Charges dropped against 2 ex-cops accused of beating graffiti vandal

A Common Pleas judge - like another judge before him - dismissed all charges yesterday against two former Philadelphia police officers accused of punching and kicking a graffiti vandal in Feltonville two years ago.

After an 80-minute hearing involving two new witnesses, plenty of objections by high-profile defense attorneys, and impassioned arguments, Judge Frank Palumbo ended the case by announcing: "Discharged."

The two ex-cops, Sheldon Fitzgerald and Howard Hill III, both 30, then left the courtroom and were congratulated by their former colleagues. The two declined comment.

Fortunato "Fred" Perri Jr., who represented the men with his partner Brian McMonagle, said: "We're thrilled."

Perri said Hill and Fitzgerald had been fired from the force and are seeking to get their jobs back.

The preliminary hearing against the two on aggravated assault and related charges was first heard in November before Municipal Court Senior Judge Francis P. Cosgrove, who had similarly dismissed all charges.

The District Attorney's Office then refiled the charges against Hill and Fitzgerald, who were accused of beating graffiti vandal David Vernitsky and fracturing his jaw about 12:30 a.m. Aug. 26, 2007, near 4th Street and Wyoming Avenue, after they observed him spray-painting a wall of a business.

Yesterday in court, Assistant District Attorney Meriah Russell presented two additional witnesses, including a medical examiner.

Vernitsky, 37, who testified at the first preliminary hearing, was not asked to come to court yesterday. Instead, parts of his previous testimony were read into the record.

Gary Collins, a Philadelphia assistant medical examiner, testified as a prosecution witness yesterday, but ended up being more helpful to the defense.

Under direct examination by Russell, Collins, who had reviewed Vernitsky's medical records, testified that Vernitsky's injuries were consistent with his having been repeatedly hit and kicked in the face.

Under cross-examination by McMonagle, Collins agreed that some of Vernitsky's injuries could have been caused by falling on a sidewalk or having been tackled.

But Collins testified it would be "difficult" to conclude that Vernitsky received his rear jaw fracture and an injury on the top of his head all from the same fall.

Perri, under cross-examination, suggested this scenario: That Vernitsky, after illegally spray-painting the wall and running from the cops, was "thrown up to the [police] car," thereby suffering his jaw fracture, "then thrown to the ground," suffering his other injuries.

"That is possible," Collins replied.

The judge, who was yesterday given photos of Vernitsky, said: "What's troubling me is, 'What type of blunt force would fracture a jaw, but not break the skin?' " Vernitsky's "skin looks pristine" in the photos, the judge noted.

Collins testified "it's entirely possible" Vernitsky could have suffered a jaw fracture without any "obvious surface scrapes." But, "I can't tell you what caused it," whether it be a fist or from being slammed against a car.

Russell, in an impassioned argument, said the city can't give police "a special preliminary hearing when no other citizen in Philadelphia gets that right."

At this level of the case, Vernitsky should be taken at his word, she said.

She also noted that the two officers never actually arrested Vernitsky and had not documented what they did.

The judge said he saw the facts like this: That after the officers observed Vernitsky spray-painting and chased him, they "slammed [him] against the car. That's how he broke his jaw."

"If a crime flows out of that, you tell me how," he told the prosecutor shortly before dismissing the charges. *