COMMONWEALTH OF PENNSYLVANIA
COUNTY OF YORK
YORK COUNTY
JUDICIAL CENTER
45 NORTH GEORGE ST.
YORK, PA. 17401
(717) 771-9600 Office
(717) 771-9738 Fax

Tom Kearney
DISTRICT ATTORNEY

MEMORANDUM DECISION

TO:

Trooper Matthew J. Hamilton
Pennsylvania State Police, Troop H, York Barracks
Sgt. Steven Wise
PSP, Troop H, York
Chief Wesley Kahley
York City Police Department

CC:

Media

FROM:

Tom Kearney
District Attorney of York County

DATE:

September 8, 2015

RE:

Police Shooting Investigation: Erika Christina Eberhardinger
Date of incident: Friday, December 19, 2014 2:05 a.m.
Location: 300 Block of W. Gay St, near N. Newberry St, York County,
PA
PSP Incident #: H07-2350712

I am in receipt of the Pennsylvania State Police incident report H07-2350712
hereafter referred to as the Report, concerning the above referenced matter. The
investigation was commenced as a matter of routine after a member of the York City
Police Department discharged a service firearm while on duty, causing non-life
threatening injury to Erika EBERHARDINGER.
It should be noted that the author visited the scene of the shooting for slightly less
than an hour shortly after it occurred and while the investigation was ongoing and further
1

 observed portions of the interview of the vehicle’s rear seat passenger, Mason MILLEN,
as it was occurring.
The items reviewed consisted of the incident report of investigators, witness
statements of the civilian eyewitnesses to the shooting, statements of the police officers
involved, the statement of the treating physician, interviews of residential neighbors, the
underlying criminal complaint and affidavit of probable cause and the transcript of the
guilty plea of Matthew FOSTER, toxicology reports from NMS Labs, 911 records,
reports of the Pennsylvania State Police Forensic Scene Unit, the ballistics analysis
report, CD-R recorded interviews of the officers involved, CD-R recorded interviews of
the civilian eyewitnesses, and the contents of the video recordings in the vehicles of
Officer PRASTER and SMITH.
Final review of this matter was delayed to await the outcome of the pending
criminal charges against Mr. FOSTER which were resolved on August 28, 2015. Based
on the investigation and the results of the criminal matter pending against Mr. FOSTER,
the District Attorney’s office makes the following findings and recommendations:
SCENE DESCRIPTION
The scene of this incident is the 300 block of West Gay Street, York City, York County,
Pennsylvania. West Gay Street runs east to west between North Newberry St and
Roosevelt Ave. The 300 block of West Gay St is a narrow one way-street that runs
eastbound between North Penn St and North Newberry St. West Gay St is limited to only
enough room for only a single vehicle to pass through at a time. The north side of the
street consisted of a small shoulder with a steep 40-50 foot drop off to a set of railroad
tracks. The residents on the 300 block park their vehicles on the south side of W. Gay St,
limiting the amount room for vehicles to pass. The initial pursuit began in the area of
Wallace St and North State Street and traveled through York City and ended in the 300
block of West Gay St.
SUMMARY OF THE FACTS
The nature of the incident and circumstances related thereto are best set forth in
the synopsis of the Report as completed by Trooper Matthew J. Hamilton of the
Pennsylvania State Police which follows:
“This crime occurred as the Accused (Matthew William FOSTER) was
operating a silver Mitsubishi Lancer bearing PA registration HXT0771 in
the area of Wallace St and N. State St. Riding in the front passenger seat
was the actual owner of the vehicle Erika Christina EBERHARDINGER
(Victim #2) and riding in the rear passenger side seat was Mason Hoyt
MILLEN (Victim #3).
FOSTER was traveling southbound on N. State St and approached the
intersection with Wallace St. York City Police Officer Benjamin
2

 PRASTER was sitting stationary at a stop sign at the intersection of
Wallace St and N. State St. Officer PRASTER was traveling westbound
on Wallace St. and stopped at this intersection.
Officer PRASTER
remained stationary at the stop sign because FOSTER had the right of
way. Officer PRASTER observed the Mitsubishi pause in the roadway
even though it had the right of way. FOSTER turned and began to travel
westbound on Wallace St and began to travel at approximately 45 miles
per hour in a properly posted 25 MPH zone. Officer PRASTER began to
follow the vehicle and attempted to run the vehicle’s registration and
FOSTER sped off at a high rate of speed. Officer PRASTER was only
able to observe a partial registration of “HXT”.
FOSTER continued to travel on Wallace St and when he approached the
intersection with Broad St FOSTER ran through a stop sign without
stopping and continued to flee at a high rate of speed. FOSTER then
turned northbound onto Chestnut St. and continued to flee. As FOSTER
continued to travel on Chestnut St they drove over a set of railroad tracks
at a high rate of speed causing the Mitsubishi to go airborne. FOSTER
then turned north onto Queen St and Officer PRASTER activated his
marked patrol vehicle’s emergency lights and siren and attempted to
conduct a traffic stop on the Mitsubishi operated by FOSTER.
FOSTER turned westbound onto North St and continued west towards
Duke St. FOSTER ran a red light at the intersection of North St and Duke
St and continued to flee. FOSTER then continued on North St towards
Beaver St at a high rate of speed. Officer PRASTER advised FOSTER
failed to stop at another stop sign and turned northbound onto Beaver St.
Then, FOSTER turned westbound onto Stevens St and traveled the wrong
way down Stevens St. (Stevens street is a one way street and the proper
traffic flow is eastbound) Officer PRASTER observed FOSTER continue
and turn southwest onto Chestnut Hill Rd and at this point PRASTER lost
sight of the Mitsubishi. Officer PRASTER continued to travel in the last
direction that he observed the suspect vehicle. Once Officer PRASTER
was in the area of Newberry St and Cottage Hill Rd he observed the lights
of Officer SMITH’S vehicle at the west end of W. Gay St and the suspect
vehicle also in the 300 of W. Gay St.

