Commonwealth v. LaPorta

• Citation: 218 Pa.Super. 1,272 A.2d 516
• Parties: COMMONWEALTH of Pennsylvania v. Charles LaPORTA, Appellant.
• Decision Date: 18 September 1970
• Court: Superior Court of Pennsylvania

272 A.2d 516

218 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Charles LaPORTA, Appellant.

Superior Court of Pennsylvania.

September 18, 1970.

Caram J. Abood, Green, Gibson & Abood Johnstown, F. Lee Bailey, Boston, Mass., for appellant.

Ferdinand F. Bionaz, Dist. Atty., M. Wilenzik, Asst. Dist. Atty., for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN SPAULDING and CERCONE, JJ.

WATKINS Judge.

This is an appeal by the defendant-appellant, Charles LaPorta, Jr., from the judgment of sentence by the Court of Common Pleas of Cambria County, after conviction of involuntary manslaughter; and from the denial of post trial motions in arrest of judgment and for a new trial.

Charles LaPorta, Jr. is a member of the police force of the City of Johnstown. He had been on the force for fourteen months at the time of the incident. He is 27 years of age, married with two children. The police force had been ordered to break up gangs of young men gathering at night in the area where this incident occurred because of complaints by citizens of teenage drinking, carousing, looting and purse snatching. They were ordered to break up any group of two or more boys 'hanging around' the area.

At 9 p.m March 29, 1969, Officer Thomas A. Ricci of the Johnstown police force was patrolling in the area. He heard a group singing and making noise in the rear of the Arrow Furniture Company in an alley known as Bausman Place. He estimated the number of carousers to be three or four young men standing on a loading platform or ramp in the said alley.

He had been advised not to attempt to break it up by himself and he called headquarters for help. Headquarters dispatched the defendant in a police car to assist Ricci. The two officers proceeded slowly in the car with headlights extinguished so as not to alert the culprits. When they arrived at the ramp, the car was parked in such a way as to prevent easy escape from the ramp. The ramp was 2 1/2 feet above the alley.

When they arrived and got out of the car they found, instead of three or four youths, twelve young men towering over them. They were drinking and had two gallons of wine in their possession. Some of the boys were drinking from the bottles at the time the police arrived.

Both officers got out of the car and when the defendant realized the number and size of those confronting them, he reached in the car and turned on the lights. He drew his gun and held it pointing downward at his side as a defensive precaution. The defendant was actually between the ramp and the car. As they approached the ramp someone shouted 'Here comes the fuzz' and another said 'Don't run.' The defendant told them to stop, that they were under arrest. They began jumping from the ramp, pushing and shoving the defendant as they ran down the alley. The last to jump was the decedent, Timothy Perkins, 16 years old, 6 2 tall and weighing 190 pounds. The defendant was 5 8 and weighed 165 pounds. All the youths towered over the defendant at the time of the confrontation and resistance at the ramp.

As Perkins jumped, the defendant grabbed his coat with his left hand and tried to apprehend him. They were running down the alley a step apart and all the time the defendant had hold of the coat with his left hand and his gun in the right hand. It is important to realize that the action that ended in the unfortunate death of the young man took place in a much shorter time than it takes in the telling and description. The defendant testified that everything happened so fast and his hands were so confined by trying to apprehend Perkins that he did not have the opportunity to restore the gun to the holster.

According to the testimony of the Commonwealth as well as the defendant, the action took place with the defendant holding onto the fleeing boy's coat and the boy elbowing at him trying to get away. The defendant was finally able to turn him around at one point and declare him under arrest when he struck at him knocking off his cap and kicking him in the shin bone. The run down the alley continued until they were approximately forty-seven feet from the ramp when the revolver went off, killing Perkins.

The bullet entered the back of his head and proceeded in an upward projectory. The Commonwealth testimony disclosed that the defendant told Ricci that the revolver 'accidentally went off' and assumed that the flailing elbows striking his arm was responsible. The gun was not cocked and it would take ten pounds of pressure to discharge it. The defendant could not recall, but assumed, his finger was on the trigger.

