No. 163 Special Transfer Docket, Appeal from the Judgment of Sentence of September 21, 1977, of the Court of Common Pleas, Trial Division, Criminal Section, of the County of Philadelphia at No. 7605-1012
Nino V. Tinari, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn* This decision was reached prior to the death of Manderino, J.
[ 272 Pa. Super. Page 358]
Appellant, Marc Staples, was tried before a judge, sitting without a jury, and was found guilty of voluntary manslaughter. Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of one to five years in prison which included an order that appellant participate in a work release program. This direct appeal followed.
Appellant raises only one issue in this appeal contending that the prosecution "did not produce sufficient evidence to prove beyond a reasonable doubt that the defendant did not use only enough force that was necessary for the protection of a third person."
Appellant admitted in a statement which he gave to the police and also in his testimony at trial that he hit the victim with a board or stick during an encounter among two different groups of young men which took place at the Cobbs Creek Golf Course in Philadelphia. The victim died from the blows received.
The defense contended that appellant struck the victim in order to protect Saul Cohen, a friend of the appellant who was about to be hit by the victim with a beer bottle. The evidence, however, was sufficient to prove beyond a reasonable doubt that the appellant did not hit the victim in order to protect Saul Cohen, but rather did so as an aggressor desiring to participate in the encounter.
In his statement to the police, which was introduced into evidence, appellant gave the following version of what occurred:
[ 272 Pa. Super. Page 359]
"Question: Were you involved in a fight on Cobbs Creek Golf Course on Friday, ...