Heath Long

First Assistant

Kelly Callihan
District Attorney

Scott M. Lilly
Chief Deputy, Appellate Division
[email protected]

Office of the District

Attorney
FOR IMMEDIATE

200 South Center Street, Ebensburg, PA 15931

472-1680
Fax: (814)
472-7134
RELEASEPhone: (814)Contact:
Jennifer
Hagens
[email protected]

November 17, 2016

CAMBRIA COUNTY DISTRICT ATTORNEYS OFFICE
STATEMENT REGARDING JOHNSTOWN POLICE DEPARTMENT OFFICER RELATED SHOOTING
EBENSBURG, PA - Today District Attorney Kelly Callihan announces her findings after review of
the thorough investigation conducted by the Pennsylvania State Police into the officer-related
shooting death of Mr. Daniel Burkhardt on March 2, 2016. District Attorney Callihan has
determined, based on the facts and the law, that no criminal charges arising out of this fatal
shooting incident that claimed the life of Daniel David Burkhardt in the City of Johnstown,
Cambria County, Pennsylvania, should be filed against the responding three officers. More
specifically, after evaluating the circumstances and evidence surrounding the use of deadly force
by Officers
,
and
in the on-duty shooting death of Daniel
Burkhardt, and carefully reviewing the facts as set forth in the investigative records along with
current Pennsylvania law defining use of lethal force by police officers, it is my legal opinion that
no criminal charges should be filed against any of the above-named officers as I find the actions
taken by them were legally justified.
Factual Summary
On March 2, 2016, the Johnstown Police Department was dispatched through the 911 emergency
services department and responded to an incident at the alley known as Spickler Place between
Gull Place and Strayer Street, in the West End section of the City of Johnstown, Pennsylvania.
The nature of the call as relayed to the responding officers was that a man with a knife was
threatening the female caller. It prompted dispatch by tones commonly referred to as warble
tones which alert responding officers of the most serious, high threat level calls. Officer
,
and
each left from the Public Safety Building in separate police
vehicles to respond to the scene. They responded in marked units with lights and sirens
activated. Additional information was provided while enroute that the female caller was
approached by the suspect who was chasing her with a knife prompting her to run away as she
was on the phone with 911. When the officers got to the alley, Officer
proceeded in one
direction up the alley while Officers
and
approached from the opposite direction to
a stopping point in which the actor was clearly visible and situated between the police cruisers in
a driveway like pull off to the left of Officer
s vantage point and
Forrest B. Fordham, III Eric D. Hochfeld Wayne Langerholc, Jr. Elizabeth Bolton Penna
Jessica F. Aurandt Joseph R.

D. Persio

M. Dominick Gregory J. Neugebauer

cruiser and to the right of Officers

s and
cruisers in which Officer
s unit was
positioned in front of and partially to the left of Officer
patrol unit. They observed a white
male with knives in both of his hands who appeared agitated, tense and disoriented at first sight.
The actor was acting hostile and aggressive while holding a knife in each hand in front of his
torso at a 90 degree angle pointing forward and away from his body. The actor was facing
Officer
initially, but turned to face Officers
and
as they approached and got
out of their vehicles. Officer
immediately informed the other officers that the actor had
knives in his hands.

Officer
arrived first; stopping his marked cruiser and exiting with his weapon drawn while
immediately giving commands to the actor to drop his weapons. When Officer
approached and stopped his marked patrol unit seconds later, he got out of his vehicle giving
repeated commands to drop the knives. After Officer
shouted the 1 st several commands
to drop the weapons, the suspect responded shoot me. He then responded to Officer
s
numerous commands to stay put and not move by repeatedly answering no. During the
exchange, the actor began to move forward in the direction of Officers
and
. He
was told numerous times to stop and stay where he is, but continued to aggressively approach
with the knives outstretched in his hands advancing in the direction of Officers
and
.
Officer
quickly retrieved a 12 gauge bean bag shotgun from the trunk of his cruiser, a nonlethal weapon used to shoot bean bags as a means of bringing the suspect into compliance,
while Officer
provided cover and remained fixated with direct eye contact on the actor
with his weapon drawn in his right hand. Officer
deployed 2-3 bean bag rounds with at
least two striking the actor. This did not subdue the actor and he continued to advance toward
Officer
armed with 2-3 knives at which time Officer
deployed his taser in another
attempt to use non-lethal means to bring about compliance. The taser did not stop the
individual; he continued to advance toward Officer
, knives in hand and outstretched in
front of him as he ignored repeated commands to drop the knives. When he came within a few
feet of Officer
, who was clearly in danger of being attacked with the knives, Officer
fired his duty weapon firing two rounds at the actor. Throughout the incident, to Officer

rear near the back of his parked cruiser he believed stood the female caller. At the outset,
Officer
positioned himself between the actor and female as he was defending her life and
safety as well.

