Commonwealth v. DeMarco

In February 1998, Frank Larwa told police that Salvatore Zarcone had damaged his two cars. When officers arrived at Larwa’s home, Richard DeMarco (defendant) corroborated Larwa’s account. Zarcone was charged in connection with the incident. During the preliminary hearing, DeMarco again corroborated Larwa’s account of the events. During Zarcone’s subsequent trial, however, DeMarco testified that his prior statements and testimony were false and that Larwa had coerced him into telling the story about Zarcone. The Commonwealth of Pennsylvania (plaintiff) charged DeMarco with perjury, false swearing, and falsification to authorities. At trial, DeMarco presented evidence that Larwa had coerced him into falsely testifying by shooting him with a B.B. gun, choking him, and threatening to kill him and take his social security checks. DeMarco’s mother further testified that DeMarco was severely developmentally disabled. Pennsylvania moved to request that the court refrain from instructing the jury on the duress defense. The court granted the motion, finding that DeMarco had not presented sufficient evidence to support all three required elements of a duress defense under Commonwealth v. Berger, 417 Pa. Super. 473 (1992). The jury convicted DeMarco. DeMarco appealed, contending that the trial court erred in refusing to instruct the jury on the defense. The superior court affirmed. DeMarco again appealed.