Commonwealth v. DeMarco

Facts

On February 16, 1998, Frank Larwa called the police and reported that Salvatore Zarcone was at his home and had damaged two of his cars. An officer arrived and observed that two cars in the driveway were indeed damaged.

Larwa told the officer 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. The defendant corroborated Larwa’s statements. They both made written statements regarding their allegations.

Zarcone was charged for damaging the cars. The defendant testified at the preliminary hearing in a manner consistent with his written statement. The trial court decided that there was enough evidence to proceed with the charges against Zarcone. However, at Zarcone’s trial, the defendant testified that Larwa had damaged the cars himself and that Zarcone wasn’t at Larwa’s home on that day. He testified that Larwa had coerced him into telling the false story.

The defendant was charged with perjury. At his trial, he attempted to assert a duress defense. He presented evidence to suggest that Larwa had coerced him into falsely testifying by shooting him with a B.B. gun and choking him. He also threatened to take his social seucity checks and kill him. The defendant’s mother testified that the defendant was intellectually disabled and does not function above a third-grade level.

The trial court applied a three part test for duress that required the defendant to 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. It concluded that he failed to show he was subjected to a present and impending threat of death or serious bodily injury, and that he did not have a reasonable opportunity to escape the threatened harm except by committing the criminal offenses.

As a result, the trial court did not allow him to present the defense, and he was convicted.