Judge won't drop 1st-degree murder charge against defendant in Liczbinski death

In a standing-room-only courtroom crammed with about 60 police officers and detectives, attorneys yesterday argued whether some charges should be dismissed against defendants in the May shooting death of Police Sgt. Stephen Liczbinski.

Common Pleas Judge Benjamin Lerner yesterday denied a motion by defense attorney William Bowe to drop first-degree murder and conspiracy charges against his client, Eric Floyd.

The judge, though, granted a defense motion to dismiss attempted-murder charges against Floyd and co-defendant Levon Warner in connection with two civilians - an employee at the bank the defendants allegedly robbed, and a Port Richmond resident who witnessed the sergeant being shot.

Defense attorneys Bowe and Gary Server also are seeking to sever their clients' cases, so that the two would be tried separately.

Assistant District Attorney Mark Gilson opposes severing the cases, but arguments will be heard Jan. 7.

Authorities have said that Licz-binski, 39, was shot to death around 11:30 a.m. May 3 as he pursued the defendants' stolen getaway Jeep after they robbed a Bank of America in the ShopRite on Aramingo Avenue near Castor.

As the Jeep stopped on Schiller Street near Almond, evidence showed, a third man, Howard Cain, got out of the Jeep and shot the sergeant with an assault rifle.

Cain, 34, of North Philadelphia, was killed by police later that day.

In arguing for the first-degree murder and conspiracy charges to remain against Floyd, Gilson said Floyd, the driver, had decided to stop the Jeep so Cain could get out to shoot the sergeant with "the biggest, baddest gun."

The judge, in granting the defense motion to dismiss the attempted-murder charges, found there was not sufficient evidence to support a contention that the defendants had intended to kill an employee at the bank or the woman who had witnessed the shooting.

During the hearing, Server and Bowe also shed light on what type of defense they may be presenting during the trial or during the penalty phase if their clients are convicted of first-degree murder.

Server, Warner's attorney, contended that Floyd and Cain had been the dominant players and that his client "was the subordinate" acting at their behest. He suggested that he may be pursuing a diminished-capacity defense - that his client may have developed mental-health issues from his days as a boxer.

Hearing this, some observers in the gallery gasped in disbelief.

Server noted that a reason for severing his client's case from Floyd's is that the two defenses may be adverse to each other.

Bowe told the court that Floyd's defense is simply "he did not possess an intent to kill."

Incriminating evidence against Floyd comes from Warner's statement, in which Warner allegedly said that as the sergeant's car was pursuing the Jeep, "the boy [Floyd] that was driving the car started yelling, 'Bang him!' "

Liczbinski's wife and children attended yesterday's hearing.

Warner, 40, and Floyd, 34, were not brought into the room.

The prosecution is seeking the death penalty in their cases. The matter is not expected to go to trial until 2010 because of the court system's calendar, Gilson said after the hearing. *