*1 of the Buyout Agreement. He above-quoted paragraph that a setoff for Hamilton’s would argues salary unjustly knew Crowley enrich Célico because and Schmuck objection. Hamilton was Célico and made no employed by But need not have made active to this they objection breach of the in order to their Buyout Agreement preserve to claim Hamilton’s as a setoff. right salary O’Reilly’s breach of his resulted in the fiduciary duty improper pay- Hamilton, ment of a and the trial court’s salary original conclusion that the entire amount be allowed as setoff his claim is affirmed.9 the sum of these against Since claim, setoffs we need not determine O’Reilly’s exceeds whether the notes are subordinate to other indebtedness of Célico.
Affirmed.
Superior Pennsylvania. Court
Argued June 27, 1979. April Decided 9. The en banc court incorporated opinion reference the therein original opinion. *2 Allentown, Orloski, Attorney, Richard J. Assistant District Commonwealth, for appellant. Hahalis, Bethlehem, for A.
George appellee Dorothy A. Konz. Wallitsch, Defender, Allentown,
Thomas A. Public R. Erikson. appellee Stephen C. WATKINS, JACOBS, Judge,
Before President HOFFMAN, CERCONE, PRICE, VAN der VOORT *3 SPAETH, JJ.
PRICE, Judge: 7, February After a trial on five-day jury terminating 1975, were found guilty involuntary manslaugh- husband, ter1 in the death of Konz’s appellee Dorothy for new trial in arrest of David. Post-trial motions and An en on the motions judgment hearing were filed. banc was conducted before the Court Common Lehigh County 1976, Pleas, 6, and an was on grant- order issued December ing thereby motion in arrest of and appellees’ judgment appellees. discharging contends that appeal Commonwealth and brings the justify
the evidence at trial was sufficient to presented verdict, thus of the lower jury’s necessitating reversal court order of December We reverse the order of the 6.
court of judg- below motion arrest granting appellees’ ment, and remand for consideration that court of appel- lees’ motion for a new trial and other remaining appropriate action.
1. 18 Pa.C.S. §
573 to the evidence in the most favorable light Viewing Commonwealth, drawing all verdict-winner, e., i. which the could jury on inferences therefrom reasonable verdict, Ashford, based the Commonwealth properly have was (1974), following 322 A.2d Pa.Super. decedent, Reverend David adduced at trial. The at United Wes- chaplain student counsellor and professor, a Allentown, Reverend Konz College Pennsylvania. leyan on insulin to himself diabetic, was a and had administered basis for seventeen years. daily visiting evangelist on with a campus After an encounter his desire to withdraw proclaimed decedent speaker, publicly would heal belief that God from insulin treatment and his to this Subsequent proclama- him of his diabetic condition. of the tion, president university Reverend Konz assured the nothing would do and members of the student that he body condition, foolish, and would would monitor carefully insulin, take if warranted. Erikson, student at United Wesleyan, Stephen
Appellee Konz, and a visitor to the regular was a friend of Reverend 18,1974, Erikson Reverend Konz Konz home. On March made a to enable the decedent to resist pact pray together himself. For a to administer insulin to temptation death, to his prior three weeks period approximately insulin once or twice. Reverend Konz took 22, 1974, decedent an experienced On March Saturday, insulin, acute need for and his behavior evidenced symptoms refrigerator of insulin debt.2 When decedent went to the insulin, been removed. obtain his he discovered that it had *4 Evidence at trial indicated that appellee Dorothy adduced the and had refrigerator had removed the insulin from tried exit hidden it from her husband.3 Decedent then to kitchen, doing from the but he was from initially prevented Erikson, obstructing so who was the by appellee purposely very thirsty. 2. Decedent stated that he was He rushed to the kitchen (N.T. 262). began sink and to drink water. refrigerator prior 3. The sometime to insulin was returned to the Sunday night. eventually out kitchen. Decedent leading from the doorway or the bathroom. When to his bedroom way made his room, he was living again into go to the sought decedent hallway leading the Erikson, who obstructed by detained living into the room and bedroom and bathroom from the ex- Harsh words were passing. decedent from prevented decedent into the master and Erikson then forced changed, Konz, Erikson talked There, joined by appellee bedroom. During one-half hour. with decedent for approximately hour, the telephone police that half decedent tried doing was from so assistance, prevented but obtain who, decedent, rendered the struggle with in a emerged The later from inoperable. three telephone left the Konz household bedroom, and decedent subsequently Konz Mr. of either Mrs. twice, both times in the company afternoon, cancelled a Later decedent Erikson. was of his which scheduled for engagement speaking following day Sunday. — of first unclear. journey
