*1 оf a confidential relation- in the course disclosed to Cattolico that, given the chance to possible is ship. entirely It fully Bell could have hearing, at a full its evidence present met pleaded its assertion that its information substantiated and Morgan’s set forth MacBeth-Evans the standard possession of that that Cattolico was Home Equipment, relationship of a confidential be- result information Bell, had or threatened to and that Cattolico tween he and or disclosure irreparable through harm use cause Bell thereof. preliminary injunction denial of a
The trial court’s is business information allegedly Bell’s confidential protect hearing full remand for the conduct reversed. We this issuе. proceedings consist- remanded for further
Reversed and relinquished. is Opinion. this Jurisdiction ent with A. 2d 462 Pennsylvania COMMONWEALTH CARBONE, Appellant. Patricia Ann Superior Pennsylvania. Court of Sept.
Argued 15, 1988. Filed June *3 Johnstown, Rozich, appellant. for Kevin J. Somerset, Flower, Attorney, Assistant District
David J. Com., appellee. for CIRILLO,
Before Judge, President and CAVANAUGH, BROSKY, ROWLEY, OLSZEWSKI, SOLE, KELLY, DEL JOHNSON, POPOVICH and JJ.
CIRILLO, President Judge: Patricia appeals from a judgment of sentence Pleas, entered in the Court of Common Somerset County, following her conviction for first-degree murder. We re- verse and remand.
Carbone raises several regarding issues sufficiency the evidence. She claims the Commonwealth prove failed to malice beyond reasonable doubt and failed to disprove beyond self-defense Therefore, reasonable doubt. she maintains that the evidence was insufficient to support a conviction murder in degree. first Carbone also claims that the presence of the decedent’s widow at the prosecution throughout table voir dire and trial was inher- ently prejudicial.
The well-established standard for reviewing a sufficiency claim appeal from a conviction was recently stated supreme our court:
[WJhether, viewing the evidence in the light most favor- able to the Commonwealth verdict winner], and draw- [as ing all reasonable inferences favorable to the Common- wealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.... The Com- may monwealth sustain its burden of proving ele- every ment of the crime beyond a reasonable doubt by wholly *4 evidence____ circumstantial Moreover, in applying the test, above the entire trial record must be evaluated and all evidence actually received must be considered.... Finally, fact, the trier of passing while upon the credibili- ty of witnesses and the weight to be afforded the evi- dence produced, all, is free to believe part or none of the evidence. Griscavage, 540, 543, Pa. 517 A.2d (1986) (quoting Commonwealth v. Harper, (1979) (citations 576-577, A.2d 538-539
omitted)). mind, review of we commence our principles these
With Carbone, age was thirty-one, Patricia the evidence. murder, murder, third-degree and first-degree chargеd the dece- stabbing admitted voluntary manslaughter. She According to Lint, self-defense. dent, but claimed Jerome along alone Route 56 testimony, walking her evening, 1984. She had June Saturday near Windber call so she boyfriend her was to free time before some one-fourth mile some friends who lived decided to visit title for her car. because she had no She walked away. her direction slowed going that a small car Carbone stated lights and The car down, stopped. in front her pulled door Carbone walked passenger opened. and the went off ride, offered a she Thinking the car. she would be toward acknowledge open into to and looked door bent over offer, which did. The driver of decline thе she person and out walk- nice-looking girl “a shouldn’t be car told her and heard the car door shut. ing.” walking continued She again of her and then car front pulled man his Thinking danger, was no she opened the car door. there to intending into the door tell again looking leaned down hold “yanked ride when he him that she did not need a seat, hair,” her half in and half out my and onto pulled shock, experienced car. both terror She him begged being dragged along the road. She feared pulled her legs car she go. began drifting let her As the closed, door. When the door ground off the and closed the him, to “reach him he her hair. tried to talk to go let She get him and him to through get on a human level ... he in a go.” stopped me his mind and let When change area, out the car and got she heavily remote and wooded While lost of her shoes. Lint her and she one ran. chased utility into for a purse she her running, she was reached by mistake and pulled out her hairbrush knife. She her the knife. Lint tackled pulled it. She then out dropped rape he him she feared would and she stabbed because that she stabbed testimony kill Her indicated possibly her. *5 the victim more than one time because he refused stop attempts, his assault. he ceased his he up. When stood headlights Carbone then saw and ran toward them. witness, Varner, The Commonwealth’s Mr. testified that he his driving family they flagged while were standing in the down a woman middle of the road with a other, purse knife in one hand and a in the “screaming over me, me, kill going help and over ‘He’s let me in the car ” Mr. told please.’ When Varner her he would not let her in knife, the car she because “stabilized” and he allowed her to on the hood of his car. dropped He her off at rid^ house, belonged the nearest which to Mr. and Mrs. Boyer. Boyer
