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filed: June 15, 1988.


Appeal from the Judgment of Sentence April 28, 1986 in the Court of Common Pleas of Somerset County, Criminal, No. 278 Criminal 1984.


Kevin J. Rozich, Johnstown, for appellant.

David J. Flower, Assistant District Attorney, Somerset, for Com., appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, Olszewski, Del Sole, Kelly, Popovich and Johnson, JJ. Kelly, J., files a dissenting opinion in which Cavanaugh, J., joins. Rowley, J., files a dissenting statement in which Del Sole, J., joins.

Author: Cirillo

[ 375 Pa. Super. Page 264]

Patricia Carbone appeals from a judgment of sentence entered in the Court of Common Pleas, Somerset County, following her conviction for first-degree murder. We reverse and remand.

Carbone raises several issues regarding the sufficiency of the evidence. She claims the Commonwealth failed to prove malice beyond a reasonable doubt and failed to disprove self-defense beyond a reasonable doubt. Therefore, she maintains that the evidence was insufficient to support a conviction for murder in the first degree. Carbone also claims that the presence of the decedent's widow at the prosecution table throughout voir dire and trial was inherently prejudicial.

The well-established standard for reviewing a sufficiency claim on appeal from a conviction was recently stated by our supreme court:

[W]hether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt . . . . The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence . . . . Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered . . . . Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (quoting Commonwealth v. Harper, 485 Pa. 572, 576-577,

[ 375 Pa. Super. Page 265403]

A.2d 536, 538-539 (1979) (citations omitted)).

With these principles in mind, we commence our review of the evidence. Patricia Carbone, age thirty-one, was charged with first-degree murder, third-degree murder, and voluntary manslaughter. She admitted stabbing the decedent, Jerome Lint, but claimed self-defense. According to her testimony, Carbone was walking alone along Route 56 near Windber on Saturday evening, June 9, 1984. She had some free time before her boyfriend was to call so she decided to visit some friends who lived one-fourth mile away. She walked because she had no title for her car. Carbone stated that a small car going her direction slowed down, pulled in front of her and stopped. The car lights went off and the passenger door opened. Carbone walked toward the car. Thinking she would be offered a ride, she bent over and looked into the open door to acknowledge the person and decline the offer, which she did. The driver of the car told her "a nice-looking girl shouldn't be out walking." She continued walking and heard the car door shut. The man then pulled his car in front of her and again opened the car door. Thinking there was no danger, she leaned down again looking into the door intending to tell him that she did not need a ride when he "yanked hold of my hair," and pulled her onto the seat, half in and half out of the car. She experienced both terror and shock, and feared being dragged along the road. She begged him to let her go. As the car began drifting she pulled her legs off the ground and closed the door. When the door closed, he let go of her hair. She tried to talk to him, to "reach him on a human level . . . to get through to him and get him to change his mind and let me go." When he stopped in a remote and heavily wooded area, she got out of the car and ran. Lint chased her and she lost one of her shoes. While she was running, she reached into her purse for a utility knife. She pulled out her hairbrush by mistake and dropped it. She then pulled out the knife. Lint tackled her and she stabbed him because she feared he would rape and possibly kill her. Her testimony indicated that she stabbed

[ 375 Pa. Super. Page 266]

    the victim more than one time because he refused to stop his assault. When he ceased his attempts, he stood up. Carbone then saw headlights and ran toward them.

The Commonwealth's witness, Mr. Varner, testified that while he was driving with his family they were flagged down by a woman standing in the middle of the road with a knife in one hand and a purse in the other, "screaming over and over 'He's going to kill me, help me, let me in the car please.'" When Mr. Varner told her he would not let her in the car because of the knife, she "stabilized" and he allowed her to ride on the hood of his car. He dropped her off at the nearest house, which belonged to Mr. and Mrs. Boyer.

Mr. and Mrs. Boyer also testified for the Commonwealth. Mr. Boyer testified that while he and his wife were on the front porch, Carbone came running from around the back of the house. He asked what was wrong, and she replied that she had punched her boyfriend in the nose. Carbone testified that she did not want to tell the Boyers the truth for fear they would abandon her, as the Varners had. Mr. Boyer stated that Carbone was not screaming or crying when she approached the porch, but appeared frightened. Mrs. Boyer testified that Carbone was upset and badly shaken. Mrs. Boyer invited Carbone in the house and noticed that she was wearing only one shoe. She took Carbone to the bathroom to rinse the blood from her blouse and skirt. She asked Carbone if she wanted to call a friend or the police, but she replied that she just wanted to go home to Windber. Mrs. Boyer offered to take her home. When they got in the car, Carbone asked to return to the scene for her shoe. When they arrived, Carbone stared at Lint's car parked in the distance and said, "He must be looking for me." Frightened, Mrs. Boyer quickly turned her car around and left the scene.