3

 As FOSTER entered into the 300 block of West Gay St he was traveling
the wrong way down a one way street. The suspect vehicle then came
upon York City Police Officer Benjamin SMITH (Victim #1). Officer
SMITH was traveling eastbound on W. Gay St operating a marked York
City Police Department vehicle with the vehicle’s emergency equipment
activated. Officer SMITH came upon the Mitsubishi traveling westbound
on W. Gay St driving directly at his position. FOSTER observed Officer
SMITH’S vehicle blocking W. Gay St, came to a stop, and then began to
travel in reverse eastbound on W. Gay St towards N. Newberry St. At this
point, Officer PRASTER was able to catch up with the Mitsubishi and
observed it traveling in reverse on W. Gay St. at a high rate of speed.
FOSTER lost control while traveling in reverse and collided into a utility
pole that was located off the north side of W. Gay St. This collision
caused major damage to the rear of the Mitsubishi but FOSTER was able
to drive forward again accelerating at a high rate of speed.
FOSTER attempted to flee and approached Officer SMITH who had
already exited his patrol vehicle and was on foot. FOSTER dove directly
at Officer SMITH causing him to move laterally to avoid being struck by
the Mitsubishi. While moving laterally Officer SMITH simultaneously
fired four (4) rounds at FOSTER utilizing his department issued Glock
22 .40 caliber pistol. The front seat passenger, Erika EBERHARDINGER
(Victim #2) was struck by a bullet once in her right forearm and she was
struck by another bullet that traveled through her left hand and came to
rest in her jaw. After the shots were fired, the Mitsubishi travelled a short
distance and came to rest striking a metal fence located off the north side
of W. Gay St.
At this time, all occupants were taken into custody by members of the
York City Police Department. Officers then moved EBERHARDINGER
to the passenger side of Officer SMITH’S patrol vehicle and rendered first
aid for her injuries. EMS personal responded to the scene and transported
EBERHARDINGER to York Hospital for her non-life threatening injuries.
The operator, Matthew FOSTER, was subsequently transported to York
Hospital for a blood draw. FOSTER was read his O’Connell Warnings
and Implied Consent and he related that he understood and consented to a
chemical analysis of his blood. The blood sample was sent to NMS, Labs
(an approved testing facility for the chemical analysis of blood) and the
following results were reported:
-Blood Alcohol Concentration (BAC) - 0.105 g/100mL
-Delta 9 THC - 1.3 ng/mL
-Delta 9 Carboxy THC - 11 ng/mL
FOSTER was arraigned and charged with Aggravated Assault, Driving
under the Influence, Fleeing or Attempting to Elude a Police Officer,
4

 Recklessly Endangering another Person and Operating a Motor Vehicle on
a Suspended License.”
INVESTIGATOR’S OBSERVATIONS AT SCENE
Protocol in an officer involved shooting requires the Pennsylvania State Police be
contacted to conduct an investigation. Trooper Matthew HAMILTON was assigned as
lead investigator. His initial observations follow:
On 12/19/14 at 0353 hours I arrived on scene. I had to park my patrol
vehicle at the intersection of North Penn St and West Gay St. because
there were multiple York City Police Department vehicles parked in or
near West Gay St. I exited my vehicle and walked to the 300 block of
West Gay St. As I approached the scene, I observed multiple members of
the York City Police Department on scene. Members of York City PD had
used yellow crime scene tape and secured the scene and Officer Michael
MEEKER started a Crime Scene Log to persevere the integrity of the
scene. Upon my arrival, the temperature at the scene was 34.0 degrees F
with a wind speed of 5.8 MPH making the temperature with wind chill
factor at 28.8 degrees F. This information was obtained from
www.wunderground.com.
I entered into the 300 Block of W. Gay Street from the east and I observed
one marked York City Police vehicle with its overhead emergency lights
still activated. This vehicle was parked in the middle of the street facing
eastbound. I observed West Gay St to be a one way street with the proper
traffic flow traveling from west to east. West Gay St has row homes
located on the south side of the street. The residents who live on this
street park their vehicles on the south side causing only enough room for
one vehicle to pass through at a time. As I continued to walk eastbound I
observed a silver Mitsubishi Lancer facing westbound on W. Gay St at
final rest. The vehicle came to rest partially off the north side of the
roadway resting against a metal fence or guide rail. I observed the
vehicle’s driver side door ajar and the driver’s side front window was
rolled down a few inches. The driver’s side rear door was also ajar. I
observed heavy damage to the rear of the vehicle. I observed a trail of
blood that led from the silver Mitsubishi to the passenger side of the
marked patrol unit where I observed gauze and a blue latex glove as if first
aid was performed in this area and these items were left behind.
During my initial observations of the silver Mitsubishi Lancer I observed
the vehicle to be bearing PA registration HXT0771. A PennDot records
check revealed that the vehicle is registered to Erika Christine
EBERHARDINGER.
I also observed three impact areas on the
Mitsubishi where it appeared that the vehicle was struck with three bullets.
I observed one impact to the driver’s side of the hood near the front
5

 windshield. It appears that the projectile would have entered into the
motor compartment of the vehicle.
I observed another impact area where a projectile would have passed
through the windshield near the driver’s side A pillar. I observed another
impact area in the driver’s side rear passenger door near the B pillar of the
vehicle. I observed that the vehicle’s passenger side, side curtain airbags
deployed and there appears to be blood on the exterior of the airbag. I
observed a large amount of blood that started on the front passenger side
of the vehicle and dripped/pooled onto and over the driver’s seat. The
blood trail exits the car and you can follow the blood droplets to the
passenger side of the York City Police vehicle where first aid was
conducted.
As I continued to walk east on W. Gay St I came upon a member of the
York City Police Department that was securing four (4) empty shell
casings that were fired at the Mitsubishi by a York City Police member.
As I continued to walk east on W. Gay St I observed heavy damage to Met
Ed utility pole # 28377-23079. There was a large debris field of shattered
glass that can be attributed to the shattering of the Mitsubishi’s rear
window. I also observed a fluid trail from the utility pole leading to the
final rest of the Mitsubishi. I also observed a silver bumper lying in the
middle of the street a short distance from the damaged utility pole.
As I continued to walk east on W. Gay St I observed another York City
Police vehicle parked facing westbound in the middle of the roadway.
This vehicle was parked near 332 W. Gay St blocking the right away of
traffic.
PHYSICAL EVIDENCE:
The following physical evidence was recovered at the scene:



Mitsubishi Lancer, PA registration HXT0771, VIN: JA3AU26UX8U010634
registered to Erika Christine EBERHARDINGER
Four (4) Federal .40 Cal Smith and Wesson empty shell casings located on W.
Gay St.

