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IN THE MUNICIPAL COURT OF PHILADELPHIA
ROOM 406
COMMONWEALTH
CRIMINAL JUSTICE CENTER
PHILADELPHIA, PENNSYLVANIA
OCTOBER 27, 2011
MC-51-CR-0017077-2011
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12 MARK FIORINO
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BEFORE THE HONORABLE FELICE R. STACK, J.
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APPEARANCES:
REPORTED BY:
MELISSA FRANCIS, ESQUIRE
ASSISTANT DISTRICT ATTORNEY
ATTORNEY FOR THE COMMONWEALTH
JOSEPH VALVO, ESQUIRE
ATTORNEY FOR THE DEFENDANT
EDWARD D. PICCIOTTO, R.P.R.
OFFICIAL COURT REPORTER
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HID EX
6 COMMONWEALTH EVIDENCE
7 WITNESS DIR. CROSS RE.D RE.C
8 SGT. MICHAEL DOUGHERTY 4 25 40
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P.O. DANIEL RUBIN 42 48
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COURT CRIER: This is case number 2,
Mark Fiorino.
MR. VALVO: Your Honor, waive
arraignment and good afternoon, Your Honor.
Your Honor, the defendant is prepared
to proceed to trial this morning. We waive
arraignment and enter a plea of not guilty on the two
charges set before this honorable Court.
THE COURT: Thank you.
MR. VALVO: I move for sequestration
of any and all commonwealth witnesses.
MS. FRANCIS: I move for mutual
sequestration.
Sergeant Michael Dougherty, badge
number 8830, assigned to the 8th district, having
been duly sworn, having been called on behalf of the
commonwealth, was examined and testified as follows:
DIRECT EXAMINATION
BY MS. FRANCIS:
Q. Good afternoon Sergeant Dougherty.
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A.
Q.
Good afternoon.
Now, I need you to keep your voice up and speak
in the mic and speak slowly to the gentleman in front
of you can take down what you are saying and I'll try
to do the same thing.
Sergeant, how long have you been employed as a
Philadelphia police officer?
A. I'll be going on -- in March I'll have 23 years
on as a Philadelphia police officer.
Q. And where are you assigned now?
A. I'm assigned to the 8th district, Red Lion and
Academy Road.
Q. How long have you been assigned at the 8th?
A. Eleven years.
Q. Were you a police officer there or did you go
there as a sergeant?
A. I went to the 8th district as a sergeant.
Q. Where were you assigned before the 8th?
A. Prior to the 8th district I was assigned to the
23rd district, 17th and Montgomery as a sergeant.
Q.
A.
And prior to that?
Prior to that I worked in the gang unit as a
23 police officer.
24 Q. Is that where you went right out of the
25 academy?
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A. No, I did not. I started out in the 23rd
district which is 17th and Montgomery. From there I
went to the 2nd district. That at 2800 Levick. Then
I went to northeast detectives as a juvenile aid
investigator. From there I went to special victims
unit as an investigator. And then I went to the gang
unit.
Q. Let me direct your attention specifically, sir,
to February 13th, 2011 at approximately noon. Were
you on duty then as a Philadelphia police officer?
A. Yes, I was.
Q. And as a sergeant were you supervising a squad
of police officers?
A. Yes, I was.
Q. How many people were you supervising on that
afternoon?
A. I'm not sure of the exact number but
approximately about 10 or 11.
Q.
A.
Q.
A.
Q.
A.
Q.
wnat were you were you on foot or a car?
I was in a patrol car on that day.
Solo or with a partner?
I'm solo.
Always solo?
Sergeants are always solo.
Were you dressed in full uniform as you are
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2 A. Yes, I was.
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Q. And you said a marked car already, right?
A. Yes, I was in a marked car.
Q. At about noon on that day did your tour of duty
take you to around the 8800 block of Frankford
Avenue?
A. Yes, I was in the area at that time.
Q. If you would describe where the 8800 block of
10 Frankford Avenue is? What are the major cross
11 streets?
12 A. 8800 block comes in between McGarvey and Placid
13 in that area. That's the 8800 block.
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Q.
A.
Q.
Is it near Frankford and Academy?
A few blocks away.
So a few blocks away from the entrance to 1-95,
17 correct?
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A.
Q.
A.
Q.
Yes.
It's noon so I'm assuming it's daylight?
Yes, it was.
Would you describe for her Honor what the
weather conditions were like generally that
afternoon?
A. It was a February day. It was a chilly day.
It was light out but, you know, it was your typical
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1 February day. It was Chilly.
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MR. VALVO: Objection to typical.
THE WITNESS: It was a chilly day
4 that day.
5 BY MS. FRANCIS:
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Q.
A.
Q.
A.
Q.
Wasn't snowing or anything?
No, it was not snowing.
No rain or anything?
No.
Sergeant, what time did you start your tour
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12 A.
13 day.
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Q.
A.
Q.
I started my tour at 6:30 in the morning that
It was not light out then I take it, right?
No.
So when you got to work that morning do you
17 conduct roll call?
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A.
Q.
Yes, I do.
Generally at roll call you discuss any
20 complaints or things like that in the area?
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A.
Q.
Yes.
Did that date have any significance for you or
23 the other police officers?
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MR. VALVO:
THE COURT:
Objection. Relevance.
What is the relevance?
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1 MS. FRANCIS: Goes to his state of
2 mind on that day, Judge, and reactions to the things
3 he saw. Things like that.
4 THE COURT: All right. Go ahead.
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Overruled.
THE WITNESS: February 13th was an
7 anniversary of Officer John Pawlowski who was shot
8 and killed in the line of duty.
9 BY MS. FRANCIS:
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Q. Was that discussed either at roll call or
informally among the officers?
A. Yes, it was.
MR. VALVO:
THE COURT:
Objection.
Overruled.
Hearsay.
15 BY MS. FRANCIS:
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Q. Let's go back to noon now. About noon you're
in a patrol car. correct?
Yes. A.
Q. And were you on Frankford Avenue or another
20 street?
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Q.
I was on Frankford Avenue.
And Frankord Avenue at that point is two lanes
23 each direction, correct?
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A.
Q.
One lane each direction.
One lane each direction?
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A.
Q.
A.
Yes.
So which way were you travelling?
I was travelling northbound on Frankford
Avenue.
Q. When you got to around the 8800 block is that
residential or business?
A. Mixed. Some residential homes on the east side
of Frankford Avenue, business on the west side of
Frankford Avenue.
Q. So the east side as you're travelling
northbound is on your rightJ correct?
A. Yes.
Q.
A.
Q.
So across the street there was businesses?
Yes.
Did anything draw your attention at about noon
16 while you were in your car that brings you to court
17 today?
18 A. Yes.
19 Q. What was that?
20 A. When I was travelling I noticed the gentleman
21 sitting to the right of me.
22 Q. NOw, there are two gentlemen sitting to the
23 right of you. Which one are we talking about?
24 A. Mr. Fiorino if I'm pronouncing that right.
25 MS. FRANCIS: Indicating, Your
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1 Honor, the defendant.
