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  • TIMES NEWS FILE PHOTO Stolen truck in which Scott Mackelvey was shot to death by police.
    TIMES NEWS FILE PHOTO Stolen truck in which Scott Mackelvey was shot to death by police.
Published July 02. 2010 05:00PM

"The use of deadly force was justified in this case because such force was necessary to prevent the arrest from being defeated by escape."

That was the ruling by Schuylkill County District Attorney James P. Goodman following a monthlong investigation into the killing by enforcement officers of a Tuscarora man who stole three vehicles, refused to surrender and attempted to harm the police while trying to flee.

Goodman announced his findings at a press conference Thursday afternoon at the courthouse in Pottsville.

Scott Mackelvey, 41, was fatally shot by police officers on the morning of May 25 on the property of Thomas Rowlands, 70 Whitetail Crossing, Wildcat Development, Walker Township. The cause of death was from multiple gun shot wounds.

Goodman reported 24 shots were fired by two state troopers, Cpl. Leo Luciani and Trooper John Sleboda, and an off duty borough policeman, Officer Frank DiMarco, a member of the police force at Saint Clair, who is a neighbor of Rowlands. He responded to the scene to assist police confronting Mackelvey.

Goodman announced the results of his long investigation in which between 20 and 30 residents in the Wildcat development were interviewed, some who saw the action, some who just heard the shooting and some who were on the scene.

His report began with a call to state police that morning around 6:18 a.m., that Mackelvey attempted to steal a tractor-trailer located at 31 Farm Lane in Barnesville. At 6:34 a.m. Mackelvey was illegally trespassing on the property of Wendy Bender, 741 State St., Barnesville. He was reported on the woman's property with a can of beer and was walking without his shirt on.

Mackelvey's actions

Between 6:31 and 6:51 a.m. Mackelvey was reported to have stolen a Jeep dump truck located at 833 Barnesville Drive, Barnesville. Goodman said this truck was recovered a half-mile down the road from Koch's Turkey Farm with a fire extinguisher sprayed inside the cab. Police considered this act a felony crime, theft of a motor vehicle.

After the freightliner truck was stolen state police received calls concerning a truck being driven out of control on Valley Road, which turned out to be the stolen truck operated by Mackelvey.

At 7:55 a.m. state police received numerous phone calls of a freightliner truck being driven erratically through the Wildcat development in Walker Township. Residents expressed concerns to the police for their safety as the truck was running over bushes and going through lawns and even hitting houses. Mackelvey was identified as the driver

Goodman said at 8:12 a.m. Thomas Rowlands called 9-1-1 Center to report Mackelvey had crashed a truck into the trees at his residence at 70 Whitetail Crossing in the Wildcat development. Rowlands reported Mackelvey used a fire extinguisher to spray his lawn and remained at the home until he learned police were seeking him and attempted to hide in the house. Rowlands went outside and informed police who had arrived at his home.

Mackelvey attempted to flee despite commands from police to surrender. He jumped into a truck owned by Rowlands and attempted to get away. Despite continued commands from the police, he attempted to flee by backing the pickup truck down the driveway, ramming an unmarked state police cruiser in which Luciani was seated, accelerating on the gas causing screeches to the tires, forcing the police cruisers to back away a few feet.

Goodman reported Mackelvey continued to use the truck as a deadly weapon in attempting to flee and endangered others, which caused the police to use deadly force to stop his actions.

Actions by police

Goodman reported police took the following actions:

State police dispatched numerous troopers, including state police aviation at 8:04 a.m. and a canine unit, to the Wildcat development to apprehend the man who committed numerous felony crimes. Police notified Tamaqua Area School District at 8:05 a.m. of the dangerous situation, as buses were transporting children to the school buildings during that period.

When Mackelvey emerged from the Rowland residence and attempted to steal his pickup truck, police went into action. First they commanded he get out of the truck. Trooper Sleboda attempted to disable the vehicle by shooting out one of the tires, but this did not stop Mackelvey, as he again rammed the police car of Luciani. Officer DiMarco appeared on the scene to assist the police.

Goodman reported all three officers were in close proximity to the vehicle which had rammed the police car, and believing their fellow officers were in danger of death or serious bodily injury, began to fire on Mackelvey to stop his action. Goodman said while numerous shots were fired into the truck, Mackelvey continued to accelerate as rubber burned and black smoke filled the air.

It was Luciani, Goodman said, who realized Mackelvey had been disabled and raised his hand to cease all further gunfire. Police then rushed to the truck and CPR was administered to Mackelvey but to no avail. Goodman said Mackelvey was pronounced dead of multiple gun shot wounds.

DA's conclusion

Goodman said, "In a case where the police use deadly force, justification is a defense and a police officer may use deadly force when that police officer believes such force is necessary to prevent death or serious bodily injury to himself or to such other persons."

Goodman reported Mackelvey was under the influence of alcohol when he stole three different vehicles and attempted to steal another vehicle and was on a crime spree. Goodman added Mackelvey drove these vehicles in a reckless manner, endangering the lives of many people and putting the lives of the state police and residents of the Wildcat development in danger.

Goodman reported Mackelvey was given many verbal warnings to exit the last vehicle he stole, and instead he chose to use that vehicle as a deadly weapon and endangered the lives of police and private citizens, and placed the police in a very difficult situation.

"The officers did their job and they were justified in using deadly force," Goodman said.

Goodman concluded, "The test to be used in this case is not to look back at hindsight and say what could have been done or what should have been done, but the test is whether the officers acted reasonably under the circumstances that Mackelvey put them in when they had to use deadly force to stop him. It is the conclusion of the district attorney's office of Schuylkill County that the three officers involved in the shooting death of Mackelvey were justified in using deadly force."

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