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Student won't be charged in shooting incident

Originally ran here as:
"Student won't be charged in shooting incident"
by David Conti
October 18, 2001

PITTSBURGH, PENNSYLVANIA -- A University of Pittsburgh student who shot two teen-agers he caught in his basement will not be charged with any crime because he was defending himself, Pittsburgh police said Wednesday.

"The shooting appears to be completely justified in light of the fact they were in his basement, wearing masks, and even though he was carrying a shotgun they continued to approach him," Lt. Thomas Stangrecki said.

Joshua Johnston, 21, of Manton Way in Pittsburgh's Allentown neighborhood, told police he fired after he heard someone breaking in Tuesday afternoon and found Herbert Russell, 18, also of Manton Way, and Gary Whisner, 19, of Carrick Avenue, Carrick, in his basement.

Police filed burglary charges against the two, who were in stable condition at Mercy Hospital, Uptown. They face a preliminary hearing Oct. 26 on charges of burglary and criminal conspiracy.

The house is owned by Johnston's grandfather, John Leban, who is ill and staying with relatives.

Johnston told investigators he was asleep about 3:30 p.m. Tuesday when he heard a noise. He grabbed a 12-gauge shotgun and went to the basement, police said.

Johnston told police he found the teens, who were wearing ski masks. He fired when one came at him, and fired again when the other teen appeared to reach for a weapon.

Police said neither of the men was armed. Russell was found in Johnston's backyard with a gunshot wound to the abdomen. Whisner went to a neighbor's home seeking help for a chest wound.

Investigators said the teens may have gone to Johnston's home to collect a debt.

"If that's true, it's still no justification for breaking into someone's house," Stangrecki said.

A local expert said the law is very clear on using deadly force for self-protection.

"Assuming all the facts that have been presented are true, this man obviously felt he was in immediate danger, which makes this use of deadly force justifiable," said John Rago, the associate dean of the Duquesne University Law School and a professor of criminal law.

The use of deadly force is not allowed solely for the protection of home or property, Rago said. But it is justifiable if someone believes that "force is immediately necessary to protect themselves from very serious injury," he said.

Rago cautioned the law applies only to those in their own home or office. Outside, someone must consider whether running away from the danger is possible before using deadly force.

"You can turn around and run on the street," Rago said. "But there is no such duty to retreat in your home."

Johnston, who told police the home had been burglarized several days before, was staying with relatives and could not be reached for comment.

Allegheny County District Attorney Stephen A. Zappala Jr.'s office is reviewing the case.

"City police have consulted with our office, and our office is in agreement with their assessment of the situation thus far," said Zappala spokesman Mike Manko.

David Conti can be reached at (412) 441-0976.

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