Affidavit of Probable Cause - Commonwealth v. David Manilla

December 17, 2010

Commonwealth v. David Manilla
Affidavit of Probable Cause

Your affiants are Bucks County Detectives Martin McDonough and Robert Potts, and Bucks County Conservation Officer John Papson from the Pennsylvania Game Commission. Detectives McDonough and Potts are Act 120 certified police officers and are employed by the Bucks County District Attorney's Office.

On November 29, 2010, at approximately 12:39 PM, David Manilla called Bucks County 911 to report a "hunting accident." During the phone call, David Manilla reported that he found a body in the creek in the rear of 1155 California Road in Richland Township, Bucks County. He further reported that the victim appeared to be a hunter and that he appeared to be dead. Manilla did not provide the 911 operator with any information regarding him firing an illegal high powered rifle in the immediate area where the victim's body was found just prior to finding the deceased.

Richland Township Police were dispatched and responded to 1155 California Road. At 1246 hours, Sgt. Ficco arrived on scene and met with David Manilla. David Manilla advised that he, Michael Marino, and Robert Monestero were hunting on his property that morning when they came upon a dead body in the creek. Manilla drove Sgt. Ficco and paramedic Larry Grake (St. Lukes Emergency Transport) to the stream at the rear edge of his property on his ATV where Sgt. Ficco and the paramedic assessed the male Caucasian victim, later identified as Barry Groh (DOB/04-24-1958), in the creek and determined that he did not have any signs of life. Either Sgt. Ficco or paramedic Grake commented that it appeared that Groh may have died as a result of a heart attack after dragging the deer from the woods. Mike Marino and Robert Monestero had walked down to the creek after police arrival and were present with Manilla when the comment about the possibility of a heart attack was made.

Manilla, Marino, and Monestero provided police with their names and contact information and left the scene shortly after police had arrived without providing additional details of the morning's hunt, specifically, that Manilla had illegally fired a .30-06 rifle in the immediate area where the victim was found just prior to "discovering" the victim's body. The three men then left the scene unbeknownst to Richland Township Police Officers Sgt. Ficco or Officer Raymond Aleman. During subsequent interviews in the days following the shooting, Marino and Manilla advised investigators that they believed they were free to leave after giving them their names and contact information.

At the time that the victim was discovered, his hunting vest, which contained an orange colored upper portion for hunter safety was hanging nearby on a bush on the bank of the creek closest to Manilla's property. There was no bullet hole in the left arm area of this piece of clothing, and the clothing was dry, which indicates that the piece of clothing had been removed by the victim prior to him being shot. The victim's bright orange hat was found on the bank of the creek closest to Manilla's property in the area of the victim's feet, suggesting that it had fallen off the victim's head. According to the victim's son, his dad never removed his hat while in the field during a hunt. The victim's hunting license, driver's license, and cell phone were all found among his possessions. A dead deer was found in the stream a few feet away from Groh. The deer had been tagged by Groh with the time of 10:15 AM, indicating the approximate time he had shot the deer.

Bucks County Coroner Harvey Giebel subsequently arrived on scene and pronounced Groh dead. A preliminary examination of Groh revealed a gunshot wound through the upper part of his left arm and into the left side of his chest.

Pennsylvania Game Commission officers located a tree stand and shotgun in the vicinity of where the victim's body and the deer were found. The officers followed the path left by Groh from that area some 275 yards across the creek from Manilla's property onto Richland Township "open space" property to the area where Groh had likely shot his deer.

At approximately 3:22 PM, Wildlife Conservation Officer John Papson went to Groh's residence and spoke with the deceased's wife, Theresa Groh. She related that her husband Barry Groh had gone hunting that morning and had called her and told her that he had shot a deer. Barry Groh asked his wife to have their son call him when he was out of school to help him move the deer. While on scene near the victim's body, Richland Township Police officers encountered the victim's son, Justin Groh walking along the creek on his way to assist his father Barry Groh with his deer. Justin Groh was taken from the scene to allow authorities to remove his father's body.

It was subsequently determined after Detective McDonough searched the deceased's cell phone call history that this phone call to his home (wife) was made at 10:28 AM on November 29, 2010. This time correlates to the approximate time the victim had tagged his deer.

At approximately 4:10 PM Bucks County Detectives, including Robert Potts and Martin McDonough arrived on scene and identified a single residence on the property as well as a number of other outbuildings including a main barn, garage, and another building that is south of the main barn. The distance from the buildings to the location where Groh was found was measured to be approximately 2343 feet in a straight line across an open harvested corn field.

