J-S56041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CARRINGTON KEVON JOSEPH,

                            Appellant                No. 2033 MDA 2016


          Appeal from the Judgment of Sentence November 12, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0002224-2014

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JULY 14, 2016

       Carrington Kevon Joseph (Appellant) appeals from the judgment of

sentence of life imprisonment entered in the Court of Common Pleas of

Lancaster County on November 12, 2015, following a bench trial1 and

Appellant’s conviction of first-degree murder.2      Upon our review of the

record, we affirm.

       The trial court summarized the relevant facts herein as follows:

             At trial, the Commonwealth established the following,
       gruesome facts. On May 2, 2014, [Appellant] stabbed the victim,
       his wife, more than eighty (80) times. Notes of Trial Testimony
____________________________________________


1
  On June 12, 2014, the Commonwealth filed a notice of its intent to seek
the death penalty. In exchange for Appellant’s waiving his right to a jury
trial, the Commonwealth agreed not to pursue the death penalty. N.T.,
Pretrial Hearing, 4/20/15, at 3-15.
2
   18 Pa.C.S.A. § 2502(a).



*Former Justice specially assigned to the Superior Court.
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      ("N.T.T. ") at 235-252; Commonwealth's Exhibits 13, 18-21. The
      majority of the wounds were to the victim's abdomen, neck, and
      head. Id. During the attack, [Appellant] broke two knives and
      made multiple trips to the kitchen to retrieve additional knives.
      N.T.T. at 142-149, 161-166; Commonwealth's Exhibits 3, 5-10,
      13. At one point, the victim attempted to stagger out of the
      apartment's front door and, as the victim's family attempted to
      assist her, [Appellant] pointed the knife at them and told them
      to move back before they too got stabbed. N.T.T. at 53 -57, 104
      -108, 111-117; Commonwealth's Exhibit 13. [Appellant] then
      dragged the victim back into the apartment and closed the door
      to continue his attack. N.T.T. at 116-117. During the majority of
      this extended attack, the victim was laying [sic] helplessly on
      the ground. N.T.T. at 254-255, 260-261, Commonwealth's
      Exhibit 13. [Appellant’s] infant children were seated in their car
      seats in the room in which the attack took place. Notes of
      Pretrial Hearing at 25-26. [Appellant] was described as calm
      throughout this whole incident and, after being taken into
      custody, calmly recounted these facts, in great detail, with little
      remorse shown. N.T.T. at 206; Commonwealth’s Exhibit 13.

Trial Court Opinion, filed 1/8/16, at 2-3.

      Appellant filed a timely notice of appeal on November 19, 2015, and

the parties have complied with Pa.R.A.P. 1925.        In his brief, Appellant

presents a single issue for our review:

      1.     The evidence was insufficient to sustain a conviction for
      first-degree murder. More sufficiently, insufficient evidence was
      presented that [A]ppellant acted with malice and/or the specific
      intent to kill.

Brief for Appellant at 4.

             The standard we apply when reviewing the sufficiency of
      the evidence is whether viewing all the evidence admitted at trial
      in the light most favorable to the verdict winner, there is
      sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need

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      not preclude every possibility of innocence.          Any doubts
      regarding a defendant's guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire 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 of the evidence produced is free to believe all, part or
      none of the evidence.         Furthermore, when reviewing a
      sufficiency claim, our Court is required to give the prosecution
      the benefit of all reasonable inferences to be drawn from the
      evidence.
             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)

(citations omitted).

      Section 2502 of the Crimes Code, 18 Pa.C.S.A. § 2502, defines murder

of the first degree as follows: “(a) Murder of the first degree.--A criminal

homicide constitutes murder of the first degree when it is committed by an

intentional killing.” 18 Pa.C.S.A. § 2502(a). As such, to obtain a conviction

of first-degree murder, the Commonwealth must have demonstrated that:

      a human being was unlawfully killed, the defendant perpetrated
      the killing, and the defendant acted with malice and a specific
      intent to kill.” Commonwealth v. Montalvo, M., 604 Pa. 386,
      986 A.2d 84, 92 (2009) (quoting Commonwealth v. Kennedy,
      598 Pa. 621, 959 A.2d 916, 921 (2008)); accord 18 Pa.C.S. §
      2502(a) & (d) (defining first degree murder as an “intentional
      killing,” which is further defined as a “[k]illing by means of

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      poison, or by lying in wait, or by any other kind of willful,
      deliberate and premeditated killing.”). The Commonwealth may
      prove the specific intent to kill necessary for first[-]degree
      murder      wholly    through       circumstantial   evidence.
      Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1009–10
      (2007).

