This article was originally published on by Madeleine O’Neill on Jan 8, 2018

The homicide case before Erie County jurors this week is not a “whodunit.”

That’s according to the lawyer for 27-year-old Merle A. Page Jr., the defendant on trial in the Jan. 15, 2017, fatal shooting of Marcell Flemings.

Page’s lawyer, Eric Hackwelder, told jurors the defense will not dispute the central facts of the prosecution’s case: that Page shot Flemings, 26, at an east Erie gas station after the two got into a fight in the early morning hours.

That much was captured on surveillance cameras at the gas station, which filmed virtually every movement of Page and Flemings, including the shooting.

The case will instead come down to degrees, Hackwelder said. The Erie County District Attorney’s Office is seeking a conviction for first-degree murder, or a premeditated killing.

“The evidence is going to show that this wasn’t a premeditated event,” Hackwelder said during his 10-minute opening statement. He said Page had been drinking heavily with friends earlier in the day.

He said when jurors considered all the evidence, they would not “be able to convict Mr. Page of first-degree murder.”

Jurors will have the option to convict Page of third-degree murder, or an unpremeditated killing with malice, which carries a maximum sentence of 20 to 40 years in prison. A conviction for first-degree murder carries a mandatory sentence of life in prison without parole.

Assistant District Attorneys D. Robert Marion and Paul Sellers are trying the case. They moved swiftly through testimony and evidence Monday morning, starting with surveillance video from the Shell station at East Sixth and Parade Streets.

The video showed Flemings, his eyes burning from pepper spray, arrive at the gas station with a group of people and pour milk over his eyes to counteract the pepper spray. Flemings had been pepper-sprayed when an unrelated group of people got into a fight at a nearby tavern while he was present, according to information presented in court.

When Page then arrived in a gold vehicle with two other men, he and Flemings got into a physical altercation, according to the video. After the two men were pulled apart, Page went to the gold vehicle and returned with a handgun, which he fired at Flemings, according to the video and information presented in court.

Page and the men he arrived with then drove away, and Flemings was helped into a vehicle and driven to UPMC Hamot, where he died, according to information presented in court.

Jurors heard testimony Monday from Erie police investigators who responded to the scene of the shooting. The prosecution’s case may conclude Monday afternoon.

Page, who is being held at the Erie County Prison without bond, has not said whether he will testify in the case, but Hackwelder said he will present at least two witnesses. Page is also represented by Erie lawyer Stephen Sebald.

Erie County Judge William R. Cunningham is presiding.