Former Code Enforcement Officer must pay fines and court costs
By Joan Schwer, Correspondent
POTTSVILLE- The continuation of the March 22 summary trial of the ‘Commonwealth vs Fasnacht’ was held April 15 with Magisterial District Judge James K. Reiley presiding.
Although the Commonwealth had rested its case March 22, the defense was broken off due to the required attendance of the Commonwealth’s attorney at a trial in the County Courthouse.
Attorney Shane Hobbs began to question Gerald Fasnacht, starting where he was entering the building, as a way of reviewing the end of the March 22 proceedings. Fasnacht testified he entered the Clay Street building and was assaulted by Cheryl Wiscount, who he said he did not know, and then by her husband, Michael. She ran into my right side, said Fasnacht and I asked her why.
According to Fasnacht, Cheryl answered that a real gentleman would have stepped aside and let her through. Mike, he added, pushed him into the door and injured his arm, then gave him a shove. He (Mike) said something like don’t talk to my wife like that. Fasnacht said, he answered telling Mike, “Don’t start something.” Mike, he said, fell out the door.
Fasnacht continued stating that at the police station, Police Chief Michael Conway asked Mike if he (Jerry) had pushed him. According to Fasnacht, Mike said no, he had fallen. Jerry noted he thought he had tripped.
Fasnacht described the building’s entrance. At the top of the steps leading up to the building is a landing; then a step up to another landing about three feet across. When Mike fell, he was on the second landing, said Fasnacht. Conway, he said, came out (of the meeting room) and started hand-cuffing him. I asked why, said Fasnacht, since he said he was the victim. He noted also that Mike had gotten himself backup, and had informed Conway that he was not going to put cuffs on him. Fasnacht also testified that Cheryl had stabbed him with keys or something. “From the video, the whole thing took 20 seconds,” said Fasnacht.
At this point, Wiscount’s attorney, Robert Lipkin objected to what he considered was a repeat of testimony already heard and Judge Reiley agreed.
Lipkin then questioned whether Fasnacht knew the only witness to the incident, to which he answered ‘no’. He then asked if Fasnacht would agree that the video doesn’t show what happened between Fasnacht and the Wiscounts.
This time Hobbs objected, noting that had also been previously covered.
Fasnacht, however, answered that the video doesn’t show what happened inside, just outside.
Lipkin then asked what Fasnacht had said about Mike’s leg. Fasnacht answered that he had told Conway he had not hit Mike (causing him to fall to the ground), but that Mike said his leg had given out.
Chief Conway was re-called to the stand and testified that he had not asked Fasnacht whether he had hit Mike, nor did he witness anyone hitting anyone.
Following a short period to prepare statements, Hobbs presented his argument summarizing what he described as a volatile/hostile incident on Dec 8.
He noted that there has been a history of ill will between Fasnacht and the Wiscounts, with the Wiscounts calling in the police at one time. Chief Conway, he said, was not assigned to investigate the incident since he is Mike’s nephew, and there are also issues between Fasnacht and Conway. Conway, he noted said he would drop the charges if the Wiscounts agreed. “If a crime (had been committed), that (if the Wiscounts agreed) shouldn’t have mattered.”
According to Hobbs, some of Cheryl’s statements were contradicted by Mike. Cheryl, he said, agreed she called Fasnacht an —hole, and agreed she didn’t like Fasnacht. There’s no evidence, said Hobbs, that Fasnacht initiated the squabble. Both Wiscounts could have just as easily been charged. They didn’t try to remove themselves.
Hobbs continued noting that a video was available and the Commonwealth did not disclose that evidence. The defense had to present it. In addition, Officer Borchick was not questioned by the Commonwealth. The Commonwealth had to prove Fasnacht created some public annoyance and that it was proved without a reasonable doubt. It’s a tough call, said Hobbs, to say who initiated any harassment, and people are not convicted when there is a reasonable doubt. “It’s a civil matter,” said Hobbs. “They (the Wiscounts) can hire an attorney on their own dime.”
Lipkin noted he would not try to summarize. The video tape was not provided by the Commonwealth, he said, since it did not show the encounter. It showed Wiscount coming out the door, but it doesn’t show who did what and the witness didn’t see anything.
Hobbs, he said, noted a history between them. Fasnacht said he knew them, then again, he didn’t know them. Fasnacht said he didn’t shove Mike. His leg gave out. Conway said he didn’t ask if Fasnacht shoved Mike.
The decision could be based on who the Judge believes. The witness said Fasnacht was the initiator of the incident.
Judge Reiley stated he prides himself with being as fair as he can be, but the law requires him to follow a procedure. This, he said, is the people’s court, and this incident is what the law refers to as a minor situation. The rules of a summary procedure is the judge will give a decision.
According to Judge Reiley, it was his understanding that the Commonwealth knew about the tape, but it was the defense that had to present it. The video, he said, showed what happened immediately after, but there was no audio. “There’s a lot of people related to a lot of people, and I do feel that situation comes into play,” said Judge Reiley. The Chief was at the meeting and was the first law to respond. Conway took statements, then he turned it over to the District Attorney, which was good, since, “The appearance of an impropriety is worst than the impropriety itself.” He added that he heard the testimony and can make assertions about the Chief, the Wiscounts, and Fasnacht, while the only witness, he said, has nothing to lose and gave a different version of the event.
With that said, Judge Reiley found Fasnacht guility of one count of harassment against Michael Wiscount and one against Cheryl Wiscount, and set a fine of $100 for each count, plus court costs of $261.46. He found Fasnacht not guilty of one count of disorderly conduct.
Judge Reiley informed Fasnacht that he has the right of appeal if he felt his decision was wrong, and had 30 days to do so. A trial would be set in the Court of Common Pleas.
After the meeting Judge Reiley noted that a six month jail term could have been set, as well as $300 for each count of harassment. He didn’t, however, feel either was warranted.