*1 Pennsylvania, COMMONWEALTH Appellee, Leroy COTTON, Appellant. Superior Court of Pennsylvania.
Argued Jan. 1984. Filed Dec. 1984. Reargument Denied Feb. Appeal
Petition for Allowance of Denied 30, 1985. July *3 Jr., for Peruto, Philadelphia, appellant. A. Charles Attorney, Philadelphia, Quinn, Thomas Assistant District Com., for appellee. CHULLO, CAVANAUGH, McEWEN and JJ.
Before CAVANAUGH, Judge: imposed by of sentence appeal judgment
This is an from a Court, on Philadelphia County June the Common Pleas Cotton, trial, appellant, Leroy After a non-jury degree, robbery, found of murder in the second guilty maintains that appeal, On Cotton conspiracy.1 criminal element of to show the causation evidence was insufficient as a mat- contends that degree Appellant second murder. insufficient law, evidence was ter of the Commonwealth’s *4 his conduct death occurred from show that the victim’s alleged robbery. Appellant of an while the commission the support was insufficient to also claims that evidence felony the basis for the nullifying conviction thus robbery addition, that both appellant argues murder conviction. ineffective assistance. post-trial provided trial and counsel issues meritorious preserve These claims include failure to witnesses, and review, to call character appellate for failure defense witness- to the stand before other calling appellant 2502, 3701, 1. 18 Pa.C.S. §§
es. disagree appellant’s and, We with contentions there- fore, affirm the court. lower
The convictions arise from events transpired that on 20,1980 March near 16th and Blavis Streets in Philadelphia. An eyewitness, Shirley Brockington, appellant, Leroy saw Cotton, and two other males in an altercation with Mr. Longin Brockington Markiw. Miss that testified the two men standing unnamed were on either Mr. side of Markiw appellant while struck the victim the chest. The two men Mr. to ground. wrestled Markiw the One of three men ripped pocket rear on Mr. Markiw’s trousers. After the scene, assailants fled the Brockington Miss went to give assistance to the victim. She testified that Mr. Markiw appeared to be sick and that he was his holding chest and his pants pocket. Miss Brockington then walked the victim first to her house then to his own home. Shortly thereafter, police arrived at Mr. home. Markiw’s An- Kiefer, other policeman, Officer arrived transport to Mr. trial, to Markiw Northwest Detectives. At one of the officers described Mr. Markiw as “ashen faced.” Officer Kiefer testified Mr. appeared that Markiw be perspiring to result, and in “all his pain around chest.” As a he took the victim to Temple Hospital. University At the emergency ward, staff told the members officer that victim might having a be heart attack. Mr. Markiw was to admitted hospital where he died five later. days
Kenneth E. Carpenter, M.D., testifying for the Common- wealth, stated that stress of the aggravated incident disease, Mr. Markiw’s heart triggering a heart attack caus- ing his death and stated his with opinion “reasonable medi- cal also certainty.” He testified the cause of death was heart aggravated disease by assault robbery. On the autopsy report, Dr. Carpenter indicated Mr. Mark- iw had suffered a anywhere heart attack four eight from to his days prior death.
Dr. Carpenter’s testimony and autopsy report his were the only direct evidence offered by the Commonwealth prove Appellant causation. claims that this was insuffi-
25 from that Mr. Markiw’s death resulted cient to show claim, deciding insufficiency this alleged robbery. in light to all evidence most is bound view Court Commonwealth to draw all reasonable favorable to the Keblitis, 500 v. Commonwealth in its favor. Pa. inferences Martin, (1983); 149 481 456 A.2d (1978). note that circumstan- Pa. 393 We also a reasonable beyond tial evidence is sufficient convict Scudder, v. Pa. 416 A.2d Commonwealth doubt. evidence of Once Commonwealth submitted if causation, it was for the factfinder to determine that charged beyond the element of the crime a proves evidence Carpenter’s opinion Dr. Merely reasonable doubt. because certainty, in terms of a medical this was cast reasonable law, a matter that causation was say, Court cannot as As out proved beyond pointed not a reasonable doubt. Justice O’Brien. contend,
It not necessary, appellants as beyond it his a reasonable witness state was conclusion legal stan- “beyond doubt a reasonable doubt” is a ... qualita- causation and causation are legal dard. Medical the Com- whether tively application different their ... finding is warrant a monwealth’s evidence sufficient to for the initially legal question is a causal connection court, a reasonable persuasive beyond whether it is but the jury say. doubt is for Webb, 490, 496, v. 296 A.2d
Commonwealth
(1972). Furthermore,
burden to
it would be an undue
experts to state their
require the Commonwealth’s medical
“beyond a
specific
death resulted from a
cause
opinions that
legal
That
a
standard that
concept
reasonable doubt.”
is
guilt.2
in determining
must use
factfinder
true,
out,
points
Supreme Court
is
that our
It
as
dissent
(1971), stated
Embry,
v.
