Application of 'Castle Doctrine' far from precise

The Pennsylvania Law Weekly
January 17, 2012

Nearly six months have passed since Pennsylvania Gov. Tom Corbett signed legislation expanding the "castle doctrine" to include home appurtenances, vehicles and public places.

Last year, former Gov. Edward G. Rendell vetoed the same bill just before leaving office. Last spring, the measure was reintroduced in the state House and Senate.

Under the old castle doctrine law, the use of deadly force was not justified if the person could safely retreat, except when the threat was made inside a home or business. The old law required a person outside the home to try to get away from a potential assailant before having a reasonable belief that deadly force was necessary for personal protection.

The reintroduced bill passed the state Senate by a 45-5 vote. The new law establishes that a person shall not be required to retreat in the face of an intrusion or attack outside the person's home or vehicle. It further established that a person is presumed to have a reasonable belief that deadly force is immediately necessary to protect oneself, or other innocent people, from the threat of death, serious bodily injury, kidnapping or rape. The legislation also limits civil liability for people who act within the dictates of the statute.

The governor signed the legislation into law during a private ceremony at the state Capitol on June 28, 2011. Since that time there has not been a rash of gun battles across the commonwealth as some had feared, but there is certainly not an absence of interesting cases to test the new law.

Recently, Somerset County District Attorney Jerry Spangler cited the castle doctrine as the basis for not pursuing a homicide charge against a man who fatally shot the lover of the man's wife outside his home with a compound bow, according to the Pittsburgh Tribune-Review.

On Oct. 9, Tony Bittinger left a message for his girlfriend, Carl Woolley's wife, saying he was going to "put a hole in [Woolley's] head." Bittinger then drove 37 miles with his two brothers to Woolley's home in Somerset County, Pa. Once he arrived, swinging a wooden club, he confronted Woolley and began to climb the front porch steps, according to the state police, as reported by the Tribune-Review. 

Bittinger was intoxicated with a blood-alcohol level of .18 percent. Woolley repeatedly asked Bittinger to leave before retrieving a bow and arrow from his living room and shooting him in the chest.

The district attorney acknowledged that the newly expanded castle doctrine played a role in the decision not to prosecute Woolley.

In Westmoreland County, the district attorney withdrew attempted homicide charges against a psychologist, Charles P. Gallo, who shot a man after an incident of road rage. The charges were withdrawn because the motorist who was shot, Patrick James Pirl, refused to testify at a preliminary hearing before a Ligonier District justice, according to the Tribune-Review. 

Gallo told police he was driving between 40 and 45 mph on Route 30 when Pirl allegedly started tailgating him. He told police he felt forced to shoot after Pirl turned his truck around and headed straight for Gallo's car.

"Gallo said he tried to back up away from the white truck when it started to charge at him. He felt that he had no place to go and felt threatened, so he pulled a Glock semiautomatic pistol and fired two shots at the white truck," the Tribune-Review reported.

This case is interesting in that the district attorney filed charges against the shooter, believing Gallo was not justified in shooting Pirl to protect himself from serious bodily injury. Was Pirl's vehicle a weapon, and did Gallo fear for his safety? We may never know, because Pirl wisely refused to testify against Gallo to protect his Fifth Amendment right against self-incrimination.

Washington County police and the district attorney are continuing to investigate the July 2011 shooting of Ezequiel Jeremy Pando of Lovington, N.M., who entered a home in the city of Washington, Pa., by force. He was killed by a gunshot wound to the chest.

Police Chief James Blyth told WTAE-TV that Pando had dated a woman who lived at the home, and that the woman, her current boyfriend and her two children were in the house when Pando kicked in the door.

The police know who the shooter is, but have not yet charged him. The Washington County District Attorney's Office is investigating whether the shooting was justified under the castle doctrine.

Last month, Joshua Levin and his son, Zachary Levin, were called by Joshua Levin's estranged wife to pick her up at her new boyfriend's home in Montgomery County after an argument. The Levins showed up with a baseball bat and wooden club. Joshua Levin was wounded and Zachary Levin, a student at Boyertown Area Senior High School, ended up dead.

According to Montgomery County District Attorney Risa Vetri Ferman, as reported by The Philadelphia Inquirer , Zachary Levin had a club and his father had an aluminum bat. The unidentified boyfriend retreated to his pickup truck and retrieved a .40-caliber semiautomatic handgun that was properly licensed.

Displaying the weapon did not deter the Levins. According to the district attorney, the Levins continued to poke him and hit his truck, eventually trapping him. The boyfriend allegedly struck Joshua Levin in the head with the handgun to back him off.

Zachary Levin then allegedly hit the boyfriend with the wooden club and was shot in the chest. As Joshua Levin was about to strike the boyfriend with the bat, he was shot in the arm, according to the district attorney. The boyfriend then called 911, according to the Inquirer.

A common theme with three of these cases is the "love triangle." Does the heightened emotional connection between these actors in any way diminish the objective nature of the decision to use lethal force? In other words, would someone involved in a relationship with an alleged assailant have some motive to kill for reasons other than personal protection from death, serious bodily injury, kidnapping or rape?

The castle doctrine provides a presumption that a person using lethal force acted reasonably if specific circumstances exist as defined by the statute. Can a prosecutor rebut that presumption by proving that the person who used lethal force had a motive to kill?

Is it unreasonable to let a jury decide if a homicide was the result of an immediate physical threat or an illicit affair with the shooter's spouse?

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