The suspect dropped to the ground and seemed subdued for a few seconds, but then continued
his actions by raising his torso, attempting to stand and again advancing toward officers with at
least one of the knives still displayed and pointed forward toward Officer
. At this point, all
three officers responded with deadly force and fired their duty weapons at the actor, who was
shot and finally ceased his aggressive actions. Officers followed protocol, immediately called in
the shooting and then took life saving measures by rend
g aid to the suspect in the form of
CPR.

Throughout the incident, from arrival Officer

kept his duty weapon drawn and pointed at
the actor. Officer
had his duty weapon drawn and pointed at the actor at times that he
was not using or retrieving the less lethal 12 gauge bean bag shotgun to deploy the bean bag
rounds. Officer
had his weapon drawn and pointed at the actor at all times and continued
to hold this stance while he deployed the taser from his left hand. The officers pulled on scene in
clearly marked patrol units with lights flashing and were dressed in police uniforms. Repeated
commands to drop the knives and surrender were ignored. Less lethal means to bring the
individual into compliance to stop his life-threatening conduct were not successful. When
confronted with deadly force, Officer
took action to save his life and the lives of others,
namely his fellow officers, female caller and others in the area. The actor did not cease his
actions after being shot by Officer
and again advanced toward Officer
at which
time all three officers fired their weapons to protect the life of Officer
, who was positioned
in close proximity to the knife wielding actor who couldnt be stopped despite other means of
force that were attempted but failed, and to defend the lives of others in the area including the
clear threat posed to the female caller if he was able to get past Officer
and advance in
her direction.

The actor was transported by EMS to Conemaugh Hospital for treatment of gunshot wounds. He
was pronounced dead by Dr. Shawna Morrissey at 6:18 p.m. He was identified as Daniel David
Burkhardt, date of birth March 27, 1974. A 41 year old white male who resided at 153 Fairfield
Avenue, Apartment 6, Johnstown, Pennsylvania, 15906.

The Pennsylvania State Police was called in to investigate the incident at the request of
Johnstown Police Chief Craig Foust. A thorough investigation was conducted by the Pennsylvania
State Police. Investigative records were provided to the Office of the District Attorney for review
and analysis. The relevant facts obtained through the Pennsylvania State Police investigation are
as follows:

The 911 caller was Darla Wagner. An interview was conducted by the Pennsylvania State Police
on March 2, 2016, with Darla Wagner. The interview was audio recorded. Wagner stated that
Burkhardt was not known to her prior to this incident. He showed up at her residence at 432
Rear Decker Avenue, which is close to Spickler Alley, at approximately 5:40 p.m. on March 2,
2016 asking for her boyfriend Chris Cedor who was not home at the time. During the exchange,
Burkhardt asked Wagner to shoot him. He ignored her repeated request to leave her property.
She indicated to investigators that she didnt know Burkhardt or have any idea why he was there.
Wagner told Burkhardt she was calling the police, but he still refused to leave. She could see
that he had a rope around his neck and was playing with knives that he was holding, stating he
had approximately 5 knives. She observed that he had difficulty walking and expressed to
troopers in the interview that she was very afraid. Burkhardt was yelling give me help and
3

call the police. Wagner decided to lock up her residence and leave due to her concerns. After
she left, she called 911 for help and described how Burkhardt had chased her with the knives
and ran after her while she was on the phone with the 911 dispatcher. She was present when
police arrived and could hear police giving commands to put the knives down. She also heard
the actor say shoot me. She described that the taser did not work when police attempted to
use it and said she observed Burkhardt fall then try again to get back up with the knives at which
time she saw the officers shoot him.

Samuel McNulty was interviewed by state police investigators on March 2, 2106. The interview
was audio recorded. McNulty had just left Kochs convenience store, which is located nearby on
Strayer Street, when he was approached by an older gentleman that he knew, later determined
to be William Svaltek, who told him there was a young man in the alley holding a knife to his
neck that asked him for help. As McNulty walked up the alley, responding police vehicles passed
him and he observed Burkhardt on the left hand side of the alley holding a big knife to his own
neck. He could hear the officers screaming put down the knife. He could see the taser
deployed with no effect. Seconds later he described how Burkhardt began to move toward the
officers and say something about dying. He then saw shots fired and Burkhardt fall to the ground
describing the distance between Burkhardt and the officers being 6-8 feet. He then watched as
officers rendered aid. In his interview, he stated to troopers that he believed the officers did
their job in the seconds they have to react.

