Man won't be charged in shooting of intruder

Not all claims of self-defense are clear-cut, as evidenced by a 1995 case in the city.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
YOUNGSTOWN -- The use of deadly force in self-defense doesn't apply once the threat of bodily harm is gone, the city prosecutor says.
"If you have an opportunity to retreat, you have a duty to do that," City Prosecutor Dionne M. Almasy said Tuesday. "It's fairly obvious; the self-defense doctrine says you use deadly force to combat deadly force or serious bodily harm."
The most recent case of turning the tables is 83-year-old Walter Swita of South Avenue, who killed an intruder last week with a German Luger war souvenir more than 60 years old. The prosecutor said Swita represents a "classic case" of self-defense, and no charge will be filed by her office. The case will be presented to the county prosecutor for review.
Almasy said Swita must petition the court to get his vintage firearm back. The gun was confiscated Friday night by police after Swita shot Benjamin Brooks, 44, of East Philadelphia Avenue, in the head and chest. Brooks died Sunday.
Lt. Robin Lees, police department spokesman, said Brooks' death will not be counted as a criminal homicide. Lees said the situation is similar to when a police officer kills in the line of duty.
Almasy, meanwhile, recalled two other robberies in which the victim opened fire. One was considered self-defense, the other voluntary manslaughter.
Similar scenario
On May 21, Atway Atway shot a 15-year-old robber in the chest at Atway's Market on Lexington Avenue. The boy, Eric Farmer of St. Louis Avenue, died the next day.
Atway, 56, was not charged after a review of the case by Almasy. Craig Franklin, 17, of Glenwood Avenue, one of Farmer's alleged accomplices, was indicted on a murder charge last month related to the store robbery and will be tried as an adult. Prosecutors have said that accomplices can be charged if someone dies in the commission of a crime.
Four men entered the market waving handguns, demanded money and told everyone to lie down, reports show.
The robbers pushed Ghaleb Atway, 65, to the floor. Ghaleb's brother, Atway Atway, pulled a .357-caliber revolver from behind the counter and fired several shots at the four, who then fled, police said. Farmer was found a short distance away.
Almasy said that while the store shooting in May and home invasion last week were in self-defense, a store shooting from 10 years ago was not.
1995 case
On March 7, 1995, Azmi Al-Tawil, then a 30-year-old clerk at Sam's Super Saver on Oak Street, shot and killed a 43-year-old robber. Al-Tawil chased Bennie Poole through rear yards and shot him once in the back of the head.
Almasy said Poole, who ran after the robbery, no longer represented a threat to the clerk.
Al-Tawil was charged with voluntary manslaughter in municipal court and the case was bound over to a Mahoning County grand jury. The grand jury declined to indict Al-Tawil.
"Why there was no indictment, I'm at a loss to say," Almasy said. "It was clearly not a case of self-defense to chase someone through back yards and shoot him in the back of the head."
The city prosecutor's office then pursued a charge of discharging a firearm within city limits and Al-Tawil was convicted, according to Vindicator files.