Appeal from order of Superior Court, April T., 1971, No. 500, affirming judgment of sentence of Court of Common Pleas of Westmoreland County, April T., 1970, Nos. 276 and 277, in case of Commonwealth of Pennsylvania v. Luella Scufca.
John M. O'Connell, Jr., with him O'Connell, Silvis & Godlewski, for appellant.
Louis H. Ceraso, Assistant District Attorney, and Albert M. Nichols, District Attorney, submitted a brief, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Justice Roberts, Mr. Justice Pomeroy and Mr. Justice Manderino.
Appellant, Luella Skufca, was convicted by a jury of involuntary manslaughter and of violating § 727 of the Act of June 24, 1939, P. L. 872, 18 P.S. § 4727. Post-trial motions were denied and an indeterminate sentence not to exceed two years in the Women's Correctional Institution at Muncy was imposed.*fn1 The Superior Court affirmed without dissent and after the grant of allocatur we now affirm.
On the evening of January 23 and the early morning hours of January 24, 1970, appellant left her two minor children (the oldest child was three (3) years of age and the youngest was ten (10) months) in their apartment unattended*fn2 while she participated in a
social evening with friends. Before leaving she put the children in the bedroom and secured the door by inserting two table knives between the door and the jamb in addition to fastening the latch. At approximately 12:05 a.m., while appellant was absent from the premises, a fire started in the building, possibly originating as a result of a defective television set in appellant's apartment. A visitor to the building, learning that the youngsters were trapped in the bedroom, attempted to remove them but was prevented from doing so by the manner in which the door had been fastened. Firemen, upon entry, found the children suffocated in the locked bedroom of the apartment.
Appellant first argues that the testimony presented failed to establish a violation of the Act of June 24, 1939, P. L. 872, § 727, 18 P.S. § 4727. This section of our penal code provides:
"Whoever, being a parent or other person charged with the care and custody, for nurture or education, of a child under the age of sixteen (16) years, abandons the child in destitute circumstances, or wilfully omits to furnish necessary and proper food, clothing, or shelter for such child, is guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or undergo imprisonment not exceeding two (2) years, or both.
"In case a fine is imposed, the same may be applied, in the discretion of the court, to the support of such child.
"Proof of the abandonment of such child in destitute circumstances, and omission to furnish necessary and proper food, clothing, or shelter, shall be prima ...