In March 2020 and November 2021, Pennsylvania State Police Trooper Jay Splain shot and killed two Lebanon County residents.
They were his third and fourth fatal officer-involved shootings over a span of 15 years, according to reports first published by the New York Times.
In both of the Lebanon County cases, involving Charity Thome on March 16 and Andy Dzwonchyk on Nov. 7, their respective family members filed civil lawsuits seeking financial compensation against Splain and other troopers who were involved in these incidents.
Last week, U.S. Middle District Court Judge Sylvia Rambo set a court date of June 5, 2023, for the trial involving the Thome lawsuit.
In the Dzwonchyk case, the two parties settled out-of-court in late October for $1.75 million. The Dzwonchyk settlement occurred a few days after Lebanon County District Attorney Pier Hess Graf found the Dzwonchyk shooting was justified in a 49-page report that was released to “the people of Lebanon County.”
As the Thome case – which was also found by Hess Graf to be a justified shooting – heads towards a civil court trial date, Paul Messing, a Philadelphia-based attorney who represented the Dzwonchyk estate, spoke to LebTown about the findings his law firm’s investigation yielded in the months prior to settlement of that lawsuit.
Messing said the forensics of the Dzwonchyk shooting don’t align with the investigative findings of the DA’s office and the Lebanon County Detective Bureau. The detective bureau is the criminal investigative unit of the DA’s office and is the agency that investigated both officer-involved shootings in Lebanon County to determine whether the officers were criminally liable in those cases.
“There’s some serious questions that were raised by the district attorney’s investigation and the sequence of events, and some of it might be in dispute,” said Messing about the Dzwonchyk case. “But what I think actually is not in dispute is whether or not the trooper in this case resorted, inappropriately and wrongly, to the use of deadly force. And for that, it’s really not necessary to look at the varying accounts from the individuals who were there.”
Messing said the forensic evidence disputes Splain’s explanation to the DA’s office of what happened the evening that the 40-year-old Dzwonchyk was shot and killed.
“What you look at is the forensics and that makes it clear, I think, that the version that was accepted by the district attorney’s office is fundamentally flawed,” said Messing. “We have experts that we consult on this, but a lot of it is also just common sense.”
Messing said the findings in the autopsy report have raised a number of red flags since five bullets struck Dzwonchyk in a tight pattern. For Messing, the pattern of the bullet wounds means that the car was either stationary or barely moving when Splain fired the shots.
Interviews of Splain state that Dzwonchyk “hit the gas pedal and accelerated his car forward, dragging Trooper (Justin) Achenbach,” who had explained that he had “leaned his body into the vehicle through the open, driver’s side window and attempted to grab the steering wheel and unlock the decedent’s car door” after having “directed Dzwonchyk to exit his vehicle multiple times.” The troopers said Dzwonchyk refused to exit and when the “troopers tried to open the door to the vehicle; the decedent locked the door.
Splain testified that after the car moved forward and then backwards that he believed that Dzwonchyk was trying to escape arrest and that “I knew if I didn’t end this, either [Trooper Achenbach] or I was going to get seriously injured by this car or killed.” The DA’s report states that “Splain chased the vehicle and fired his weapon.”
“While there may have been some (car and bodily) movement, the person who fired these shots, which was Trooper Splain, was pretty much in about the same spot,” said Messing. “What immediately comes to mind is, wait a minute, if his partner is struggling with Andy, how did he get off these five shots without shooting his partner and, you know, how close was he so that he was actually able to connect five times within a few inches of each other?”
Messing said this calls into serious question the version of this incident that was relayed by Splain to the district attorney and her investigative team. The report issued by the DA’s office noted that the investigative team consisted of Chief Detective Jonathan Hess, Detective Sgt. Todd Hirsch, and detectives David Shaffer and Stephen Kiefer. The report also says these individuals, along with Hess Graf and First Assistant Nichole Eisenhart, generated the final rulings and conclusions contained in the report.
