Com. v. Scarpino

• Decision Date: 02 July 1981
• Parties: , 7 Media L. Rep. 1832 COMMONWEALTH of Pennsylvania, v. Michael D. SCARPINO, Appellant.
• Court: Pennsylvania Supreme Court

Page 926

431 A.2d 926

494 Pa. 421, 7 Media L. Rep. 1832

COMMONWEALTH of Pennsylvania, v. Michael D. SCARPINO, Appellant.

Supreme Court of Pennsylvania.

Submitted March 5, 1981.

Decided July 2, 1981.

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.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.

OPINION OF THE COURT

O'BRIEN, Chief Justice.

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:

"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. 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 in conflict and made it "impossible for the fact-finder to determine guilt without relying on surmise or conjecture."

In support of his position, appellant mistakenly relies upon Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 (1975). In that case, the testimony in conflict concerned uncontrovertible physical facts. Consequently, the police officer's testimony that he observed the defendant exiting a certain door had to be rejected when the door was proven to be locked.

Herein, the testimony which appellant so vehemently characterizes as conflicting does not involve so absolute and unswerving a factual issue as the locked door in Santana. Rather, we are faced with a wound to the neck which admittedly could have been inflicted from two directions. Because the pathologist's testimony concerning the wound could be consonant with the eye-witness' account, we cannot find that a verdict based thereon would be pure conjecture. See, Commonwealth v. Farquharson, supra. To do so would be to impinge upon the jury's responsibility to reconcile conflicts in the testimony. Commonwealth v. Kearney, 459 Pa. 603, 331 A.2d 156 (1975). The instant conflict is easily subject to reconciliation, and falls well within the jury's province as the trier of fact.

Furthermore, any conflict concerning this issue cannot be attributed sufficient weight so as to invalidate a jury verdict. Herein, the evidence of the neck wound was not the sole basis for the conviction. In fact, this wound was considered to be a superficial one, and did not contribute to or cause the victim's death. The wound to the chest was the fatal wound and the verified cause of death. A contradiction, even if it were not so easily resolved, concerning an incidental wound could not transform an otherwise sound verdict into "pure conjecture."

Appellant next argues that the trial court erred in denying his requested point for charge regarding the law on inconsistent testimony. Appellant contends that his requested point for charge was properly submitted according to Pa.R.Crim.P. 1119, which states:

"(a) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. The trial judge shall charge the jury after the arguments are completed and shall then rule on all written requests." Pa.R.Crim.P. 1119(a).

However, appellant failed to comply with Pa.R.Crim.P. 1119(b) which provides that:

"(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury."

When the trial judge completed his charge to the jury, he queried defense counsel:

"THE COURT: Now.... do you have any objection to the charge as given thus far?

"DEFENSE COUNSEL: I have no objections to it, Your Honor."

Defense counsel's acceptance of the charge as fair and accurate instructions to the jury on its duty as the trier of fact precludes appellant from now claiming that the charge infringed upon his right to a fair trial. The objection must be viewed as untimely because raising it for the first time on appeal denies the trial court an opportunity to correct the alleged error. Thus, appellant's claim is waived. Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980); Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979); Commonwealth v. Gilman, 485 Pa. 145, 401 A.2d 335 (1979).

Appellant also complains that the trial judge erred in failing to instruct the jury on the elements of involuntary manslaughter. Not only did defense counsel never request such instructions, but he then specifically denied that he had any objections to the charge when so questioned by the Court. Later, he again stated that he was satisfied with the further instructions given to the jury upon their request for additional information on the offenses with which appellant was charged. Here again, appellant attempts to assign error to the trial judge based upon the jury charge when appellant himself failed to comply with the mandate of Pa.R.Crim.P. 1119(a) and (b). Appellant's objection to the lack of instruction on involuntary manslaughter, not being timely made, is waived.

Appellant continues the attack on his conviction by contending that he was denied a fair trial when the District Attorney's Office allegedly released prejudicial information to the media. Prior to and immediately following trial, the assistant district attorney and the District Attorney made comments to reporters concerning various aspects of the trial. While appellant concedes that there is no identifiable prejudice, he nevertheless characterizes the offending comments as involving:

"... such a probability that prejudice will result that it is deemed inherently lacking in due process." Estes v. Texas, 381 U.S. 532, 535, 85 S.Ct. 1628, 1629, 14 L.Ed.2d 543 (1965).

See, Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977).

In Estes v. Texas, supra, the Supreme Court held that while most cases involving claims of due process deprivation require a showing of identifiable prejudice, in a case where the procedure is inherently suspect, a denial of due process will be implied. Therein, the community was bombarded with the sights and sounds of a two-day pre-trial hearing during which the use of television coverage of the defendant's trial was argued and granted. At the time of trial, four of the jurors selected had been exposed to some type of coverage of the earlier proceedings. Throughout trial, the courtroom was filled with television cameras, reporters, and photographers. The Supreme Court ruled that the defendant's right to a fair trial was jeopardized because of the probability of prejudice emanating from televised court proceedings.

Similarly, appellant relies upon Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), where our Court ruled that the procedures employed by the state involved such a probability of prejudice that they were found to be inherently lacking in due process. In that case, the defendant was charged in the shooting of a seminarian and an attorney. Pre-trial publicity was extensive, and much of it was emotionally-charged and inflammatory. Both the police and the District...