Jurors may hear about the drive-by shooting that preceded by 13 minutes Antwon Rose II’s death, the judge in the homicide trial of former East Pittsburgh police officer Michael Rosfeld ruled on Monday.
But the teenager’s alleged role in an armed robbery five hours earlier is off-limits for now, Allegheny County Common Pleas Judge Alexander P. Bicket decided. The judge said that may change, however, depending on what emerges during the trial.
Other issues remained unresolved following a hearing Monday morning in which attorneys for each side argued what evidence and testimony should be allowed in Mr. Rosfeld’s homicide trial set to begin Tuesday.
Among them: whether jurors will be asked to consider a range of charges against Mr. Rosfeld, or restrict the focus to first-degree murder, as his attorney, Patrick Thomassey, has requested.
Judge Bicket said in court Monday that he will make that determination during the trial.
“I disagree with Mr. Thomassey, but that doesn’t mean he won’t make a compelling argument to change my mind," Judge Bicket said. "That doesn’t mean he will, either.”
Mr. Rosfeld, 30, stands accused of killing the 17-year-old as the unarmed teen ran from a felony traffic stop minutes after a drive-by shooting in North Braddock.
For a first-degree murder conviction, jurors must find that Mr. Rosfeld’s actions were premeditated.
Antwon was the front-seat passenger in the jitney that was involved in the drive-by that wounded two people minutes before the car was pulled over by then-Officer Rosfeld in East Pittsburgh.
On Friday, Zaijuan Hester, the other passenger in the jitney, pleaded guilty to multiple counts of aggravated assault in connection with the case.
Chief Trial Deputy District Attorney Daniel Fitzsimmons asked Judge Bicket to rule out evidence that could impugn the character of the unarmed teen, including his alleged role in an armed robbery of his employer in the hours before his death.
In a reply filed Monday morning, Mr. Thomassey wrote that it would be unfair to Mr. Rosfeld to not allow him to “present the complete story.” Part of that story, he said, includes whether Antwon had a stolen gun under his seat and an empty magazine in his pocket.
Mr. Fitzsimmons said the prosecution plans to address the two firearms found in the vehicle.
Mr. Thomassey took issue with the prosecution's contention that the evidence it wants to exclude was irrelevant because "Officer Rosfeld was not aware of any of this information" when he pulled over the jitney with Antwon and Mr. Hester, according to his filing.
Other evidence the DA's office seeks to exclude includes video of the drive-by shooting, and latent prints, gun shot residue and DNA evidence from the guns, clothing and the vehicle.
"The video would not be offered as evidence of the victim's character; but as evidence that a violent felony had been committed by the occupants of the vehicle Officer Rosfeld was stopping. These facts, clearly admissible, are relevant to why Officer Rosfeld acted as he did when he encountered the vehicle and its occupants," Mr. Thomassey wrote.
The lawyer argued that information about the gun under Antwon's seat "is pertinent to the law enforcement justification defense which permits the use of deadly force against a person who '..has committed a forcible felony or is attempting to escape and possess a deadly weapon...' "
In an interview in June after his client was arrested, Mr. Thomassey said:
“He thinks he sees a gun in [Antwon’s] hand. He thinks he sees the guy’s arm come up, and acted as a police officer would,” Mr. Thomassey said. “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.”
The criminal complaint against Mr. Rosfeld said the former officer gave conflicting accounts, first telling investigators that he "saw something dark that he perceived as a gun" and then saying, "he did not see a gun when the passenger emerged and ran. When confronted with this inconsistency, Rosfeld stated he saw something in the passenger's hand but was not sure what it was."
In his filing, Mr. Thomassey said he was "prepared to prove" that Antwon stole the 9 mm pistol found under his seat, and which contained his DNA, hours before he was killed. "The facts establish that Rose and his accomplice stole the firearm at gunpoint from Mr. Rose's employer," the filing said.
Mr. Thomassey wrote that the range of evidence -- the gun under Antwon's seat in the jitney, gunshot residue, fingerprint and DNA evidence -- corroborates his Mr. Rosfeld's statement "that he believed that one of the occupants who exited the vehicle as he was taking the driver into custody pointed a gun at him."
The fact that Antwon had a magazine in his pocket that fit the gun under his seat, Mr. Thomassey wrote, "would also support Officer Rosfeld's belief that one of the passengers had a gun in their hand and pointed that weapon towards him."
Prosecutors also filed a motion asking that Judge Bicket place limitations on potential testimony by a use-of-force expert brought by Mr. Rosfeld’s attorneys.
Judge Bicket said that the expert, Clifford Jobe, may testify about what Mr. Rosfeld told investigators following the shooting to explain his use of force, but did not rule on whether he could opine on the state’s use-of-force law.
The jury of six men and six women selected in Dauphin County was to be bused into Pittsburgh Monday.
Matt McKinney: mmckinney@post-gazette.com, 412-263-1944, or on Twitter @mmckinne17. Staff writer Jonathan D. Silver contributed.
First Published: March 18, 2019, 4:53 p.m.