The nature the deceased’s time the late after- during that some record indicates Erikson appellant he and left evening noon or early Konz house for a short time. on Saturday from his home second
During journey Mrs. the decedent night, accompanied by this time King, local Esther a close hospital pick up went to a nurse practical who worked as at the friend of family when the Konzs arrived. and who was work hospital leaving time, experiencing At was additional the decedent debt, to-wit, tired appeared he insulin symptoms stomach. upset of an complaining the decedent hospital, home from returning Upon ill, vomiting intermittently Saturday became increasingly bed and was confined to night through morning, Sunday time, During appellees, all Sunday. practically day effect, point turning away isolated to the decedent kept Reverend Konz was desir- though visitors on even Sunday, the visitors wished to see ous whether one of discovering him.
Despite throughout fact that and Saturday Sunday decedent was experiencing symptoms insulin, of lack of him, such were symptoms apparent to those around appel- lees did not seek to obtain medical assistance for the dece- dent and at no time the advice of sought noted, experts. It should be that the seriousness of dece- dent’s condition was even readily apparent to the Konzes’ eleven old year daughter, who asked her Amy, mother why no doctor was summoned.
Instead of seeking decedent, medical attention for appel- lees chose to administer cracked ice and decedent, keep effect, isolated. Decedent’s condition grew progressively on, worse as the evening wore and his death occurred at 6:00 a. approximately m. Monday. Cause of death was determined to be ketoacidosis resulting from lack of insulin. Although Mrs. Konz was aware of her husband’s death as as 7:30 a. m. early Monday, she did not attempt to notify the authorities until p. 5:00 m.
Appellees were found guilty by jury the crime of involuntary manslaughter. Section 2504 of the Pennsylva- nia Crimes provides Code4 that:
“A person is guilty involuntary manslaughter when as a direct result of the doing an unlawful act in a reckless manner, or grossly negligent he causes the death of another person.”
To impose criminal based on an liability omission as opposed to an act, the omission must be “expressly made sufficient offense,”5 the law defining the or “the perform the omitted act otherwise imposed by law.”6 [must be]
We hold that appellee decedent, as wife of Dorothy was under a to obtain medical aid for her diabetic husband when it became readily apparent that he was 4. 18 Pa.C.S. § 301(b)(1).
5. 18 Pa.C.S. § 301(b)(2).
6. 18 Pa.C.S. § insulin, need of lack of serious the effects suffering *6 of medical attention.7 owed one to duty by spouse law as to the
The state of the
well-settled,
is not
for the other
obtain medical assistance
Indeed,
the issue.
addressing
cases
with
a handful of
case of im
Pennsylvania
uncovered no recent
our research
Nevertheless,
a review of the
appeal.
to the instant
port
care,
of
duty
discloses
jurisdictions
case law from other
be,
from the
relation
spousal
it
though
may
arising
vague
Manton,
v.
95,
8 Mont.
19
P.
Territory
In the case of
ship.
Montana,
of
imposing
Court
(1888),
Supreme
387
aid for his
to seek medical
wife
the defendant
duty upon
drunken
stated:
exposure,
who died of
“[the defendant’s]
discharge of his
to
duty
not excuse him from the
ness does
Id. at
109,
at 394.
In the
19 P.
case
his wife as husband.”
States, 113
352,
of Jones v. United
308 F.2d
U.S.App.D.C.
that,
are at least four
stated
(1962),
307
the court
“[t]here
act
constitute breach of a
may
in which failure to
situations
held
liable
criminally
One can be
legal duty.
to
relationship
in a certain status
another
where one stands
see 40 Am.Jur.2d
310;
Id. at
355,
at
308 F.2d
.”