272 A.2d
Commonwealth
presented by
to estab-
only
witness is
the Commonwealth
"when
one
reasonable
so
lish causation and that witness cannot do
doubt,
missing.”
necessary
proof
is
The
element of the
of that crime
case,
Radford,
Embry
relied on an earlier
decision
*6
Carpenter’s
Dr.
opinion finds support in the record
and the hypothetical question asked of him
proper.
was
It
conformed to the facts
supported
as
in
record,
and the
appellant
not
will
now be heard
complain
to
that the hypo
thetical question failed to conform to the facts as he made
no objection to that effect at trial.
Appeals
P.L.E.
110.
§
We shall not presume to invade
jury’s
traditional
fact
finding function and hold that
the opinion based on this
hypothetical question was improper. Dr. Carpenter’s testi
mony showed that
the cause of death was heart disease
aggravated by the assault and robbery. The Common
wealth also provided testimony regarding the victim’s condi
tion immediately after
In
this,
incident.
of
view
we
cannot
as
say,
law,
a matter of
the factfinder had
279,
(1968)
428 Pa.
236
physician
A.2d 802
where a
testified to "a
degree
certainty”
reasonable
of medical
that a heart attack was caused
by
purse
stress
snatching
occasioned
ensuing struggle.
In
cases,
both
lacking.
causation
reading
was found to be
A
of the
Pennsylvania cases leads to the
language
conclusion that the broad
of
Embry
precedential
is of doubtful
especially
light
value
in
of the Webb
example,
following
decision. For
Embry
in the
cases
and/or Radford
distinguished
were
requirement
and in no other case has the
been
expert
made
testimony
medical
be couched in terms of
"beyond
Roberson,
a reasonable doubt." Commonwealth v.
485 Pa.
586,
(1979);
Daniels,
340,
Appellant
review the
for
failing
preserve
for
to
ineffective
sel were
record,
it is
reviewing the
In
trial.
jury
decision to waive
intelli
knowing, voluntary
made
appellant
clear that
shows
The record
right.
his
trial
jury
gent waiver
set
the standards
in accord with
colloquy was
the waiver
Williams,
forth in
454 Pa.
312 A.2d
(1973).
Appellant
alleges
also
ineffectiveness for failure
preserve
evidentiary questions
several
appellate
for
re
First, appellant
view.
contends that counsel should have
preserved
objection
to hearsay testimony. Specifically,
this concerns the
testimony
police
two
officers who were
at
the hospital
after Mr.
shortly
Markiw arrived. The
officers
they
testified that
were told by hospital personnel
that the victim
suffering
was
a heart attack.
this
testimony related to facts not capable of dispute and could
not have prejudiced appellant. Secondly, appellant main
tains that counsel should
preserved
have
an objection to the
lower court’s restriction of cross-examination.
The trial
judge
permit
did not
cross-examination that would have
required Dr. Carpenter
speculate
whether Mr. Markiw
would have suffered a heart attack absent the
robbery.
view of the fact that counsel
permitted
to strenuously
cross-examine
witnesses,
the Commonwealth’s
we
no
find
abuse of discretion where the court prevented this kind of
Daniels,
See Commonwealth v.
speculation.
480 Pa.
(1978);
Paskings,
350, 355,
Lastly, appellant contends
*8
that counsel should
preserved
have
an objection to Dr.
Carpenter’s conclusion regarding the manner of death.
merit,
This issue is without
because the opinion
expert
of an
may
on
be based
the facts admitted or proven or on reports
Haddle,
Commonwealth v.
admitted into evidence.
(1979).
Pa.Super.
After regard a careful review of the record with to the issues claims remaining appellant should have been preserved, we find that these issues are without merit and post-trial counsel and counsel were not trial ineffective for failing preserve them.3 addition, issues of appellant raises two trial coun waived, however,
sel’s ineffectiveness. These claims are counsel failed to raise them. Com post-verdict since new Lee, monwealth v. (1978).4 254 Pa.Super. Lastly, appellant alleges post-trial that counsel inef- was failing fective for to raise the ineffectiveness of trial coun- record, supported sel. This claim is not by post- since trial counsel did fact raise the ineffectiveness of trial in post-verdict counsel motions.
Judgment of sentence affirmed.
