Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1971, No. 830, in case of Commonwealth of Pennsylvania v. Larry Clinton McFadden.
Abraham J. Brem Levy, for appellant.
Ivan Michaelson Czap, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.
Larry Clinton McFadden was indicted on charges of murder, voluntary manslaughter and involuntary manslaughter, concerning the death of three-year-old Derrick Saulsbury.
McFadden lived with Pearline Saulsbury and her three children, the victim, three-year-old Derrick Saulsbury, an older brother, William, and a younger brother, Shawn.
On the night of January 27, 1971, McFadden was preparing dinner for Pearline Saulsbury and her three children, when they returned, respectively, from work and school. Pearline Saulsbury then went to the store and returned in time to serve the dinner. All five sat down and ate dinner together. When he had finished eating, McFadden went to the bedroom occupied by him and Pearline Saulsbury, to watch television. The children began to get ready for bed and Pearline Saulsbury washed the dishes. When she was finished, she joined McFadden in their bedroom.
Just before 9:00 p.m., Derrick entered the room and after a few minutes his mother sent him to the bedroom which he and his brothers occupied, to get ready for bed. His mother went into the bedroom with him to change sheets on the bed. Derrick's older brother was in the kitchen studying and his younger brother was in the bathroom. Left alone, Derrick began to jump up and down on the bed before putting on his pajamas. McFadden came in the child's bedroom to reprimand him and as he reached out to spank him, he caught the child in flight and, while intending to strike him on the backside, he actually struck him in the abdomen. McFadden testified that Derrick had the wind knocked
out of him, but that he seemed to be all right and walked across the room to get his pajamas before getting back into bed. McFadden then went back into his own bedroom and resumed watching television. William and Shawn then went into their own bedroom to go to bed for the night and their mother joined McFadden. A few minutes later McFadden went into the kitchen for a snack. Derrick's mother went into the children's bedroom to put out the light. She then joined McFadden, who had returned from the kitchen, in their own bedroom. They stayed up and talked and watched television for a while. Pearline then fell asleep followed later by McFadden.
The following morning, Pearline entered the children's bedroom to awaken them. When Derrick did not respond, she shook him twice and found him cold and stiff. She called out to McFadden to see what was wrong with Derrick. McFadden came into the children's bedroom and checked Derrick. Pearline then called the police.
Three days later, McFadden made a statement to the police concerning the above facts. After he was indicted, McFadden waived his right to a jury trial and was subsequently convicted of second degree ...