It
be noted that
(1968).
Homicide
90 at 383
should
§
Stephen
accomplice
appellee
is
under 18
Erikson
an
7. We hold that
such,
306(c),
culpability equal to
and as
maintains a
Pa.C.S. §
Therefore,
analysis
respect
all further
with
to Mrs. Konz
Mrs. Konz.
appellee
applies equally
See also 40 Am.Jur.2d Homicide
to
Erikson.
(1968).
90 at 385
§
possible
interesting question
to have
An
arises as to whether it is
promoting
facilitating the commission of the of
“the intent of
or
fense,”
306(c)(1),
offense is one based on
18
where the
§
Pa.C.S.
recklessness,
require
gross negligence
not themselves
which do
yet
specific
specific question
heretofore has
to
intent. While this
state,
appellate
court in this
a review
case law
addressed
an
jurisdictions
support
proposition that one can
from other
lends
to the
accomplice
of involun
be an
or an aider and abettor to the offense
tary manslaughter
though
the offense
intent is not an element of
even
117,
See,
State,
Fitzhugh
g.,
173
e.
v.
207 Ark.
179 S.W.2d
itself.
al.,
564,
(1929);
(1944);
Newberg
State
State v.
et
129 Or.
577
“status
as one such
relationship
the marital
court cited
n. 9.
9,
F.2d at 310
Id. at 355 n.
308
relationship.”
cases,
we conclude
In
above
light
two
of care between the
creates a
relationship
marital
owes the other a
spouse
We hold that one
spouses.
necessi
is in a condition
medical aid when
other
summon
need
immediate
attention.
tating
of care
seeks to establish a standard
The dissent
under a
such that “one
not
spouses
spouse
between
is not
spouse
for the other
if the
spouse,
call for medical help
v.
699), citing
the cases State
(dissenting opinion
helpless”
599,
(1961),
868
Westrup
139 Mont.
366 P.2d
Mally,
its
Commonwealth,
(1906),
support
646
Ky.
S.W.
*7
cases mention a
the courts
both
proposition. Although
factor in their
in the deceased as a
helplessness
state of
between those
decision,
are
distinctions
significant
there
husband of the
Westrup,
case.
In
cases and the instant
wife,
for his
and his wife
obtained medical aid
deceased
In
husband
treatment.
Mally,
refused
unwaveringly
wife,
his
at a late
although
medical aid for
also summoned
the husband to obtain
In
imposing
duty upon
date.
wife,
in that
noted:
for his
the court
case
medical aid
“[t]he
not have
could
with evidence
replete
record
[the wife]
Mont,
denied medical aid.”
rationally
consciously
case,
In
instant
the record does not
In the record of this reviewing were in evidence Konz’s insulin debt of Reverend symptoms apparent were to those around the weekend and throughout The decedent daughter. old year his eleven him—even insulin on Saturday need for the acute experience to began his vehemently expressed very thirsty, He was morning. to attempt as to insulin, even went so far for and desire in the day, himself. Later medical assistance summon day and as the engagement, speaking an upcoming cancelled of stomach complain and began tired wore on he appeared of insulin debt. symptoms additional being both cramps, the weekend deteriorated as increasingly His condition vomiting throughout on, frequently the decedent wore with day. Despite all practically bed-ridden being Sunday, worse, his grew progressively that his condition the fact Indeed, not failed to only aid. she summoned no wife husband from effect, her aid, but, prevented summon wishes. Tak- outsiders, against with making contact facts, Doro- mentioned the above into consideration ing condition and decedent’s diabetic knowledge Konz’s thy a three-week span prior over injections his lack of insulin wife, had a she, decedent’s time, we find that as for him. assistance summon medical proposes dissenting opinion, in his Judge Spaeth, onset of a on for the guard to be appellees’ duty course, applied as in the deceased. Of state of helplessness worthless, since medical case, this standard is to the instant that when a diabetic at trial indicated adduced testimony state, he is into such a of insulin lapsed from lack suffering of this Therefore, under the circumstances beyond help. *8 deceased, and Konz, Mrs. as wife of the case, hold that we Konz, were under a Erikson, to Mrs. accomplice as Stephen Konz, this and medical aid for Reverend to summon was breached. is not and breach thereof course, a of finding Of for involuntary a conviction support in itself sufficient finding proximate be a of There must also manslaughter. case, there must be suffi As to the instant applied cause. jury support finding by in the record to cient evidence and immediate death was the direct that Reverend Konz’s breach of duty. of consequence appellees’ We hold that there was sufficient evidence to establish cause. Medical proximate at trial indi- testimony presented cated that as hospitalization late as would Sunday night have assured Reverend Konz a chance of ninety-nine percent evidence, In survival. of the light jury justified making finding proximate cause.
