No. 106 March Term, 1977, Appeal from Order and Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC7604155A.
Harry R. Ruprecht, Louise Porac, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Leo M. Dillon, Pittsburgh, for appellee.
O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., files a dissenting opinion. Eagen, C. J., took no part in the consideration or decision of this case.
Appellant, Gilbert L. Kingsley, was convicted by a jury of voluntary manslaughter. Post-verdict motions were denied and appellant was sentenced to thirty days' imprisonment and ten years' probation, with the additional requirement that he undergo alcoholic evaluation and counseling. Shortly after appellant was originally sentenced, the trial court reduced the probationary term to twenty-three and one-half months. This direct appeal followed.
Appellant first challenges the sufficiency of the evidence, alleging two defects in the case presented at trial. The facts are as follows.
On May 28, 1976, Benjamin Crowther, age forty-six, the victim, returned home from his job to find appellant, age forty, assisting the victim's wife, Ruth Crowther, in the preparation of Workmen's Compensation papers. An argument eventually broke out between appellant and the victim. Mr. Crowther called appellant several names and when appellant told the victim "you can't back it up," Mr. Crowther attempted to attack appellant. Appellant sidestepped Crowther, grabbing him around the neck and turning him around. Appellant then punched Crowther in the face, knocking him to the floor. According to appellant's confession, he then "stomped" on Crowther's face. At trial, appellant testified that he placed his foot on the victim's throat in an attempt to restrain him.
When Mrs. Crowther saw her husband bleeding from the nose and mouth, she called the police. When the police and paramedics arrived at the Crowther house, Mr. Crowther refused medical attention. Appellant then left the Crowther residence at approximately 1:00 p. m. Mrs. Crowther left shortly thereafter, joining appellant in a neighborhood tavern. Mrs. Crowther talked to her husband on the phone at 8:30 p. m. and he seemed normal. When Mrs. Crowther returned home at 10:00 p. m., she found her husband dead.
In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825 (1975), we stated:
"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. . . . The fact-finder is free to believe all, part, or none of the evidence." (Citations omitted.)
Appellant first argues that the Commonwealth failed to prove that he caused the victim's death. We do not agree.
Dr. Howard Reidbord, a forensic pathologist from the Allegheny County Coroner's Office, performed the autopsy on Mr. Crowther. Dr. Reidbord testified that he conducted both an external and an internal examination. Dr. Reidbord testified as follows about the external examination.
". . . On the body there was, I noticed, the following evidence of recent injury. There was a considerable amount of blood in the nose and in the mouth. There was a bruise over the chin and over the side of the mouth, over the upper lip and over the tip of the nose. These areas were darker red, purple, much the same as what we call a contusion or a bruise, a bump. On the inside of the upper lip there was a laceration, which is a cutting or tearing of the skin. That was inside the upper lip. The upper lip also appeared swollen and there was bleeding into the tissues of the upper lip. The lower lip showed a similar laceration approximately a quarter of an inch in length. There was hemorrhage in the gums and the tissue of the lower lip on the inner aspect. Those were the only injuries that were noted, recent injuries, on the outer aspect of the body."
When discussing the internal examination, Dr. Reidbord testified:
"In summary, the thyroid showed injury, there were injuries to the soft tissues at the base of the brain around the neck hemorrhage in the renal area, hemorrhages in the scalp and hemorrhage in the sinuses.
"In addition to these findings there was evidence of chronic disease in the deceased. This consisted of abnormal amounts of fat in the liver called fatty change of the liver. There was hardening of the artery from the heart, atherosclerosis of the valve of the heart, the aortic valve, which is one of the valves in the heart. From the heart to the main distribution of blood this valve was hardened and did not function normally. The arteries that supply the heart muscle, called the coronary muscles, showed marked, that is, rather severe blockage of the inside with atherosclerosis. That is hardening of the arteries. In addition,
the microscopic examination, examination with the microscope, showed that there was some chronic inflammation, 'chronic' meaning over a period of time, and that's a broad period of time. By examining the different types of cells I could tell that in the spinal cord the covering of the spinal cord had been inflamed at some time and was still slightly inflamed. There was chronic inflammation of the spinal covering.
"Those constituted my findings at autopsy."
Dr. Reidbord was then asked:
"Q. [Assistant District Attorney] Going to the recent injuries that you described, the external injuries and the internal injuries, did some of the injuries that you described correspond? That is, some were external and also from the injury you had some findings internally?
"A. As to the correlation between the two -- it was suggested, in effect, that he had injuries to his face and to his neck, so the answer to the question is yes, they were correlated, in my opinion, but the injuries to the face were probably related to the injuries inside the neck and the throat. The injury in the kidney was in a separate site and I couldn't relate that in any way to the injuries at the top of the body. In addition, there was, of course, the bruise in the undersurface of the scalp which, again, is related, in my opinion, to the injuries to the head and neck."
Dr. Reidbord was next asked the cause of the victim's injuries and he stated:
"It is my opinion, based on the examination of the body, that the injuries received to the neck were received as a result of force applied to the front of the neck. In my experience this would be due to a force applied either possibly manually or as seen in types of manual strangulations. It was my opinion that this was most likely the cause of the injuries on the underside of the cartilage of the neck, as I described before. The injuries to the front of the face were caused by some object striking the face
or the face striking an object. This is called blunt force injury. The lacerations of the inside of the lip, in my opinion, were due to the lips being pressed up forcefully against the teeth and being lacerated. Again, the injury to the kidney area and the back of the neck and scalp were due to a force being applied to the skin of the back of the head. The injury deep in the neck, the one I described around the spinal cord, in my opinion, was due to the neck being moved in an abnormal way so that the tissues tore and there was hemorrhage."
When asked to give the cause of the victim's death, Dr. Reidbord gave the following responses:
"A combination of the injuries would be considered, in my opinion, as causing the death. The combination of the injuries to the tissues around the base of the brain, in the tissue around the spinal cord, and the hemorrhages in the neck, deep in the neck, would be, in my opinion, the cause of death, a combination of these injuries, and I would not be able to specifically say which one was immediately responsible, but the combination of injuries was responsible.
"Death was due to hemorrhage and contusions of the back of the neck and hemorrhages in the voice box, cartilage of the throat, and it was due to abrasions and contusions of the face, and hemorrhage of the kidney, a combination."
Finally, on cross-examination, the following exchange occurred:
"Q. [Defense counsel] Doctor, when you take into consideration that this man had aortic stenosis, a severe coronary disease, fatty liver, disease of the kidneys, when you take the fact that you have indicated that it is possible that he could have died from natural causes and you take into consideration your findings that there were superficial injuries of the face and ...