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filed: January 5, 1981.


No. 768 October Term, 1979 Appeal from the Judgment of Sentence in the Court of Common Pleas of Columbia County, No. 8 of 1977.


Richard A. Sprague, Philadelphia, for appellant.

Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth, appellee.

Price, Cavanaugh and Watkins, JJ. Cavanaugh, J., concurs in the result.

Author: Price

[ 285 Pa. Super. Page 423]

Following a jury trial commenced on May 16, 1977, appellant, a physician, was convicted of involuntary manslaughter*fn1 of Barbara Fedder, his patient. Post-trial motions were denied and appellant was sentenced to a term of imprisonment of one to three years, fined $5,000 and ordered to pay the costs of prosecution. For the reasons stated herein, we affirm the judgment of sentence.

On appeal, appellant raises numerous contentions. Asserting that the Commonwealth did not produce sufficient evidence to support his conviction, appellant first contends that the Commonwealth failed to sustain its burden of proving direct causation between his acts and the death of the decedent, the element of recklessness or gross negligence, and failed to overcome the presumption of innocence. Our review of the record convinces us that the evidence produced was sufficient to support appellant's conviction.

In evaluating the sufficiency of the evidence, the test is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979); Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978). We are mindful, in this evaluation, that the trier of fact, while passing upon the credibility of witnesses and the weight to be accorded the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Waldman, supra.

The pertinent facts are as follows. Barbara Fedder, a seventeen-year old patient of appellant, lapsed into a state of unconsciousness while attending a party on the night of

[ 285 Pa. Super. Page 424]

July 23, 1976. Attempts at cardiopulmonary resuscitation proved unsuccessful, and Ms. Fedder was pronounced dead during the early morning hours of July 24. The cause of death was determined to be asphyxiation from aspiration of the contents of her stomach due to depression of her gag reflex. Simply stated, Ms. Fedder suffocated when the contents of her stomach entered her lungs. Normally, one's gag reflex would expel the regurgitated material. However, in Ms. Fedder's case, her gag reflex was depressed. Post-mortem laboratory analyses performed on the decedent revealed the presence of the drugs amobarbital and secobarbital, components of a chemical compound known as Tuinal, a barbiturate prescribed as a hypnotic or sleeping pill. Medical and toxicological experts for the Commonwealth testified that the depression of Ms. Fedder's gag reflex was caused by ingestion of the barbiturate. Further Commonwealth evidence revealed that in the seven weeks preceding Ms. Fedder's death appellant prescribed numerous drugs for her, including seven prescriptions for Tuinal, the last of which was written July 23, 1976.

The Commonwealth charged appellant with involuntary manslaughter, alleging that, as a direct result of the reckless and grossly negligent manner in which he prescribed the drug Tuinal he caused the death of Ms. Fedder. Involuntary manslaughter is defined in the Crimes Code as follows:

"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, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." 18 Pa.C.S. § 2504.

Although tort concepts of causation are inapplicable in criminal homicide prosecutions and thus a conviction requires a more direct causal connection, see Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961); Commonwealth v. Howard, 265 Pa. Super. 535, 402 A.2d 674 (1979), a defendant's acts need not be the direct cause of death for criminal responsibility to be imposed. If the acts contributed in producing

[ 285 Pa. Super. Page 425]

    the ultimate result of death, they may be considered the legal cause of the victim's death. This point was explicated by our supreme court in Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974), appeal dismissed, Skufca v. Pennsylvania, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 (1974), as follows:

"Although we have expressly rejected the tort theory of causation in assessing criminal responsibility, it has never been the law of this Commonwealth that criminal responsibility must be confined to a sole or immediate cause of death. Criminal responsibility is properly assessed against one whose conduct was a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result. Here the substantial relation between appellant's conduct which constituted the misdemeanor, and the deaths of her children satisfies the causation requirement. Although suffocation due to the fire was the immediate medical cause of the children's death, appellant's unlawful conduct in leaving them locked in the room, without supervision, for several hours, susceptible to numerous forseeable dangers, was the legal cause of their death. The fire produced its fatal result only because of the defenseless position the young victims were left in through their mother's unlawful conduct." Id., 457 Pa. at 132-33, 321 A.2d at 894 (citations omitted).