Mr. and Mrs. also testified for the Commonwealth. Mr. testified that he Boyer while and his wife were on the porch, running front Carbone came from around the back of the house. He asked what was and she wrong, replied that punched boyfriend she had her in the nose. Carbone testi- fied that she did not want to tell the Boyers the truth for her, they fear would abandon as the Varners had. Mr. Boyer stated that Carbone was not screaming crying she approached porch, appeared frightened. when but Boyer Mrs. testified that Carbone was upset badly shaken. Mrs. invited Boyer Carbone the house and noticed that wearing only she was one shoe. She took Carbone to the to rinse the bathroom blood her blouse and skirt. if She asked Carbone she wanted to call a friend police, replied or the she that she just go but wanted to home to Mrs. Boyer Windber. offered to take her home. car, in the they got When Carbone asked to return to the arrived, scene her shoe. When stared at they said, Lint’s car in the distance and parked “He must be for me.” looking Frightened, Boyer quickly Mrs. turned her car around and left the scene. Nadonely, boyfriend,
Mr. Carbone’s also testified on be- half the Commonwealth. He testified that Carbone seemed nervous and uncomfortable when he talked to her the telephone. apartment He arrived at Carbone’s approximately p.m. night they 11:30 went to a bar stated that while Nadonely miles away. fourteen about *6 several times for the there, left the table Carbone were they vomiting. Car- him she had been later told and bathroom took Nadonely her was swollen. and face pale was bone that someone Nadonely told request. She her home at her was stabbed him. Carbone her and she rape had tried to explana- her did for a detailed uрset” press so he not “really as far police, call the but He her that she should tion. told day, so. The next Carbone had not done he knew she event. On their motorcycle charity him to a accompanied at the scene so she Nadonely stop asked way, Carbone They saw Lint’s lost shoe and hairbrush. could her retrieve it that was still expressed surprise car and Carbone parked car, leaving open the doors out of their got there. They afraid, know, might coming he be you “because we [were] found Carbone’s something.” They for the car back car. forty Lint’s Carbone yards hairbrush about man knocked her down had boyfriend showed her where up.” and busted weeds, in the which were “all knocked оver to the car or go her and did not close They did not see shoe her again and told Nadonely in it. left anything They see “push he want to but did not police, that she should call her,” stay my over and “maybe and she should come that know, her, her and you so after guy house this don’t come protect Nadonely them.” daughter], Amy [Carbone’s man him stabbed the that told she further testified Carbone coming kept alone just let her ... because “he wouldn’t Nadonely also stated get away.” tried to after her. She and thighs on on there were bruises Carbone’s Monday that buttocks. Carbone’s, Stiles, testified for
Mrs. a friend of also she Carbone spoke She stated that Commonwealth. event, her and that Carbone told motorcycle Sunday at in the stabbed him somebody rape tried to her she had again him with a arm, so she stop, that he did stabbed she her because knife from her kitchen which she had with insecure. alone felt walking Marcinko, Mrs. neighbor, Carbone’s also testified for the Commonwealth. Mrs. Marcinko cared for daugh- Carbone’s Saturday. ter on Carbone came for her daughter on Sun- talked. day, they The witness testified that Carbone calm appeared and said she would like tell her something and “not to say anything, she had stabbed someone the night before and she thought she had killed him” and asked she what should do about it. The witness really did not her, police. believe but told her to call the The witness also stated that told her the man had “forced her into her, the car and tried to rape why that’s she stabbed him.” State Police Officer Goldstrom also testified for the Com- monwealth. He arrived at the scene on Monday at 8:40 p.m. when it was still daylight. He observed Mr. Lint’s *7 car, in the body which was in the driver’s seat slumped the passenger toward seat. He found a woman’s white canvas shoe two to three feet from right the rear bumper of car, the and drops a few of blood outside the driver’s door of the car if “as someone standing had been there and they dropped.” Officer Goldstrom also stated that there were smudges of blood on the inside of the driver’s door and that body the had a puncture wound just behind and under the left arm but no other wounds were then noticed.