William Svaltek was interviewed by the Pennsylvania State Police on March 2, 2016. The
interview was audio recorded. Svaltek relayed that he had a very brief encounter with an
unknown individual (later determined to be Burkhardt) while walking through the alley to Kochs
convenience store. The individual he encountered was in a very agitated condition and was
speaking to a person at an adjoining property when he saw him. He was babbling as he held a
big knife against his own neck. He asked Svaltek to help him. Svaltek tried to calm him down,
but the actor started to approach him getting within 2-3 feet of him. Svaltek was very concerned
for his safety and began to move away from him stating he didnt know what condition the guy
was in and feeling like he might even be after him. He backed away and headed toward Kochs
store.

Dorothy Ferchalk was interviewed by state police intestigators on March 2, 2016. The interview
was audio recorded. Ferchalk was driving in the alley behind her house when she observed an
individual (later identified as Burkhardt) lying on a culvert with a knife to his throat. She was too
afraid to stop at her house and instead drove to a relatives house while contacting her fiance to
warn him of what she saw. Her fianc, Clifford Scarff, got in his vehicle to leave and observed
the same male standing on a culvert looking toward Kochs store and described him smacking
himself in the neck with the knife. He viewed a rope in the yard approximately 3 feet from the
actor. He could also see an elderly gentleman (later identified as William Svaltek) walking
toward Burkhardt and his neighbors girlfriend (later identified as Darla Wagner) walking away
4

from Burkhardt. Clifford Scarff was interviewed by state police investigators on March 2, 2016.
His statement was audio recorded.

Marian Burkhardt, the mother of the deceased, was interviewed by Pennsylvania State Police
investigators on March 3, 2016. She confirmed that her son had mental health history and was a
patient at Nulton Diagnostic and Treatment Center. She described him as bi-polar, depressed,
very paranoid, non-violent and fearful. She indicated that her son was addicted to DXM, an
over-the-counter cough syrup medicine. Her last contact with her son was on the evening of
March 1, 2016 and she reported that he sounded really good at that time. She was
understandably emotional during the interview in light of her sons death.

Christopher Cedor, was interviewed by Pennsylvania State Police investigators on March 4, 2016.
His interview was audio recorded. Cedor is a known associate of Burkhardt and the boyfriend of
Darla Wagner. It was his residence that Burkhardt approached when he encountered Wagner. He
confirmed that Burkhardt did a lot of cough syrup.

Daniel Burkhardt was examined post-mortem on March 3, 2016 by Dr Ashley Zezulak. Seven
gunshot wounds to the trunk area were documented. The following are the wound locations and
descriptions as set forth in the autopsy protocol. Other notable injuries included an L-shaped
abrasion on the left forehead, a crescent shaped abrasion on the upper left chest, a red-purple
contusion on the mid-right thigh and multiple untraceable gun-shot related wounds on the right
back. Pennsylvania State Police investigators took custody of all ballistic evidence for testing
and analysis.

The toxicology screen from blood drawn at autopsy showed Daniel Burkhardt was positive for
Dextro/Levo Methorphan, Dextrorphan, Guaifenesin, and ethanol. A constituent of cough and cold
medications (Dextro/Levo Methorpham (DM)) was found to be present in Burkhardts blood. The
blood levels of DM at chronic doses range from 2.4ng/ml to 200 ng/ml. Burkhardts blood
contained 1800 ng/ml, greatly exceeding the chronic dose range which is further evidence of his
addiction to and abuse of this substance. The NMS Labs toxicology report indicates that
Dextro/Levo Methorpham is a synthetic codeine frequently found in cough and cold medications.
Symptoms that manifest when doses exceed 100 times the normal adult dose include central
nervous system depression, hallucinations, dizziness and ataxia.

Also detected in his blood was a constituent of cold medications (Dextrorphan/Levorphanol),

which is an analgesic indicated for pain relief with the potency 4-5 times that of morphine
according to the NMS Labs toxicology report. The normal reporting levels for patients receiving
12 mg of Levorphanol orally every 4-6 hours is 16-21 ng/ml within 2 hours. Burkhardts blood
5

contained 120 ng/ml, greatly exceeding the normal limit. Guaifenesin is extensively used as an
expectorant and is available in numerous over the counter medications. The normal reporting
limit of Guaifenesin is .20 mcg/ml. Burkhardts reading was .85 mcg/ml. His blood alcohol level
was .00355.

