concurring:
I agree with Judge HESTER that appellee had a right independent of her right under section 119 of the Controlled Substance, Drug, Device and Cosmetic Act, to have her arrest record expunged. I also agree that the lower court here properly ordered the record expunged. As my analysis in reaching this conclusion differs somewhat from Judge HESTER’s, however, I offer this concurring opinion.
Judge HESTER applies Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976), but declines to apply Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978), which to some extent limited Malone. His reasoning is that since the lower court’s decision in this case was made before Mueller, Mueller does not apply. In my view, Mueller does apply, but even when applied it is clear, and here I share Judge HESTER’s view, that the decision of the lower court must be affirmed.
In Malone the charges against the petitioner had been dismissed at a preliminary hearing because the Commonwealth failed to establish a prima facie case. We held that in such a case, principles of due process require that the Commonwealth present compelling evidence justifying retention of the arrest record. In Mueller, the Commonwealth had established a prima facie case but the petitioner was discharged pursuant to Rule 1100 before trial on the merits. There the President Judge, for the majority of this court, stated:
Accordingly, where the record shows that the Commonwealth made out a prima facie case of guilt on the part of án accused, he will then have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied. If, however, such a showing is made, the court must weigh the Commonwealth’s interest in retaining appellee’s arrest record against appellee's interest in being free from whatever disabilities the record may create.
258 Pa.Super. at 223, 392 A.2d at 765.
*357This case is closer to Mueller than to Malone, for here the Commonwealth established a prima facie case against appellee and the case was dismissed because evidence was suppressed. Therefore, in deciding whether the Commonwealth’s interest in retaining the arrest record outweighed appellee’s interest in having it expunged, the lower court was required to determine whether appellee had “affirmatively demonstrate^] [her] non-culpability.” 258 Pa.Super. at 223, 392 A.2d at 765.
The evidence in this case was as follows. Appellee was one of four people arrested in an apartment in Mercer County after a police raid. The police were after an acquaintance of appellee, John DeBattiste, and arrested him in the apartment. When a search of the apartment uncovered some controlled substances, all the other people in the apartment, including appellee, were arrested. Appellee’s case was nol prossed after the substances uncovered in the search were suppressed.
After reviewing this evidence, Judge ACKER, the same judge who sat at the suppression hearing and who entered the order granting the Commonwealth’s application to nol pros in 1973, stated that the case arose as a result of something “akin to [a] dragnet type arrest[] [for] [c]learly she [appellee] was not a target of the police at the time of the raid but was caught up in it by being with DeBattiste.” Lower ct. op. at 7.
Judge ACKERalso stated:
The petitioner [appellee] was not established to be a participant in the criminal activities of those with whom she was associating at the time of the raid leading to her arrest. The man with whom she was involved, John DeBattiste, was subsequently convicted of a drug-related crime unrelated to that for which the raid was conducted and served a period of years in a penal institution. Despite his return to this community and his alleged re-entry into the drug scene of the community as claimed by the Commonwealth, there is no evidence or even an allegation of petitioner’s continued association with him or of any *358misconduct upon her part. At the time of her association with DeBattiste, she was but 19 years of age. She is presently 25 years of age, now working as a full-time licensed real estate sales person [in Pennsylvania]. She was caught up in an illegally conducted raid. There was no evidence to support a conviction other than that which may have been obtained in the raid. However, under current law at least, the defendant was grossly overcharged and it would be questionable whether a conviction could stand even if the raid was properly conducted for there was no evidence of of actual or constructive possession of the drugs found in the apartment where the raid was conducted. Lower ct. op. at 4-5 (emphasis added).
This statement, I submit, demonstrates that in Judge ACKER’s opinion appellee was not culpable. If I may revert to Judge HESTER’S point, regarding the applicability of Mueller: Had Judge ACKER known about Mueller, I have no doubt that he would have cast his statement in its words, and said that he found that appellee had “affirmatively demonstrate[d] [her] non-culpability.” As it is, there is very little difference between what we said in Mueller and Judge ACKER said here.
I should also hold that “the Commonwealth’s interest in retaining appellee’s arrest record” did not outweigh “appellee’s interest in being free from whatever disabilities the record may create.” In determining the relative strengths of the Commonwealth’s and petitioner’s interest in this type of case, several factors should be considered. These include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.
When these factors are considered here, it is clear that the lower court acted properly in ordering appellee’s record expunged. The Commonwealth’s case against appellee was *359very weak — appellee demonstrated her non-culpability. The Commonwealth’s reason for wishing to retain her arrest record was even weaker, for it only alleged that expunction would result in a partial expunction of the record it had in the case against DeBattiste to the extent that that record charged a conspiracy with appellee; the Commonwealth, however, had a complete record of DeBattiste’s arrest and conviction in a separate case in which appellee was not involved. The evidence favoring expunction was very strong. Appellee was only nineteen years old when arrested, and in the six years that had passed since the arrest she had not been arrested again for any other charge, and no longer had any connection with DeBattiste. Furthermore, she was working two jobs and needed to have her record expunged in order to obtain a real estate license in Ohio to further her career in real estate. In these circumstances her interest in having her record expunged by far outweighed the Commonwealth’s interest in retaining it.
I should affirm the decision of the court below.
CERCONE, President Judge, joins in this opinion.