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COMMONWEALTH v. CARN (11/17/72)

decided: November 17, 1972.

COMMONWEALTH
v.
CARN, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of York County, Oct. T., 1963, No. 63, and Oct. T., 1962, No. 62, in case of Commonwealth of Pennsylvania v. Willie J. Carn.

COUNSEL

John H. Chronister, Assistant Public Defender, for appellant.

Samuel K. Gates, Assistant District Attorney, and Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix.

Author: Nix

[ 449 Pa. Page 228]

A jury found the Appellant, Willie J. Carn, guilty of Murder in the Second Degree and of Aggravated Assault and Battery on January 6, 1964. The judge imposed sentence on the murder indictment and Appellant

[ 449 Pa. Page 229]

    took no appeal.*fn1 Appellant filed a petition under the Post Conviction Hearing Act, January 25, 1966, P. L. (1965) 1580, ยง 1, 19 P.S. 1180-1 et seq., alleging obstruction of appellate rights, and, as a result, he was allowed to file a motion for a new trial in order to perfect his appeal. He filed such a motion, alleging that the verdict was contrary to the weight of the evidence, contrary to the evidence, and contrary to the law.*fn2 The motion was denied and this appeal follows.

Appellant's sole contention is that there was insufficient evidence as a matter of law to allow a jury to find that his actions were the cause of decedent's death. Appellant was convicted of killing his ladyfriend, a Miss Leona Kearse. He admits that he fired a shotgun and wounded her, but claims that the Commonwealth failed to establish that these wounds caused her death.

To establish the cause of death, the Commonwealth offered the testimony of Dr. Thomas J. Burkhart, a member of the York Hospital pathological staff who performed the autopsy. Dr. Burkhart testified that there were two shotgun wounds, the point of entry of one being the right shoulder and the other being the

[ 449 Pa. Page 230]

    right buttocks. His testimony continued, "In my opinion the cause of death was due to gunshot wounds characteristic of the shotgun type associated with trauma to other organs as described, chest wall, lung, intestine, kidney, with hemorrhage, massive hemorrhage into the right chest cavity, and another factor to be considered in the cause of death has to be the factor of shock." Finally, he testified that the specific wound causing death was the one to the right shoulder, and that the wound in the lower back or buttocks would not alone have caused death.

The Commonwealth must prove causation in a homicide case beyond a reasonable doubt. Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968). However, causation is an issue of fact for the jury, Commonwealth v. Johnson, 445 Pa. 276, 284 A.2d 734 (1971), and it is clear that accepting all of the evidence in this case and all reasonable inferences therefrom in a light most favorable to the Commonwealth, the jury had ample basis to conclude beyond a reasonable doubt that the shotgun wound was the cause of death. See, e.g., Commonwealth v. ...


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