Mistrial request ruling awaited in Phillies fan's death

Posted: September 20, 2011

Defense lawyers for three men charged with the beating death of a Phillies fan outside the ballpark in 2009 moved for a mistrial Monday after a prosecution witness made a surprise identification of one defendant.

The witness said he saw Frances Kirchner, 30, deliver a kick to the neck of David W. Sale Jr. in a beer-fueled parking-lot fight. The comment was made in response to a defense question, but the three lawyers nevertheless said it was grounds for a mistrial.

It was not the first time Kirchner had been identified as the kicker. He is charged with first-degree murder and, if convicted, faces life in prison.

A decision on the mistrial motion will be announced Tuesday morning by Common Pleas Court Judge Shelley Robins New. Defense lawyers argued that they should have been told by the prosecution that Ryan Tulino could identify Kircher.

The defendants are Charles Bowers, 37, of Oxford Circle; James Groves, 48, of Kensington; and Kirchner, 30, of Fishtown. They were part of a group bused to the game that day from Moe's Tavern, a Fishtown pub.

Bowers and Groves are charged with third-degree murder in the death of Sale, 22, of Lansdale.

Tulino was one of the three friends with Sale when, he told jurors, a group of about 20 men and women wearing Moe's T-shirts ran toward them after both groups were ejected from a ballpark sports bar.

Tulino said he saw one defendant hit Sale - he said it was Bowers - and then saw another man deliver the kick to the neck.

"It was the guy sitting all the way to the far right," he said, describing where Kirchner was sitting, with the other two defendants behind their lawyers.

Tulino, 26, was being questioned on cross-examination by Brian J. McMonagle, Bowers' attorney. McMonagle was pressing Tulino on whether he had ever told Assistant District Attorney Richard Sax that he was able to identify Sale's attackers.

The defense case is essentially that the prosecution has the wrong men. "He never touched the man," Kirchner's attorney, Jack McMahon, said last week.

Tulino said he told Sax last week that he recognized the attackers. Sax never asked that question during Tulino's direct testimony. Instead, he asked Tulino to narrate a video that showed Tulino, Sale, and two other members of the bachelor party being ejected from the bar after an encounter with the Moe's crowd that led to punches being thrown.

After they leave, a group of men in light-blue T-shirts, all from the chartered bus, are seen also being ejected. Two were forcibly pushed out the door by the bouncers.

Tulino said that after they were thrown out of the bar, Sale was upset because the fight had been started by members of the Moe's crowd. At one point, Sales can be seen in a red T-shirt talking to his friends as they walk to the parking lot. Moments later, he was dead.

Sale's mother, Laverne Sale Young, left the courtroom as the video began.

As McMonagle pressed Tulino on what he had told prosecutors, the witness said of Bowers, "I had my hands on that gentleman," trying to keep him away from Sale, "when Dave was kicked in the head."

Moments later, he added, "I know you have to defend your client, but I have to point fingers." Then he directed attention to Kirchner.

McMahon said he had been told by Sax that morning that Tulino would not be an "identification" witness, which he said the prosecution is obliged to tell the defense in advance.

Contact staff writer Nathan Gorenstein at 215-854-2797 or ngorenstein@phillynews.com.


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