A Question of Innocence: Star witness's story full of inconsistencies 

Monday, June 24, 2002

By Bill Moushey, Post-Gazette Staff Writer 

Second of two articles

As David Munchinski sat in a hearing on two murder charges that would eventually condemn him to a life behind bars, he noticed a disheveled man, apparently waiting to testify.

 He leaned over to his co-defendant, Leon Scaglione, and said: "Hey Leo, who is this guy here?" That, Munchinski said, was "the first time I ever saw Rick Bowen."

	A Question of Innocence  Witness recanted testimony in another case   Part One: Daughter's questions could help free dad

Richard Bowen, a drunk and petty criminal, would testify that he watched as Munchinski and Scaglione sodomized and killed James Peter Alford and Raymond Gierke during a drug robbery in December 1977 in Bear Rocks, a section of Bullskin Township in Fayette County.

 Bowen said he then drove the getaway car.

 While there were other witnesses against Munchinski and Scaglione, Bowen was the only one who said he was present at the murder scene, and that made him crucial in Munchinski's being convicted and sentenced to life in prison.

 Yet today, 15 1/2 years into his sentence, Munchinski insists: "I never associated with [Bowen] ... [and] never knew who he was."

 Bowen told his story in both of Munchinski's murder trials. Then, several years later, he twice recanted his court statements and said state police had coached him on his testimony. But then he reversed himself again, saying he had told the truth the first time.

 No one will ever be able to tell which story was the truth, because four years ago, Bowen hanged himself in an Oklahoma jail.

 Still, he did leave one legacy of value to Munchinski, who is jailed at the State Correctional Institution at Pittsburgh.

 Bowen's statements were so riddled with inconsistencies that they helped persuade a Fayette County judge to finally reopen Munchinski's murder case. The initial hearings took place last week before Senior Judge Barry Feudale of Northumberland County, and a full hearing on the issues is expected to begin in October.

	Is this man guilty? David Munchinski was convicted of killing two drug dealers in a remote mountain cabin in Fayette County in 1977. He has served 15 1/2 years of a double life sentence.  But consider this: The star witness against him, now dead, twice said he lied about what he saw, and said he was coached on his testimony by state police. Prosecutors hid a police report that suggested the star witness wasn't even in Pennsylvania on the day of the killings. Munchinski's co-defendant, who confessed to the killings, said in open court that another man was his partner in the crimes. Both of these men also are dead. The husband of one of the women who testified against him says she now believes that he didn't commit the crime. At least four other men were described as likely suspects in the killings, but police either didn't question them or didn't pursue the questioning. Munchinski's blood type doesn't match the physical evidence found on the victims.  Despite all these problems with the evidence, Munchinski has lost every appeal he has filed. But now, he has a fresh chance, thanks to a daughter who has worked for years to find the facts that might free him.  Part 1 described the crime, the suspects and Munchinski's arrest. Today's final part details the star witness and the numerous problems with his testimony.

At the time of the Bear Rocks murders, nothing seemed to be going right in Bowen's life. He was a drug and alcohol abuser, a wanderer who moved in and out of houses, relationships, jail and jobs.

 Many of his crimes were petty -- legally, and in their particulars. He was once charged with stealing a can of noodles. Another time, he was implicated in the theft of donation envelopes from a Catholic rectory.

 Bowen's name did not show up in any of the hundreds of police reports filed in the first 3 1/2 years after the killings.

 He emerged as a figure in the case only after he had summoned troopers to the State Correctional Institution at Greensburg on June 24, 1981, where he was doing time for burglary and related charges in Hempfield.

 In his first report to police, Bowen said he had met Scaglione in jail in June 1978, more than six months after the murders.

 Bowen said Scaglione, who had been diagnosed as a paranoid schizophrenic and had been institutionalized in the past, made several jailhouse confessions about the Bear Rocks case.

 Bowen said Scaglione told him he "shot the two guys up at Bear Rocks, [and] the reason he shot them was he was paid to do a hit by either a doctor or [an] attorney."

 At the time, police barely made note of Bowen's claims, writing a single paragraph in their report.

