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WILKES-BARRE — Where were his hands?
That question was heavily contested during Friday’s preliminary hearing for Brian Jay Fischer, 57, a teacher at Leo E. Solomon-Plains Memorial Elementary School in Plains Township accused of choking a 12-year-old boy in February.
District Judge Thomas Malloy forwarded a strangulation charge against Fischer to Luzerne County Court while dismissing a summary harassment count against the teacher.
Assistant District Attorney Brittany Quinn introduced a surveillance video of the alleged incident between Fischer and the boy, including still pictures taken from the video, which took place in the school’s cafeteria Feb. 9.
Quinn told Malloy that Fischer’s hands were on the boy’s throat, impeding the youth’s ability to breathe, an argument she made to support the strangulation charge.
Fischer’s attorney, Frank Nocito, argued otherwise, saying the video does not clearly show Fischer’s hands around the boy’s throat — and that still images from the video illustrate Fischer’s hands were on the back of the boy’s neck.
“I don’t see his hands on the boy’s throat,” Nocito said while describing the video and pictures. “If his hands are not on the throat, you can’t impede the boy’s breathing.”
Malloy noted the state’s recently enacted strangulation law makes it a criminal offense to apply pressure to the throat or neck of a victim.
Fischer, who is head teacher at the school, initially was suspended with pay after the alleged incident. When Wilkes-Barre School Police filed charges against Fisher on Feb. 26, his suspension became unpaid. He earned about $86,000 per year.
School Police Officer Barry Jacob was the lone witness called by Quinn to testify.
Jacob testified he entered the cafeteria shortly after 1 p.m. Feb. 9 and noticed an argument involving Fischer and the boy. Jacob said he took the boy to his office.
There, the boy claimed he was suspended earlier in the day for swearing in gym class. Since the boy was suspended, the boy was prevented from attending a school dance that night, and went to Fischer asking for the return of $30 he paid for the event.
“(The boy) said Mr. Fischer had pushed him and in his words, ‘Choked the (expletive) out of him,’” Jacob testified.
Jacob said the boy was interviewed at the Luzerne County Children’s Advocacy Center, where the boy also claimed Fischer choked him.
Nocito noted the boy was cursing and stepped toward Fischer when asking for his $30 to be returned.
“My client felt threatened and he was justified to use force. There was no evidence of injury to the young man,” Nocito said.
Quinn insisted video shows Fischer’s hands on the boy’s throat. She said the boy was holding a binder while standing in front of Fischer. When Fischer lunged at the boy, the binder fell to the floor.
“(The boy) was standing with the binder, his hands are by his side. At no time did (the boy) raise his arms,” Quinn said.
Fischer remains free on his own recognizance.