Appeal, No. 110 E.D. Appeal Dkt. 1985, from Order of Superior Court,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen and McDermott, JJ., file a dissenting opinion.
LARSEN, Justice, dissenting.
The first line of defense in society's battle against the anarchy of crime is the police officer. In affirming the Superior Court's decision in this case, the majority strips the police officer -- and society -- of a principal element for his protection in that ceaseless struggle. That protection is
the right, authority and obligation of the police officer to use reasonable force, including deadly force if necessary, in executing his duties and in defending himself and others so long as the use of force is exercised within the parameters established by law. To be effective, that protection must extend to a police officer charged with and called to account for the excessive use of force. Accordingly, a jury chosen to determine whether the officer did, in fact, use force which was excessive under the circumstances must be fully appraised of the principles of law which govern a police officer's use of force in defending the peace and in enforcing the penal laws of this Commonwealth. In affirming Corporal Thomas Boden's conviction for involuntary manslaughter returned by a jury that was woefully uninformed as to those principles, the majority has seriously weakened our first line of defense.
The circumstances in which Corporal Boden, the appellant, drew and fired his service revolver, killing Marne Toogood, border on the bizarre. Although some of the eyewitness testimony was inconsistent, there was evidence at trial from which the jury could have found the following sequence of events.*fn1
Corporal Boden and two other City of Chester police officers responded to a radio report on May 31, 1981 that a man was chasing children with an axe. The officers arrived at the home of that man, Marne Toogood, a large man whom Corporal Boden knew as being eccentric or deranged and, possibly, a practitioner of voodoo. (Mr. Toogood's voodoo reputation stemmed in part from his habit of displaying animal carcasses and skeletons on his front porch.) When one of the officers knocked on the front door, he was forcefully pushed back by Mr. Toogood who then picked up an axe handle and vigorously cursed at the officers to "get the hell off" of his property.
The officers backed away from the house and ordered Mr. Toogood to come out. He did come out, brandishing the axe handle in a threatening manner, and advanced toward Corporal Boden who warned him to drop the axe handle. When he did not, Corporal Boden drew his service revolver and fired what he described as a "warning shot." When Mr. Toogood continued to advance, Corporal Boden fired a second shot, which struck him in the face and dropped him to his knees. Stunned but conscious, the other officers kicked the axe handle away from Mr. Toogood.
Forensic evidence at trial indicates that both of Corporal Boden's shots struck Mr. Toogood in the face and that these bullets were "stale" and weak because Corporal Boden had not requested new ammunition for years. With a bullet protruding from his upper teeth, Mr. Toogood began to get up and move toward Corporal Boden again, according to the testimony of the three officers. Corporal Boden, alarmed and wondering "what the hell was going on in front of me now . . . whether it was a superman, a freak of nature," fired his revolver a third time, striking Mr. Toogood in the chest and, unfortunately, killing him.
Corporal Boden was prosecuted for murder of the third degree and manslaughter. The Commonwealth's principal
theory at trial was that Corporal Boden's killing of Mr. Toogood was not justified because he could not have reasonably believed that the use of deadly force was necessary to prevent death or serious bodily injury. The defense was that the killing was justified under the circumstances. In support of this defense, counsel requested several points for charge based upon various principles of justification codified at Chapter 5 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. §§ 501-510. These points for charge included the following:
14. In this case, because the defendant was what is called a "peace officer", by reason of the fact that he was a policeman, special rules apply in determining whether the defendant's use of force was justified. A peace officer need not retreat or desist from efforts to make a lawful arrest merely because the person he is attempting to arrest resists or threatens to resist arrest. Furthermore, the Commonwealth has the burden of disproving the defense of justification. Thus, you cannot find the defendant guilty unless the evidence convinces you beyond a reasonable doubt that he did not [reasonably] believe that the force he used was necessary to make the arrest of Marne Toogood and to defend himself from bodily harm while making the arrest. [Pa. SSJI Crim. § 9.508A]
15. In this case, the defendant was what is called a "peace officer", by reason of his being a policeman for the City of Chester, and the evidence indicates that in making or attempting to make an arrest of Marne Toogood, the defendant may have used what is called "deadly force", which I define for you as force that was readily capable of causing death or serious bodily injury under the circumstances in which it was used. Special rules apply in determining the availability of the defense of justification when deadly force is used by a peace officer. A peace officer need not retreat or desist from efforts to make a lawful arrest merely because of resistance or threatened resistance to the arrest. Furthermore, the
Commonwealth has the burden of disproving the defense of justification. Thus, you cannot find the defendant guilty:
(1) unless the evidence convinces you beyond a reasonable doubt that he did not [reasonably] believe that deadly force was necessary to prevent death ...