 But 15 months later, his story about the Bear Rocks killings began to grow.

 Two things had happened in the meantime.

 First, prosecutors in Allegheny County had used Bowen's testimony to help convict a man in the shooting death of a New Kensington drug dealer, meaning he had proven to be a successful witness in one homicide trial.

 Second, Bowen was in trouble again.

 He was living in Beaver County after getting freedom from jail for his testimony in the New Kensington homicide case when he was accused of stealing the church donations from a Catholic parish.

 With his long record, he was looking at considerable prison time if convicted of the church theft. So he summoned state troopers to the Monaca Police Department to make a second statement about the Bear Rocks case.

 This time, Bowen requested a grant of immunity. The troopers initially refused to promise him anything. Bowen told his story anyway.

A witness claim

 In his Sept. 9, 1982, statement, Bowen said he had been drinking with Munchinski and Scaglione on the night of Dec. 1, 1977, in a Greensburg bar.

	The Innocence Institute of Western Pennsylvania is a new investigative reporting organization that probes allegations of wrongful convictions.  Started in 2001, it is being developed in partnership with the Department of Journalism and Mass Communication of Point Park College and the Pittsburgh Post-Gazette. Post-Gazette staff writer Bill Moushey, the author of this series, is director of the institute and an assistant professor at Point Park.  The institute's goals are to provide a unique real-world learning environment for aspiring journalists, who learn investigative reporting skills so they can analyze claims by convicts or suspects and can examine allegations of misconduct by prosecutors.  Over the past two years, graduate and undergraduate journalism students have read thousands of pages of court records, interviewed witnesses, visited crime scenes and written extensively about the Bear Rocks murder case in preparation for these reports.  The students involved were Point Park graduate students Mark Bursic, Jaime McLeod, Craig Campbell, Carmela Greco and Chuck Brittain; Point Park undergraduate students Amanda Gillooly, Misty Chybrzynski, Patrick Fulton, Mark Ionadi and Jasmine Gehris; and University of Pittsburgh undergraduate students Matthew Schliesman and Erin Lindeman, who enrolled in the class through a cross-registration program offered through the Pittsburgh Council on Higher Education.  Moushey can be reached by e-mail at Bmoushey@ppc.edu. Mail can be sent to the program in care of: The Innocence Institute of Western Pennsylvania, Point Park College, Room 510, 201 Wood St., Pittsburgh 15222-1984.

After he had tossed back more than 10 beers and shots of whiskey, and smoked some marijuana, Bowen said, he was handed the keys to Scaglione's lime green Ford Gran Torino and told to drive Scaglione and Munchinski up winding roads to a cabin in Bear Rocks.

 During the trip, he said, Scaglione repeatedly flashed a chrome plated .25-caliber automatic revolver.

 Bowen said he parked the car on a hill just past the cabin where Gierke and Alford lived. Munchinski and Scaglione got out of the car and removed something from the trunk before walking to the cabin.

 Then he heard boards being pried open.

 Moments later, he said, the two came running back to the car and told him to drive away quickly. After they sped away from the cabin, Bowen said, Scaglione tossed his weapon out of the car into a lake.

 State police took that statement to Gerald R. Solomon, who was the Fayette County district attorney and is now a judge in Fayette County Common Pleas Court.

 That led to a series of meetings between Bowen and investigators.

 Soon, he was telling them that that he hadn't stayed with the car, but had gone with the two men to the cabin.

 There, he said, he watched as Munchinski and Scaglione sodomized and then shot Alford and Gierke at point-blank range. Police decided that testimony, combined with that of three other people who claimed Munchinski and Scaglione had confessed the killings to them, was enough to file charges.

Holes in the story

 But there were several problems with Bowen's story, besides the fact that it kept changing and becoming more detailed:

 Scuba divers never found a weapon in the lake where he said it had been tossed.

 The lime green Gran Torino he identified as the getaway car wasn't purchased by Scaglione until after the murders.

 And while Bowen contended he watched Munchinski and Scaglione sodomize the victims before murdering them, forensic tests later showed Munchinski's blood type did not match that of either sperm sample taken from the victims.

