Criminal Trial Transcript

8/3/2019 Criminal Trial Transcript

1/62

1

23456789

10

IN THE MUNICIPAL COURT OF PHILADELPHIAROOM 406

COMMONWEALTH

CRIMINAL JUSTICE CENTER

PHILADELPHIA, PENNSYLVANIAOCTOBER 27, 2011

MC-51-CR-0017077-201111 VS12 MARK FIORINO13141516171819202122232425

BEFORE THE HONORABLE FELICE R. STACK, J .

1


2/62

1

2

345

6789

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

APPEARANCES:

REPORTED BY:

MELISSA FRANCIS, ESQUIREASSISTANT DISTRICT ATTORNEYATTORNEY FOR THE COMMONWEALTH

JOSEPH VALVO, ESQUIREATTORNEY FOR THE DEFENDANT

EDWARD D. PICCIOTTO, R.P.R.OFFICIAL COURT REPORTER

2


3/62

1

2

34

5

HIDEX

6 COMMONWEALTH EVIDENCE7 WITNESS DIR. CROSS RE.D RE.C8 SGT. MICHAEL DOUGHERTY 4 25 409

10

11

12

1314

15

16

17

1819

20

21

2223

24

25

P.O. DANIEL RUBIN 42 48

3


4/62

1

23456789

10111213141516171819202122232425

COURT CRIER: This i s case number 2,Mark Fior ino .

MR. VALVO: Your Honor, waivearra ignment and good af ternoon, Your Honor.

Your Honor, the defendant i s preparedto proceed to t r i a l t h i s morning. We waivearra ignment and en te r a p l ea of not gu i l ty on the twocharges s e t before t h i s honorable Court .

THE COURT: Thank you.MR. VALVO: I move for seques t ra t ion

of any and a l l commonwealth witnesses .MS. FRANCIS: I move fo r mutual

seques t ra t ion .

Sergeant Michael Dougherty, badgenumber 8830, ass igned to the 8 th d i s t r i c t , havingbeen duly sworn, having been ca l led on beha l f of thecommonwealth, was examined and t e s t i f i e d as fol lows:

DIRECT EXAMINATION

BY MS. FRANCIS:Q. Good af ternoon Sergeant Dougherty.

4


5/62

1

23456789

10111213141516171819202122

A.Q.

Good af ternoon.Now, I need you to keep your voice up and speak

in the mic and speak s lowly to the gent leman in f ron tof you can t ake down what you are saying and I'll t r yto do the same th ing .

Sergeant , how long have you been employed as aPhi lade lphia po l i ce of f i ce r?A. I'll be going on - - in March I'll have 23 yearson as a Phi lade lphia pol ice of f i ce r .Q. And where a re you ass igned now?A. I 'm ass igned to the 8th d i s t r i c t , Red Lion andAcademy Road.Q. How long have you been ass igned a t the 8th?A. Eleven years .Q. Were you a pol ice of f i ce r there o r d id you got he re as a sergeant?A. I went to the 8th d i s t r i c t as a se rgeant .Q. Where were you ass igned before the 8th?A. Pr io r to th e 8 th d i s t r i c t I was ass igned to the23rd d i s t r i c t , 17th and Montgomery as a se rgeant .Q.A.

And pr i o r to tha t?Pr io r to tha t I worked in the gang u n i t as a

23 po l i ce of f i ce r .24 Q. I s t h a t where you went r i g h t ou t of the25 academy?

5


6/62

123456789

10111213141516171819202122232425

A. No, I did not . I s tar ted out in the 23rdd i s t r i c t which is 17th and Montgomery. From there Iwent to the 2nd d is t r i c t . That a t 2800 Levick. ThenI went to northeast detect ives as a juvenile aidinvest igator . From there I went to special victimsuni t as an invest igator . And then I went to the ganguni t .Q. Let me direct your at ten t ion specif ical ly , s i r ,to February 13th, 2011 a t approximately noon. Wereyou on duty then as a Philadelphia pol ice officer?A. Yes, I was.Q. And as a sergeant were you supervising a squadof police officers?A. Yes, I was.Q. How many people were you supervising on thatafternoon?A. I 'm not sure of the exact number butapproximately 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 patro l car on that day.Solo or with a partner?I 'm solo.Always solo?Sergeants are always solo.Were you dressed in fu l l uniform as you are

6


7/62

1 today?2 A. Yes, I was.3456789

Q. And you sa id a marked car already, r ight?A. Yes, I was in a marked car .Q. At about noon on tha t day did your tour of dutyt ake you to around the 8800 block of FrankfordAvenue?A. Yes, I was in the area a t t ha t t ime.Q. I f you would descr ibe where the 8800 block of

10 Frankford Avenue is? What are the major cross11 s t r e e t s ?12 A. 8800 block comes in between McGarvey and Placid13 in t ha t area . Tha t ' s the 8800 block.141516

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 correc t?1819202122232425

A.Q.A.Q.

Yes.It's noon so I 'm assuming it's dayl ight?Yes, it was.Would you descr ibe for her Honor what the

weather condi t ions were l ike genera l ly tha taf ternoon?A. I t was a February day. I t was a ch i l ly day.I t was l i gh t out but , you know, it was your typ ica l

7


8/62

1 February day. I t was Chi l ly .23

MR. VALVO: Object ion to typ ica l .THE WITNESS: I t was a ch i l ly day

4 t h a t day.5 BY MS. FRANCIS:6789

10

Q.A.Q.A.Q.

Wasn' t snowing or anything?No, it was not snowing.No ra in o r anything?No.Sergeant , what t ime d id you s t a r t your tour

11 t h a t day?12 A.13 day.141516

Q.A.Q.

I s t a r t ed my t ou r a t 6:30 in the morning tha t

I t was not l i g h t out then I take i t , r igh t?No.So when you got to work tha t morning do you

17 conduct ro l l ca l l?1819

A.Q.

Yes, I do.General ly a t r o l l c a l l you discuss any

20 complaints or th ings l i ke tha t in the area?2122

A.Q.

Yes.Did tha t date have any s ign i f icance fo r you or

23 the o ther pol ice off ice rs?24

25MR. VALVO:THE COURT:

Object ion. Relevance.What i s the relevance?

8


9/62

1 MS. FRANCIS: Goes to h i s s t a t e of2 mind on t h a t day, Judge, and reac t ions to th e th ings3 he saw. Things l i k e th a t .4 THE COURT: A ll r igh t . Go ahead.5

6Overruled .

THE WITNESS: February 13th was an7 annive rsa ry of O ff i c e r John Pawlowski who was sho t8 and k i l l e d in the l ine of duty .9 BY MS. FRANCIS:

1011121314

Q. Was t h a t discussed e i t h e r a t r o l l c a l l o rinformal ly among th e of f i ce r s?A. Yes, it was.

MR. VALVO:THE COURT:

Objec t ion .Overruled .

Hearsay.

15 BY MS. FRANCIS:16171819

Q. L e t ' s go back to noon now. About noon you ' r ein a pa t ro l ca r . cor rec t?

Yes..Q. And were you on Frankford Avenue o r another

20 s t r ee t ?2122

A.Q.

I was on Frankford Avenue.And Frankord Avenue a t t h a t po in t i s two l anes

23 each d i r ec t ion , cor rec t?24

25A.Q.

One l ane each d i r ec t ion .One l ane each di rec t ion?

9


10/62

1

23456789

101112131415

A.Q.A.

Yes.So which way were you t rave l l ing?I was t r ave l l ing northbound on Frankford

Avenue.Q. When you got to around the 8800 block i s tha tr e s i den t i a l or business?A. Mixed. Some re s iden t ia l homes on the eas t s ideof Frankford Avenue, business on the west s ide ofFrankford Avenue.Q. So the eas t s ide as you ' re t r ave l l ingnorthbound i s on your r ightJ correct?A. Yes.Q.A.Q.