Police Officer Marshall testified on behalf of the Com- monwealth. testimony His generally confirmed that of Goldstrom, Officer but added that gathered he eight stones from the scene found near the driver’s door on ground the appeared that to have human blood on them. Williams,
Dr. a pathologist, also testified for the Com- monwealth. He testified performed that he had autop- sy and that the decedent had stab wounds on his trunk and abdomen, and other wounds which were essentially superfi- cial. The specific cause of death was a wound to the heart. He stated in opinion that his very persons few any have period of physical after activity such a wound to the heart. Dr. Williams stated that the decedent was 5'9" tall and weighed pounds, and that the body well-developed and well-nourished adequate with musculature. On cross-
examination, Dr. Williams testified that opening and closing of a car door does not require enormous energy is wound; not an absolute impossibility with such a that a person such a capable wound could be of some activity but it is uncertain as to what could activity be. Goldstrom, recalled,
Officer testified that he interviewed parents’ her home on Tuesday, June She agreed questions to answer without counsel. Officer Gold- strom subsequently placed Patricia Carbone under arrest for criminal homicide. brother
Lint’s also brother-in-law testified on behalf They they Commonwealth. indicated that found body position Lint’s sitting his car. There was blood on the driver’s door ground outside the driver’s side of car. also They testified that they went remote area because he was frequented known have spot before. wife, Lint,
The decedent’s Mrs. also testified Commonwealth. She stated that her spot where hus- band’s body was found was one of his stopping favorite points.
The Commonwealth’s evidence also indicated that Patricia Carbone and Lint did Jerome not know each other. Follow- trial, ing the jury first-degree convicted Patricia Carbone of murder. record,
After a careful review of the entire trial we *8 conclude that the Commonwealth failed to meet its burden proving of every first-degree beyond element of murder First-degree rеasonable doubt. is statutorily murder de 2502(a).1 fined as an killing.” “intentional 18 Pa.C.S. An § great 1. The ofAct 1682 was the first reform statute under William penalty except Penn which abolished the death for all offenses murder penalty only persons and the retained death for those who shall "wilfully premeditatedly person.” "wilfully or kill another The words premeditatedly” or the were substituted for words "malice afore- thought” operated penalty only and retain to the death for murder express variety where there malice —the intent-to-kill —and implied for where murder there was malice —some murderous intent Though early lapsed less than intent to kill. this reform statute in 270 “Killing by as killing” is defined follows:
“intentional
wait,
in
or
kind of
by any
or
other
poison,
by lying
meаns of
killing.”
18
premeditated
Pa.C.S.
willful, deliberate
deliberate,
killing is
2502(d).
willful,
premeditated
A
§
bring
specific intent
to
about
the actor had the
one where
Meredith, of the victim. Commonwealth
the death
Moore, (1980);
303, 416
Pa.
A.2d 481
(1977).
169,
element Second, disprove the Commonwealth failed she claims we can- Although a reasonable doubt. beyond self-dеfense killing a justifiable that the evidence establishes not find seventy-six years in ameliorating resurfaced later its influence time, adjective, of At that the third Act —"deliberate”—was of came from the memoir Justice added. The word "deliberate” who, papers prepared for the Governor research Bradford Act of 1794. formed the basis and the recommendation which The Act of 1794 stated: murder, poison, or perpetrated means of shall be That all by lying which wilful, wait, by any deliberate other kind or perpetra- premeditated killing, be committed in the or which shall arson, burglary, any rape, robbery or attempt perpetrate tion degree; and all other kinds be deemed murder of the first shall degrеe. of the second shall be deemed murder murder degrees, into to divide murder This was the first American statute appropriate for leaving capital punishment as the sentence intact degree providing for a lesser sentence in the first but murder (now degree). degree murder in the third in the second murder Felony-murder, degree, second-degree is now once murder in first Brenner, 2502(c); Impulsive See see also § murder. 18 Pa.C.S. Device, (1953); Keedy, Degree 22 Fordham L.Rev. Murder and the Murder, Creating Degrees History Pennsylvania Statute U.Pa.L.Rev. 759 *9 law, a matter of we are convinced that killing a malicious was not established.
