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COMMONWEALTH PENNSYLVANIA v. JOSEPH FONTANA (04/30/80)

decided: April 30, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOSEPH FONTANA, APPELLANT



No. 138 March Term, 1979, Appeal from the Order of the Superior Court at No. 603 April Term, 1977, affirming the Order of the Court of Common Pleas, Criminal Division, Mercer County, Pennsylvania, at Nos. 36 (3) and (6).

COUNSEL

Irving M. Green, New Kensington, for appellant.

Samuel J. Orr, IV, Dist. Atty., David B. Douds, Asst. Dist. Atty., Mercer, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion. Nix, J., filed a dissenting opinion. Kauffman, J., filed a dissenting opinion.

Author: Larsen

[ 490 Pa. Page 8]

OPINION

Appellant, an independent general contractor, was tried with three other defendants, all employees of the Pennsylvania Department of Transportation (PennDot), for various crimes involving the theft and subsequent resale of a Case hi-lift from the Mercer County maintenance garage of PennDot. A jury convicted appellant of receiving stolen property, 18 Pa.C.S.A. § 3925, misapplication of entrusted property and property of government institutions, 18 Pa.C.S.A. § 4113, tampering with a witness, 18 Pa.C.S.A. § 4907, and criminal conspiracy, 18 Pa.C.S.A. § 903.

Following his conviction, appellant obtained new counsel who filed post-verdict motions asserting trial counsel's ineffectiveness

[ 490 Pa. Page 9]

    and challenging the sufficiency of the evidence. The Court of Common Pleas of Mercer County denied the motions and, on appeal, the Superior Court affirmed. This Court granted appellant's petition for allowance of appeal.

Viewing the evidence, and all reasonable inferences therefrom, in the light most favorable to the Commonwealth, as verdict winner, Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282, (1976), the following facts and events appear of record. In January of 1975, appellant purchased the Case hi-lift in question from a gambling acquaintance, one "Rags" Rogozan, an employee of PennDot who was not authorized to sell such equipment. The purchase price was $500.00 plus the cancellation of a $400.00 gambling debt Rogozan owed appellant, which purchase price was substantially less than half the fair market value of the hi-lift. The day Rogozan delivered the hi-lift -- bearing PennDot markings and paint -- to appellant at the Sheraton Inn in West Middlesex,*fn1 two men, at appellant's behest, took the hi-lift to an airport hangar to make some minor repairs, to steamclean, and to paint it a different color.

This accomplished, the hi-lift was then brought back to the Inn, where it remained until April of 1975. At that time, appellant resold the hi-lift to Mr. Stephen Levitt of the American International Coal Company, for $2,500.00.

When appellant became aware, in July of 1975, that an investigation into the theft of the hi-lift was underway, he initiated a "cover-up" of his part of the transaction. This "cover-up" included requesting one witness to refrain from testifying,*fn2 requesting Mr. Levitt to destroy the cancelled check for $2,500.00 (used to purchase the hi-lift) as well as his bank's microfilm record of the check, and a request that Mr. Levitt "dump" the hi-lift in ...


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