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COMMONWEALTH PENNSYLVANIA v. THOMAS BODEN (12/21/84)

filed: December 21, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS BODEN, APPELLANT



NO. 02583 Philadelphia, 1982, Appeal from the judgment of sentence of August 30, 1982, in the Court of Common Pleas of Delaware County, Criminal Division, at No. 3496-C-1981.

COUNSEL

John M. Gallagher, Media, for appellant.

Dennis C. McAndrews, Assistant District Attorney, Media, for Commonwealth, appellee.

Spaeth, President Judge, and Beck and Tamilia, JJ. Spaeth, President Judge, concurred in the result. Tamilia, J., filed dissenting opinion.

Author: Beck

[ 337 Pa. Super. Page 109]

Appellant police officer was found guilty of Involuntary Manslaughter by a jury. He subsequently filed post-verdict motions in arrest of judgment and for a new trial which were denied. A timely appeal was filed. For the reasons discussed below, we affirm the judgment of sentence.

[ 337 Pa. Super. Page 110]

Appellant police officer responded to a radio report that a man (the victim) was chasing children with an axe. The victim, Marne Toogood, met the appellant and two other police officers at the door of his home when he responded to their knock. Toogood pushed one of the officers back, grabbed an axe handle, and demanded the officers leave his property. The officers backed up to the sidewalk, and told the victim to drop the axe handle. The victim refused, and appellant drew his service revolver. The victim still refused to drop the handle, and appellant fired one warning shot into the air. Appellant then shot the victim in his lower lip, and the victim dropped to the ground.

One of the officers kicked the axe handle out of the victim's reach. Appellant fired a third shot which hit the victim in his chest, killing him. Testimony conflicts as to whether the victim was on the ground or in the process of getting up from the ground when appellant fired the third and fatal shot.

Appellant contends that the trial court erred in failing to instruct the jury that as a police officer making an arrest appellant was not under a duty to retreat from the victim. The lower court characterized appellant's actions before the shooting as an investigatory stop and not as an arrest or an attempt to arrest. The court therefore concluded it did not have to instruct the jury that appellant did not have a duty to retreat.

Although we disagree with the lower court's finding that no arrest or attempt to arrest occurred, we affirm the judgment.*fn1

We conclude that appellant's action constituted an arrest. The victim's behavior ...


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