BY JIM TUTTLE; Staff writer

A Franklin County state police corporal accused of beating and pepper spraying a handcuffed man has asked the court to dismiss the case against him, and a judge is scheduled to consider it later this month.

Christian D. Fow, 43, Shippensburg , was charged in October with simple assault and official oppression in the alleged assault of Christopher Broadwater on Sept. 29, 2010. Magisterial District Judge Wendy Mellott upheld the assault charge and threw out the oppression charge at a preliminary hearing Nov. 7.

A preliminary hearing is intended to determine whether there is enough evidence, or probable cause, for criminal charges to proceed further into the court system.

Fow’s lawyers, Geoffrey McInroy and Eric Weisbrod, filed a motion in December, asking the county’s Court of Common Pleas for a hearing to consider dismissing the assault charge as well. Judge Carol Van Horn is presiding over the matter and has scheduled the hearing for Feb. 22.

“We expect the hearing to be as long as Judge Van Horn needs in order to render a fair and impartial decision on the probable cause determination,”Weisbrod said.

The defense motion argues that during the preliminary hearing, the prosecution failed to present evidence enough to establish probable cause. The prosecutor, Senior Deputy Attorney General Anthony Forray, disagrees in his answer to the motion, filed Jan. 11. Fow allegedly assaulted Broadwater after he was restrained in the back of a patrol car at his Fannett Township home. According to charging documents, police were sent there after receiving calls from a nurse care manager from Humana Insurance and Franklin County Crisis Intervention.

The callers reported that Broadwater “felt the local garage had overcharged him for car repair work and he indicated he felt like assaulting the owner with a baseball bat and then burning down the business.”

Weisbrod expects the same evidence presented during the preliminary hearing to be presented again before Van Horn.The hearing in Mellott’s courtroom reportedly lasted about five hours and included testimony from five witnesses and video captured by the police car’s Mobile Video Recording (MVR) unit.

The defense motion points out that Broadwater did not testify during the preliminary hearing. Weisbrod said it is “absolutely not” normal “in a magnitude like this” to have the alleged victim absent during a preliminary hearing. The prosecution’s answer states that Broadwater “has mental health issues” and was not called to testify.

“The evidence in this case speaks for itself. The defendant assaulted a handcuffed prisoner, causing him substantial pain and injury to his face/head,” Forray wrote. “The victim can be seen bleeding from his head and is screaming in pain on the MVR.”

The defense contends that Fow was acting in his official capacity as a police officer.

In an earlier interview, McInroy told Public Opinion that Fow believes the charges were possibly initiated in retaliation for his activities as union president for the Chambersburg station.

In his answer to the defense motion, Forray agreed only that Fow was an on-duty officer of Pennsylvania State Police at the time of the incident, but not that the assault was justifiable as part of his duty.

“The defendant’s employment as a law enforcement officer does not excuse him from criminal conduct,” the answer states. “No one is above the law.”

—— Jim Tuttle can be reached at jtuttle@ publicopinionnews.com or at 262- 4754.