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Attempted homicide charges dismissed

Published October 07. 2009 05:00PM

The most serious of several charges against a 39-year-old Andreas man were dismissed during an intense 2 1/2-hour preliminary hearing held Tuesday.

At the proceeding in Tamaqua, District Judge Stephen J. Bayer dismissed two counts of criminal attempt to commit criminal homicide against David S. Zellner, of Penn Drive, in West Penn Township.

The charges, along with several others, stem from an Aug. 21 conflict with neighbors, which included an alleged shooting. Zellner, represented by attorney Nicholas Quinn, Pottsville, entered a plea of not guilty.

According to testimony and the criminal complaint, township Police Officer Jason Lorah was called to 1544 Penn Drive after a report that someone had pulled a gun on a neighbor.

When Lorah arrived at the residence he spoke with Allen, Jason, Maurice and Barbara Dekorte. He was told that at 9:15 p.m. Barbara Dekorte received a phone call from neighbor Zellner, who complained about lights on at the Dekortes' property. Shortly after the phone rang again and this time, Maurice answered. Again it was Zellner calling, they said. Zellner reportedly told Maurice to come over to his house. Maurice told him he could not but he would send someone. Jason and Allen Dekorte then drove to Zellner's home in a Jeep where the incident came to a head.

At the hearing, Barbara Dekorte testified that she and a son are partners in an excavating business and that Zellner had called to complain "about lights being on in the field" of the Dekorte property.

"He was swearing and threatening. He said 'you're not supposed to be running a business here,'" said Barbara. Barbara said she told Zellner, "What's the matter, Dave? They've been working all day and they're just getting done."

Maurice Dekorte, 71, testified that he answered the phone when Zellner called a second time and that a "back and forth" argument ensued which involved vulgarities and obscenities.

"We were both yelling," said Maurice. "He was angry and I was very angry. It's not the first time he was abusive to me."

Upon cross examination by Quinn, Maurice indicated that his son had arrived home about 9 p.m. and was unloading stumps from a dump truck when Zellner called to complain. In response to Quinn's questions, Maurice denied saying any "fighting words" to Zellner.

Son Jason Dekorte, 23, told the court that his brother Allen arrived and drove him to Zellner's property to try and resolve the issue. Jason testified that he saw a gun in Zellner's hand and warned his brother.

Jason said Zellner fired the gun in his direction and "I froze." He testified that he saw the gun being fired toward Allen's feet and heard Zellner say, "You know I'm crazy. I will shoot you." Jason said Zellner again pointed the gun at him and another shot was fired past where he was standing.

Jason testified that they left the Zellner property in their Jeep and Zellner again fired shots, this time over the roof of the vehicle. He said it appeared the gun was pointed toward the rear windshield. Jason said a total of six shots had been fired during the encounter.

Quinn questioned the sequence of events.

"Didn't Mr. Zellner say 'get back in your vehicle and get off my property' before any gun was fired," asked Quinn.

Allen Dekorte, 29, Lehighton, testified that he had received a call from his mother asking him to come to the farm.

Allen said he told Zellner, "I came to resolve the situation," and then noticed that Zellner was holding a gun.

"He brought it up and shot at my brother," said Allen, who remembers "five or six shots being fired."

Quinn again questioned the sequence and timing.

"The first shot wasn't enough to make you leave right away," he asked. Allen replied, "It all happened at the same time."

Lorah testified that he took Zellner into custody close to 10 p.m. and that a weapon was recovered from an open drawer in a bedroom nightstand at the Zellner residence.

Lorah said the gun was a 380 caliber Jennings firearm and that a subsequent search uncovered three spent shell casings located near the corner of the home. Lorah also read from a statement taken from Zellner in which Zellner explained that "two men came and threatened me," and that Zellner said he was trying to protect his girlfriend and a young child inside the house.

"I was afraid for my life and my family's well being," read Lorah from the statement he said he took from Zellner.

The lengthy testimony included details about the positioning of each of the Dekorte sons when they exited the Jeep after arrival at Zellner's property and whether or not Zellner had taken steps forward from his position in front of his home.

In summary Quinn argued that there was no evidence of intent to commit criminal homicide by Zellner. Assistant District Attorney James Menconi said, in part, that testimony offered by Jason Dekorte involved shots claimed to be fired toward the windshield of the vehicle which would represent a criminal homicide intent.

After considering testimony from all parties Bayer dropped the two counts of criminal intent to commit criminal homicide and two counts of disorderly conduct. Also dismissed was a charge against Zellner of propulsion of missiles into an occupied vehicle or onto a roadway.

Other remaining charges bound over for court against Zellner include: two counts each of felony aggravated assault, misdemeanor terroristic threats, misdemeanor recklessly endangering another person, one count each of misdemeanor possessing instruments of crime, misdemeanor crimes committed with firearms and two counts of misdemeanor possession, use, manufacture, control, sale or transfer of firearms by a person prohibited to do so.

Zellner was originally arraigned by District Judge Charles V. Moran, Pottsville, and is free on bail.

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