Lebanon County District Attorney Pier Hess Graf ruled Monday that an officer-involved shooting that killed a 40-year-old Jonestown man last November was justified.
In a 46-page document (PDF) that includes a three-page letter addressed “To the Citizens of Lebanon County,” the report details the investigation of the fatal shooting of Andrew Dzwonchyk by Pennsylvania State Trooper Jay Splain on Nov. 7, 2021.
The investigative report, issued without a press conference, contains six sections that highlight the investigatory efforts and evidence reviewed by Hess Graf’s office and the Lebanon County Detectives Bureau, the facts of the investigation, and the legal determination concerning Splain’s use of deadly force last November.
The release is unusual for its length and detail.
In her letter to the public, Hess Graf writes that “most investigations of a police shooting result in a brief letter which states only the final outcome and determination – whether the shooting was lawful or unlawful.”
“Given the attention this case garnered, such a result seemed deficient,” she continues. “A mere letter or brief press conference fails to explain to our citizens and Mr. Dzwonchyk’s family what really occurred.”
The Investigative Efforts and Evidence Reviewed section lists 43 items that were investigated by Chief Detective Jon Hess, Detective Sgt. Todd Hirsch, and detectives David Shaffer and Stephan Kiefer in the nearly 10 months since the shooting occurred in the first block of Ridge Road in Union Township last fall.
Among those items are reviews of the autopsy photographs, criminal investigation reports of the county’s detective bureau and of the Pennsylvania State Police, and other evidence relating to the case.
Not included in the evidence are videos of the shooting. The report states that investigators reviewed in-car camera footage from the PSP cruiser, but due to how the vehicles were oriented, the incident occurred at a 90-degree angle from the police cruiser itself and the camera footage did not capture the encounter.
The report, which details shouting from Dzwonchyk and verbal commands from the officers during the incident, does not mention whether the state police vehicle’s recording equipment captured any audio, nor were any audio clips released as part of the report.
The investigative report details the Protection From Abuse order Amy Hastings obtained on Oct. 22 against Dzwonchyk, her long-time boyfriend and father of their two children, over his drug use and ongoing harassment of Hastings.
The DA’s report also lists various PFA violations committed by Dzwonchyk and subsequent phone calls from Hastings to the Pennsylvania State Police – including at least two on the day of the shooting. The PSP reportedly spoke with Dzwonchyk at 3 p.m. and reminded him to “cease all communications with A.H. due to the PFA Order.”
The report continues with the events that happened that afternoon and evening, highlighting the efforts of Splain and Trooper Justin Auchenbach to arrest Dzwonchyk after he arrived at the home of Hastings’ mother and her boyfriend around 10:45 p.m.
The report says that Auchenbach attempted to disable Dzwonchyk’s car after the decedent refused multiple verbal commands to exit his vehicle. When it appeared that Dzwonchyk was going to drive away, Auchenbach attempted to grab the steering wheel and unlock the car door but Dzwonchyk “pushed and struggled with Trooper Auchenbach.”
The report states that Auchebach was dragged forward, then backwards after Dzwonchyk stopped his vehicle when he could not proceed going forward since the single-lane driveway in front of the home was blocked by the state police vehicle.
The report says Dzwonchyk drove in reverse and was “chased” by Splain as Auchenbach continued to be dragged by the vehicle.
Splain then shot Dzwonchyk once in the arm, which helped bring the vehicle to a stop. It was then, the report states, that Splain attempted to twice tase Dzwonchyk – with one of those attempts being successful and the other a miss that bounced off of the car.
The report says Auchenbach, wishing to use the tasing to his advantage, then attempted to disable the vehicle but ended up getting dragged backwards as the car was again driven in reverse. Splain testified that at this point there was “no doubt” that the decedent intended to escape arrest and was willing to run over or seriously hurt either trooper, adding that’s what drove him to again fire his weapon at Dzwonchyk.
After he fired his weapon again, Splain approached the vehicle and both troopers observed that Dzwonchyk had sustained multiple gunshot wounds and that it was apparent that he was beyond life-saving measures.
The report provides toxicology findings during the autopsy and other evidence concerning Dzwonchyk’s actions in the days and weeks leading up to the fatal shooting.
The next 11 pages of the report highlight case law as part of the report’s Statement of Governing Law to explain why Splain’s actions on the night in question were justified.
The report delineates between the first shot fired that struck Dzwonchyk in the arm and the subsequent rounds that were fired after attempts to tase him failed. This timeline represents a significant change from a previous PSP press conference on the incident, where it was noted that the officers first attempted to tase Dzwonchyk and then shot him when those efforts failed to incapacitate him.
Why Splain fired his weapon first and then chose to tase Dzwonchyk before firing his firearm again and why the police account from last November has changed are unclear.
The report also does not state from which side of the car Splain shot at Dzwonchyk, whether Auchenbach was in the line of fire given his proximity to the driver, and how and when in the timeline of events did Auchenbach finally extricate himself from Dzwonchyk vehicle.
Although the report repeatedly states that Auchebach was dragged forward and backward during the incident, state police reported last November that Auchenbach did not suffer any injuries and also said at the same press conference that Dzwonchyk car was “not moving very fast.”
The investigative report, on the other hand, says Dzwonchyk “hit the gas pedal and accelerated his car forward and then later states that he was “accelerating rapidly backwards.” A footnote to the latter comment states that “in both instances in which the Decedent accelerated his vehicle in a backwards direction, its tires spun so quickly that it appeared that the Decedent had floored the gas pedal.”
It’s not yet known what legal steps the Dzwonchyk estate will take now that Hess Graf’s ruling has been made. The family had previously retained Paul Messing, a partner in a civil rights firm in Philadelphia County, and the law firm is monitoring the situation.
The report does not appear to have had any immediate impact on Splain’s status with PSP. A spokesperson told LebTown simply that Splain is no longer serving in a patrol unit. PSP had previously placed Splain on “administrative duty,” which it said is standard policy for a trooper who is involved in an officer-involved shooting that remains under investigation.
Hess Graf also used the report to respond to what she referred to as “media articles written up until this point used eye-catching headlines to further an untrue and unfair narrative – namely, that our Office is unable to objectively and accurately rule in this case.”
She details in the letter how she and an office staff member created a conflict of interest policy after she was elected as DA in early 2020 since her husband was employed by PSP. Hess Graf said that her first assistant provided a draft copy for input from President Judge Tylwalk, adding that following a meeting with him that he “did not voice any objections nor did he request any changes.”
Judge Tylwalk previously told LebTown that his advice had been for Hess Graf to refer cases involving her husband, even tangentially, to the attorney general’s office. Tylwalk said he wasn’t involved in developing the specifics of the conflict policy (PDF). A spokesperson for the Pennsylvania Attorney General’s office also told LebTown at the time that their office did not assist Hess Graf in creating a conflict of interest policy for Lebanon County’s district attorney’s office.
Earlier this month, LebTown reported that the DA’s investigation into the shooting appeared to have stalled, and did not respond to questions from LebTown, including whether the delay of the investigation was based on legal strategy.
Hess Graf said in her letter that the office discussed deferring a release of its findings until the disciplinary board ruled on the complaint, but decided that the “public’s right to know what truly happened outweighs any additional delay.”
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