Tamaqua restaurateur Alphonso Picone’s defense lawyer on Wednesday asked a Schuylkill County judge to dismiss all charges against his client and call a mistrial after the prosecutor asked a witness, poised to testify, if he was aware of his rights.

President Judge William E. Baldwin denied Ross M. Miller’s request.Miller was scheduled to call one more witness Thursday morning, with the jury beginning deliberations this afternoon.The trial began Monday for Picone, 46, who is accused of swindling John W. and the late Ella E. Burnard, both 91 at the time, of Lake Hauto, out of $300,119 between August 2013 and December 2014.He was charged by Rush Township in May 2015.The money came out of their banking and retirement accounts in the form of regular checks, temporary checks and cash withdrawals.Prosecutors contend it was used to keep the restaurant Picone co-owns and manages, La Dolce Casa, afloat and pay for improvements to his 181 Owl Creek Road home while he gambled thousands of dollars a month.On Wednesday, as Miller’s witness Leo Howell of Bethlehem took the stand, Deputy Attorney General Michelle L. Laucella asked him if he was aware of his rights.Miller immediately objected. After a brief private conference with Baldwin, the judge sent jurors out of the courtroom.That’s when Miller asked for a mistrial, accusing Laucella of prosecutorial misconduct and saying she intimidated his witness.“It’s a clearly intentional attempt to deny my client due process by intimidating the witness,” he said.“I’m certainly not going to dismiss the case,” Baldwin said.He asked Howell, a lawyer, if he had discussed with another lawyer his rights against self-incrimination.Howell said no, but left the courtroom to call one. He said he would either not testify, or invoke his Fifth Amendment rights against self-incrimination.He said he felt “threatened” by Laucella’s question.After Howell conferred with a lawyer, he agreed to testify.At one point during the discussion about Howell, Picone bolted from the courtroom. A court attendant said he was feeling ill; he returned a few minutes later.Signed documentHowell, asked by Miller about the nature of his testimony, said it was about a document he drafted at Picone’s request, to be signed by Ella Burnard, declaring the money to be a gift.Laucella said Howell, who had done business on several occasions for La Dolce Casa, and been paid through the business account, had never brought the document to light even though he sat through Picone’s entire preliminary hearing, in which witnesses presented evidence.Howell said the document slipped his mind until Picone reminded him of it in April 2015, just before the charges were filed.“I had forgotten about it, quite honestly,” he said.Ella, in mental decline until her death on June 13, purportedly signed the document on May 14, 2014.Later, an ink dating expert, Dr. Albert Lyte, would testify that testing in July of the notary signature and date of May 14, 2014, revealed it was made between six and 18 months ago, or between February 2015 and February 2016.He said he created the document, including the date of May 14, 2014, Ella’s name, and a list of five checks totaling $117,500 and brought it to the restaurant on that day, “hand delivering” it to Ella.He testified he, Picone and Ella sat in the back of the restaurant, where he read the document to her, including a section advising her she had a right to counsel, and that after Ella read it, “she signed it right then and there.”“Is it normal to do deals at a pizza shop?” Laucella asked.“It’s not abnormal,” Howell replied.The document warns of tax consequences of giving large monetary gifts, and states the person signing it is “of sound mind.”Asked about Ella’s diminishing mental capacity, Howell said he had spoken with her prior and she appeared to be of sound mind.Earlier testimony described her growing confusion and increasing memory loss, producing bizarre behavior and an inability to do things she once was good at, like card games.She had turned to Picone for help in paying bills and balancing her checkbook after she became unable to do that herself. Ella handled the family’s finances.The document also states that the gifts were given “after years of being a valuable friend and caring neighbor who assisted with daily activities.”Howell testified that Picone asked him to draft the document earlier that month, and “eventually, we had (Ella) sign it,” he said.Howell said he did not recall if John Burnard was present. Only Ella signed the document, although the money was drawn from their joint account.Although there were lines on the document to be filled out by witnesses, and there were people in the restaurant, there were no witness signatures.Nor was a notary present. Howell said he advised Picone to have the document notarized.Asked if he had the original document, Howell said no, that he gave it to Picone.“As long as Alfie had the original, I was fine with that,” he said.Also testifying was Wells Fargo employee Brian Keich, who said he handled the request to have Picone’s name added to the Burnards’ account on July 31, 2014. He said he saw nothing suspicious about the request, nor about the large checks written to Picone.The jury will begin deliberating this afternoon. Check

www.tnonline.com for updates and the verdict.