McEWEN, J., files concurring opinion.
CIRILLO, J., files concurring and dissenting opinion. McEWEN, Judge, concurring:
The able and expression certain of view provided our esteemed colleague Judge James Cavanaugh R. quite per- ceptively distinguishes between the concept of reasonable medical certainty and the legal notion of reasonable doubt before concluding beyond question that there was sufficient evidence that robbery was the cause of the homicide to a jury enable to conclude appellant guilty Appellant argues that preserved counsel objection should have an sufficiency of the bill of charging information him with murder. However, we question find that the bill in notify did serve to charges against accused of Goldblum, him. Commonwealth v. (1982). Appellant alleges also that counsel preserved should have challenge to the Commonwealth’s failure to provide putative exculpatory material. we find that no prejudice would have resulted from this since trial counsel used the information from impeach this material to a Commonwealth witness. Similarly, appellant’s contention preserved that counsel should have objection granting to the court’s a continuance is without merit. granting The of a continuance is within the discretion of the trial judge and we do Judge not find that Stout abused her discretion. Rainey, Pa.Super. though waived, 4. Even these issues have been they we find that are Appellant alleged without merit. trial counsel failed to call witnesses, character *9 but nothing there is to indicate that counsel had knowledge any of they witnesses or that even existed. Commonwealth Brinton, Pa.Super. to simply pro- that conclusion and write I share
murder. appel- of this assertion of particular emphatic rejection vide lant. as one who is by is defined “prey”
The word Webster shortly resist attack. It was after or unable to helpless victim, old man year fallen that a darkness had and 145 pounds, prey over five feet became measuring just them men and one of them predators, young for three all of victim, noted, as has had suffer- The been been appellant. the postmortem arteriosclerotic heart disease and ing from death arteriosclerotic heart that the cause of was reveals assault and aggravated by battery. disease appellant permit very would disabili- argument The caused the victim to become to be the basis ty prey which responsibility killing. for the predator escapes which trigger of the victim was the for the crime. disability The the crime. permit cannot it to be the excuse for We during a is fired and causes a death gun When holdup, killing commission of an armed the law declares the rejects protests to and robber felony-murder be kill, killing since such a that he had no intention holdup. result of an armed The death of clearly foreseeable in the choke of a is bit as elderly mugger every victim and, therefore, no less a murder. felony foreseeable I is no merit to the contentions of agree remaining there and affirm the of sentence. appellant judgment would CIRILLO, Judge, concurring dissenting: I find I differ with the that would respectfully majority insufficient a reasonable prove beyond the evidence death, caused Mr. and would appellant doubt Markiw’s second-degree appellant’s therefore reverse conviction for conspiracy I affirm the for murder. would sentence conviction, since resentencing robbery remand for on the for merged the sentence for the life sentence robbery with second-degree murder. *10 whether,
The test for
of the
sufficiency
evidence is
view-
the evidence in
ing
light
most favorable to the Common-
and drawing
proper
wealth
all
inferences favorable to the
Commonwealth, the trier of fact could reasonably have
determined all elements of the crime to have been estab-
beyond
lished
a reasonable doubt. Commonwealth v. Keb-
litis,
(1983).
500 Pa.
In a criminal homicide
an essential element the
prove beyond
must
a reasonable doubt is
that the defendant’s criminal acts caused the victim’s death.
Hicks,
(1976);
Commonwealth v.
466 Pa.
Furthermore, the Commonwealth prove must a direct causal relationship between the defendant’s acts and the death; victim’s tort of concepts “proximate cause” have no in place prosecution a for criminal homicide. Common- Root, wealth v.
I believe the evidence did not establish reason- able doubt a direct relationship causal appellant’s between admittedly reprehensible acts and Mr. Markiw’s unfortu- nate death. Witnesses testified that shortly after the as- sault Mr. appeared faced,” Markiw “ashen perspir- and was ing holding chest, his where he had been hit one the robbers. he was still fully conscious and when, ambulatory owing policeman’s solicitude, to a he was driven to Temple University Hospital. A conspicuous hia- tus follows, Commonwealth’s evidence for there is nothing in the record concerning Mr. Markiw’s state from the time he entered the until hospital he died five days later. No doctor testified that Markiw symptoms exhibited of a heart attack when he arrived at hospital; no medical witness described Markiw’s course of treatment or the process of his physical deterioration. The Commonwealth attempted to fill this in the gap evidence with the testimony of the medical examiner performed who on autopsy witness, Dr. This
body.
