Eric Otto, 25, of Whitpain Township, heads to arraignment at Montgomery County Court of Common Pleas in October facing a felony theft and two summary offenses of accidents involving damage to property and careless driving - but no longer has to face a DUI charge or a resisting arrest charge.
District Judge Harold Borek in Lansdale dimissed the two charges after the Commonwealth, represented by Lansdale Police Officer Christine Cohen, failed to show sufficient prima facia evidence to hold the charges over for county court.
Otto is accused of stealing a $11,000 U.S. Treasury check from the bedroom of a Lansdale woman, crashing his car into a tree in front of St. Stanislaus Elementary, and fleeing from police.
Two women who were with Otto on the night of May 20, 2012 testified against him in court at his preliminary hearing Tuesday.
Otto was represented by defense attorney Louis Busico.
Laura Grebe, of Oakland Avenue, testified that she and her roommate Melissa Nichol were hanging out with Otto on her balcony. She said Nichol had asked if she could invite Otto over at around 10:30 p.m., whom she had not seen in a couple years.
Grebe said she had a $11,270 Treasury check in its envelope in a pile of mail on a vanity in her bedroom.
Grebe said she did not give permission for Otto to remove the check from her room.
In a cross examination by Busico, Grebe said the three of them moved from the balcony to her bedroom, so she and Nichol could get ready to go out. She said Otto came in and sat with them.
She testified that Otto was drinking vodka and "made an alcoholic drink or two." Cohen showed Grebe a photo of vodka, which Grebe identified as being half-full and taken from her kitchen.
Cohen later testified at the hearing that a vodka bottle was found in Otto's car, but Borek sustained an objection by Busico because there was no connection made between the vodka in the house and the bottle in the car.
She said the trio left the house around 11:50 p.m. She said Otto had caused an altercation outside her home because she and Nichol were leaving to go meet friends at a bar.
"I told her to get in the car. It wasn't worth it. We got into our car, and Eric said he needed to go back in the residence because he forgot his glasses," Grebe said. "Melissa took him back into the house."
Grebe told Busico Otto had nothing in his hands.
She said the two came out of the house and Otto got into his vehicle. They waited for him to leave and then they left.
"He left my street south on Oakland Avenue and we went north and turned onto Wissahickon Avenue," Grebe said. "We turned right on Church Road. He wasn't behind me."
Grebe said that as she turned left on Main Street, she heard "a huge pop" and Nichol told her to turn around.
She said she saw Otto's car smashed into St. Stanislaus Elementary and Otto was hanging out the driver's side window.
"He was hanging out upside down out the driver's side window," Grebe said. "I got on the phone and called 9-1-1. He almost caused an accident with two small kids in a van. The mom freaked out and was calling 9-1-1."
Grebe said Otto discovered Grebe was calling 9-1-1 and Otto jumped in her car and tried to grab the phone out of her hands.
"The police showed up and he started running in front of St. Stans. He came back to his car and started to get into an altercation with the officer in front of my car," Grebe said. "Officer Cohen got to the scene and took care of it."
Nichol, who was sequestered during Grebe's testimony, took the stand and said she had known Otto since 1999. She said the three of them were drinking and chasing shots with soda. Nichol also identiifed the vodka bottle as Grebe's and said it was located in her kitchen.
Nichol said the three of them left at 12:15 a.m. Otto told her he left his glasses inside, she said.
"(Otto) said he left his glasses inside. Eric went upstairs and I waited at the top of the stairway. It was fast," Nichol said.
She said Otto got into his car and backed down Oakland Avenue and left toward Big Lots.
"We went to leave. We went down Church and went left on Main. I heard a loud popping sound. It was very loud," Nichol said. "I asked Laura to turn around. We pulled up, and Eric was hanging out the driver's side of the car."
"I got out, I ran out and I hugged him. He said, 'Please don't call the police.' He went up to (Grebe's) car and he tried to take the phone from her."
Officer Dan Gallagher took the stand. He said he was the first one to arrive on-scene for a report of a one-car collision ino a tree at St. Stanislaus Elementary, with a driver wearing a fluorescent shirt who ran away.
"I found a subject with a very bright shirt running eastbound through the lot of St. Stans. I pulled into the lot and turned on my emergency lights. I announced I was police and commanded him to stop," Gallagher said. "He turned and ran westbound. I started chasing after him yelling 'Police! Stop! You're under arrest.'"
Gallagher said he pushed Otto to the ground and got on top of him.
"He refused to give me his hands. He said, 'Fuck you faggot. I ain't doing shit for no cop.' He was holding his hands on his elbows, preventing me from handcuffing him," Gallagher said. "He was resisting for less than two minutes. It was a 70 to 80-foot pursuit."
Gallagher said in a cross examination to Busico that he was able to get Otto's hand out and cuff him. Gallagher said he did not have to use a Taser or spray to subdue Otto.
"I overcame him with force," he said.
Cohen was the last to testify at the hearing. She said she didn't see Gallagher when she arrived at the scene, and approached Grebe's vehicle to ascertain what was going on. Cohen said she then heard Otto saying, "Get the fuck off me!" She went ot the front of the car and saw Gallagher struggling with Otto.
She said Otto's car contained registration and insurance with his name and a vodka bottle.
Busico objected to Cohen's statement of finding the bottle, asking for foundation that the bottle came from Grebe's house.
Cohen said Otto refused to comply with a blood test. She said Lansdale Police Sgt. Bubnis searched Otto and found the Treasury check in his front pocket, which was made out to Grebe.
Cohen, in a cross examination, said she did not witness the recovery of items from Otto, but Borek accepted the hearsay of Bubnis, who was absent from the hearing.
Busico said there was no testimony as to Otto being incapable of safe driving. Busico said a pursuit of 80 feet and Gallagher pushing Otto to the ground without the need of a Taser or spray.
"That's not proactive enough constitute resisting arrest," Busico said. "You need a little more."
Borek said there was "no evidence of a blood alcohol level."
Cohen said Otto was "clearly not capable of driving safely."
"He crashed into a tree," Cohen said.
"That happens 10 times a night," said Borek.
"And most are drunk," said Cohen.
Borek said there was no evidence to establish prima facia for the hearing.
Cohen said she can't give Borek an answer as to why there wasn't enough evidence.
"I was seen drinking, and in a short time, he had a serious accident," Cohen said.
Borek said it wasn't the fault of the Commonwealth.
"I'm just trying to do my job," he said.
Otto faces a county arraignment on October 10 at 9:30 a.m.