      Commonwealth v. Murray, 623 Pa. 506, 528-29, 83 A.3d 137, 151

(2013). In addition, our Supreme Court has determined that the repeated

use of a deadly weapon upon vital parts of a victim’s body is sufficient to

demonstrate       a   specific   intent   to   kill   beyond   a   reasonable   doubt.

Commonwealth v. Mitchell, 588 Pa. 19, 44, 902 A.2d 430, 445 (2006).

      Herein, Appellant does not dispute that he stabbed the victim and that

the manner of her death was a homicide. Rather, Appellant challenges the

third element of first-degree murder and maintains that the evidence was

insufficient to prove that he possessed the requisite malice and or specific

intent to kill.   Essentially, Appellant claims that he had diminished capacity

at the time of the murder and, thus, lacked such specific intent. Specifically,

Appellant reasons that:

      The evidence presented at trial in the case sub judice, clearly
      showed that the Appellant and Decedent engaged in a very
      heated argument, which tragically escalated to both parties
      scrambling to the kitchen to get a knife, resulting in a struggle
      which culminated in the Appellant repeatedly stabbing the
      Decedent in a maniacal rage. Clearly, Appellant’s conduct was
      not the product of specific intent, where the Decedent first
      threatened to stab the Appellant and was actually the first
      person to run to the kitchen to retrieve a knife, and Appellant
      actually blacked out during the altercation and has no memory
      of most of the assault. Accordingly, there is insufficient evidence
      to establish the requisite mens rea to support Appellant’s
      conviction for first degree murder.

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Brief for Appellant at 14-15 (emphasis in original). Appellant further posits

that he remembers stabbing his wife only a single time “in the heat of

passion” as he “attempted to prevent [her] from carrying out her threat to

stab him” and, therefore, his actions were not premeditated and deliberate

acts. Id. at 16.

      At the outset we note that while Appellant argued in his closing

argument at trial he acted in self-defense, N.T., 11/12/15, at 284-300,

Appellant conflates the theories of self-defense and diminished capacity in

his appellate brief.   These theories are not mutually exclusive and could

have been presented together. See Commonwealth v. Hutchinson, 611

Pa. 280, 24 A.3d 277, 314 (2011). Notwithstanding, when viewed in a light

most favorable to the Commonwealth as the verdict winner, we find the

evidence does not establish that either theory is plausible.

      A defense of diminished capacity admits liability while contesting the

degree of culpability based upon a defendant’s inability to possess a

particular mental state. Commonwealth v. Mitchell, 588 Pa. 19, 45, 902

A.2d 430, 446 (2006)(citation omitted).      “In order to assert a successful

diminished capacity defense, a defendant must provide extensive psychiatric

testimony establishing a defendant suffered from one or more mental

disorders which prevented him from formulating the specific intent to kill.”

Id. (citation omitted).




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      18 Pa.C.S.A. § 505(a) sets forth the elements of self-defense as

follows:

      § 505. Use of force in self-protection

      (a) Use of force justifiable for protection of the person.—
      The use of force upon or toward another person is justifiable
      when the actor believes that such force is immediately necessary
      for the purpose of protecting himself against the use of unlawful
      force by such other person on the present occasion.

18 Pa.C.S.A. § 505(a). This court has found that:

       [w]hen a defendant raises the issue of self-defense, the
      Commonwealth bears the burden to disprove such a defense
      beyond a reasonable doubt. The Commonwealth sustains this
      burden if it establishes at least one of the following: (1) the
      accused did not reasonably believe that he was in danger of
      death or serious bodily injury; (2) the accused provoked or
      continued the use of force; or (3) the accused had a duty to
      retreat and the retreat was possible with complete safety. The
      Commonwealth need only prove one of these elements beyond a
      reasonable doubt to sufficiently disprove a self-defense claim.

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa.Super. 2009)

(citations and quotation marks omitted), appeal denied, 987 A.2d 161 (Pa.

2009).

      At the conclusion of trial, the trial court sitting as fact-finder expressly

found “simply absurd” Appellant’s claim that he had acted in self-defense.