During a walk-through of the property, investigators observed several piles of fresh undisturbed corn in three different locations of the cornfield between the buildings and the rear of the property where the victim was found. Game Officer Papson related that placing piles of corn such as those observed at the Manilla property is commonly referred to as baiting, in which hunters place the corn in open areas as bait to lure deer or other game in order to shoot them. This practice is illegal in Pennsylvania under Title 34, the Pennsylvania Game and Wildlife Code, Section 2308(a)(8).

At approximately 4:50 PM, Bucks County Coroners Myron Cole and John McGee conducted a preliminary examination of Barry Groh and his clothing. During that examination, Deputy Cole recovered a projectile (bullet specimen) that was located inside Groh's clothing. The recovered projectile was turned over to Bucks County Detectives who delivered the projectile to Montgomery County Detective and ballistics expert John Finor for examination and comparison analysis.

On November 30, 2010, Forensic Pathologist, Dr. Ian Hood, performed an autopsy on the body of Barry Groh and determined the cause of death to be a gunshot wound to Groh's arm and chest, and the manner of death to be homicide. According to Dr. Hood, the victim would have expired in less than a minute after his receiving the fatal gunshot wound. Dr. Hood noted that the bullet caused massive damage to the victim's aorta causing him to lose a significant amount of blood. Dr. Hood opined that the bullet appeared to have been fired from a high powered rifle from a distance.

At approximately 11:00 AM, the same date of the shooting of Groh, Brian Schrier and his two teenage daughters were hunting on his property from a tree stand, adjacent to David Manilla's property when Brian observed an ATV drive by carrying two men dressed in orange travelling towards the bottom of the neighboring property. Shortly thereafter, the ATV approached again. The driver was carrying a long gun (rifle) in one hand while driving the ATV. The barrel of the rifle was pointed in Brian's direction as the ATV approached his location. Brian called out for the driver to point the gun in a safe direction, and the driver complied by pointing the barrel of the gun into the air. Brian observed the driver to be David Manilla, the owner of the adjacent property. Manilla told Brian that he was hunting with a friend who was a former DA (Michael Marino). Brian recognized the gun Manilla was carrying to be a .30-06 pump rifle. Brian told police that he was aware that it was illegal in Bucks County to hunt with such a rifle. Carrying a loaded rifle in (on) a vehicle in motion is a violation of Title 34 Section 2503(a).

On November 30, 2010 Detectives Robert Potts and Greg Langston of the Bucks County District Attorney's Office interviewed Michael Marino and Robert Monastero at Marino's home. Both Marino and Monestero stated that they were members of the defendant's hunting party on November 29, 2010, and that on the date of the shooting, Marino and Monestero arrived at the defendant's property at 1155 California Road at approximately 11:30 AM. When Monestero and Marino arrived, they met with the defendant. Marino, Monestero and defendant Manilla began hunting on the defendant's property within fifteen minutes of their arrival. Monestero stated that the defendant had both a shotgun and a rifle that day. Both Marino and Monestero stated that they knew that they were hunting in a "shotgun only" hunting zone, and that it was illegal to hunt with a rifle in that area. According to Monestero, the defendant said that he had the rifle because he "saw a wounded deer and would use the rifle to put the deer out of its misery" if he came across it.

According to Marino and Monestero, the hunting party planned on hunting three sections of the defendant's property. Both Marino and Monestero had shotguns. According to Marino, during the first "drive" Manilla was armed with a twelve gauge shotgun. After the first "drive" in the left wooded area of the property, the three walked back to the clubhouse, a separate structure located adjacent to the main residence on that property, where Manilla exchanged the shotgun for a .30-06 rifle. According to Monestero, during the second "drive" into the right wooded area, the defendant Manilla fired a shot with his rifle. Marino stated that he also heard the shot, but that he did not see any deer. Manilla later told Marino that he had shot at a deer.

During the third "drive" all three got aboard Manilla's ATV and set off to hunt on the extreme rear edge of Manilla's property. Marino sat on the front of the ATV, Manilla was driving, and Monestero sat on the back of the ATV facing to the rear. Monestero stated that when they arrived at the end of the corn field (approximately six hundred yards from the house) Manilla stopped the ATV and said that he saw a deer across the stream. Manilla got off the ATV and fired a shot. According to Marino, the three were driving across the corn field when Manilla announced that he saw a deer and almost immediately fired a shot. Both Monestero and Marino advised detectives that they did not see the deer before Manilla shot, and did not see or hear a deer after Manilla fired the shot. According to Marino, both of the shots that Manilla fired during the hunt were fired from the .30-06 rifle.

