The Failure to Check the Phone Records for the Night of My Brother’s Death

This post examines the dismissive and unacceptable response about phone records by the N.Y.S.P. investigators directly involved in the case of the horrific truck fire that killed my brother Mark and by those officials questioned later about it.

Previous posts (October 16, 2016; February 28 and April 30, 2019; and May 31,2020) have referred to the problem that the N.Y.S.P. investigators did not check the phone records for the call that allegedly took place between my brother’s wife Susan and an acquaintance of theirs named Pete Rapacioli from about 10:30 to 11 p.m., immediately before the truck fire.   According to criminal attorney Michael Kelly, those records should have been checked as a routine matter, especially since the state police investigators were well aware that Mark and Susan’s marriage was very troubled and a divorce was looming.

Of course, accuracy of the timeline of events immediately preceding the violent death of a victim is fundamental to a proper investigation.  The phone records would also have indicated if Mark had called any of his friends that day.  The state police investigators should have tried to find out what calls my brother might have made, since the lead investigator Edward Kalfas informed Kelly that they could find no one who had seen Mark out the day of the fire (see, however, post of August 11, 2014, on the report that Mark was at a neighbor’s house shortly before the fire).

Atty. Kelly in September 2005 brought up the issue of the phone records in a meeting with Kalfas and his then-superior John Wolfe.  According to Kelly, Kalfas simply replied that he hadn’t checked those records.  Kelly then advised those state police officials to obtain the phone records.

When in a phone conversation soon afterwards I asked Wolfe if he was going to retrieve those phone records, he asked, “What phone records?”  After I explained why they should have been examined, he insisted that they would not be checked unless the case was re-opened.  He stipulated that re-opening the case depended on what he would find in Mark’s medical records.

Once he obtained the medical records, however, Wolfe claimed that he had found nothing about the injuries to Mark’s forehead and left side of his face, reported to me by his attending physician, or the gash specifically on Mark’s forehead, reported to Kelly by a firefighter on the scene of the truck fire.  Wolfe’s confidence about the absence of any reference to those injuries seems very puzzling, since he admitted that he could not decipher much of the doctor’s handwriting.  He also did not have any medical personnel interpret the CT scan of Mark’s forehead.

In a phone conversation in February 2006, I brought up the issue of the phone records to N.Y.S.P. Capt. George Brown.  His response was that the (alleged) phone call between my brother’s wife and their acquaintance Pete Rapacioli was no evidence of a murder.  In a phone conversation in April 2007, N.Y.S.P. Lt. Allen similarly dismissed the importance of the phone records by claiming that they would not “prove” anything.

The point, however, is that there was no firmly established record of the call as the basis of an accurate timeline, only the undocumented claim that there was such a call.  The call itself needed to be confirmed, and the time needed to be confirmed.  The only event that day (prior to the arrival of officials on the scene) that is established by record for an accurate timeline is the 911 call made by Mark’s wife (on which, see most recently post of June 30, 2018).

In a meeting with Cattaraugus County District Attorney Lori Rieman, also attended by former N.Y.S.P. Sr. Inv. John Ensell, Kalfas’s immediate superior at the time of the investigation into Mark’s death, D.A. Rieman stated that a subpoena would have been required and insisted that serious evidence of criminal activity would have been necessary to request the phone records.  What constitutes “serious evidence” in such a situation?  As mentioned above, Kelly, who was an experienced criminal attorney and former A.D.A. in Erie County, indicated that obtaining phone records in cases like Mark’s is a routine matter.

In a phone conversation in August 2014, N.Y.S.P. Capt. Steven Nigrelli insisted that the state police cannot get phone records.  However, there must be a chain of command by which the state police can, and do, request and obtain phone records for their investigative purposes.

Nigrelli also stated that District Attorney Edward Sharkey knew about the (alleged) phone call and determined that the case should be closed.  As discussed in a recent post (see April 30, 2021), it is unclear to what degree D.A. Sharkey was apprised of the facts of Mark’s case.  He certainly should have been fully knowledgeable about the case before making any decision to close it.

Although I sent a letter to D.A. Sharkey in October 2008 about serious problems with the investigation into my brother’s case, including the failure to check the phone records, he did not even bother to respond.  If the state police investigators were not concerned about documenting statements for as accurate an account of events as possible, the District Attorney certainly should have been.

Ensell’s Insistence on Mark’s Drinking as the Cause of His Death

Previous posts have referred to the insistence by the N.Y.S. Police that my brother caused his truck fire because of his (presumed) excessive drinking.  When I spoke by phone with several N.Y.S.P. officials not directly involved in the investigation into Mark’s death, virtually all insisted that Mark had caused his own death, most likely by suicide (see esp. post of November 30, 2019).