While the report does not provide any details concerning the coroner’s autopsy report, it does indicate on page 4, line 7, that the investigative team did conduct a “review of autopsy photographs.”
“How, as a matter of common sense, is it possible that someone (Andy) who is involved in this struggle inside a motor vehicle, be shot five times in and about the head by a trooper outside of the car without shooting the partner, without inflicting any wound on the partner?” said Messing. “So, that’s the core of what happened out there. It could not have happened the way the trooper claims and the way the district attorney found that it occurred. It just defies common sense, the laws of physics and the science of forensics.”
Another finding that Splain “chased” Dzwonchyk’s vehicle as Trooper Justin Achenbach – who reportedly had reached into the car and was being dragged while Dzwonchyk aggressively accelerated his vehicle forward – is questionable, added Messing. He added that Pennsylvania State Police spokesperson David Boehm had said that, “I don’t think (the vehicle) was very fast at all,” at a press conference the day after the shooting.
“It’s very, very hard to say because there were no tire tracks or spinning wheel evidence at the scene,” said Messing about whether he believes Dzwonchyk drove aggressively in the grassy lane where the incident occurred, “but it doesn’t look like it (the distance the car traveled) was by more than 20 or 30 feet, based on what I saw. At the press conference the day after the shooting, the officer made clear that the car was moving very slowly. So, all of this just seems, and is so clearly, to have been completely unnecessary and excessive and tragic.”
Messing noted that PSP policy requires troopers to de-escalate situations and that reaching into a car is not a normal part of their standard protocol.
“It is fanciful and clumsy as an explanation for what actually happened here,” said Messing. “The police are governed by laws and procedures and among them – apart from the fact that you don’t use deadly force under the circumstances as presented in this case – is that police officers, as a matter of generally accepted practice, are not supposed to reach into a moving car, are not supposed to reach into a car. That may happen on television, but you are not just supposed to do that.”
In addition to believing the troopers failed to de-escalate the situation, Messing feels they should not have even attempted to arrest Dzwonchyk since, as noted in the DA’s report, the “final PFA Order prohibited contact between A.H. and the Decedent unless that contact pertained to the parties’ shared, minor children.”
The DA’s report states two troopers, Splain and Achenbach, were called to a private residence on the evening of Nov. 7 to investigate the violation of a Protection From Abuse (PFA) order that was filed by Amy Hastings, Dzwonchyk’s long-time companion who was also the mother of his two sons, in early October.
After weeks of legal wrangling during which time Dzwonchyk filed a counter PFA against Hastings and a Temporary Order against Dzwonchyk eventually became a Final Order on Oct. 22, that agreement still allowed Dzwonchyk to have temporary custody and/or partial custody and/or visitation as arranged by the parents, according to page 13 of the DA’s report.
Messing said Dzwonchyk had custody of his sons on the evening of the shooting and had contacted Hastings about getting a thermometer to take the temperature of the ill child.
“You can argue about whether he actually violated this stay-away order,” said Messing. “Under the terms of the stay-away order, he was not supposed to have contact with Amy – unless it involved the children. So there’s an argument to be made here that he didn’t violate the stay-away order and so there was absolutely no basis for his detention or his arrest. And that just compounds the seriousness and the tragedy of what happened here. There was no reason for this kind of force to be used under these types of circumstances.”
The lingering question in Messing’s mind is what should happen to a trooper who has shot four people, including three of whom he said were unarmed and all of whom presented no imminent risk of harm?
“This is a real catch-22,” said Messing. “In situations like this, the administrative side of law enforcement agencies are severely restricted in the disciplinary actions and the assignments they can make by restrictions imposed by collective bargaining agreements. This is true in Pennsylvania and in many other states.”
When asked about Splain’s employment status, an unidentified PSP spokesperson told LebTown that “we can confirm that Trooper Splain is no longer serving in a patrol unit.”
Details as to what area of law enforcement Splain is currently serving in or what his specific duties are are unclear at this time.
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