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COMMONWEALTH PENNSYLVANIA v. RICHARD FRANCIS XAVIER CAPONE (12/05/80)

filed: December 5, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD FRANCIS XAVIER CAPONE, APPELLANT



No. 2456 October Term, 1978, Appeal from an Order of the Court of Common Pleas of Montgomery County, Criminal Division, No. 374-77.

COUNSEL

Robert Scandone, Philadelphia, for appellant.

David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Hoffman, JJ. Price, J., dissents.

Author: Hester

[ 282 Pa. Super. Page 459]

This is an appeal from the order of the trial court denying appellant's motion to expunge his arrest record. The procedural history and facts relevant to the issues on appeal are as follows:

At approximately 10:00 p. m. on January 24, 1977, a silent alarm went off at the jewelry store of Bailey, Banks and Biddle in the Bala Cynwyd Shopping Center in Lower Merion Township, Montgomery County, bringing police to the scene. There were several inches of newly fallen snow on the ground. As the officers arrived, they noticed a car doing "doughnuts" in the snow in the parking lot. The vehicle then proceeded at a slow rate of speed out of the parking lot onto Belmont Avenue and stopped at the traffic light at the intersection of City Line Avenue, where it was stopped by the police. None of the $2,000.00 worth of jewelry taken from the store was recovered from the car or along the route it had traversed. The vehicle was occupied by appellant, and the driver, Avery Lofton.

[ 282 Pa. Super. Page 460]

An old car battery had been thrown through the rear door of the premises to gain entry and the police alleged that footprints came from the general area where the car was first seen.

Appellant gave the same statement to the police as he gave at trial. The two gentlemen had entered the parking lot to do "doughnuts" in the snow. When they saw the police arrive, they felt they would get a ticket so they departed slowly and were stopped by police at the traffic light.

At trial, an F.B.I. chemist testified that a miniscule particle of glass found on appellant's trousers was similar to broken glass found in the store. The defense presented Lawrence Leonard, principal scientist of the Physical and Life Sciences Department of the Franklin Institute Research Laboratory in Philadelphia, who testified that the particle analyzed by the F.B.I. was not glass.

Appellant was tried by jury and acquitted. Appellant filed a motion for expungement in the trial court which was denied.

Appellant contends the Commonwealth failed to sustain its burden of presenting compelling evidence to justify a retention of his arrest record and that the trial judge abused ...


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