 Bowen also could not account for why Alford's body was found 114 yards away from the cabin, on a neighbor's porch, when a forensic pathologist said Alford would not have been able to walk out of the cabin if he had been shot point-blank in the back.

 Bowen said he had watched Gierke, the other victim, as he was killed by gunfire, yet never mentioned the fact that Gierke had placed a phone call for help, saying he had just been shot.

 But the juries in Munchinski's two trials weren't able to see most of the holes in Bowen's story.

 They learned about the Torino being purchased after the killings, but didn't consider it persuasive, because prosecutors discovered that Scaglione had owned a different colored-Gran Torino at the time. That meant Bowen could just have been confused about the color.

 Munchinski's lawyers never challenged Bowen on his apparently faulty account of seeing Alford shot inside the cabin, or his failure to see Gierke make a phone call.

 And jurors never learned about the difference in blood types between Munchinski and the sperm in the victims, because defense lawyers at the time didn't delve into the results of those tests. 

Defense lawyers also failed to pursue what had happened to skin scrapings found underneath Alford's fingernails that disappeared while in the custody of state police.

 There also were other pieces of critical evidence the jurors never saw, even though Munchinski's and Scaglione's lawyers asked for it.

 Under what is known in American law as the "Brady Rule," prosecutors are obliged to give defense lawyers any information that might help exonerate a suspect or challenge the credibility of prosecution witnesses.

 Based on records located long after Munchinski's conviction, his lawyer says it is now clear that Munchinski never received all of that information.

Was he out of state?

 One question defense attorneys raised was whether Bowen was even in Pennsylvania at the time of the Dec. 2, 1977, killings.

 Before Munchinski's first trial, the defense lawyers had information that Bowen had fled the area to escape an outstanding warrant on a burglary charge in Westmoreland County.

 Solomon, the Fayette County district attorney, repeatedly said his office had no information on Bowen's whereabouts the day of the killings.

 That turned out to be false.

 In late November 1977, Pennsylvania State Trooper George Bates had been assigned to investigate the theft of a wine bottle full of spare change from a Hempfield trailer park. The one and only suspect in the case was Richard Bowen.

 In one of his reports, Bates said Bowen's sister and another woman said they put Bowen on a bus to Oklahoma on Dec. 1, 1977, one day before the Bear Rocks murders. Bowen's stepmother later confirmed that he had arrived in Oklahoma by bus in early December.

 But Bates' police report did not surface until two years ago, when Munchinski's daughter Raina filed a subpoena with the state police as part of a federal suit challenging his conviction.

 The Fayette County prosecutors also had claimed in several court pleadings that Bowen received no prison time reductions or cash payments in exchange for his testimony in the homicide case.

 Yet Bowen eventually admitted in sworn statements that in exchange for telling his story in court, he was paid $600 by state police to relocate, and received another dozen or so cash payments of $50 to $150 from them.

 Bowen also was promised a $10,000 reward offered by Alford's family. He never got it, because Alford's father, who listened to Bowen implicate himself on the witness stand, refused to pay it.

 Court records in Westmoreland County also show Bowen got an early release from prison on the trailer court burglary case, and that he was granted breaks at least twice on parole violations, "at the request of [then Westmoreland County District Attorney] John J. Driscoll because of [Bowen's] role as a witness in a murder trial in Fayette County," according to two reports found by Raina Munchinski years after the conviction.

 Munchinski and his new lawyer, Noah Geary of Washington, Pa., say the payments and jail time relief could have been important information in his trials.

 In fact, prosecutor Ralph Warman made a point in his closing arguments of saying: "Did you hear anyone testify that [Bowen] received anything other than immunity? No ... Does that go to bolster his testimony to indicate that [Bowen] was there?"

 One final omission: It turns out state police recorded at least seven of their interviews with Bowen on audio or video tape, yet the tapes have never been turned over to Munchinski's lawyers. 

The trials

 It is impossible to know how persuasive any of the missing information might have been.

 The first homicide jury deadlocked 10-2 vote for convicting Munchinski and Scaglione, because the two jurors in the minority felt the witnesses against them weren't reliable.