2 Q. And let's be clear. At the time you saw him
3 did you know his name?
4 A. No, I did not.
5 Q. Had you ever had any contact with him before?
6 A. No, I never had no contact with him.
7 Q. You noticed the defendant. What was he dOing?
8 A. He was walking north on the east side of
9 Frankford Avenue and what brought my attention is I
10 noticed a gun on his left side. He also had a clip
11 and it looked like a flashlight on his gun belt.
12 Q. Okay. Let me stop you there. You were using
13 your hands. What side of his body was the firearm?
14 On the left side.
15 Q. And was it in a what you recognized to be a
16 regular kind of holster?
17 A. It was in a holster.
18 Q. You also described something else and moved
19 your right hand. Were there things on his right-hand
20 side?
21 A. Yes, there was also other items on his belt.
22 Q. What was that?
23 A. That was a -- it looked like a clip for a gun
24 and a small flashlight.
25 Q. Now, was Mr. Fiorino, the defendant, was he
1 wearing a coat at that time?
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A. No, he was not.
MR. VALVO: Objection. Relevance.
4 MS. FRANCIS: Goes to his ability to
5 view what he saw.
6 THE COURT: Objection sustained.
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No, he was not.
BY MS. FRANCIS:
Q. And it was February, correct?
A. Yes, it was.
Q. When you first saw Mr. Fiorirto was he dOirtg
anything other than walking?
A. No.
Q. And when you first saw him could you see all
three items that you described on the belt?
A. Yes.
Q. Seeing what you saw what did you do rtext?
A. I just stayed behind him because I'm trying to
figure out what I have here, you know, what's my
approach going to be. Then I pull -- stop my car on
the side of him, got out of my car and I asked him, I
said junior, what's with the gun.
Q. Let me stop you there. You said that you
24 stayed behind him. Did you keep your car moving
25 after you first see him?
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Q.
A.
A little bit, yes.
By a little bit do you mean slowly?
Slowly. I was going slow. Mr. Fiorino was
still walking.
Q. And he was not dOing anything other than
walking, correct?
A. Correct.
Q. How close were you seated in the driver's seat
of your car to the defendant when you stopped your
car?
A. 10, 12 feet.
Q. When you stopped your car before you said
anything did Mr. Fiorino stop?
A. When I stopped my car Mr. Fiorino stopped and
turned to me after I asked him what's with the gun on
his side.
Q. All right. So he didn1t stop and turn to you
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Q.
A.
Q.
23 you?
Exactly.
And you said the word junior; is that correct?
Yes, I did.
Mr. Fiorino did he appear to be younger than
24 A. Yes, a lot younger than me.
25 Q. SO Mr. Fiorino -- you saia something to him and
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correct?
A. Yes.
3 Q. Where were his hands at that point?
4 A. His hands were down at his side.
5 Q. You're making a motion with your elbows bent
6 though; is that correct?
7 A. Iim not sure if they were straight but they
8 were down by his pocket.
9 Q. Could you see his hands?
10 A. I Gould see his hands at that time.
11 Q. So you said to him what's up. He turns to you
12 and what happened-next?
13 A. He hollered who you calling junior.
14 Q. Now, are you in your car at this point?
15 A. I'm out of my car standing between my door and
16 the seat.
17 Q. Where was your gun?
18 A. My gun was on my right side at this time.
19 Q. So he says who you calling junior or something
20 to that affect. What happens next?
21 A. At this time I started getting a little
22 concerned.
23 Q. Why?
24 A. I asked him junior, what's with the gun. He
25 went off on me.
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Q.
A.
MR. vALVO:
TIi""E COURT:
MS. FRANCIS:
Objection to went off.
Objection sustained.
I will clarify that.
What do you mean by that last statement?
I'm sorry, Your Honor. What I meant was that
6 he raised his voice in a loud tone to me.
7 Q. At that time did he tell you that he had a
8 license to carry a gun?
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Q.
No.
Okay. Please continue. He addressed you in a
loud tone.
A. When he addressed me in the loud tone I started
13 becoming concerned nOw. That's when I did pull my
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gun out.
Q. Okay. You take your gun out of the holster?
A. Yes, I did.
Q.
A.
Q.
A.
Q.
A.
What did you do with it?
I pOinted it at Mr. Fiorino.
Where were his hands then?
His hands started moving.
Where?
Just allover. He was lifting his hands. I'm
THE COURT: Do you want to stand up
and show me?
1 '1'H"'E WITNESS: Yeah, sure Your Honor.
2 He started raising his hands up.
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THE
THE
THE
THE
MR.
COURT:
WITNESS:
COURT:
WITNESS:
VALVO:
Up in the air?
Yes.
Shoulder lertgth?
Shoulder length.
May the record reflect,
8 Your HonQr, that the officer raised his hands towards
9 above the level of his shoulders and was shaking them
10 in the air.
11 THE COURT: All right. That would
12 be accurate.
13 BY MS. FRANCIS:
14 Q. Did the defendant assume a pose of someone who
15 you tell not to move?
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A.
Q.
No.
All right.
MR. VALVO:
19 questiort artd resportse.
20 THE COURT:
:21 BY MS. FAANCIS:
Objection to the
Objection sustained.
22 Q. His hands were up in the air. Did they stay as
23 mine are rtOw -- irtdicatirtg shoulder lertgth arms bent
24 in a submissive sort of position?
25 A. No, he did not.
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A.
Q.
A.
Okay. Did a conversation then happen?
Yes.
In what tone?
A loud tone.
MS. FRANCIS: Your Honor, at this
6 time I am going to mark as C-1 an audio c.d. and ask
7 that I play it for the Court.
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the
Mr.
THE
audio c.d?
MS.
Fiorino taped.
THE
MR.
COURT:
FRANCIS:
COURT:
VALVO:
Offer of proof. What is
It's the exchange that
Mr. Fiorino had a tape?
That is correct. There
14 is a stipulation by and between counsel that there
15 was an audio recording of the event. The recording
16 was made by Mr. Fiorino.
17 I believe the commonwealth is going to
18 play an accurate version of that particular exchange.
19 The defense is in favor of the playing of that.
20 We certainly have no objection to it.
21 We stipulate to the authenticity and we only ask that
22 we that we hear it completed from start to finish
23 rather than piece meal. That's my only concern.
24 MS. FRANCIS: I will do that. I
25 will play it once for the Court as best we can with
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1 the microphone. I'm experimenting here with that.
2 And then I may go back anct chop it up a little bit.
3 MR. VALVO: And that would be fine.
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I have no problem with that.
MS. FR..ANCrS:
6 am not a computer expert.
7 THE COURT:
8 experts floating around?
9 MS. FRANCIS:
Court's indulgence. r
Do we have any computer
It should be fairly
10 simple. well, yeah. Exactly. Okay.
11 THE COURT: Are you texting or
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looking at a cell phone there?
UNIDENTIFIED SPECTATOR; Yes, ma'am.