We reverse the order in of judgment arrest and remand for consideration court below of the mo- remaining tion for a new trial and other appropriate action.
CERCONE, President Judge, concurs in the result. VOORT, J., VAN der files a concurring opinion. SPAETH, J., files a dissenting opinion. WATKINS,
JACOBS and former President Judges, HOFFMAN, J., did not in the participate consideration or decision of this case. VOORT,
VAN der Judge, concurring: I join in the Majority Opinion PRICE, J., authored by decedent, add the following analysis. Konz, (a The David diabetic) charge involuntary manslaughter made a statement in church that he was going to ask God heal his diabetes and that he would no longer need to take insulin. The President of the Wesleyan Bible College which the decedent taught reminded the decedent that Christianity approves normal healing practices by to which physicians reminder decedent said that he would do foolish and nothing that he would resume insulin if injections his blood sugar went Nineteen up. later days upon returning to his home he found that his insulin had been removed from his refrigera- tor. The record wife, shows that his Mrs. had hidden it. The decedent said he was walked to the sink thirsty, water get and said he wanted his insulin and attempted to leave his Erikson, house but the defendant old, a 25 year blocked the doorway. decedent tried to exit through room living but Erikson blocked the and forced hallway decedent into his bedroom where defendants Erikson and *9 for an hour. decedent) of the remained half (wife
Mrs. Konz he was going when the decedent said this time During the connection was broken. The telephone call the police with ketoacidosis from lack of resulting decedent was seized A.M., he died at 6:00 on March insulin and of this case clearly I believe the facts and circumstances manslaughter by defendant-ap- prove guilt involuntary of the lower court should be I that the Order pellees. agree reversed, should be finding appellees guilty the verdicts reinstated, and the case be remanded to the court below for new trial. its consideration of the motion for a SPAETH, Judge, dissenting: judgment I believe the lower court’s order arresting should be affirmed. -1- states two different definitions of the majority
of one medical aid for the other spouse. to summon spouse At the when it point majority one the arises is says “in that the serious need medical apparent spouse point majority says attention.” at 695. At another arises when the is “in a condition spouse necessitating the need for immediate medical attention.” at 695. Which I ask adopt? test does the intend to do not majority in order to an question conjure up imaginary difficulty; I think the case at hand shows that contrary, It had easily is real. could said difficulty reason to know that David Konz was in serious need of that he needed immediate atten- attention, but not tion.
Furthermore, test —whichever it is—sub- majority’s jects Assuming those bound it to a burden. peculiar the test will situations in which the sick encompass spouse (let us is not and can summon aid say, husband) helpless himself, his wife for him he is then must do what able to himself, do for or suffer criminal the most severe penalties, I know of no area of the sanction the law can other apply. law in which this is the case.