In order for a willful or intentional killing to constitute
murder, the Commonwealth must establish malice beyond a
Thomas,
doubt. Commonwealth v.
reasonable
553,
403 Pa.
(1961);
Flax,
Commonwealth v.
170 A.2d
(1938).
Malice is a implying much compre- more. It ill-will, only particular hends not every but case where there disposition, heart, is wickedness of hardness of cruelty, consequences, recklessness of regard- and a mind duty, although particular less social person may not be intended to be injured.
Id. 15; Kersten, see also Commonwealth v. 333 Pa.Su- (1984) per. (malice which may be inferred attending in circumstances a homicide prosecution consists either of an express great intent to kill or inflict harm, bodily or of a wickedness of disposition, hardness heart, cruelty, consequences, recklessness оf and a mind regardless of duty, indicating social unjustified disregard for the probability great harm). of death or bodily Drum charge classic in jury it preeminently makes clear malice, express whether or must implied, proven be Commonwealth, and that it may proven be circumstan- tially: Drum, (1868)
2. Commonwealth v.
Drum, 58
see also Commonwealth
16;
Pa. at
v.
106,
(1982);
Commonwealth
451
1344
499 Pa.
A.2d
(1950).
Buzard, 365
511,
Pa.
A.2d
76
394
deadly
use of a
it is well settled that the intentional
Thus
body
permissible
raises a
weapon
part
on a vital
554,
479
388 A.2d
Hinchcliffe,
inference of malice.
Pa.
it allows
purpose;
jury
This inference has a dual
at 1070.
Caye,
v.
malice,
98,
Pa.
465
348
Commonwealth
to infer
343,
Boyd,
v.
(1975);
463 Pa.
344
Commonwealth
A.2d
136
kill,
Com-
(1975),
intent
specific
A.2d 864
as well
Toledo, 365
224,
v.
A.2d 948 the Commonwealth relies on that inference of malice to justify the verdict. The jury was not required to disregard the inference merely because Carbone However, testified otherwise. the Commonwealth’s re- liance inference from the fact of the stabbing is under misplaced the facts of this case. disputed
It is not
that Carbone stabbed Lint and caused
*11
his death. The question raised is whether the act was
inspired by
case,
malice.
In this
the inference of malice
that would normally arise from the use of a deadly weapon
upon
part
a vital
of
deceased,
of
body
absent
further explanation, is negated by other evidence presented
in this
case
the Commonwealth. Commonwealth v.
Caye, 465 Pa. at
(1975).
An inference of malice cannot be in accepted a vac uum. The law infers or presumes from the use of a deadly weapon, in the absence of circumstances of exрlanation or mitigation, the intent, existence of the mental element— malice, design, premeditation, or whatever may term be used to express it—which is essential to culpable homicide. Jones, See 355 Pa.
(1947). See 40 generally Am.Jur.2d Homicide 265 § It necessary is to look at all of the Commonwealth’s evi addition, In dence. the entire trial record must be evaluat- 274
ed,
actually received must be considered.
and all evidence
McGuire,
v.
see
supra;
also Commonwealth
Griscavage,
(evidence,
(1979)
negated
409
which
Pa.
A.2d 313
487
from defend-
normally
malice that
arise
inference of
would
victim,
weapon
part
body
on
of
deadly
vital
ant’s use
killing beyond
malicious
a
insufficient
to establish
third-degree
did not support
doubt and thus
reasonable
v.
Heatherington,
Commonwealth
conviction);
murder
(in
murder,
(1978)
prosecution
A.2d 338
Pa.
negate
tends to
or self-defense
provocation
evidence
v.