Contrary to earlier statements she had made to me by phone, Cattaraugus County D.A. Lori Rieman vigorously defended the investigation in a face-to-face interview I had with her in May 2010, which was also attended by John Ensell, then an investigator for D.A. Rieman.  (On that interview in general, see posts of March 23 and April 20, 2011.)  This post focuses on statements made to me at that interview by Ensell, who in 2003 was an N.Y.S.P. Senior Investigator and the immediate superior of Edward Kalfas, the lead investigator in Mark’s case.

At my meeting with D.A. Rieman, Ensell insistently focused on my brother’s drinking. I raised the problem of the gas can suspiciously found in the cab of Mark’s truck, where he never put gas cans (see post of July 22, 2012).  Ensell, however, did not respond directly, but instead emphasized Mark’s drinking.  Yet in December 2003, I informed Cattaraugus County D.A. Edward Sharkey by letter that one specific friend of my brother’s informed me adamantly that Mark never put gas cans in the cab of his truck.  As Kalfas’s superior, Ensell must have been aware that Kalfas had met with D.A. Sharkey and his investigator Michael Malak in late December 2003 to discuss, among other items, letters I had sent to the D.A. with information I had obtained.

In addition, an anonymous individual publicly mentioned the gas can issue in the comment section of an online article by Rick Miller of the Olean Times Herald on the debate between Edward Sharkey and Lori Rieman for District Attorney.   I quote it verbatim:

Injustice wrote on Nov 1, 2009 4:36 PM:

I am sorry that Barb PavLock and Frank Romer had to live with a failed investigation in the loss of Mark Pavlock. Anyone who knew Mark would know that he would not have a gas can in his truck! ENOUGH IS ENOUGH. Get Sharkey out!!

Similarly, the person who sent an anonymous letter to me in 2014 found it hard to believe that Mark would have put a gas can in the cab of his truck, noting that he or she had seen Mark “transport gas cans in the back of his truck, going to the extent of securing the gas can to the bed of his truck to avoid it moving around the truck bed” (see post of August 11, 2014).

In the meeting with Rieman and Ensell, I also mentioned that, according to my brother’s attending physician at the burn unit, the high serum alcohol level listed in Mark’s autopsy report had to be wrong.  Ensell, however, insisted that Mark had to have been drinking (presumably heavily) the day of his truck fire.  He offered as support the high blood alcohol level reported when Mark was arrested for DWI the day before the truck fire.  (On the problematic circumstances leading up to that arrest, see posts of July 28, 2011, April 18, 2013, September 14, 2014, October 17, 2014, July 15, 2015, and June 21, 2016).  Yet again, I had reported in my December 22 letter to D.A. Sharkey a statement by my brother’s friend Todd Lindell that Mark was taking his DWI in a responsible manner and planned to be careful about drinking in order to keep some form of driver’s license to get to his job as a security guard (see post of March 27, 2012).

In addition, Ensell mentioned comments by “certain people” that Mark often sat in his truck drinking six packs.  An entry for 10/25/03 in Kalfas’s narrative of the police report refers to an individual (name redacted) who stated that he often saw Mark “sitting alone in his truck near his residence” and when he stopped to speak to him, found Mark “drinking alcohol or intoxicated.”

However, that and other statements about my brother’s drinking make no reference to the time period involved and are unsubstantiated.  A different perspective was offered to me by several of Mark’s close friends.  For instance, when I spoke with Sidney Lindell, who lived in the general neighborhood and was a deputy sheriff, he mentioned being surprised to learn that Mark was drinking in that period, as (Lindell asserted) he had been off alcohol for years.

A number of people who knew my brother well indicated that Mark began to drink again in the period when his marriage was disintegrating. According to Ensell himself, it was clear that a divorce was imminent.  Yet Ensell gave no credit to the fact that Mark was heavily involved in volunteer and charitable work during the period of the truck fire, including coaching little league baseball and engaging in a football pool for student scholarships.  As one friend of his mentioned, Mark was looking forward to returning to his favorite sport of golf, at which several friends mentioned he was very good.

When I brought up the subject of the heavy drinking of Mark Marowski, the off-duty police officer who got into a personal argument at a local club with my brother the day before the truck fire and called in to the Salamanca police on my brother when he left the club, Ensell had nothing to say.  D.A. Rieman, however, asserted that Marowski himself later did get a DWI of his own.  (On Marowski’s eventual DWI in 2006, see posts of September 22, 2010, and July 28, 2011).  Again, Ensell had nothing to say.