So across the s t r e e t there was businesses?Yes.Did anything draw your a t t en t ion a t about noon

16 while you were in your ca r tha t br ings you to cour t17 today?18 A. Yes.19 Q. What was tha t?20 A. When I was t r ave l l ing I not iced the gentleman21 s i t t i n g to the r i g h t of me.22 Q. NOw, there a re two gentlemen s i t t i ng to the23 r i g h t of you. Which one are we t a lk ing about?24 A. Mr. Fior ino if I 'm pronouncing tha t r igh t .25 MS. FRANCIS: Ind ica t ing , Your

10


11/62

1 Honor, th e defendant .2 Q. And let's be c lea r . At th e t ime you saw him3 d id you know h is name?4 A. No, I d id no t .5 Q. Had you ever had any con tac t with him before?6 A. No, I neve r had no con tac t with him.7 Q. You no t i ced the defendant . What was he dOing?8 A. He was walking nor th on the e a s t s ide o f9 Frankford Avenue and what brought my a t t en t ion i s I

10 no t i c e d a gun on h is l e f t s i de . He a l so had a c l ip11 and it looked l ike a f l a s h l i g h t on h is gun b e l t .12 Q. Okay. Let me s top you t he re . You were using13 your hands. What s ide of h is body was th e f i rearm?14 On th e l e f t s i de .15 Q. And was it in a what you recognized to be a16 r egu l a r kind o f hols te r?17 A. I t was in a ho l s t e r .18 Q. You a lso descr ibed something e lse and moved19 your r igh t hand. Were the re th ings on h is r igh t -hand20 s ide?21 A. Yes, the re was a l so o t he r i t ems on h is b e l t .22 Q. What was tha t?23 A. That was a - - it looked l ike a c l ip fo r a gun24 and a smal l f l a sh l igh t .25 Q. Now, was Mr. Fior ino , the defendant , was he


12/62

1 wearing a coa t a t t ha t t ime?2

3A. No, he was no t .

MR. VALVO: Object ion . Relevance.4 MS. FRANCIS: Goes to h is a b i l i t y to5 view what he saw.6 THE COURT: Object ion sus ta ined .789

1011121314151617181920212223

No, he was no t .BY MS. FRANCIS:Q. And it was February, cor rec t?A. Yes, it was.Q. When you f i r s t saw Mr. Fior ir to was he dOirtganything o the r than walking?A. No.Q. And when you f i r s t saw him could you see a l lt h r ee i tems t h a t you descr ibed on th e be l t ?A. Yes.Q. Seeing what you saw what d id you do rtext?A. I j u s t s tayed behind him because I 'm t ry i ng t of igure ou t what I have here , you know, what ' s myapproach going to be . Then I pu l l - - s top my ca r onth e s ide of him, go t out of my ca r and I asked him, Isa id j un io r , what ' s with the gun.Q. Let me s top you t he re . You sa i d t ha t you

24 s t ayed behind him. Did you keep your ca r moving25 a f t e r you f i r s t see him?

12


13/62

123456789

:)'011121314151617

A.Q.A.

A little b i t , yes .By a little b i t do you mean s lowly?Slowly . I was going s low. Mr. Fior ino was

still walking .Q. And he was not dOing anything o t h e r thanwalking, c o r re c t ?A. Correc t .Q. How c lose were you sea ted in th e d r i v e r ' s s e a tof your c a r to th e de fendan t when you s topped yourcar?A. 10, 12 f e e t .Q. When you stopped your c a r before you sa idany th ing d id Mr. Fior ino s top?A. When I s topped my c a r Mr. Fior ino s topped andt u r n ed to me a f t e r I asked him what ' s with th e gun onhis side.Q. A ll r i g h t . So he didn1 t s top and t u rn t o you

18 u n t i l you addre ssed him, cor rec t?19202122

A.Q.A.Q.

23 you?

Exac t ly .And you s a id th e word j un io r ; i s t h a t c o r re c t ?Yes, I d id .Mr. Fior ino d id he appear to be younger than

24 A. Yes, a l o t younger than me.25 Q. SO Mr. Fior ino - - you sa i a something to him and

13


14/62

1 he stopped and turned toward you f cor rec t?A. Yes.

3 Q. Where were h is hands a t t h a t poin t?4 A. His hands were down a t h i s s i de .5 Q. You're making a motion with your elbows bent6 though; i s t ha t cor rec t?7 A. Iim not sure if they were s t r a ig h t b u t they8 were down by h is pocket .9 Q. Could you see h is hands?

10 A. I Gould see h is hands a t t ha t t ime .11 Q. So you sa id to him what ' s up. He tu rns to you12 and what happened-next?13 A. He hol le red who you ca l l i ng j un i o r .14 Q. Now, are you in your ca r a t t h i s po in t?15 A. I'm out of my ca r s tanding between my door and16 th e sea t .17 Q. Where was your gun?18 A. My gun was on my r i g h t s ide a t t h i s t ime .19 Q. So he says who you ca l l i ng jun ior or something20 to t ha t a f f e c t . What happens next?21 A. At t h i s t ime I s t a r t e d ge t t ing a little22 concerned.23 Q. Why?24 A. I asked him jun ior , what ' s with the gun. He25 went o ff on me.


15/62

1:z

345

Q.A.

MR. vALVO:TIi""E COURT:MS. FRANCIS:

Objec t ion to went o f f .Objec t ion sus ta ined .

I wi l l c l a r i f y t ha t .What do you mean by t ha t l a s t s ta tement?I 'm sor ry , Your Honor. What I meant was t h a t

6 he ra i sed h is voice in a loud tone to me.7 Q. At t h a t t ime d id he t e l l you t h a t he had a8 l i cense to ca r ry a gun?9

101112

A.Q.

No.Okay. Please cont inue . He addressed you in a

loud tone.A. When he addressed me in th e loud tone I s t a r t ed

13 becoming concerned nOw. Tha t ' s when I d id p u l l my141516171819202122232425

gun ou t .Q. Okay. You t ake your gun ou t o f the ho l s t e r?A. Yes, I did .Q.A.Q.A.Q.A.

What d id you do with i t ?I pOinted it a t Mr. Fior ino .Where were h is hands then?His hands s t a r t e d moving.Where?J u s t a l l o v e r . He was l i f t i n g h is hands. I 'm

THE COURT: Do you want to s tand upand show me?


16/62

1 '1'H"'E WITNESS: Yeah, sure Your Honor.2 He s ta r ted ra is ing his hands up.34

567

THETHETHETHEMR.

COURT:WITNESS:COURT:WITNESS:VALVO:

Up in the air?Yes.

Shoulder lertgth?Shoulder length.

May the record re f lec t ,8 Your HonQr, tha t the of f i ce r raised his hands towards9 above the l evel of his shoulders and was shaking them

10 in the a i r .11 THE COURT: All r ight . That would12 b e accurate .13 BY MS. FRANCIS:14 Q. Did the defendant assume a pose of someone who15 you t e l l not to move?161718

A.Q.

No.A ll r ight .

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 a i r . Did they stay as23 mine are rtOw -- irtdicatirtg shoulder lertgth arms bent24 in a submissive sor t o f posit ion?25 A. No, he did not .

lb


17/62

1

2345

Q.A.Q.A.

Okay. Did a conversat ion then happen?Yes.In what tone?A loud tone.

MS. FRANCIS: Your Honor, a t t h i s6 t ime I am going to mark as C-1 an audio c .d . and ask7 t h a t I play it fo r the Court .89

10111213

the

Mr.

THEaudio c.d?

MS.Fiorino taped.

THEMR.

COURT:

FRANCIS:

COURT:VALVO:

Offer of proof . What i s

It's the exchange tha t

Mr. Fior ino had a tape?That i s correc t . There

14 i s a s t ipu la t ion by and between counsel tha t there15 was an audio recording of the event . The recording16 was made by Mr. Fiorino.17 I bel i eve the commonwealth i s going to18 play an accurate vers ion of tha t pa r t i cu l a r exchange.19 The defense i s in favor of the playing of t ha t .20 We cer t a in ly have no objec t ion to it.21 We s t ipu la te to the au then t ic i ty and we only ask tha t22 we t ha t we hear it completed from s t a r t to f in i sh23 r a the r than piece meal. That ' s my only concern.24 MS. FRANCIS: I wi l l do t ha t . I25 w i l l play it once fo r the Court as bes t we can with

17


18/62

1 the microphone. I 'm experimenting here with t ha t .2 And then I may go back anct chop it up a little b i t .3 MR. VALVO: And tha t would be f ine .45

I have no problem with tha t .MS. FR..ANCrS:

6 am not a computer exper t .7 THE COURT:8 exper ts f loa t ing around?9 MS. FRANCIS:

Cour t ' s indulgence. r

Do we have any computer

I t should be fa i r ly10 simple. wel l , yeah. Exact ly . Okay.11 THE COURT: Are you t ex t ing or1213

looking a t a c e l l phone there?UNIDENTIFIED SPECTATOR; Yes, ma'am.

