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COMMONWEALTH PENNSYLVANIA v. JOSEPH FONTANA (04/19/79)

decided: April 19, 1979.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOSEPH FONTANA, APPELLANT



No. 603 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Mercer County, Criminal Division at Nos. 36(3) and (6) July Term, 1975.

COUNSEL

Irving M. Green, New Kensington, for appellant.

David B. Douds, Assistant District Attorney, Mercer, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, President Judge, files a concurring and dissenting statement. Jacobs, former President Judge, Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 265 Pa. Super. Page 390]

This appeal arises from imposition of sentence following appellant's conviction by a jury of tampering with a witness,*fn1 receiving stolen goods,*fn2 misapplication of entrusted property,*fn3 and criminal conspiracy.*fn4 On appeal, appellant contends that trial counsel was ineffective*fn5 and that there was insufficient evidence to support his convictions. We find these assertions to be without merit, and we accordingly affirm.

Appellant's indictment grew out of a grand jury investigation of the Pennsylvania Department of Transportation (PennDOT), District 1-4, authorized by the Honorable John Q. Stranahan on June 4, 1975, to inquire into "the illegal solicitation of political contributions from persons and corporations desiring to have contracts within the Commonwealth and by private persons through collaboration with government

[ 265 Pa. Super. Page 391]

    employees, to obtain by theft and deception public monies, and similar or related crimes involving official corruption."*fn6

The grand jury returned presentments on July 17, 1975, recommending the indictments of appellant and three other persons allegedly involved in the disappearance of a piece of PennDOT equipment, a Case hi-lift, in 1974-75. The others charged were Clarence Braine, the head mechanic in the Mercer County PennDOT garage, Harry Murray, the Mercer County garage foreman, and Joseph Iacino, maintenance superintendent. Appellant, an independent contractor, was therefore the only one of the group indicted in this matter who was not a PennDOT employee.

First, viewing the evidence in the light most favorable to the Commonwealth, as we must, Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976), we will address appellant's sufficiency arguments. The following was adduced at trial. In April 1974, Joseph Iacino, the PennDOT maintenance supervisor of Mercer County, one of the seven counties in District 1-4, prepared a department form recommending condemnation and sale of a hi-lift, Department Number 024-1056. Harry Murray, the Mercer garage foreman, was directly responsible to Mr. Iacino, and Scott Braine, the head mechanic at the Mercer facility, was directly responsible to Mr. Murray. The Harrisburg office determined that the hi-lift should be dismantled and sold or used for parts, and Mr. Iacino was so informed by letter on May 9, 1974. Subsequent correspondence from Mr. Iacino indicated that the equipment had been dismantled and that all workable parts were salvaged. In fact, the hi-lift was never dismantled, but in December 1974, Mr. Braine ordered that the

[ 265 Pa. Super. Page 392]

    hi-lift be taken by one of the mechanics to Donnelly's, a nearby grocery, and parked in the lot.

According to Robert Ryder, the mechanic who made the delivery, one Rags Rogozan, another PennDOT employee, stopped at Donnelly's while Mr. Ryder was there and approved the location of the lift. Several individuals then testified for the ...


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