Although he was very vocal about my brother’s drinking, Ensell himself ironically remained completely silent on the excessive drinking of this fellow police officer.  How would Ensell have responded to the anonymous letter I received in 2014 claiming that Marowski had been having an affair with my brother’s wife?

Why Did D.A. Sharkey Declare Mark’s Death an Accident in December 2003?

In an entry for December 30, 2003, in the police report of my brother’s death, Edward Kalfas, the lead N.Y.S.P. investigator in Mark’s case, records the Cattaraugus County District Attorney’s conclusion about the case.  I quote it verbatim: “After examining all associated paperwork, D.A. Sharkey states “despite rumors and innuendo, there is no evidence to support the possibility of homicide or suicide.  The case will be classified as an accident, consistent with the findings of the Medical Examiner’s office.”  Although the investigation was not officially closed until August 17, 2004, it is clear from Kafas’s entry that D.A. Sharkey had already made up his mind.

Sharkey obviously did not agree with Kalfas’s view that my brother’s death was most likely a suicide (on the view of the N.Y.S.P., see esp. post of January 27, 2014).  There was, in fact, no evidence to support that position, in spite of the claim to me by Mark’s daughter (which she subsequently denied to Kalfas) that my brother had left her a suicide letter (see esp. post of November 23, 2013).  One cannot determine anything about the 911 call made by my brother’s wife (though one individual who heard it when it was being taped found it problematic), since Kalfas does not mention it in his narrative in the police report and, when I tried to obtain a copy through a FOIL request, the N.Y.S.P. claimed that it could not be located (see post of June 30, 2018).

It is surprising that Sharkey could rule out the possibility of a murder as early as December 30, 2003.  Although Sharkey cites “the findings of the Medical Examiner’s office,” M.E. Baik performed Mark’s autopsy in Erie County the day after his death but at that point would have had no knowledge of the broader circumstances surrounding the truck fire.  On December 25, 2003, a nephew informed me that Mark’s attending physician at the burn unit of the Erie County Medical Center had stated to him that in his opinion Mark’s death was not an accident.  I immediately reported that information in a letter to D.A. Sharkey, but he appears not to have followed up on it.

At the time of my letter to Sharkey of December 26, 2003, I did not know the identity of my brother’s attending physician at the burn unit.  But nothing in the police report that I obtained through a FOIL request indicates that Kalfas interviewed Mark’s attending physician.  (On my later conversations with Dr. Edward Piotrowski, who was very concerned about the severity of Mark’s burns, and the failure of the N.Y.S.P. to interview him, see esp. post of March 31, 2018).

How much information did D.A. Sharkey actually have and assess before deciding on accident and ruling out the possibility of murder?

Did Kalfas inform Sharkey that my brother had got into a (reportedly nasty) argument at a local club with Salamanca police officer Mark Marowski, who called the Salamanca police on my brother as soon as he left the club, resulting in my brother’s arrest for DWI the very day before his truck fire?  There is no mention of that argument in the police report (see post of February 28, 2021).  When Marowski himself was later arrested for DWI and speeding, D.A. Sharkey appointed a special prosecutor, explaining (as the court record indicates), “[B]ecause the defendant is a police officer for the City of Salamanca, therefore, it would be difficult, if not impossible, for a member of this office to prosecute this case.”

Was Sharkey aware of the pool of Mark’s blood found on the driveway the night of the truck fire (see posts of May 24, 2012, and August 31, 2020)?  That pool of blood is only briefly mentioned in Kalfas’s narrative in the police report.  Referring to an interview with Mark’s wife, Kalfas states in the entry for 12/12/03 that Susan “has no explanation for the blood located in the driveway.”  No rush order was made for that blood, and test results did not come back until February 23, 2004.

Did Sharkey know about the wound on Mark’s forehead (see posts of January 29, 2019); April 30, 2020; and August 31, 2020)?  It would appear that he did not, since there is no reference to the wound at all in the police report.  As mentioned previously, Dr. Piotrowski, who noticed swelling on my brother’s forehead and ordered the CT scan that revealed deep soft tissue swelling, stated that no one ever questioned him.  Firefighter Wayne Frank, who saw a wound on Mark’s forehead that looked as if someone had hit him with a nine-iron, was also never interviewed (see most recently October 31, 2020).

D.A. Sharkey appears to have reached a conclusion precipitously without the knowledge or consideration of the full scope of facts surrounding my brother’s death.  Mark deserved better.