14 THE COUF.T: You were told not to do
15 that.
16 UNIDENTIFIED SPECTATOR: My
17 apologies.
18 THE COURT: Because it will be
19 confiscated. Go ahead Miss Francis.
20 MS. FRANCIS: I don't think the mic
21 is on. Can I ask that we flip the switch.
22 COURT CRIER: It is on. That mic
23 has been acting up.
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MS. FRANCIS: Just keep it like
25 that. I promise not to trip over it and so does Mr.
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Valvo.
MR. VALVO:
high expectation of --
Yep. You have a very
I acknowledge prior notice of the
dangerous condition.
MS. FRANCIS: Okay. There is a
couple spots
9 (Whereupon an audio tape was played in open court)
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BY MS. FRANCIS:
Q. All right. Sergeant Dougherty -- if I may,
13 Your Honor. Sergeant Dougherty, you just heard that
14 audio recording?
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A.
Q.
Yes.
Did you recognize any of the voices on that
17 recording?
18 A. Yes.
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Q.
A.
Q.
Whose was the first voice that you heard?
Myself.
And that's when you said hey junior?
A. Yes.
Q. The second voice that you heard a little
louder, do you recognize that voice? Is that
somebody that you know?
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Q.
No, nobody I know.
But from your recollection of the events whose
3 voice was it?
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A.
Q.
Mr. Fiorino.
At any time did he tell you that he was
6 recording the conversation?
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No, he did not. A.
Q. And did he at any time reach to push a record
button or anything or were his hands just moving
around?
A. His hands were just moving around.
Q. SO after you called him junior he turns to look
at you. You said that he was moving his hands
around. During that entire audio recording that you
just heard did his hands ever remain stationary?
A. He started placing them down by his pockets.
Q. Show the Judge?
A. He had his hands down like this.
MS. FRANCIS: Indicating, Your
20 Honor, hands -- fingers halfway in a pocket and
21 halfway out.
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THE WITNESS: Yes.
THE COURT: Thumbs in.
THE WITNESS: Like this. I know I
~ ~ nave my JaCKec on. L1Ke cnlS.
L.V
1 'T'HR ("nTTR'T" ]\ 11 riahL
2 BY MS. FRANCIS:
3 Q. When he put them in his pockets did he ever
4 take them out again during that encounter that was
5 recorded?
6 A. He was moving around a lot. So he had them in
7 his pocket. He just was not complying to what I was
8 asking him to do.
9 Q. What were you asking him to do?
10 A. To stay where he was at, wait for my backup and
11 we'll qet this all straiqhtened out.
12 Q. Is it standard -- well, let's be clear. Your
13 voice was raised: correct?
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Yes.
Why?
I was concerned.
Were vou scared?
I was scared.
When was the last time that you called for
backup before this event?
MR. VALVO:
THE COURT:
BY MS. FRANCIS:
Obiection. Relevance.
Sustained.
Q. Is it standard procedure when there is somebody
W1cn a gun wnere cnere 1S no Ior co
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for backup?
A. No explanation, yes, call for backup.
Q. Have you encountered a person before that had a
valid license, that produced it, and that you just
let go in your years as a police officer?
A. Through my career I have stopped a lot of
people that had concealed weapons on them and handled
it by myself.
Q.
A.
Okay. What made this different?
That day being a special day on my mind of how
Officer Pawlowski got shot. Officer Pawlowski got
shot by hands being concealed. He could not see
them. The tone of Mr. Fiorino's voice had a lot of
concern to me.
1 wanted to know why he had the Olin on him.
When he raised his voice and started to lecture me
telling me things when all I wanted him to do was
comply to what I said, wait for my backup and we can
get everything handled which we did.
Q. Because Mr. Fiorino was not arrested that day?
A.
Q.
A.
Q.
No, he was not.
Did he get his gun back?
Yes, he did.
Did he get -- strike that. Was there anything
~ j e ~ s e on nls person cnac was caKen ~ r o m nls persont
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A. Well, his recorder dropped out of his pocket
and that was given back to him.
Q. Did you see what pocket it came out of?
A. No, I did not.
Q. Were you the one that found it on the qround?
A.
O.
A.
O.
A.
O.
No, no, I did not.
That's Officer Rubin. correct?
Officer Rubin.
Who is here?
Yes.
How lonq did it take for your backuD to qet
12 there?
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A.
Q.
Not long.
How many times did you call for backup?
15 A. Couple -- several times. I kept on letting
16 radio know I need backup here.
17 Q. And the entire time that you were engaged in
18 that exchange with the defendant was your gun still
19 out?
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A.
Q.
A.
Yes, it was.
Was it pointed at the defendant?
Yes, it was.
23 Q. Do you know now in the recording you seem to
24 say that you can't open carry in Philadelphia?
25 A. Correct.
Do you know now that that is incorrect?
I know now, yes.
Okay.
I'm well aware.
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Q.
A.
Q.
A.
Q. In fact, if you have a license you can legally
6 open carry in Philadelphia?
7 A. Yes, you can.
8 Q. But you have to produce a license to a police
9 officer?
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A. Yes.
Q. Did Mr. Fiorino ever produce the license for
you on his own?
A. No.
Q. Did someone find a license on his person at
some point at the end of that exchange?
A. Yes.
Q. Do you remember who that was?
A. I don't know if it was -- I'm being honest.
don't know if it was myself or one of the officers.
20 Mr. Fiorin said that the license was in his
21 pocket and we were able to get the license to check
22 it and to then follow through with everything.
23 Q. Okay. You talked about the defendant's hands
24 moving around during this exchange. What about his
25 feet? Did he stand still?
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A. No, no, he didn't stand still.
Q. What kind of surface did you stop him on when
he stopped and turned toward you. Where was he
standing?
A. He was on the pavement.
Q. Is there other types of surface right near by
7 where he stood still?
8 A. There was grass and I think a cyclone fence
9 behind him.
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Q.
A.
Q.
Was there an apartment complex right there?
Yes, there are small homes by there.
And did Mr. Fiorino's feet move from the
13 pavement to that grass surface at all?
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A.
Q.
A.
He was moving around.
Did that concern you?
Yes, because everything I tried to ask him to
17 do he didn't comply.
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Q.
A.
Did you have a taser on you that day?
I have a taser in the car. I'm a serqeant so I
20 wear a taser.
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Q. Okay. Court's indulgence. I have no further
questions.
CROSS EXAMINATION
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BY MR. VALVO:
Q. Sir, you indicated in your direct examination
that you start the day at a heightened degree of
concern due it being the anniversary of a fellow
fallen officer; is that correct?
A. It was an emotional thing, yes sir.
Q. SO you're carrying that into the street with
you excess emotional baggage that you normally don't
carry?
MS. FRANCIS: Objection to the form.
THE COURT: Overruled. Would that
12 be accurate?
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14 during the day.
THE WITNESS: I wasn't emotional all
It was just I knew that was the
15 anniversarv of the officer's death.