Carpenter, stated that Mr. Markiw
disease,
had suffered from severe heart
was at
the time
of the attack “an already compromised
being.”
human
He
further testified that the cause
death
a heart
attack
occurring
eight
four
days
response
before death.
hypothetical question involving
robbery,
facts of the
opinion
stated
degree
witness
his
to a reasonable
of medical
certainty that the incident had induced
so
as
stress
severe
to result
death.
Markiw’s
*11
from Common-
virtually indistinguishable
This case is
v.
wealth
183,
(1971),
441 Pa.
Embry,
It is as the majority points expert medical witness not his opinion need state the cause about “beyond death terms of a reasonable doubt.” Com- Webb, v. monwealth (1972). An expert only witness need a degree entertain reasonable v. for his Commonwealth certainty medical conclusions. Floyd, (1982); 499 Pa. 453 A.2d cf. Richardson, v. (1982) Pa.Super. Embry (citing However, for this it principle). remains legal question for the court whether the Commonwealth’s is evidence sufficient to a finding warrant of causal connec- tion, supra, and Webb it remains the Commonwealth’s prove burden to causal beyond reasonable this connection Williams, 383 A.2d doubt. Commonwealth about Mr. death established only thing Markiw’s Here heart as the cause. a reasonable doubt was attack shown, had suffered undisputed, that Markiw It was scarring autopsy heart disease. The revealed from severe heart heart, indicating that the attack presumably of the death had not been his first. leading to Markiw’s absolutely silent as to Markiw’s condition or the record is the assault or after his immediately treatment either before Therefore, Carpenter’s pro- Dr. hospital. admission to the occurred that Markiw’s fatal heart attack opinion fessional little use in eight days prior four and to death is of between heart attack. establishing the assault as the cause of the account, Taking sup- this into the evidence would opinion inference that Markiw’s heart attack arose from port the or after as as robbery just easily natural causes before contemporane- the inference that it arose support it would is, indeed, robbery with the of it. There ously because infer- nothing in the record but to rule out the conjecture *12 suf- compromised being” this human “already ence of the prior independently heart attack to and fered his most, that the as- At the evidence establishes mugging. attack; conclude that caused the heart to “probably” sault cause, the fact finder would the assault in was the fact Nevertheless, in on this evi- engage speculation. have to his own Carpenter superimpose dence Dr. was allowed Whereas that the assault had caused seizure. opinion to a heart opinion Dr. that death due Carpenter’s was observations, his on his own directly attack based based on a as to the cause of the heart attack was opinion robbery supplied by version of the facts of the hypothetical Carpenter ex- attorney. district No matter that Dr. medical in terms of a “reasonable opinion this latter pressed more than the nothing view this was certainty”; my for substituting speculation conjecture his own and doctor finder. that of the fact
34 case,
In a homicide where the life or liberty of a citizen is stake, at and of guilt where the accused must be doubt, established reasonable the causal connec- tion between the death the decedent and the unlawful respondent supported acts of the cannot on be mere conjecture speculation. State,
Fine v. 422, 428, 70, (1952) 193 Tenn. 246 S.W.2d 72 Rounds, State v. 442, 457, (quoting 249, 104 Vt. 160 A. 254 (1932)). possible probable
Where it is that the equally death resulted from one cause as from another cause and the causes, responsible defendant is not for one of the then any determination of the cause of death can only be speculative and the conjectural evidence will be held and. insufficient support guilty verdict. State,
Rucker v. 569, 573, 174 Tenn. S.W.2d (1939). McEwen, Jr.,
My colleague Judge Stephen learned J. cogently point makes the it is no excuse to criminal fragile homicide that the victim’s life was even before the defendant’s criminal assault I extinguished it. don’t dis- this; pute it is a principle settled that an assailant must take his victim he him. Common- as finds As stated Hicks, wealth 396 A.2d (1979),
An may escape accused not criminal on the liability ground that, act, prior to the criminal his victim was not health, in perfect mortal, he or blow inflicted was not or the immediate cause of death. If his started the blow death, chain of causation which led to the he is guilty Hicks, homicide. 499, 505, A.2d the fact that had does poor victim health *13 dispense
not the need to with establish a reasonable doubt a “chain of causation” from the leading defendant’s distinguished crime to the victim’s death. “In a death as from ‘killing,’ prosecution a must an absence of prove is, natural step prove causes. That the first is to the victim State, v. Welch Ala.App. he was killed.” died because 657, 235 So.2d
