2 of 3 murder defendants lacked intent, judge rules

As David Sale's mother sobbed, a Philadelphia judge yesterday reduced murder charges against two of the three men arrested in her son's July 25 beating death in the parking lot of Citizens Bank Park.

No matter how "vicious, deadly and cowardly" the attack against Sale was, a jury, based on the evidence, would not be able to find beyond a reasonable doubt that Charles Bowers, 35, and James Groves, 46, had rendered their punches and kicks with the specific intent to kill, Judge Benjamin Lerner ruled during a hearing in Common Pleas Court.

Therefore, Lerner granted motions filed by the defendants' attorneys to reduce first-degree murder charges to third-degree murder. Both men still face charges of conspiracy.

The judge rejected the same request from Francis Kirchner's attorney and let stand against him first-degree murder and conspiracy charges.

During an August preliminary hearing, witnesses said Kirchner, 28, kicked Sale, 22, of Lansdale, in the head and neck area at the end of the melee when he was down on his hands and knees in a barely conscious state.

Lerner described that act as a "killing blow" and as the moment when "Mr. Kirchner took it upon himself to finish off Mr. Sale."

Although all three defendants have remained behind bars since being arrested, Bowers, of Bustleton Avenue near Devereaux, and Groves, of Almond Street near Norris, are now eligible to be granted bail because of the lesser charge.

Kirchner, of Palmer Street near Thompson, remains ineligible.

"My client wasn't involved in a conspiracy to commit a homicide," Groves' attorney, Scott Di Claudio, said after the hearing. "At most, he was involved in a fight with his friends in a parking lot, regretfully, like many people have been in Philadelphia."

In arguing for a reduced charge, Kirchner's attorney, Louis Savino said that the kick his client is accused of landing "at best is third-degree" murder.

Even with the reduced charges, Bowers and Groves face up to 30 to 60 years in prison if convicted; Kirchner faces life without parole, said Assistant District Attorney Richard Sax.

"I'm disappointed, especially with respect to Charles Bowers, but I understand the court was acting on its responsibility under the law," Sax said.

The three defendants, who were part of a large group from Moe's Tavern in Fishtown, and Sale, who was with a bachelor party, first clashed in the stadium while watching a Phillies game.

Both groups were ejected, then moved to McFadden's restaurant in the ballpark complex.

Words, then fists, were exchanged inside before the groups were again ejected - only to resume the clash in the parking lot.

Witnesses told police the three defendants had beaten and kicked Sale to the ground and knocked him unconscious.

The victim's hands were free of defensive wounds, evidence that he did not fight back, Judge Thomas Nocella said during the August preliminary hearing.

Sale died of multiple blunt-force injures and hemorrhaging of the brain and spinal column, according to the Medical Examiner's Office.