There is still another about the difficulty defi- majority’s nition of appellees’ duty.1 The majority indicates that it might not that impose if the sick duty spouse unwaveringly refuses help, at 695. This puts the other spouse the difficult position how deciding hard to argue the case for medical aid the attempt to make waver, the sick spouse and of determining when the sick spouse is “unwavering” enough make it safe to stop The arguing. majority avoids this problem because it finds that David Konz did not aid, refuse but, rather, medical it. actively sought The record, however, does not support True, that finding. attempted to take his insulin Saturday afternoon, and when prevented, attempted to call police (N.T. 307, 318) (which is not necessarily same as “summon[ing] medical assist- ance”, at 695). However, this does not show that he had abandoned his general intention to do without medical sup- port in his healed; belief that he was he had taken insulin twice previously during his program abstention, and had then continued to abstain. Furthermore, he later had the to obtain opportunity medical help, when he was inside the hospital Saturday night, but made no effort to obtain it. The majority finds support for its assertion that Konz want- ed medical in the help fact that welcomed,” at “seemingly 696, company visitors on Sunday afternoon. How this fact enlightens the about majority Konz’s medical intentions is not apparent.2 majority
1. The guilty finds accomplice Erikson as an under 18 Pa.C. 306(c). S.A. question § This possible raises the whether it is to have promoting “the facilitating intent of or the commission of the of- fense,” 306(c)(1), gross § where the negligence offense is based on recklessness, which specific do not themselves involve intent. I necessary should not find it duty, to discuss Erikson’s since it could heavier, not in exacting, case be duty or more than Mrs. Konz’s spouse. as a I was, shall duty discuss what I think Mrs. Konz’s infra. deciding “readily 694, In apparent,” that it was that Konz was in help (or serious need of help), needed immediate medical majority makes much daughter, of the fact that the Konzes’ who was 11, why asked her might mother a doctor was not called. While I agree should have known that Konz was at least in help, serious need of medical I shall draw that conclusion on the 582 -2- I Mrs. Konz had a agree majority with
Although
her
I should define that
spouse,
toward David Konz as
duty
than does the
differently
majority.
duty
protect
has a
to act to
parent
It is well settled that a
v.
See,
Signerv
e. Commonwealth
g.,
the welfare of
child.
Breth,
ski,
Commonwealth v.
44
(1914);
583 Commonwealth, (1906), 646 Westrup Ky. S.W. illustrates the same There the court said that a principle. husband who care for his wife neglected provide if appeared be it might guilty involuntary manslaughter, aid, that she was and unable to elsewhere for helpless appeal and that her death was the natural and reasonable conse- it, before her husband’s On the facts quence negligence. the court held these had not been satisfied. requirements with charged involuntary manslaughter husband for the death of his wife childbirth. The wife had during assistance, decided that she did not want medical complica- husband did not override her wishes until after tions had set in. one;
I find I that the rule of these cases is a wise should hold, extension, therefore with a qualification, or to be noted, spouse that one is not under a to call for medical for the other if the other is not help spouse, spouse helpless. wife) To hold that one us be held spouse (let say, might liable for not her husband’s wishes and criminally overriding him, a doctor to treat even her husband was calling though not and was treatment for helpless, fully capable getting himself, would be to that a say person might imprisoned for not trying to frustrate the intention of someone who appeared to be a adult. This would be unfair in a competent husband, double sense: it would be unfair to the while *12 it would him to be acknowledging competence, require treated as less than competent, and it would be unfair to the wife, for it would her with no or provide understanding, notice, when, or she was to treat a why, obliged compe- tent adult as he were less though competent. than
It that this rule does not avail may suggested appellees, who, for anyone like believes he cure himself of may diabetes as “a by religious regarded faith alone cannot be however, competent accepta- adult.” This not suggestion, faith, belief, ble. Assume for was discussion that Konz’s wrongheaded being any in the sense of without factual basis, and that Mrs. Konz knew that this was the case. It does regard not follow that Mrs. was her obliged
584
husband adult, and, as less than a competent at the risk of incurring criminal call for liability, help. medical The evi- dence was that Konz had told both the college president and the students that he would not do anything foolish but would resume his insulin injections if that became necessary. Also, a friend (not Erikson) testified that Konz’s agreement with Erikson was only before he resumed his injections, would they pray. N.T. 421. The situation presented thus was somewhat similar to that presented in Westrup Commonwealth, court, where the supra, that the wife noting had “peculiar ideas” about the at inadvisability physicians childbirth, said:
We may concede that wife made a defendant’s] [the grievous mistake in to her adhering purpose rejecting aid, and, in view of yet end, suffering, death, herself, to which she subjected her cannot sincerity be doubted. at Ky. S.W. that the husband
Finding had acted in faith good and at his wife’s request sooner, in not calling physician the court found no breach of the husband’s to his wife. I duty do not say “sincerity” is the relevant consideration. However, given Konz’s evident and his sincerity, assurances that he foolish, would not do I anything am unwilling was, hold law, that Mrs. Konz as a matter of criminal obliged to call for medical help before her husband became helpless, in an attempt frustrate his announced intention of doing without his insulin.
