dissenting.
I join the dissent of Mr. Justice Larsen. I write separately only to emphasize certain facts which I believe the majority has not considered.
During the grievance hearing, several witnesses testified about what happened on May 25, 1986, including three police officers who were involved in or witnesses to the events for which Officer Bojanowski was fired; Captain Thomas Barron, Officer Joseph Tangradi and Ronald Bojanowski.
Captain Thomas Barron testified that he saw the Ford Granada vehicle attempt to strike two citizens and then observed the car head toward Officer Tangradi’s direction. He saw the vehicle strike Officer Bojanowski, and saw him sprawled on the hood of the vehicle. He observed Officer Tangradi approximately a car length or so from the rear of the car, in a crouched position. As the car’s backup lights *309came on, Officer Barron observed two muzzle flashes and heard four shots. He stated that the muzzle flashes were from Officer Tangradi’s weapon. The vehicle stopped moving backwards and began to move forward up the street and “[tjhere was a rapid succession of gunfire from Officer Bojanowski’s gun.” Officer Barron also testified that the car was three to four car lengths up the street when the last shot was fired. The other pertinent testimony was as follows:
A. Everything is happening quickly; this man is trying to get away. He hits the gas to go north on Livingston Street. There are two gunshots from Tangradi and the next gunshots come from Bojanowski.
Q. As the car is hitting the gas and going up Livingston Street?
A. That’s right. As soon as the car hit the gas and it became clear to me that I didn’t believe he was coming back, I gave an order to cease firing.
# % # ¡f: ^ %
Q. The last shot that would have been fired from Officer Bojanowski’s weapon, can you indicate for us — you said it was about three or four car lengths from the car? This thing is not drawn to scale, but could you roughly indicate for us where you believe it was?
A. Well, the car was really on the gas. He was moving out.
is }}! * % * S]!
Q. Were there shots still being fired after you had given an order?
A. No. It was my impression that my orders were not violated.
is is :}: sfs i: ü
Q. Bojanowski was up the street and he had just been—
A. I don’t know. He had just been here. He would be up a little bit up the street; I don’t know where he—
Q. He didn’t run up the street shooting at this car, did he?
*310A. No. He wound up a little bit up the street. I don’t know where the shots were fired from. There was a rapid succession of shots.
Captain Barron also testified that the whole incident involving the shooting took ten seconds or less.
Officer Tangradi, who also was involved in the incident, testified in a manner consistent with Captain Barron. Tangradi first observed the Ford Granada when it attempted to hit a bystander1 and then travelled toward himself and Officer Bojanowski.
At the time Bojanowski fired his last shot, Tangradi also stated that the car was “[approximately two car lengths, maybe three [from Bojanowski] at the very outside.” The next to last shot was fired, he testified, when the car was not even off the sidewalk. Tangradi stated that the command to stop firing came immediately after they had both stopped firing. “At the time when he did that, I had assured him we had already stopped.” According to this witness, Bojanowski stated that he thought that he or Tangradi was being fired at from inside the car.
Consistent with the statements of Captain Barron, Tangradi testified that Officer Bojanowski did not run up in the street “popping rounds off at the vehicle.”
Officer Bojanowski also testified about the events that occurred on the night in question. Pertinent sections of his testimony are as follows:
Q. Now, when you did shoot, what prompted you to shoot at the car when you did?
A. I was returning gunfire. I was returning the fire that I thought was being fired at me.
* * * * * *
Q. Is it correct that you. did not fire out of fear that the vehicle would again be used as a weapon to strike you?
A. I didn’t even think of that. All I know is when I heard the gunfire, I opened up.
*311Q. You were no longer concerned, at that point, at the point that you began firing, with the thought that the car might be used as a weapon to run you down?
A. I can’t say that, because it could have still been. My mind — the fright of being hit by this automobile, and then the gunfire, I just returned fire immediately.
Q. You were returning what you perceived of as fire, you were not firing to avoid being struck by the vehicle.
A. Correct.
>js sfc >¡c * >¡e *
Q. Is it correct, then, that the perceived danger that you perceived, that came when you were pinned on the vehicle, that particular danger was over, as you felt it, or perceived it at the time.
A. I wouldn’t know that. He could have backed up.
* * * * * *
Q. You were firing, then, in an effort to apprehend, after a gun shot — after what you believed had been gunfire directed at you?
A. To return the gunfire; to stop whoever was firing at me; to stop the gunfire that was coming at me, or anyone else, any way I could stop that person.
Q. Is it correct you were not acting out of a perceived fear of danger to anyone else?
A. No, I was—
Q. For whose safety did you fear?
A. Anybody that was in that area. I thought he had just killed a police officer, or possibly injured him fatally, and a civilian. There are — there could be anyone on that street, and I thought he could take somebody else out, and including myself.2
*312Q. What gave you a basis to believe [that the occupants were armed]?
A. There was a beating earlier where someone was put in the hospital in critical condition, and also someone had mentioned that earlier, that a — someone had a gun.
Q. When’s the first time you — if ever, that you became aware that Tangradi was on Livingston Street?
A. After the shooting was over.
Q. How much after?
A. A few seconds. I turned around and saw him
* * # * * *
A. [I said] “you all right?” I was shocked.
Sj{ * * Sj< # Ik
A. I was shocked. I thought Tangradi had gotten it. I spun around and he was right here.
Q. Why did you stop shooting?
A. The car got far enough away. I felt I didn’t have to fire any more on it, and that firing at the auto, at that distance, would be inaccurate any way. It’s too far away by now, and the danger basically had passed. I still was concerned as the car was going up the street. He was all over the highway. If anybody came out, he would have run them over, God forbid, killed them.
