Two York County men charged with assaulting Pennsylvania Game Commission Deputy Warden David Fidler on game commission lands near Saint Clair on Dec. 1 will have their cases heard in Schuylkill County Court. The two men were riding all-terrain vehicles when they encountered Fidler.

District Justice David A. Plachko of Port Carbon, presided over the preliminary hearing for the two men, Wade Michael Winemiller, 57, of Wrightsville, and Thomas Earl Kelly Jr., 57, of Shiremanstown.

First Assistant District Attorney Michael Stine will be prosecuting the case, while attorney Sud Patel will represent Kelly and Jeff Markosky will represent Winemiller.

The two men were originally charged with aggravated and simple assault, robbery/theft, harassment and disorderly conduct and criminal conspiracy.

The robbery charge was dropped.

The encounter between the three occurred at 9:20 a.m. Dec. 1, which was the first Saturday of the state’s two-week firearm season for white-tailed deer. The co-op area is called The Grand property, located near Arnots Addition and Peach Mountain Road. Game commission “co-op” properties are privately-owned tracts turned over to game commission management by the land owner. All-terrain vehicle riding is prohibited on this property.

Winemiller and Kelly were riding ATVs and encountered a man clad in green game commission attire, complete with arm insignia and badges, also wearing a blaze orange vest and cap.

According to Fidler’s testimony, when he stepped into the path the two men ignored his shouted orders to stop and get off their ATVs.

Fidler’s testimony

“I put both my hands up, yelled stop, state officer, stop!” Fidler said. He testified that one ATV rider “hooked a 90-degree to the left and gave it fuel.” The other went to the right, both heading up steep terrain. Fidler said that both ATVs stalled and rolled backward downhill.

“I yelled stop, get off the ATV, sit on the ground,” Fidler said. “Neither was compliant.”

Fidler testified that Winemiller said, “I thought you were a hunter.”

He pointed to his badge.

He said Kelly’s ATV was precariously balanced, and that as Kelly was attempting to restart it, he grasped him by the rain jacket outerwear he wore to keep the ATV from rolling over. As he did that Fidler said Kelly tried to strike him with his fist.

Fidler backpedaled and removed his service revolver from his holster. Kelly stayed on his ATV, attempting to start it, Fidler re-holstered his gun. Kelly’s ATV rolled over, but Kelly was able to roll it back onto its tires and again tried to start it.

Fidler attempted to take the key from the ignition, and Kelly grabbed his hand and the two struggled. Fidler moved back, unholstered his revolver, but re-holstered it as Kelly stayed with the ATV. Finally, Fidler was able to remove the key from the ATV. During this time, Winemiller stayed by his ATV, Fidler testified.

Fidler put the key into his pocket, backed up, and pulled out his cellphone to call for assistance.

He testified that as he did so, Kelly hit him in the head, knocking off his glasses and cap. Fidler backed away and again drew his gun, holding it at his side. He then re-holstered it and drew out his pepper spray. He said he re-holstered his gun, because “the threat was gone.”

Fidler said that Kelly and Winemiller approached him in a “flanking” movement. He used the pepper spray on Kelly, who wiped it away and kept approaching as Fidler “sprayed him in bursts three or four times.”

“He kept coming and I got my firearm out,” Fidler said. He said he struggled with the two men, who he said started beating him in the head and kicking his legs. He was forced to his knees and one of the men “football kicked him in the face” and he felt kicks coming into both sides of his ribs, he said. Fidler said that he knew both men were trying to take away his gun because he remembers alternately seeing bare hands and gloved hands during the struggle.

“I was losing the battle,” Fidler said. “They were gonna kill me. I was in the fight of my life.”

Fidler said the men were trying to turn the gun toward his torso. He decided to try to empty the gun, so that if the men got it from him, it wouldn’t have any ammunition left. He got off one shot, into the ground, but the slide for the gun — which should move successive rounds into the chamber — failed. He was able to remove the magazine from the gun before it was taken from him.

“I put my hands up and I said, it’s done, it’s over,” Fidler said. As the two men moved away, one ejected a round from the chamber. They told him that the gun could be found “at the next intersection” of the path. Fidler went to his truck and radioed for assistance.

He was treated and released at a Pottsville hospital, with bruises and abrasions to his shins, knees, face and ribs, and a broken nose.

Patel’s cross examination

Patel pointed out that the ATV riders had only ridden about 60 to 80 feet onto co-op property, and that neither man carried a weapon. Patel also said it was Fidler who initiated all the contacts between the three.

Trooper Matthew A. Tonitis of Troop L, Schuylkill Haven, said the evening of the altercation, he received information from another trooper, who had been given information on the identify of one of the two men. He learned that a landowner in the area rents campsites to ATV riders and contacted that person.

Tonitis also reached out to another trooper who has experience with motorcycles and ATVs. At the scene, investigators had retrieved two plastic pieces broken from the hand guard of one of the ATVs. That trooper, given a description of the ATVs, identified the model. With that information, Tonitis was able to describe the ATVs to the campsites’ owner and a person from Maryland who leases a campsite. Eventually he got the names of Kelly and Winemiller.

“I traveled to York County the following Sunday, to Winemiller’s house,” Tonitis testified. “He said, ‘I knew you guys were coming” and also said ‘This was a misunderstanding.’”

Winemiller also said that he should have gone to police. He also told Tonitis that Fidler used his pepper spray on them “as soon as they came around the corner” and was the aggressor.