SWOYERSVILLE — Groceries and fresh produce in Brian Pavia’s truck tell a story, his lawyers believe.
The recently purchased items from a store suggest Pavia, 39, did not plan to kill John Dulsky, 38, during a fight over a snow thrower outside a law office on Wyoming Avenue in Forty Fort last month, attorneys Frank Nocito and Joseph Nocito say.
Pavia’s attorneys say their client acted in self defense after being pummeled in the face by Dulsky.
Pavia, of Union Street, Plains Township, called 911 begging for help seconds after the deadly shooting on Dec. 17, his lawyers said.
But Luzerne County assistant district attorneys Jarrett Ferentino and Angela Sperrazza say it takes only a fraction of a second to develop premeditation, noting Dulsky, of Wilkes-Barre, suffered gunshot wounds to his neck and lower back.
After nearly three hours of testimony that included the playing of Pavia’s call to 911 at a preliminary hearing Wednesday, District Judge David Barilla sent an open count of criminal homicide to Luzerne County Court.
Frank Nocito asked that first- and second-degree murder charges be dismissed, but Barilla denied the request.
“We have somebody who was killed and we had two individuals; one of whom was unarmed,” Ferentino said. “They got into an altercation and he was killed. As the evidence we just put forth, it was an unlawful killing.”
Ferentino and Sperrazza are expecting Pavia to claim self defense.
“It’s not the first time we’ve dealt with that issue and it’s something we are preparing to deal with and will be prepared to deal with it in our presentation of our case,” Ferentino said.
Ferentino played the recording of Pavia’s phone call to 911 as 911 dispatcher Debra Pac was on the witness stand. Pavia placed the call at 6:46 p.m.
“I need help, a guy just came after me. I shot him; I need your help very badly. Please hurry,” Pavia was heard screaming. “This guy was coming at me. He punched me. I’m spitting up blood. He broke my nose. It’s pretty bad.”
Pavia stayed on the phone with 911 pleading for help. When the dispatcher asked Pavia to check on Dulsky, he replied, “No, I’m afraid.”
“He beat the hell out of me,” Pavia said to 911.
Forty Fort police officer Brian Casella was first to arrive as Pavia was heard saying, “Officer, I need your help. Thank you, 911.”
Casella said another officer recovered a handgun from the dash board of Pavia’s truck. A live round was ejected from the pistol. State police forensic services recovered two spent shell casings in the snow.
Casella said Pavia was treated in the emergency room at Wilkes-Barre General Hospital for facial injuries. A physician said Pavia did not suffer a broken nose.
“He said ‘I can’t believe this was all over a snow thrower; it was self defense,’ ” Casella testified.
Pavia remains jailed without bail at the county prison.