16 BY MR. VALVO:
17 Q. When you stated during your direct that this
18 had a lot of impact on everything that you're doing
19 at the scene, right?
20 A. Yes, at certain points it was, yes.
21 Q. Right. So you're conducting yourself
22 differently on February 13th than you would have in
23 vour other aooroximatelv 23 years as a oolice
24 officer?
A. L WOULQ say cnac 1S 1ncorrecc.
1 Q. Then why would you -- I'm sorry. Please
2 complete your answer. I apologize.
3 A. A lot of mv actions were brouqht on bv Mr.
4 Fiorino's actions.
5 Q. Well, then why you introduce to this Court the
6 information, even over my objection, that it was a
7 very specific date of a fellow fallen officer that
8 was on your mind?
9
10
11
12
MS. FRANCIS:
introduce it. I did.
13 question.
14
15 sustained.
16 BY MR. VALVO:
MR. VALVO:
MS. FRANCIS:
THE COURT:
Obiection. He didn't
He answered.
He answered the
The objection is
17 Q. Now, you indicated -- and I apologize and I'm
18 going to jump forward a little bit. But you
19 indicated something to me -- well, pardon me,
20 something during your direct that the defendant never
21 produced his license to carry a firearm; is that
22 correct?
23
24
A.
Q.
Correct.
That's because -- but he told you numerous
~ : > Clmes aurlng cne excnange cnac ne naa one, rlgnc-r
.<:: I
1 A. Yes, he did, sir.
2 Q. And if he reached for it you would have shot
3 him, right?
4 A. I'm not saying that, sir.
S Q. You had the gun pointed at him, right?
6
7
8
9
10
11
12
13
14
15
16
17
18
19
A. Yes, I did, sir.
Q. Now, you stated that when you saw him with a
visible firearm at his side and speaking to you in a
loud tone of voice that scared you; is that correct?
A. It was a big concern to me, yes, it was.
Q. SO wouldn't you also find it reasonable that
someone that actually had that gun physically pointed
at them, not in a holster at the side, but physically
pointed at them as being spoken to in a loud and rude
tone of voice that that would scare them?
MS. FRANCIS:
THE COURT:
MS. FRANCIS:
THE COURT:
Objection.
Obiection to
The word rude.
All riqht. Sustained.
20 BY MR. VALVO:
21 O. Pardon me. A loud and aqqressive tone of
22
23
24
voice.
THE COURT: You may answer.
THE WITNESS: I assume. I mean
25 BY MR. VALVO:
1 Q. It's certainly reasonable to think that he was
2 as scared as you would be, right?
3 A. Yes, I would think so.
4 Q. So as you said, as soon as you ponit the gun
5 the hands go up around the shoulder area, correct?
6 A. They are moving around. They are up.
7 Q. And he was telling you that he has a license to
8 carry a firearm, right?
9 A. He was telling me he has it, right.
10 Q. But you're claiming that he never produced it
11 for you, right?
12 A. I told him to do what I'm saying, keep your
13 hands, wait for my backup. My concern was get my
14 backup there, then we can straighten everything out.
15 Q. Well, from a practical stand point we can agree
16 that you can pull your trigger faster than he can
17 draw his weapon, point it at you and fire, correct?
18
19
20
21
MS. FRANCIS: Objection.
THE COURT: Sustained.
BY MR. VALVO:
Q. You opened this exchange by referring to him as
22 junior; is that correct?
23
24
A.
Q.
Yes, sir.
All right. And in your police training do they
L ~ teacn you to use tnat tone -- pardon me, to use that
1
2
3
4
5
6
7
8
9
particular phrase to address an individual to get
their attention?
MS. FRANCIS: Objection.
THE COURT: Sustained.
BY MR. VALVO:
Q. Were you concerned that he might find that
offensive in some way?
MS. FRANCIS: Objection.
THE COURT: Sustained.
10 BY MR. VALVO:
11 Q. Were you concerned that he might not recognize
12 that you were speaking to him?
13 MS. FRANCIS: Objection.
14 THE COURT: You may answer that.
15 THE WITNESS: I think he knew I was
16 speaking to him. He was the only one right in front
17 of me when I was directing my voice to him. There
18 was no other people walking with him.
19 Q. But when you -- when you callout junior his
20 back is to you; is that correct?
21 A. Not that much behind. I'm really close to Mr.
22 Fiorino.
23
24
Q.
A.
You said you were 10 to 12 feet away?
That's from the curb and I'm in my car is 10 to
25 ~ 2 feet away. Right on the side of him when I called
.5U
1 when I said to Mr. Fiorino hey junior, I wasn't 10 to
2 15 feet behind him. My car was -- he was to the
3 right of me and 10 to 15 -- he was on the curb. I'm
4
5
6
7
out in the street in my car.
O. Could you see his face as you approached?
A. I could see the side of his face.
Q. So at that point that's when you yelled junior,
8 what's with the gun, right?
9 A. Yes, sir.
10 Q. He turns around and puts his hands in the air,
11 correct?
12 A. I don't remember him turning and putting his
13 hands in the air. He just started -- he hollered who
14 you calling junior.
15 Q. Right. And it wasn't reasonable to you that he
16 was trying to determine whether or not you were
17 addressing him since junior is obviously not his
18 name?
19
20
21
22
23
24
25
MS. FRANCIS: Objection. Compound.
THE COURT: All right. How about
making it non-compound.
BY MR. VALVO:
Q. That's fine. He turned and asked you -- when
he turned and said who are you calling junior you
didn't interpret that as him trying to determine you
1 were addressing him?
2 A. No. Junior, what's with the gun. I assumed
3
4
5
that he knows I was talking to him.
Q. What color shirt was he wearing that day?
A. It was a long sleeve shirt. I don't remember
6 what color it was, sir.
7 O. That's fine. Did you say sir in the long
8 sleeve shirt?
9 MS. FRANCIS: Objection. I think
10 the audio speaks for itself.
11 THE COURT: It speaks for itself.
12 BY MR. VALVO:
13 O. Now, at some point you said that you began to
14 be frustrated with the fact that Mr. Fiorino was
15 quote lecturing you; is that correct?
16 A. He wasn't complying to what I was asking him to
17 do. That's all I wanted that day. That's all I
18 wanted.
19 Q. Well, you wanted more than that. You also
20 wanted the license to carry the firearm?
21 A. After I got my backup Mr. Fiorino told me that
22 he had the license. I know he kept on telling me
23 that.
24 All I asked is wait for my backup. We would
25 have found that out and when I continued on --
1
2
3
4
5
6
7
8
9
10
11
Q. And he had told you that many, many times over
through the course of your verbal exchange.
MS. FRANCIS: I'm sorry, Judge.
Through the what? That's all I wanted to know.
THE COURT: Do you have other
witnesses?
MS. FRANCIS: Yes, I have Officer
Rubin. Do you want to stop for the custody?
THE COURT: No. I'm just curious.
MS. FRANCIS: I have Officer Rubin.
MR. VALVO: That's fine, Your Honor.