I should nevertheless Mrs. augment Konz’s to her (and husband Erikson’s hypothesis, duty, see footnote 1 supra) one While respect. holding that had no they to call for medical before Konz help helpless, became I should hold that in the circumstances particular of this case they had a to be on guard for the onset of such a state of helplessness. knew Appellees or so the could have jury found —that Konz had not had much if insulin for three weeks, and that at a minimum he serious illness risking insulin; *13 addition, not taking appellees saw Konz ill In these suddenly violently Sunday. become and on circumstances, to duty to Konz included the appellees’ duty close watch over him. If there was evidence that keep comatose, Konz became during Sunday night visibly I could not excuse of a breach of to example, appellees duty him because were un- merely they gone sleep had to and aware he lapsed had into a state. helpless
-3- Having defined the owed I must ask whether the evidence was sufficient support finding to of breach. Given definition of the is a my inquiry double one: duty, Did appellees not, observe Konz become If helpless? would have, had they they kept close watch over him? The observ- able nature of Konz’s is for if helplessness important, at any time had reason to believe that Konz was no longer able to make a competent decision to forgo aid, at that time him, came under the to they help even though he have continued to might that he wanted deny Mally, supra. See State help.
The critical period The evidence Sunday Monday. is insufficient of visible support finding helplessness on Sunday during the day. Although vomiting Konz was ill, was he could walk clearly (he bathroom) used the and he (he alert and rational heard the voices of the visiting friends and called to see if him). wanted to talk to they evidence that Konz reached a point where could be said to have been was evidence that late visibly helpless or Sunday night Erikson found Konz early Monday morning, in his mumbling sleep. police Erikson told the on Monday that this occurred (Later, at 3:45 a. m. N.T. 289. Monday. he said it was on N.T. Sunday early Monday morning. 309-310). He said he asked Konz some if questions to see them, could answer such as what chapel time started. I answer; have no way the correctness of Konz’s judging on the surface, it appears lucid.
Mindful as I am of our examine the evidence Commonwealth, still, most favorable I light *14 586
cannot that here the evidence was say sufficient to a support that sometime finding during or Sunday early Monday, helpless held, became to It cannot visibly appellees. therefore, that breached appellees a to call for medical help. comment, however,
A further is I have required. said that circumstances here particular appellees had a to close watch over keep Perhaps Konz. if Mrs. Konz awake, had not to bed but gone had remained late Sunday night early Monday morning, watching over her hus- band, she have would seen him into a lapse helpless condi- tion. Whether she would have seen this happen, however, is a matter of mere speculation: for all can she anyone say, would have seen nothing that could be characterized as a into a manifesting lapse helpless condition. While guilt inference, be based on it may may not be based on specula- McFadden, tion. 277, Commonwealth v. 448 Pa. 292 A.2d 324 (1972); 224, Commonwealth v. 448 Bailey, Pa. 292 A.2d 345 (1972); Wilson, Commonwealth v. 312 Pa.Super. (1973). A.2d 430 The difference between an inference and a an speculation that inference is a reasoned deduction from evidence, Here, is a speculation guess. to if say that Mrs. Konz had watch kept she would have seen something happen that would have warned her that her husband had lapsed into is to helplessness guess; for the of the accuracy statement cannot be tested it by measuring against evidence.
