Commonwealth v. Demarco
570 Pa. 263, 809 A.2d 256 (2002)
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Rule of Law:
A defendant is entitled to a jury instruction on the defense of duress if there is any evidence in the record to support it under the statutory standard of 18 Pa.C.S. § 309. The proper test is not the strict common law standard but the statutory hybrid objective-subjective standard, which considers what a person of reasonable firmness would do in the defendant's specific situation, including their personal characteristics like health and mental capacity.
Facts:
- Frank Larwa reported to police that Salvatore Zarcone had vandalized his cars and threatened him.
- Richard DeMarco, who lived with Larwa and has a mental disability, corroborated Larwa's story to police, both orally and in a signed written statement.
- DeMarco testified under oath at a preliminary hearing for Zarcone, repeating the story that Zarcone committed the vandalism and made threats.
- At Zarcone's subsequent trial, DeMarco recanted his prior statements, testifying they were false.
- DeMarco testified that Larwa had coerced him into lying by shooting him with a B.B. gun, choking him, and threatening to kill him or take away his social security checks.
- DeMarco is borderline mentally retarded with an intellectual capacity equivalent to a third-grade level and receives social security for his disability.
- At the time of the coercion, DeMarco was living in Larwa's home and lacked transportation or sufficient money to leave.
Procedural Posture:
- The Commonwealth charged Richard DeMarco with perjury, false swearing, and other related offenses in the Court of Common Pleas of Monroe County, a state trial court.
- The Commonwealth filed a motion in limine to prevent DeMarco from presenting a duress defense.
- After the first day of trial, the trial court granted the Commonwealth's motion, precluding further evidence on duress and refusing to instruct the jury on the defense.
- The jury convicted DeMarco, and the trial court sentenced him to imprisonment.
- DeMarco, as appellant, appealed to the Superior Court of Pennsylvania, an intermediate appellate court.
- The Superior Court affirmed the trial court's judgment, agreeing that the evidence was insufficient to warrant a duress instruction.
- DeMarco, as appellant, petitioned for allowance of appeal to the Supreme Court of Pennsylvania, the state's highest court, which granted review.
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Issue:
Does a trial court commit reversible error by refusing to instruct the jury on the statutory defense of duress under 18 Pa.C.S. § 309 when the defendant has presented evidence that could support the defense, even if that evidence does not meet the stricter common law standard for duress?
Opinions:
Majority - Justice Nigro
Yes. A trial court commits reversible error by refusing to instruct the jury on a defense when it is supported by any evidence in the record. The lower courts improperly applied the abrogated common law test for duress, which required an immediate threat of death or serious bodily injury. The correct standard is codified in 18 Pa.C.S. § 309, which establishes a hybrid objective-subjective test: whether the unlawful force or threat was such that 'a person of reasonable firmness in [the defendant’s] situation would have been unable to resist.' This standard requires the fact-finder to consider the defendant's specific 'situation,' including stark, tangible factors like age, health, and 'gross and verifiable' mental disabilities. DeMarco presented sufficient evidence of both Larwa's coercion and his own personal situation (mental disability, dependency) to create a question of fact for the jury. Therefore, it was improper for the trial judge to usurp the jury's role by refusing the instruction.
Concurring - Justice Eakin
Yes. The statutory language of 18 Pa.C.S. § 309 supersedes the common law's three-pronged test, and because the defendant presented evidence of threats, he was entitled to a jury instruction on duress. However, the majority's opinion goes too far in its broad statements about what evidence is relevant to the defendant's 'situation.' While factors like mental retardation may be relevant in some cases, the majority's reliance on a 1960 Model Penal Code draft to include the defendant's subjective mental firmness goes beyond the statutory text. This risks opening the door to expert testimony on the ultimate issue for the jury, and the admissibility of such evidence should be decided in a future case where it is squarely presented.
Analysis:
This decision formally replaces Pennsylvania's common law duress standard with the more liberal, modern standard from the Model Penal Code as codified in 18 Pa.C.S. § 309. It broadens the defense by establishing a hybrid objective-subjective test, which requires the jury to consider the defendant's unique, tangible personal circumstances—such as health, age, and mental capacity—when evaluating the coercion. This precedent makes the duress defense more accessible, particularly for vulnerable defendants, and firmly places the evaluation of such evidence in the hands of the jury rather than the judge.
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