$660,000 Loan To Kingston Paid Off Ahead Of Schedule

By WILLIAM SPECHT; Times Leader Staff Writer
 Thursday, December 28, 1995 &nbsp;&nbsp;&nbsp;&nbsp;Page: 3A 





WILKES-BARRE -- An appeal to dismiss the murder conviction of John D. Smith
and keep Anthony Tolbert from being tried in the beating death of Hector
Maldonado has been denied. &nbsp;&nbsp;&nbsp; 
 The Pennsylvania State Superior Court said that Luzerne County Court of
Common Pleas Judge Gifford Cappellini ruled correctly when he allowed certain
evidence used in previous trials to be used in Smith's trial on a charge of
third-degree murder. &nbsp;&nbsp;&nbsp; The Superior Court also said that Cappellini's rulings would apply in the
case pending against Tolbert. &nbsp;&nbsp;&nbsp; 
 "It (the ruling) is precisely what we asked for," said Luzerne County
District Attorney Peter Paul Olszewski Jr. "It clears the way to schedule the
retrial for Tolbert." &nbsp;&nbsp;&nbsp; 
 The Commonwealth now has 120 days from the ruling, which was filed on Dec.
20, to schedule Tolbert's retrial on third-degree murder charges but Olszewski
said he expects it to take place in February or March. &nbsp;&nbsp;&nbsp; 
 "Hopefully Tolbert's trial will be the final chapter in this case,"
Olszewski said. &nbsp;&nbsp;&nbsp; 
 Tolbert, 29, a former football standout at GAR Memorial High School, is
free on $25,000 bail. &nbsp;&nbsp;&nbsp; 
 Tolbert was accused with Smith of Wilkes-Barre and Anthony Russo,
originally of Catawissa, of beating Maldonado, 29, during a drug dispute in a
South Wilkes-Barre parking lot in March 1991. &nbsp;&nbsp;&nbsp; 
 Smith, 29, was retried in September 1994 and convicted on the third-degree
charge. Judge Gifford S. Cappellini sentenced Smith, who is currently serving
six to 15 years in state prison. &nbsp;&nbsp;&nbsp; 
 In March 1992, Tolbert and Smith were acquitted of a string of charges --
including first-degree murder and criminal conspiracy to commit murder in the
death of Maldonado. But jurors deadlocked on a single count of third-degree
murder. &nbsp;&nbsp;&nbsp; 
 Tolbert's lawyers, Joseph F. Saporito Jr. and Thomas S. Cometa, contended
that jurors shouldn't be permitted to hear evidence linking their client to
Smith and Russo during commission of the alleged crime because he was
acquitted on the conspiracy charge in 1992. &nbsp;&nbsp;&nbsp; 
 They argued that the use of such evidence would amount to double jeopardy,
or being tried twice for the same offense, which is forbidden by the United
States Constitution. &nbsp;&nbsp;&nbsp; 
 Before Smith's trial last year, his lawyers appealed to Luzerne County
Judge Gifford S. Cappellini on the same grounds. Cappellini denied their
appeal, allowing the evidence. &nbsp;&nbsp;&nbsp; 
 Police allege that the three took Maldonado in a car, continued to beat him
and dumped him on Wilkes Lane. He died the next day of massive head injuries. &nbsp;&nbsp;&nbsp; 
 Russo fled after Smith and Tolbert were arrested and eluded police for four
years before being arrested in New York City in June. &nbsp;&nbsp;&nbsp; 
 In October, a jury found Russo, 35, guilty of second-degree murder in
Maldonado's beating death. He also was found guilty of criminal conspiracy and
kidnapping. &nbsp;&nbsp;&nbsp; 
 Luzerne County Court of Common Pleas President Judge Patrick Toole Jr.
sentenced Russo to life without parole for the second-degree murder
conviction. &nbsp;&nbsp;&nbsp;

Conviction In Fatal 1991 Beating Will Stand, Appeals Court Rules 
The Appeal Centered On 
Whether Evidence Used In 
Previous Trials Could Be 
Used In Another

Conviction In Fatal 1991 Beating Will Stand, Appeals Court Rules The Appeal Centered On Whether Evidence Used In Previous Trials Could Be Used In Another