District Attorney David Lozier has sent a letter directly to the chambers of a Beaver County judge, asking that he keep from public view a Beaver Police dash cam video that shows Officer Jeffrey Wijnen-riems’ arrest of James Edward Cicco in August of last year.

Common Pleas Judge Dale Fouse dismissed the remaining felony charges filed by Officer Wijnen-riems against James Cicco following a hearing last month that saw the man’s defense attorney play the dash cam video frame-by-frame in open court. Judge Fouse determined there was no evidence to substantiate charges filed by Offier Wijnen-riems that Cicco had resisted arrest or taunted his police K-9 Czar during the incident. Cicco was hospitalized for three days as a result of bite wounds sustained during the encounter.

The Beaver Countian had sought a copy of the dash cam video for publication following a March 28th hearing for pretrial motions in the case; while Clerk of Courts Judy Enslen at first said she would provide a copy of the exhibit that had been filed with her office, she ultimately failed to make arrangements and never returned a phone call to provide an explanation as to why she was withholding the record.

A court docket for the case was subsequently updated to show that the video exhibit was being stored in a safe inside of the Clerk of Courts Office rather than in the case file itself.

A Right-to-Know request was then filed by the Beaver Countian on April 5th seeking any emails, faxes, or correspondence between the District Attorney’s Office and the Clerk of Courts, that produced a letter written on March 29th by District Attorney David Lozier to Judge Dale Fouse. Lozier’s letter shows it had been copied to Clerk of Courts Judy Enslen and James Cicco’s defense attorney.

District Attorney Lozier’s letter to Judge Fouse asked him to not release the dash cam video to the public, reasoning the exhibit may be the subject of a motion to suppress and could unduly influence a potential jury. Lozier informed Judge Fouse that he had denied a Right-to-Know request previously submitted by the Beaver Countian for the video.

“My office refused that request pursuant to the ongoing criminal investigation exception,” wrote Lozier. “I reasoned that the raw video created or collected during a criminal investigation should be withheld from public release due to the possibility that some or all of the video could later be suppressed by the court.”

The video has since been played as an exhibit in open court by both the prosecution and defense during hearings on criminal charges that had been filed against Cicco.

“That open records request is ongoing,” continued District Attorney Lozier in his letter. “The open records request is the proper forum for such a request and such a release.”

Although the Beaver Countian has purposefully chosen to follow directives by the District Attorney’s Office during the open records request process, the office’s actions and assertions over the course of several months remain in apparent contradiction to the Pennsylvania Right-to-Know Law (see: Editorial: Our Efforts To Show You The Beaver Police Dash Cam Video That Officials Really Don’t Want You To See).

The Beaver Countian’s efforts to obtain the video from the District Attorney’s Office through open records procedures is separate and distinct from its efforts to obtain the exhibit from the court system itself. Despite District Attorney Lozier’s assertions to Judge Fouse, the Pennsylvania Right-to-Know act is not applicable to the judiciary and does not govern court documents. The Pennsylvania Supreme Court has separately held that the public has a presumptive right to most court records including exhibits shown in open court regardless of their potential admissibility.

District Attorney Lozier argued in his letter that the dash cam video itself was not a part of the official record in the case against James Cicco.

“At the hearing, defense counsel, Gerry Benyo, presented the videos in support of his arguments to dismiss [criminal charges],” wrote Lozier. “At no time, however, were the videos entered into evidence by Attorney Benyo.”

Judge Fouse reviewed the video in chambers and referred to it in detail in his written opinion dismissing charges in the case. It is unclear how Judge Fouse could have lawfully considered the video in that manner when making his decision if it had not been officially provided to the court. It is generally unlawful for a judge to conduct his own investigations into matters pending before the court or to consider items not otherwise officially provided to him — it is similarly unlawful for the court to be given such evidence in an informal manner that would effectively create a de facto secret court system.

According to a pretrial motion filed by the District Attorney’s Office in the case, the video was first physically provided to the judge by their own office, “the Commonwealth will provide the video from Officer Wijnen-Riems vehicle to the Honorable Dale M. Fouse to expedite the suppression/habeas hearing.”

A pretrial motion filed by Cicco’s defense attorney noted that the dash cam videos were being, “incorporated by reference herein in their entirety as provided through Discovery from the Commonwealth without editing,” making the videos an inseparable part of the original court filing and as such appearing to make them part of the official record as well.

It is unclear what office or person currently maintains custody and control of the copy of the video provided to Judge Fouse by the District Attorney’s Office.

Following a hearing on those motions, District Attorney Lozier’s letter to Judge Fouse accused James Cicco’s attorney of being engaged in a conspiracy to make public records public, although Lozier provided no evidence for his claims of misconduct by defense attorney Gerald Benyo.

