Trending
An Altoona man arrested nearly a decade ago for spending money mistakenly placed in his local bank account has lost his plea for a new trial.
The Pennsylvania Superior Court last week dismissed Herbert Starbird's appeal asking for a new trial on charges of theft of property lost or mislaid and receiving stolen property.
The late Blair County Senior Judge Thomas G. Peoples in May 2010 sentenced Starbird to make restitution to First Commonwealth Bank of more than $157,000, a figure that included most of the money he had spent from the $280,000 mistakenly placed in his bank account on Oct. 23, 2007.
Starbird initially contended that he checked with the bank to determine if the money had properly been put in his account and was told it had been.
He also indicated he believed the money was from a relative.
Those excuses weren't accepted by the bank, and after months of attempting to come to a resolution of the dispute, the bank asked the Altoona Police Department to file criminal charges.
Starbird, now 65, went to trial with his Altoona attorney, Thomas M. Dickey, arguing the case represented "The Little People versus Bank Power."
Peoples, in addition to restitution, sentenced Starbird to a year of house arrest, followed by six years' probation and 500 hours of community service.
Starbird hasn't stopped fighting his conviction.
His most recent post-conviction appeal was dismissed by Blair County Judge Jolene G. Kopriva on June 22, 2016.
His appeals' attorney, Matthew R. Dombrosky of Altoona, then took the case before Superior Court Senior Judge James J. Fitzgerald III and Judges John T. Bender and Paula Francisco Ott.
They upheld Kopriva's decision in an opinion issued last Friday.
The defense argued that Dickey, Starbird's trial attorney, should have called former Altoona Detective Scott Koehle as a witness for Starbird because he could have testified to Starbird's "good faith effort" to pay back the money, and it was contended that Koehle would have stated the evidence of theft against Starbird was "dubious."
Kopriva pointed out in her opinion that the city detective's investigation centered on testimony by bank employees who explained to the jury how $280,000 was mistakenly placed in Starbird's account.
Because the case rested on the credibility of the bank employees, both sides agreed that whatever the detective had to say about the case could be submitted by stipulation.
Kopriva stated: "(Starbird) cannot show that he was prejudiced by any ineffectiveness of his trial counsel as Detective Koehle was not a potential fact witness.
"Detective Koehle could only testify as to his investigation, testimony which would have been full of objectionable hearsay," the judge stated.
She then concluded even if Koehle had been called to testify and provided information adverse to the prosecution, "It would not have made any difference in the outcome of this case."
"The commonwealth had overwhelming evidence against (Starbird) and Detective Koehle could provide no proof or absolution to the charges for which the jury found (him) guilty," she stated.
The three-judge Superior Court panel agreed with Kopriva, stating the defense could not establish prejudice against Starbird because evidence of Starbird's guilt was "overwhelming."
There was no violation of Starbird's right to confront his accuser (another defense argument), the appeals court stated, because the detective did not testify and because whatever "assertions and opinions" he had about the case were not admitted into evidence.
The panel stated Koehle's testimony was not necessary to ensure the fairness of Starbird's trial.
According to the appeal's court summation of the case, Starbird, a retired physicist with the National Institutes of Health, rejected two proposals by the bank to settle the restitution question, including a mortgage on his home for the amount of the missing funds, or 80 percent of the net sale of his Altoona home as partial payment.
Starbird also turned down a plea agreement placing him on accelerated rehabilitation disposition, according to District Attorney Richard A. Consiglio, speaking after the sentencing hearing.