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COMMONWEALTH PENNSYLVANIA v. HOWARD G. EL (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
HOWARD G. EL



No. 622 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, as of October Sessions, 1975, No. 187, Granting Appellee's Motion in Arrest of Judgment and Discharging Appellee.

COUNSEL

Gaele M. Barthold, Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellant.

Dennis J. Cogan, Philadelphia, for appellee.

Watkins, President Judge, Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 255 Pa. Super. Page 598]

The Commonwealth brings this appeal from the lower court's granting of defense counsel's motion in arrest of judgment. For the reasons set forth below, we reverse the lower court's order and reinstate the verdict.

The relevant facts are as follows. Appellee, Howard G. El, was arrested and charged with murder, voluntary manslaughter, involuntary manslaughter, and conspiracy in connection with the death of Caprice Nichole Bey, aged five. Caprice died as a consequence of multiple injuries to her head, trunk and extremities and the Commonwealth alleged that appellee beat the child so severely that the infant died as a result. Prior to trial, the Commonwealth certified that the degree of guilt was no higher than third degree murder. Thereupon the lower court heard the case without a jury,

[ 255 Pa. Super. Page 599]

    granting a motion for a directed verdict of not guilty of conspiracy but finding appellee guilty of involuntary manslaughter. Post-trial motions were filed and, as indicated above, a motion in arrest of judgment was granted.*fn1

The lower court, by way of explanation said that it granted appellee's motion because the medical examiner had testified that "very, very critically [sic] to the mechanism of death are multiple impacts to the head producing swelling of the brain resulting in the terminal mechanism of the death of the deceased," yet appellee had given a statement to police in which he said that he hit Caprice everywhere but on the face. The lower court interpreted the medical examiner's statement to mean that the cause of death was solely the blows to the head. We conclude that the lower court is in error on this point.

The medical examiner was asked repeatedly what, in his opinion, caused the death of Caprice. At least four times he testified that the cause of death was multiple injuries to the head, trunk, and extremities. At no time did the witness testify that blows to the head were the sole cause of death.

Furthermore, the testimony quoted by the lower court was taken out of context, thereby overemphasizing this single statement. The ...


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