Appeal from judgment of sentence of Court of Oyer and Terminer of Bucks County, No. 1752 of 1966, in case of Commonwealth v. Robert Hoffman.
Harold B. Vikoren, Assistant Public Defender, with him Stewart J. Greenleaf, Public Defender, for appellant.
Stephen B. Harris, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result.
Appellant was convicted of voluntary manslaughter after a jury trial on an indictment charging him with the murder of one Francis Turbitt. His post-trial motions were denied and judgment of sentence was imposed. Appellant then brought this appeal.
Turbitt's death resulted from injuries he sustained in a fight with appellant on the afternoon of July 9, 1966 at a tavern in Penndel, Pennsylvania. Prior to the fight appellant and seven other men had been engaged in a game of darts in the game room of the tavern. While they were so occupied, Turbitt had entered the game room from the barroom with the cuffs of his trousers rolled up over his ankles. At that time one or more of the group playing darts asked: "Are
you expecting flood waters?" and "Oh, do you have water down in your cellar?" After these remarks, Turbitt went to the shuffleboard game table, sat down on it, rolled his pants up even further and asked the group if anyone was "man enough to own up" to the remarks that had been made. Appellant then approached Turbitt and said, "I was the one who said it. What are you going to do about it?" A slight scuffle ensued but was quickly broken up by the other dart players, two of whom escorted Turbitt outside and suggested that he go home. All eight then resumed the dart game.
About five minutes later, Turbitt re-entered the game room with his pants rolled up even higher, jumped up and down a number of times and said something challenging to appellant. Appellant then left the dart game and quickly went over to Turbitt. Both men went through the swinging door between the game room and a small anteroom. Their heads were seen briefly through a small window in the swinging door by the other dart players, but soon disappeared. Within half a minute after they could no longer see the heads, the other dart players went into the anteroom where they found appellant half-standing, half-kneeling over Turbitt, striking him on the chest and arms. One of the other dart players grabbed appellant, pulled him away from Turbitt and pushed him back toward the others. Turbitt then rose up on one elbow and said something. Immediately, a foot -- although no one who testified could identify to whom it belonged -- came out and struck Turbitt in the neck. As a result of this blow, Turbitt fell back and commenced "snoring." All but two of the dart players then returned to the game room. The remaining two picked Turbitt up, carried him into the main part of the tavern and placed him on the seat in one of the booths. Turbitt remained there for about an hour until it was noticed that he was having difficulty
breathing. An ambulance was then called and Turbitt was taken to the hospital where he died two days later without regaining consciousness.
According to the testimony of the pathologist who performed the autopsy on Turbitt, the only serious injury he had sustained was a massive hemorrhage between the skull and the brain which had forced the base of the brain down and through the foramen magnum, the large opening at the base of the skull through which the spinal cord passes. The resultant squeezing of this part of the brain, which contains all of the vital centers which control such essential activities as heart beat and respiration, had, according to the pathologist, rendered these centers incapable of performing their natural functions and had caused ...