Monestero stated that Manilla then left his rifle at the ATV and walked towards the shot in a zigzag pattern. Marino and Monestero stayed with the ATV. After a few minutes, the two heard Manilla yell "man down!" Monestero and Marino then went to the stream. Monestero estimated the stream to be approximately sixty yards from the ATV. The two then observed a Caucasian male on his back in the creek of about two to three inches of water, with a dead deer lying next to him.

On Wednesday December 1, 2010, detectives interviewed David Manilla at his office. At the conclusion of the interview, an attorney for the defendant turned over to detectives the rifle Manilla possessed on November 29, 2010 during the hunt, a Model 760 Gamemaster pump action .30-06 rifle, serial number 469759 with a Redfield 3x9 scope. A sling and an empty magazine were also turned over to detectives. When the defendant turned the rifle over to detectives, detectives observed that the muzzle end of the barrel had been "plugged" with dirt. The rest of the rifle was otherwise clean, especially the outside of the end of the barrel where the "dirt plug" was observed. This rifle was later delivered to Montgomery County Detective and firearms examiner John Finor for examination and comparison. When asked about the ammunition, Manilla advised detectives that he no longer had any ammunition for that rifle.

On December 2, 2010, Michael Marino was again interviewed when he met detectives at Manilla's Richland farm property. Marino pointed out the location where Manilla stopped the ATV and fired the second shot from his rifle that day. Marino then pointed out the direction in which the shot was taken by Manilla. County Detectives observed that the direction of Manilla's shot, as pointed out by Marino, was consistent with where the victim Groh was hit and his body was found. During the walk through, Marino "advised" detectives to look for the shell casing from Manilla's rifle, telling them that the "shell casing is there" referring to the location where Manilla had fired the second shot from his rifle that day.

On Friday December 3, 2010, while searching the farm property of David Manilla for the spent shell casing fired from the rifle possessed by David Manilla on November 29, 2010, Detective Bob Potts recovered a .30-06 Springfield brass casing manufactured by Winchester. This shell casing was recovered from the same general location where all three hunters advised detectives that Manilla fired the second shot. The shell casing was subsequently delivered to Detective John Finor of the Montgomery County Detectives Bureau for examination and comparison.

On Saturday December 4, 2010, County Detectives met with David Manilla, his attorneys David Farrell and Richard Winters and a private investigator at his farm at 1155 California Road. Manilla walked the detectives to the locations where he hunted and where he had fired shots from his .30-06 rifle on November 29, 2010. Manilla stated that he probably ejected the shell casing from this second fired shot at the place where he stood when he fired, but stated "I was so upset, I'm not sure." Manilla stated that he left the rifle against a tree near the ATV when he jumped down into the creek bed. Manilla stated that he saw the body in the creek when he was returning to the spot where he had previously crossed the creek. Manilla stated that he saw the head of a deer before he shot, but was not able to determine whether it was a doe or a buck. Manilla stated that he had not dropped his rifle while hunting, and expressed surprise when asked how the scope of the rifle had been broken. According to Manilla, no one else had possession of the rifle between Monday and the time he turned it over to detectives on December 1, 2010. Manilla did not offer any explanation as to how the plug of dirt had gotten into the barrel of his .30-06 rifle.

During this investigation, Your Affiants and other investigators have been present at the crime scene on numerous occasions between the date of the shooting and this date. While collecting measurements and photographs of the crime scene and various pertinent locations at the scene, Your Affiants stood at the location where the .30 caliber cartridge case was recovered. This was the same approximate location which David Manilla, Michael Marino, and Robert Monestero all identified as being the site where David Manilla fired the .30-06 Remington rifle toward the rear of his property line and in the same general direction as the victim's final resting place in the creek bed.

Your Affiants are certain that when standing at the same approximate location from which David Manilla fired the .30 caliber rifle a person of average height would not be able to see the deer lying in the creek where it was found next to the victim, due to the slope in the property and depth of the creek bed. Your Affiants also observed that while standing at the location where the .30 caliber cartridge casing was recovered and looking toward the location where the victim was found, a person of average height would only be able to see a person standing in the creek from approximately the waist upward.

The measurements that were taken at the crime scene reflected that the distance from the location that the cartridge case was recovered to the location where the victim was found was approximately 263 feet 9 inches (nearly 88 yards).