“Following the hearing defense Counsel Benyo ‘filed’ some digital format of the videos for the purpose of making a ‘public record’ available for dissemination to the media and to the community at large,” wrote Lozier. “I object to the Defense Counsel’s filing and his apparent intention to release these videos through this procedure.”

Defense attorney Gerald Benyo told the Beaver Countian he filed the video before — not after — the hearing for the purpose of preserving the official record should he need to pursue an appeal on behalf of his client. Attorney Benyo declined to provide comment about Lozier’s letter for this article.

District Attorney Lozier concluded his letter to Judge Fouse by insisting the video should not be released.

“Until the Clerk’s Solicitor [attorney Stephen Colafella] and this Court has an opportunity to fully and fairly evaluate this matter the videos should not be released by the Clerk of Courts,” he wrote.

The private correspondence from District Attorney David Lozier to Judge Dale Fouse, Clerk of Courts Judy Enslen, and James Cicco’s defense attorney, was not an official court motion asking that the video exhibit be sealed, was not a properly filed formal objection, does not appear on a court docket for the case, and is not otherwise part of the official record, leaving no practical way for the general public or a higher court to know about the existence of the extrajudicial communication.

The Beaver Countian is currently in consultation with attorneys on how best to proceed in dealing with the entire situation on behalf of the public.

District Attorney David Lozier’s prosecution of James Cicco has been wrought with apparent legal irregularities, which included prosecutors permitting a Solicitor for Beaver Borough and the Beaver Borough Police Department to argue that the defendant should be made to file a Right-to-Know request for potentially exculpatory evidence in his case which the police department should be allowed to deny.

District Attorney David Lozier’s letter to Judge Dale Fouse can be read in full here.

Screenshots from a dash cam video showing James Edward Cicco being bitten while handcuffed / photo via official court motions in the case
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John Paul
John Paul is the founder of the Beaver Countian. He reports full-time for the site, specializing in investigative journalism with an emphasis on public corruption.

49 COMMENTS

  1. If there is any conspiracy going on, it sure the hell isn’t Benyo. That whole courthouse is a fucking conspiracy. Lozier is digging his own hole. Maybe Benyo can include the county in the law suit. In the end, Lozier and Wijnen-riems can help carry the money to Benyo’s bank.

     
  2. I think it is everyone’s Right to Know when a rogue cop is on the loose. Trust me if that guy tries to stop me I’m going to the nearest public place I can find. Ill be damned if your gonna sick a K-9 on me for a mere traffic stop Damn… WTF …. This isn’t this cops first time he has been overly aggressive in an incident that did not require excessive force. Why aren’t they showing the public the danger this cop is???? I don’t get it.. Expose the guy. The public is in danger Lozier… If it were you I’ll bet you would want the public to know… Hell you would probably have it broadcast on every media station… Step away on this one Lozier. Do the right thing…Keep our community safe…

     
  3. if he does then he will show he gives no regard to the right to know act! and will show who he really is! sorry there should be no reason to go along with this unless they are trying to hide something!

     
  4. WAIT WHAT.???

    He writes a letter to the judge. The whole fucking should be dismissed.

    I don’t care if your democratic or republican, this DISTRICT ATTORNEY HAS NO FILTER OF PLAYING POLITICS.

    NO EXPERIENCE IN PROSECUTION

    THIS CASE HAS BEEN TAINTED BY HIS ACTIONS AND SHOULD BE TOSSED.

    ALSO DAVID LOSIER SHOULD BE TURNED IN TO THE ETHICS, AOPC AND JUDICIAL CONDUCT BOARD FOR THIS AND OTHER OFFICIAL OPPRESSION ANTICS.

    LAW ENFORCEMENT HAS ZERO LIKE FOR THIS CLOWN

     
  5. Judge Fouse , please don’t dig in the same hole that D.A Lozier is digging for himself ,
    “Words of Wisdom ” from my grandfather.
    When you find you’re digging a hole for yourself , an you look around an cant find a way out,
    it’s time to stop digging.
    We found honesty ,morals, decency, in your prior dismissal of the lies of the Patrolman Wijnen-riems, please don’t tarnish that .
    Police K-9’s are trained to react to drug’s in a vehicle ,sitting, barking, ext. if there are no drugs, the handler can an often does give the dog a command to alert falsely , the dog does what its trained to do, alerts, giving probable cause, the patrolman snoops threw the vehicle , finds nothing, an the patrolman only needs to claim, at one point there were drugs in the vehicle , just not now.
    This K-9 was trained to attack, this is the dogs reward, any opportunity the handler can give the dog to do what its trained for, the handler will, (remember the recording with the 911 dispatcher ) .
    Police LIE , Judge Fouse you saw this in the video ,dismissed charges because of it, please don’t become entangled in this web of lies .

