This is an appeal from the order of the Court of Common Pleas of Lebanon County denying the motion of appellant, James A. Miller, for expungement of a charge of burglary from his criminal record. Because we conclude that the lower court erred in its determination, the order should be vacated.
The facts relevant to the present appeal are as follows: On October 21, 1963, the appellant, James Miller, was *528charged with the burglary1 of a restaurant in Lebanon, Pennsylvania. After twenty hours of interrogation, without counsel being present, the appellant admitted the charges and signed a confession to that effect. On November 22, 1963 the appellant, on the advice of counsel, entered a plea of guilty to the burglary charge. He was sentenced to pay a fine of one hundred ($100.00) dollars, and to a term of eight (8) to sixteen (16) years imprisonment.
Subsequently, after exhausting his state court remedies, the appellant petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The appellant alleged, inter alia, that his trial counsel was ineffective in that he did not inform the appellant that he represented the victim of the alleged burglary in an unrelated civil matter. The Federal Court granted the requested relief and entered an Order directing that appellant be released from custody within sixty (60) days unless during that time he was retried with the effective assistance of counsel. See United States ex rel. James A. Miller v. David N. Myers, 253 F.Supp. 55 (E.D.Pa.1966).
The appellant then filed, in the court below, a motion to suppress his confession. This motion was never ruled on; however, on September 19, 1966, an order was issued releasing the appellant from prison. The appellant was never retried on the burglary charge.
On May 14, 1981, the appellant filed his motion to expunge the burglary conviction from his criminal record. Hearings were held on October 1, 1981 and February 1, 1982. In an order dated February 23, 1982, the Honorable G. Thomas Gates denied the appellant’s motion to expunge. This appeal followed.
The appellant raises only one issue for our consideration; i.e., whether the lower court erred in denying the expungement motion, without requiring the Commonwealth to meet its burden of proof. That burden was delineated by our supreme court in Commonwealth v. Wexler, 494 Pa. 325, *529331, 431 A.2d 877, 880 (1981): “[I]f the Commonwealth does not bear its burden of proof beyond a reasonable doubt ... or admits it is unable to bear its burden of proof ..., the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” (Emphasis in original). This standard was further explained by the court in Commonwealth v. Chacker, 320 Pa.Super. 402, 408-411, 467 A.2d 386, 389-90 (1983), where it was stated:
We read the unequivocal language in Wexler to foreclose explicitly a hearing court from continuing to shift the burden of persuasion to the petitioner seeking ex-pungement merely because the Commonwealth made out a prima facie case of guilt on the part of the petitioner.2 Thus, under Wexler, the burden to present compelling evidence against expungement is placed upon the Commonwealth if it has failed to establish the accused’s guilt beyond a reasonable doubt (e.g., before the court of common pleas,) or the Commonwealth “admits that it is unable to bear its burden of proof.” (Footnote omitted).
A review of the transcripts of the two hearings at which expungement was at issue, reveals that, with respect to the appellant’s guilt, the Commonwealth produced only the following “evidence:”
Q. Taking you back to this 1963, No. 1 [sic, 10], September; you say you weren’t represented by Mr. Whitman then?
A. 1963?
Q. Yes.
A. One of them I was.
Q. Yes, and—
A. And one of them was overturned in Federal Court.
Q. Do you remember Lou’s restaurant?
A. Yes sir.
Q. Do you remember going in there and burglarizing that?
A. I remember I was charged with burglary, yes sir.
Q. You were charged with it?
*530A. Yes sir.
Q. And you plead [sic] guilty with Jim Whitman right along side of you?
A. Yes, sir, but that was overturned by Federal Court.
(N.T. October 1, 1981, at 12). The total import of this exchange is that the appellant did indeed plead guilty to a charge of burglary on the advice of counsel who was later found to be ineffective by the Federal District Court for the Eastern District of Pennsylvania. Our case law makes it abundantly clear that a guilty plea entered by a defendant who has not been afforded the effective assistance of counsel is a nullity. Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982); Commonwealth v. Belleman, 300 Pa.Super. 209, 446 A.2d 304 (1982). Moreover, the “signed confession” alluded to in the portion of the lower court opinion which is cited by Judge Wickersham (see Dissenting Opinion at 197) is not a part of the record, and therefore cannot be considered.2 Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981).
Thus, we must conclude that, on the record before us, the Commonwealth has failed to sustain its burden of proving the appellant guilty beyond a reasonable doubt. The Commonwealth relies exclusively on the guilty plea and the “signed confession” as proof of the appellant’s guilt. Although either would sustain the Commonwealth’s burden if properly before us, we can only make our decision based on the facts contained in the record. The record is devoid of proof of appellant’s guilt.
Finally, the only evidence introduced by the Commonwealth in support of its fallback position — i.e., producing compelling evidence to justify retention of the arrest record — was the arrest record itself. The Commonwealth *531advances no reasons why the arrest record standing alone compels the retention of the appellant’s record, nor do we perceive any. Thus, we would be forced to find that the Commonwealth had failed to meet its burden in the instant case. Consequently, the order of the court below is vacated, and the case remanded with instructions to expunge the burglary charge from the appellant’s arrest record.
Vacated and Remanded. Jurisdiction is not retained.
WICKERSHAM, J., files dissenting opinion.. 18 Pa.C.S.A. § 3502.
. In any event, the “signed confession" was made by the appellant after twenty hours of interrogation without counsel. See opinion of Davis, J., 253 F.Supp. 55 at p. 56. In September, 1966, after the Federal District Court ordered that the appellant be granted a new trial, a motion to suppress the confession was filed. The burglary charge was never retried.