 Scaglione and Munchinski were then tried separately.

 In his second trial, Scaglione, whose mental health had been steadily deteriorating, confessed to the killings.

 But he also said he was aided in the killings not by Munchinski, but by Homer Stewart, another drug dealer who had been one of the early suspects in the slayings.

 Scaglione testified that Stewart, who has since died, told Bowen the night of the murders that his name was David Munchinski. Munchinski happened to look like him.

 Scaglione's confession earned him a quick conviction and a life sentence. Stewart was never charged in the case, and in 1996, he died in prison.

 Munchinski doesn't believe Scaglione committed the murders, despite his confession.

 Still, he asked Scaglione to repeat his statements in Munchinski's second trial -- particularly the part where Scaglione identified Stewart as his partner in the killings.

 Once he took the stand, however, Scaglione, who had already been sentenced to life in prison, cited his rights against self-incrimination. The trial judge then refused to allow Scaglione's previous testimony to be read into the record.

 After Scaglione's silence, and after Bowen had repeated his earlier testimony, the second jury convicted Munchinski.

A fictitious script

 In November 1991, almost five years after Munchinski and Scaglione were convicted, Bowen was once again in jail, this time in Okmulgee County, Okla.

 He asked to speak with an FBI agent.

 With his lawyer present, he told Special Agent Matthew Schneck that "he was not involved in any fashion with Scaglione or Munchinski in the ...killings of Alford and Gierke." Bowen also said "he was told what his testimony would be" by Pennsylvania state troopers and prosecutors, who he said "were all part of providing him with a fictitious script ...he was to testify to and did in fact testify to in the Alford and Gierke murder trials."

 He said he frequently met with troopers to rehearse his testimony. One of the troopers hit him and threatened him when he got confused by the facts they were feeding him, he said.

 Munchinski found out about Bowen's statement when he was preparing an appeal of his conviction in 1992.

 On April 4, 1992, Bowen recanted his trial testimony for a second time in a sworn deposition to Munchinski's lawyer, John Cupp of Uniontown.

 In that statement, he not only said he was not in Pennsylvania on the night of the killings, but he also described how police fed him information, paid him, and helped him with his legal problems.

 Later the same day, though, when Bowen was called to testify at another of Munchinski's post-conviction hearings, he asserted his rights against self incrimination and refused to repeat his recantation in court.

 And in February 1993, during another of Munchinski's post-conviction hearings, Bowen recanted his recantations, once again standing by the stories he told in Munchinski's trials.

 After that, Bowen moved back to Oklahoma, where he hanged himself in a jail cell four years ago while awaiting trial on another arrest.

 Frustrating appeals

 Despite all of the questions Munchinski and his daughter raised after scouring through 12,000 pages of trial documents and other information, Munchinski's 1992 appeal in Fayette County was denied.

 His federal suit was dismissed last year without an opinion. 

Then he lost the services of Cupp, his longtime lawyer.

 Finally, Raina Munchinski persuaded Geary to take the case on an installment payment plan.

 One of Geary's first moves was to persuade Fayette County Common Pleas Judge William Franks to recuse himself, partly because some of his fellow judges in the county were prosecutors at the time of Munchinski's trials.

 Last week, Geary asked Feudale, the appointed judge in the case, to disqualify the entire staff of the Fayette County District Attorney's Office from participating in the proceedings because of their earlier failures to disclose vital information and because Geary plans to call them as witnesses.

 Both sides will file written briefs on that request before Feudale rules.

 Warman, Solomon and the current Fayette County prosecutor have failed to respond to the Post-Gazette's written questions about the case.

 If the Fayette County prosecutors are disqualified, the Pennsylvania Attorney General's office would take over the prosecution.

 Munchinski says all he wants is a fair hearing on the facts that he has sought since a jury convicted him in 1986.

 In his statement to a judge before he was sentenced, he said, "there are two obvious victims in this case, James Peter Alford and Raymond Gierke."

 But, he added, "society is also a victim here because the legal process ... has been circumvented throughout this case [and] the truth of the matter has not yet been found.