     
  6. “District Attorney Lozier’s letter to Judge Fouse accused James Cicco’s attorney of being engaged in a conspiracy to make public records public”
    Is this some kind of Trumpian new speak, like “alternative facts”? Will defense attorneys soon have to “conspire” to have the truth accepted as the truth?
    I once told a fib to my Grandma, and she knew it. Her response was “Just remember, it’ll all come out in the wash.” The wash isn’t far away for these extrajudicial flouters of the law.

     
  7. I love watching JP chipping away at all the bullshit, chip chip, chip chip, story story, story story.
    You’re a very methodical and patient man JP keep up the excellent work!

     
  8. The treacherous acts of this officer concerning traffic stops and these run ins made to look as law and order, are nothing more elegant than repeated assault and battery on the citizens. Something has to be done to stop this guy before he kills someone.

     
  9. Stonewall is stepping on his dick again! he wouldn’t know the law if that dog bit HIM in his lazy ass. Who does he represent, the scum policeman or the good taxpaying public? I agree that he should also be sanctioned by legal authorities to his meddling and impeding of law enforcement and justice. He is now ass deep in the political corruption running rampant in this county. As we have seen from Syria, Iraq and Libya just to name a few, when the people no longer trust law enforcement or the legal system then anarchy will reign. Then we will take the law into our own hands and justice will be meted out according to the law not selective prosecution, judge tampering, etc. I find it mind numbing that this type of behavior is tolerated by most citizens and taxpayers of this county. Queen tells everyone to f-ck off, Stonewall protects and runs interference for he. The Midget is just biding his time for a shot at commissioner. He will never win another term even if it’s for dogcatcher except in that shithole known as Aliquippa. There this type of behavior is condoned and encouraged. Business as usual eh Dwan. Did you get a real job yet or still being a moocher?

     
  10. From the Beaver County Web Page. Court of Common Pleas-Judge Dale M. Fouse

    “In 1990 Judge Fouse became a partner in the firm of McMillen, Urick, Tocci, Fouse and Jones during which time he served as Beaver County Solicitor from 1990-1999. In 2000, Judge Fouse was elected Beaver County District Attorney serving until 2006 when he retired from County employment.
    Judge Fouse continued as a partner in his private law firm from 2007 until 2016 upon his election as Judge of the Court of Common Pleas of Beaver County.

    Does this mean anything? I don’t know. Only time will tell……….

     
    • from every thing I read on here judge Fouse has been doing right he just needs to send this Lozier guy a letter back telling him to fuck off

       
      • That is what I am hoping for to happen! This will be the test to “test” Judge Fouse by-so to speak. Only time will tell…………

         
  11. Attorney Gerald Benyo. The one hope that Beaver County has for turning corruption around. Start his District Attorney election campaign NOW.

    Goodbye, Stonewall.
    Goodbye, Connie.
    Goodbye, Tony.
    Goodbye, Frank.
    Goodbye, Psycho Cop.
    Goodbye, Czar.
    Goodbye, Mad Dog.
    Goodbye, John Joe.
    Goodbye, Renee.
    Goodbye, Myron.
    Goodbye Danny.

    No kidding. They and a host of others could not last if strong DA did his job and justice prevailed.

    Put a stack of Benyo bumper stickers in the Courthouse entrance. Order lawn signs and billboards.

    It is not too soon.

     
  12. Mr. Lozier,

    I read your letter to Judge Fouse and read the two cases cited by John Paul in recent articles, Commonwealth v Upshur and Pennsylvania State Police v Grove.

    His cases are both on point. The video is very clearly a public record and must be released.

    Stop embarrassing your office do as the law requires.

     
  13. “Stop embarrassing your office do as the law requires.”

    I think you should have that engraved above the Courthouse clock. Clearly, this man has no intention of doing so, even if he knew criminal law, which he does not. Google is his best friend. And like many others in that place, that rule does not float their boats. What you say there is exactly why things are so screwed up. The “law” is a convenience to use as they see fit, not something to follow. It has been so long since anyone has followed you wise advice that I am not convinced there is any historical precedent to go by. No, according to them, the law is for suckers, and they are born every minute. Do as I say, not as I do.

    How else could Psycho Cop get away with attacking people? For 12 years? On the news recently, two cops were fired within 24 hours for arm punching and stomping on a guy’s face at a traffic stop. Not even close to being eaten by a dog. The chief said that it was wrong and criminal behavior.

    Maybe we should offer him a job?

