighed in our decision. As the Superior Court has stated: Because the victims of child molesters are sometimes unable to protect themselves against assaults which leave them scarred for life and convert them into assailants of other children, we tread with caution in this area when expunction is sought. Especially is this true where, as here, the accused has not had to run the gauntlet of a trial where a panel of one’s peers hears the evidence, weighs credibility and renders a verdict of guilt or innocence, which in the latter case militates in favor of granting a subsequently filed petition to expunge (citation omitted). Here, the appellant’s innocence or guilt did not have to withstand the light of scrutiny with the child/victim’s refusal to testify at the preliminary hearing. The rigors of a trial were dispensed with and society was left with a void in its attempt to resolve a serious accusation by a youth against the appellant. Such inability to act, be it motivated by fear or embarrassment, should not be the key to unlock and set free from future scrutiny one charged with such a serious crime against a youth. Commonwealth v. Persia, 449 Pa. Super. 332, 338, 339, 673 A.2d 969, 972 (Pa. Super. 1996). We agreed with those sentiments. ____________________ _________________________ DATE Edward E. Guido, J. District Attorney Royce L. Morris, Esquire 3 :sld 4