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COMMONWEALTH PENNSYLVANIA v. FRANK STUMPO (11/19/82)

filed: November 19, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
FRANK STUMPO



Nos. 2455 October Term, 1979, 417 Philadelphia, 1981, 509 Philadelphia, 1981, Appeal from the Orders of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 78-06-499, 502, 503, 504, 505, 506, 507

COUNSEL

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Nicholas J. Nastasi, Philadelphia, for appellee.

Brosky, Popovich and Montgomery, JJ. Popovich, J., concurs in result.

Author: Brosky

[ 306 Pa. Super. Page 451]

On January 1, 1978, while on duty as a Philadelphia policeman, appellee, Frank Stumpo, was involved in a series of incidents. As a result of these events, he was charged with eight criminal counts and brought to trial. During Stumpo's trial, the judge granted a demurrer to four of these charges. After the demurrers, the trial by jury continued, resulting in guilty verdicts on three counts. A post-verdict en banc court granted a motion in arrest of judgment on those three counts and discharged the defendant. The basis for this decision was their finding a Pa.R.Crim.P. 1100 violation. The Commonwealth has brought this appeal. We reverse two of the four demurrers*fn1 and remand for retrial on those reversed demurrers. The motion in arrest of judgment is also reversed and we remand for sentencing on the three convictions.

On January 1, 1978, Officer Stumpo, an on-duty, armed and uniformed Philadelphia police officer, became involved in a series of verbal and physical altercations with several people at the Sheraton Airport Motor Inn in Philadelphia. There was testimony at the trial to the following events.

Shortly after 2:00 a.m. on January 1, 1978, Ernest Funaro, a member of the band playing at the Sheraton that night, saw two uniformed Philadelphia police officers near the service bar. They were later identified as the defendant-appellee,

[ 306 Pa. Super. Page 452]

Officer Stumpo, and his partner, Officer Dennis Mongello. Funaro testified that he saw Stumpo duck under the service bar opening and go into the bar area. After Mongello spoke to him, Stumpo came back out.

Shortly thereafter, Cynthia DeSpain, a cocktail waitress, attempted to leave the service bar and Stumpo blocked her way with his body. After asking him twice to move, she nudged him and he got out of her way. DeSpain cleared some tables and when she was back in the bar, Stumpo yanked on her brassiere strap several times, pulling her towards him. He also pulled down the top of her leotard off her shoulder. When DeSpain returned to the bar a second time, this time with glasses on a tray, Stumpo blocked her access again. DeSpain called for a security guard and Stumpo grabbed her arm and said, "All right bitch." DeSpain broke away and stayed behind the cashier's desk until Stumpo went elsewhere.

Stumpo then demanded a drink which the bartender initially refused because it was past the legal serving time. The manager was sent for and gave permission to serve Stumpo, who demanded and received a full glass of gin. He quickly downed that drink and then another. The evidence reveals that he then went from table to table mixing the dregs from used glasses and drinking the resulting alcoholic concoction.

The next series of episodes occurred in the hotel parking lot. The band members were loading their equipment on a van when Stumpo and his partner drove up in a patrol car and asked if they had any "booze." Stumpo then went into the van and began opening boxes and tossing them around. At one point he snatched a toaster oven box from Marilyn Johnson, a band member, tore it open and shoved it back at her, knocking her backwards. Crying, Johnson ran inside to get a security guard. Funaro also went to call the police at this point.

Stumpo was continuing to ransack the van when Leonard Benyak, a friend of a band member, asked him not to throw the boxes. Stumpo's response was, "Who the fuck are you?"

[ 306 Pa. Super. Page 453]

After demanding, and receiving, Benyak's identification, Stumpo announced, for no apparent reason, that he was going to arrest Benyak. As Benyak moved toward the police car, Stumpo grabbed him and shoved him stomach first onto the car hood.

Funaro returned from calling the police and Stumpo's attention was drawn to him. Again, Stumpo asked for identification and wanted to know who the leader was. Funaro characterized Stumpo's behavior as "very aggressive, very belligerent." Stumpo dropped the contents of Funaro's wallet and drunkenly staggered around.

Another band member, Stephen DeMarco, then came out to the parking lot. Again Stumpo asked, "Who the fuck are you?" Then, without any provocation, Stumpo slammed DeMarco against the van, grabbed his hair and pulled him down. DeMarco was hit two or three times on the head with a "very hard" "metallic" object which, due to his position, he could not see. Benyak, who was still on the scene, testified that Stumpo pulled out his revolver, aimed it, point-blank, at DeMarco's head and said, "I've got him." When Officer Mongello pulled Stumpo off DeMarco, the revolver was still in Stumpo's hand.

The police were then called again by another band member and Stumpo was overheard saying on the police radio that he did not need any assistance. He asked for, and received, DeMarco's identification which was dropped on the ground and scattered by the wind.

The third location of this bizarre chain of events was the hotel lobby. The band members had retreated to this lighted area and both police officers had followed them. One of the female members of the band was crying when two hotel managers happened to see this congregation of people. As it was after 3 a.m., they went to investigate. When one of the managers, Etkins, asked what was going on, Stumpo grabbed him by the jacket and shook him. The other manager, Flynn, spoke with Officer Mongello, and they agreed to get Stumpo outside. They approached Stumpo, one on each side, and took hold of his arms to pull him off

[ 306 Pa. Super. Page 454]

Etkins. Stumpo then turned on Flynn and throttled him with both hands around Flynn's neck. There was testimony that Flynn's breath was cut off and that he was lifted off the ground by the hold on his neck. Officer Mongello and a security guard separated Flynn and Stumpo. Shortly thereafter, a police lieutenant arrived and took Stumpo away.

Demurrers

Bill of information No. 505 charging defendant with an act of official oppression against Cynthia DeSpain.

The trial judge granted a demurrer to this charge on the grounds that Stumpo's acts relating to this charge were not performed under color of authority. The Commonwealth counters that Stumpo was "an on-duty, uniformed member of the Philadelphia Police Department" and that therefore his acts were performed in an official capacity. We reverse this demurrer and remand for trial.

In relevant part the crime of official oppression is defined as:

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he:

(1) subjects another to . . . mistreatment . . .

18 Pa.C.S.A. ยง 5301.

Cynthia DeSpain's testimony about this incident is concise and provides a more vivid understanding of the events than a summary of them would. It is therefore quoted below in relevant part:

I was starting to go under the service bar to go out and clean my tables and he was standing on the other side . . . And I asked him to move and he didn't. I asked him to move again, and he didn't. So I nudged him in the knee. And then he stood aside. Then I went out to clean my glasses, clean my tables. I brought my glasses back on a tray, and he pulled the back of my bra. I went out a second time, came back, and he blocked my way one (sic) again at the service bar entrance. And I asked him to

[ 306 Pa. Super. Page 455]

    move, and he wouldn't. I called for security, and he grabbed me by the arm and he said, "All right, bitch." And that was -- that was all that happened there.

Q. When the defendant grabbed you by the arm and said, "All right, bitch," what, if anything, did you have in your arm or hands?

A. I had a tray of glasses.

Q. What, if anything, happened to the tray ...


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