Additional recovered physical evidence during the investigation was:




One (1) Glock Model 22 pistol (serial # GZN-922) from Officer SMITH
Empty Glock Magazine with 15 round capacity from discharged weapon
Empty Glock Magazine with 15 round capacity (from magazine pouch)
6

 




One (1) .40 caliber Smith & Wesson round (from chamber of Glock)
Eleven (11) .40 caliber Smith & Wesson rounds (from magazine of gun)
Fourteen (14) .40 caliber Smith & Wesson rounds (from magazine 1)
Fifteen (15) .40 caliber Smith & Wesson rounds (from magazine 2)







One (1) bullet jacket from driver’s side door hinge
Two (2) bullet fragments from driver’s side rear door
One (1) empty Yuengling beer bottle
One (1) bullet fragment from Erika EBERHARDINGER
One (1) bullet fragment
One (1) Bullet fragment from left arm of Erika EBERHARDINGER
One (1) Bullet fragment from left arm of Erika EBERHARDINGER




The magazine from the weapon used during this incident contained 11 unfired rounds of .
40 caliber ammunition. Assuming a fully charged magazine and considering the single
round previously ejected from the chamber of the weapon indicates that Officer SMITH
discharged four (4) rounds during this incident.
THE VEHICLE
The vehicle was impounded. Pursuant to a search warrant, the vehicle was examined by
Pennsylvania State Police investigators on 12/19/14 at 1005 hrs. The vehicle was
photographed prior to any physical search of the vehicle and contents.
Investigators noted a bullet impact on the hood of the vehicle. The damage indicated that
the shot came from in front of the vehicle angled slightly to the left shoulder of the driver
from the shooter’s perspective. A second impact was visible on the lower right portion of
the windshield also angled to the left side of the driver’s seat. A third and final bullet
strike was observed on the front portion of the rear driver’s side passenger door.
Attempts were made to locate the rounds which struck the vehicle. The round which
impacted the hood was traced to the firewall of the vehicle. The round appeared to
terminate at the firewall and fragmented. No fragments were located. The round which
struck the windshield was not located inside the vehicle. The round which struck the rear
door terminated in the area of the upper rear door hinge. A copper jacket was recovered
from this location, and a bullet fragment was removed from inside the door itself.
It was believed by investigators that the fourth round Officer SMITH fired went through
the partially open driver’s side window and struck EBERHARDINGER. An empty beer
bottle was removed from the driver’s door. EBERHARDINGER’s purse was also
secured from the passenger’s seat.
911 RECORDINGS
Investigators obtained the audio recordings of the York City Police Department’s Officer
radio transmissions. The following is relevant:
7

 

York City Officer PRASTER (call sign #104) is heard calling out a partial
registration of “HXT” and describing the vehicle as a silver sedan (0205.12
hours). Officer PRASTER advised that the vehicle is traveling at a high rate of
speed (0205.36 hours). Officer PRASTER can be heard saying that the sedan was
traveling the wrong way down Stevens St (0206.01 hours).



Officer PRASTER can be heard saying that the Accused turned westbound onto
Cottage Hill (0206.22 hours). Officer SMITH (call sign 189) is heard saying “I’m
coming into that area right now.” The dispatcher is heard saying, “189 OK.”
Then you can hear Officer Dustin GEHRON (call sign #168) called in that he is
arriving into the area also. Then Officer PRASTER is heard saying that the
Accused is turning north onto Newberry. Officer SMITH is heard saying, “I got
him right here. He’s gonna hit me! What the fuck!” (0206.45 hours) Then an
unknown officer is heard saying “Get your fucking hands up!” Then, Officer
GEHRON is heard saying, “Shots fired! Shots Fired!” (0207.37 hours)



Officer SMITH then called for every officer working to respond to his location.
(0207.08 hours) Someone advised the dispatcher to call a “Signal 13” (officer in
distress call) for the shots fired. Location is to be Gay and Newberry Streets.
Then Officer PRASTER requested an ambulance.

TOXICOLOGY
In accordance with DUI protocols a blood sample was taken from Matthew Foster on
12/19/14 at 05:07 am. The blood sample was sent to NMS, Labs (an approved testing
facility for the chemical analysis of blood) and the following results were reported
indicating unlawful amounts of alcohol and recent consumption of marijuana:
-Blood Alcohol Concentration (BAC) - 0.105 g/100mL
-Delta 9 THC - 1.3 ng/mL
-Delta 9 Carboxy THC - 11 ng/mL
INTERVIEWS
A canvas of the neighborhood where the incident occurred was conducted by
investigators immediately following the incident. Several people reported being roused
from sleep by the noise of the shooting but none were found that observed the incident.
Mason MILLEN
On 12/19/14 at 0640 hours, Mason MILLEN was interviewed by Pennsylvania State
Police. This author was present for part of the interview.
MILLEN related that on Wednesday evening 12/18/14, he made plans with his friends
Matthew FOSTER and Erika EBERHARDINGER to go out to Banana Max, a local bar.
He said FOSTER and EBERHARDINGER picked him up at his place of employment
8

