D.A. memo criticizes police probe
WEST CHESTER >> The investigation by Pennsylvania State Police into an officer-involved shooting earlier this year was flawed on multiple accounts that could have led to questions about its integrity, a memorandum prepared by Chester County District Attorney Tom Hogan and included in an unprecedented lawsuit filed by state trooper union officials suggests.
Those errors, states the 16-page memo, begin with the failure of the state police commander at the scene of the shooting in southern Chester County to notify Hogan immediately of the incident and open the door for investigators from his office to take over an independent review of the incident — a requirement of a policy Ho-
gan put in place in 2016 in the county after it was endorsed by the Pennsylvania District Attorneys Association.
Hogan noted that the policy has been opposed by the former state police commissioner at the time, but that he maintains that it is “a lawful order.”
“The District Attorney is the chief law enforcement officer in the county as a matter of law and the independent investigating agency, the Chester County Detectives, have primary jurisdiction over all of Chester County,” he wrote. “The disagreement of (the state police’s) former Commissioner with the … policy may have been the source of (the state police’s) failures to follow the protocol and resulting problems in the investigation.”
Those problems include a failure to fully secure the scene of the shooting in its aftermath; a failure to separate the three state troopers who fired their weapons at a fleeing drunk-driving suspect’s car; the involvement with the troopers with a union representative at the scene; questionable log entries in the investigation; and inconsistencies in the state police report of how many shots were fired, the memo states.
“By not complying with this (District Attorney’s Office) policy, (the state police) left itself open to potential cross-examination and credibility attacks,” said Hogan in the memo. “All of these errors could have been avoided by a timely notification of the District Attorney.”
The memo is at the heart of the lawsuit filed last month against Hogan by the Pennsylvania State Troopers Association and Lt. Brandon Daniels, the trooper who oversaw the shooting at the Nutra-Soils compost storage lot in London Grove in May. The plaintiffs are asking a Common Pleas judge to prohibit Hogan from placing law enforcement officers on a “do not use” list, involving whether they would be called by prosecutors to testify in court proceedings, without due process.
Because of his actions the night of the shooting and his answers as to why Hogan and his office were not immediately notified of the shooting, Hogan said in the memo that he had placed Daniels on his office’s “do not use” list, alongside two former troopers, both of whom had been convicted of criminal offenses.
The lawsuit contends that Hogan’s actions deprive Daniels of his “right to reputation” guaranteed by the state Constitution. The trooper should have been given the opportunity to respond officially to Hogan’s charges involving his credibility and the subsequent inclusion on the “do not call” list.
Attorneys for the state police union and for Hogan appeared briefly in court on Thursday to address competing motions that had been filed in the lawsuit. At the hearing, Harrisburg attorney Sean T. Welby, representing the union, told Judge Edward Griffith that his clients were withdrawing their request to prohibit further dissemination of the controversial memo.
He also said that the union was withdrawing its earlier request that the lawsuit and the memo be sealed from public view.
Philadelphia attorney Michael Pullano, representing Hogan, told Griffith that he agreed with the union’s decisions, but stressed that he wanted it understood that Hogan had not leaked the memo, which was first reported in the Daily Local News on Tuesday. Instead, the memo became public because it was not under seal and was obtained by the newspaper in the normal course of business.
Earlier last week, Hogan expressed dismay about the lawsuit, but said he would defer to the court to decide whether and how he should be allowed to use such a list of unwanted police witnesses.
“It is unfortunate that the union has decided on this tactic,” Hogan said Monday. “We will leave it for the court to address the issue.”
The suit itself will go forward in the coming weeks, with Hogan expected to respond to the complaint in court filings sometime around Election Day in November. No monetary damages are being sought.
Meanwhile, members of the county law enforcement community are reportedly upset with Hogan’s characterization of Daniels as being not credible, and linking him to two troopers who were convicted of drug possession and assault, by putting him on the “do not use” list.
According to a person who is familiar with the law enforcement community’s views, Daniels — a veteran of the state police with more than two decades of experience — has a stellar reputation among federal, state, and local agencies.
