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decided: April 27, 1979.


No. 549, October Term, 1977, Appeal from the Order of the Court of Common Pleas of Lehigh County, Nos. 1147 and 1322 of 1974. (Criminal)


Richard J. Orloski, Assistant District Attorney, Allentown, for Commonwealth, appellant.

George A. Hahalis, Bethlehem, for appellee Dorothy A. Konz.

Thomas A. Wallitsch, Public Defender, Allentown, for appellee Stephen R. C. Erikson.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, President Judge, concurs in the result. Van der Voort, J., files a concurring opinion. Spaeth, J., files a dissenting opinion. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 265 Pa. Super. Page 572]

After a five-day jury trial terminating on February 7, 1975, appellees were found guilty of involuntary manslaughter*fn1 in the death of appellee Dorothy Konz's husband, David. Post-trial motions for new trial and in arrest of judgment were filed. An en banc hearing on the motions was conducted before the Lehigh County Court of Common Pleas, and an order was issued on December 6, 1976, granting appellees' motion in arrest of judgment and thereby discharging appellees.

The Commonwealth brings this appeal and contends that the evidence presented at trial was sufficient to justify the jury's verdict, thus necessitating the reversal of the lower court order of December 6. We reverse the order of the court below granting appellees' motion in arrest of judgment, and remand for consideration by that court of appellees' remaining motion for a new trial and other appropriate action.

[ 265 Pa. Super. Page 573]

Viewing the evidence in the light most favorable to the verdict-winner, i. e., the Commonwealth, and drawing all reasonable inferences therefrom on which the jury could have properly based the verdict, Commonwealth v. Ashford, 227 Pa. Super. 351, 322 A.2d 722 (1974), the following was adduced at trial. The decedent, Reverend David Konz, was a professor, student counselor and chaplain at United Wesleyan College in Allentown, Pennsylvania. Reverend Konz was a diabetic, and had administered insulin to himself on a daily basis for seventeen years.

After an encounter on campus with a visiting evangelist speaker, decedent publicly proclaimed his desire to withdraw from insulin treatment and his belief that God would heal him of his diabetic condition. Subsequent to this proclamation, Reverend Konz assured the president of the university and members of the student body that he would do nothing foolish, would carefully monitor his condition, and would take insulin, if warranted.

Appellee Stephen Erikson, a student at United Wesleyan, was a friend of Reverend Konz, and a regular visitor to the Konz home. On March 18, 1974, Erikson and Reverend Konz made a pact to pray together to enable the decedent to resist the temptation to administer insulin to himself. For a period of approximately three weeks prior to his death, Reverend Konz took insulin only once or twice.

On Saturday, March 22, 1974, the decedent experienced an acute need for insulin, and his behavior evidenced symptoms of insulin debt.*fn2 When decedent went to the refrigerator to obtain his insulin, he discovered that it had been removed. Evidence adduced at trial indicated that appellee Dorothy Konz had removed the insulin from the refrigerator and had hidden it from her husband.*fn3 Decedent then tried to exit from the kitchen, but he was initially prevented from doing so by appellee Erikson, who was purposely obstructing the

[ 265 Pa. Super. Page 574]

    doorway leading out from the kitchen. Decedent eventually made his way to his bedroom or the bathroom. When decedent sought to go into the living room, he was again detained by Erikson, who obstructed the hallway leading from the bedroom and bathroom into the living room and prevented decedent from passing. Harsh words were exchanged, and Erikson then forced decedent into the master bedroom. There, joined by appellee Konz, Erikson talked with decedent for approximately one-half hour. During that half hour, decedent tried to telephone the police to obtain assistance, but was prevented from doing so by appellees who, in a struggle with decedent, rendered the telephone inoperable. The three later emerged from the bedroom, and subsequently decedent left the Konz household twice, both times in the company of either Mrs. Konz or Mr. Erikson. Later in the afternoon, decedent cancelled a speaking engagement of his which was scheduled for the following day -- Sunday.

The nature of the deceased's first journey is unclear. The record only indicates that some time during the late afternoon or early evening he and appellant Erikson left the Konz house for a short time.

During his second journey from his home on Saturday night, this time accompanied by Mrs. Konz, the decedent went to a local hospital to pick up Esther King, a close friend of the family who worked as a practical nurse at the hospital and who was leaving work when the Konzs arrived. At that time, the decedent was experiencing additional symptoms of insulin debt, to-wit, he appeared tired and was complaining of an upset stomach.

Upon returning home from the hospital, the decedent became increasingly ill, vomiting intermittently Saturday night through Sunday morning, and he was confined to bed practically all day Sunday. During this time, appellees, in effect, kept decedent isolated to the point of turning away visitors on Sunday, even though Reverend Konz was desirous of discovering whether one of the visitors wished to see him.

[ 265 Pa. Super. Page 575]

Despite the fact that throughout Saturday and Sunday decedent was experiencing symptoms of lack of insulin, and such symptoms were apparent to those around him, appellees did not seek to obtain medical assistance for the decedent and at no time sought the advice of any medical experts. It should be noted, that the seriousness of decedent's condition was readily apparent even to the Konzes' eleven year old daughter, Amy, who asked her mother why no doctor was summoned.

Instead of seeking medical attention for decedent, appellees chose to administer cracked ice and keep decedent, in effect, isolated. Decedent's condition grew progressively worse as the evening wore on, and his death occurred at approximately 6:00 a. m. Monday. Cause of death was determined to be ketoacidosis resulting from lack of insulin. Although Mrs. Konz was aware of her husband's death as early as 7:30 a. m. Monday, she did not attempt to notify the authorities until 5:00 p. m.

Appellees were found guilty by a jury of the crime of involuntary manslaughter. Section 2504 of the Pennsylvania Crimes Code*fn4 provides that:

"A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, he causes the death of another person."

To impose criminal liability based on an omission as opposed to an act, the omission must be "expressly made sufficient by the law defining the offense,"*fn5 or "the duty to perform the omitted act [must be] otherwise imposed by law."*fn6

We hold that appellee Dorothy Konz, as wife of decedent, was under a duty to obtain medical aid for her diabetic husband when it became readily apparent that he was

[ 265 Pa. Super. Page 576]

    suffering the effects of lack of insulin, and in serious need of ...

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