Com. v. Balenger

• Decision Date: 30 December 1997
• Citation: 704 A.2d 1385
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Thomas M. BALENGER, Appellee.
• Court: Pennsylvania Superior Court

Page 1385

704 A.2d 1385

COMMONWEALTH of Pennsylvania, Appellant, v. Thomas M. BALENGER, Appellee.

Superior Court of Pennsylvania.

Argued Oct. 28, 1997.

Filed Dec. 30, 1997.

Thomas N. Farrell, Asst. Dist. Atty., Pittsburgh, for Com., appellant.

Harold Gondelman, Pittsburgh, for appellee.

Before POPOVICH, HUDOCK and HESTER, JJ.

HESTER, Judge:

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 means of having that amount of cash.

By the time these charges were instituted, appellee was in prison, charged with the Katz 'N Kids incident. He and Grabowski were tried together in December, 1989, and convicted of one count each of burglary, robbery, theft by unlawful taking, unlawful restraint, and conspiracy. Appellee was sentenced on September 25, 1990, to thirteen to twenty-six years imprisonment. On direct appeal, appellee raised six issues, including the ineffective assistance of trial counsel.

One of the allegations of ineffectiveness included that, "Appellant has informed present counsel that he has evidence to suggest that the Assistant District Attorney was in addition carrying on a relationship with [appellee's] girlfriend. This allegedly was told to trial counsel and trial counsel did not act on this information." Superior court memorandum, 9/10/91, at 10. We ruled that the assertion was not a sufficient offer of proof regarding the facts and that, as the reviewing court, we had no basis upon which to conclude that counsel was ineffective. We also stated that our resolution of the issue did not preclude appellee "from seeking collateral relief under the Post Conviction Relief Act" as to the merits of the claim.

On June 1, 1993, appellee filed a post-conviction petition. Included in that petition was the allegation that trial counsel was ineffective for failing to apprise the court of a relationship between the assistant district attorney who prosecuted appellee and appellee's girlfriend, Lana. Appellee also averred that prior to trial, Lana had visited him in jail and that Lana gained information from appellee and funneled it to Jones to aid Jones in the prosecution of this action.

Appellee's appointed counsel then filed an amended petition, alleging that trial counsel was ineffective for failing to delve into the Conte-Jones relationship further. In the amended petition, appellee averred that Jones was using Conte during the course of these proceedings as an "agent" to "conduct investigations" for the Commonwealth. Amended petition for PCRA relief, 12/6/93, at 2. In the petition, appellee also averred that he told trial counsel about the situation, but counsel did not investigate or apprise the court of these charges.

Hearings were conducted on the allegations. The first hearing was held on September 8, 1995. Appellee's trial counsel, Kevin Sasinoski, testified as follows:

Q. Do you recall meeting with Mr. Balenger and him raising the question of a relationship between his former girl friend or fiancee with Mr. Bill Jones, who was prosecuting the case at the time?

A. I believe that he may have, but again, it is just general recollection. The specifics of what the relationship was or what was said, I don't remember at this time.

Q. Did you make any effort to ascertain what the extent of that relationship was?

A. I think in general terms he may have said that the girl who was going to testify against him he believed or it was his belief that she was seeing Mr. Jones socially. I said, How do I prove that? Where do we go with that? I don't know that I really was sure what to do with that.

Notes of Testimony ("N.T."), 9/8/95, at 20 (emphasis added). Mr. Sasinoski also indicated that he conducted no further investigation into appellee's allegations.

On March 5, 1996, the PCRA court issued findings of fact for purposes of the record with respect to the PCRA petition. These findings of fact are all supported by testimony from March 1, 1996, and March 4, 1996 hearings.

In January, 1987, appellee was paroled from a state sentence he then was serving. Approximately six weeks later, he met Lana Conte, who is now Lana Conte Jones. They started to live together by spring. They continued the intimate relationship throughout the summer and fall of 1987. During this period, appellee continued to commit crimes and also boasted about them to Lana. During this period, he committed the armed robbery of the Katz 'N Kids and Mr. Martin.

Shortly before Thanksgiving, 1987, Lana decided she could no longer continue her relationship with appellee, and she asked for a transfer from her employer, U.S.Air, to Cleveland, Ohio, to get away from him. Lana and appellee had dinner together on Thanksgiving, 1987. She told him then that she was moving to Cleveland and terminating their relationship. In the meantime, appellee had learned that there was a warrant for his arrest for the Katz 'N Kids robbery, and he told her that he was leaving the jurisdiction.

However, appellee and Lana continued to have contact with each other. Appellee's location in Maryland was discovered by police through a wiretap placed on Lana's telephone. Appellee was apprehended and returned to Allegheny County Jail, where he was held pending disposition of his parole...