Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of James C. Putz v. Civil Service Commission, No. 4495, June Term, 1987.
Frank DeSimone, for appellant.
Ralph J. Teti, Chief Deputy City Solicitor, for appellee.
President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 125 Pa. Commw. Page 447]
James Putz appeals a Philadelphia County Common Pleas Court order upholding a decision of the Philadelphia Civil Service Commission (Commission) which, on remand, upheld Putz's dismissal from the Philadelphia Police Department. We affirm.
In Civil Service Commission of Philadelphia v. Putz, 103 Pa. Commonwealth Ct. 529, 520 A.2d 940 (1987) (Putz I), we remanded this matter to the Commission. There, we directed it to make credibility findings and specify which evidence it relied upon to conclude that the charges against Putz were supported.
We detailed the incident leading to Putz's dismissal in Putz I. Following pursuit of a suspect in a high-speed car chase and then on foot, Putz fired two gunshots, the second shot wounding the suspect in the upper torso.
The Commission on remand found that Putz was properly discharged for conduct unbecoming an officer because he violated departmental directives prohibiting the use of deadly force. Those directives forbid an officer to discharge his service revolver unless he believes that a person has used or is about to use deadly force. The Commission expressly relied on Putz's own testimony that he did not see the suspect carrying a weapon when he pursued him on foot and discredited his testimony that he had earlier seen the suspect with a gun.*fn1 It also relied on evidence indicating that the suspect was shot in the back. The police radio transmittal transcript for the day
[ 125 Pa. Commw. Page 448]
of the incident discloses that a responding police officer found a male "shot in the right rear chest." Police Radio Transmittal Transcript, 8/12/81. This evidence, taken as a whole, is sufficient to support the Commission's conclusion that Putz violated departmental directives by unreasonably using deadly force against an unarmed fleeing suspect.
Notwithstanding Putz's argument that the Commission is bound by its determination that the fleeing suspect's testimony was not credible in his version of the chase, the Commission accepted that part of Putz's testimony as related above. This acceptance of part of Putz's testimony and any reasonable inferences derived therefrom are of course within the Commission's prerogative as fact-finder and cannot be disturbed on appeal. Civil Service Commission of Philadelphia v. Saladino, 47 Pa. Commonwealth Ct. 249, 408 A.2d 178 (1979). The Commission may rely on the testimony and the back-up officer's report that the suspect was shot in the back in discrediting Putz's account that he believed the fleeing suspect had stopped and turned to shoot him.
Moreover, the evidence relied upon by the Commission to support Putz's neglect-of-duty charge is supported by the police radio transmittal transcript on the day of the incident. Putz, in response to reports that weapons had been discharged, replied that the reports were "unfounded." Transcript, 8/8/81, p. 2. This testimony supports the neglect-of-duty charge because departmental directives require immediate notification when a weapon is discharged. Putz's explanation that he was unaware ...