No. 31 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Chester County, Pennsylvania at No. 183 November Term, 1973
Leo H. Eschbach, Pottstown, Stewart J. Greenleaf, Asst. Dist. Atty., Morristown, for appellant.
Joan D. Lasensky, Asst. Dist. Atty., for appellee.
Eagen, C. J., and Nix, Manderino and Larsen, JJ. Roberts and Pomeroy, JJ., did not participate in the consideration or decision of this case. O'Brien, J., did not participate in the decision of this case.
Appellant, Regina Strong, was indicted on charges of murder, voluntary manslaughter, and involuntary manslaughter as the result of the death of her two-year-old son. She was then tried before a judge and jury and found guilty of murder in the second degree pursuant to the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2502. (The crime would be murder in the third degree under the provisions of the Crimes Code presently in effect. Act of March 26, 1974, P.L. 213, No. 46, § 4 (18 Pa.C.S.A. § 2502, Supp.1978)). Post-verdict motions were denied by the court en banc, and sentence of five to ten years imprisonment was imposed. This direct appeal followed.
Appellant now contends, as she did before the court en banc, that the evidence presented at her trial was insufficient to sustain the jury's verdict of guilty of murder in the second degree.
The facts surrounding appellant's indictment and conviction, taken in the light most favorable to the prosecution as verdict winner, and those inferences which may reasonably
be drawn from these facts, are as follows. See Commonwealth v. Love, 248 Pa. Super. 387, 375 A.2d 151 (1977). In 1973, appellant and her three children took up residence with C. Alton Wade, at his house located in Chester County, Pennsylvania. According to one of the prosecution's witnesses, Wade was a "high strung" individual with an ulcer, who had a very "short temper." At least partially because of Wade's influence upon her, appellant began "disciplining" her children by using a restraining strap and horse crop. Wade also administered physical beatings ("discipline") to appellant's children using these instruments. The testimony indicates that both appellant and Wade had used these implements to discipline appellant's two-year old son Daniel on November 26, 28, and December 1, 1973. During the afternoon of December 1, 1973, appellant discovered Daniel playing on a fence outside their house. This fence was off-limits to appellant's children and Daniel had been told not to play there. Because of his disobedience, appellant took Daniel by the arm and "dragged" him into the house, through the kitchen, and into the bedroom shared by her and Wade. There, in Wade's presence, appellant began to "discipline" Daniel. She struck him with the horse crop several times on the buttocks and on the legs, arms, and hands. Wade said that appellant was not striking Daniel hard enough and that he would show her how to do it correctly. Appellant then gave the horse crop to Wade, who struck Daniel with it several additional times. At some point during this beating, Daniel fell to his back on the floor. Wade then raised his foot and "stomped" on Daniel's stomach. Daniel died the next day.
In order to establish the cause of Daniel's death, the prosecution presented the testimony of Dr. Halbert Fillinger, a forensic pathologist who performed the autopsy on the victim's body. Dr. Fillinger testified that, in his opinion, the force needed to cause the injuries which resulted in Daniel's death, could have been supplied by application of a foot to the stomach in a "stomping" manner as previously described.
Appellant does not dispute the prosecution's contention that her son's death resulted from criminal agency. The
crux of appellant's argument is that the evidence fails to establish beyond a reasonable doubt that appellant's conduct caused Daniel's death. Specifically, appellant argues that the evidence shows only that she administered beatings to Daniel using the horse crop and restraining strap, and that the injuries to Daniel's buttocks, legs, arms, and hands which resulted from her use of these instruments were not severe enough, in and of themselves, to cause death. Indeed, on cross-examination, Dr. Fillinger admitted that he could not state the degree to which these external injuries might have contributed to Daniel's death. Appellant's argument misses the mark, however, because the evidence establishes that Wade's action of "stomping" on Daniel's stomach, was a form of "discipline" that Wade had used on appellant's children previously, and that on December 1, 1973, appellant and Wade were acting together in administering the "discipline" that ultimately led to Daniel's death.
A person need not actually deliver the death dealing blow to be convicted of murder if that person's conduct is such as to make him or her legally accountable for the conduct of another. Complicity for the conduct of another is provided for in the Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 P.C.S.A. § 306:
"(a) General rule. -- A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
(b) Conduct of another. -- A person is legally accountable for the conduct of another person when:
(1) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;
(2) he is made accountable for the conduct of such other person by this title or by the law defining the offense; or
(3) he is an accomplice of such other person in the commission of the offense.
(c) Accomplice defined. -- A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(ii) aids or agrees or attempts to aid such person in planning or ...