See also Commonwealth v. El, 255 Pa. Super. 597, 389 A.2d 138 (1978). Furthermore, actions have been held to constitute the legal cause of a homicide if they started a "chain of causation" which lead to the death of the victim. See Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966).

In the instant case, death was caused by aspiration of the regurgitated contents of the stomach due to a depressed gag reflex. The jury found that the depression of the gag reflex was caused by ingestion of the drug Tuinal, prescribed to the decedent by appellant. Our review of the record supports the jury's finding that the drug Tuinal caused Ms. Fedder's demise. Dr. Robert Hunter, the pathologist

[ 285 Pa. Super. Page 426]

    for Berwick Hospital who performed the post-mortem examination of Ms. Fedder, testified that he believed her gag reflex was depressed from the barbiturates present in her system, and this postulation was seconded by Wellon Collom, a toxologist who performed the laboratory tests on sample tissues and serums taken from the decedent. Mr. Collom testified that the specimens taken were tested for the presence of all prescription drugs and several non-prescription drugs including morphine. The only drugs found present in the decedent's body were amobarbital and secobarbital, the components of Tuinal. No traces of alcohol were discovered. Mr. Collom also testified that the levels of amobarbital and secobarbital discovered in the specimen taken from the decedent were of a sufficient degree of concentration to effectuate depression of Ms. Fedder's gag reflex. On the basis of this evidence, we conclude that the jury's finding that ingestion of Tuinal led to Ms. Fedder's death is sufficiently supported by the record.

However, the mere finding that the decedent died from ingestion of a drug prescribed to her by appellant is insufficient, in itself, to support a conviction for involuntary manslaughter. Prescription of a controlled drug by a licensed physician does not constitute an unlawful act. Therefore, under the Crimes Code, the Commonwealth must prove that appellant executed this lawful act, i. e. prescription, in a reckless or grossly negligent manner and that his conduct was the legal cause of Ms. Fedder's death.

The recklessness or criminal negligence required to sustain an involuntary manslaughter conviction may be found if the accused consciously disregarded or, in gross departure from a standard of reasonable care, failed to perceive a substantial and unjustifiable risk that his action might cause death or serious bodily harm. See Commonwealth v. Agnew, 263 Pa. Super. 424, 398 A.2d 209 (1979); 18 Pa.C.S. §§ 302(b)(3), 302(b)(4). Evidence produced at trial indicated that during the months of June and July, 1976, appellant issued to the decedent seven separate prescriptions

[ 285 Pa. Super. Page 427]

    for the compound Tuinal,*fn2 the latest of which was issued on July 23, 1976. Testimony adduced at trial indicated that Ms. Fedder had in her possession on the night of the party a bottle containing the July 23 prescription.

The Coroner of Columbia County, Dr. D. Ernest Witt, testified that the size of the Tuinal pills prescribed by appellant (3 grains) was double the normal pill size and that it was questionable practice to prescribe Tuinal to an out-patient. Regarding the instant fact situation, the coroner stated that prescribing Tuinal to a seventeen year old girl in the amounts and frequencies evidenced by appellant's prescriptions was "over-prescribing," "considerably irresponsible and reckless" and "totally wrong." N.T. 214, 233-34). The Deputy Coroner of Columbia County, Dr. Frederick B. Clemens, concurred in Dr. Witt's assessment and termed the practice dangerous, with fatal results a possibility.

The Commonwealth also produced testimony from nine pharmacists who described the dozens of prescriptions for controlled substances which appellant had issued to Ms. Fedder in the months preceding her death. One of the pharmacists testified that the decedent came into his store on one occasion, about a month before her death, in such a dazed and stuporous condition that she had to hold onto the cash register to maintain her balance. Leery of selling the decedent a prescription that would enhance her stuporous state, the pharmacist telephoned appellant, described to him Ms. Fedder's condition, and queried whether it was advisable to fill the prescription in those circumstances. Appellant's response to the pharmacist was "fill the damn thing." (N.T. 183).

Our review of the evidence leads us to the conclusion that there was sufficient evidence to prove each element of involuntary manslaughter. The evidence indicates that appellant prescribed Tuinal to the decedent in quantities and ...

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