A of various cases in which heart attack comparison as will to illustrate prosecuted deaths were homicides serve adequate is and what is not an “chain of causation” to what v. that the victim was killed. establish Hicks, (1979), col victim wrestling fell unconscious after lapsed immediately and Hicks, in into the strenuously with who a craze had broken regained house and accosted him. The victim victim’s never “acute cardiac failure due consciousness, to a and died aggra arteriosclerotic heart disease pre-existing which was struggle the severe stress of his with by vated [Hicks].” added). A.2d The (emphasis 483 Pa. at at 1185 of causa Supreme rejected challenge proof Court to the tion, it “clear” the defendant’s attack had cause saying was Id., A.2d at the victim’s cardiac failure. 483 Pa. at McKeiver, 1186. See also State 52, 213 N.J.Super. (1965) (evidence dropped sufficient where victim during in bar armed holdup). dead Hicks, chain of in
With the immediate clear causation States, Stevens v. United compare that There the afflicted with “de- (D.C.App.1969). decedent was arteriosclerosis. He was in an automobile veloping” injured defendant, by hospitalized. accident caused Five later died in the of a heart attack. There hospital weeks he expert medical caused testimony debility from precipitated the accident could have the heart attack proof the decedent died. The court found the which insufficient, pro- had noting causation the Government expert from or testimony attending physician duced no in the knowledge had of the decedent’s condition while who The for homicide hospital. negligent defendant’s conviction was reversed. case a closer resemblance
Certainly present bears McKeiver, than to Hicks Stevens or in that Mr. Markiw did of time immediately, spent period not die but Stevens, hospital succumbing. As in the decedent’s before *14 36
condition during period the of hospitalization went totally unexplained on the record. The victim lingered Stevens five weeks dying, before whereas in this case the period was five days. length the of time inci- between dent and death is one only factor to consider in deciding the overarching question: prosecution whether the has suffi- ciently established a chain of causation. case,
In at least one Supreme our Court has found the evidence insufficient to prove causation where death was immediate. Commonwealth v. Embry, supra. See also Commonwealth, Hubbard v. 304 Ky. S.W.2d (1947). Hubbard, In the defendant was arrested for drunk- enness, but resisted the decedent’s efforts to lead him to jail. The jailer, Dyche, struggled would-be with Hubbard until fell Dyche ground. to the As others subdued the defendant, Dyche, who suffered from condition, a heart sat on the ground with his hand on his chest. Rather than rest, continue to however, sit and Dyche got on down ground and “rolled and tumbled” until he died about half an hour later. Despite opinion testimony from three physi- cians that the scuffle and its attendant stress precipitated death, Dyche’s Appeals Court of of Kentucky held the evidence support insufficient to Hubbard’s homicide convic- tion: present case the misdemeanor of the defendant
must
regarded
time,
sure,
be
as too
remote —not
to be
but as the cause. The failure of the man’s diseased heart
Commonwealth,
Grat.,
cause. Livingston v.
Va.,
is,
least,
592....
It
at
speculative to
that the act
say
of the defendant in this case was sufficiently proximate
impose
criminal responsibility upon him for the unfor
tunate death. We
opinion, therefore,
are of
court should have directed an acquittal.
Ky.
at
Regardless of the span involved, time is principle clear that the Commonwealth must a direct and establish chain of unbroken causation between the defendant’s crimi- See, nal acts and the death. victim’s e.g., Roberson, 485 Pa. (1979) (beating to leading pneumonia); head to fatal Green, (1978) (gunshot wound *15 kidney; victim required hospital removal of died in of vomit lungs); sucked into Commonwealth v. 451 Pa. Stafford, (1973) (victim A.2d 600 beaten in head died ten days after surgery); Odom, later brain Commonwealth v. (1972) (victim A.2d 331 of head injuries died days beating); after sixty-seven Commonwealth v. Jeffer- son, (1971) (stabbing led to blood death); causing clots Commonwealth v. Cartagena, Pa.Super. (1979) (stabbing leading to death). paralysis there important
Here is an link from missing the chain: proof that appellant’s acts started the process leading to opinion death. Dr. in Carpenter’s to a response hypotheti- question robbery cal that the caused the heart attack may a possible, probable, establish even a relationship causal between two. this opinion evidence was not sufficient establish a causal relationship particu- in this lar case a reasonable the paucity doubt. Given of upon based, evidence opinion which the I would hold it insufficient regardless degree certainty with which expert expressed Rawls, it. Cf. Pa.Super. (1979) (defendant punched head; victim victim died of hemorrhage; subdural evi- dence sufficient despite medical inability examiner’s to say with certainty punch fist fact hemorrhage). caused Although it possible is of course appellant Cotton attack, caused Markiw’s death heart I believe the evi- dence was too and speculative tenuous establish this connection, upon causal or to visit consequences Cotton the of murder.