 (Texas Roadhouse) around 2230 hours. MILLEN advised that FOSTER was driving
EBERHARDINGER’S Mitsubishi Lancer sedan at that time, and was also the driver of
said vehicle throughout the entire night including when the police pursuit occurred. He
said he knew that FOSTER’S license was under suspension. He also said that FOSTER
had purchased a six pack of beer and was drinking alcohol before picking him up at
work.
After stopping at his girlfriend’s apartment to change of clothes, MILLEN said FOSTER
drove them to Banana Max, and they arrived between 2300-2330 hours. He advised that
all three of them were consuming alcohol at the bar throughout the night. He specifically
said FOSTER had “a lot” to drink and reported that FOSTER consumed at least five (5)
mixed drinks of Red Bull and Fireball liquor while they were at the bar. He stated that
EBERHARDINGER consumed one pitcher of a mixed drink containing alcohol
throughout the evening.
MILLEN said they left Banana Max around 0145 hours on 12/19/14. Again, he advised
that FOSTER was driving EBERHARDINGER’S Mitsubishi Lancer when they left the
bar. He said EBERHARDINGER was seated in the front passenger seat, and he was
positioned in the right rear passenger seat. MILLEN said FOSTER agreed to drive him to
his girlfriend’s mother’s house which is located on Pine Street in York City. He then
described the following route driven by FOSTER: They left Banana Max and drove to
North Hills Road where FOSTER made a left turn. He proceeded south on North Hills
Road and turned right onto Route 30 westbound. FOSTER then turned left onto N.
Sherman Street, crossed over a set of railroad tracks and then proceeded to Chestnut
Street where they made a right turn. FOSTER continued westbound on Chestnut Street
until reaching N. State Street. A left turn was made on N. State Street and they continued
south.
While traveling south, MILLEN said he observed a marked police car positioned at the
intersection of N. State Street and Wallace Street. He said FOSTER turned right onto
Wallace Street and they noticed that the police cruiser pulled out behind them. MILLEN
advised FOSTER then turned right onto N. Broad Street (which turns into Chestnut
Street), passing Alexander D. Goode Elementary School. He said FOSTER then turned
right onto N. Queen Street and made a left turn onto North Street. MILLEN said that the
police officer behind them activated his vehicle’s overhead lights at this juncture and the
pursuit began.
He described that FOSTER’S initial reaction to the overhead lights was “to speed off.”
He later added that everyone in the vehicle including FOSTER knew that the police
officer was trying to stop them. He recalled that FOSTER was speeding and ran a red
light at some point, but was unsure of the intersection. During the chase, MILLEN said
he told FOSTER, “Stop, stop, stop!” He said he then put his seatbelt on and advised
EBERHARDINGER to put her seatbelt on as well because he believed that FOSTER was
not going to stop.
MILLEN said they eventually ended up driving the wrong way down Gay Street, where
they encountered another police cruiser blocking their path from the opposite direction.
9

 He said FOSTER realized he couldn’t go any further and responded by placing the
vehicle in reverse and quickly accelerated backwards. He said FOSTER wrecked into
something (which he believed was a police car).
At that time, MILLEN said that the vehicle’s air bags deployed and the back window
shattered. He said that after the wreck, FOSTER accelerated forward which is when he
noticed a uniformed police officer in front of their vehicle to the left side. He thought the
officer was 20-30 feet away. He said the officer discharged his firearm approximately
three or four times into the vehicle.
MILLEN stated, “I’m pretty sure he [FOSTER] was driving forward, and then he [the
officer] started shooting.” MILLEN advised that FOSTER stopped the car and everyone
surrendered almost immediately after the shots were fired. He said it took about 5-10
seconds for EBERHARDINGER to realize that she had been shot. When the incident
ended, MILLEN recalled yelling in public to FOSTER that “he’s a fucking idiot” for not
stopping which placed him and EBERHARDINGER in danger.
During the interview, MILLEN was asked to describe the point where FOSTER began to
comply with the police. His response what that FOSTER only began complying when he
realized that EBERHARDINGER had been shot.
MILLEN said that FOSTER fled from the police because his license was suspended and
because he had been consuming alcohol throughout the night.
MILLEN advised that when the pursuit began, he was talking to his girlfriend Cristina
MCMILLAN via cell phone. He said Cristina would likely be able to corroborate his
statement that he yelled at FOSTER to stop when he began fleeing the police. MILLEN
gave verbal consent to search his Samsung mobile phone to view call log records. Upon
review, it was determined that MILLEN dialed his girlfriend at 0214 hours which is
consistent with the approximate time this pursuit was initiated.
This interview with Matthew MILLEN concluded at 0706 hours.
Cristina Marie MCMILLAN
On 12/19/14 at 0749 hours, Cristina Marie MCMILLAN was interviewed by
Pennsylvania State Police.
MCMILLAN advised that on 12/18/14 at approximately 1000 hours, her boyfriend
Mason MILLEN stopped by her apartment for a change of clothes. She said he was with
Matthew FOSTER and FOSTER’S girlfriend Erika. MILLEN asked MCMILLAN if she
wanted to go out to Banana Max for the evening, but MCMILLAN declined. She advised
that she wanted to stay in for the night.
She said she received a phone call from MILLEN sometime after 0200 hours on
12/19/14, and MILLEN advised her that they were leaving Banana Max. She said this
10

 first conversation was brief, only lasting a few minutes. MCMILLAN then related that at
0216 hours she received a second phone call from MILLEN. During this phone call, she
said she started hearing yelling in the background. She stated, “Mason was yelling at
whoever was driving to stop and pull over.” She advised that MILLEN told her, “great,
we’re getting pulled over but Matt won’t stop.” MCMILLAN advised that there was
more commotion in the background, but she recalled MILLEN telling Erika to wake up.
MCMILLAN then said that there were a few moments of background noise, and then
heard a female voice screaming. She said MILLEN told her that Erika had been shot.
MCMILLAN said she then heard MILLEN yelling at Matthew FOSTER that he was
stupid and that he should have just pulled over. After that, MCMILLAN advised that she
only heard “pocket noise” for the duration of the call, suggesting that MILLEN’S phone
was either in his pocket or on his lap.
An examination of her phone by police revealed an incoming call from MILLEN’S
phone number at 0216 hours, and that the duration of the call was 20 minutes.
The interview with Cristina MCMILLAN concluded at 0756 hrs.
Erika Christine EBERHARDINGER
On 12/19/14, at 0529 hours, Erika EBERHARDINGER was interviewed by Pennsylvania
State Police investigators. Erika related that she had been with Matthew FOSTER and
Mason MILLEN earlier that evening. Erika related they were at Banana Max. They
arrived there at approximately 2330 hours. Erika related they didn’t drink that much and
she only had a couple of dollars on her. Erika related she only had two drinks and
FOSTER didn’t have many either; he had less than her. They were drinking mixed
drinks. Erika doesn’t know how many drinks MILLEN had. Erika related they left
between 0145 – 0200 hours.
Erika related after they left, she was planning on getting dropped off at her house.
FOSTER and MILLEN weren’t coming to her house; they were going to just drop her
off.
Erika was asked who was driving. Erika replied FOSTER. Erika was sitting in the
passenger seat and MILLEN was in the back seat behind her.
Erika was asked what happened on her way to the house. Erika related a “cop” tried to
pull them over. Erika related she got scared and covered her face. Erika related all she
remembers is there were a cop in front of them and one in the back of them and FOSTER
pressed on the brake and she guesses the cop started shooting at them and she was the
only one that got hit. Erika related she doesn’t know why he shot at the car; there was no
reason for him to shoot.
Erika was asked when the cop tried to pull them over if she saw lights and heard the
siren. Erika stated, “Yea I didn’t know what was going on, I just covered my face and the
next thing I know I got shot”.
11

