SHENANDOAH - A West Mahanoy Township man is headed to Schuylkill County Court charged with shooting and killing his neighbor in January.
Following a preliminary hearing that lasted more than four hours, Magisterial District Judge Anthony J. Kilker determined the commonwealth proved a prima facie case and ordered all charges against Ronald A. Kozak, with the exception of second-degree murder that he dismissed, held for court.
Kozak, 66, of 555 Indiana Ave., Shenandoah Heights, is charged with killing Joseph R. Boris about 11:30 a.m. Jan. 18 on the driveway of the man's home at 525 Indiana Ave.
Kozak was charged by state police Trooper Edward Lizewski of the Frackville station with one count each of criminal homicide, criminal trespass, simple assault and reckless endangering another person and two counts of aggravated assault.
The open count of criminal homicide includes 1st, 2nd and 3rd degree murder as well as voluntary and involuntary manslaughter.
After hearing arguments by Kozak's attorney - Frederick Fanelli of Pottsville - Kilker ruled the charge of 2nd degree murder does not apply since an additional felony offense such as robbery or rape is required in the commission of the killing.
Testimony opened with Shenandoah police Patrolman Michael Dissinger telling the court he and another officer, his son, Tyler Dissinger, were called to the scene and told that state police officers had an extended response time. West Mahanoy Township police were not on duty at the time, he said.
Dissinger said he found Kozak, who fit the description given to him en route, took him into custody without incident and removed a small caliber handgun from the pants pocket where Kozak told him it was.
On the driveway of the Boris home, Dissinger said he saw a brick and noticed Kozak had a minor injury to his ear.
State police Trooper Thomas Powell said he arrived shortly after and said he spoke to Kozak briefly. During that time, Powell said Kozak said he was hit with something and added, "I shot him."
Powell said he informed Kozak it would be in his best interest not to discuss the incident and had medical personnel look at the injury to his head. The officer said Kozak was later taken to Schuylkill Medical Center-South Jackson Street, where he was treated and eventually released.
"I was hit. That's why I shot him," Powell recalled Kozak telling him.
Lizewski told the court he arrived and also spoke with Kozak who again said, "I shot him (Boris), I don't know where I hit him."
Lizewski said his investigation determined that the cause of the fatal confrontation was apparently two fold - an on-going dispute between neighbors and a fence that was taken down between the two properties.
Testifying on his interviews at the scene, Lizewski said in his criminal complaint that Boris sprayed Kozak with a garden hose, which caused the argument to escalate with Boris throwing a brick at his neighbor who eventually pulled out a Taurus 380 semi automatic pistol and shot him once in the chest.
During questioning by Fanelli, Lizewski said he noticed some water marks on the driveway of the Boris home, but none in the garage area where the altercation allegedly started and could not recall Kozak's clothing being wet.
Based on information received by Denise Boris, Lizewski said it was determined the argument started inside the couple's garage after Kozak approached and then moved onto the driveway, where the shooting occurred.
When asked by Fanelli why the fact that Kozak was struck with a brick and had a head injury was left out of his complaint, Lizewski said the injury was not serious and that it was thrown by Boris while on his own property where Kozak was trespassing.
Offering his opinion, Lizewski said Kozak had no right to be on the Boris property.
"He's (Kozak) the aggressor in my opinion," the officer said.
Boris' widow, Denise, told the court she and her husband were shopping, returned home and carried packages in, but Joseph Boris went back into the garage to retrieve one remaining bag.
After hearing people talking, the woman said she went to the garage and saw Kozak and Joseph Boris arguing and that, as the argument escalated, her husband pushed his neighbor out of the garage and onto the driveway.
Denise Boris said she then saw her husband throw a brick, although she did not see Kozak get hit, and then heard a pop, saw her husband walk backward and fall to the ground.
When asked by District Attorney Christine Holman if the Kozaks were ever invited onto their property that day, Denise Boris said no.
Under cross examination by Fanelli, Denise Boris said the hostility between her husband and Kozak goes back years, starting when Joseph Boris was turned down by the zoning board for permission to build a garage and blamed Kozak for having something to do with it.
Another disagreement began when a wall between the properties was deteriorating, she said.
With all that said, Denise Boris said she had no knowledge her husband allegedly took down part of a fence to the back of their property that allegedly led to the confrontation between him and Kozak that cold morning.
Schuylkill County Coroner Dr. David Moylan testified that an autopsy determined Boris died from a gunshot wound to the torso and that the manner of death was homicide.
Moylan also presented a PowerPoint presentation of the results of a virtual autopsy on Boris taken the day before the forensic autopsy was conducted.
Holman moved to have Moylan recognized as an expert witness in the case, but Fanelli countered by saying the doctor was not certified in forensic or medical pathology and therefore cannot enter an opinion in the case.
Kilker agreed, saying that Moylan can offer testimony as an expert as far as his medical degree, radiological oncology, and as a county coroner are concerned but not in the field of pathology or forensic pathology.
During his testimony, Moylan told the court that the open autopsy conducted by Dr. Michael Johnson, a forensic pathologist, was unable to conclusively determine the distance between Boris and the muzzle of the gun when it was fired.
In closing, Fanelli argued the shooting was the result of an on-going neighbor dispute that turned tragic on Jan. 18.
He said his client did not go to the Boris property to kill someone but that the matter escalated when he was struck by a brick thrown by Boris.
Hinting at a possible future argument, Fanelli told the court that Kozak getting hit with brick constitutes Boris using lethal force on a vulnerable part of the body, and that his client then also defend himself using lethal force.
Fanelli said there was no premeditation by Kozak prior to the brick throwing incident.
Holman countered by saying the fact that Kozak had a gun with him, although he has a license to carry it, is proof that he was looking for a confrontation, along with the fact he was trespassing on Boris' property knowing he was not allowed.
"There was no reason (for Kozak) to bring a gun to their (Boris') home," she said.
Holman said the fence that was allegedly taken down by Boris was the motive for Kozak being the aggressor and killing Boris.
"There's virtually no reason the court can dismiss any of these charges," Holman said.