Cambria County Deputy Coroner Jeff Lees documented the cause of death as gunshot wounds to
the upper torso and manner of death as homicide. The clinicopathological summary in the
Autopsy Protocol states, this 41 year old adult male, Daniel Burkhardt, died of multiple gunshot
wounds to the trunk.

Several relevant items were collected as evidence by Pennsylvania State Police investigators:

At Conemaugh Hospital: Items found on the deceased serrated kitchen knife with blood, taser
prong, leather necklace with keys, black leather jacket with blood and gray t-shirt with blood.
At the crime scene: One (1) Blood lift, Five (5) knives (3 silver butter knives, 1 black handled
carving knife and 1 brown handled knife), One (1) wire stereo audio cable, one (1) blue craig
headphone set, Ten (10) discharged federal .40 Smith & Wesson shell casings, One (1) black and
white wool cap over dew rag, One (1) red handkerchief, One (1) white Reebok athletic shoe, One
(1) taser X26 (deployed), One (1) glock 15 round magazine, Ten (10) .40 Smith & Wesson JHP
rounds, three (3) bean bags (deployed), three (3) 12 gauge bean bag shotshells, One (1)
Winchester defender 12 gauge pump shotgun (bean bags deployed), One (1) Budweiser can of
beer (ruptured), One (1) taser cartridge door.
At the Johnstown Police Department: The officers duty weapons (Glock 40 caliber), magazines
and rounds; Two (2) CDs containing dash cam video/audio of patrol units operated by Officers
and
. Note: Officer
s police cruiser was not equipped with dashcam video.
From 911: Two (2) CDs of radio activity
From Autopsy: Head hair of Burkhardt, Body hair of Burkhardt, Pubic hair of Burkhardt, blood
from Burkhardt, fingernail scrapings (left and right) of Burkhardt, fingerprints (left and right
hand) of Burkhardt, bullet fragment from back, Six (6) full bullets, bullet jacket and lead core
from abdomen near spine.

Investigators took multiple photos of the crime scene, autopsy and items recovered as evidence.
The scene photos and dashcam video clearly depict the scene as it appeared on the date of the
incident and show the location of the police cruisers when the officer pulled into the alley and
stopped to get out and effectuate a felony arrest.

The weapons used by the officers in this incident were seized as evidence to include ammunition
and magazine clips with some items recovered at the scene and some at the Johnstown Police
Department as set forth above. Officer
was carrying his duty issued Glock 40 caliber
semi-automatic firearm. Officer
was carrying his duty issued Glock 40 caliber semiautomatic firearm. Officer
was carrying his duty issued Glock 40 caliber semi-automatic
firearm.

Officer
is a 13 year veteran of the Johnstown Police Department. Pursuant to
departmental policy, Officer
was in compliance with the firearms annual certification
having successfully completed his qualifying tests on September 16, 2015. He has also served
on the Cambria County Special Emergency Response Team for 13 years and participates in
additional training and is in compliance with the testing/qualification standards effective for SERT
members.

Officer
is a 2 year veteran of the Johnstown Police Department. Pursuant to departmental
policy, Officer
was in compliance with the firearms annual certification having successfully
completed his qualifying tests on September 16, 2015.

Officer
has been employed by the Johnstown Police Department for approximately 2
years. Pursuant to departmental policy, Officer
was in compliance with the firearms
annual certification having successfully completed his qualifying tests on September 18, 2015.

All three officers cooperated with state police investigators and submitted to interviews which
were audio recorded. They appeared with counsel, Dennis McGlynn, Esq., who is attorney of
record for the Fraternal Order of Police, Flood City Lodge. Each detailed the events of the
incident and indicated they used deadly force after attempting less lethal means because they
were faced with deadly force and the lives of Officer
and others were in danger. Officer
stated that he put himself between the suspect and the female that was being threatened, with
the female to his back. He provided cover while Officer
accessed his trunk, but the actor
kept moving forward. Officer
describes the actor getting closer and closer with time
running out while the knives are up here, theyre not down here he isnt holdin em like hes
gonna butter his toast its in a threatening, stabbing manner up high. When the bean bag
rounds fail to stop the actor, Officer
goes on to say, we were running out of time, I didnt
hesitate, I drew a transition, my firearm to my strong hand right side, right hand and I drew my
taser out of my holster with my left hand, I gave no warning, I didnt say taser, I was running out
of time. I pulled up the dot, as soon as that dot hit his chest I pulled the trigger.