 Erika related when the cop tried pulling them over she doesn’t remember anybody saying
anything in the vehicle. Erika related she was just crying. She doesn’t know why the
cops were pulling them over for. Erika related she doesn’t know why FOSTER didn’t
pull over. Erika related she was in the passenger seat next thing she knows was there was
a cop in front and back of them and she got shot. Erika related they didn’t do anything
that was threatening to a police officer.
Erika was asked how the back of the vehicle got damaged. Erika replied she has no idea.
She knows the airbag went off. Erika related the vehicle wasn’t wrecked before she got
shot. Erika related she was crying and had her hands up on her face when she got shot.
Erika related again when she got shot the car wasn’t wrecked and the airbag went off
when she got shot. Erika related after she got shot the cops came up to the vehicle with
their guns out. Erika exited the vehicle through the driver’s side door. Erika wanted to
see if FOSTER was alright. The cops pulled her away from him. Erika related she
doesn’t remember a lot; she is in shock.
Erika was asked why she was crying. Erika related because they were getting pulled
over. She was never pulled over in her life. She was scared, didn’t know what was going
to happen. Erika was asked several more questions and Erika related she doesn’t
remember, she doesn’t want to say the wrong thing, she is and was in shock. Erika
related she doesn’t know why they were shooting. Erika related as soon as she saw the
police vehicle in the front they started shooting at the vehicle. Erika related she doesn’t
know why as there weren’t any guns in the vehicle. Erika didn’t see the police officer.
Erika doesn’t know where the shots came from. Erika related her hands were up at her
face when she got shot. Erika related again she doesn’t remember the car hitting
anything. Erika then stopped answering questions. The interview ended.
Dr. April MILLER
On 12/19/14, Dr. April MILLER was interviewed by Pennsylvania State Police
investigators. Dr. MILLER related none of the bullet wounds to Erika
EBERHARDINGER were life threatening. There was a bullet fragment lodged in her
right forearm. There was a bullet fragment lodged under her chin in the neck muscle.
The bullet entered through the left side of her jaw. Erika was shot in her left hand. The
bullet passed through her left palm. It appears Erika was covering her face with her
hands. The bullet passed through her left hand (palm) and struck the left side of her jaw.
The bullet came to rest lodged under her chin in the neck muscle. Dr. MILLER related
they will be operating to remove the bullets if possible.
Matthew FOSTER
Officer Matthew IRVIN of York City Police transported FOSTER to the York City Police
Department. During transport, Officer IRWIN described FOSTER’S demeanor as upset,
crying and FOSTER was screaming that he was sorry. Officer IRVIN placed FOSTER
into the interview room located inside the station. Officer IRVIN advised that he took
notes as on the unsolicited statements that FOSTER was blurting out. Officer IRVIN
12

 advised that the following statements were made by FOSTER in reference to this
incident:







“I saw the cop behind me, I turned right and I saw the cop follow me. I then hit
the gas.”
“I have a suspended license and I couldn’t go back to jail for 90 days.”
“She was screaming stop the whole time. When I turned onto Gay they started
shooting because I wouldn’t stop. She said I’m shot! I’m shot! I tried back up
and I couldn’t because I hit something. I then tried to go forward and I couldn’t
and it was over.”
“I was at Banana Max. I knew I was drunk. I just wanted to have a good time.”
“I guess they shot at me because I wouldn’t stop.”

During this contact with FOSTER, Officer IRVIN advised that he smelled a very strong
odor of an alcoholic beverage coming from FOSTER. Officer IRVIN also observed that
FOSTER’S eyes were glassy and bloodshot. He related that FOSTER was incredibly
talkative and talked about many subjects such as death, drugs and his vocation.
Matthew FOSTER was formally interviewed on 12/19/14 at approximately 0555 hours,
by a Pennsylvania State Police investigator at their York barracks. FOSTER was read
and waived his Miranda rights and agreed to speak regarding this incident.
FOSTER began by indicating he was at Banana Max with the mother of his child
(EBERHARDINGER) and his friend (MILLEN). He recalled that he had 5-6 shots of
“Fireball” while he was there. He initially reported he felt he was okay to drive, but later
in the interview reported that when Officer PRASTER attempted to pull him over, he ran
because he knew he was “DUI”.
He related that upon leaving the bar he was driving EBERHARDINGER’S vehicle and
was going to take MILLEN home. He reported he was somewhere in the area of
Newberry St. when Officer PRASTER turned his overhead lights on and he fled from
him. He recalled that he turned onto Gay St. and was blocked in by another officer.
His initial account of the incident was that upon seeing this officer he stopped and saw
started to back up, he recalls seeing the officer (SMITH) in front of him to the left. He
heard gunshots, and then he hit a pole and pulled forward again. Having nowhere else to
go, he reported he surrendered.
It should be noted that according to the MVR footage from the incident. Foster struck the
utility pole prior to Officer SMITH firing his weapon at the vehicle.
As a result, FOSTER was questioned regarding his recollection of the sequence of the
events he described. FOSTER upon recalling the events a second time clarified that he
remembered hitting something before the gunshots. He maintained that he saw Officer
SMITH in front of him and to the left.
13

