"The Potter County District Attorney’s office has closed the homicide investigation against the SERT member and no charges will be filed. The end result of the events on March 7, 2010 was not the desired result of the Pennsylvania State Police, however it was a necessary result after all attempts at a successful negotiation had failed over the course of approximately 5½ hours. On behalf of the Commonwealth of Pennsylvania, we send our condolences to the family for their loss and thank those Troopers that were under fire for their bravery and service to our community."http://www.northcentralpa.com/news/2010-07-01_sert-officer-used-justifiable-lethal-force
SERT officer used 'justifiable lethal force'
By Potter County District Attorney's Office
July 1, 2010
COUDERSPORT — The Potter County District Attorney, Andy J. Watson, has officially declined prosecution against the Pennsylvania State Police SERT (Special Emergency Response Team) member who fatally shot Joshua C. Wheeler on March 7, 2010. Upon thorough review of the comprehensive and detailed police report by Coudersport-based Pennsylvania State Police, the Commonwealth has concluded that the SERT member’s use of lethal force was justifiable pursuant to 18 Pa.C.S.A. §506 and §508.
§506 provides that:
The use of force upon or toward the person of another is justifiable to protect a third person when:
- The actor would be justified under §505 of this title (relating to use of force in self-protection) in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;
- Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
- The actor believes that his intervention is necessary for the protection of such other person.
§505 provides that deadly force is justifiable if the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping, or sexual intercourse compelled by force or threat. For reasons discussed below, the SERT member was justified in using deadly force against Mr. Wheeler as he would have been justified in using said force for the protection of himself under §505 and such force was necessary to protect a third person under §506. Based upon the investigation, the SERT member unquestionably believed that his intervention in using deadly force was necessary for the protection of persons, including but limited to, Pennsylvania State Troopers on scene, neighbors, and bystanders.
Additionally, deadly force was authorized under §508 which provides:
A peace officer, or any person 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:
- Such force is necessary to prevent the arrest from being defeated by resistance or escape; and
- 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.
The SERT member’s use of deadly force was likewise justifiable under §508 as he was summoned or directed to assist Pennsylvania State Troopers on-scene who were attempting a lawful arrest for a felony. Deadly force was authorized due to the fact that the SERT member believed that such force was necessary to prevent death or seriously bodily injury to himself and other Troopers, neighbors, and bystanders at the scene. Alternatively, deadly force was authorized due to the fact that such force was necessary to prevent the arrest from being defeated by resistance and the person to be arrested had committed and was actively in the course of committing a forcible felony and/or had indicated that he would endanger human life or inflict serious bodily injury to others.
On March 7, 2010 at approximately 9:46 a.m., an anonymous call was received by the Coudersport based Pennsylvania State Police advising that Joshua C. Wheeler was walking around in Harrison Valley near his residence on School Street while drunk, acting crazy, and carrying what was believed to be an AK-47 assault rifle. Due to a prior conviction, Mr. Wheeler was prohibited from possessing a firearm which is a felony. Pennsylvania State Police were dispatched to the scene and Mr. Wheeler barricaded himself in his residence. Multiple attempts were made to resolve the situation and negotiate a peaceful resolution by Troopers on scene, family, friends, and a professional SERT negotiator with negative results. Mr. Wheeler indicated to Troopers and negotiators on scene that the situation would end in bloodshed and him leaving his residence in a body bag.
After hours of negotiation, at approximately 2:30 p.m. Mr. Wheeler began firing rounds from what was determined to be a MAC-90 assault rifle at Troopers, with multiple rounds striking a Trooper’s cruiser, an occupied private residence across SR 49, and buildings in the vicinity. Over the next 43 minutes, Mr. Wheeler continued to sporadically fire a total of 84 rounds from his residence. Continued attempts at negotiation were unfruitful with Mr. Wheeler hanging up on the SERT negotiator and making continued threats of bloodshed. During this time, SERT members arrived and established a secure perimeter. At 3:13 p.m., Mr. Wheeler fired a final burst of shots towards Troopers and the SERT member fired a single fatal shot striking Mr. Wheeler.
It has been determined that the SERT member’s actions were completely reasonable and necessary, with no less restrictive alternative to deadly force being available in order to protect Troopers and bystanders at or near the scene. All available resources and options had been exhausted prior to authority being granted to use lethal force to the SERT member.
An investigation revealed that Mr. Wheeler had a blood alcohol content of .21%, excessive levels of anti-depressants in his system, and had been suffering from a series of unfortunate events in his life, including a recent DUI arrest for which he was facing jail time in the state of New York, all of which contributed to these unfortunate events.
The Potter County District Attorney’s office has closed the homicide investigation against the SERT member and no charges will be filed. The end result of the events on March 7, 2010 was not the desired result of the Pennsylvania State Police, however it was a necessary result afte
r all attempts at a successful negotiation had failed over the course of approximately 5½ hours. On behalf of the Commonwealth of Pennsylvania, we send our condolences to the family for their loss and thank those Troopers that were under fire for their bravery and service to our community.
Any further questions can be directed to Andy J. Watson, District Attorney of Potter County, One North Main Street, Suite 215, Coudersport, PA 16915, (814) 274-9450.