14 THE COUF.T: You were to ld not to do15 t ha t .16 UNIDENTIFIED SPECTATOR: My17 apologies .18 THE COURT: Because it wil l be19 conf i sca ted . Go ahead Miss Franc is .20 MS. FRANCIS: I don ' t th ink the mic21 i s on. Can I ask t ha t we f l ip the switch.22 COURT CRIER: I t i s on. That mic23 has been ac t ing up.24 MS. FRANCIS: Jus t keep it l i ke25 t h a t . I promise not to t r ip over it and so does Mr.

1.0


19/62

1

2345678

Valvo.MR. VALVO:

high expec ta t ion of - -Yep. You have a very

I acknowledge p r io r not ice of thedangerous condi t ion .

MS. FRANCIS: Okay. There i s acouple spots

9 (Whereupon an audio t ape was played in open court )10 - - -1112

BY MS. FRANCIS:Q. A ll r igh t . Sergeant Dougherty - - i f I may,

13 Your Honor. Sergeant Dougherty, you j u s t heard tha t14 audio recording?1516

A.Q.

Yes.Did you recognize any of the voices on tha t

17 record ing?18 A. Yes.19202122232425

Q.A.Q.

Whose was the f i r s t voice t h a t you heard?Myself .And t h a t ' s when you sa id hey jun ior?

A. Yes.Q. The second voice tha t you heard a littlelouder , do you recognize t h a t voice? I s tha tsomebody t h a t you know?

19


20/62

12

A.Q.

No, nobody I know.But from your r eco l l ec t ion of the events whose

3 voice was i t ?4

5A.Q.

Mr. Fior ino.At any t ime d id he t e l l you t h a t he was

6 recording the conversa t ion?789

10111213141516171819

No, he did not ..Q. And d id he a t any t ime reach to push a recordbu t t on o r anything o r were h is hands j u s t movingaround?A. His hands were j u s t moving around.Q. SO a f t e r you ca l l ed him jun ior he tu rns to looka t you. You sa id tha t he was moving h is handsaround. During t h a t en t i r e audio recording tha t youj u s t heard d id h is hands ever remain s ta t ionary?A. He s t a r t ed plac ing them down by h is pockets .Q. Show the Judge?A. He had h is hands down l ike t h i s .

MS. FRANCIS: Ind ica t ing , Your20 Honor, hands - - f ingers halfway in a pocket and21 halfway out .222324

THE WITNESS: Yes.THE COURT: Thumbs in .THE WITNESS: Like t h i s . I know I

nave my JaCKec on. L1Ke cnlS.

L .V


21/62

1 'T'HR ("nTTR'T" ]\11 r i ahL2 BY MS. FRANCIS:3 Q. When he put them in h i s pockets did he ever4 take them out again during tha t encounter tha t was5 recorded?6 A. He was moving around a l o t . So he had them in7 h is pocket . He j u s t was not complying to what I was8 asking him to do.9 Q. What were you asking him to do?

10 A. To s tay where he was a t , wai t fo r my backup and11 we ' l l qet t h i s a l l s t ra iqh tened out .12 Q. I s it s tandard - - well , l e t ' s be c lea r . Your13 voice was ra i sed : correc t?1415161718192021222324

Yes.Why?I was concerned.Were vou scared?I was scared.When was the l a s t t ime t h a t you ca l led fo r

backup before t h i s event?MR. VALVO:THE COURT:

BY MS. FRANCIS:

Obiect ion . Relevance.Sustained.

Q. Is it s tandard procedure when there i s somebodyW1cn a gun wnere cnere 1S no e x p ~ a n a c 1 0 n Io r co c a ~ ~


22/62

1

23456789

1011

12131415161718192021222324

fo r backup?A. No explanat ion , yes, c a l l fo r backup.Q. Have you encountered a person before tha t had ava l id l i cense , t h a t produced it, and tha t you j u s tl e t go in your years as a pol ice off icer?A. Through my career I have s topped a lo t ofpeople t h a t had concealed weapons on them and handledit by myself .Q.A.

Okay. What made t h i s d i f fe ren t?That day being a spec i a l day on my mind of how

Off i ce r Pawlowski go t shot . Off i ce r Pawlowski go tshot by hands being concealed. He could not seethem. The tone of Mr. Fio r ino ' s voice had a lo t ofconcern to me.

1 wanted to know why he had the Olin on him.When he ra i sed h is voice and s t a r t ed to l ec tu re met e l l i ng me th ings when a l l I wanted him to do wascomply to what I sa id , wai t fo r my backup and we cang e t everyth ing handled which we did .Q. Because Mr. Fior ino was no t a r r e s t ed tha t day?A.Q.A.Q.

No, he was no t .Did he ge t h is gun back?Yes, he did .Did he ge t - - s t r i ke t ha t . Was there anything

e ~ s e on n ls person cnac was caKen ~ r o m n ls persont


23/62

123456789

1011

A. Well, his recorder dropped out of his pocketand tha t 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 tha t found it on the qround?A.O.A.O.A.O.

No, no, I did not .That ' s Officer Rubin. correct?Officer Rubin.Who i s here?Yes.How lonq did i t take for your backuD to qet

12 there?1314

A.Q.

Not long.How many times did you ca l l for backup?

15 A. Couple - - several times. I kept on l e t t ing16 radio know I need backup here.17 Q. And the ent i re time tha t you were engaged in18 t ha t exchange with the defendant was your gun s t i l l19 out?20

2122

A.Q.A.

Yes, it was.Was it pointed a t the defendant?Yes, it was.

23 Q. Do you know now in the recording you seem to24 say tha t you can ' t open carry in Philadelphia?25 A. Correct .


24/62

Do you know now t ha t t ha t i s incorrec t?I know now, yes .Okay.I 'm well aware.

12345

Q.A.Q.A.Q. In f ac t , i f you have a l i cense you can l ega l ly

6 open car ry in Phi ladelphia?7 A. Yes, you can.8 Q. But you have to produce a l i cense to a pol ice9 of f ice r?

10111213141516171819

A. Yes.Q. Did Mr. Fior ino ever produce the l i cense fo ryou on h is own?A. No.

Q. Did someone f ind a l i cense on h is person a tsome po i n t a t the end of tha t exchange?A. Yes.Q. Do you remember who tha t was?A. I don ' t know i f it was - - I 'm being honest .d o n ' t know i f it was myself o r one of the o f f i c e r s .

20 Mr. Fior in sa id tha t the l i cense was in h i s21 pocket and we were able t o ge t the l i cense to check22 it and to then follow through with everyth ing .23 Q. Okay. You ta lked about the defendant ' s hands24 moving around during t h i s exchange. What about h is25 fee t? Did he s tand s t i l l ?

I

24


25/62

123456

A. No, no, he didn ' t stand s t i l l .Q. What kind of surface did you stop him on whenhe stopped and turned toward you. Where was hestanding?A. He was on the pavement.Q. Is there other types of surface r ight near by

7 where he stood s t i l l ?8 A. There was grass and I think a cyclone fence9 behind him.

101112

Q.A.Q.

Was there an apartment complex r ight there?Yes, there are small homes by there.And did Mr. Fiorino's feet move from the

13 pavement to tha t grass surface a t a l l?141516

A.Q.A.

He was moving around.Did tha t concern you?Yes, because everything I t r ied to ask him to

17 do he didn ' t comply.1819

Q.A.

Did you have a taser on you tha t day?I have a t aser in the car . I'm a serqeant so I

20 wear a taser .2122232425

Q. Okay. Court 's indulgence. I have no fur therquest ions.

CROSS EXAMINATION


26/62

123456789

1011

BY MR. VALVO:Q. Si r , you indicated in your d i r ec t examinationt ha t you s t a r t the day a t a heightened degree ofconcern due it being the anniversary of a fellowf a l l en o f f i ce r ; i s t h a t correct?A. I t was an emotional th ing, yes s i r .Q. SO you ' re ca r ry ing tha t in to the s t r e e t withyou excess emotional baggage tha t you normally don ' tcarry?

