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COMMONWEALTH PENNSYLVANIA v. MICHAEL D. SCARPINO (07/02/81)

decided: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
MICHAEL D. SCARPINO, APPELLANT



No. 80-1-131, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. 7900519A

COUNSEL

John L. Doherty, Manifesto, Doherty, Love & Talarico, P. C., Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Dara De Courcy, Pittsburgh, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: O'brien

[ 494 Pa. Page 425]

OPINION OF THE COURT

Appellant, Michael Scarpino, was convicted of murder of the third degree after a trial by jury on October 12, 1979. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment of not less than five years nor more than ten years. This appeal ensues.

The facts which led to the prosecution in this case are briefly stated below. On January 6, 1979, David William Ludwig was standing at a bar in the Sheraton Inn in Monroeville, Pennsylvania. Appellant approached Ludwig from the rear, swung him around with his left hand and proceeded to stab him in the neck with a knife held in his right hand. Thereafter, appellant turned and walked away when the victim threw a drink at him. Immediately, appellant returned and lunged at the victim's chest with his right hand. Ludwig died later that night from a stab wound to the chest.

Five issues have been raised on this direct appeal. Initially, appellant contends that the Commonwealth's evidence was too contradictory to support the verdict. Specifically, he claims that the testimony of the Commonwealth's primary witness was so contrary to the physical facts as stated by the Commonwealth's pathologist that the verdict was the result of surmise and conjecture by the jury and must be overruled.

In support of his argument, appellant highlights the testimony of an eye-witness. First, the witness testified that appellant approached the victim, grabbed the victim's shirt with his left hand, and stabbed the victim's neck in a downward fashion with the knife in his right hand. In describing this action, the witness testified:

"When he [appellant] pulled him [the victim] forward, he brought the knife up and straight down into, like into the side of his neck area on the man's left side."

The Commonwealth's pathologist, Dr. Joshua Perper, also testified at trial about this neck wound:

[ 494 Pa. Page 426]

"My opinion is that most likely the wound was inflicted from the right upward toward the left, most likely, but however I cannot exclude the possibility that it went in an opposite direction." (Emphasis added)

As seen from Dr. Perper's testimony, the wound could have been inflicted in a fashion consistent with the testimony of the prosecution witness.

As we noted in Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977):

"[t]he mere existence of conflict in the prosecution's evidence is not fatal to its case because the Commonwealth is not bound by everything its witnesses say, and the jury can believe, all, part, or none of the testimony." Id., 473 Pa. at 62, 373 A.2d 1053-1054.

This principle extends to testimony proffered by expert witnesses as well. Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971). Nonetheless, a jury will not be permitted to return a finding where the evidence offered to support a verdict is so unreliable and/or contradictory as to make the verdict based thereon pure conjecture. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). Appellant contends that the above two quotes were inescapably ...


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