HOLLIDAYSBURG - The judge who presided over the aggravated assault trial of a former Altoona police officer said in an opinion Monday the Blair County jury that found the him guilty last January was "fair and impartial," and he denied the defense claim that an out-of-county jury should have heard the case.
Judge Timothy M. Sullivan said he found no basis to the argument by defense attorneys that Duane "D.J." Eichenlaub did not get a fair trial.
Sullivan, in an opinion sent to the Pennsylvania Superior Court, said, "there was no basis to grant the defendant's motion to change venue/venire and this issue lacks merit."
The judge also rejected the defense argument the jury made a mistake when it found Eichenlaub guilty of aggravated assault, a crime that is an intentional act to do harm to another person.
In yet another issue, Sullivan said he did not err in his decision during Eichenlaub's trial to permit the jury to see a picture of the battered face of the victim, 60-year-old Earl P. Eshelman of East Freedom.
The judge was asked by the Superior Court to write the opinion addressing issues raised by Eichenlaub's Harrisburg defense attorneys, Timothy M. Barrouk and Theodore C. Tanski.
Sullivan's opinion now clears the way for the state Superior Court to review the issues and confirm or overturn the jury's verdict finding Eichenlaub guilty of the aggravated assault as well as other charges.
The aggravated assault charge resulted in an 11- to 23-month sentence for Eichenlaub in the Blair County Prison, which he began serving on June 14.
Eichenlaub and Eric Kriner were both city police officers on Memorial Day 2010 when they went to a lounge in Altoona after the wedding of a colleague.
Eichenlaub's wife was upset when a man walked by her and inappropriately touched her. This led Eichenlaub and Kriner to follow the alleged assailant, Herman "Bo" Lardieri, into the men's room. The two officers began to beat Lardieri when Eshelman, who was already in the men's room said he tried to break up the fight. Eichenlaub turned and attacked Eshelman, seriously injuring him.
The officers then attempted to get their fellow police officer investigating the incident to cover up.
Kriner entered pleas and was placed on probation. He was charged with the simple assault of Lardieri but not the more serious incident involving Eshelman.
Since Eichenlaub's sentencing, the judge has rejected attempts to grant him a new trial, has denied requests he receive bail pending appeal and found no merit in requests by the prosecution that Eichenlaub's sentence was too light and well below Pennsylvania's sentencing guidelines.
In his opinion Monday, the judge focused on defendant complaints about a local jury and on his decision to allow the jury to see a photograph of Eshelman's face and hands, depicting injuries.
The judge said the fact that a photograph may be "inflammatory or gruesome is in itself not sufficient to exclude it, but if such photograph is admitted, trial judge should warn the jury not to allow its shocking nature inflame their emotions or affect or influence their verdict."
He said the jurors were entitled to see what Eshelman looked like after the assault. He emphasized the one photo the jury saw of Eshelman was taken in the hospital after the victim had been "cleaned up," meaning the picture did not show blood.
Sullivan gave the jury a cautionary instruction stating, "It is very, very important that you do not allow the photo in any way to inflame your emotions or influence your verdict.
Mirror Staff Writer Phil Ray is at 946-7468.