MS. FRANCIS: Object ion to the form.THE COURT: Overruled. Would t ha t

12 be accurate?1314 dur ing the day.

THE WITNESS: I wasn ' t emotional a l lI t was j u s t I knew tha t was the

15 annive rsa rv of the of f i c e r ' s death.16 BY MR. VALVO:17 Q. When you s ta ted during your d i r ec t tha t t h i s18 had a lo t of impact on everything tha t you ' re doing19 a t the scene, r igh t?20 A. Yes, a t ce r ta in poin t s it was, yes .21 Q. Right . So you ' re conducting yourse l f22 d i f f e r en t l y on February 13th than you would have in23 vour other aooroximatelv 23 years as a ool ice24 of f ice r?

A. L WOULQ say cnac 1S 1ncorrecc .


27/62

1 Q. Then why would you - - I 'm sor ry . Please2 complete your answer. I apologize.3 A. A lo t of mv ac t ions were brouqht on bv Mr.4 Fio r ino ' s act ions .5 Q. Well, then why you in t roduce to t h i s Court the6 informat ion, even over my object ion, tha t it was a7 very spec i f ic date of a fel low fa l l en of f i ce r tha t8 was on your mind?9

101112

MS. FRANCIS:in troduce i t . I did.

13 ques t ion .1415 sus ta ined .16 BY MR. VALVO:

MR. VALVO:MS. FRANCIS:

THE COURT:

Obiect ion. He d i dn ' t

He answered.He answered the

The objec t ion i s

17 Q. Now, you indicated - - and I apologize and I 'm18 going to jump forward a little b i t . But you19 ind ica ted something to me - - well , pardon me,20 something during your di rec t tha t the defendant never21 produced h is l i cense to car ry a f i rearm; i s t ha t22 cor rec t?2324

A.Q.

Correct .That ' s because - - but he to ld you numerous

~ : > Clmes aurlng cne excnange cnac ne naa one, rlgnc-r

.


28/62

1 A. Yes, he did , s i r .2 Q. And i f he reached fo r it you would have shot3 him, r igh t?4 A. I 'm not saying tha t , s i r .S Q. You had the gun poin ted a t him, r igh t?6789

10111213141516171819

A. Yes, I did , s i r .Q. Now, you s ta ted tha t when you saw him with av i s ib l e f irearm a t h is s ide and speaking to you in aloud tone of voice tha t scared you; i s tha t correc t?A. I t was a b ig concern to me, yes , it was.Q. SO wouldn ' t you a l so f ind it reasonable t h a tsomeone t h a t ac tua l ly had tha t gun phys ica l ly poin teda t them, no t in a ho ls te r a t the s ide , bu t phys ica l lypoin ted a t them as being spoken to in a loud and rudetone of voice t h a t tha t would scare them?

MS. FRANCIS:THE COURT:MS. FRANCIS:THE COURT:

Object ion .Obiec t ion to

The word rude.A ll r iqh t . Susta ined .

20 BY MR. VALVO:21 O. Pardon me. A loud and aqqress ive tone of222324

voice .THE COURT: You may answer.THE WITNESS: I assume. I mean

25 BY MR. VALVO:


29/62

1 Q. It's ce r ta in ly reasonable to th ink tha t he was2 as scared as you would be, r igh t?3 A. Yes, I would th ink so .4 Q. So as you sa id , as soon as you pon i t the gun5 the hands go up around the shoulder area , correc t?6 A. They are moving around. They are up.7 Q. And he was t e l l ing you tha t he has a l i cense to8 car ry a f i rearm, r igh t?9 A. He was t e l l i ng me he has it, r i gh t .

10 Q. But you ' re cla iming tha t he never produced it11 fo r you, r igh t?12 A. I to ld him to do what I 'm saying, keep your13 hands, wai t fo r my backup. My concern was get my14 backup there , then we can s t ra igh ten everything out .15 Q. Well, from a pr ac t i ca l s tand poin t we can agree16 t ha t you can pu l l your t r igger f a s t e r than he can17 draw h is weapon, poin t it a t you and f i r e , correc t?18192021

MS. FRANCIS: Object ion.THE COURT: Sustained.

BY MR. VALVO:Q. You opened t h i s exchange by re fe r r ing to him as

22 j un io r ; i s t h a t correc t?2324

A.Q.

Yes, s i r .A ll r i gh t . And in your pol ice t ra in ing do they

t eacn you to use t n a t tone - - pardon me, to use tha t


30/62

123456789

pa r t i c u l a r phrase to address an ind iv idual to g ett h e i r a t ten t ion?


BY MR. VALVO:Q. Were you concerned t ha t he might f ind tha toffens ive in some way?


10 BY MR. VALVO:11 Q. Were you concerned t ha t he might not recognize12 t h a t you were speaking to him?13 MS. FRANCIS: Object ion .14 THE COURT: You may answer t ha t .15 THE WITNESS: I th ink he knew I was16 speaking to him. He was the only one r igh t in f ron t17 of me when I was d i rec t ing my voice to him. There18 was no o the r people walking with him.19 Q. But when you - - when you c a l l o u t j un io r h is20 back i s to you; i s tha t correc t?21 A. Not t ha t much behind. I 'm r ea l ly close to Mr.22 Fior ino .2324

Q.A.

You sa id you were 10 to 12 fee t away?That ' s from the curb and I 'm in my car i s 10 to

25 fee t away. Right on the s ide of him when I ca l led

.5 U


31/62

1 when I sa id to Mr. Fior ino hey jun ior , I wasn ' t 10 to2 15 fee t behind him. My car was - - he was to the3 r i g h t of me and 10 to 15 - - he was on the curb. I 'm4567

out in the s t r e e t in my car .O. Could you see h is face as you approached?A. I could see the s ide of h is face.Q. So a t t ha t poin t t h a t ' s when you yel led jun ior ,

8 what ' s with the gun, r ight?9 A. Yes, s i r .

10 Q. He tu rns around and puts h is hands in the a i r ,11 cor rec t?12 A. I don ' t remember him tu rn ing and put t ing h is13 hands in the a i r . He jus t s t a r ted - - he hol le red who14 you ca l l ing jun io r .15 Q. Right . And it wasn ' t reasonable to you t ha t he16 was t ry ing to determine whether o r no t you were17 addressing him s ince jun ior i s obviously not h is18 name?192021222324

25

MS. FRANCIS: Object ion. Compound.THE COURT: A ll r igh t . How about

making it non-compound.BY MR. VALVO:Q. That ' s f ine . He turned and asked you - - whenhe turned and sa id who are you ca l l ing jun ior youd i d n ' t i n t e r p r e t tha t as him t ry ing to determine you


32/62

1 were address ing him?2 A. No. Junior , what ' s with the gun. I assumed345

t h a t he knows I was t a lk ing to him.Q. What color s h i r t was he wearing t ha t day?A. I t was a long s leeve s h i r t . I don ' t remember

6 what c o lo r it was, s i r .7 O. Tha t ' s f i ne . Did you say s i r in the long8 s leeve s h i r t ?9 MS. FRANCIS: Object ion. I th ink

10 th e audio speaks fo r i t s e l f .11 THE COURT: I t speaks fo r i t s e l f .12 BY MR. VALVO:13 O. Now, a t some po i n t you sa id t h a t you began to14 be f ru s t ra ted with th e fac t tha t Mr. Fior ino was15 quote l ec tu r ing you; i s t h a t cor rec t?16 A. He wasn ' t complying to what I was asking him to17 do . Tha t ' s a l l I wanted t ha t day. Tha t ' s a l l I18 wanted.19 Q. Well, you wanted more than t h a t . You also20 wanted the l i cense to ca r ry the f irearm?21 A. Aft e r I go t my backup Mr. Fior ino to ld me t h a t22 he had the l i cense . I know he kept on t e l l i ng me23 t h a t .24 A ll I asked i s wai t fo r my backup. We would25 have found t h a t out and when I cont inued on --


33/62

123456789

1011

Q. And he had to ld you tha t many, many times overthrough the course of your verbal exchange.

MS. FRANCIS: I 'm sorry, Judge.Through the what? That 's a l l I wanted to know.

