Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1969, No. 97, in case of Commonwealth of Pennsylvania v. Nathaniel Odom.
Joseph A. C. Girone, for appellant.
Benjamin H. Levintow and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones and Mr. Justice Nix concur in the result.
On February 1, 1969, Albert Schaab, age forty-three, was set upon and beaten by a group of young men. Appellant was a member of that group. They struck Schaab several times, dropped him to the ground and
kicked him in the head. Schaab was immediately taken to Philadelphia General Hospital, in a "semi-stuporous state." On April 8, 1969, sixty-seven days later, he died. On November 19, 1970, appellant, with counsel, waived a jury trial. The Commonwealth certified that the case would rise no higher than second-degree murder. At the conclusion of the trial, the trial judge found appellant guilty of second-degree murder. On December 31, 1970, after appellant's post-trial motions were withdrawn,*fn1 he was sentenced to a term of not less than two nor more than four years in the State Correctional Institution. Appellant has appealed from the judgment of sentence.
The sole issue raised on appeal is whether the Commonwealth proved beyond a reasonable doubt that Mr. Schaab's death was caused by the criminal assault in which appellant participated. Dr. Halbert Fillinger, the Medical Examiner, was the sole medical witness on this issue. He testified that the deceased "had a pre-existing condition of internal hydrocephalus," identified as "an increase in the amount of fluid and pressure inside the hollow spaces of the brain, and it is due to a narrowing or a closing of the small vents which allow fluid to circulate from inside of the brain to the areas around it." However, according to Dr. Fillinger, if that condition were not disturbed, "it would probably not be in and of itself lethal." The exact cause of death, according to Dr. Fillinger, was "ependymitis following internal hydrocephalus, due to multiple
injuries of the head." Ependymitis was defined by Dr. Fillinger as an "inflammation of the linings of the cavities of the brain" which narrows the vents in the brain.
According to Dr. Fillinger's explanation, Mr. Schaab's pre-existing condition was aggravated by the serious beating which he received. The result was a blockage of these vents and a buildup of fluid and pressure on the brain which caused his loss of consciousness and swelling of the brain. To relieve this condition, a craniotomy was performed. That operation involved the opening of Schaab's skull and "the insertion of a small plastic tube (a shunt) which bypasses the blocked vents in the brain and allows the pressure which has built up inside the brain to be siphoned off. . . ." (Parenthetical material added.) As a result of the craniotomy, unfortunately, a staph infection developed in the deceased's brain. The infection further aggravated the ependymitis. The deceased's condition went generally downhill until he died eight days later.
The appellant, citing Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971), and Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968), contends that the testimony of the Medical Examiner was not sufficiently clear and unequivocal to establish the cause of death beyond a reasonable doubt. However, Dr. Fillinger's testimony was much more certain than that testimony held insufficient in Radford or Embry. In Radford, the physician's opinion as to causation was held to be insufficient because "at best his testimony indicate[d] that defendant's assault on the deceased probably caused the death." (Emphasis in original) Radford, ...