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COMMONWEALTH PENNSYLVANIA v. CLEMENT TURNER (10/31/80)

decided: October 31, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
CLEMENT TURNER, APPELLEE



No. 80-1-44, Appeal from the Order entered on November 14, 1979, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, by the Honorable Loran L. Lewis at No. CC7903568A, sustaining demurrer.

COUNSEL

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., for appellant.

Kathryn L. Simpson, Pittsburgh, John H. Corbett, Jr., Paulette J. Balogh, Asst. Public Defenders, Pittsburgh, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, and Kauffman, JJ. Roberts, J., concurred in the result.

Author: Larsen

[ 491 Pa. Page 622]

OPINION

Clement Turner, appellee, was arrested and charged with criminal homicide in the death of Irwin Liggins, Jr., age 21 months. A non-jury trial was held before the Court of Common Pleas of Allegheny County. At the close of the prosecution's case-in-chief, the trial judge sustained appellee's demurrer to the evidence and discharged the appellee-defendant. The Commonwealth then appealed to this Court.

The test to be applied in ruling on a demurrer is whether, accepting as true all of the prosecution's evidence and all reasonable inferences therefrom, it is sufficient to support a finding by the fact-finder that the defendant is guilty beyond a reasonable doubt. Commonwealth v. Duncan, 473 Pa. 62, 65 n.2, 373 A.2d 1051, 1052 n.2 (1977). Applying that standard, the following facts appear of record.

Barbara Ann Miklos and the infant son, Irwin, were visiting appellee, Ms. Miklos' boyfriend, at his home in Pittsburgh. Early in the afternoon of June 10, 1979, the child began to misbehave by throwing some food. Appellee hit the child with his hand three or four times on the buttocks. When the child continued to misbehave, appellee escalated his discipline.

Later that afternoon, appellee beat the child about the legs and back with a belt which had a heavy buckle and a zipper pouch. Later still, after the boy spit some food on the floor, appellee again beat the child several times with the belt, finally stopping at Ms. Miklos' insistence. After the child had placed his fingers near an electric fan, appellee beat him three or four times with his shoe, and apparently feeling this discipline insufficient to modify the young child's behavior, appellee continued to beat him with a one-inch thick wooden stick against his buttocks, legs and

[ 491 Pa. Page 623]

    bare back. These multiple beatings raised numerous welts and bruises upon the child's legs, buttocks, chest and back.

Ms. Miklos decided to return to her own home that night, and together with her son and appellee, walked to the bus stop. However, as she had missed the last bus, she returned with appellee to spend the night at his apartment. Ms. Miklos placed the boy on the couch which was approximately 15 inches from the floor to the cushion, in appellee's bedroom then went to bed at ...


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