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filed: May 30, 1980.


No. 3069 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Potter County, Criminal Division, No. 74 of 1978 (Counts 7, 8, 9, 10).


William A. Hebe, Wellsboro, for appellant.

Thur W. Young, District Attorney, Coudersport, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., concurs in the result.

Author: Hester

[ 279 Pa. Super. Page 143]

Following a jury trial, appellant William R. Darush was found guilty of burglary, theft, receiving stolen property, and conspiracy,*fn1 in the Court of Common Pleas, Potter County. Post trial motions were argued and denied and a sentence of 2 1/2 to 5 years imprisonment was imposed followed by three years probation. As a condition of probation, appellant was ordered to make restitution to the victim. On this appeal, appellant posits several issues for our review, all of which we find without merit.

Pertinent facts surrounding the crime were as follows. The chief witness for the Commonwealth was appellant's accomplice, Randall Lee Cornelius. His testimony established that one evening during the last week of January, 1975, appellant asked Cornelius to accompany him for a ride: "'Go with me and I'll make it worth your time'". R.R. 69a. Cornelius agreed and the two drove in Cornelius' car to the residence of Jane Baxter, appellant's mother-in-law, the complainant herein. Appellant had told Cornelius on another occasion that there was a "considerable amount of money" in the Baxter residence. When they arrived at the house in Coudersport, Pennsylvania, Cornelius waited in the car behind the garage while appellant entered the house through a rear door. Presently, appellant returned carrying a heavy metal container which he placed in the car trunk, and the two then drove away. Later that night, in Cornelius'

[ 279 Pa. Super. Page 144]

    barn, appellant opened the box with a sledge hammer, and, after sifting through insurance policies, stocks and the like, retrieved a large bundle of cash, a portion of which he gave to Cornelius, while keeping the rest to himself. Cornelius later dumped the box and its remaining contents into the river.

Other evidence adduced by the Commonwealth established that appellant was well aware of the box's existence and its contents, knew where it was kept, and was in need of cash at that time. For example, it was shown that in the summer or fall of 1974, appellant and his fiancee Leslie Baxter were contemplating the purchase and restoration of the Deer Path Inn, a restaurant and bar in Roulette, then owned by appellant's family. Leslie's mother, Jane Baxter, wishing to help her daughter and future son-in-law, offered to loan them $10,000 for the project, interest free. At a conversation occurring in her kitchen, Mrs. Baxter showed appellant the metal container and withdrew therefrom $10,000 in cash, offering it to appellant. He declined the loan. Appellant and Leslie were married a short time afterward and eventually purchased the Deer Path Inn, with Leslie doing some of the bookwork for the business. In early January, 1975, after a short stay in the hospital, Leslie became aware that the Inn was in financial trouble when she was unable to pay the bills because of insufficient funds in the checking account. Through Mrs. Baxter, the Commonwealth established that the metal box was taken sometime between January 25 and 31, 1975, when she was not at home. It was also shown that appellant was a frequent guest at the Baxter house, and was familiar with the upstairs area where the box and money were kept.

Appellant, testifying in his own behalf, denied all charges and insisted that Cornelius' damaging testimony was prompted by the latter's belief that appellant had once had an affair with Cornelius' wife. Trial commenced before the Honorable Harold B. Fink and a jury on August 18, 1978. Verdicts were returned the same day.

[ 279 Pa. Super. Page 145]

Appellant first assigns as error the failure of Judge Fink to disqualify himself because of the judge's role as a prosecutor in a previous criminal action against appellant. In 1976, appellant was tried and convicted in two separate trials for violations of the Uniform Firearms Act. It appears that Judge Fink, then the district attorney for Potter County, personally prosecuted one of the trials, while an assistant district attorney prosecuted the other. Later, Judge Fink, again as district attorney, argued the consolidated appeals before this Court.*fn2 Appellant concedes that the issues and facts in the 1976 trials and appeal are not in any way related to the instant proceedings, but argues ...

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