Commonwealth v. Demarco

Facts

Frank Larwa called the Police to report that Salvatore Zarcone was at his home and had damaged his two cars. Officer Reynolds arrived at Larwa's home and observed that two cars in the driveway next to the home were damaged. Reynolds spoke with Larwa and D, who were the only people present in the home. Larwa told Reynolds that Zarcone had appeared at his home and when he refused to open the door to allow Zarcone inside, Zarcone threatened to injure him and vandalized his two cars. D corroborated Larwa's statements. Reynolds had to leave the home before Larwa and D wrote their statements but he returned later that day to pick up the completed statements. The signed written statements substantiated what they had orally told  Reynolds earlier that day. Reynolds filed a charge of terroristic threats against Zarcone. D testified during the preliminary hearing in a manner consistent with his previous statements. During the trial, Zarcone called D to testify. Instead of confirming his prior statements and testimony, D testified that his statements and testimony were not true accounts of what happened. Zarcone was not at Larwa's house on February 16 and Larwa had vandalized his cars himself. D testified that Larwa had coerced him into telling the false story to Reynolds at the preliminary hearing. D was charged with two counts of perjury, two counts of false swearing, one count of unsworn falsification to authorities, and one count of false reports to law enforcement. D obtained a report from a medical expert in which the expert found that D was coerced by Larwa into telling the false story. P filed a motion in limine requesting that the trial court preclude D from presenting any evidence regarding the duress defense. P argued that if the trial court allowed D to present evidence of the duress defense, the trial court should exclude evidence from any medical experts regarding D's mental condition. The trial court ruled that D could present evidence of the duress defense but that D could not present any evidence from medical experts regarding his mental condition because, according to the trial court, such evidence would improperly bolster D's credibility. At trial, D presented evidence of his own testimony during Zarcone's trial in which he stated that Larwa had forced him to tell the false story by shooting him with a B.B. Gun and choking him, as well as Larwa's testimony at Zarcone's trial in which Larwa stated, 'D's brain doesn't work like yours and mine.' D presented evidence from his mother, that D's father hit D in the head when he was just nine months old and D had to undergo several operations, and ultimately, had a metal plate placed in his head. D continues to suffer from severe headaches and seizures. The mother also testified that D's school informed her that D is borderline mentally retarded and will not be able to intellectually develop above approximately a third-grade level. Tracey Zook, notified D's mother that Larwa was threatening D. Zook confirmed that D receives social security checks because he is mentally disabled.  Zook further testified that she was living at Larwa's home with D when Larwa coerced D into falsely accusing Zarcone. Zook heard Larwa telling D what he should say in court and threatening to either kill D or take away his social security checks if he did not testify as rehearsed. P made a motion requesting that the trial court exclude any additional evidence regarding the duress defense and refrain from instructing the jury about that defense. The court held that in order to establish the duress defense, the evidence must show that: (1) the defendant was subject to a present and impending threat of death or serious bodily injury; (2) the defendant had a reasonable fear that the threatened harm would be made against him; and (3) the defendant had no reasonable opportunity to escape the threatened harm except by committing the criminal act. The court held that D was not subject to a present and impending threat of death or serious bodily injury and that he have a reasonable opportunity to escape the threatened harm. In its charge to the jury, the trial court instructed, 'as a matter of law, there is no legal application of duress that would apply in this particular case.' D was convicted and appealed. The Superior Court affirmed. D appealed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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