By BARBARA LAKER & WENDY RUDERMAN
Philadelphia Daily News

IT WAS just after midnight. Brian Westberry and a woman friend sat frozen in his bedroom, hoping the persistent pounding on the front door of his Northeast Philly home would stop. It didn't.

Westberry, 24, slipped his licensed .38-caliber revolver into his pants pocket and crept downstairs to open the door.

There stood Gregory Cujdik, 32, who demanded to see "Jen," his girlfriend. Westberry told him "Jen" didn't want to see him, and repeatedly ordered Cujdik to leave. When Cujdik refused, Westberry threatened to call police.

" 'Do it. My family are cops,' " Cujdik said, according to Westberry.

What Westberry didn't know at that early-morning hour of Palm Sunday, April 5, was that Cujdik's father, Louis, is a retired police veteran and that his two brothers, Jeffrey and Richard, are narcotics officers.

Before Westberry could finish dialing 9-1-1 on his cell phone, Cujdik stepped through the doorway and punched him in the throat, Westberry said.

That's when Westberry pulled out his gun and Cujdik fled, Westberry told the Daily News.

Westberry never fired the gun. In fact, Westberry suffered the only injury when Cujdik staggered him with a punch. But rather than arrest Cujdik, a convicted drug dealer, authorities slapped Westberry with a slew of criminal charges, including felony aggravated assault, possession of an instrument of crime, terroristic threats, simple assault and recklessly endangering another person.

From there, Westberry's life got worse. Westberry believes Cudjik is behind a Nov. 14 arson of his house. Detectives didn't question Cujdik until after a Daily News reporter asked a police captain about the case earlier this month.

Cujdik did not return messages from the Daily News left on his cell phone.

Westberry and his family allege that police considered Cujdik untouchable and gave him preferential treatment because of his family ties to law enforcement.

"From the get-go, they chose to arrest me, not him, only because they knew his family," Westberry said. "I believe the justice system is fair - unless you know somebody."

Seasoned legal experts who reviewed the case say that Westberry's arrest raises serious questions about the integrity of both the Police Department and the District Attorney's Office, which approved the criminal charges against Westberry.

Six months after the incident, on Oct. 6, prosecutors withdrew the charges, but by then Westberry had spent thousands of dollars in legal fees. His record has yet to be expunged.

The Westberry case comes at a time when some police officers are under fire for allegedly abusing their authority in personal matters. The case also seems to bolster recent criticism that the district attorney's charging unit merely "rubber stamps" criminal charges recommended by police.

After Jack McMahon, a defense attorney and former prosecutor, read the police paperwork for Westberry's arrest, he said that the wrong person had been charged.

"The defendant didn't break the law. The complainant did," said McMahon, who did not represent Westberry. "Legally, there's absolutely no basis for Cujdik not to be charged."

Westberry was well within his legal right to use his gun to protect himself in his own home, McMahon said.

"There's no evidence of aggravated assault even under the remotest of criminal theories," he said.

The detective who arrested Westberry, Patricia Eberhart, has close ties to Cujdik's family. Her husband, Richard Eberhart, was Jeffrey Cujdik's partner in the Narcotics Field Unit before retiring in 2006. Together, Richard Eberhart and Jeffrey Cujdik own J&R Dunk Tank Rentals LLC, in Bensalem.

In Patricia Eberhart's defense, Capt. Jack McGinnis, of Northeast Detectives, said that she didn't think Westberry should've been charged but that he disagreed. It was only then that Eberhart submitted a probable-cause affidavit for Westberry's arrest to the D.A.'s office for approval.

McGinnis characterized Eberhart, who was promoted to detective in August 2008, as a "straight shooter" and a fair-minded detective.

But Eberhart should have recused herself from the case, given her strong connection with the Cujdik family, said McGinnis.

McGinnis said that he didn't know of the Cujdik family until after the Daily News launched its "Tainted Justice" series earlier this year. The series detailed allegations that Jeffrey and Richard Cujdik and other narcotics officers disabled surveillance cameras at corner grocery stores that sold little ziplock bags, which police consider drug paraphernalia.

After the officers cut or yanked camera wires, thousands of dollars in cash and merchandise went missing, the merchants allege. The FBI is investigating the allegations.

The problem with Eberhart's handling of Gregory Cujdik's complaint "is the appearance" of bias, even when none exists, McGinnis said.

