Jack M. Myers, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., and Roberts, J., took no part in the consideration or decision of this case.
On October 14, 1974, appellant, Derek Green, was tried before a jury and found guilty of murder of the first degree and possession of an instrument of crime. Post-verdict motions were denied, and appellant was sentenced to life imprisonment on the murder conviction and to a consecutive sentence of two and one-half to five years on the weapons violation. This direct appeal of the murder conviction followed, and appellant's appeal of the weapons offense, filed in the Superior Court, was transferred and consolidated with his appeal of the murder conviction. We now affirm the judgments of sentence.
Appellant's conviction arose out of the apparent attempted robbery and shooting of one Ben White outside a Philadelphia taproom. After the shooting, the victim was hospitalized, and a kidney damaged by the gunshot had to be surgically removed. Less than forty-eight hours later, the victim was found dead in his hospital room, having suffocated on his own vomit.
Appellant first argues that the prosecution failed to sustain its burden of proving the cause of death beyond a reasonable doubt.
Of course the prosecution must always prove causation beyond a reasonable doubt. See, e. g., Commonwealth v. Ilgenfritz, 466 Pa. 345, 350, 353 A.2d 387, 390 (1976). In Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976), we reviewed the principles controlling when a defendant contends the prosecution's medical testimony does not sufficiently establish criminal causation:
"This Court has upon occasion found medical testimony too uncertain to establish criminal causation beyond a reasonable doubt. See Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968). It is clear, however, . . . that the Commonwealth is not required to prove that a merely hypothetical supervening event did not take place. See Commonwealth v. Williams, 450 Pa. 158, 299 A.2d 643 (1973). . . . Moreover, even if the wound inflicted by the accused is not in itself mortal and a subsequent event is found to be the immediate cause of death, the accused does not escape legal liability if his act started an unbroken chain of causation leading to the death. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Carn, 449 Pa. 228, 296 A.2d 753 (1972)." Id. 468 Pa. at 584-85, 364 A.2d at 670.
In the instant case, the medical examiner who performed the autopsy testified that although the vomit being sucked into the deceased's lungs was the immediate cause of death, he was convinced beyond a reasonable doubt that the cause of death was the gunshot wound which in turn necessitated the surgery. It seems clear to us that appellant's conduct was a "direct and substantial factor in causing the death of the victim." Commonwealth v. Stafford, 451 Pa. 95, 97, 301 A.2d 600, 602 (1973). This is not a case where the prosecution established only that appellant's conduct "probably" caused the death, or only proved causation "with a reasonable degree of medical certainty." See ...