No. 155 January Term, 1977, Appeal from judgment of sentence of Northampton County, Court of Common Pleas, Criminal Division, No. 228 October Term, 1971.
James C. Hogan, Easton, for appellant.
John E. Gallagher, Dist. Atty., Richard J. Shiroff, Asst. Dist. Atty., Easton, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, former J., did not participate in the consideration or decision of this case. Manderino, J., filed a dissenting opinion in which Roberts, J., joined.
Appellant, Daniel Lee Graves, was tried for the first time before a jury on June 26, 1972, and found guilty of murder of the first degree, robbery and burglary. On appeal, we reversed the judgment of sentence and awarded a new trial. Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). Appellant's retrial, also before a jury, resulted in verdicts of guilty of murder of the first degree, robbery and burglary. Sentence of life imprisonment was imposed on the murder conviction with concurrent five to ten year sentences for the
robbery and burglary convictions. Post-verdict motions were denied by the trial court, and this appeal followed.*fn1
Appellant's first contention is that the evidence is insufficient to support a finding that his actions caused the victim's death. As with all challenges to the sufficiency of the evidence, we consider the evidence in a light most favorable to the verdict winner, here the Commonwealth. See, e. g., Commonwealth v. Williams, 476 Pa. 557, 560, 383 A.2d 503, 504 (1978). The salient facts are as follows:
On September 28, 1971, appellant and two others burglarized the residence of Sebastiano Patiri, who, at the time, was seventy-five years of age. During the course of the robbery and burglary, Patiri sustained certain injuries for treatment of which he was admitted to a local hospital. While in the recovery room following the surgery that was necessitated by the injuries received in the robbery/burglary, Patiri died.
The prosecution produced two expert witnesses, who testified as to the victim's physical condition when admitted to the hospital, and gave their opinions as to the cause of his death. The first of these witnesses was Dr. Isadore Mihalakis, the pathologist who performed the autopsy on Mr. Patiri's body. Dr. Mihalakis testified, in part, that the seventy-five year old victim's general health condition was poor, and that he was arteriosclerotic, with cardiac and brain arteries functioning at only 30% of their normal capacity. Dr. Mihalakis also testified that "death was due to cardiopulmonary arrest, meaning lung and heart stoppage." The witness expressed the opinion that the injuries sustained in the assault combined with a general state of health caused his death.
The prosecution's second expert witness was Dr. Donald Smith, a physician who had examined the victim while he was yet alive. This witness testified that the wounds "were quite likely compatible with survival," and "that he had
every reason to believe the victim would survive after surgery." Dr. Smith also stated that neither the wounds themselves, the corrective surgery that he performed, nor the anesthesia, individually or collectively, were such as to create a reasonable medical expectation that death would result. He further testified that the wounds, ". . . necessitated [the victim's] admission and evaluation in the emergency room", and that the resultant surgery did lead to his death.
The evidence also revealed that the victim had sustained seven knife-stab wounds to the body. Four of these seven stab wounds were of sufficient depth to penetrate internal organs; two wounds, one of which was two and one-half inches deep and the other of which was two and one-quarter inches deep, penetrated the victim's lung; another three inches deep, perforated the lower lobe of the lung, perforated the diaphragm, and penetrated the liver to a depth of three-fourths of an inch; another, two and one-half inches deep, penetrated the right lobe of the liver to a depth of one inch. The stab wounds caused extensive hemorrhaging in the abdominal cavity. Additionally, the victim had received blows to the face and chest which resulted in multiple bruises, a laceration over the right eye, a fracture to the nasal bone, and two fractured ribs.
The above evidence is clearly sufficient to support a finding that the wounds inflicted by appellant initiated the chain of events which ultimately led to the victim's death. Furthermore, appellant cannot insulate himself from criminal liability on the theory that the victim's pre-existing physical infirmities contributed to his demise. See Commonwealth v. Hicks, 483 Pa. 305, 313, 396 A.2d 1183, 1187 (1979) quoting Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976). Therefore, appellant's challenge to the sufficiency of the evidence of causation is without merit.
Next appellant contends that the trial judge erred in admitting, over defense objection, the prior testimony given by a prosecution ...