The defendant was indicted for voluntary and involuntary manslaughter. A demurrer to the charge of voluntary manslaughter was denied and the Jury was charged as to both. After deliberating for 5 1/2 hours, the Jury asked whether they could find the defendant guilty of involuntary manslaughter with a recommendation of lenience. The court answered in the affirmative without any explanation. The defendant was found guilty of involuntary manslaughter with leniency recommended. The District Attorney joined with defense counsel in requesting probation. The Court sentenced the defendant to 3 to 23 months in the County Prison. Post trial motions were denied by the Court En Banc, two to one. This appeal followed.

The defendant's contentions can be summarized as follows:

(1) The evidence was insufficient to support the verdict of guilty of involuntary manslaughter. (2) The verdict of involuntary manslaughter was a compromise verdict brought about by the failure of the court below to sustain the defendant's demurrer to the charge of voluntary manslaughter and the submission of this charge to the Jury so prejudiced the fairness of the defendant's trial as to amount to reversable error and entitle him to a new trial.

Involuntary manslaughter consists of 'The killing of another without malice and unintentionally, but in (1) doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, (2) or in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty.' Commonwealth v. Mayberry, 290 Pa. 195, 138 A. 686 (1927).

The question before us is whether there was sufficient competent evidence to hold a police officer guilty of involuntary manslaughter in attempting to make an arrest with weapon drawn but not pointed when the weapon discharged accidentally killing the suspect who was resisting arrest and assaulting the officer? We think not.

It is necessary in considering the appeal of the police officer to begin with the reasons for his appearance in the alley where the trouble took place. His state of mind at that time is of the greatest importance in this appeal. We begin, then, with the directive by his superiors to break up gangs of young men composed of more than two 'hanging around' the alley. This directive was the result of citizen complaints of noise, carousing, drinking and looting and other violations of the law that took place in the area. It is a present problem confronting cities large and small.

The defendant was dispatched to help another officer carry out the directive. The duty of the officers was clearly to break up these gatherings and take into custody those violating the law. The law was being violated by these young men in the presence of the officers by their drinking and the creation of a public nuisance. The decedent was violating the law in resisting arrest and assaulting the officer at the time of the discharge of the weapon. Two gallons of wine were in the possession of the boys and they also refused to stop when ordered by the police and they all, including the decedent, resisted arrest in shoving and pushing the defendant to make their escape after being told they were under arrest. All were successful in resisting arrest and fleeing except the decedent who continued to resist by striking, kicking, and elbowing the defendant so that in the struggle his gun was fired.

The background explains the surreptitious approach of the officers with the lights out. The state of mind of the gang of boys is shown by the shout of 'Here comes the fuzz' and as they leaped from the ramp shouting 'Get out of my road' and 'Move out of the way.' The crux of the case is the surprise of the defendant and Ricci being confronted by twelve young men towering over them instead of three. The defendant recognized some of them as law violators. One had been convicted of assault on a police officer. Both officers were apprehensive of the situation so that the drawing of the gun and holding it at his side was a reasonable precaution. It should be remembered too that the defendant bore the brunt of the pushing and shoving that led to the escape of all but one of the group.

There was no testimony that the weapon was ever pointed at anyone. In fact, the Commonwealth agreed that there was no intention to kill. Officer Ricci testified that the defendant said immediately after the discharge of the gun that it 'accidentally went off.'

The revolver was drawn by the defendant under apprehension when confronted by the twelve youths. It was testified to by the Commonwealth that the twelve youths were drinking and standing shoulder to shoulder on a ramp 2 1/2 feet over the alley where the defendant was standing. The revolver, which was seen by the suspects may well have prevented serious bodily harm to the officers. Ricci testified that shouts were made to the defendant 'Move out of the way.', 'Get out of my road.' before the pushing and shoving. He further testified as follows: 'because I seen LaPorta trying to make an arrest and we were badly out numbered. If they would have turned around and come back it would have...