Middleman Faults Zappala For Handling Of Gas Station Assault, But Others Say DA Made The Right Call

Oct 3, 2019

A fight at a North Side gas station has become an issue in the race for Allegheny County District Attorney. Independent challenger Lisa Middleman is critical of incumbent Democrat Stephen Zappala for not bringing more serious charges against three male defendants.

The fight happened two weeks ago after two women demanded a refund for spilled gas. Bystander video shows the men, who worked at the gas station, struck the women multiple times and dragged one across the pavement.

One of the men slammed a woman head-first into a gas pump.

Middleman, an Allegheny County public defender, said that warranted a charge of aggravated assault, a felony, instead of the misdemeanor simple assault charge Zappala brought.

The perpetrator “disregarded a very large risk that serious bodily injury would ensue after his actions,” Middleman said. “A head is certainly a vital organ.”

While protesters urged Zappala to prosecute the men for aggravated assault, he told reporters that the crime requires a weapon or serious bodily injury. He said no weapon was involved in the altercation, and that the women said they were not seriously hurt.

Middleman countered, however, that state law allows aggravated assault to be charged in a range of circumstances. She noted that, to prove aggravated assault under Pennsylvania statute, it is enough to show a defendant intended to cause serious bodily injury: It is not necessary to demonstrate such harm actually occurred.

She also cited Pennsylvania Supreme Court decisions that say courts could consider factors such as the difference in size or strength between the victim and the defendant, and statements made before, during or after the attack.

“What he stated on the record – that you need a weapon, you need bodily injury, you need someone that gets hurt – is an incorrect statement of the law,” Middleman said. “And that’s very troubling that the district attorney of Allegheny County is making statements about the law that are not in fact true.”

The district attorney’s office did not respond to a request for comment, but some legal observers said his charges were appropriate.

‘The ultimate test is not to overcharge’

Duquesne University law professor John Rago said, while Middleman is correct about what the law says, it's hard to prove in court what was in someone’s mind.

“The ultimate test for a prosecutor,” Rago said, “is not to overcharge a case but to charge precisely so that the jury can work with facts that they can reach a reasonable conclusion upon.”

Rago said Zappala was right to stick with simple assault charges, given existing evidence and law.

“Anytime you see anybody being beaten, it’s repulsive to see, and it’s violent,” Rago said. “And it kind of flies in the face of human logic: ‘Well geez, that’s not a simple event. That’s a horrifying event.’”

But he said, prosecutors’ “hands are tied” because “the level of serious bodily injury required by [the] aggravated assault [statute], that’s a much different standard to meet.”

Pennsylvania defines serious bodily injury as creating “a substantial risk of death or [causing] serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

To prove simple assault, by contrast, prosecutors must show a defendant “intentionally, knowingly or recklessly causes” or attempts to cause “bodily injury” – which the state defines simply as “impairment of physical condition or substantial pain.”

Rago noted that aggravated assault carries much more severe consequences than simple assault: People convicted of the felony could face up to 10 years in prison. Simple assault, a second-degree misdemeanor, is punishable with up to two years behind bars.

‘It always fails’

Phil DiLucente, a criminal defense attorney in Pittsburgh, regularly represents people accused of assault. He said simple assault is the typical charge in cases involving altercations like the gas station fight.

“If Mr. Zappala was concerned about reelection or if he wanted to go with what the public view might be, he could have easily charged aggravated assault,” DiLucente said. But “when a DA charges an aggravated assault and there’s not a serious bodily injury and/or death, it always – and I mean always – fails.”

 But Middleman said, “With all that we know now about head trauma and head injuries, I think that [it’s] self-evident that a blow … to the head could cause serious disfigurement or lifetime impairment.”

If evidence of such harm does emerge, Rago said, Zappala could amend the charges to include aggravated assault.

A public defender since 1987, Middleman said, “Of course, because I’ve been a defense attorney for so long, I immediately think of all the potential defenses in every case.”

“But,” she continued, when a victim poses no threat, “I don’t see [a defense] for trying to inflict head trauma on a young woman.”

 

Defendants Scott Hill, Sukhjinder Sadhra, and Balkar Singh are scheduled for preliminary hearings Nov. 5 before Allegheny County Common Pleas President Judge Kim Clark.