Commonwealth
murder);
prove
required
malice
Jones,
(1947) (absence
522, A.2d 317
of motive is
intent).
tending
disprove specific
evidence
placed upon
of self-defense
claim
Carbone’s
prove beyond
reasonable
the burden
Commonwealth
To raise the
not act
self-defense.
defendant did
doubt
necessary
is
to establish
murder it
homicide to
level
resulted
intentionally did the act which
the defendant
justification
that she did so without
the death and
of malice is
concept
to note that
important
It is
excuse.
meet its
In order to
burden
with self-defense.
inconsistent
prosecution,
in a murder
of malice
element
proof
beyond
exclude self-defense
must
the Commonwealth
Hinchcliffe,
doubt. 479 Pa.
reasonable
denied,
*12
989,
cert.
1068, 1069,
U.S.
A.2d
self-de
(1978). The existence of
L.Ed.2d
S.Ct.
the
fense,
stated,
prove
the state’s failure
or otherwise
doubt, pre
a reasonable
beyond
of self-defense
absence
reasonably
satisfactorily
and
fully,
jury
cludes the
Drum,
In Hinchcliffe, Ross, victim, were in selling drugs. involved Hinchcliffe wanted to terminate the illicit relationship, business and an argu- ment grabbed ensued. Ross a short length pipe attempted to hit Hinchcliffe. Hinchcliffe was get able to pipe out of Ross’s hand. Rоss grabbed then a lamp and started to attack Hinchcliffe. Hinchcliffe diverted the lamp with the piece pipe, struck simultaneously Ross on the head. Ross fell to the floor and died a short time later. Hinchcliffe admitted planning to surreptitiously dispose of Ross’s body, claiming he did not think police would believe him previous because he had a criminal record and because he was in parole violation of for having left the state of Ohio without permission.
Following trial, a jury Hinchcliffe was convicted of third- degree murder. appeal, On he argued that the evidence was insufficient to sustain a third-degree murder conviction and the Commonwealth failed to meet its burden of disprov- ing self-defеnse beyond a reasonable doubt. The Pennsyl- vania Supreme Court disagreed, noting that the factfinder can a permissible draw inference of malice from the inten- tional use of a deadly weapon a vital part victim’s
276
stated that
there was evidence
body. The court
“[s]ince
malice,
could
least
infer
jury
reasonably
a
at
which
beyond
its
proving
has met
burden
Commonwealth
that Hinchcliffe did
act in self-de-
reasonable doubt
557,
Thus,
Id.,
A.2d
Under the facts
before
malice is not warranted.
In
Hinchcliffe,
inference of
has
every other case where malice
been inferred
in almost
weapon
deadly
upon
part
of a
a vital
from the use
such malice and a
body,
circumstances corroborated
other
See,
infer
reasonably
e.g.,
malice.
Common-
jury could
(1981)(after
Thornton,
260,
494 Pa.
277 us, strikingly from the case before dissimilar The aforementioned, presents corroborating no such circum evidence in this case does not warrant simply The stances. malice, any and therefore a verdict of inference of an However, a of precluded. of murder is verdict degree on the voluntary manslaughter could have been sustained 18 us. Pa.C.S. 2503. record before See § self-defense, is claim of the Common- there a Where beyond of elements following establish one the must wealth doubt: a reasonable it neces- reasonably not was
(1)
appellant did
believe
that
or
protect
against
to
death
to kill
order
himself
sary
harm, or
used more force
appellant
that
bodily
serious
to
necessary
save himself
reasonably
than was
harm,
felony;
of
death,
the commission
or
great bodily
force; or,
use
(2)
the
of
appellant provоked
that
and that retreat
(3)
duty
had
to retreat
appellant
that
complete safety.
possible
was
Helm,
505(b)(2);
v.
see also Commonwealth
18 Pa.C.S. §
Zen-
(1979);
v.
Pa.
ROWLEY, J., dissenting in which files a statement J., SOLE, joins. DEL
KELLY, Judge, dissenting: I find suffi- respectfully I dissent. would the evidence appellant’s to sustain conviction of murder the first cient However, I find that the of the degree. presence would widow the counsel table of the Commonwealth decedent’s briefly I my reasoning a new trial. state аs requires follows.