     
    • Your Jeopardy answer for the day:

      Alex: “These three people were responsible for getting rid of corruption in Beaver County in the 2020’s.”

      Public’s Question: “Who were Gerald Benyo, Tom Leydig and Wayne Kress?”

      Alex: Yesssss!

       
      • Benyo’s wife is gonna get out of prison some day and you’ll see a other side of him come out to that aint pretty

         
      • Benyo will be a great District Attorney. He will be everything that Lozier isn’t. He would have had that courthouse cleaned up by now and I don’t think Benyo cares if those shady, seedy back door tricksters like him or not.

         
  14. When I look at Mr. Lozier’s behavior on this and sit it beside his behavior with the improper withdrawals from county accounts by Ms. Javens, I just question motivation. Why are these things being handled this way?

    Neither of these situations are going to look good to the voting public and he has to know that. With this mind, I have to wonder what he has to gain by doing things that look quite suspect and can’t possibly be used for any sort of re-election nor run for different political office. Therefore, I have to conclude that Mr. Lozier is gaining something out of this behavior and it is not the chance for re-election for this office or any office. Whatever he is gaining has to be substantial.

    I just can’t believe this behavior is out of monumental ignorance. He is getting something, I just wonder what.

     
    • The fan club of Christiana groupies is hoping that they sold their souls for a payoff someday. I wonder when the reality is going to set in that Christiana over-reached for the next rung of the ladder and has virtually zero chance of unseating Casey for US Senate. It will be interesting to see who continues to be loyal and who tries to be the first to patch things up with Camp and Egley. My money is on Lozier being the first to extend the olive branch. Maybe some actual movement on the Javen’s investigation? That might be hoping for too much.

       
  15. I’m sorry the district attorney is unavailable to read your comments at this time he is currently vacationing in europe using your $175,000 in tax dollars you pay him every year to keep shit away from you he doesn’t want you to see.

     
  16. Lozier can’t save himself now. That ship has long sailed. Gerald Benyo is our next District Attorney just as certain that Rose Kennedy owns a black dress.

     
  17. It’s Amateur Hour once again in Beaver County. I’m no fan of one term Lozier however I agree with him in this matter. The video is a key piece of evidence therefore the public should not have access to it until AFTER the case is closed. It’s not going anywhere and it WILL be released.

     
    • Lozier doesn’t get to violate public record laws because you or he thinks it’s the right thing to do.

      My opinion is the only thing that video is a key piece of evidence of is a District Attorney who prosecuted someone for things he shouldn’t of and a cop who shouldn’t have a badge.

       
  18. Wait… I just read that Goodwald is running for magistrate in Beaver Falls. Didn’t he get told to leave the DA’s office? He’s just itching to hold an office of some type.

     
  19. For the third day, I see the article that exposes the people — this time the DA — covering for a cop that is an historical danger and liability to the public and who should have been fired ten years ago. And a news source has to FORCE them to reveal what is going on.

    But I have to ask WHY is this cop so deserving of protection from Beaver Town Council, his Chief, fellow cops, the State Police, and now the DIstrict Attorney himself?

    What the hell is going on?

    O.K., I’ll ask it. The BIG QUESTION. WHAT does this cop have on you people that makes him so untouchable?

    Who, by this time, would not ask that question?

    And the guy is STILL out walking the streets. Why?

    Answer the BIQ QUESTION for me, because it is the one that is now being begged by even the most naive members of the public.

    Tell us. What does he have on you?

     
    • Let me guess… It’s not only personal, is it? Like not paying for some tennis lessons from W-R? No, this cop has been so successful shaking down people in the drug trade and making drug arrests — meriting a commendation for more than 30 at last count — that the intelligence gained into drug operations and taking perps off the streets is worth roughing up a few members of the public on the side. Right? Goon squads have a value, don’t they, if they get results? That’s right, get those pieces of shit off the streets, even if you have to sacrifice the law and public to do it? Who gave you that mandate? Madgar? Lozier? The drug task force? The State Cops? The Feds? Well someone likely did, and we have just turned the corner into martial law.

       
      • I couldn’t have put it in words any better Raven , its as though these people – Madgar–Lozier , are watching to much T V Crime Show ‘s , imaging the streets of Beaver are liken to the streets of NY , Chicago, Detroit, just to name a few, thus giving Patrol personal like Wijnen-riemsand full reign to run rampant, an they wounder why they have earned the hate an distrust of the public .
        On a side not, to any reader of this Article whom believe some Police and Elected Officials are NOT corrupt , please read the Articles on P-I-N-A-C News , a publication that exposes corrupt Police an Officials , the Independent Journalist also do a lot of Freedom of Information requests , FOIA , its rather entertaining to watch on You-tube .

         

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