The taser probes made contact, but they did not subdue the actor. Officer
knew they
were not effective.
described, the individual clinched. I remember the individual just
clinching, getting tensed up but he didnt fall down as you see in taser training. His forward
action did not stop according to Officer
. Officer
had the bean bag shotgun out as
recalled and that was not effective either.
said, Officer
stepped in and fired, at
least two rounds, but they appeared to just bounce off his jacket the individual was just
keeping his eyes focused on me, you know, I I dont even recall that he even knows that he was
being shot with the bean bag shotgun. He he showed no emotion. He went on to state, The
individual continued to come towards me and I remember I dumped my taser down in front of my
cruiser, at at this point he is right in front of my cruiser, I had to stop him immediately .. I felt
I had to stop him now. And I resorted to my firearm and I fired.

When asked by investigators if using his firearm stopped the subjects actions, Officer
replied, The subject actions stopped moving forward. He collapsed to his butt but still had the
knives high at a threatening stabbing manner. And then at that time Officer
dumped the
shotgun, he resorted to his firearm. The individual began to roll towards me again, still holding
both all three knives in two of his hands, still holding all of them. The defendant was trying to
step back up, come forward, and we fired again. The actor then released the knives. Officer
ordered a tac reload and the officers emptied their magazine clip and reloaded new magazines
as a safety precaution.

Officer
told investigators that he did fear for his life and the life of Officer
as he was
looking through the trunk of his vehicle. Specifically, he stated, he was maintaining his pace
forward towards me and he had them knives up high, chest level, both three knives in two
hands. And at no point did he ever lower them knives, he didnt just dangle them around, you
know, it was always a threatening manner up high. And he wasnt making sense at the time, you
know, we I shot him with that taser and Officer
shot him with that bean bag shotgun, he
had no response, he didnt utter no words, nothing. And uh, we had to stop him at that time.

Firearm and Tool Mark testing was conducted at the Pennsylvania State Police Bureau of Forensic
Services, Greensburg Regional Laboratory. Sergeant John Thacik, Firearms and Tool Mark
Examiner found all three Glock semi-automatic handguns to be functional and capable of
discharging ammunition. The findings concluded that four (4) of the discharged casings
recovered from the scene were discharged from Officer
weapon, four (4) of the
discharged casings recovered from the scene were discharged from Officer
s weapon and
two (2) of the discharged casings recovered from the scene were discharged from Officer
s weapon. These findings were consistent with the location of items recovered at the scene and
the officers statements as to the chain of events.

Two search warrants were obtained by the Pennsylvania State Police pursuant to this
investigation. One for medical and mental health treatment records of Daniel Burkhardt from
Conemaugh Hospital from February 24, 2016 to March 2, 2016 and one for records from Nulton
Diagnostic Treatment Center. The deceaseds mother indicated her son was treated at
Conemaugh Hospital on February 25, 2016. Records show he was admitted on February 25, 2016
at 5:49 a.m. and discharged the same day at 4:59 p.m. with his primary complaint being
headache and insomnia. His mother also told investigators that he was in treatment at Nulton
Diagnostics. The records show a history of mental health related issues and document
Burkhardts diagnosis of Anxiety Disorder, Bipolar Disorder, Depressive Disorder and
Schizoaffective Disorder along with Psychoactive Substance Abuse.

The Pennsylvania State Police Summary of Trooper Ted Goins states as follows:

Units 651 (Officer

), 653 (Officer
), 662 (Officer
) and a K9 vehichle (Officer
) responded to the scene. Officer Reihart was the officer assigned to
the zone where this incident occurred but was conducting an unrelated investigation at the time
of the dispatch so he actually arrived after the incident. Once reaching the intersection of
Strayer Street and Spickler Place, Officer
turned north onto Spickler Place and was the
first to confront Burkhardt at approximately 1751 hours. At this point, Burkhardt was standing
just off the alley, with a knife in each hand. Officers
and
continued to travel north
on Strayer Street, then turned west onto Gull Place, and almost immediately turned south onto
Spickler Place. Officer
was the first of the 2 vehicles. Officer
parked his vehicle
behind Officer
. As officers
and
arrived (approximately 21 seconds after
), Burkhardt was facing towards Officer
. Officer
warned the other officers that
Burkhardt was armed. Burkhardt became aware of Officers
and
and turned to face
them. Officer
accessed the trunk of his vehicle to retrieve a 12 gauge, bean bag shotgun.
Immediately upon confronting Burkhardt, the JPD officers began to give Burkhardt verbal
direction to drop the knives. Burkhardt immediately engaged the officers with verbal noncompliance and refused the officers repeated orders to drop the knives. Burkhardts posture
and stance were clearly threatening, as he held a knife in each hand with the blades extending
away from his body. His elbows remained bent at a 90 degree angle in such a way that the
knives remained pointed towards whoever Burkhardt was facing.

