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January 17, 2014

Former Hartleton police chief appeals theft conviction

LEWISBURG — The attorney for former Hartleton police Chief Donald “Larry” Zerbe, convicted in December of felonious theft by extortion in a “fines-for-the-playground-fund” scheme, has filed a motion for acquittal of his client in Union County.

Meanwhile, sentencing for Zerbe, 68, of Laurelton, will take place in mid-March under the county’s current calendar.

Attorney Hank Clarke, of Pottsville, filed the motion in Union County based on “a few circumstances,” he said.

“Even though the jury said (Zerbe is) guilty, we contend the prosecution hadn’t met its burden under the statute to prove that he was guilty,” Clarke said.

Clarke did not say specifically what he is contesting.

Theft by extortion is a third-degree felony in which a person intentionally obtains or withholds “property of another” in several ways.

A jury found Zerbe guilty of offering motorists who faced speeding violations in Hartleton a way out of a fine and subsequent points against their driver’s licenses by instead donating to the borough’s playground fund. The scheme took place over several years and sent more than $5,000 into the playground’s coffers.

Zerbe was acquitted of two other felony charges, theft by failure to disperse funds and criminal conspiracy, after a two-day trial last month.

Judge Michael Hudock, the trial judge, will decide on Clarke’s motion. Hudock has taken no action on the motion and has up to the time of sentencing to do anything — if he so chooses.

An action in favor of the defense is “very, very rare,” Clarke said, “but one of those post-trial rights that a lot of defense attorneys use, and we thought it had some merit.”

If Hudock denies the motion and sentences Zerbe, certain post-sentencing rights begin, Clarke said, and he can ask the sentence be set aside for other reasons.

The commonwealth hasn’t responded to Clarke’s motion, he said.

What Zerbe’s sentence will be is unknown.

The Union County Adult Probation Department is preparing a pre-sentencing report, essentially a summary of a person’s history, as it does for all who come through the county court system.

The pre-sentencing report considers many things, including prior criminal record, which Zerbe doesn’t have. He pleaded guilty in October to disorderly conduct in an August incident in which he drove a riding lawn mower into a repairman working on a house in Hartley Township. But that was a summary offense, and it happened months after charges were filed against Zerbe in the fines-for-playground scheme. An initial misdemeanor charge of criminal mischief in the August incident was withdrawn.

Theft by extortion is a third-degree felony that in Pennsylvania could carry a sentence of up to seven years in prison and possibly a fine of up to $15,000.

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