12 I will continue.
13 Q. Once he mentioned directive 137 to you you were
14 aware of what directive 137 was, right?
15
16
A.
Q.
Yes, sir.
In all fairness to you, you had misinterpreted
17 or misunderstood what the directive intended to do?
18
19
20
21
22
23
24
25
A.
O.
A.
You're correct, sir. I'm not denying that.
Okay. But you were aware of what it was?
Yes.
Q. You have given us a tremendous amount of your
vast experience and in that vast experience how many
people that you're holding at gun point are aware of
the directives to discuss with you regarding the
incident?
1
2
3
4
5
6
7
8
9
MS. FRANCIS: Objection.
Speculation.
THE COURT: Sustained.
BY MR. VALVO:
Q. Has anyone ever mentioned to you during an
arrest or investigation a specific directive or
information regarding the law that you're speaking to
him about?
THE COURT: In your recollection in
10 all your experience has anyone ever mentioned either
11 a statute or regulation? That's a very broad
12 question but apparently no. Not that you recall?
13 THE WITNESS: Not that I recall,
14 Your Honor. Correct.
15
16
17
18
19
20
21
22
23
24
25
BY MR. VALVO:
Q. Now, during your direct examination you also
stated that in your experience you have had the
opportunity to encounter other individuals who had a
concealed firearm; is that correct?
A. Yes.
Q. How many of -- what percentage of those
occasions did you hold them a gun point?
MS. FRANCIS: Objection.
THE COURT: Sustained.
MR. VALVO: Your Honor, can I speak
34
1
2
3
to that for just a moment.
THE COURT:
MR. VALVO:
Yes.
If he is going to
4 introduce information that he has encounters such as
5 this before, I think it's appropriate that we
6 establish the level of force that he is attempting to
7 use. I think that is critical in the end analysis.
8 What we have here is an officer who is
9 employing potential lethal force in a situation where
10 the defense at the outset
11 THE COURT: What we are looking for
12 is that your client is being accused of certain
13 crimes. He's not being accused of that. So I don't
14 see it. Thank you.
15 MR. VALVO: Certainly, Your Honor.
16 I'll move on.
17 Q. Now, you mentioned through the course of your
18 direct examination that he didn't stay where he was
19 at, that he was moving around; is that correct?
20 A. He wasn't walking away. He was moving back and
21 forth. He was just like he wasn't standing still.
22 Do you want me -- I wanted him to stand still. I
23 wanted him to listen to what I was saying. That's
24 all I wanted.
25 Q. Through the course of this though you're also
35
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18
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20
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22
giving him conflicting commands, correct?
A. Because he wasn't listening to me.
Q. Right.
A. So I gave him one command. It wasn't listened
to. I was trying to give him another command. Maybe
he would listen to that. He didn't listen to that
command.
Q. Right. So at one point you tell him put your
hands in the air, right. At some point in that
exchange you say that to him?
A. Yeah.
Q. At another point in that exchange you tell him
if he moves you're going to shoot him?
A. He was moving around too much for me. He was
raising my level of my threat.
Q. Court's indulgence for a moment. As a result
of this incident you have come to learn that it was
perfectly appropriate for him to carry the firearm in
the manner that he was carrying it, correct?
MS. FRANCIS: I'm going to object to
appropriate. Legal yes.
THE COURT: Would you like to
23 rephrase?
24 MR. VALVO: No, I wouldn't.
Appropriate. 25 THE COURT:
36
1
2 term that
MR. VALVO: Yes, I think that's a
we can ask legal as a separate question.
3 But if he answers it's inappropriate I would like to
4 know why.
5 THE COURT: Do you think it was
6 appropriate for him to carry a gun like that?
7 THE WITNESS: Under the legal
8 statute yes.
9 THE COURT: Well, do you think it
10 was appropriate since we're using that word? In your
11 opinion would it be appropriate? I guess that would
12 be a subjective evaluation.
13 THE WITNESS: Inappropriate, my
14 personal opinion, yes. Inappropriate.
15 BY MR. VALVO:
16 Q. Why? I think this cuts right to the heart of
17 the case, Your Honor. Why? Why did you state that
18 it's inappropriate to do that?
19 MS. FRANCIS: Objection. Instead of
20 counsel arguing this is not a gun case. We're not
21 arguing about the legality of his carrying the gun.
22 THE COURT: Well, what we are trying
23 to argue is why would the officer have the reaction
24 that he had. That is probably appropriate but the
25 officer isnit on trial here but 1ill allow it. Why
1
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7
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9
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11
12
13
14
15
16
would you say it's inappropriate sergeant?
THE WITNESS: My whole career as a
Philadelphia police officer I have never encountered
anyone, let alone on a cold day, openly carrying a
gun walking on Frankford Avenue with other businesses
around, two banks -- I don't know.
As a police officer you don't know
what you have. That's why we ask just comply to what
we say and we'll straighten it out. Yes, I was
concerned. Did I feel it was inappropriate, yes.
BY MR. VALVO:
Q. And that was your concern that day?
A. There was a lot of concern, sir. I think I
have been very nice and addressed that to you. There
was a lot of concerns.
THE COURT: All right, sergeant.
17 Go ahead.
18 BY MR. VALVO:
19 Q. Now, we can also agree that you have come to be
20 aware that recording the incident is not illegal in
21 any manner? I am simply using the word legal on that
22 one?
23
24
A.
Q.
Correct.
And in all fairness to you, you released him
25 with that audio recording device? You didn1t
1
2
3
4
5
6
7
8
9
10
11
12
confiscate it?
A. Yes, I did.
Q. And also didn't confiscate the firearm that
day?
A. No, I did not.
Q. And you also didn't arrest him, correct?
A. No, I did not.
Q. In fact, you didn't even give a statement to a
detective regarding this incident until March the
28th of 2011, correct?
THE COURT: Is that accurate?
THE WITNESS: That would be correct.
13 BY MR. VALVO:
14
15
16
17
18
19
20
21
22
23
24
25
Q. And that just happened to be two days after the
audio tape that was played for this honorable Court
hit utube, correct?
MS. FRANCIS: Objection. We don't
know if he knows that or what his access is.
MR. VALVO: I think he does know.
THE COURT: Why don't you lay the
foundation. Objection sustained to that question.
BY MR. VALVO:
Q.
A.
Q.
Are you aware that the audio tape hit utube?
I became aware of it later on.
Did you become aware of it before or after you
39
1 made your statement to the detective on March 28th.
2
3
THE COURT: If you remember?
THE WITNESS: I don't remember when
4 I become aware of the audio tape.
5 MR. VALVO: Court's indulgence. I
6 believe I'm done. I just want to check my notes if I
7 may.
8 Q. Lastly, officer, for clean up. You mentioned
9 it was a quote unquote chilly day. Do you have a
10 recollection of what the temperature was?
11 A. No, I do not.
12 Q. Can we agree that it was actually up to 62
13 degrees on February 13th, 2011 through the course of
14 the day?
15
16
17
18
19
20
MS. FRANCIS:
have a recollection.