 Officer Benjamin PRASTER
On 12/19/14 at approximately 0430 hours Officer PRASTER was interviewed at the
scene. He related he was working the evening shift and wearing full uniform and
operating a marked York City Police Department vehicle.
At approximately 0205 hours Officer PRASTER observed a silver Mitsubishi Lancer
traveling southbound on State Street approaching the intersection with Wallace St.
Officer PRASTER related that he was traveling westbound on Wallace St and stopped at
the stop sign at the intersection with State St. The silver Mitsubishi continued to travel
south and when it approached the intersection of Wallace St and State St the Mitsubishi
paused in the roadway even though the driver had the right of way. The Mitsubishi then
turned westbound onto Wallace St. and began to travel at approximately 45 miles per
hour in a properly posted 25 miles per hour zone.
Officer PRASTER related that he began to follow the vehicle attempting to run its
registration plate on the computer inside his vehicle. Officer PRASTER advised that the
Mitsubishi sped off at a high rate of speed and he was only able to observe a partial
registration of “HXT”. Officer PRASTER related that he continued to follow the vehicle
while notifying his dispatch about this situation and was unable to keep up with the
vehicle but monitored it from a distance. The Mitsubishi continued to travel on Wallace
St and when it approached Broad St the vehicle ran through a stop sign without stopping
and continued to flee at a high rate of speed. The Mitsubishi then turned northbound onto
Chestnut St. As they continued to travel on Chestnut St the Mitsubishi drove over a set of
railroad tracks at a high rate of speed and then went airborne. The Mitsubishi then turned
north onto Queen St and then Officer PRASTER related that he activated his vehicle’s
emergency equipment and began to pursue the Mitsubishi.
Officer PRASTER advised that the Mitsubishi then turned westbound onto North St and
continued towards Duke St. The Mitsubishi then ran a red light at the intersection of
North St and Duke St and continued to flee. The Mitsubishi then continued on North St
towards Beaver St. Officer PRASTER advised that the Mitsubishi failed to stop at
another stop sign and turned northbound onto Beaver St. Then, the Mitsubishi turned
westbound onto Stevens St and traveled the wrong way down Stevens St. (Stevens street
is a one way street and the proper traffic flow is eastbound) Officer PRASTER related
that the Mitsubishi continued and turned southwest onto Chestnut Hill Rd and PRASTER
related that he lost sight of the Mitsubishi. Officer PRASTER continued to travel in the
last direction that he observed the suspect vehicle. Once Officer PRASTER was in the
area of Newberry St and Cottage Hill Rd he observed the lights of Officer SMITH’S
vehicle at the west end of W. Gay St and the suspect vehicle also in the 300 of W. Gay St.
Officer PRASTER related that when he turned onto the 300 Block of W. Gay St., he
observed the suspect vehicle traveling eastbound in reverse at a high rate of speed. He
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 observed the suspect vehicle strike a utility pole located midblock on Gay St. After the
suspect vehicle struck the utility pole Officer PRASTER observed the vehicle again pull
forward at a high rate of speed traveling in the middle of the roadway. Officer PRASTER
related that the suspect vehicle then drove forward and crashed into the guiderail located
on the north side of the road and came to final rest. He parked his vehicle at the east end
of Gay St and ran towards the suspect vehicle. Officer PRASTER advised that he was
aware that Officer SMITH had discharged his weapon but he did not observe the shots
being fired.
As he approached the suspect vehicle the driver exited the vehicle and lay on the ground.
Officer PRASTER related that he took the driver into custody. He observed the female
passenger exit the vehicle through the driver’s side of the car. The officers on scene
observed that the female passenger had visible injuries and Officer SMITH and Officer
MEEKER removed the female and rendered first aid. Officer PRASTER related that the
back seat passenger remained inside the vehicle with his hands in the air until he was
taken into custody. While the passenger was being taken into custody Officer PRASTER
heard him yelling, “You got her shot you fucking idiot!” to the driver.
Officer Benjamin SMITH
On 01/12/15 at approximately 0911 hours Officer Benjamin SMITH was interviewed in
the presence of his attorney Edward PASKEY, Fraternal Order of Police representative
Michael DAVIS and Cpl. Steven WISE who is also a member of the Pennsylvania State
Police currently assigned to the Troop H, York Criminal Investigation Unit as the unit
supervisor. The interview was conducted at Attorney PASKEY’S office located at 2675
Eastern Boulevard York, Pennsylvania 17402. SMITH was aware that he was being
interviewed in reference to this criminal investigation and he was voluntarily giving a
statement in this matter. All parties consented to the recording of this interview. The
following is a synopsis of the interview.
Officer SMITH stated that he has been employed by the York City Police Department for
approximately 6 years and has worked in the Patrol Division. SMITH advised that on
12/18/14 he was assigned to work his patrol zones from 1900 hours to 0300 hours. He
advised that he was wearing full uniform and operating a marked York City Police
Department vehicle. He also advised that the vehicle was outfitted with a MVR (Mobil
Video Recorder).
SMITH related that just prior to the incident he and Officer GEHERON were clearing a
call for service in the 100 block of South Belvedere St when he heard Officer PRASTER
advise that he was attempting to stop a vehicle that was failing to yield. SMITH related
that Ofc. PRASTER described the vehicle as a silver Mitsubishi sedan. SMITH related
that because the pursuit was in the eastern zones of the city he did not travel to the area at
15