The recorded verbal exchange and action between the officer and Burkhardt was as follows:
: Drop the knife my man!
BURKHARDT: Shoot!
: Drop the knife my man!
BURKHARDT: Shoot!
9

: No, drop the knife!

BURKHARDT: Shoot!
: Drop the knife!
BURKHARDT: No! No!
: Drop the knife!
BURKHARDT: No!
: Drop the knife my man (

begins to access the bean bag weapon in his trunk).

BURKHARDT: No!
: Drop the knife!
BURKHARDT: No!
: Put the knife down sir!
BURKHARDT: No! (BURKHARDT begins to advance on Officers

and

).

: Put it down!
BURKHARDT: No!
: Stay where you are! Stay where you are!
BURKHARDT: No!
: Stay where you are!
BURKHARDT: No!
: Stay where you are!
BURKHARDT: Shoot
: Dont come any closer! Dont come any closer!
: Dont come any closer, man! Dont come any closer, man! We dont want to hurt you!
Put it down! Put it down! Put it down! Dont do it man!
At this point, Officer
fired two (2) rounds from a 12 gauge, bean bag shotgun. One (1)
round appeared to strike BURKHARDT in the right hip area; the second round appeared to strike
BURKHARDT in the right leg. BURKHARDT continued his advance towards Officer
.
: Put it down!
BURKHARDT: Kill me!

10

At this point Officer

deployed his taser with no effect. Offer
then deployed a third
bean bag round, striking BURKHARDT in the right leg. BURKHARDT continued his advance
towards Officer
.

Officer
then fired two (2) rounds from his duty weapon, apparently striking BURKHARDT at
least once as BURKHARDT fell to the ground. BURKHARDT is heard making unintelligible sounds.
The Officers then began to advance on BURKHARDT. BURKHARDT then spun around and made
an apparent effort to stand up.
(screaming): PUT IT DOWN! PUT IT DOWN! PUT IT DOWN!
BURKHARDT began to move toward the officers again. At this point, Officer
fired two (2)
additional rounds from his duty weapon as Officer
fired two (2) rounds and Officer
fired four (4) rounds. BURKHARDTs advance ceased.
: Cease fire! Hold up! Hold up men!

Officer
then transmitted a shots fired call and advised Cambria County Control that
BURKHARDT was down. Officer
summoned an ambulance then directed the other
officers to conduct a tactical reload. Officer
accessed a first aid bag in his trunk and the
officers began to administer first aid to BURKHARDT.

This audio was captured from Officer

s vehicle. Officer
s vehicle was not equipped
with a video recorder. In Officer
s statement during formal interview, he contended that
he had given BURKHARDT verbal direction prior to the arrival of Officers
and
. The
audio/video camera in Officer
s vehicle clearly captured Officer
and
giving
loud and clear direction to BURKHARDT. It also clearly showed that BURKHARDT understood
exactly what he is being directed to do because he responds to almost every command
immediately and in a negative fashion.

The total time elapsed from Officer

s arrival until the officers use lethal force to finally halt
BURKHARDTs actions was approximately 77.5 seconds. During that time the officers can clearly
be heard giving 17 orders for BURKHARDT to either drop his knives of stop advancing. This does
not take into account any commands Officer
may have given prior to the arrival of Officers
and
; as only those commands clearly heard through the audio/video recordings from the
units operated by Officers
and
were taken into account. During the same time
span, BURKHARDT can clearly be heard responding negatively on 13 occasions.

