Shuman & Lawler, Arthur R. Shuman, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, Philadelphia, for appellee.
Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., and Roberts, J., did not participate in the consideration or decision of this case. O'Brien and Nix, dissent.
Appellant, Carol Eberle, was charged with murder and voluntary manslaughter for the fatal stabbing of Charles Dilks. The prosecution certified that the crime rose no higher than murder in the third degree. Appellant was tried without a jury and found guilty of voluntary manslaughter. Post-verdict motions were denied, and she was sentenced to a term of imprisonment of not less than two nor more than five years. This appeal followed.
The evidence, as viewed in the light most favorable to the verdict winner, see Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975), indicates the following. The incident resulting in Dilks' death occurred on September 22, 1974, in appellant's one-room efficiency apartment in Philadelphia,
Pennsylvania. The deceased was appellant's friend. Appellant had given him a key to her apartment, he kept clothes there, and lived there "sometimes." At about 2:00 a.m., on the day in question, Dilks telephoned appellant at her place of employment, and told her he would see her at her apartment after she finished work. Appellant returned to her apartment at approximately 4:00 a.m. and prepared and ate a snack of salami and Pepsi, slicing the salami with a knife. She placed the knife on a coffee table in front of the sofa, and fell asleep on the sofa. Dilks awakened her at about 6:00 a.m. having entered the apartment using his key. At this time Dilks was "exceedingly drunk" according to the finding of the trial court. His blood contained .21 per cent alcohol, the equivalent, according to the prosecution's evidence, of ten ounces of 100 proof liquor.
Dilks then sat down on the sofa next to appellant. When appellant asked him where he had been, he jumped up, threw off his jacket, and started screaming that she should "ask Nick and Joyce." Dilks then crossed the room and tore the top shelf off the bookshelves directly opposite the sofa.
After pulling down the bookshelf, Dilks turned around, crossed the room and pulled down a shelf fastened by nails to the wall above the sofa. Appellant stood up between the coffee table and the sofa, a space about two and one-half feet wide, at which time Dilks "lunged" at her. Using the knife with which she had sliced the salami, appellant fatally stabbed Dilks as he lunged toward her.
The occupant of the adjoining apartment testified that she was awakened at 6:00 a.m. by a "loud thud," and then heard shouting between two people, one male and one female, coming from appellant's apartment. She testified that the female voice said "I'm going to kill you." The witness then heard more shouting and heard the male voice say, "I'm going to . . ." What the male said he was going to do, however, the witness could not hear.
Appellant did not dispute the fact that she inflicted the fatal wound. She asserted, however, that she acted in self-defense, and argues here that the evidence is insufficient
to sustain the voluntary manslaughter conviction. We agree and therefore reverse the judgment of ...