Mr. Nadonely, Carbone's boyfriend, also testified on behalf of the Commonwealth. He testified that Carbone seemed nervous and uncomfortable when he talked to her on the telephone. He arrived at Carbone's apartment at approximately 11:30 p.m. that night and they went to a bar

[ 375 Pa. Super. Page 267]

    about fourteen miles away. Nadonely stated that while they were there, Carbone left the table several times for the bathroom and later told him she had been vomiting. Carbone was pale and her face was swollen. Nadonely took her home at her request. She told Nadonely that someone had tried to rape her and she stabbed him. Carbone was "really upset" so he did not press her for a detailed explanation. He told her that she should call the police, but as far as he knew she had not done so. The next day, Carbone accompanied him to a motorcycle charity event. On their way, Carbone asked Nadonely to stop at the scene so she could retrieve her lost shoe and hairbrush. They saw Lint's parked car and Carbone expressed surprise that it was still there. They got out of their car, leaving the doors open "because we [were] afraid, you know, he might be coming back for the car or something." They found Carbone's hairbrush about forty yards from Lint's car. Carbone showed her boyfriend where the man had knocked her down in the weeds, which were "all knocked over and busted up." They did not see her shoe and did not go close to the car or see anything in it. They left and Nadonely again told her that she should call the police, but he did not want to "push her," and that "maybe she should come over and stay at my house so this guy don't come after her, you know, her and Amy [Carbone's daughter], to protect them." Nadonely further testified that Carbone told him she stabbed the man because "he wouldn't let her alone . . . just kept coming after her. She tried to get away." Nadonely also stated that on Monday there were bruises on Carbone's thighs and buttocks.

Mrs. Stiles, a friend of Carbone's, also testified for the Commonwealth. She stated that she spoke with Carbone on Sunday at the motorcycle event, and that Carbone told her somebody had tried to rape her and she stabbed him in the arm, that he did not stop, so she stabbed him again with a knife from her kitchen which she had with her because she was walking alone and felt insecure.

[ 375 Pa. Super. Page 268]

Mrs. Marcinko, Carbone's neighbor, also testified for the Commonwealth. Mrs. Marcinko cared for Carbone's daughter on Saturday. Carbone came for her daughter on Sunday, and they talked. The witness testified that Carbone appeared calm and said she would like to tell her something and "not to say anything, that she had stabbed someone the night before and she thought she had killed him" and asked what she should do about it. The witness really did not believe her, but told her to call the police. The witness also stated that Carbone told her the man had "forced her into the car and tried to rape her, that's why she stabbed him."

State Police Officer Goldstrom also testified for the Commonwealth. He arrived at the scene on Monday at 8:40 p.m. when it was still daylight. He observed Mr. Lint's body in the car, which was in the driver's seat slumped toward the passenger seat. He found a woman's white canvas shoe two to three feet from the right rear bumper of the car, and a few drops of blood outside the driver's door of the car "as if someone had been standing there and they dropped." Officer Goldstrom also stated that there were smudges of blood on the inside of the driver's door and that the body 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 Commonwealth. His testimony generally confirmed that of Officer Goldstrom, but added that he gathered eight stones from the scene found near the driver's door on the ground that appeared to have human blood on them.

Dr. Williams, a pathologist, also testified for the Commonwealth. He testified that he had performed the autopsy and that the decedent had stab wounds on his trunk and abdomen, and other wounds which were essentially superficial. The specific cause of death was a wound to the heart. He stated that in his opinion very few persons have any period of physical activity after such a wound to the heart. Dr. Williams stated that the decedent was 5'9" tall and weighed 165 pounds, and that the body was well-developed and well-nourished with adequate musculature. On cross-examination,

[ 375 Pa. Super. Page 269]

Dr. Williams testified that the opening and closing of a car door does not require enormous energy and is not an absolute impossibility with such a wound; that a person with such a wound could be capable of some ...

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