Apr 19, 2011 By Jennifer Harr 6 min read

?A three-judge panel of the federal appeals court has ordered a lower court to vacate the robbery conviction of a Fayette County man who already has had his first-degree murder conviction and death sentence in a 1986 killing overturned.

In a 44-page ruling issued Monday, the judges found that Mark David Breakiron, 49, of Hopwood was prejudiced when former Fayette County prosecutors did not turn over evidence that could have impeached — or made jurors question the credibility of — key prosecution witness Ellis Price.

Breakiron was charged with the March 24, 1987, beating and stabbing death of Saundra Marie Martin at the former Shenanigan’s Lounge in Georges Township. During his trial in 1988, jurors convicted him of robbery and first-degree murder, for which Breakiron was sentenced to death.

Police and prosecutors alleged Breakiron stole Martin’s purse and stole money bags from the bar.

Martin’s body was found buried in a shallow grave in a park near Hopwood.

In 2008, a district court judge overturned Breakiron’s murder conviction, ruling that Price received consideration for his testimony, even if there were no written agreements with prosecutors.

That consideration was not disclosed to defense attorneys in the case, U.S. District Judge Nora Barry Fischer found in the ruling that ordered Breakiron retried for Martin’s death. While Fischer overturned the murder conviction, she found that Breakiron’s robbery conviction could have been supported by evidence that was not provided in Price’s testimony.

Price had testified Breakiron admitted to him that he premeditated Martin’s death. Premeditation is necessary for a first-degree murder conviction.

In vacating the murder conviction three years ago, U.S. District Judge Nora Barry Fischer found that prosecutors should have disclosed that Price sought a deal for his testimony, and that they ultimately did not prosecute him in an unrelated burglary.

She upheld the robbery conviction, however.

Breakiron’s attorney, Stuart Lev, appealed to the 3rd Circuit Court, asking that Breakiron’s robbery conviction also be tossed out.

Prosecutors did not appeal the overturned murder conviction.

U.S. Court of Appeals Senior Judge Richard L. Nygaard, who wrote the opinion on behalf of the panel, cited that evidence that was not turned over, and also noted that Breakiron’s trial attorney was ineffective for two different reasons.

The opinion, which ordered Fischer to vacate the robbery conviction too, notes that Breakiron can be retried on both the homicide and the robbery.

“Although our review and opinion, as they must, focus on the procedural aspects of Breakiron’s trial, three essential factors remain central and cannot be marginalized: a woman named Saundra Marie Martin is dead; money was stolen from the owner of Shenanigan’s; and Mark Breakiron must respond for the horrible sequence of events that occurred there,” Nygaard wrote. “The procedural pathway to the final disposition for Breakiron, however, must follow strict guidelines.”

Fayette County District Attorney Jack R. Heneks Jr. said he would call upon the state attorney general’s office to retry the case because he handled a pretrial hearing on Breakiron’s behalf when he was a public defender.

“As a result of that, our office is precluded from pursuing the case,” Heneks said, noting he would have no further comment on the ruling.

Lev declined comment, noting that he had yet to read the ruling, and a spokesman for the attorney general’s office also declined comment on the ruling.

At his April 1988 trial, Breakiron did not deny that he killed Martin, but put on a defense of voluntary intoxication and diminished capacity.

His attorney argued for a third-degree murder conviction.

Price, who was in prison with Breakiron while he was awaiting trial, testified they had conversations in which Breakiron admitted that he hid until there were no patrons left at the bar, and then beat Martin with an ashtray and then pulled out a knife.

Price testified Breakiron told him he took Martin to a relative’s home, where he killed her.

Breakiron, however, testified Martin hit him first, and he blacked out, and awoke to find her with a knife sticking out of her back.

He testified he left and returned later to put Martin’s body in his truck, and then stole the money bags.

Nygaard wrote in the opinion that Price’s testimony as a whole undermined Breakiron’s testimony and there was a question about how the jury would have ruled if they had been able to hear about Price’s consideration for his testimony.

Price’s testimony as a whole undermined Breakiron’s testimony, the ruling found, because Price testified that Breakiron told him something different than to what Breakiron testified.

“Even though Price did not testify directly that Breakiron told him anything about the theft, Price’s testimony undermined Breakiron’s credibility as a whole. With no other direct evidence on when Breakiron formed the intent to take the money, Breakiron’s own credibility was crucial,” Nygaard wrote.

The panel, which also included U.S. Court of Appeals Judges Thomas L. Ambro and Julio M. Fuentes, found that Breakiron’s trial attorney should have asked a judge to charge jurors on theft, which is a lesser included offense of a robbery charge because Breakiron testified he took the money after Martin was already dead.

Because his attorney didn’t ask a judge to charge the jury on theft, jurors were left the option of convicting Breakiron of robbery or acquitting him, the opinion stated.

The opinion also noted that Breakiron’s trial attorney should have asked for a mistrial when a potential juror — in the presence of other potential jurors — said Breakiron “used to do a lot of robbing.”

One of the potential jurors ultimately ended up as a juror who convicted Breakiron.

“Such evidence is all the more prejudicial where, as here, it reveals that the defendant previously committed the very kind of crime of which he or she stands accused,” Nygaard wrote.

He also noted that “…it would have been obvious to any reasonably competent counsel that corrective action was both available under Pennsylvania law and essential to preserve Breakiron’s presumption of innocence.”