In addition finding to that there is no evidence of Konz’s that, visible I further helplessness, were, find even if there it was not that proved appellees’ failure call for medical aid death, the cause of trial, Konz’s as 2504 requires. At § the Commonwealth’s expert made it that plain Konz’s life could have been if saved medical had been help summoned and the responding physician had found Konz in a certain condition, “arousable”, unconscious”; namely: “not “some coherence”; degree ambulate”; “able blood pressure stable”; “at least “not in N.T. shock.” 190-194. Further- more, on cross-examination the expert refused to specifically the symptoms are precisely which these symptoms, vary to decide upon in relying justified would have been change and was still able not helpless Konz was sad, ironic, better, conclusion An or for aid. mind and ask to Erikson’s not responded that Konz had Suppose follows. some or that for early Monday, Sunday late questions, alarmed and Erikson had become Konz or reason Mrs. other their duty could not. Then but had tried to rouse Konz call, however, help. call for medical have been to would late; into of helplessness the condition would have come too *15 a condition would have been have lapsed which Konz would not have saved physician could responding from which the the inferred, discussing for be may him—or at least this saved, the still have been might which Konz during period when the time go beyond refused to expert firmly survivability still his opinion which he based on symptoms evidence, as offer existed; any did the Commonwealth nor worsening given expert, another example by Thus, although survived. still have might symptoms, their duty had breached appellees it could be said that had caused the breach Konz, not be said it could death.4 that is a standard drawing up chides me for
The majority to call for that the “worthless,” holding for by helpless, Konz became visibly never arose until medical help not exist in—cases to—it does made it inapplicable I have though in fact someone, helpless may like where criminal case that it is a only respond so. I can not visibly imposed, If criminal is to be liability deciding. we are that the defined specifically must be so of the accused whether it it, decide jury understand accused may according define a duty should not has been breached. One of a given like to reach on the facts result one would to the first, and then define the Instead, one should case. of that duty. show a violation to see whether the facts look reach, whether I need not consider result I should 4. Because of the negli- grossly duty by appellees any reckless or was breach of guilty majority with- gent, finds § Pa.C.S.A. requirement. discussing out this
-4- reflection, I have Upon concluded that the differences between the majority’s position and mine are attributable to the majority’s acceptance of one or the other of two argu- ments. argument
One was advanced the Commonwealth: that the crucial through weekend was a appellant “mechanical (the man” Commonwealth’s label for a diabetic who suffers from ketoacidosis and functions only by rote even though his cognitive are processes critically diminished). The Common- wealth’s brief cites to 42 in the record pages support fact, argument. In there was one place where the described such expert and his syndrome description brief: this,
The end result of volume, decrease in the blood imbalances, the electrolyte acidosis, ketosis, is to make someone lethargic, meaning to make him drowsey, he loses his terrible thirst. appetite, Subsequently may on to a go alertness, decreased mental turn, which inmay, culminate in coma and eventually death .
N.T. at 51 (emphasis supplied). *16 is no There evidence that Konz reached this state on Satur- or, did, or if day he Sunday there were signs outward of it that should have alerted appellees.
The other argument was nowhere advanced: that Konz was a sort of psychological of prisoner his wife and best friend. It is not surprising that this argument was not advanced; it; there is no evidence in the record to support to the contrary, the was uniform that testimony Mrs. Konz was subservient to her husband’s wishes in every respect. However, sort; must majority believe something how else assertions, could it make the which are without any record, in the support decedent, that appellees “kept effect, isolated,” 695, at or that they “prevented her husband from outsiders, contact making wishes,” with against his friends, merely visit Sunday During 696?5 at to see him. wanted of the visitors see if one called out to (which intestinal ailment Konz had an told that When to see chose not correct), the visitor least superficially nor is see anyone; he wanted to not say him. Konz did imprisoned if he had felt think that reason to there any bed- out of his have walked isolated, simply could not aid. the visitor’s room, out and enlisted or called Konz left two times that ignores further majority inside the When Konz was the weekend. during the house nurse, to a wife, talking Saturday night, his on with hospital surrounding presumably equipment with staff and hospital of the will. the basis On him, against he was not isolated frus- longer being was no record, assume that he one must not did simply but help, to medical attempt get trated in any want it. court. of the lower the order
I should affirm