Nov 6, 2004 By Jennifer Harr 3 min read

If a visiting judge grants bail for David Joseph Munchinski later this month, state prosecutors want permission to file an immediate appeal to a higher court. Deputy Attorney General Jonelle H. Eshbach filed a motion Friday claiming that Judge Barry E. Feudale has no authority to release Munchinski from prison because prosecutors are appealing the judge’s ruling in the case. If Feudale grants Munchinski bail, Eshbach asked the judge for permission to file an immediate appeal to the state Superior Court.

Feudale ruled last month that three former Fayette County prosecutors intentionally withheld evidence from Munchinski during trials in the Dec. 2, 1977, deaths of James Alford and Raymond Gierke. That evidence, Feudale said, could have changed how jurors ruled when they ultimately convicted Munchinski in 1986. He was sentenced to serve two consecutive life terms.

Feudale, a senior judge from Northumberland County, vacated Munchinski’s conviction and said he would bar a retrial in the case if prosecutors did not turn over a 1982 taped statement by commonwealth eyewitness Richard Bowen.

Eshbach’s filing indicates that the tape does not exist, noting, “the commonwealth cannot produce what it does not have.”

She also claimed that because a judge in a prior post-conviction hearing dealt with the tape and determined it did not exist, Feudale wrongly allowed Munchinski’s attorney to bring it up again in the current hearing.

Under the Post Conviction Relief Act, once a point is litigated, it generally cannot be brought up again.

The tape of Bowen’s statement, according to testimony from former state trooper and now convicted murderer Montgomery Goodwin, was made by former prosecutors, now judges, Gerald R. Solomon and Ralph C. Warman. Both Solomon and Warman denied that Bowen’s statement was taped.

In a 1982 report, Goodwin references the statement being taped. Warman testified at a prior hearing that he altered Goodwin’s report to omit the reference to a taped interview because the trooper was in error. Feudale’s opinion indicates he believes the tape was made.

It was Bowen who broke the case for police in 1982, years after Alford and Gierke were killed. Bowen, who hung himself in prison several years ago, told police that he was the getaway driver for Munchinski and his co-defendant, Leon Scaglione, on Dec. 2.

After Bowen was granted immunity, he testified that he witnessed Munchinski and Scaglione, who was convicted and died in prison, sodomize and then shoot Alford and Gierke.

Prosecutors have filed an appeal of Feudale’s decision to vacate the conviction, and Eshbach’s filing indicated that once that appeal was filed, Feudale no longer has jurisdiction in the case.

Whether granting bail is appropriate given Munchinski’s first-degree-murder convictions “involves a controlling question of law as to which there is substantial ground for difference of opinion,” Eshbach wrote.

Attorney Noah Geary, who successfully got Munchinski’s convictions overturned, said Friday evening he planned to argue against Eshbach’s request for an immediate appeal. Geary also called Eshbach’s motion “just a desperate attempt to keep Munchinski in prison.”

“The attorney general wants to continue punishing David Munchinski, and why the attorney general is not instead looking at the conduct of Warman, Solomon and (former deputy prosecutor John) Kopas is beyond me,” Geary said.

Feudale earlier indicated he believed that all three former prosecutors engaged in prosecutorial misconduct for not turning over several pieces of evidence to Munchinski’s attorneys during two trials and a 1992 post-conviction hearing.

Eshbach addressed that issue in her Friday filing, denying that any of the three “intentionally concealed evidence or tampered with any evidence in any proceedings in this matter.”