“Everyone says unanimously that his integrity and reputation is above reproach,” said the person,
who asked to remain anonymous because he was not authorized to speak on Daniels’ behalf and because he feared negative fallout from the prosecutor’s office if identified. “He is a model trooper. Across the board, people say that if he tells you something, you can take it to the bank.”
To place Daniels in the same category as the two other former troopers, Jose LeBron and John Sromovsky, is “repulsive,” the person said. “The consensus is that it is insanity to even put (Daniels’) name and character anywhere near the two other troopers.”
Daniels currently serves as commander of the Troop J Criminal Investigation Section, leading the major case team. He is reportedly set to retire later this month, taking over as chief of police and security in the Owen J. Roberts School District.
Daniels could not be reached for comment. The president of the state troopers’ association, David M. Kennedy, declined to comment on Friday when asked if he had any response to Hogan’s memo and its conclusions.
The dispute stems from the investigation into the officer-involved shooting that took place around 11:30 p.m. on May 23 involving three troopers who had been chasing a suspected drunk driver in southern Chester County. The troopers fired eight shots at the suspect, who, after being cornered at the compost lot, had attempted to flee.
The driver, identified as Brian Touchton, 42, of Coatesville, is awaiting trial on DUI, fleeing, and recklessly endangering charges before Judge Jeffrey R. Sommer in Chester County Prison. He was not hit by the gunfire in the incident.
After an investigation, Hogan in July issued a press release stating that he would not file criminal charges against the three troopers involved for their use of deadly force. In each
case, they said they fired their weapons in an effort to disable Touchton’s car and not at him.
But about three weeks later, on July 26, he sent the 16-page memo to the acting commissioner of the state police, Lt. Col. Robert Evanchick, the commander of Troop J in Lancaster, and James Fisher, who oversees the county’s two barracks, and the state director of Homeland Security, Marcus L. Brown, that was highly critical of the state police’s handling of the shooting aftermath.
Hogan, in his memo, contended that Daniels had not notified his office that there had been an officerinvolved shooting until four hours after it occurred. He said that Daniels had never notified him directly, and that he had instead called the “on-call” prosecutor, who allowed the investigation by state police to proceed, which further added to the confusion surrounding the incident.
When Daniels was asked why he had not contacted Hogan directly, as is specified in the DA’s policy, the memo states that he gave answers that were lacking in credibility. Daniels allegedly told the DA’s Office that he did not have Hogan’s direct mobile telephone number, and that he had “other things to do.”
“Lt. Brandon Daniels willfully subverted the … policy for officer-involved shootings,” states Hogan’s memo, which was also signed by Chester County Detectives Chief Kevin Dykes.
The memo also said that detectives found that during the state police review, a tractor trailer drove across the police lines into the Nutra-Soils lot unimpeded. The investigation, “did not include an explanation for how an 18-wheel truck managed to show up in the middle of a crime scene,” Hogan wrote. Additionally, another truck that was inside the scene at the time of the shooting was allowed to move out. The lack of “scene integrity” is “remarkably unprofessional and unacceptable,” the memo states.
The document also criticized the decision at the scene not to separate the three troopers who fired the shots — identified as Ryan Ard, Alexander Talmadge, and Justin Pfeiffer — after their initial interview. Instead, the trio were allowed to go back to the Avondale barracks, where they were assigned, together in the same car. Such a separation procedure, if followed, would have avoided any later claims by defense attorneys that, “the officers involved conspired after the fact to coordinate their stories.
Hogan also was critical of the involvement of an unidentified representative of the troopers’ union. That person drove the three troopers back to the barracks the night of the shooting, and their involvement in having the troopers initially invoke the Fifth Amendment rights in not answering questions about the shooting.
Hogan also noted that the union representative actually participated in the investigation itself, transporting evidence from the scene and logging it in to records. All of this, he said, would have been prohibited under the District Attorney’s shooting protocol.
“The rules in the … policy exist for the protection of the integrity of the investigation,” Hogan wrote. “Many of the rules exist to protect law enforcement from allegations of wrongdoing and to ensure public trust.
“These rules have been learned from hard experience in many officer-involved shooting investigations across the United States. Failure to follow the rules is both dangerous and foolish.”