The Death of Antwon Rose II

Lethal force, criminal homicide, and bond: Questions about Officer Michael Rosfeld’s case, answered

What’s he charged with? What happens next?

Allegheny County Courthouse.

Allegheny County Courthouse.

Rossilynne Culgan / The Incline
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Just over a week after the fatal shooting of 17-year-old Antwon Rose II prompted protests and nationwide calls for police accountability, Allegheny County detectives on Wednesday charged East Pittsburgh Officer Michael Rosfeld with a single count of criminal homicide.

With so much information being made public at once, we wanted to help clarify what happens next, how this process works, and what it means.

Background

Michael Rosfeld mugshot

Michael Rosfeld mugshot

Courtesy of Allegheny County

East Pittsburgh Police Officer Michael Rosfeld has been charged with a single count of criminal homicide.

Rosfeld pulled over a car that Rose was traveling in on the evening of June 19 in the borough of East Pittsburgh, about 11 miles southeast of the City of Pittsburgh.

Authorities say the vehicle, a Chevy Cruze, was involved in a non-fatal drive-by shooting in nearby North Braddock minutes earlier.

Rosfeld was alone when he attempted to remove three individuals, including Rose, from the Cruze. When Rose and another teen fled on foot, Rosfeld opened fire, striking Rose three times from behind. Rose was pronounced dead roughly half an hour later.

In a press conference Wednesday morning, Allegheny County District Attorney Stephen A. Zappala Jr. said neither of the fleeing teens were armed when they were fired upon by Rosfeld. He said based on the investigation, Rosfeld had no reason to believe either of the fleeing teens posed a deadly threat.

Zappala said Rosfeld was charged after changing his statement to say he didn’t see a weapon, adding, “We took a statement from Rosfeld and he indicates at no time was a weapon in play.”

Patrick Thomassey, Rosfeld’s attorney, disagreed, telling WTAE-TV the officer had reason to be afraid.

“I think that’s a very reasonable belief, considering the fact that the other shooting had happened a mile away, 11 minutes had only passed, the car that he’s stopping has windows shot out in it, and he knew that from being at the first crime scene. The officer knew that,” he said. Thomassey did not return repeated requests for comment from The Incline.


Read more: Officer Michael Rosfeld charged with homicide in the fatal shooting of Antwon Rose II


What does the charge mean?

Criminal homicide is a general charge encompassing seven different crimes or gradations.

“A defendant may be charged generally with the crime of Criminal Homicide, but it is the specific charge which counts. There is Murder of the first degree, second degree, third degree, Voluntary Manslaughter and Involuntary Manslaughter. Each one is different, and the sentencing for each is not the same,” according to the Rubin, Glickman, Steinberg & Gifford law firm in Philadelphia.

State statute also includes death by drug delivery and death of a law enforcement officer under criminal homicide.

What’s the difference?

Generally speaking, malice and intent.

Under Pa. Code, first-degree murder is defined as “an intentional killing” or a willful, deliberate and premeditated killing. It is the most serious murder charge available.

Second-degree murder is defined as a homicide committed while a defendant was engaged in the perpetration of a felony, such as an armed robbery.

Third-degree murder is all other kinds of murder. A conviction for third-degree murder does not require the prosecution prove intent to kill, as in first-degree murder, but it still requires they prove malice.

Voluntary manslaughter can mean a killing committed under a sudden and intense passion — also called a passion killing — following a provocation by the person killed. It can also mean an accidental or negligent killing of someone else committed when a defendant is trying to kill the person that caused the provocation. In Pennsylvania, a killing that a defendant believed to be justified at the time but which proved unjustified or unreasonable in hindsight also qualifies.

Involuntary manslaughter is essentially a negligent homicide. This charge is often applied in cases of car crashes where a driver didn’t intend to kill anyone but did due reckless and/or negligent behavior.

As this relates to Rosfeld’s case, Zappala said prosecutors will push for a first-degree murder conviction for Rosfeld, and added, “We think the evidence supports third-degree murder, manslaughter and involuntary manslaughter charges — but we also think we have the right to argue murder in the first degree.”

However, attorney Thomassey told WTAE-TV that this is not a murder case.

“I don’t know if there were mistakes made in police procedure. That’s to be determined later,” he said. “But I don’t see it as a murder case. […] It could be a voluntary manslaughter or involuntary manslaughter. I don’t see it as a murder case. I don’t.”

What’s the difference between homicide as a cause of death and criminal homicide?

In the medical sense, homicide means a death of one person at the hands of another. This includes intentional deaths, accidental deaths, negligent deaths, etc.

When Allegheny County’s Medical Examiner ruled Rose’s death a homicide, some mistakenly equated that with a legal judgement. It is not. The ME’s ruling simply confirmed that Rose died as a result of gunshots fired by another person, in this case, Rosfeld.

The legal determination came Wednesday when officials charged Rosfeld with a count of criminal homicide, meaning they believe Rose’s death rises to the level of a crime and meets one of the definitions laid out above.

How does the sentencing scale work?

According to Pennsylvania code, first-degree murder convictions carry an automatic sentence of life without parole. They can also carry the death penalty, if the prosecutor decides to pursue it. (A death sentence moratorium put in place by Gov. Tom Wolf in 2015 remains in effect now.)