THE COURT:
MR. VALVO:
I have nothing further.
THE COURT:
Objection. He doesn't
He said no recollection.
That's fine, Your Honor.
All right sergeant. You
21 may step down. You have redirect.
22
23
24
25 BY MS. FRANCIS:
REDIRECT EXAMINATION
40
1 Q. Sergeant, why did you order the defendant to
2 his knees?
3 A. I wanted him under my control. As a police
4 officer that is what I am taught. That is what I
5 directed him to do.
6 Q. And in all fairness, this was a frightening and
7 emotional situation; is that correct?
Yes. 8
9
A.
Q. Would you have been able to quote directive 137
10 at that point?
A.
Q.
A.
Q.
A.
down.
NO, I would not have.
How long have you been a sergeant?
12 years.
The defendant quoted it, didn't he?
Yes.
MS. FRANCIS: Thank you.
THE COURT: Sergeant, you may step
11
12
13
14
15
16
17
18
19
20
21
22
THE WITNESS: Thank you, Your Honor.
THE COURT: Step outside please. Do
you intend to call the other officer?
MS. FRANCIS: Yes. Can I talk to
23 counsel.
24 MR. VALVO: Because we may be able
25 to--
41
1
2
3
4
5
MS. FRANCIS: I will be brief.
THE COURT: All right.
MS. FRANCIS: Police Officer Rubin
and I will get him.
6 Police Officer Daniel Rubin,
7 R-U-B-I-N, badge number 3422, currently assigned to
8 the 8th police district, having been duly sworn,
9 having been called on behalf of the commonwealth, was
10 examined and testified as follows:
11 - - -
12 DIRECT EXAMINATION
13 - - -
14 BY MS. FRANCIS:
15 Q. Officer Rubin, good afternoon.
16 A. Good afternoon.
17 Q. Sir, I'm going to specifically direct your --
18 first of all, how long have you been a Philadelphia
19 police officer?
20 A. 16-and-a half years.
21 Q. In those 16-and-a half years have you been
22 assigned to the 8th district the entire time?
23 A. I was assigned to the 8th district for nine
24 years and the previous in the 12th district.
25 Q. On February 11th excuse me, February 13th,
42
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
2011 were you on duty about noon?
A. Yes, I was.
Q. Is Sergeant Dougherty your sergeant?
A. Yes, he is.
Q. And on February 13th, 2011 at approximately
noon do you remember where you were?
A. At noon I do not remember.
Q. Okay. Did your tour of duty take you to the
8800 block of Frankford Avenue?
A. Yes, it did.
Q. Why did you go there?
A. From information received off police radio. I
believe the time was approximately about 1:20.
Around 1:00. I responded from information received
off police radio by Sergeant Dougherty he came over
radio. His voice sounded distressed. He had a
person with a gun. I responded. I was going to head
to that location. Immediately at that time an assist
Q. Let me stop you for a second. That first call
21 came out, correct?
22 A. That is correct.
23 Q. And when you went when you started to go to
24 that location on Frankford Avenue were you going at a
25 high rate of speed at first?
43
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4
5
6
7
8
9
10
11
12
13
14
15
16
A. That is correct.
Q. As you're travelling there you heard another
radio call?
A. Call came out for assist officer.
Q. What does that mean?
A. That means every officer in that area responds.
Q. How long did it take you to get to 8800
Frankford Avenue?
A.
Q.
I guess probably took about three minutes.
How were you travelling?
A. Basically when an assist officer comes you -- I
mean, usually the circumstances --
MR. VALVO: I object to usually.
BY MS. FRANCIS:
Q.
A.
Were you flying there, officer?
Yes, I was. Lights and sirens going very fast.
17 I came to the intersection of Holme Avenue and almost
18 got in an accident.
19 MR. VALVO: Objection to almost got
20 into an accident.
21 THE COURT: Well, you can explain
22 what happened and if you want to testify to that
23 what do you mean you almost got in an accident.
24 MR. VALVO: I have to object to the
25 relevance of this testimony also.
44
1 THE COURT: 1111 allow it.
2 MS. FRANCIS: I am going to make it
3 as short as possible.
4 THE COURT: Thank you.
5 THE WITNESS: I almost got t-boned
6
7
8
9
10
11
12
13
14
15
16
17
18
19
by two cars.
BY MS. FRANCIS:
Q. You're flying, correct?
A. That is correct.
Q. All right. So it takes you a couple minutes to
get to 8800 Frankford Avenue?
A. That is correct.
Q. When you get there what do you see?
A. When I pull up on location I observed my
Sergeant Dougherty out of his police car. He had his
weapon drawn on the defendant over here.
As I get out of my vehicle I can hear the
sergeant giving orders for him to take his hands out
of his pocket. He informs me that the male has a
20 gun. I observed a gun on the male on his left hip.
21 Then I proceeded to give commands for him --
22 let me see his hands. I believe I gave it a couple
23 times. Then I gave commands to get on the ground.
24 Eventually the male did get down on the ground.
25 Q. I am going to play this.
45
1
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8
9
10
11
12
13
THE COURT: All right.
MS. FRJlliCIS: With the court's
permission.
(Whereupon an audio tape was played in open court)
BY MS. FRANCIS:
Q. Do you recognize that voice that starts saying
get on the fucking ground?
A. Yes, I do.
Q.
A.
Q.
Who's that?
That's me.
Okay. At that point when you first get there
14 how many officers were there?
15 A. I'm the first one responding, myself and
16 Officer Shellhammer.
17
18
19
Q.
A.
Q.
Can you spell that for the record?
S-H-E-L-L-L-H-A-M-E-R.
And without playing the rest of this audio --
20 you have heard this before, correct?
21
22
A.
Q.
That is correct.
And you continued to use the F word and things
23 like that, right?
24
25
A.
Q.
That is correct.
Why were you in such a heightened emotional
46
1 state at that point?
2 A. Well, knowing that this is the actual second
3 anniversary of Officer Pawlawski being killed the
4 same way by not taking his hands out of his pocket.
5 I get on location. This male wasn't responding to
6 directions.
7 I'm going to make sure I do with any word
8 necessary I want to see this male's hands because I
9 don't know what he is capable of. I don't know who
10 he is.
11
12
13
14
15
16
Q. Let me jump ahead a little bit. Was there a
recording device of some sort found at that scene?
A. That is correct.
Q.
A.
Q.
Who found it?
I found it.
Did Mr. Fiorino at some point later claim it as
17 his own?
18 A. I don't believe so. It was with his
19 belongings. He may have. I don't recall.
20 Q. When you found it it was with his belongings?
21
22
23
24
25
A.
Q.
That is correct.
Did you try to turn it off?
MR. VALVO: Objection. Relevance.
THE COURT: What is the relevance?
MS. FRANCIS: It goes to show the
47
1 defendantls state of mind of what he was trying to do
2 that day and why he had that recorder.
3 MR. VALVO: Because they donlt know
4 how to work his tape recorder that shows his state of
5 mind.
