Kirkwood's charges withdrawn

The judge cited misconduct by a former assistant district attorney.
By LAURE CIOFFI
VINDICATOR PENNSYLVANIA BUREAU
NEW CASTLE, Pa. -- For the Kirkwood family, the nightmare has finally ended.
On Friday, Lawrence County President Judge Dominick Motto granted a motion to withdraw armed robbery charges against 26-year-old Justin Kirkwood. The motion filed by Lawrence County District Attorney John Bongivengo was based on misconduct by a former assistant district attorney.
"In my 12 years on the bench, I've never really seen that type of action by a prosecutor, and that's really not what the prosecutors are supposed to do," Motto said.
Kirkwood, of Shenango Township, was arrested in 2002 after clerks at the Family Craft Center in New Castle's North Hill picked out his photograph and alleged he had robbed the store at 7 p.m. Aug. 14, 2002.
A man with a large knife came in, threatened the clerks and took off with about 172.
But at Kirkwood's subsequent trial, seven family members and friends, including Bill Fitts, a local car dealer, testified Kirkwood was home at the time of the robbery. Fitts testified in court that he called the Kirkwood house just after viewing the Pennsylvania Lottery number results -- which airs on television each night at 7 p.m. -- and Kirkwood answered the telephone.
Failed to give all facts
Assistant District Attorney Birgitta Tolvanen cast doubt on Fitts' story when she claimed telephone records did not show the call, but what she failed to explain to jurors is that local calls were not itemized on the telephone records she had.
Kirkwood was found guilty and sentenced to 3 1/2 to seven years in state prison.
His conviction subsequently was vacated by Judge Motto, and Kirkwood was granted a new trial in August 2005 based on Tolvanen's actions. Kirkwood had already spent two years in state prison.
Judge Motto issued a 25-page opinion on the matter, contending that Tolvanen created "a ruse designed to confuse" the witness.
Tolvanen no longer works for the district attorney's office. Kirkwood has been out of prison on bail while awaiting his new trial.
Innocence project
His case garnered regional attention when it was taken on by the Innocence Institute, a project involving students at Point Park College in Pittsburgh.
Kirkwood was near tears Friday as Point Park students asked for his reactions to the judge's decision.
"I still say I'm sorry they got robbed, but I didn't do it," he said.
Nora Sbarro, owner of Family Craft, read a statement before the judge's ruling asking that Kirkwood take responsibility. Sbarro, who was not present during the robbery, spoke on behalf of the two clerks who were in the store.
"The 172 is not a lot of money. What was stolen from my employees was far greater, their peace of mind," she said.
She contends the employees went to the police station on different days and each identified Kirkwood from photographs at the police station.
Mother knows
Kirkwood's mother, Debbie, said after the hearing that the clerks' initial description of the robber didn't match her son.
"They said he was 5 feet 3 inches with brown eyes. My son is 5 feet 8 inches with blue eyes," she said.
Debbie Kirkwood has always maintained that her son was home with the family when the armed robbery occurred.
"We were all in the house with him," she said.
She said the family will now give Justin some time to realize it's over. He has returned to his job at Ferguson Perforating & amp; Wire in the Shenango Industrial Park after being released from prison.
Atty. Bongivengo said Kirkwood cannot be charged again for the crime because it would constitute double jeopardy.
cioffi@vindy.com