In support of this finding, the trial court noted, inter alia, Appellant who was

an “obviously healthy, muscular adult male,” was not stabbed a single time,

while his wife had sustained 82 stab wounds. The court further stressed

Appellant admitted to police his wife never had held a knife. N.T., 11/12/15,

at 308-09.    The trial court further noted that while he indicated in his

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statement to police he had blacked out after inflicting the first stab wound

upon his wife, this assertion was contradicted by other portions of his

statement wherein he clearly recounted much of the incident and displayed a

calm demeanor while doing so. Id. at 310-11.

      Indeed, the evidence presented at trial established that the victim was

stabbed repeatedly in her face, neck and torso area. A knife left lodged in

her back had to be removed by emergency personnel as it was hindering

CPR. N.T., 11/10/15, at 196. Dr. Wayne K. Ross, a forensic pathologist who

performed   the   autopsy,   testified    regarding   Appellant’s   injuries   and

determined the cause of death was multiple stab wounds and the manner of

death was a homicide. N.T., 11/10/15, at 251. He further remarked that

while she may have died as a result of a single stab wound to her neck, her

wounds were sustained from a defensive, rather than an offensive, posture.

N.T., 11/10.15, at 252, 256. Moreover, while he could not speak definitively

as to the amount of time that transpired during the brutal attack, Dr. Ross

indicated that in light of the evidence of movement around the scene and

that fact that the victim sustained 82 stab wounds inflicted by multiple bent

and broken knives, he believed “[t]hat would take some time.” Id. at 260-

61.

      The victim’s sister Keina Cowan testified that as Appellant and her

sister argued, she ran to a neighbor’s home to call police, because Appellant

had confiscated their cell phones.       As she fled, she could hear the victim


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apologize to Appellant and plead with him to stop. N.T., 11/9/15, at 49-50.

When she returned to the home, she found the door had been locked and

proceeded to kick it in. She discovered her sister alone in the living room

bleeding on the couch. Id. At 50-51. Ms. Cowan fled again to get help, and

when she returned with the victim’s friend and neighbor Porschia Garcia, the

two were unable to gain entry to the home, because someone was holding

the door shut. Id. at 52. Thereafter, the victim fell out of the house, and

Ms. Cowan and Ms. Garcia attempted to pull her away. Appellant appeared

in the doorway and ordered the women to retreat, held a knife to Ms.

Cowan’s forehead and threatened to stab them if they refused to leave.

Next, he pulled the victim’s hair and stabbed her in the neck while the

women looked on. Id. at 54-56.

     Detective Brian Freysz, the prosecuting officer, testified that when he

arrived at the scene he noticed Appellant was covered in blood and that “he

seemed calm.”    N.T., 11/10/15, at 204-05. At approximately 11:30 that

morning he conducted an interview with Appellant at which time Appellant

clearly understood the questions posed and detailed what had transpired

earlier. Although Appellant also indicated that he had “blacked out,” Officer

Freysz explained Appellant revealed to him “exact details” of the murder,

and Officer Freysz believed Appellant had told him “the truth of exactly what

transpired.” Id. at 215, 222-27.




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      The record is devoid of any expert or lay testimony to establish

Appellant’s actions were a brief, spontaneous attack which occurred without

deliberate thought and action. Appellant stabbed his wife scores of times,

during which he had the wherewithal to stop his brutal attack, retrieve

additional knives, threaten to stab other women, lock and close the door,

and drag his victim back inside the home to continue his savagery. He was

able to recount calmly and methodically his actions to police shortly

thereafter.

      Any attempt on Appellant’s part to claim he acted in self-defense is

also negated by the record evidence and belied by the statement he

coherently provided to police after the murder. Ms. Cowan heard her sister

plead with Appellant to stop and saw her immobilized due to her injuries. If

Appellant had at any time felt threatened, as his wife lay bleeding on the

doorstep he could have fled the premises when the women came to her aid;

instead, he threatened Ms. Cowan and Ms. Garcia and stabbed the victim in

the neck in their presence.

      Clearly, Appellant’s overall conduct was not the result of a heated

exchange between the victim and him, nor were his actions the product of

self-defense. As such, we conclude the Commonwealth presented sufficient

evidence to establish Appellant’s intent to commit first-degree murder.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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