THE COURT: Do you have otherwitnesses?

MS. FRANCIS: Yes, I have OfficerRubin. Do you want to stop for the custody?

THE COURT: No. I 'm jus t curious.MS. FRANCIS: I have Officer Rubin.MR. VALVO: That 's f ine, Your Honor.

12 I wil l continue.13 Q. Once he mentioned direc t ive 137 to you you were14 aware of what direct ive 137 was, right?1516

A.Q.

Yes, s i r .In a l l fai rness to you, you had misinterpreted

17 or misunderstood what the direct ive intended to do?1819202122232425

A.O.A.

You're correct , s i r . I 'm not denying that .Okay. But you were aware of what i t was?Yes.

Q. You have given us a tremendous amount of yourvas t experience and in tha t vast experience how manypeople tha t you're holding a t gun point are aware ofthe direct ives to discuss with you regarding theincident?


34/62

123456789

MS. FRANCIS: Objection.Speculation.

THE COURT: Sustained.BY MR. VALVO:Q. Has anyone ever mentioned to you during anar res t or invest igat ion a spec i f ic d i rec t ive orinformation regarding the law that you're speaking tohim about?

THE COURT: In your recollect ion in10 a l l your experience has anyone ever mentioned ei ther11 a s ta tu te or regulation? That 's a very broad12 quest ion but apparently no. Not that you recal l?13 THE WITNESS: Not that I recal l ,14 Your Honor. Correct .1516171819202122232425

BY MR. VALVO:Q. Now, during your direct examination you alsos ta ted that in your experience you have had theopportunity to encounter other individuals who had aconcealed firearm; i s that correct?A. Yes.Q. How many of -- what percentage of thoseoccasions did you hold them a gun point?

MS. FRANCIS: Objection.THE COURT: Sustained.MR. VALVO: Your Honor, can I speak

34


35/62

123

to tha t fo r j u s t a moment.THE COURT:MR. VALVO:

Yes.I f he i s going to

4 in troduce in format ion tha t he has encounters such as5 t h i s before , I th ink it's appropriate t ha t we6 es tab l i sh the l eve l of force tha t he i s at tempt ing to7 use . I th ink t ha t i s c r i t i c a l in the end ana lys i s .8 What we have here i s an of f i ce r who i s9 employing po ten t ia l l e tha l force in a s i tua t ion where

10 the defense a t the ou t se t11 THE COURT: What we are looking fo r12 i s tha t your c l i en t i s being accused of cer t a in13 cr imes . He's not being accused of t ha t . So I don ' t14 see it. Thank you.15 MR. VALVO: Certainly , Your Honor.16 I'll move on.17 Q. Now, you mentioned through the course of your18 d i r e c t examination tha t he d idn ' t s tay where he was19 a t , t ha t he was moving around; i s t ha t correc t?20 A. He wasn ' t walking away. He was moving back and21 f o r t h . He was j u s t l i ke he wasn ' t s tanding still.22 Do you want me - - I wanted him to s tand still. I23 wanted him to l i s t e n to what I was saying. That ' s24 a l l I wanted.25 Q. Through the course of t h i s though you ' re a lso

35


36/62

123456789

10111213141516171819202122

giv ing him conf l ic t ing commands, correc t?A. Because he wasn ' t l i s t en ing to me.Q. Right .A. So I gave him one command. I t wasn ' t l i s t enedto . I was t ry ing to give him another command. Maybehe would l i s t en to t ha t . He d idn ' t l i s t en to tha tcommand.Q. Right . So a t one poin t you t e l l him put yourhands in the a i r , r igh t . At some poin t in tha texchange you say tha t to him?A. Yeah.Q. At another poin t in tha t exchange you t e l l himi f he moves you ' re going to shoot him?A. He was moving around too much fo r me. He wasr a i s ing my l eve l of my t h rea t .Q. Cour t ' s indulgence fo r a moment. As a r e s u l tof th i s inc ident you have come to lea rn t ha t it wasper fec t ly appropriate fo r him to car ry the f i rearm inth e manner tha t he was carrying i t , correc t?

MS. FRANCIS: I 'm going to objec t toappropr ia te . Legal yes .

THE COURT: Would you l i ke to23 rephrase?24 MR. VALVO: No, I wouldn ' t .

Appropriate .5 THE COURT:

36


37/62

12 term t h a t

MR. VALVO: Yes, I th ink t h a t ' s awe can ask l ega l as a separa te ques t ion .

3 But i f he answers it's inappropr ia te I would l i ke to4 know why.5 THE COURT: Do you th ink it was6 appropr ia te for him to car ry a gun l i ke that?7 THE WITNESS: Under the l ega l8 s t a tu t e yes .9 THE COURT: Well, do you th ink it

10 was appro pr ia te s ince we ' re us ing tha t word? In your11 opinion would it be appropr ia te? I guess t h a t would12 be a subjec t ive eva lua t ion .13 THE WITNESS: Inappropr ia te , my14 persona l opinion, yes. Inappropr ia te .15 BY MR. VALVO:16 Q. Why? I th ink t h i s cut s r i gh t to the hea r t of17 the case , Your Honor. Why? Why d id you s ta te t ha t18 it's inappropr ia te to do tha t?19 MS. FRANCIS: Object ion. Ins tead of20 counsel arguing t h i s i s not a gun case. We're not21 arguing about the l ega l i ty of h is ca r ry ing the gun.22 THE COURT: Well, what we a re t ry ing23 to argue i s why would the of f i ce r have the reac t ion24 t h a t he had. That i s probably appropr ia te but the25 of f i c e r i s n i t on t r i a l here but 1 i l l allow it. Why


38/62

1

23456789

1011

1213141516

would you say i t ' s inappropriate sergeant?THE WITNESS: My whole career as a

Philadelphia police off icer I have never encounteredanyone, le t alone on a cold day, openly carrying agun walking on Frankford Avenue with other businessesaround, two banks -- I don ' t know.

As a pol ice off icer you don ' t knowwhat you have. That 's why we ask jus t comply to whatwe say and we' l l s traighten i t out. Yes, I wasconcerned. Did I feel i t was inappropriate, yes.BY MR. VALVO:Q. And that was your concern that day?A. There was a lo t of concern, s i r . I think Ihave been very nice and addressed tha t to you. Therewas a lo t of concerns.

THE COURT: All r ight , sergeant .17 Go ahead.18 BY MR. VALVO:19 Q. Now, we can also agree tha t you have come to be20 aware that recording the incident is not i l l ega l in21 any manner? I am simply using the word legal on that22 one?2324

A.Q.

Correct .And in a l l fai rness to you, you released him

25 with tha t audio recording device? You didn1t


39/62

1

23456789

1011

12

conf i sca te i t ?A. Yes, I did.Q. And a l so d i dn ' t conf i sca te the f i rearm t h a tday?A. No, I did not .Q. And you also d idn ' t a r r e s t him, correc t?A. No, I did not .Q. In f ac t , you d i dn ' t even give a s ta tement to ade tec t ive regard ing t h i s inc ident u n t i l March the28th of 2011, correct?

THE COURT: I s t ha t accurate?THE WITNESS: That would be co r rec t .

13 BY MR. VALVO:141516171819202122232425

Q. And tha t j u s t happened to be two days a f t e r theaudio tape tha t was played fo r t h i s honorable Courth i t utube, correct?

MS. FRANCIS: Object ion . We don ' tknow i f he knows tha t or what h is access i s .

MR. VALVO: I th ink he does know.THE COURT: Why don ' t you lay the

foundat ion. Object ion sustained to t ha t ques t ion .BY MR. VALVO:Q.A.Q.

Are you aware tha t th e audio tape h i t utube?I became aware of it l a t e r on.Did you become aware of it before or a f t e r you

39


40/62

1 made your s ta tement to the detec t ive on March 28th.23

THE COURT: I f you remember?THE WITNESS: I don ' t remember when

4 I become aware of the audio tape .5 MR. VALVO: Cour t ' s indulgence. I6 bel i eve I 'm done. I j u s t want to check my notes i f I7 may.8 Q. Last ly , of f ice r , fo r clean up. You mentioned9 it was a quote unquote ch i l ly day. Do you have a

10 reco l lec t ion of what the temperature was?11 A. No, I do not .12 Q. Can we agree tha t it was ac tua l ly up to 6213 degrees on February 13th, 2011 through the course of14 th e day?151617181920

MS. FRANCIS:have a r eco l l ec t ion .

