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COMMONWEALTH PENNSYLVANIA v. LARRY MUELLER (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LARRY MUELLER



No. 1365 October Term, 1976, Appeal from Order dated March 9, 1976 of the Court of Common Pleas, Criminal, County of Montgomery at No. 2466 of April Term, 1975.

COUNSEL

Robert A. Selig, Assistant District Attorney, with him William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellant.

Steven H. Lupin, Lansdale, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring and dissenting statement. Van der Voort, J., files a dissenting opinion, in which Price, J., joins.

Author: Cercone

[ 258 Pa. Super. Page 220]

This case is before us on a Commonwealth appeal from an order of the Court of Common Pleas of Montgomery County, directing the expungement of Laurence Mueller's arrest record.

[ 258 Pa. Super. Page 221]

Appellee Mueller was charged with theft by unlawful taking in a criminal complaint filed April 24, 1975. A preliminary hearing was held, and the testimony of the complainant, appellee's former employer (at Ameron Auto Centers) was summarized in the transcript as follows:

"[O]n April 7, 1975 I did an investigation on inventory shrinkage. On April 9, 1975 I discovered detail tapes were not being rung properly. In most cases $30.00 short. I matched every service order with every ring. I found that a $49.50 tire sale was being rung as $19.60, a $99.00 tire sale was being rung as $69.00. I went through the month of March and 4 or 5 days of April. I called the customers, and they identified Larry Mueller as the person waiting on them. I spoke with Mr. Mueller, showed him the tapes and service orders. Mr. Mueller gave me a statement. An Auditor came in and Mr. Mueller was released on April 14, 1975."

The magistrate found that a prima facie case had been made out and ordered appellee held for court. Apparently because of Commonwealth carelessness, no further action was taken on the matter until November 28, 1975, when appellee's petition to dismiss under Rule 1100,*fn1 Pa.R.Crim.P., 19 P.S. Appendix, was granted.

Appellee shortly thereafter filed a "Petition to Expunge Criminal Record," reciting the procedural history of his case and alleging that his photograph, fingerprints, and arrest record were still in the possession of the Horsham Police Department, which had sent copies to the Pennsylvania State Police and the Federal Bureau of Investigation, and asserting that he had never previously been arrested. He characterized the retention of the records on his arrest as unjustified, harmful to his reputation and calling, and likely to interfere with his earnings and livelihood. He asked the court to order the destruction of all records in the possession of the Horsham Township Police, the Montgomery County

[ 258 Pa. Super. Page 222]

Clerk of Courts, the Pennsylvania State Police, and the Federal Bureau of Investigation. The Commonwealth's answer asserted that maintaining the records was fully justified. After hearing argument, the court ordered the destruction of all records in the possession of the Horsham Township ...


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