Second-degree murder convictions carry a mandatory life term.

Third-degree murder convictions carry a penalty of 20 to 40 years in prison.

Voluntary manslaughter is a felony of the first degree, punishable by up to 20 years in prison.

Involuntary manslaughter is punishable by up to five years in prison.

When can an officer use lethal force?

William Terrill, a professor with Arizona State University’s School of ​Criminology & ​Criminal Justice in Phoenix, told The Incline that a 1985 U.S. Supreme Court decision in Tennessee v. Garner established that officers must believe their life or the life of another is in imminent threat to permit the use of deadly force against a fleeing suspect. This legal precedent is also known as the fleeing felon rule.

Tom Nolan, a 27-year veteran of the Boston Police Department who’s now an associate professor of criminology and criminal justice at Merrimack College, said police are not trained to shoot unless there is “a threat to an officer or innocent bystander or an imminent danger of serious bodily injury or death.” He added, “Absent that there’s no justification.”

Critics argue these parameters are inconsistently applied and that officers are too often given the benefit of the doubt in a court of law.

In cases of individuals being shot from behind or while fleeing, Seth W. Stoughton, an assistant professor of law at the University of South Carolina, said there are cases in which a fleeing suspect can reasonably be perceived as a threat, but that the bar is even higher than normal.

“A fleeing subject can present such a threat, but only under fairly rare and rather extreme circumstances. My go-to clear example is a confirmed serial killer armed with a handgun who is running toward an occupied playground,” Stoughton explained.

In Rosfeld’s case, Zappala said neither Rose nor the other fleeing suspect were armed and because of that Rosfeld was not in immediate danger — nor was the public at large.

“You can’t take someone’s life under these circumstances,” Zappala told reporters.

But Thomassey told the Post-Gazette, “His duty as a police officer — this car is fleeing the scene of an attempted homicide. The use of deadly force is completely justified in that scenario, in my legal opinion.”

How often are police charged and convicted for on-duty shootings?

Between 2005 and 2017 there were 84 officers across America arrested on murder or manslaughter charges for on-duty shootings, according Philip Stinson, an associate professor in the criminal justice program at Bowling Green State University.

Only 30 were convicted of a crime resulting from those cases. Convictions are even rarer for an officer involved in the shooting of a black person.

What is unsecured bail and how does it work?

Rosfeld turned himself in early Wednesday and was released on $250,000 unsecured bond, meaning he was not required to provide any money or collateral in securing his release from custody.

Unsecured bail means an agreement is signed by a defendant in which they acknowledge they’ll be financially responsible for a fixed amount of money if they fail to appear for hearings or fail to comply with the conditions of their bail or bond.

Secured bail — also known as cash bail — requires a defendant to pay that money or a portion of that money up front and risk forfeiting it if they fail to show for hearings or fail to meet the conditions of their bail or bond.

The magisterial district judge who set Rosfeld’s bail, Regis C. Welsh, told WTAE-TV: “I make my decision on bond based on circumstances, based on prior record and based on the possibility or probability that a defendant might flee. In this case there was no question in my mind, the defendant was not a flight risk.”

Bail is not supposed to be punitive, but rather a means of ensuring a defendant returns to face the charge or charges against them. Judges have latitude in determining which defendants they see as a flight risk. Bail reform advocates argue this risk-assessment process is subjective and often inconsistently applied.

President Judge Jeffrey A. Manning of Allegheny County Common Pleas Court modified Rosfeld’s bail later Wednesday to include electronic home monitoring while he is out on bail, according to Zappala’s office.

Demonstrators gathered outside Rosfeld’s house Wednesday night.

What happens next?

Rosfeld is scheduled for a July 6 preliminary hearing.

Preliminary hearings, which are often rescheduled for a later date, are one of the first steps in the trial process and the point at which a magisterial district judge decides if a case should proceed to the trial stage and a higher court.

Preliminary hearings are conducted in front of a judge, without a jury. The judge is tasked with deciding if a prima facie case — Latin for “first glance” — exists and if enough evidence exists to support the case being moved forward. If so, Rosfeld’s charges would be bound over to Allegheny County’s Court of Common Pleas. Sometimes all the charges are bound over, sometimes only some of the original charges survive, and sometimes none do.

According to Nolo, in a trial, the prosecution has the burden of proving their case beyond a reasonable doubt. In a prelim, “the prosecution only has to show probable cause” that the accused committed the offenses charged.

Defendants can also waive their preliminary hearings, sending the case to common pleas.

What happens after a preliminary hearing?

Regardless of whether a preliminary hearing is held or waived by a defendant, if charges remain, those charges are then kicked up to the county’s Court of Common Pleas. The case is then scheduled for formal arraignment.

According to Pennsylvania Code, “the main purposes of arraignment are: to ensure that the defendant is advised of the charges; to have counsel enter an appearance, or if the defendant has no counsel, to consider the defendant’s right to counsel; and to commence the period of time within which to initiate pretrial discovery and to file other motions.”

If a defendant decides to accept a plea agreement, assuming one is offered, a plea hearing will be scheduled. If a defendant decides to go to trial, proceedings will be scheduled.