 a high rate of speed. At this point, he was just traveling towards the area where the
pursuit was taking place.
Officer SMITH advised that as he was monitoring the radio traffic he heard that the
suspect vehicle had traveled onto N. Beaver St and had now entered into his area of
responsibility. At this point, SMITH advised that he activated his lights and siren and
began to travel towards the pursuit at a higher rate of speed. SMITH related that he
traveled west on Market St and the turned north onto Penn St because he heard Officer
PRASTER advise that the suspect vehicle turned the wrong way on Stevens Rd and also
traveled the wrong way on Cottage Hill Rd. SMITH related that he knew the suspect
vehicle would have to turn onto Newberry St and if he traveled north on Penn St, he
could turn down W. Gay St to intercept the suspect vehicle.
When SMITH turned onto W. Gay St he observed a vehicle traveling the wrong way
down W. Gay St directly towards his location. SMITH observed that the vehicle was a
silver sedan with multiple police cars traveling behind it. When he observed the suspect
vehicle traveling at his location he observed that the vehicle did have its head lights on.
So he stopped his vehicle in the middle of the road and waited for the vehicle to get
closer. The suspect vehicle approached the area where he was and stopped. SMITH
advised that he exited his vehicle and drew his firearm. SMITH related that more often
than not suspects who are fleeing the police are known to have a gun or other weapons
inside the vehicle. This was the main contributing factor to SMITH drawing his weapon
as soon as he exited his vehicle and approached the suspect vehicle on foot. He
approached the suspect vehicle giving verbal commands. As he approached the vehicle
he made eye contact with the operator. He described him as a white male and the
operator looked “pissed off.” SMITH related that he only focused on the operator and
did not know there were other occupants inside the vehicle. As he was looking at the
operator, the operator looked over his right shoulder and sped off in reverse. SMITH
related that he heard the “reverse whine” of the motor indicating that the vehicle was
traveling in reverse at a high rate of speed. The vehicle fled eastbound on W. Gay St
towards the other pursing officers.
SMITH advised that he started to run after the suspect vehicle and he observed it crash
into a utility pole located on the north side of the road. SMITH advised that the crash
sounded like it was a heavy impact with a lot of damage. SMITH related that at this
point, he thought the operator was going to run away on foot so he continued to run down
the road towards the crash scene.
SMITH indicated that it is common practice for suspects in the city to eventually try to
flee on foot if they cannot escape in a vehicle. SMITH related that the knowledge of this
tactic and the high probability of the suspects attempting to flee on foot was a
contributing factor to exiting his vehicle and pursuing on foot. Once he knew the
suspect’s vehicle was boxed in by his patrol vehicle and the other pursuing units he
continued on foot expecting a foot chase.
SMITH related that as he was running towards the suspect vehicle he heard the suspect
vehicle’s tires squeal and he observed the vehicle drive directly at his location. SMITH
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 advised that he was standing right in the middle of the alley when the suspect vehicle
drove at him. SMITH advised that he still had his firearm drawn and as the vehicle drove
at him he was yelling commands. SMITH related that he specifically remembers yelling,
“Stop, Police. Show me your hands.” The operator failed to comply and continued to
accelerate his vehicle towards Officer SMITH.
SMITH related that he felt that the suspect vehicle was going to strike him and he did not
have anywhere to go. SMITH advised that he still had his firearm pointed at the suspect
vehicle and as the car drove directly at him he fired three rounds at the driver of the
vehicle. SMITH advised that he moved to the right as much as he could to avoid being
struck by the suspect vehicle. The vehicle passed his location close enough that he felt
the wind generated by the vehicle as it passed. SMITH related that after the vehicle was
mostly passed his position he knew he was not in danger of being stuck so he stopped
firing his weapon.
SMITH advised that when he fired his weapon he was aiming at the driver of the suspect
vehicle. SMITH advised that his point of aim was the center mass of the driver. SMITH
related that he did not know there were other occupants inside the vehicle until after the
second crash. At the time SMITH fired his weapon, he did not feel that he had any other
use of force option.
SMITH related that the suspect vehicle continued to travel west on Gay St and came to
rest after it struck a pole and a guide rail. SMITH and other officers ran to the suspect
vehicle at which time the driver fell out of the vehicle and laid on the ground. SMITH
related that the driver tried to get up and was yelling something but SMITH was unable to
make out what he was saying. SMITH related that he kept the driver at gun point and
gave him commands to put his hands behind his back. SMITH related that Officer
PRASTER was a few seconds behind him and he is the one that took the driver into
custody.
SMITH described West Gay St as a one way alley with the traffic flow traveling
eastbound. SMITH related that the residents on W. Gay St park their vehicles on the
south side of the roadway. SMITH related that the residents have to park partially on the
sidewalk in order to make enough room for vehicles to pass down Gay St. He related that
there is barely enough room for one vehicle to pass through at a time. SMITH also
advised that on the north shoulder of the road is a guide rail and then a 40 or 50 foot drop
off straight down to railroad tracks. SMITH related that W. Gay did have working street
lights and his vehicle’s headlights and emergency equipment were activated helping to
light up the area.
Once he realized that the front seat passenger was struck by a bullet he relocated the
passenger to the area near his vehicle and rendered first aid. He retrieved his medical kit
from the back of his patrol vehicle and he and other officers assisted with first aid. One
of the officers on scene requested that an ambulance respond to the scene.
SMITH related that his issued firearm is a Glock Model 22 which is a .40 caliber pistol.
He advised that he is required to qualify twice a year with his weapon. SMITH related
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 that the magazine to his weapon has a capacity of 15 rounds. SMITH indicated that he
carries his weapon fully loaded with one round in the chamber and then a full magazine
of 15 rounds. He also carried two more magazines with matching capacities on his duty
belt.

