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COMMONWEALTH v. KOMINSKY (06/28/76)

decided: June 28, 1976.

COMMONWEALTH, APPELLANT,
v.
KOMINSKY



Appeal from order of Court of Common Pleas of Bucks County, No. 291 of 1971, in case of Commonwealth of Pennsylvania v. Solomon Kominsky.

COUNSEL

Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellant.

S. Richard Klinges, III, and Begley, Carlin, Mandio, Kelton & Popkin, submitted a brief for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j. Price, J., concurs in the result.

Author: Watkins

[ 240 Pa. Super. Page 533]

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Bucks County,

[ 240 Pa. Super. Page 534]

Criminal Division, granting the motion of the defendant-appellee for an arrest of judgment after conviction by a jury of involuntary manslaughter.

On December 1, 1970, the appellee, Dr. Solomon Kominsky, was arrested and charged with involuntary manslaughter. The appellee was tried before a Bucks County jury and on October 30, 1973, the jury returned a verdict of guilty. Post verdict motions for a new trial and in arrest of judgment were filed and argued. The court in an opinion by Mountenay, J., granted the appellee's motion in arrest of judgment. From that holding the Commonwealth appealed to this Court.

The evidence reveals that the appellee, an osteopathic physician, residing with his wife and family, had engaged in a meretricious relationship with Judy Moore, the victim, over some period of time. However, shortly before the incident in question, the appellee had unilaterally terminated the relationship.

On the evening prior to the decedent's death, she met with the appellee at about 11:00 P.M., following which the decedent and the appellee went to the Patio Restaurant for dinner. Previous to this meeting the decedent had been searching for employment and a domicile in Virginia. The decedent appeared to the appellee to be in a good mood although she had admitted having a couple of drinks on her way up from Virginia. The couple ate dinner and the decedent had two drinks at the restaurant from which they departed at approximately 1:00 A.M. or 1:30 A.M. The appellee took the deceased back to her automobile which was parked at the doctor's office. The appellee went home and retired and assumed the deceased did the same thing; however, the evidence does not disclose what the deceased did at this time.

At approximately 5:00 A.M. that same day the deceased called the appellee at his residence. The appellee perceived over the telephone that the deceased was intoxicated and quite upset and she stated that she ...


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