## Facts

- On February 16, 1998, Frank Larwa reported to police that Salvatore Zarcone had come to Larwa’s home and damaged Larwa’s two cars.
- When an officer arrived, Richard DeMarco was present at the home and corroborated Larwa’s account during the officer’s on-scene investigation.
- The officer requested written statements, and DeMarco later provided a signed written statement consistent with what he told the officer.
- Based on the report and statements, Zarcone was charged in connection with the incident.
- At Zarcone’s preliminary hearing on April 9, 1998, DeMarco again testified in a manner consistent with his earlier statements, and the matter was held for court.
- At Zarcone’s later trial on November 10, 1998, DeMarco recanted and testified that his prior statements and preliminary-hearing testimony were false; he stated Zarcone was not present and that Larwa vandalized his own cars.
- After the recantation, the Commonwealth charged DeMarco with perjury, false swearing, and falsification to authorities based on his prior statements and testimony.
- At DeMarco’s trial, he presented evidence that Larwa coerced him into giving the false story about Zarcone, including testimony that Larwa shot him with a B.B. gun, choked him, and threatened to kill him and take his Social Security checks if he did not comply.
- DeMarco’s mother testified that DeMarco was severely developmentally disabled.
- The Commonwealth asked the trial court not to instruct the jury on duress, arguing DeMarco had not produced enough evidence to satisfy the elements of duress.
- The trial court granted the Commonwealth’s request and declined to give a duress instruction; the jury convicted DeMarco.
- The Superior Court affirmed the judgment of sentence.
- The Pennsylvania Supreme Court granted review limited to whether the trial court committed reversible error by refusing to instruct the jury on duress.

## Issues

1. Whether the trial court committed reversible error by refusing to instruct the jury on duress where DeMarco introduced evidence that Larwa used threats and violence to force him to give false statements and testimony.

## Decision

- The Pennsylvania Supreme Court held the trial court erred in refusing to charge the jury on duress.
- The Court concluded DeMarco introduced some evidence that, if believed, could satisfy the elements of duress, and the trial court improperly kept the defense from the jury.
- The Court vacated DeMarco’s judgment of sentence and remanded for a new trial.

## Legal Principles

- A defendant is entitled to a jury instruction on a recognized defense when there is some evidence that would allow a reasonable jury, if it credited that evidence, to find the defense established.
- When deciding whether to give a requested defense instruction, the court views the evidence in the light most favorable to the defendant requesting the charge; the court does not decide credibility or weigh competing proof at the instruction stage.
- Duress requires evidence supporting the statutory elements: an unlawful threat of death or serious bodily injury that caused the defendant to engage in the charged conduct, lack of a reasonable opportunity to escape the threatened harm, and that the defendant did not recklessly place himself in a situation where duress was likely.
- If the record contains evidence of specific threats or violence (such as assaultive conduct and death threats) tied to the defendant’s commission of the charged acts, the duress question is generally for the jury.
- Evidence bearing on the defendant’s susceptibility to coercion, including developmental disability, may be relevant to whether the threats could have compelled the defendant’s conduct and whether avoidance was reasonably possible.

## Conclusion

Because DeMarco presented evidence that Larwa used violence and threats to compel him to make false statements and give false testimony, there was a factual basis on which a jury could find duress; the trial court’s refusal to instruct on that defense removed a complete defense from the jury’s consideration, requiring vacatur of the sentence and a new trial.


Commonwealth v. DeMarco, 570 Pa. 263, 809 A.2d 256 (2002)