On Tuesday December 7, 2010, during a walkthrough of Manilla's farm property with Monestero advised detectives that while on the Manilla property on November 29, 2010, the date of the shooting, that he observed no other hunters and did not hear any other shots than the shots fired by Manilla. Monestero also advised detectives that when he observed the victim in the creek, he saw what he believed to be a gunshot wound to the victim's left shoulder. According to Monestero, the three were on the bank of the stream for about a minute before returning to the ATV. Monestero admitted to having a cell phone on him when they found the body but did not call 911.

On Thursday December 9, 2010, Michael Marino was re-interviewed at the District Attorney's Office. Marino began the interview by stating that he had additional information relating to the investigation. Marino stated that he neglected to inform investigators about certain things that occurred after they discovered the body in the creek, and that he had not been fully forthcoming with investigators about what happened after they found the body, out of concern for his nephew, David Manilla. Marino stated that after he arrived at the creek, he observed a body lying in the water. Manilla was on the other side of the creek and standing near the body. Manilla then asked Marino, "Uncle Mike, did I shoot that guy?" Manilla touched the cheek of the victim and felt that he was cold. Marino stated that he observed what he believed to be a small amount of blood in the water to the victim's left side. No one else from the hunting party touched the body or attempted to render aid. Marino admitted to having a cell phone on him at the time but did not call 911. After they left the body and returned to the ATV, Manilla searched the area around the ATV for the shell casing he had ejected from the rifle he fired, but Marino did not believe he had found it. Marino informed that when the three returned to the clubhouse Manilla was a "wreck." Marino observed Manilla running around trying to find a place to hide the rifle. Marino observed that Manilla had tried to hide the rifle in a couch in the clubhouse. Manilla then asked whether he could put the rifle in Marino's truck, which Marino refused. Marino is not certain what Manilla ultimately did with the rifle. According to Marino, Manilla knew that the rifle was a prohibited hunting weapon. Marino reported that Manilla also fired a shot from his shotgun into the ground by the clubhouse prior to him calling 911. Marino also advised that he was aware that Manilla was a person not to possess a firearm because he had served as Manilla's attorney in 1985 when Manilla was charged with attempted homicide, and was convicted of felony aggravated assault.

Marino did subsequently positively identify the Remington .30-06 rifle turned over to police by Manilla as the rifle that Manilla had fired during the hunt on November 29, 2010. On Friday December 10, 2010, detectives interviewed Barbara Fletcher at her attorney's office. According to David Manilla, Barbara Fletcher is his long-time girlfriend. Following the interview, Barbara Fletcher turned over to detectives, a Remington bolt action rifle, serial number T6254490, with a black synthetic sling, a black rifle case, and a box of ammunition. Fletcher advised that at the request of David Manilla, she retrieved the rifle and ammunition from the Manilla farm at 1155 California Road on Sunday December 5, 2010. After the shooting at the farm, Manilla told Fletcher to go to the farm to collect the rifle, and told her where she could find the rifle in one of the outbuildings. This rifle was not the weapon used by Manilla on November 29, 2010. Fletcher advised that the gun was hers, and that she was not aware that it was being kept at the Manilla Farm. Detectives also inspected a cache of 68 weapons (rifles and shotguns) that were stored in the attic of Fletcher's residence. Fletcher was unable to identify eighteen of these rifles as belonging to her, advising that they were Manilla's.

The defendant David Manilla is a "person not to possess" under the Uniform Firearms Act because of his 1985 conviction for felony of the first degree Aggravated Assault (Montgomery County Criminal Docket 1260 of 1985). A "person not to possess" shall not possess, use, control, sell, transfer, manufacture a firearm under any circumstances.

Detective John Finor is an employee of the Montgomery County District Attorney's Office, and has been a certified Act 120 police officer for 36 years. For the past thirty years, Detective Finor has been assigned as a firearms examiner. He has been assigned to the Detectives Bureau as an expert forensic firearms examiner since 2006. Prior to that, Finor was employed by the Philadelphia Police Department in the Firearms Identification Unit from 1980 to 2006.

Detective Finor routinely conducts testing of fired bullet specimen and fired cartridge casings against questioned firearms and other questioned specimen. Finor has testified in court over 750 times and has testified as an expert in firearms identification in federal courts and in Pennsylvania Courts of Common Pleas including Bucks County, Philadelphia County, Montgomery County and Chester County.

