The Times-Tribune

Prosecutor­s: Bar self-defense claim from trial

Murder trial for Carbondale off-duty patrolman set Jan. 17

- BY DAVID SINGLETON STAFF WRITER

Prosecutor­s want a Lackawanna County judge to bar a former part-time Carbondale police patrolman accused of fatally shooting an unarmed man while off-duty from arguing at his upcoming trial that he acted in self-defense or was justified as a law enforcemen­t officer in using deadly force.

Neither potential defense is applicable to former Patrolman Francis Schulze’s case as a matter of law, the district attorney’s office says in motions recently filed in county court.

Mr. Schulze’s attorney, Corey Kolcharno, disagrees, asking the court to deny the prosecutio­n requests and seeking to permit jurors to hear instructio­ns regarding both self-defense and justified deadly force.

Mr. Schulze, 26, is scheduled to stand trial Jan. 17, on first- and third-degree murder and other charges in the Feb. 2 shooting death of Joe Molinaro, 34, of Fell Twp.

Investigat­ors accuse Mr. Schulze, who was off duty at the time, of pursuing Mr. Molinaro after a confrontat­ion outside the officer’s Belmont Street home to Chestnut Street, where he shot the victim twice.

Motions pending

Both sides in the case filed a series of motions this month related to the trial that are now pending before presiding Judge Terrence Nealon.

In asking Judge Nealon to preclude Mr. Schulze from advancing a self-defense claim, the prosecutio­n says the use of deadly force is justifiabl­e in such situations only if, among other conditions, the individual cannot retreat in complete safety and the person against whom the force is used displays a firearm or weapon.

Mr. Schulze cannot use the defense because he has not offered and “will never offer”

evidence necessary to meet the duty-to-retreat requiremen­t or to show Mr. Molinaro was armed, prosecutor­s said.

“On the contrary, he (Mr. Molinaro) displayed open and empty hands on at least three occasions prior to being shot and killed by the defendant,” they argue.

In his response filed last week, Mr. Kolcharno maintains the pretrial record already contains sufficient evidence to support a selfdefens­e claim and says more will be presented at the trial. The prosecutio­n’s assertions call into question “factual disputes, not definitive legal findings,” he contends.

“Factual disputes are within the sole province of the jury to determine,” he says. “The court cannot exclude a defense based on adaptation of one party’s set of facts over another’s.”

In a separate motion, the district attorney’s office argues Mr. Schulze cannot use the law enforcemen­t justificat­ion defense because he was acting “in a purely personal capacity as a private citizen” and not as a police officer at the time of the shooting.

The motion cites the Carbondale Police Department policy manual, which requires an officer who elects to carry a weapon while offduty also to be in immediate possession of his badge and identifica­tion card, neither of which Mr. Schulze had with him. Based on two prior encounters with Mr. Molinaro, Mr. Schulze also had a personal motivation for the pursuit that ended in the victim’s death, it alleges.

“The mere fact that a person is employed by a police agency does not transform actions that they carry out personally into law enforcemen­t actions,” the prosecutio­n says.

Even if the court were to find Mr. Schulze acted in his capacity as a law enforcemen­t officer, he cannot use the justificat­ion defense because he was “not effectuati­ng a lawful arrest when he deployed deadly force,” prosecutor­s argue.

Mr. Kolcharno counters that state law, not Carbondale police policy, controls whether an officer-involved shooting was justified rather than criminal conduct. He describes the allegation that Mr. Schulze had a personal motivation that drove him to shoot Mr. Molinaro a baseless and disturbing attempt by the prosecutio­n to secure a murder conviction.

“The mere suggestion of it is offensive,” Mr. Kolcharno says. Among the other issues Judge Nealon will have to decide is whether to permit Mr. Molinaro’s criminal history to be introduced as evidence at the trial. The defense wants it in; the prosecutio­n wants it excluded.

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SCHULZE
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MOLINARO

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