dissenting:
I respectfully dissent. In Commonwealth v. Mueller, 258 Pa.Super. 219, 223, 392 A.2d 763, 765 (1978), a majority of our Court sitting en banc vacated the lower court’s expungement order, holding that “where the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will then have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied.” In the case before us, as in Mueller, the Commonwealth made out a prima facie case against the accused at the preliminary hearing, and the prosecution was terminated for reasons not related to guilt or innocence. In Mueller the prosecution was terminated because of the Commonwealth’s failure to proceed with the case within 180 days of filing of the complaint; in the case before us it was terminated because the trial judge impetuously and improperly declared a mistrial. Unlike the accused persons in Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979), and Commonwealth v. Capone, 282 Pa.Super. 458, 422 A.2d 1383 (1980), cited in the majority opinion, appellant in the case before us was not found to be innocent. The majority equates a mistrial caused by the court with a finding of innocence. This appears to me to be clearly a non sequitur.
I believe that Mueller is controlling in this situation, and I would therefore affirm the lower court’s order refusing to expunge appellant’s arrest record.