Your affiants requested that Detective Finor examine the Remington .30-06 rifle received by detectives from Manilla; the fired Winchester brand .30-06 cartridge recovered by Detective Potts from the location where Manilla fired the second shot from his rifle on November 29th; and the bullet specimen recovered from the clothing of the victim prior to the November 30th autopsy. These items were provided to Detective Finor for examination and comparison analysis.

As a result of his examination of the evidence provided, Detective Finor found that the Remington .30-06 pump action rifle was operational. However, Finor noted that the muzzle end of the rifle barrel had been plugged with dried earth (dirt), and that the placement of the dried earth (dirt) had obviously occurred after it had fired the Winchester cartridge received for examination. Finor found that the dirt packed in the muzzle had caused corrosion to the barrel, changing the microscopic markings which was a contributing factor in his not being able to match the bullet specimen (.30 caliber copper alloy jacketed bullet) recovered from the victim prior to autopsy with Manilla's Remington .30-06. Finor did opine that the bullet specimen and the Remington .30-06 did share the same general rifling characteristics (both bearing six (6) lands and (6) grooves with a right hand twist) and were the same caliber (.30).

Detective Finor conducted a microscopic comparative examination of the Remington 30-06 rifle recovered from David Manila and the fired Winchester brand cartridge case, recovered in the field by Affiant Potts. Detective Finor opined that the Winchester cartridge case was in fact fired in the Remington .30-06 rifle (used by Manilla on November 29, 2010).

Detective Finor stated that in his training and experience when a rifle is utilized properly the "shooter' must aim at their selected target by looking down the top of the weapon through the rear sight blade and lining up the front sight (at the tip of the barrel) in the center of the rear sight blade . The sights are then lined up on the target. Detective Finor stated that in his expert opinion this particular weapon, in the condition it was in at the time of his examination, could not be aimed properly or fired accurately utilizing the iron sights as David Manilla had previously described in his statement to Affiant Potts, since the rear sight blade was missing from the gun.

Detective Finor stated that the .30 caliber bullet (utilized by David Manilla) when fired would travel approximately 3020 feet per second. The maximum range of this .30 caliber bullet is approximately 4,500 feet (1,500 yards or .85 of a mile). He also related that when this bullet reached that maximum distance and re-intersected with the earth it would still be traveling at over 400 feet per second. Manilla fired the fatal shot from approximately eighty (88) yards away from and in the direction of the property line dividing his farm from the Richland Township open space.

An investigation into Manilla's background further revealed that Manilla has a previous hunting incident which occurred in Schuylkill County where Manilla was convicted of a Game Commission violation for shooting another hunter in the neck with a shotgun on December 23, 1993. Manilla was one of two persons cited for shooting at a pheasant while disregarding another hunter who was in the line of fire. Manilla's hunting privileges in the Commonwealth of Pennsylvania were revoked for a period of two years as a result of that conviction.

On December 16, 2010, during his fourth interview with law enforcement, David Manilla admitted that he fired the fatal shot that killed hunter Barry Groh with his high powered Remington .30-06 pump action rifle. Manilla stated that he is responsible for the death of Barry Groh. Manilla stated that he mistakenly believed he was shooting at a deer. Manilla stated that when he fired the shot that killed Barry Groh he originally believed that his shot was not in the direction of where Groh was standing, but he now agrees that he did in fact shoot his rifle in the direction where Barry Groh's body was found.

Manilla admitted that he knew that it was illegal to hunt with this high powered rifle in Bucks County. Furthermore, Manilla acknowledged that he had a 1985 conviction for Aggravated Assault, and as a convicted felon, he knew he could not legally possess or use either the shotgun or the rifle that he hunted with on November 29, 2010. Manilla agreed that he had not successfully petitioned to have his firearms rights restored. Manilla admitted to shooting the Remington .30-06 twice that day and the twelve gauge shotgun once. Manilla admitted that the Remington .30-06 rifle that he turned over to detectives on December 4, 2010 was the rifle he possessed and used on November 29, 2010. Manilla stated that he did not have any other ammunition for that rifle, stating that he had only three single rounds that he had taken from his vest. Manilla could not account for the other round, but believed it was in the "clubroom" located on his farm property. Manilla did not see any other hunter in the woods on November 29, 2010 with an illegal hunting rifle.

Manilla admitted that prior to police arrival, he tried to hide the Remington .30-06 pump action rifle. He also admitted that he fired the twelve gauge shotgun because "if the game warden had asked what was fired, I was going to show them the shotgun."

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