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Expungements and DNA

This is less of a question and more of a commentary that is relevant to many questions we get on expugnements. We get a question on either a summary offense or an expungement every day, so I thought this post appropriate for our readers.

Defendant was convicted of rape and sentenced to 12-24 years. Some ten years late, after the DNA was run, his lawyer proved that he could not have been the rapist. The case was nolle prossed by the District Attorney (prosecution withdrawn).

The Defendant filed for an expungement and it was denied due to the “commonwealth’s interest in maintaining a record.”

This was a Philadelphia case where a well known DA testified that the reason the prosecution did not move forward was due to fact that the DA’s office could no longer find the victim. Simply the fact that the DNA was not a match did not preclude the Defendant was being part of the crime if he did not ejaculate. Also, if they could find the victim, they would have re-prosecuted the Defendant.

The majority wrote that the DA has to show why it should not be expunged, and remanded it with an order to expungement (remand means sent back to the lower court). The decent wrote it should be remanded for further proceedings so the trial level judge could make a record as to their finds to see what they considered in their opinion.

I don’t understand the decent at all. If an appellant’s lawyer doesn’t write down the proper grounds for an appeal in the 1925b, there is no second chance. How can they send a case down to give a judge a second chance?

FYI: Commonwealth v. V.A.M., 2009 PA Super 156

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