THE COURT:MR. VALVO:

I have nothing fur ther .THE COURT:

Object ion . He doesn ' t

He sa id no reco l lec t ion .That ' s f ine, Your Honor.

All r i gh t sergeant . You21 may s tep down. You have r ed i rec t .22232425 BY MS. FRANCIS:

REDIRECT EXAMINATION

40


41/62

1 Q. Sergeant , why d id you o rde r the defendant to2 h is knees?3 A. I wanted him under my con t ro l . As a po l i c e4 o f f i c e r t h a t i s what I am t augh t . That i s what I5 d i r ec t ed him to do.6 Q. And in a l l f a i rness , t h i s was a f r i gh t en ing and7 emot iona l s i t u a t i on ; i s t h a t cor rec t?

Yes.9

A.Q. Would you have been ab le to quote d i r ec t ive 137

10 a t t h a t po in t?A.Q.A.Q.A.

down.

NO, I would no t have.How long have you been a sergeant?12 yea r s .The defendant quoted it, d i dn ' t he?Yes.

MS. FRANCIS: Thank you.THE COURT: Sergeant , you may s tep

111213141516171819202122

THE WITNESS: Thank you, Your Honor.THE COURT: Step ou t s ide p lea se . Do

you i n t end to c a l l th e o the r o f f i ce r?MS. FRANCIS: Yes. Can I t a lk to

23 counse l .24 MR. VALVO: Because we may be able25 to--

41


42/62

12345

MS. FRANCIS: I wil l be br i e f .THE COURT: A ll r igh t .MS. FRANCIS: Police Off icer Rubin

and I wil l g e t him.

6 Police Off icer Daniel Rubin,7 R-U-B-I-N, badge number 3422, cur ren t ly assigned to8 the 8th pol ice d i s t r i c t , having been duly sworn,9 having been ca l led on behal f of the commonwealth, was

10 examined and t e s t i f i ed as fol lows:11 - - -12 DIRECT EXAMINATION13 - - -14 BY MS. FRANCIS:15 Q. Off icer Rubin, good af ternoon.16 A. Good af ternoon.17 Q. Si r , I 'm going to spec i f i ca l ly d i r ec t your - -18 f i r s t of al l , how long have you been a Phi ladelphia19 po l ice off ice r?20 A. 16-and-a ha l f years .21 Q. In those 16-and-a ha lf years have you been22 assigned to the 8 th d i s t r i c t the en t i r e time?23 A. I was ass igned to the 8th d i s t r i c t fo r nine24 years and the previous in the 12th d i s t r i c t .25 Q. On February 11th excuse me, February 13th,

42


43/62

1

23456789

1011

121314151617181920

2011 were you on duty about noon?A. Yes, I was.Q. Is Sergeant Dougherty your sergeant?A. Yes, he i s .Q. And on February 13th, 2011 a t approximatelynoon do you remember where you were?A. At noon I do not remember.Q. Okay. Did your tour of duty take you to the8800 block of Frankford Avenue?A. Yes, it did.Q. Why d id you go there?A. From in format ion received o ff pol ice radio. Ibel ieve the t ime was approximately about 1:20.Around 1:00 . I responded from information receivedo ff pol ice radio by Sergeant Dougherty he came overr ad io . His voice sounded dis t ressed . He had aperson with a gun. I responded. I was going to headto tha t loca t ion . Immediately a t t ha t time an a ss i s t

Q. Let me s top you fo r a second. That f i r s t ca l l21 came out , cor rec t?22 A. That i s cor rec t .23 Q. And when you went when you s t a r t ed to go to24 t h a t loca t ion on Frankford Avenue were you going a t a25 high ra te of speed a t f i r s t ?

43


44/62

1

23456789

1011

1213141516

A. That i s correc t .Q. As you ' re t r ave l l ing there you heard anotherrad io ca l l ?A. Cal l came out fo r a s s i s t of f i ce r .Q. What does tha t mean?A. That means every of f i ce r in tha t area responds.Q. How long d id it take you to get to 8800Frankford Avenue?A.Q.

I guess probably took about th ree minutes .How were you t rave l l ing?

A. Basica l ly when an a s s i s t of f i ce r comes you - - Imean, usua l ly the circumstances - -

MR. VALVO: I objec t to usua l ly .BY MS. FRANCIS:Q.A.

Were you f ly ing there , o f f icer?Yes, I was. Lights and s i rens going very f a s t .

17 I came to the in te r s ec t ion of Holme Avenue and almost18 go t in an acc ident .19 MR. VALVO: Object ion to almost got20 i n to an acc ident .21 THE COURT: Well, you can expla in22 what happened and i f you want to t e s t i f y to t h a t23 what do you mean you almost got in an acc ident .24 MR. VALVO: I have to object to the25 re levance of t h i s tes t imony a lso .

44


45/62

1 THE COURT: 1111 allow it.2 MS. FRANCIS: I am going to make it3 as shor t as poss ib le .4 THE COURT: Thank you.5 THE WITNESS: I almost got t -boned6789

10111213141516171819

by two ca r s .BY MS. FRANCIS:Q. You're f ly ing , cor rec t?A. That i s correc t .Q. A ll r igh t . So it takes you a couple minutes tog e t to 8800 Frankford Avenue?A. That i s cor rec t .Q. When you get there what do you see?A. When I pu l l up on loca t ion I observed mySergeant Dougherty out of his po l ice car . He had h isweapon drawn on the defendant over here .

As I g et out of my vehic le I can hear these rgean t giving orders fo r him to take h is hands outof h is pocket . He informs me tha t the male has a

20 gun. I observed a gun on the male on h is l e f t hip .21 Then I proceeded to give commands fo r him - -22 l e t me see h is hands. I bel ieve I gave it a couple23 t imes. Then I gave commands to ge t on the ground.24 Eventual ly the male d id get down on the ground.25 Q. I am going to play t h i s .

45


46/62

123456789

10111213

THE COURT: All r ight .MS. FRJlliCIS: With the cour t ' s

permission.

(Whereupon an audio tape was played in open court)

BY MS . FRANCIS:Q. Do you recognize tha t voice tha t s ta r t s sayingget on the fucking ground?A. Yes, I do.Q.A.Q.

Who's that?That 's me.Okay. At tha t point when you f i r s t get there

14 how many off icers were there?15 A. I 'm the f i r s t one responding, myself and16 Officer Shellhammer.171819

Q.A.Q.

Can you spel l tha t for the record?S-H-E-L-L-L-H-A-M-E-R.And without playing the res t of th i s audio - -

20 you have heard th is before, correct?2122

A.Q.

That is correc t .And you continued to use the F word and things

23 l i ke that , r ight?2425

A.Q.

That is correc t .Why were you in such a heightened emotional

46


47/62

1 s t a t e a t t ha t point?2 A. Well, knowing tha t th i s i s the ac tua l second3 anniversary of Off icer Pawlawski being ki l l ed the4 same way by not taking h is hands out of h is pocket .5 I get on loca t ion . This male wasn ' t responding to6 d i rec t ions .7 I 'm going to make sure I do with any word8 necessary I want to see th i s male 's hands because I9 don ' t know what he i s capable o f . I don ' t know who

10 he i s .111213141516

Q. Let me jump ahead a little b i t . Was there arecording device of some sor t found a t tha t scene?A. That i s cor rec t .Q.A.Q.

Who found i t ?I found it.Did Mr. Fior ino a t some poin t l a t e r claim it as

17 h is own?18 A. I don ' t bel i eve so. I t was with h is19 belongings . He may have. I don ' t r e ca l l .20 Q. When you found it it was with h is belongings?2122232425

A.Q.

That i s correc t .Did you t ry to turn it off?

