Appeal from judgment of sentence of Court of Common Pleas of Cambria County, June T., 1969, No. C-46, in case of Commonwealth of Pennsylvania v. Charles LaPorta, Jr.
F. Lee Bailey of the Massachusetts Bar, with him Caram J. Abood, and Green, Gibson & Abood, for appellant.
Marvin L. Wilenzik, Assistant District Attorney, with him Ferdinand F. Bionaz, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J. Hoffman, J., would grant a new trial.
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 patroling 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 ...