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COMMONWEALTH PENNSYLVANIA v. DANIEL OLAH AND JOEL UTTERBACH (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DANIEL OLAH AND JOEL UTTERBACH, APPELLEES (TWO CASES)



Nos. 185 & 186 April Term, 1976, Appeals from the Order of Court dated September 23, 1975, in the Court of Common Pleas of Allegheny County, Criminal Division, Pennsylvania, at Nos. CC7503242A and CC7503239A, sustaining the Appellees' demurrers.

COUNSEL

Robert L. Eberhardt, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.

John J. Dean, John R. Cook, and John H. Corbett, Jr., Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision in this case.

Author: Per Curiam

[ 254 Pa. Super. Page 282]

The Commonwealth has appealed in two cases from the granting of demurrers to all counts following the close of the Commonwealth's case.

Appellees Utterbach and Olah were indicted for aggravated assault on Police Officers and for resisting arrest.

The Commonwealth concedes that the demurrer was proper on the indictment charging Utterbach with aggravated assault on Officer Lemanski. It also concedes it was proper on the charge against Olah for aggravated assault on Officer Kowach. The question presented therefore, is whether there is sufficient evidence to sustain the charges of; (1) aggravated assault against Utterbach for injuries to Officer Kowach; (2) aggravated assault against Olah for injuries to Lemanski; and (3) resisting arrest against both appellees.

The facts of the incident are as follows:

"On April 15, 1975, Detectives Raymond Kowach and Anthony Lemanski of the Pittsburgh Police were driving an unmarked police car on Penn Avenue, Downtown, at 3:30 a. m. They noticed a car in front of them pull over to the curb, with two men hurriedly leaving the car and running down an alley (TT20)*fn1 The police noticed the windshield had been smashed (TT 21). Upon entering the alley, Kowach met appellee Olah. Kowach identified himself as a police officer by showing his badge and identification card. Kowach asked if Olah owned the car parked on Penn Avenue and Olah answered he did not (TT 22). Appellee Utterbach approached and asked, "'Who in the hell are you?'" After Kowach showed Utterbach his badge, Utterbach told Kowach "to shove that badge up your ass" and then punched the officer in the right eye (TT 23, 43). Kowach and Utterbach started rolling on the ground when Officer Lemanski attempted to help his

[ 254 Pa. Super. Page 283]

    partner until Olah pushed Lemanski. Lemanski subdued Olah, placed him under arrest and went to help his partner (TT 45). Olah again jumped Lemanski, kicking him in the shins (TT 45). Lemanski subdued Olah and this time he handcuffed Olah (TT 45). By this time, Utterbach told Kowach that he had had enough. Kowach told Utterbach he was under arrest and let go of him (TT 24). When Kowach let go, Utterbach sucker-punched Kowach again in the face (TT 24, 25). Utterbach was then finally subdued.

Officer Kowach required short hospitalization for X-rays. He subsequently missed thirteen (13) days of work (TT 25). Officer Lemanski ...


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