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First Posted: 11/21/2013 WILKES-BARRE TWP. &#8212; From the witness stand Thursday, 17-year-old Macey Pudlosky told of her phone conversation with her friend, Donald &#8220;D.J.&#8221; Kinney Jr., the night a Nanticoke man died after being hit by an SUV.
Nickolas Zurilla, 59, was struck and killed on the street in front of his West Union Street home by a vehicle 16-year-old Tyler Duda of Kingston Township was driving in the early-morning hours of July 5. Prosecutors maintain Duda is guilty of third-degree murder, vehicular homicide and other charges.
Pudlosky, of Nanticoke, said she remembered hearing Kinney five times tell Duda, who was driving his mother&#8217;s SUV, to slow down, with each request growing a little more &#8220;panicky.&#8221; The sound of the engine accelerating filled the background, the girl testified.
Kinney&#8217;s last request was followed by the sound of a crash and glass smashing. She heard a voice, she assumed it was Duda, call out &#8220;D.J.,&#8221; several times, and then the sound of vomiting. She continued to listen and heard sirens.
She listened in shock for about 45 minutes until she ended the call.
District Judge Michael Dotzel decided at a pre-trial hearing Thursday that enough evidence exists to send Duda to trial. Duda&#8217;s attorney, Demetrius Fannick, had argued earlier that malicious intent should accompany a murder charge &#8212; something the joyriding teenager did not seem to have.
Duda also does not have a driver&#8217;s license or a learner&#8217;s permit. A state police reconstruction investigator determined Duda, who had allegedly taken his mother&#8217;s 2013 Ford Edge for a joyride to Nanticoke without her knowledge, was traveling at 72 mph along West Union Street, a residential roadway with a posted 25-mph speed limit, when he struck Zurilla.
Duda sat stoically in a blue prison jumpsuit Thursday. His face was stiff and expressionless as Assistant District Attorney Mary Phillips countered that Duda&#8217;s negligent driving alone is malicious. The teenager did not testify.
Independence Day
John Murphy had invited Zurilla onto his porch along West Union Street to drink beer after fireworks, and the two talked on the porch from about 11 p.m. until around 2:15 a.m. Each had consumed about six or seven 12-ounce cans of beer, Murphy told attorneys while under oath.
When the two decided to part ways, Murphy was entering his house with his back to Zurilla, who was crossing the street.
Murphy said he did not hear the SUV approaching, only his friend say, &#8220;This car&#8217;s gonna hit me.&#8221;
Murphy said he heard a thump and turned to see what he believes was Zurilla being thrown in the air. Murphy said he did not see the car strike Zurilla.
Zurilla was dismembered in the collision. Nanticoke Police Chief Williams Shultz said he has never seen such a gruesome death in his 40 years of police work.
Duda tested clean for alcohol or drugs.
Neither Shultz nor Luzerne County Coroner William Lisman, who was first to testify, knew of Zurilla&#8217;s blood-alcohol level during the hearing, which bewildered Fannick. Shultz said after the hearing that issue will be discussed in Luzerne County Court.
Duda told the first officers at the scene he did not see Zurilla before he hit him. Investigators say there was no sign of evasive braking and the SUV came to a rest 467 feet from the point of collision, court documents show.
Defense argument
&#8220;This matter should be resolved with a civil wrongful-death action,&#8221; Fannick told the judge. &#8220;To make it a criminal case, you need criminal negligence.&#8221;
Fannick called it a &#8220;tragic accident&#8221; that resulted from youthful negligence.
&#8220;Is he negligent? Yeah,&#8221; Fannick said. &#8220;When he gets sued he&#8217;s probably going to have a problem, but does it rise to the level of malice? It was an accident and he&#8217;s gonna have to live with it.&#8221;
Leaning forward, Fannick and Duda locked eyes for a moment, a look of desperation flashed across the boy&#8217;s face.
Duda, who turns 17 on Monday, is also charged with summary offenses of driving without a license, driving on the wrong side of the road and speeding. He is being held on $1 million bail.

Deadly hit-run case moves to trial