6
7
8
9
10
THE COURT: Sustained.
BY MS. FRANCIS:
Q. Did you personally give the recorder back to
Mr. Fiorino?
A. I put it with his paper work. I think the
11 recorder was put on top of one of the police cars.
12 Q. Okay. How many police officers responded to
13 that scene?
14
15
16
17
18
19
20
21
22
23
24
A.
Q.
A.
I would say probably half a dozen.
All in individual cars or anybody partnered up?
That is correct. All individual cars.
MS. FRANCIS: Okay. Courtls
indulgence. No further questions, Your Honor.
THE COURT: Mr. Valvo.
CROSS EXAMINATION
BY MR. VALVO:
Q. On that particular day, sir, you were able to
25 reach the scene of this particular event at 8800
48
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12
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14
15
16
Frankford Avenue, correct?
A. That is correct.
Q. You didn't have any accidents along the way,
correct?
A. Thank god, no.
Q. No one was injured along the way; is that
correct?
A. No.
Q.
A.
Didn't feel the need to stop and --
Let me finish, sir.
THE COURT: Mr. Valvo, would you
allow him to answer the question.
MR. VALVO: I'm sorry. I thought he
did.
THE WITNESS: Can you repeat the
question?
17 BY MR. VALVO:
18
19
20
21
22
23
24
25
Q. Sure. You
THE COURT:
the way; is that correct?
THE WITNESS:
BY MR. VALVO:
No one was injured along
No, ma'am.
Q. You didn't -- you didn't feel the need to issue
any traffic citations to anyone along the way,
correct?
49
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A. 1
1
m not going to stop to issue a traffic
citation when 11m responding to an assist.
Q. You were not injured that daYI correct?
A.
Q.
That is correct.
With respect to the foul language, we agree
that was an anomaly for you, something that you
normally donlt do?
A. Every situation is different, sir.
MR. VALVO: I have nothing further
for this witness, Your Honor.
THE COURT: Are you finished
l
Miss
Francis I with this officer?
MS. FRANCIS: Yes.
THE COURT: Officer, you may step
down. Thank you.
MS. FRANCIS: With the admission of
C-1 which was the d.v.d. -- the c.d. with the audio
on it the commonwealth rests.
MR. VALVO: The defense rests, Your
Honor -- oh, with one exception. May I side bar for
one moment with you. Very briefly.
(Whereupon there was a side bar conference off the
record)
50
1 MR. VALVO: There is a stipulation
2 by and between counsel that the applicable weather on
3 the date of February 13th, 2011 was not so cold as to
4 render it unreasonable not to be wearing a jacket.
5
6
7
8
9
10
11
is that
reached
that is
the
62
was
MR. FRANCIS:
weather that day
degrees.
MR. VALVO:
MS. FRANCIS:
unreasonable - -
MR. VALVO:
No. The stipulation
that at some point it
That's fine.
I'm not stipulating
That's good enough.
12 That the high temperature on the day February 13th,
13 2011 was 62 degrees as recorded by the National
14 Weather Service.
15 With that stipulation the defense
16 would rest. We are prepared to argue at the pleasure
17 of the Court.
18
19
THE COURT:
MR. VALVO:
Go ahead.
Your Honor, they have
20 said that two rights don't make a wrong. Today the
21 commonwealth tries to sell to you that the two rights
22 -- pardon me, that two wrongs don't make a right.
23 The commonwealth may try to sell you that two rights
24 make a wrong.
25 See, Mr. Fiorino was in the right when
51
1 he was carrying a firearm at his side with the
2 relevant license necessary to do so in the city and
3 county of Philadelphia.
4 The heightened issue that is created
5 was created simply by Officer Dougherty. It was
6 created I think after testimony by two incidents;
7 number one, his heightened state of emotional
8 awareness due to the anniversary of the date of a
9 fallen officer, and secondly of a complete
10 misunderstanding of the applicable rules of law that
11 as a sergeant he is not only supposed to interpret
12 and enforce but instruct and teach others under his
13 command to and he simply messed that up.
14 If he is aware of the appropriate
15 directives and if he is aware of the prevailing law
16 this situation never takes place. And the heightened
17 state of emergency if you will that is called in in
18 this sort of def con one situation that is rendered
19 would never be reached.
20 Mr. Fiorino was also in the right to
21 carry a recording device. There are no charges with
22 respect to that. The Supreme Court has been clear.
23 Not only can you carry one of those in public but
24 police officers and government officials especially
25 should be aware that this could and can happen
52
1 because effectively they are in the public eyes at
2 all times in everything they do. They are subject to
3 public review and scrutiny.
4 So there was nothing wrong in carrying
5 that recorder. It's not unusual for individuals who
6 open carry firearms to carry recording devices when
7 they are in public.
8 MS. FRANCIS: Objection. That is
9 not in evidence, Your Honor.
10 MR. VALVO: This is argument.
11 MS. FRANCIS: Yeah, but it has to be
12 something in evidence.
13 THE COURT: Sustained.
14 MR. VALVO: That's fine. With
15 respect to it, Your Honor, what you see here is an
16 incident where any dangerous situation that was
17 created was created by overzealous law enforcement,
18 not by Mr. Fiorino in any way acting inappropriately.
19 Now, Officer Dougherty states that simply by seeing
20 the gun or firearm on the hip of this individual he
21
22
gets scared.
Imagine how scary it must be to have
23 the firearm pointed at you while you're being
24 addressed disrespectfully, rudely and quite frankly
25 aggressively. And starting with junior says it all.
53
1 That is a term of disrespect. It's about this far
2 from calling somebody boy.
3 And I sayan officer of 23 years
4 experience is aware that that's a term of disrespect.
5 And what he was trying to do was immediately down the
6 defendant, to immediately the minute he saw him
7 emotionally, physically down grade him and tell him
8 he was subordinate, tell him he's not as good and
9 he's going to follow commands. In the mean time Mr.
10 Fiorino is scared half to death.
11
12
13
14
no testimony.
MS. FRANCIS: Objection. There is
That is not in evidence.
THE COURT: He can argue it.
MR. VALVO: He has a gun pointed at
15 him. He is being given commands that conflict with
16 one another. The first thing he does is put his
17 hands up in the air and Officer Dougherty said and I
18 would say would be the normal and trained reaction of
19 a citizen who is being greeted by law enforcement at
20 the pOint of a gun.
21 Then the thing that really starts to
22 get me mad through the course of this trial is --
23 MS. FRANCIS: Objection.
24 MR. VALVO: When he said he never
25 produced it.
54
1
2 is mad?
3
4 defense found
5
6
MS. FRANCIS:
MR. VALVO:
THE COURT:
MR. VALVO:
Who cares if Mr. Valvo
The one thing the
Objection sustained.
The one thing the
7 defense finds offensive regarding the testimony is
8 the statement that Mr. Fiorino never produced his
9 license. He told him 12 times in the first 30
10 seconds of that exchange that he had a proper license
11 to carry that firearm. He was told if he moves he's
12
13
14
15
16
17
going to
And they
produced
wouldn't
get shot.