I believe that this testimony clearly supports Bojanowski’s claim that he acted properly and within the department guidelines and regulations.
Training Bulletin No. 1 states in pertinent part:
B. a police officer is justified in using deadly force when he/she believes that such force is necessary to prevent death or serious bodily injury to himself or to another person.
C. A police officer is justified in using deadly force to prevent a person fleeing from arrest or police custody *313when he/she believes that no other alternative exists to effect the arrest and knows that:
1. The person fleeing should be arrested for committing or attempting to commit a forcible felony.
DO NOT FIRE YOUR WEAPON FROM OR AT MOVING VEHICLES
UNLESS the situation poses a DIRECT and IMMEDIATE threat to the life of the officer or another, and then only as a last resort.3
Directive 10 states, in part:
DO NOT FIRE YOUR WEAPON
at a person fleeing arrest or police custody UNLESS: YOU KNOW the fleeing person possesses a DEADLY WEAPON, which he/she has USED or indicates he is about to USE, AND other alternative exists to effect the arrest and all other means of apprehension have been exhausted. DO NOT FIRE YOUR WEAPON UNLESS YOU KNOW, the person fleeing arrest or police custody has committed or attempted to commit a forcible felony.
Clearly, Officer Bojanowski’s actions were in accordance with these two regulations.
It was perfectly reasonable to assume that a man who had tried to run over two civilians and two police officers, whom Officer Bojanowski believed was firing a weapon at him, would either make a U-turn and come back at the police officers or would attempt to strike another civilian with his vehicle. This madman behind the wheel without question posed a very real and serious threat to the civilians *314who he attempted to run down; to Officers Tangradi and Bojanowski; to other officers present at the scene; and to any bystander unlucky enough to be within striking range of his vehicle.
Nevertheless, since May 26, 1986, this issue has been litigated in the courts and numerous hours have been spent trying to ascertain exactly what happened in the ten seconds between the time the car came down the street aiming at two citizens and the time when the last of Bojanowski’s six shots was fired. It strains credibility to believe that a precision-like dissection of this ten second incident results in reasonable people actually debating whether this policeman’s split second decision to fire the additional shots in rapid succession — when no cease fire order had been given — was warranted.
My impression of this case is that it has been decided not on the facts, but by the unfortunate results of this incident. A small child in the back of the Granada vehicle was injured with a bullet. However, it was not Officer Bojanowski’s decision to place that child in such a perilous position. The driver of the Granada vehicle made that decision; the veritable boy scout of a citizen who aimed his vehicle at two civilians, causing them to leap behind a truck in order to avoid being hit; the same driver who aimed at and struck Officer Bojanowski with his vehicle in an attempt to crush him into the wall; the same driver who backed up and attempted to run over Officer Tangradi and then head in Officer Bojanowski’s direction, furiously accelerating. Officer Bojanowski believed that Tangradi and two bystanders had been fatally injured — he was absolutely justified in firing at the vehicle until the cease fire order.
I believe that the arbitrator looked at the physical evidence — 45 caliber shells at intervals along the street — to support his conclusion that Officer Bojanowski ran up the street.4 He also assumed that the car was moving away *315from the officers when Bojanowski fired his first shot. This was not the testimony.
Further, the arbitrator relied on the prohibition “DO NOT FIRE YOUR WEAPON unless you know” that the person possesses a deadly weapon. The arbitrator apparently ignored the fact that the vehicle, as it was being used, was as deadly a weapon as a firearm.5 Furthermore, any police officer who reasonably believes that he is being fired upon has a right to defend himself. He need not be shot first before making the decision to return fire.
For the reasons stated herein, I would not find that the arbitrator’s findings are supported by substantial evidence in so far as he disregarded a vast majority of the testimonial evidence. I dissent.
McDERMOTT, J., did not participate in the consideration or decision of this matter.. There is a discrepancy concerning whether the Granada tried to hit one or two bystanders.
. I note that the arbitrator apparently misinterpreted this testimony in his opinion, where he stated: "The grievant testified that he was not in fear of his life or that the vehicle would again be used as a weapon, but used his weapon only because he thought he was returning gun fire.”
. On August 12, 1986, Directive # 10 was modified to add language as follows:
D. Shooting at a vehicle is considered the used of deadly force, and is only justified if the vehicle or its occupants present an immediate threat of death or serious bodily injury. Shooting at a vehicle or its occupants merely to prevent flight is not justified at any time.
While this language creates a stricter standard for discharging a firearm, this modification cannot be retroactively applied to the incident forming the basis for this case.
. It should be noted that two hours passed between the time of the shooting and the time the forensic team found the first shell casing. With the excitement and the number of people milling about, it is *315entirely possible that those shell casings were no longer in their original resting place by the time they were found. In any event, the physical evidence is contradicted by the testimonial evidence. Since the arbitrator did not find all the witnesses not credible, it was an abuse of his discretion to disregard all their testimony. There was not a scintilla of testimonial evidence that Officer Bojanowski ran down the street, chasing the vehicle and firing at it.
. 18 Pa.C.S.A § 2301 defines “deadly weapon” as follows:
Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury, (emphasis supplied).