Trial opens for three accused in death outside Phillies' ballpark

The lawyer for a Fishtown man accused of delivering the fatal kick to the head of David W. Sale Jr. during a beer-fueled melee two years ago outside the Phillies' ballpark told a Philadelphia jury that his client was a victim of mistaken identity and would testify.

"He never touched David Sale," Jack McMahon, the attorney for Francis Kirchner, said Wednesday in his opening statement to the Common Pleas Court jury in the trial of Kirchner and two others in the death of Sale, 22, of Lansdale.

McMahon said the evidence would show that witnesses said the man who kicked Sale in the head after he had been pummeled to the pavement had red hair - Kirchner's is brown - and wore shorts a different color from Kirchner's.

Kirchner, 30, is on trial with Charles Bowers, 37, of Oxford Circle, and James Groves, 48, of Kensington, involving Sale's death on July 25, 2009, in one of several fights that erupted in Parking Lot M at Citizens Bank Park.

Kirchner is charged with first-degree murder and faces a mandatory life term without parole if found guilty. Bowers and Groves are charged with third-degree murder and could face prison terms of 20 to 40 years.

Assistant District Attorney Richard Sax said Sale's death was the culmination of a dispute between two hard-drinking groups: one bused to the game from Moe's Tavern, a Fishtown pub, and the other a bachelor party.

Sax told the jury in his opening that the beef began in the second inning of the afternoon game between the Phillies and St. Louis Cardinals when some of the Moe's group sat in the bachelor party's seats.

That dispute ended with Bowers being ejected from the park. The bad blood moved during the sixth inning into McFadden's, a sports pub attached to the ballpark.

Inside McFadden's, Sax said, drinks were spilled, and Sale and a friend were sucker-punched to the floor before the Moe's group and the bachelor party were ejected.

The two groups walked for a block toward Lot M on opposite sides of Pattison Avenue, trash-talking and cursing at each other until they ended up in the same lot and several fights broke out.

Sax said evidence would show that all three defendants hit Sale - sometimes two holding him while a third punched - before Sale hit the ground and Kirchner delivered what Sax called the "coup de grace."

"They will identify Frankie Kirchner, right before the coup de grace, screamed 'Fishtown!', Sax said.

To some degree, each defense attorney also blamed Sale's conduct that day.

McMahon called Sale's death a tragedy but added, "David Sale was a drunk, arrogant human being that day."

McMahon said Sale precipitated the incident inside McFadden's by purposely spilling a drink on a woman wearing a Moe's T-shirt and then swearing at her and friends.

"David Sale was looking for a fight, he was asking for a fight, he was begging for a fight," McMahon said. "Well, it's like the old saying: Be careful what you wish for, you just might get it."

Sale's mother, LaVerne, sat listening, eyes squeezed shut and lips trembling, struggling to control herself.

Bowers' attorney, Brian J. McMonagle, told the jury in his opening that Bowers was drunk and got into a fight with two other men - but not Sale. Nor was he in McFadden's for that round of hostilities between the groups.

McMonagle said Bowers decked the two men he faced off with in the parking lot but then ran, got into the car of a woman, and left the scene.

"I'm not going to bad-mouth Mr. Sale," McMonagle said. "He made some horrible mistakes that night and he paid a horrible price for it."

Groves' attorney, Scott DiClaudio, told the jury that Groves spent most of the game in the parking lot in a lawn chair playing beer pong. He noticed a fight involving people wearing Moe's Tavern T-shirts and jogged over.

"These were a bunch of drunk morons having a fight," DiClaudio said, "but they weren't there to commit a murder."