MR. VALVO: Object ion. Relevance.THE COURT: What i s the relevance?MS. FRANCIS: I t goes to show the

47


48/62

1 defendant ls s ta te of mind of what he was t ry ing to do2 t ha t day and why he had tha t recorder .3 MR. VALVO: Because they donl t know4 how to work h is tape recorder t ha t shows h is s ta te of5 mind.6789

10

THE COURT: Sustained.BY MS. FRANCIS:Q. Did you personal ly give the recorder back toMr. Fiorino?A. I put it with h is paper work. I th ink the

11 recorder was put on top of one of the pol ice cars .12 Q. Okay. How many pol ice of f i ce r s responded to13 t ha t scene?1415161718192021222324

A.Q.A.

I would say probably ha lf a dozen.A ll in ind iv idual cars o r anybody par tnered up?That i s correc t . A ll ind iv idual cars .

MS. FRANCIS: Okay. Court lsindulgence . No fu r the r quest ions, Your Honor.

THE COURT: Mr. Valvo.

CROSS EXAMINATION

BY MR. VALVO:Q. On t ha t pa r t i cu la r day, s i r , you were able to

25 reach the scene of th i s pa r t i cu l a r event a t 8800

48


49/62

123456789

10111213141516

Frankford Avenue, correc t?A. That i s cor rec t .Q. You d i dn ' t have any acc idents along the way,cor rec t ?A. Thank god, no.Q. No one was in jured along th e way; i s t h a tcor rec t ?A. No.Q.A.

Didn ' t fee l the need to s top and - Let me f in i sh , s i r .

THE COURT: Mr. Valvo, would youal low him to answer the ques t ion.

MR. VALVO: I 'm so r ry . I thought hed id .

THE WITNESS: Can you repea t theques t ion?

17 BY MR. VALVO:18192021222324

25

Q. Sure. YouTHE COURT:

th e way; i s tha t correc t?THE WITNESS:

BY MR. VALVO:

No one was in jured along

No, ma'am.

Q. You d i dn ' t - - you d i dn ' t f ee l the need to i s sueany t r a f f i c c i t a t ions to anyone along the way,cor rec t?

49


50/62

123456789

10111213141516171819202122232425

A. 1 1m not going to stop to i ssue a t r a f f i cc i t a t i on when 11m responding to an a s s i s t .Q. You were not in jured t ha t daYI correct?A.Q.

That i s cor rec t .With respec t to the foul language, we agree

t ha t was an anomaly for you, something t ha t younormally donl t do?A. Every s i tua t ion i s di f fe ren t , s i r .

MR. VALVO: I have nothing fu r the rfo r th i s witness , Your Honor.

THE COURT: Are you f in i shed l MissFrancis with th i s off ice r?

MS. FRANCIS: Yes.THE COURT: Off icer , you may s tep

down. Thank you.MS. FRANCIS: With the admission of

C-1 which was the d.v .d . - - the c .d . with the audioon it the commonwealth r e s t s .

MR. VALVO: The defense r es t s , YourHonor - - oh, with one except ion. May I s ide bar fo rone moment with you. Very br i e f l y .

(Whereupon there was a s ide bar conference o ff therecord)

50


51/62

1 MR. VALVO: There i s a s t ipu la t ion2 by and between counsel t ha t the appl icable weather on3 the date of February 13th, 2011 was not so cold as to4 render it unreasonable not to be wearing a jacke t .567

89

1011

i s t ha treached

t ha t i s

the62

was

MR. FRANCIS:weather tha t day

degrees.MR. VALVO:MS. FRANCIS:

unreasonable - -MR. VALVO:

No. The s t ipu la t iontha t a t some poin t it

That ' s f ine .I'm not s t ipu la t ing

That ' s good enough.12 That the high temperature on the day February 13th,13 2011 was 62 degrees as recorded by the National14 Weather Service.15 With tha t s t ipu la t ion the defense16 would r e s t . We are prepared to argue a t the pleasure17 of the Court.1819


Go ahead.Your Honor, they have

20 sa id t ha t two r igh t s don ' t make a wrong. Today the21 commonwealth t r i e s to s e l l to you t ha t the two r igh t s22 - - pardon me, t ha t two wrongs don ' t make a r igh t .23 The commonwealth may t ry to se l l you t ha t two r igh t s24 make a wrong.25 See, Mr. Fiorino was in the r igh t when

51


52/62

1 he was carrying a f i rearm a t h is s ide with the2 re levant l i cense necessary to do so in the c i ty and3 county of Philadelphia.4 The heightened i ssue t ha t i s created5 was crea ted simply by Off icer Dougherty. I t was6 crea ted I th ink a f t e r test imony by two inc idents ;7 number one, h is heightened s ta te of emotional8 awareness due to the anniversary of the date of a9 fa l l en of f i ce r , and secondly of a complete

10 misunderstanding of the appl icable ru les of law t ha t11 as a sergeant he i s not only supposed to in te rpre t12 and enforce but ins t ruc t and teach others under h is13 command to and he simply messed t ha t up.14 I f he i s aware of the appropr ia te15 di rec t ives and i f he i s aware of the preva i l ing law16 t h i s s i tua t ion never takes place . And the heightened17 s t a t e of emergency i f you wi l l tha t i s cal led in in18 t h i s s o r t of def con one s i tua t ion tha t i s rendered19 would never be reached.20 Mr. Fior ino was also in the r igh t to21 carry a recording device . There are no charges with22 respec t to tha t . The Supreme Court has been clear .23 Not only can you carry one of those in publ ic but24 pol i ce o f f i ce r s and government of f i c i a l s espec ia l ly25 should be aware t ha t t h i s could and can happen

52


53/62

1 because ef fec t ive ly they are in the publ ic eyes a t2 a l l t imes in everything they do. They are subject to3 publ ic review and scrut iny.4 So there was nothing wrong in carrying5 t ha t recorder . I t ' s not unusual for individuals who6 open carry f irearms to carry recording devices when7 they are in publ ic .8 MS. FRANCIS: Objection. That i s9 not in evidence, Your Honor.

10 MR. VALVO: This i s argument.11 MS. FRANCIS: Yeah, but it has to be12 something in evidence.13 THE COURT: Sustained.14 MR. VALVO: That ' s f ine . With15 respect to i t , Your Honor, what you see here i s an16 inc iden t where any dangerous s i tua t ion t ha t was17 created was created by overzealous law enforcement,18 not by Mr. Fiorino in any way act ing inappropr ia te ly .19 Now, Off icer Dougherty s ta tes tha t simply by seeing20 the gun or firearm on the hip of th i s individual he2122

ge t s scared.Imagine how scary it must be to have

23 the f irearm pointed a t you while you're being24 addressed disrespect ful ly , rudely and qui te frankly25 aggressively. And s ta r t ing with jun ior says it a l l .

53


54/62

1 That i s a term of dis respec t . I t ' s about th i s fa r2 from ca l l ing somebody boy.3 And I s a y a n of f i c e r of 23 years4 experience i s aware t ha t tha t ' s a term of dis respec t .5 And what he was t ry ing to do was immediately down the6 defendant, to immediately the minute he saw him7 emotional ly , phys ica l ly down grade him and t e l l him8 he was subordinate, t e l l him he ' s not as good and9 he ' s going to follow commands. In the mean t ime Mr.

10 Fior ino i s scared ha lf to death .11121314

no tes t imony.MS. FRANCIS: Objection. There i sThat i s not in evidence.THE COURT: He can argue i t .MR. VALVO: He has a gun pointed a t

15 him. He i s being given commands t ha t conf l i c t with16 one another . The f i r s t thing he does i s put h is17 hands up in the a i r and Off icer Dougherty said and I18 would say would be the normal and t ra ined react ion of19 a c i t i zen who i s being greeted by law enforcement a t20 the pOint of a gun.21 Then the thing t ha t rea l ly s t a r t s to22 ge t me mad through the course of th i s t r i a l i s - -23 MS. FRANCIS: Objection.24 MR. VALVO: When he said he never25 produced i t .

54


55/62

1

2 i s mad?34 defense found56

MS. FRANCIS:

MR. VALVO:


Who cares i f Mr. Valvo

The one th ing the

Object ion sustained.The one th ing the

7 defense f inds of fens ive regarding the test imony i s8 th e s ta tement tha t Mr. Fior ino never produced h is9 l i c ense . He to ld him 12 t imes in the f i r s t 30

10 seconds of tha t exchange tha t he had a proper l i cense11 to car ry t ha t f i rearm. He was to ld i f he moves he ' s121314151617

going to

And theyproducedwouldn ' t

ge t shot .How was he supposed to produce i t ?

come in here today and say well , he nevert ha t , we had to get it from him. Theyallow him to produce it.

