WEST CHESTER — The Chester County district attorney, using unusually harsh language, has called for a Chester County Common Pleas Court judge to reconsider his decision to vacate an aggravated assault conviction for a Phoenixville man found guilty of beating his former girlfriend and facing a “three strikes” prison sentence.
“This decision is a terrible injustice,” said District Attorney Tom Hogan in a statement sent to the Daily Local News, sister paper of The Phoenix Reporter & Item, last weekend. Noting that the defendant, Michael G. Ferko, had been found guilty of the assault charge by a jury after a trial in Senior Judge Ronald Nagle’s courtroom, Hogan said the verdict should stand. “A judge is not free to ignore the jury’s decision and impose his own personal view of the case.”
Hogan said if Nagle, who granted the defense motion to overturn the verdict on the aggravated assault charge on Friday, did not reconsider his decision, the D.A.’s office would “pursue an appeal and seek to have his decision reversed.”
Even though Hogan did not identify Nagle by name in his statement, he nevertheless contended that the judge in the Ferko case was “ignoring his Constitutional duties in throwing out the verdict.”
His comments were echoed by the Phoenixville police chief and the head of the Domestic Violence Center of Chester County.
“In vacating the aggravated assault conviction, the court is ignoring the work done by every other part of the justice system and simply imposing the court’s own view,” Chief William J. Mossman said in a statement Monday. “I seem to remember being taught that one of the reasons that we fought the Revolutionary War was to prevent the arbitrary verdicts of autocratic judges.
“Under American law, the view of one judge does not trump the unanimous verdict of the 12 honest citizens who made up this jury,” Mossman added.
“One injury, one death is too many,” said Dolly Wideman-Scott, chief executive officer of the domestic violence center. “Every community should be outraged as I am when there is violence against women and our laws fail to hold the perpetrator accountable for his crime.”
Ferko remains in Chester County Prison and is awaiting sentencing on the two charges that remain from his conviction on Dec. 4 — simple assault and terroristic threats. He faces a possible maximum sentence on both charges of 3½ to seven years in state prison.
Nagle, when asked Monday whether he wished to respond to Hogan’s statement about his ruling, declined comment.
Hogan’s position did draw attention from First Assistant Public Defender Nathan Schenker, who characterized the motion by Ferko’s attorney, Assistant Public Defender Susanna DeWese, as proper, and Nagle’s decision as being entirely within his authority as a trial judge.
“Ms. DeWese’s motion was appropriate under the (state) Rules of Criminal Procedure,” Schenker said in an interview in his office at the county Justice Center Monday. “While we have a great deal of respect for jurors and the jury system, there is an obvious reason that the Legislature and courts created the ability for a judge to exercise this type of discretion.”
Ferko, 52, of Bridge Street, was arrested by Phoenixville police after the victim, Jennifer McCray Selfinger, told police she and Ferko had gotten into an argument in the early morning hours of Jan. 21. He grabbed her at some point and punched her several times in the face and chest, and told her was going to kill her, according to court documents.
A doctor at Phoenixville Hospital testified during Ferko’s trial that Selfinger suffered a fractured rib, a punctured eardrum, and a broken tooth. The confrontation came at the end of a night of drinking and both the victim and Ferko were intoxicated at the time, according to testimony.
In her defense of Ferko, DeWese conceded to the jury that her client had attacked Selfinger and deserved to be found guilty of simple assault. But she said his actions, coupled with Selfinger’s injuries, did not rise to the level of a felony aggravated assault, which involves a serious injury.
The jury of 11 women and one man acquitted Ferko of the count of aggravated assault by causing serious bodily injury, but found him guilty of aggravated assault by attempting to cause serious bodily injury, as well as the related charges.
After the jury departed, DeWese made a motion for judgment of acquittal on the aggravated assault charge, saying that the evidence Deputy District Attorney Thomas Ost-Prisco presented at the trial did not merit a guilty verdict on that count.
A conviction on aggravated assault, as opposed to misdemeanor simple assault, came with serious implications for Ferko. Because he has two prior convictions for violent felonies – both attacks on women – he faced the possibility of a mandatory 25-to-50 year sentence in state prison, a sentence that Ost-Prisco informed Nagle his office would seek to impose at sentencing.
On Friday, in a brief court hearing on DeWese’s motion, Ost-Prisco reiterated his office’s position that the prosecution would ask for the mandatory “three strikes” penalty. Nagle then granted the motion for judgment of acquittal, saying he had “serious reservations about the sufficiency of the evidence to sustain that charge.”
The decision removes the “three strikes” sentencing provision from Ferko’s case.
Neither Ost-Prisco nor DeWese commented on the decision on Friday. On Saturday, Hogan issued his statement to the Daily Local.
The matter is an unusual one for the Common Pleas Court in Chester County. First, it is rare for a trial judge to grant a defendant’s request to overturn a jury’s verdict based on a claim of insufficient evidence, although there are cases in which a verdict is overturned on appeal.
Second, it is rarer still in the county’s court system for a prosecutor to aim as sharp and direct an attack on a judge as Hogan’s statement represents – especially someone with as respected a reputation in county legal circles as Nagle, an eight-year veteran of the bench and former president of the Chester County Bar Association.
In the statement, Hogan pointed to two brutal homicide cases involving victims of domestic abuse, Kimberly Hvizda of East Brandywine, whose estranged husband stabbed her to death in a Wawa parking lot, and Jamica Woods, whose boyfriend used a shotgun to kill her at their home in East Fallowfield.
“This is not the Dark Ages. It would be a sad day in Chester County if a judge ignored the evils of domestic violence and his own Constitutional duties,” Hogan said.
“The legislative branch set the punishment for a third-strike violent felony. The executive branch, through the District Attorney’s Office, prosecuted and convicted the defendant. The judicial branch, through the judge, now has the duty of imposing the law, not making up his own version of the law,” Hogan stated.
“The judge should reconsider his decision,” he concluded.
No date has been set for Ferko’s sentencing.
Information from the Daily Local News, www.dailylocal.com