From now on, he said, Eberhart "is not allowed to be involved in any case involving the Cujdiks. We never allow our detectives to get involved in a case where it could be a conflict of interest.

"It's not right for her to handle a case involving any member of the [Cujdik] family."



Westberry gets cuffed


After Cujdik punched Westberry, Westberry completed his call to police. An officer came to his house, took a report and left.

Later that Sunday morning, at about 11 a.m., three or four officers showed up at Westberry's door. Westberry said that he thought the officers would take his statement and arrest Cujdik for assaulting him.

Instead, the officers handcuffed Westberry and led him outside. He saw Gregory Cujdik standing near a police cruiser.

"I heard one of the cops say, 'I don't know him [Gregory Cujdik] but I know his father,' " Westberry said.

Westberry soon learned that Cujdik had just called police - nearly 11 hours after the incident - and told them that Westberry had pointed a gun at him while inside Westberry's house.

Police confiscated the .38 snub-nose revolver.

"I actually still had the gun in my pocket because . . . I don't know if [Cujdik's] coming back," Westberry said.

Officers took Westberry to the 15th Police District, in the Northeast, where he was held in a cell for about three hours.

Detective "Eberhart comes up and says, 'He's free to go. He did nothing wrong, but we want a statement,' " Westberry recalled.

Eberhart had called the District Attorney's Office and discussed the case with a member of the charging unit who advised her to release Westberry, according to police paperwork.

"The defendant doesn't have any felony convictions which would make him ineligible to possess a firearm," Eberhart wrote.

Westberry asked if he needed a lawyer and Eberhart said no. "She told me, 'This guy [Cujdik] has more to worry about than you,' " he said.

Cujdik has a history with the criminal-justice system. In August 2006, he pleaded guilty to felony drug charges in connection with selling an ounce of marijuana for $400 to a police informant in Bucks County. He was sentenced to two years' probation, court records show.

Westberry gave a statement to Eberhart and walked the 4.3 miles from 15th District headquarters, at Harbison Avenue and Levick Street, to his house on Annapolis Street near Woodenbridge Road.

The next day, April 6, Westberry went with his aunt Kitty Ragan to file a private criminal complaint against Cujdik at the D.A.'s office.

"They wouldn't do anything because we didn't have his [Cujdik's] address," Westberry said.

"I couldn't believe no one would help us," Ragan said. "No one cared. It was sad. It was ridiculous.

"I still don't understand how [Cujdik] could go into his house, hit him and nothing happened to him," Ragan said.

Westberry, who works in shipping and receiving at a Center City hotel, put the incident behind him. He figured it was over.



Gun trouble


Eight days later, on April 13, Westberry was surprised to see Eberhart and two special agents with the state Attorney General's Gun Violence Task Force at his front door.

They asked to see his guns.

An avid gun collector, Westberry had 40 guns, all legal, all registered and all locked up.

"I'm thinking they just want to verify the serial numbers, verify that everything I own is legit," Westberry said.

But they confiscated his guns and said that they had a warrant for his arrest.

"I was shocked," Westberry said. "I asked them how they could do this. It makes no sense. I just couldn't understand."

What Westberry didn't know was that Capt. McGinnis had asked that the case be reopened because he considered it a domestic dispute involving a gun, a high priority in his eyes.

Cujdik "admits he punches [Westberry]," McGinnis said. "He punches him because he sees his hand by his side and he sees a silver gun in his hand.

"He punches him and runs out the door. To be truthful, that would not be unreasonable," McGinnis said.

(Westberry contends that he pulled the gun out of his pocket only after Cujdik punched him.)

"I have zero tolerance for domestics with guns," McGinnis said. "When someone points a gun at you, it's aggravated assault. People kill people all the time in their own home."

But the National Rifle Association contends that McGinnis doesn't understand Pennsylvania gun laws.

"That's ridiculous," said Paul Raynolds, a NRA-certified training counselor and firearms instructor. "The captain is way out of line.

"The homeowner appears to have acted quite appropriately when confronted by an agitated and potentially violent assailant in his own home late at night," Raynolds said.

"He also showed proper restraint by not firing on his assailant or chasing him as he fled the house," he said.

Raynolds said that McGinnis has a duty to apply the law, not interpret it.

