The Mercury (Pottstown, PA)

D.A. memo criticizes police probe

- By Michael P. Rellahan mrellahan@21st-centurymed­ia.com Staff Writer

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.”

 ?? BILL RETTEW — DIGITAL FIRST MEDIA ?? In this file photo, Chester County District Attorney Tom Hogan prepares to talk to the media about killings at Bellingham Retirement Complex in East Goshen Wednesday night. A memo from the D.A.’s office is critical of state police in a case of an officer-involved shooting.
BILL RETTEW — DIGITAL FIRST MEDIA In this file photo, Chester County District Attorney Tom Hogan prepares to talk to the media about killings at Bellingham Retirement Complex in East Goshen Wednesday night. A memo from the D.A.’s office is critical of state police in a case of an officer-involved shooting.

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