How was he supposed to produce it?
come in here today and say well, he never
that, we had to get it from him. They
allow him to produce it.
So how was he supposed to reach into
18 his pocket and produce to you a piece of paper that
19 you say if he reaches anywhere he's going to shoot
20 him and very reasonable under those circumstances to
21 believe if he did anything like that he would be
22 shot.
23 I submit to the Court, Your Honor,
24 there is no reckless endangerment here. Mark
25 Fiorino did not in any way go out of his way to
55
1 create a dangerous circumstance.
2 Any dangerous circumstance that may
3 have been created was created by the overreaction of
4 an emotional officer that did not know the prevailing
5 law he was attempting to enforce.
6 I submit you should find the defendant
7
8
not guilty of all charges.
THE COURT: Miss Francis. I hope
9 you're not totally aggravated also.
10 MS. FRANCIS: I'm frankly not. It's
11 not relevant. It's not relevant at all.
12 Judge, there was some strong language
13 used but let's start with Mr. Fiorino being so
14 scared. I asked the sergeant that question very
15 specifically and in this situation with a guy that
16 you don't know what he's doing, what he's about,
17 walking down Frankford Avenue with a gun on his hip,
18 would you have been able as a sergeant of 12 years to
19 quote directive 137. The answer was no.
20 Mr. Fiorino was pretty calmly able to
21 do that. Why Your Honor? That goes to his -- the
22 defendant's intent in this situation. The intent
23 absolutely was to create a hazardous and physically
24 offensive position by any act that serves no
25 legitimate purpose of the actor.
56
1 And 11m not talking about the simple
2 carrying of the gun in an open carry situation. The
3 situation is he is going out to incite a problem.
4 How do we know that? And I learned something here
5 too that it is legal for someone to record a police
6 officer in the course of his duty. I didnlt know
7 that before this. It is legal. Thatls why there is
8 no charges.
9 Why is this defendant doing it? He
10 was dOing it because he was going to open carry
11 around the streets of Philadelphia which he knows
12 that hels licensed to do. Fine. But he's going to
13 make sure that he creates a situation with the
14 police, an encounter with the police, and hels going
15 to make sure that it's on tape because he wants them
16 to screw up.
17 And you know what, Judge, they didn't
18 here. You have a very patient sergeant. You can
19 hear it in his voice. You can here the sensitive
20 nature of the situation and he kept saying if you
21 keep -- the sergeant kept saying if you keep moving
22 I'm going to shoot you.
23 But guess what he didn't do, he never
24 shot him. This guy won't stand still. His hands are
25 here. His hands are in his pockets. His hands are
57
1 everywhere moving around like I am now.
2 THE COURT: I didn't hear that
3 testimony.
4 MS. FRANCIS: He said that his feet
5 were moving around.
6 THE COURT: Not the way you're
7 moving around.
8 MS. FRANCIS: Okay. So his feet are
9 moving around. He won't comply with the sergeant's
10 simple statement to just stay still, I'm calling for
11 backup. Wait until my backup gets here.
12 The defendant keeps wanting to talk
13 about things and escalate the situation where it
14 could have just been, you know, sergeant -- and my
15 hands are on my head for the record right now.
16 Sergeant, I have a license to carry. And when he
17 stood there like this for the entire time -- if he
18 stood there like this for the entire time and had
19 complied with the sergeant's orders we wouldn't be in
20 this situation. His backup would have come. His
21 license would have been checked.
22 And what eventually would have
23 happened, i.e. he gets his gun and all of his things
24 back and you can go home Mr. Fiorino would have
25 happened more quickly without this dangerous
58
1 situation.
2 I submit to the Court that we know
3 that he wasn't standing still because of his
4 because of the order of the sergeant for him to get
5 to the knees.
6 He wanted to make sure that this guy
7 wasn't going to do anything that could have put the
8 sergeant's life and frankly the defendant's life in
9 danger because yes, the sergeant has a gun trained on
10 him because he doesn't know what Mr. Fiorino's
11 purpose is in carrying this gun down the street and
12 that he won't comply with his orders.
13 Now it's a problem. And it's a
14 problem because the defendant meant it to be a
15 problem. While some foul language was being used, I
16 submit that the sergeant was as patient as we could
17 expect him to be in this situation. He did
18 everything right.
19 And the defendant went out there with
20 a specific, specific purpose that day was to cause a
21 problem, some kind of a problem in an attempt to
22 promote open carrying and he did it. He succeeded,
23 Judge. He found a police officer and succeeded in
24 that.
25 So I would ask you to find him guilty
59
1 of the M-3.
2 MR. VALVO: 11m going to object that
3 he found a police officer. That is not in evidence.
4 MS. FRANCIS: Sure it is.
5 MR. VALVO: The police officer found
6 him.
7
8
9
10
11
12
MS. FRANCIS: Disorderly conduct
which is subsection A-4, creates a hazardous or
offensive condition that any act that would serve a
legitimate purpose of the actor.
As to the r.e.a.p. recklessly
endangering another person, I think that is
13 appropriate here, Your Honor. He is reckless in his
14
15
16
17
18
19
20
21
22
23
24
not complying with an officer's simple instructions,
just let me get my backup here and weill straighten
this out at a heightened -- and yes, aggressive
language because the situation called for it at that
point.
THE COURT: You want me to infer
that he set out to do this and deliberately cause a
problem regarding the officers beyond a reasonable
doubt?
MS. FRANCIS: Yes, Your Honor.
THE COURT: I'm sorry. I can't do
25 that. lim not convinced beyond a reasonable doubt
60
1 that that's what he did in walking down Frankford
2 Avenue saying I'm going to find a cop and get him all
3 upset.
4 I do certainly understand how police
5 officers react and I don't think they are reacting in
6 an unreasonable manner but they are not in front of
7 me. I don't find them guilty or not guilty.
8 And I'm not-- I'm certainly going to
9 recommend to your client that he respond a little bit
10 differently than he did and perhaps he got in a
11 little junior which just is one of those things that
12 when people's emotions are heightened but I can't see
13 that these actions made out guilty of these two
14 crimes beyond a reasonable doubt.
15 Whether or not he should have acted
16 the way he did or even if he may, have had something
17 in his mind I can't infer that. So I have to find
18 him not guilty.
19 MS. FRANCIS: May I ask a question?
20 If the court says you can't infer the intent, how
21 about the reckless standard or the recklessly
22 endangering another person?
23 THE COURT: He has to know that the
24 cops would come running and almost get run over and
25 almost kill people.
61
1
2
3
4
5
6
standard.
MS. FRANCIS: Not under a reckless
THE COURT: No. Not guilty.
MR. VALVO: Thank you, Your Honor.
MR. FIORINO: Thank you, Your Honor.
MR. VALVO: That concludes our
7 business before this honorable Court. We appreciate
8 the courtesy of the Court and the commonwealth. May
9 we be excused, Your Honor? Thank you.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
62