11

Legal Analysis

Under Pennsylvania law, a police officer is justified in using deadly force when there is a
belief that such force is necessary to prevent death or serious bodily injury to himself or others.
Wargo v. Municipality of Monroeville, PA, 646 F. Supp. 2d 777 (W.D. Pa.2009). In conducting my
review, it is important to note that the courts have recognized that, the calculus of
reasonableness of force must embody allowance for the fact that police officers are often forced
to make split-second judgements in circumstances that are tense, uncertain and rapidly evolving,
about the amount of force that is necessary in a particular situation. Mosely v. Yaletsko, 275 F.
Supp. 2d 609 (E.D. Pa. 2003); Graham v. Connor, 490 U.S. 386, 396-397 (1989). The officers
conduct must be judged from the standpoint of the reality confronting them at the time; the
evaluation cannot be made solely in retrospect. Nash v. United States, 897 F. Supp. 180,183
(E.D. Pa. 1994).

It is a violation of the criminal law to unlawfully use deadly force against another. One
aspect of an evaluation of an unlawful act is whether or not the act was justified. The law of
the Commonwealth of Pennsylvania places the burden of proof on the issue of justification on the
Commonwealth. Thus, in any prosecution, the Commonwealth would have to prove beyond a
reasonable doubt that the actions of the individual (i.e. the officers in the instant matter) were
not justified.

The Pennsylvania Crimes Code contains specific provisions regarding the justifiable use of
force, including the use of deadly force, by law enforcement. Section 508 sets forth several
provisions, two of which are applicable to the current incident. The applicable provisions are 18
Pa. C.S.A. 508(a) which deals with use of force in making an arrest and 18 Pa. C.S.A. 508 (d)
dealing with use of force to prevent the commission of a crime.

The exercise of force in the line of duty is governed by statute. The statute enumerates three
instances when force may be justified: (1) during an arrest; (2) to prevent escape; (3) to prevent
the commission of a crime. See 18 Pa. C.S.A. 508(d); see also 18 Pa. C.S.A. 505(governing use
of force for self-protection); 18 Pa. C.S.A. 506(governing use of force for defense of others). An
actor is justified to use force to defend third parties under the same circumstances and to the
same extent that he would be justified in doing so to defend himself. 18 Pa. C.S.A. 506,
Comment (citing Commonwealth v. Russogulo, 263 Pa. 93 (Pa. 1919); Commonwealth v. Paese,
220 Pa. 371 (Pa. 1908)).

12

The major difference between a civilians justification of deadly force in self-defense and a
police officer is that police officers have no duty to retreat. Commonwealth v. Crowley, 26 Pa.
Super. 124, 126 (Pa. Super. Ct. 1904).
Relevant provision of the Pennsylvania Crimes Code are as follows:
18 Pa. C.S.A. 508 Use of Force in Law Enforcement
(a) Peace officers use of force in making arrest.-(1) A peace officer, or any person whom he has summoned or directed to assist him, need not
retreat or desist from efforts to make a lawful arrest because of resistance or threatened
resistance to the arrest. He is justified in the use of any force which he believes to be necessary
to effect the arrest and of any force which he believes to be necessary to defend himself or
another from bodily harm while making the arrest. However, he is justified in using deadly force
only when he believes that such force is necessary to prevent death or serious bodily injury to
himself or such other person, or when he believes both that:

(i) such force is necessary to prevent the arrest from being defeated by resistance or escape;
and
(ii) the person to be arrested has committed or attempted a forcible felony or is attempting to
escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life
or inflict serious bodily injury unless arrested without delay.

(d) Use of force to prevent suicide or the commission of crime.-(1) The use of force upon or toward the person of another is justifiable when the actor believes
that such force is immediately necessary to prevent such other person from committing suicide,
inflicting serious bodily injury upon himself, committing or consummating the commission of a
crime involving or threatening bodily injury, damage to or loss of property or a breach of the
peace, except that:

(i) Any limitations imposed by the other provisions of this chapter on the justifiable use of force in
self-protection, for the protection of others, the protection of property, the effectuation of an
arrest or the prevention of an escape from custody shall apply notwithstanding the criminality of
the conduct against which such force is used.

(ii) The use of deadly force is not in any event justifiable under this subsection unless:

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(A) the actor believes that there is a substantial risk that the person whom he seeks to prevent
from committing a crime will cause death or serious bodily injury to another unless the
commission or the consummation of the crime is prevented and that the use of such force
presents no substantial risk of injury to innocent persons; or

The uncontroverted facts show Officer

deployed deadly force only after Mr. Burkhardt
repeatedly ignored commands of the officers, continued his aggressive stance while moving
forward toward officers while displaying knives in both hands in a threatening manner. There is
no dispute that the multiple knives being held by the actor are deadly weapons capable of
inflicting death or serious bodily injury upon others. Five (5) knives were recovered from the
scene and one (1) knife was recovered from the actors person at the hospital. Mr. Burkhardt
failed to conform his behavior when less lethal forms of force were attempted by officers in
making the arrest. He continued to advance on Officer
coming within a few feet of him,
knives displayed and pointing outward in the direction of Officer
. Officer
was
therefore acting under a reasonable belief that the force was necessary to prevent death or
serious bodily injury to himself or others including to other officers assisting in the arrest and
others in the area to include the female caller who was positioned behind him and in harms way
should the actor overcome Officer
.