So how was he supposed to reach in to18 h is pocket and produce to you a piece of paper tha t19 you say i f he reaches anywhere he ' s going to shoot20 him and very reasonable under those circumstances to21 be l i eve i f he did anything l i ke tha t he would be22 sho t .23 I submit to the Court , Your Honor,24 the re i s no reck less endangerment here . Mark25 Fior ino d id no t in any way go out of h is way to

55


56/62

1 create a dangerous circumstance.2 Any dangerous circumstance t ha t may3 have been created was created by the overreact ion of4 an emotional off ice r t ha t did not know the prevail ing5 law he was at tempting to enforce.6 I submit you should f ind the defendant78

not gui l ty of a l l charges.THE COURT: Miss Francis . I hope

9 you ' re not to ta l ly aggravated a lso .10 MS. FRANCIS: I 'm frankly not . I t ' s11 not re levant . I t ' s not re levant a t a l l .12 Judge, there was some strong language13 used but l e t ' s s t a r t with Mr. Fiorino being so14 scared. I asked the sergeant t ha t quest ion very15 spec i f ica l ly and in t h i s s i tua t ion with a guy t ha t16 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 to19 quote direc t ive 137. The answer was no.20 Mr. Fiorino was pre t ty calmly able to21 do t ha t . Why Your Honor? That goes to h is - - the22 defendant ' s in ten t in th i s s i tua t ion. The in tent23 absolute ly was to c rea te a hazardous and physical ly24 offens ive posi t ion by any act tha t serves no25 l egi t imate purpose of the ac tor .

56


57/62

1 And 11m not ta lk ing about the simple2 carrying of the gun in an open carry s i tua t ion. The3 s i tua t ion i s he i s going out to inc i te a problem.4 How do we know that? And I learned something here5 too t ha t it i s lega l for someone to record a pol ice6 of f i c e r in the course of h is duty. I didnl t know7 t ha t before t h i s . I t i s legal . Thatls why there i s8 no charges.9 Why i s th i s defendant doing i t? He

10 was dOing it because he was going to open carry11 around the s t r ee t s of Philadelphia which he knows12 t ha t hels l icensed to do. Fine. But he ' s going to13 make sure tha t he creates a s i tua t ion with the14 pol ice , an encounter with the pol ice , and hels going15 to make sure tha t it's on tape because he wants them16 to screw up.17 And you know what, Judge, they didn ' t18 here . You have a very pa t i en t sergeant . You can19 hear it in h is voice . You can here the sens i t ive20 nature of the s i tua t ion and he kept saying i f you21 keep - - the sergeant kept saying i f you keep moving22 I 'm going to shoot you.23 But guess what he didn ' t do, he never24 shot him. This guy won' t stand s t i l l . His hands are25 here . His hands are in h is pockets. His hands are

57


58/62

1 everywhere moving around l ike I am now.2 THE COURT: I didn ' t hear t ha t3 testimony.4 MS. FRANCIS: He said tha t h i s feet5 were moving around.6 THE COURT: Not the way you're7 moving around.8 MS. FRANCIS: Okay. So h is fee t are9 moving around. He won' t comply with the sergeant ' s

10 simple statement to j us t stay s t i l l , I 'm cal l ing fo r11 backup. Wait unt i l my backup gets here.12 The defendant keeps wanting to ta lk13 about th ings and escala te the s i tua t ion where i t14 could have j u s t been, you know, sergeant - - and my15 hands are on my head fo r the record r igh t now.16 Sergeant , I have a l icense to carry. And when he17 s tood there l ike t h i s for the ent i re t ime - - i f he18 stood there l ike th i s fo r the ent i re t ime and had19 complied with the sergeant ' s orders we wouldn' t be in20 t h i s s i tua t ion. His backup would have come. His21 l i cense would have been checked.22 And what eventual ly would have23 happened, i . e . he ge ts h is gun and a l l of his things24 back and you can go home Mr. Fiorino would have25 happened more quickly without th is dangerous

58


59/62

1 s i tua t ion .2 I submit to the Court tha t we know3 t ha t he wasn ' t s tanding still because of his4 because of the order of the sergeant for him to get5 to the knees.6 He wanted to make sure t ha t th i s guy7 wasn ' t going to do anything t ha t could have put the8 se rgean t ' s l i f e and frankly the defendant 's l i f e in9 danger because yes, the sergeant has a gun t ra ined on

10 him because he doesn ' t know what Mr. Fior ino ' s11 purpose i s in carrying th i s gun down the s t r ee t and12 t ha t he won' t comply with h is orders .13 Now it's a problem. And it's a14 problem because the defendant meant it to be a15 problem. While some foul language was being used, I16 submit tha t the sergeant was as pa t i en t as we could17 expect him to be in th i s s i tua t ion . He did18 everything r igh t .19 And the defendant went out there with20 a speci f ic , speci f ic purpose t ha t day was to cause a21 problem, some kind of a problem in an at tempt to22 promote open carrying and he did i t . He succeeded,23 Judge. He found a police off ice r and succeeded in24 t ha t .25 So I would ask you to f ind him gui l ty

59


60/62

1 of the M-3.2 MR. VALVO: 11m going to objec t t ha t3 he found a pol ice of f i ce r . That i s not in evidence.4 MS. FRANCIS: Sure it i s .5 MR. VALVO: The pol ice of f i ce r found6 him.7

89

101112

MS. FRANCIS: Disorder ly conductwhich i s subsect ion A-4, crea tes a hazardous o roffens ive condi t ion tha t any ac t tha t would serve al eg i t ima te purpose of the ac to r .

As to the r . e . a . p . reck less lyendanger ing another person, I th ink t h a t i s

13 appropr ia te here , Your Honor. He i s reck less in h i s1415161718192021222324

n o t complying with an of f i c e r ' s s imple in s t ruc t ions ,j u s t l e t me ge t my backup here and wei l l s t ra igh tent h i s out a t a heightened - - and yes , aggress ivelanguage because the s i tua t ion ca l l ed fo r it a t t ha tpo in t .

THE COURT: You want me to i n f e rt h a t he se t ou t to do t h i s and de l ibe ra te ly cause aproblem regarding the of f ice r s beyond a reasonabledoubt?

MS. FRANCIS: Yes, Your Honor.THE COURT: I 'm sor ry . I c a n ' t do

25 t ha t . l im not convinced beyond a reasonable doubt

60


61/62

1 tha t tha t ' s what he did in walking down Frankford2 Avenue saying I 'm going to f ind a cop and get him a l l3 upse t .4 I do cer ta inly understand how police5 off ice rs reac t and I don ' t think they are react ing in6 an unreasonable manner but they are not in f ront of7 me. I don ' t find them gui l ty or not gui l ty .8 And I 'm not- - I 'm cer ta in ly going to9 recommend to your c l i en t tha t he respond a l i t t l e b i t

10 di f fe ren t ly than he did and perhaps he got in a11 l i t t l e jun ior which j u s t i s one of those things tha t12 when people 's emotions are heightened but I can ' t see13 tha t these act ions made out gui l ty of these two14 crimes beyond a reasonable doubt.15 Whether or not he should have acted16 the way he did or even i f he may, have had something17 in h is mind I c a n ' t in fe r tha t . So I have to f ind18 him not gui l ty .19 MS. FRANCIS: May I ask a question?20 I f the cour t says you can ' t in fe r the in tent , how21 about the reckless standard or the reckless ly22 endangering another person?23 THE COURT: He has to know tha t the24 cops would come running and almost get run over and25 almost k i l l people.

61


62/62

1

23456

standard.MS. FRANCIS: Not under a reckless

THE COURT: No. Not gui l ty .MR. VALVO: Thank you, Your Honor.MR. FIORINO: Thank you, Your Honor.MR. VALVO: That concludes our

7 business before th i s honorable Court. We appreciate8 the courtesy of the Court and the commonwealth. May9 we be excused, Your Honor? Thank you.

1011

1213141516171819202122

62

Documents

Criminal Trial Transcript