Commonwealth v. E.M.

E.M. was seen by police standing over the complainant holding a 2×4 above his head ready to strike down on the injured man.  Police quickly approached and directed E.M. to drop the weapon.  He complied and ran but was arrested minutes later and charged with aggravated assault a felony of the first degree and related offences.  The officer testified that he responded to a radio call of a man with a weapon and upon turning onto the street saw E.M. with a board over his head, holding it in a manner indicative to swinging downward. He further testified that the complainant had a head wound and had to be transported to the hospital. In cross examining the police officer Mr. Montoya highlighted that the officer only saw half the incident.  Part of his questioning was geared to establishing a time frame on how long the officer saw E.M. holding the board over his head while he stood over the complainant.  Mr. Montoya was able to secure the officer to agree that he saw E.M. holding the board above his head for at least twenty seconds and never swing it. Based on a defense witness it was established that a mutual fight had occurred and E. M. had picked up the board in self defense.  During closing arguments Mr. Montoya was able to convince the court that E.M had not been the aggressor and was found not guilty of all charges.