Attorney: Uniontown man feared for his life when he fired at driver
By Liz Zemba
Published: Thursday, Nov. 15, 2012, 12:01 a.m.
Citing the state's expanded Castle Doctrine law, a Fayette County attorney asked a judge to dismiss criminal charges against a Uniontown man accused of firing seven shots from a 9mm handgun at the driver of a small SUV that rammed the back of his car.
Ralph Ore Fisher Jr., 22, is charged by state police with attempted homicide, aggravated assault, simple assault, reckless endangerment, criminal mischief and propulsion of missiles into an occupied vehicle. Police said Fisher fired the shots at 10:30 p.m. May 15 at a Geo Tracker that hit his Hyundai Elantra on Pittsburgh Street in North Union.
The driver, Derek McKulka, 29, of Connellsville, suffered gunshot wounds to both hands when a round entered his right hand, exited, then lodged in his left palm.
McKulka, who later was charged with driving under the influence in connection with the incident, testified during a July 27 preliminary hearing that he was following Ore too closely and hit his vehicle when Ore braked suddenly.
Fisher's attorney, Sam Davis of Uniontown, asked Judge Nancy Vernon on Wednesday to dismiss the charges.
Davis said the Castle Doctrine dictates that because Fisher was in immediate fear for his life when he fired the shots, Vernon can dismiss the criminal charges instead of letting a jury decide the case.
“Castle Doctrine, historically, has always been a legal determination by the courts,” Davis said. “So you can decide a couple of things — whether he believed his life was in danger, and if he did, (then) he is allowed to use deadly force.”
Davis said Fisher got out of his vehicle after the collision and pulled a handgun when McKulka drove his vehicle toward him.
“What could be more immediate than someone coming after you in a vehicle in the middle of the road after he has just rammed your car?” Davis said.
Davis said the statute permits deadly force when a person feels it is “immediately necessary to protect himself against death.” In addition, he said, it contains language that allows “law-abiding people to protect themselves, their families and others from intruders and attackers without fear of prosecution or civil action for acting in defense to protect themselves.”
Other states, including Florida, hold separate hearings when the Castle Doctrine is invoked to determine whether prosecution is appropriate, he said.
“This is a unique opportunity for us to decide how we are going to deal with this Castle Doctrine,” Davis said, indicating he is aware of only two other Pennsylvania cases in which the expanded statute was invoked.
Davis noted Fisher has no prior criminal record, but McKulka in 2007 pleaded guilty to prohibited offensive weapons, risking a catastrophe, driving under the influence, reckless endangerment and careless driving.
State police filed the charges after four pipe bombs were found outside a car McKulka was driving when it crashed in April 2006 on Route 40 in Henry Clay Township.
As part of a plea bargain, more serious charges of possession of weapons of mass destruction and arson were dropped and McKulka was sentenced to six months' intermediate punishment.
District Attorney Jack Heneks said a jury should decide whether Fisher had a reasonable belief his life was in danger. He said that in statements to police, Fisher acknowledged he “might have” had an opportunity to move out of the vehicle's path before he fired his handgun.
Fisher, an Iraq war veteran who served with the Army, told police he “engaged” his target when he fired and intended to kill the driver, Heneks said.
Heneks said even if McKulka had been following too closely, Fisher contributed to the collision by braking suddenly. McKulka was attempting to leave the accident scene when he was fired upon, Heneks said, by initially backing up, then driving toward and around Fisher.
Vernon did not immediately rule on the request, indicating she will hand down an order at a later date.
Liz Zemba is a reporter for Trib Total Media. She can be reached at 412-601-2166 or firstname.lastname@example.org.
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