Officers
again deployed deadly force along with Officers
and
only after Mr.
Burkhardt was shot, fell to the ground and re-engaged officers by turning toward Officer
,
knives in hand and trying to get up and move forward again in his direction. All three officers
when deploying deadly force were therefore acting under the reasonable belief that the force
was necessary to prevent death or serious bodily injury to themselves and their fellow officers
working in conjunction with them to effectuate the arrest as well as others in the area, including
the female caller.

Mr. Burkhardt engaged officers by moving in their direction, despite numerous commands to drop
his weapons and stay where he was, in an aggressive and hostile manner with knives in his
hands pointed at the officers who were trying to effectuate his arrest. There can be no doubt
that a disoriented individual, who officers knew threatened and chased a female with a knife
prior to their arrival, posed a direct and real deadly threat to the officers and others in the
community should the arrest not be made. In addition, deadly force was necessary to prevent
the further commission of crimes by the actor.

Legal Conclusion
The actions taken by Officers
,
and
in shooting Mr.
Burkhardt were justified under the provisions of the Crimes Code authorizing the use of deadly

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force in assisting in the making of an arrest, as set forth in 18 Pa. C.S.A. 508 (a), and in the
prevention of the commission of a crime, as set forth in 18 Pa. C.S.A. 508(d).

In summary, Daniel Burkhardt brought several knives to the home of Darla Wagner and acted in
a threatening manner, refusing to leave the premises despite her requests for him to do so.
Wagner was very afraid, locked up her house and left the area to call 911 and report the incident.
As she was on the phone with the 911 dispatcher she can be heard stating oh my god, oh my
god hes coming after me with the knives. The dispatcher quickly tells her to get to safety and
you can hear what appears to be her running and out of breath for a few minutes until she can
confirm to the dispatcher that she got away. This information was relayed to the responding 3
officers as they were enroute to the scene. Officers responded appropriately by attempting nonlethal means of bringing about compliance to include numerous commands throughout the
encounter, use of a bean bag shotgun to deploy bean bag rounds and a taser deployment.
Despite all efforts by the officers to subdue the knife wielding, non-compliant aggressive acts
being committed by the armed and dangerous suspect, he continued to advance on officers with
the knives displayed and outstretched showing he intended to do harm. Officer
fired his
weapon, knocking the actor to the ground, but he continued his pursuit of harm by again sitting
up, trying to stand and outstretching his hand with the knife pointed at Officer
. All three
officers fired their weapons to stop the threat on Officer
life. The actor was using deadly
force from the outset, targeting the responding officers and refusing to comply. When confronted
with deadly force, the officers responded in a legal and just manner to protect their lives and the
lives of others in the area. At the time of the incident, the officers knew Burkhardt had acted in a
threatening manner toward Darla Wagner by chasing her with a knife.

The events that occurred on March 2, 2016 were set into motion by the actions of Mr. Burkhardt.
A greater tragedy was averted because of the actions of Officers
,
and
.
Officer
was justified in defending his life when he first deployed deadly force by firing two
(2) rounds and striking Mr. Burkhardt. Officer
performed his duty properly. When the
suspect again persisted in his actions by sitting up with at least one knife in his hand, attempted
to stand and lunged the knife toward Officer
, all three officers were justified in defending
Officer
life, their own lives and the lives of others in the area. At that point, Officers
and
had the duty to defend the life of their fellow officer who was in close proximity to the
knife and clearly in danger of death. In this encounter, each officer performed his duties
properly.

The events that occurred on March 2, 2016 were tragic. But a greater tragedy was averted
because of the actions of the officers in question. These officers had a duty to protect and
defend their own lives and the lives of their fellow officers while making sure that the individual
who was clearly a threat to them and to others was arrested or otherwise stopped his
threatening, criminal behavior.

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Based on my careful and thorough review of the facts and the applicable law in this case, it is my
legal opinion that the actions taken by Officers
,
and
were justified under the provisions of the Pennsylvania Crimes Code. Therefore, no prosecution
is warranted.

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