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Perricllia v. Commonwealth3/8/1985
Tried by a jury under an indictment charging him with the first-degree murder of James E. Mercer, Rex Allen Perricllia was found guilty of murder of the second degree. The trial court sentenced him in accordance with the jury verdict to confinement in the penitentiary for 20 years. At trial, Perricllia admitted having shot Mercer but testified that he did so in self-defense. On appeal, Perricllia contends that the evidence was insufficient to support the verdict and that the trial court improperly instructed the jury.
The chief witness for the Commonwealth was Mark Anthony Wilson, age 19, a friend of Mercer. Wilson testified that about 11:15 p.m. on January 28, 1983, he and Mercer were standing on the sidewalk by Mercer's truck, which was parked in the street near Mercer's home in the village of Raven. After consuming two or three drinks of liquor, they decided to walk down the street to the B.P. Club. As they proceeded along the sidewalk, they saw Perricllia in his car turn left from the street and pull slowly into an alley running between an apartment house on one side and a junkyard on the other. The B.P. Club was next to the apartment house. There was no light in the alley, but the area in front of the B.P. Club was lighted.
Wilson testified that the window was down on the driver's side of Perricllia's car and Perricllia mumbled something which Wilson could not understand, but Mercer got "mad." Wilson and Mercer walked over to the car, walking beside the car as it moved slowly down the alley, and Mercer asked Perricllia, "Have you got a problem?" When Mercer repeated the question, Wilson heard Perricllia answer, "No, have you got one?" Mercer said, "You step out of that car, I'll be your problem," or words to that effect. Perricllia, putting his car in "park," replied, "I'll get out of this
car and whip your ass, boy." Wilson said that Perricllia put his hand on the door handle but did not open the door. While Perricllia and Mercer were still "cussing each other," Wilson turned his head toward the B.P. Club for a "split second." When he turned back, he saw flames coming from a firearm, heard three shots, and saw Mercer hold his chest, stagger, and fall against the car. Wilson estimated that he and Mercer were standing about a foot from the car on the driver's side when the shooting occurred. Perricllia drove off; Wilson ran to the B.P. Club for help.
Wilson asserted that there was no one else in the alley at the time of the shooting. He was aware that the alley was the only way to go to Perricllia's house by automobile. He did not see Mercer reach into the car or strike Perricllia, but he conceded that Mercer could have done so while Wilson was looking away. Wilson also conceded that Mercer's voice was threatening "in a way." Wilson was not sure there was going to be a fight, however, because Perricllia would not get out of his car. So far as Wilson knew, Mercer did not have a weapon in his possession.
Lethia Vance, who lived on the second floor of the apartment house overlooking the alley, testified that when she heard voices in the alley she went on her porch in time to hear three shots fired. She saw Perricllia in his car. Mercer, who had been standing on the driver's side, staggered back and fell against a gate behind the car. Rushing to the scene, Vance saw Wilson standing across the alley in the shadow of the junkyard building. Mercer fell close to Wilson. Before the shooting, Vance heard someone ask Perricllia why he did not get out of the car. After the shooting, Vance saw Perricllia drive away.
Geraldine Mercer, the victim's mother, t
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