Daniel Penny didn't even kill the black hobo on the subway
(www.dailymail.co.uk)
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I'm definitely on Penny's side on this, but the assailant having a pulse after cops arrived on the scene doesn't mean that much. If you're found to have caused the death of another, even if that death is delayed, you can still be liable. Homicide doesn't have to be immediate.
It shows a lack of mens rea and pre-meditation; the prosecutor is assuming both of these things for the murder charge Penny is facing.