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June 16, 1993


Ditter, Jr.

The opinion of the court was delivered by: BY THE COURT; J. WILLIAM DITTER, JR.

The defendant, Jerry Polin, was convicted of making a destructive device and attempting to destroy by fire the Whitemarsh Plaza Building in Whitemarsh Township, Pennsylvania. Mr. Polin moves for a new trial on the basis of five alleged trial errors. I have carefully considered his arguments as well as the possibility that his conviction resulted in a miscarriage of justice and have decided defendant's motion must be refused.

 I. The Trial

 A. The Government's Case

 The government put on the following case against Jerry Polin. At approximately 3:00 a.m. on January 2, 1990, a fire began at the Whitemarsh Plaza Building, 15 East Ridge Pike, Conshohocken, Pennsylvania. Firefighters discovered smoke emanating from a vacant, locked office on the second floor. Breaking down the door, they found a charred, five-gallon, metal Charles Chips container on the floor inside. *fn1" Several wires ran through the lid of the can connecting a 24-hour timer, which was plugged into a nearby wall receptacle, to a light fixture inside. Investigators later found inside the can burnt remnants of gasoline-soaked newspaper, two lightbulbs, *fn2" a can of brake fluid, two cans of wire dryer (a highly volatile mixture), and several brown, liquid-containing bottles.

 According to James D. Powell, an explosives enforcement officer with the Bureau of Alcohol, Tobacco, and Firearms, this device (or "bomb") was intended to create "a very large fire." (N.T., 1/24/92, at 16). The building was only saved, Officer Powell opined, because the lid had been left on the can depriving the bomb of sufficient oxygen for combustion. (Id. at 15.)

 On the floor near the bomb, Whitemarsh Township Fire Marshal Calvin Bonenberger testified, were "burnt remnants of filters like air filters, and there was one all rumpled up air filter, and . . . remnants of a cardboard box that I secured." (N.T., 1/21/92, at 28).

 Jerry Polin's business, a medical claims processing company called Data Med, Ltd., was right next door. More specifically, Data Med's computer room was directly adjacent to the vacant office where the bomb had been set. The government presented one piece of direct evidence linking Polin to the bomb: a palm print found on one light bulb inside the can which matched Jerry Polin's. (See Testimony of Richard Leas, FBI fingerprint specialist, N.T., 1/22/92, at 156-60).

 The rest of the government's evidence was circumstantial. Polin admitted he spent time at Data Med the evening of New Year's Day, 1990, approximately nine hours before the bomb was set to ignite. There is some dispute as to whether he was there until 6:30 p.m. or 7:30 p.m., but he does not contest that he was in his office at least briefly that evening.

 Fire Marshal Bonenberger also testified that in Polin's personal office, he found two air filters which precisely matched the ones whose remnants he found near the device.

 Both Bonenberger and Whitemarsh Detective Scott McElree testified that they saw an imprint or impression in Polin's office rug which matched the dimensions of the cardboard box whose remnants Bonenberger had found in the vacant office.

 Bonenberger and McElree also opined that two ceiling tiles above Data Med's computer had been moved some time before the fire (presumably, to help the fire spread). (N.T., 1/21/92, at 32; 1/23/92, at 97). They further said they believed that the tiles had been moved from inside Data Med's computer room, and not from the vacant office next door. (N.T., 1/21/92, at 31; 1/23/92, at 97). They concluded that the culprit therefore had access to Data Med's computer room as well as to the vacant office the night of the fire.

 John Scharff, a locksmith hired to change the locks at Data Med in November, 1989, testified that Jerry Polin had once told him he knew how to pick locks and that he owned lockpicking tools. (N.T., 1/23/92, at 8, 13). Michael McCurdy, manager of the Whitemarsh Plaza Building in 1989, testified that Polin had once told him exactly the same thing. (Id. at 19-20). *fn3"

 Sheila Devine, to whom Jerry Polin sold Data Med in April, 1990, testified that approximately one week after the fire, Polin described to her in detail the components of the bomb. According to Fire Marshal Bonenberger, this was long before those details were publicly disclosed. Ms. Devine stated:

A. He told me that it had been set to go off at about 3 in the morning on New Year's Day eve, and that it had been set in an empty Charlie Chips can, and into that can was placed numerous brown pharmacy bottles filled with a flammable material. On top of that was placed a naked lightbulb, which was plugged into a timer, which was set to go off at 3 in the morning.
Q. Did you ask him how he knew about all this?
A. Yes, I did. He said he read it in the newspaper.

 (N.T., 1/22/92, at 86).

 ATF Special Agent Richard Weber later testified that his investigation had disclosed that no newspaper ever printed the details of the makeup of this bomb. (N.T., 1/23/92, at 28-32).

 Detective McElree also testified that before he left Jerry Polin's office the night of the fire, he looked on Polin's desk for a photograph to see if this Jerry Polin whose office had just been damaged was the same Jerry Polin who had designed and installed the Whitemarsh Township police department's security system. (It was.) McElree saw no family pictures. (N.T., 1/23/92, at 103-04). Earlier, Data Med's data entry clerk, Agnes Laskey, had testified that Polin usually kept a family photograph on his desk. (N.T., 1/22/92, at 63). Indeed, that photograph was visible in another picture of Polin's office taken some time before the fire (Defense Exhibit 11B, testimony of Detective McElree, N.T., 1/23/92, at 103). In its closing, the government suggested that Polin had deliberately removed his family photograph from the office before setting the bomb he believed would burn the building down.

 The government also presented evidence that Data Med was in financial trouble. Polin testified he had bought the company for $ 25,000 in 1988 but that in 1989, it lost approximately $ 30,000. (N.T., 1/27/92, at 64). Agnes Laskey, the data entry clerk, testified that customers were dissatisfied and going elsewhere. (N.T., 1/22/92, at 63). Polin himself admitted business had been bad (N.T., 1/27/92, at 28, 60) and that Data Med owed approximately $ 10,000 in back rent and more than that amount in legal and other professional fees. (N.T., 1/22/92, at 80-81; 1/27/92, at 60). Finally, the government emphasized that Polin maintained a $ 70,000 insurance policy on Data Med.

 B. The Defense

 Polin's defense consisted mainly of character testimony and an effort to shift suspicion to Data Med's prior owner, Howard Karpo. The character evidence was extensive and impressive. Polin presented 11 witnesses who testified to his reputation as a trustworthy and law-abiding citizen. These witnesses included a rabbi, a cantor, three family members, and six friends and business associates. (See N.T., 1/24/92, at 23-39; 1/27/92, at 2-17). Nine other friends and relatives stood to vouch for Polin's reputation on the record. (See N.T., 1/27/92, at 17-21).

 On direct examination, Polin testified to his own experience as a successful, trusted computer engineer. Before purchasing Data Med, he had designed and installed security systems for several police departments, including Whitemarsh Township's. He said he enjoyed significant professional trust, particularly with law enforcement clients:

We had access to rather confidential information. We had access to in some cases the keys to the police department. At Cheltenham they gave me the key to the building so that as we installed various things in the building we didn't have to run around getting keys to areas. In fact, the only key that I didn't have was to the evidence locker.

 (N.T., 1/27/92, at 24).

 Polin was a civic leader as well. After leaving the army in 1955, he helped to found the Cheltenham Auxiliary Police, in which he then served for ...

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