Under Pennsylvania's "Castle Doctrine," people can use a gun for protection in their homes, but can't use deadly force unless their lives are in danger.

Whether the D.A.'s charging unit acted appropriately is subject to debate.

"The charging unit now is almost a rubber stamp [for the cops]," defense attorney McMahon said. "They put young assistant district attorneys in there and they approve anything, everything. We'll see charges that should have never gone through. . . . This is the best example of this."

Newly elected district attorney Seth Williams has said that he wants to bolster the charging unit with seasoned prosecutors who can weed out weak cases, which clog up the courts, waste taxpayer money and don't result in convictions.

Assistant District Attorney John J. Morgan, who approved the Westberry charges, has worked for the D.A.'s office since June 2000 and is a high-ranking member of the charging unit.

"[Morgan] charged the case based on the facts contained in the affidavit," D.A. spokeswoman Cathie Abookire said.

Morgan doesn't personally know anyone involved in the case, including Westberry, Cujdik or Eberhart, Abookire said.

In fact, Cujdik isn't named in the affidavit. Eberhart simply refers to Cujdik as the "complainant," Abookire pointed out.

At a preliminary hearing, Cujdik testified that Westberry had ordered him to leave at least three times and had threatened to call police.

Westberry pointed the gun at Cujdik after he punched Westberry, Cujdik testified.

Municipal Court Judge Teresa Carr Deni dismissed the aggravated-assault charge against Westberry, but held him for trial on all other charges.

Westberry's attorney, Fortunato Perri Jr., said that the case was a head-scratcher. "It didn't appear to me that a crime had been committed by Brian at all."

"It was not worthy of prosecution," Perri said.

The D.A.'s office withdrew all charges on Oct. 6, after reviewing the case, including police paperwork and Cujdik's testimony at the preliminary hearing, said Assistant District Attorney Charles Ehrlich, chief of the Municipal Court unit.

"Based on that," Ehrlich said, "we decided that the D.A.'s office did not have enough evidence to proceed legally."



Who set the fire?


Last month, Cujdik allegedly delivered a chilling message to Westberry through a mutual acquaintance: "I'm gonna get a couple of guys from North Philly to torch his house."

The 22-year-old acquaintance, who told Westberry of the threat, asked the Daily News to withhold her name.

Westberry called detective Eberhart, whom he had come to trust. Eberhart told him to call 9-1-1 and make a report, according to McGinnis.

Westberry said that he was busy and failed to take Eberhart's advice.

On Nov. 14, Westberry awoke to find the white aluminum siding on the front of his house singed with black soot, a pool of gasoline beneath. There was no other damage to the house.

The city's fire marshal's office ruled the case arson. A police report was sent to Northeast Detectives naming Gregory Cujdik as a "person of interest."

Westberry and his parents allege that the detective assigned to the arson case, Andrew Danks, called them that night and said that he couldn't pick Cujdik up for questioning.

"He said it was Brian's word against [Cujdik's]. He said it was all hearsay. He said there was nothing he could do," said Westberry's father, Glen Westberry, 54.

"I told them there were six people sleeping in the house at the time when he set the fire. Me, my wife, my two sons and two grandkids. That's attempted murder," Glen Westberry said.

After the Daily News called Northeast Detectives, McGinnis reviewed the case and told a reporter that Cujdik was obviously a suspect.

"Without a doubt, [Cujdik] is a strong suspect," McGinnis said in a Dec. 4 interview.

McGinnis then said that he asked Danks why Cujdik hadn't been questioned. Danks told him that he had planned to interview Cujdik but had a backlog of cases on his desk.

"He has 10 jobs on an 8-hour shift," McGinnis said.

Danks recently interviewed Westberry, his father and Gregory Cujdik. According to Westberry, Danks suggested that Westberry set the fire to frame Cujdik. Danks declined to discuss the case, saying the investigation is "ongoing."

But the Westberrys remain skeptical that the end result will be fair.

"Cujdik is from a family of cops, so he can do whatever he wants to do?" Glen Westberry asked.

"Where can we get any justice?"

To view Gregory Cujdik's testimony at the preliminary hearing, go to:

http://go.philly.com/transcript. To view the affidavit of probable cause for Westberry's arrest, go to: http://go. philly.com/westberry.

http://www.philly.com/philly/news/79288022.html?viewAll=y