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12/30/97 COMMONWEALTH PENNSYLVANIA THOMAS M.

December 30, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT; THOMAS M. BALENGER, APPELLEE


Appeal from the Order Entered April 3, 1996, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8908335.

Before: Popovich, Hudock, and Hester, JJ. Opinion BY Hester, J.

The opinion of the court was delivered by: Hester

OPINION BY HESTER, J.:

Filed December 30, 1997

The Commonwealth appeals the April 3, 1996 order granting appellee, Thomas Balenger, a new trial. At issue is whether the prosecutor's amorous relationship with appellee's former girlfriend was a conflict of interest requiring the grant of a new trial. We agree with the PCRA court that there was a conflict of interest and that all prior counsel were ineffective for failing to raise this issue. Hence, we affirm.

The prosecutor at appellee's trial, William Jones, Jr., began a meretricious relationship with Lana Conte prior to the institution of the charges at issue in this case. At the time, Jones was married to Lola Jones. Lana was appellee's girlfriend when Jones met her. Through Lana, Jones learned that appellee and Christopher Grabowski had been involved in a robbery. Grabowski was questioned and confessed. Charges were instituted against appellee. The record establishes that Jones was interested in pursuing these charges in order to eliminate appellee as a rival for Lana's affections. He prosecuted this case against appellee even though the case originally had been assigned to another assistant district attorney. Jones and Lola subsequently divorced, and he and Lana married.

On June 19, 1989, appellee was charged with two counts of criminal conspiracy and one count each of burglary, armed robbery, theft, terroristic threats, unlawful restraint, and false imprisonment. At the time the charges were instituted, appellee was jailed on charges relating to his armed robbery of a store known as Katz 'N Kids Deli in the Squirrel Hill section of Pittsburgh. During the course of that robbery, the owner of the store had been shot and injured.

The June 19, 1989 charges stemmed from an incident that had occurred approximately twenty months earlier, on November 8, 1987. That day, William F. Martin was robbed at his residence at 105 Marshall Drive, in the Mount Lebanon section of Pittsburgh. The perpetrators absconded with $70,000 in cash and jewelry.

At approximately 10:30 p.m. on November 8, 1987, Christopher Grabowski came to Mr. Martin's door and said that his car was broken down. Mr. Martin led Grabowski to the telephone, and Grabowski dialed but did not receive an answer. When Grabowski said that he was not able to reach the person he was calling, Mr. Martin told him to return if he needed any further help.

Approximately one-half hour later, the doorbell rang again. Mr. Martin looked through a peephole and saw Grabowski. However, when he opened the door this time, a masked man forced his way into the house, followed by Grabowski.

The masked man, who was armed, told Mr. Martin that he knew that Mr. Martin owned gas stations, had significant amounts of cash, and kept that cash in a safe. The masked man later was identified as appellee. When Mr. Martin told appellee that he had just returned from the bank, appellee hit him on the face with the gun, giving him a black eye.

Mr. Martin took the men to his safe and opened it. The perpetrators took cash, jewelry, and a gun. They then bound Mr. Martin with cord and left.

Natalie Urban worked at one of Martin's gas stations and began dating appellee around September, 1987. Appellee constantly asked Ms. Urban questions about the financial operations of the gas station and other facts about Mr. Martin. Two days before the robbery, appellee told Urban that he intended to rob Mr. Martin. On the night of the incident, appellee went to Ms. Urban's home and told her that he and another person robbed Martin. Several days after the robbery, Ms. Urban accepted $5,000 in cash from Tony Mieglitz for supplying information about Mr. Martin. Mieglitz is a close friend of appellee. Ms. Urban pled guilty to receiving stolen property in connection with her involvement in the incident.

Mieglitz was interviewed by police in the presence of a lawyer. Mieglitz told police that appellee had asked for his help in robbing Mr. Martin, but Mieglitz refused. Mieglitz had agreed to take the money to Ms. Urban, knowing that it was proceeds of the Martin robbery. While this information from Mieglitz was used in obtaining a warrant, he did not testify at trial.

Grabowski, who was jailed, was interviewed in connection with the incident. While he did not sign a written confession, Grabowski told police that he was recruited by appellee to assist in Mr. Martin's robbery. Grabowski said that he came to the Martin residence and asked to use the telephone because his car was broken. Grabowski pretended to telephone someone, left the house, and returned with appellee. He admitted taking cash and jewelry from the Martin home. His redacted confession was introduced at trial.

Also introduced at trial was evidence that on November 17, 1987, appellee had purchased a car using $6,100 in cash and that he had no visible ...


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