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COMMONWEALTH PENNSYLVANIA v. ARTHUR SATZBERG (10/23/86)

filed: October 23, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
ARTHUR SATZBERG, APPELLANT



Appeal from Judgment of Sentence December 20, 1985, in the Court of Common Pleas of Bucks County, Criminal No. 83-4514, 4515.

COUNSEL

Dennis H. Eisman, Philadelphia, for appellant.

James C. Dalton, Assistant District Attorney, Doylestown, for Com., appellee.

Wickersham, Olszewski and Beck, JJ.

Author: Olszewski

[ 358 Pa. Super. Page 41]

Appellant, Arthur Satzberg, was convicted of theft by unlawful taking, receiving stolen property, and related offenses by a jury in the Court of Common Pleas of Bucks

[ 358 Pa. Super. Page 42]

County. Post-verdict motions were filed and denied. Appellant was sentenced to two years' probation and restitution, and now appeals the judgment of sentence to this Court.

Three separate issues are raised in this appeal: first, whether the trial judge, the Honorable Kenneth G. Biehn, should have ordered a hearing before another judge when appellant filed a recusal motion alleging prejudicial conduct by Judge Biehn; second, whether the trial court improperly denied appellant's request for a new trial based on after-discovered evidence; and third, whether the prosecutor's references to appellant's character and drug use should have resulted in a mistrial. Though affirming the trial court's holding on the first two issues, we disagree with the trial court's holding that the prosecutor's remarks concerning appellant's drug use did not cause prejudice sufficient to grant a mistrial. We therefore reverse and remand this case for a new trial.

Before addressing the legal issues raised by the case, a brief recital of the facts is necessary. In late 1980, appellant and Joel Katz, his cousin and business partner, established a scrap metal business, the International Metals and Refining Corporation. Each partner contributed assets to the new corporation, though the bulk of the assets and equipment came from Katz's former scrap metal business. Industrial Valley Bank of Philadelphia financed the fledgling corporation by providing loans totaling approximately $250,000.

During the next several years, the corporation did not prosper. According to witness testimony, the corporation during its first two years made only enough to pay its creditors. Indeed, early in 1983 the appellant and Katz discussed the possibility of liquidating the corporation to pay off the bank loans. In March 1983, while Katz was vacationing in Florida, the appellant removed all of the corporate assets, equipment, and records from the premises of the business; and he has never revealed the location of these items. He also subsequently collected approximately

[ 358 Pa. Super. Page 43]

$25,000 in corporate accounts receivable by representing himself as the corporation's agent. The funds, however, were not deposited in the corporation's accounts; rather, the money was deposited in appellant's bank account.

Katz thereafter filed charges against the appellant for theft of property and receiving stolen goods, claiming that appellant was not authorized to act as he did. Though admitting taking the corporate assets and equipment, appellant maintained at his jury trial that he acted only to protect his corporate interests from the effects of Katz's bookmaking activities. In his testimony, appellant stated that he believed Katz's activities would result in their business' destruction, and this belief motivated appellant's actions to minimize his losses. The jury, however, was not persuaded and found appellant guilty of the crimes charged. Following denial of his post-trial motions, appellant filed this appeal.

The first issue appellant raises on appeal is whether the trial judge should have ordered a hearing before another judge when a recusal motion was filed alleging prejudicial conduct by the trial judge. For the reasons stated below, we hold that the trial judge was ...


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