DISPOSITION OF CRIMINAL CHARGES (CP-67-CR-0000582-2015)
On August 28, 2015, Matthew FOSTER entered a plea of guilty and was sentenced
before the Honorable Maria Musti COOK, to one count of fleeing and eluding a police
officer, one count of reckless endangerment upon Officer SMITH, one count of reckless
endangerment upon Erika EBERHARDINGER, one count of reckless endangerment
upon Mason HOYT, one count of Driving while operating privileges are suspended or
revoked, one count of driving under the combined influence of alcohol and marijuana,
and one count of aggravated assault upon Officer SMITH for a total sentence of a
minimum of three years to a maximum of six years in a state correctional institution,
fines, costs and restitution.
At the time of his plea of guilty, the FOSTER explained he had been at the club Banana
Max where he was drinking. He then went to drop a friend off at his house, and a police
vehicle attempted to pull him over. He admitted he didn’t stop and continued to flee from
the officer and ended up on Gay Street where he hit a pole and didn’t remember much
after that (Guilty Plea Transcript, Pages 5-6).
He was asked if the officer activated his lights and siren and FOSTER responded in the
affirmative and then admitted he kept going. (Guilty Plea Transcript, Page 6). He told the
Court he had consumed “a lot” of alcohol, had marijuana in his system, and that it
impaired his ability to drive safely (Guilty Plea Transcript, Page 6).
When asked by the Court about hitting the telephone pole, FOSTER stated:
“…This is where it all pretty much came to an end. I got blocked in. I was
backing up and – ‘cause I came in contact with the police vehicle in front
of me. Then I started to back up because there was nowhere else to go,
and then I hit a pole, and after that I don’t remember anything.” (Guilty
Plea Transcript, Page 7).
STATEMENT OF THE LAW
To determine criminal responsibility in use of force situations, several considerations
come into play, including, but not limited to, the totality of the circumstances of the
individual case, the United States and Pennsylvania Constitutions, the General Principles
of Justification as set forth in the Pennsylvania Crimes Code, applicable case law, and the
use of force policy of the police department.
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 The rules governing the use of force in self-protection and protection of others are
provided for in Pennsylvania Law. Generally, the use of force upon or toward another
person is justifiable when the actor believes that such force is immediately necessary for
the purpose of protecting himself against the use of unlawful force by such other person
on the present occasion 18 Pa.C.S.A. § 505(a).
The law regarding use of force for the protection of other persons is found in 18 PaCSA §
506. It permits the use of force when the actor would be justified under § 505 in using
such force to protect himself against the injury he reasonably believes to be threatening
another person and he believes such intervention is necessary for the protection of the
other.
The Pennsylvania Crimes Code states that conduct which the actor believes to be
necessary to avoid a harm or evil to himself or to another is justifiable if the harm or evil
sought to be avoided by such conduct is greater than that sought to be prevented by the
law defining the offense charged 18 Pa.C.S.A .§ 503(a)(1).
There are specific provisions that relate to the use of deadly force. As stated in the Pa
Crimes Code; the use of deadly force is not justifiable unless the actor believes that such
force is necessary to protect himself against death or serious bodily injury, nor is it
justifiable if the actor provoked the use of force against himself in the same encounter; or
the actor knows that he can avoid the necessity of using such force with complete safety
by retreating.
It should be noted, however that a public officer justified in using force in the
performance of his duties is not obliged to desist from efforts to perform such duty,
because of resistance or threatened resistance 18 PaCSA §505(b). In this context, a
person employing protective force may estimate the necessity thereof under the
circumstances, as he believes them to be when the force is used, without retreating.
Deadly force in law enforcement to prevent the commission of a crime is justified in
cases where the actor believes there is a substantial risk that the person whom he seeks to
prevent from committing a crime will cause death or serious bodily injury to another
unless the commission or consummation of the crime is prevented and that the use of
such force presents no substantial risk of injury to innocent persons. 18 Pa,C,S,A,
§508(d)(1)(ii)(a).
The Fourth Amendment requires peace officers to use only an amount of force that is
objectively reasonable in light of all the surrounding circumstances. Graham v Connor,
490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d. 443 (1989). Assessing the level of
permissible force “requires a careful balancing of the nature and quality of the intrusion
on the individual’s Fourth Amendment interests and the countervailing governmental
interests at stake.” Id. Courts must give due regard to the fact that officers frequently
make split-second judgments about the amount of force to use without the benefit of
hindsight. Graham, 490 U.S. at 396-97. Indeed, a claim of justification cannot be
defeated by showing that the actor used more force than was necessary so long as he
19

 reasonably believed it was immediately necessary to kill in order to protect himself
against death or serious bodily harm. See Comm v. Fisher, 491 Pa 231, 420 A.2d 427
(1980).

DISCUSSION
In the instant matter, the issue is whether the deadly force that was used by Officer
SMITH was reasonable under the circumstances.
With regard to the mental state of the officer as the incident developed, it is clear Officer
SMITH was performing his duty in attempting to apprehend the occupants of a vehicle
which had attempted to elude other members of the York City Police in a high speed
vehicle chase through the streets of the City of York.
Having blocked the fleeing vehicle’s ability to advance with his vehicle, and seeing
another York City Police Unit block the fleeing vehicle’s ability to retreat, Officer
SMITH rightly exited his vehicle with his service weapon drawn in an effort to stop flight
by foot. After the suspect vehicle struck the pole with significant force as it was traveling
in reverse and the driver shifted the gears and proceeded forward, Officer SMITH found
himself within a few feet and directly in the path of the rapidly moving and accelerating
oncoming vehicle. Gay Street is a relatively narrow thoroughfare and that evening had a
row of parked vehicles on the south side. The video obtained from Officer SMITH’s
patrol vehicle clearly shows Officer SMITH directly between the headlights in the middle
of the street.
It is also clear from the locations of the shell casings found at the scene and the locations
of the bullets that struck the vehicle that Officer SMITH was attempting to get out of the
way by moving towards the south side of Gay Street as he fired his weapon towards the
oncoming vehicle.
Officer SMITH was clearly in imminent danger of immediate serious bodily injury or
death at the time discharged his weapon. It is also beyond question that the officer’s fear
of immediate serious bodily injury or death to himself was reasonable.
Accordingly, the action of Officer SMITH in using deadly force in response to a
reasonably perceived attempt to run him over with a motor vehicle was clearly warranted.
CONCLUSION
In the instant matter, the issue is whether the deadly force that was used by Officer
SMITH was reasonable under the circumstances. With regard to the mental state of the
officer, it would have been clear to any reasonable person that Mr. FOSTER’s conduct
presented an imminent danger of death or serious bodily injury at the time Officer
SMITH used deadly force in the discharge of his service weapon. Mr. FOSTER’s entry of
20

 a plea to the charge of aggravated assault upon Officer SMITH confirms that conclusion.
Accordingly, the conduct was justified and no criminal action is warranted.
The matter is now closed.

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