A panel of Superior Court judges has denied Tamaqua restaurateur Alfonso “Alfie” Picone’s appeal of his conviction and sentence for bilking an elderly couple of their life savings in 2014.

Picone also asked for a new trial, and to be relieved of paying restitution.

The 25-page ruling was filed Friday by the panel of Paula Francisco Ott, Alice Beck Dubow, and Senior Judge Eugene B. Strassburger III.

Picone on Sept. 22, 2016, was found guilty by a Schuylkill County jury of theft by unlawful taking and receiving stolen property in transferring more than $300,000 from the bank accounts of John and Ella Burnard of Nesquehoning.

He was sentenced on Nov. 28, 2016, by President Judge William E. Baldwin to concurrent terms of 18 to 60 months in state prison, and ordered to pay $319,501.60 restitution.

Dubow detailed the panel’s responses to Picone’s six appeal issues.

The issues were whether there was sufficient evidence for the convictions; were the verdicts against the weight of the evidence such that Picone should be granted a new trial; did the trial court err in denying Picone’s request to preserve the testimony of victim Ella Burnard, who died before trial; was Picone denied due process and his right to confront witnesses when the trial court denied his motion of habeas corpus; was cross-examination limited by the trial court in such a way as to deprive Picone of due process and right to fair confrontation; and was he denied a fair trial when the prosecutor committed prosecutorial misconduct in suggesting before the jury that a key defense witness, Leo Howell, should be advised of his rights.

READ THE DECISION

Howell was the attorney who was involved with Ella Burnard signing a document stating the money was a gift to Picone.

In his appeal, Picone argued prosecutors failed to present any evidence he had deceived the Burnards; rather the testimony of John Burnard indicated that the couple intentionally and willfully transferred their money to him.

The panel ruled that there was “sufficient evidence for the jury to find that (Picone) took the Burnards’ money by taking advantage of Ella Burnard’s confusion and inability to understand what she was doing when she signed the checks. … The evidence established that (Picone) intended to deprive the Burnards of their money when he took it, and he was aware that it was stolen when he received it.”

Picone also challenged the weight the jury gave to the commonwealth’s evidence, and that the court erred in denying his motion for a new trial because the evidence at trial “clearly demonstrates that all of the money received from the Burnards represented either a gift or a loan.”

The panel found that “over the course of Picone’s four-day trial, the commonwealth presented the testimony of many witnesses who attested to the diminishment of Ella Burnard’s memory and mental acuity. In fact, the evidence indicates that this is precisely the reason underlying Picone’s involvement in “assisting” the couple with their finances in the first place.

“Picone’s spare argument highlights the parts of Mr. Burnard’s testimony that are favorable to Picone, and omits any discussion of the ample evidence of Mrs. Burnard’s incapacity provided by the commonwealth’s other witnesses. The jury’s verdict was far from manifestly unreasonable. Thus, we conclude the trial court did not abuse its discretion in denying Picone’s motion for a new trial,” the panel found.

The judges found Picone’s argument that the court erred in denying his request to have Ella Burnard’s testimony preserved on video was “significantly underdeveloped as he has failed to support this theory with citation to any case law.”

As to Picone’s habeas corpus argument, the judges sided with the trial court, noting that Picone failed to “explain the manner in which his rights were denied.”

As to the restitution, Picone argued that the amount is incorrect because the commonwealth failed to establish what part of the funds transferred to Picone from the Burnards’ accounts were either a gift or a loan.

The Superior Court panel found that the jury “heard testimony that Ella Burnard had cognitive problems at the time the alleged gifts were made. From that testimony the jurors could have, and apparently did, conclude that she was not capable of forming the donative intent to give their money to the defendant. Getting an individual who is not aware of what she is doing to sign a check by which her money is taken from her bank account is a taking. That clearly is what the jury concluded happened here,” the panel found.

“There was no evidence that Picone repaid any money to the Burnards even though he continued to take more of their money while expending large sums at casinos, remodeling his house and funding his business,” the panel found.

“The evidence supports the conclusion that Picone received, retained, and disposed of $319,501.60 of the Burnards’ money with knowledge that he stole it from them,” the panel found.