I. charge a to a guilt concludes that verdict of majority upon not degree may solely murder in the first be based of deadly from the force presumption the which arises use organ a defendant asserts a claim of on a vital when issue, I do not find I not reach that self-defense. would Succinctly, I by the facts of the instant case. presented it to sufficient find that of the evidence was totality verdict inappropriate for this court to enter a It would be manslaughter. supreme previously indicated voluntary court has Our by entering unwillingness jury’s verdict for a usurp to function a an degree evidence did after a determination that the lesser homicide degree sustain the found the factfindеr. not Wagner, 486 Pa. has to verdict, failed majority and that sustain the to light in the most favorable the evidence review give Commonwealth the benefit from the evidence. arising inferences of reasonable an 11-inch stabbing decedent with Appellant admitted claimed that in her but carrying purse, knife which she was to attempted when the decedent so in self-defense she did However, her. the details assault sexually abduct and were inconsistent of the incident appellant’s trial version appel- made by statements prior various with the details of scene, with at the lant, evidence discovered physical certain) inflicted (but effect of the wounds probable decedent, opinion evidence with the considerable on the non-violent, reputation as to the decedent’s presented as man. Evidence young married abiding, happily law twice returned the scene appellant had also indicated crime, linking her to the crime to remove evidence on the calm, day manner ordinary acted had otherwise incident, the incident report and had failed following the police. to the correctly trial court jury,
In its instructions explained: part the vital deadly weapon the actor uses a
When *16 another, regard as an item of that you may the body that may infer you from which circumstantial evidence in to kill required had intention specific the actor the don’t I You ‘you may.’ Notice said first-degree murder. it an intention may to. You think doesn’t show have all of the up and consider it with wrap kill it you when in the case. circumstances sup- here the evidence
The Commonwealth contends that is malice-as re- intentional ports finding of malice-of mitigation, murder, no first-degree that there is in quired the defense contends justification; is no and there malice finding of such does not warrant the evidence acting justified lawfully the was because defendant self-defense. in- Thus, specifically 10). was
(N.T. jury 4/4/85 of the case” the circumstances structed to consider “all and acted with “malice” deciding appellant whether before the use of a solely upon to find malice based was not invited organ. on a vital deadly weapon all, of the part, or none The free to believe jury was inferences aris- and to draw reasonable presented evidence appellant’s jury accepted ing Apparently, therefrom. rejected and as not she stabbed the victim admission that attempting that he was justification proffered her credible her. I would not substitute sexually assault to abduct weight and the appellant’s credibility assessment of our Rather, I jury. for that of the the evidence to be accorded verdict, sufficient to sustain find the evidence dissent. therefore
II. contention that a appellant’s not reach does majority prejudice as the result of the requirеd trial is new of the presence arising conspicuous appellant within the bar of prosecutor’s at the table decedent’s widow I Initially, trial. throughout during the court voir dire properly to her was challenge presence that a would find stage at each objection of the repetition and that preserved, required. was proceedings Cf. (1987) 522 A.2d Hanes, Pa.Super. inquiry foreclosed further ruling by trial court (evidentiary necessary motion was not subject, repetition on the improp risk of issue). I find that a substantial preserve created affecting juror deliberations prejudice er within the bar of the widow emotionally presence evocative No trial. throughout dire and during court voir proffered, nor presence her has been reason for legitimate I vacate the would imagine any. Consequently, I could charges. trial on all remand for new sentence and ROWLEY, dissenting: Judge, *17 in Part I set forth for the reasons respectfully I dissent concerning Judge Kelly Dissenting Opinion of the evidence. sufficiency Kelly’s II of Judge Part
However, disagree I also presence that the he concludes Dissenting Opinion which voir dire during table at the counsel widow victim’s wide court has discretion The trial prejudicial. Jones, 314 v. trial, conduct at control opinion the trial my 461 A.2d Super. (1983), Therefore, I would that discretion. did court abuse of sentence. judgment affirm
544 A.2d Appellant, Pennsylvania, COMMONWEALTH A. HOLLENBACH. Charles Pennsylvania. Superior Court Argued Feb. 24, 1988.
Filed June