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filed: December 21, 1984.


No. 1979 Philadelphia, 1982, Appeal from Judgment of Sentence, Court of Common Pleas, Criminal Division, Philadelphia County, No. CP-80-04-1070


A. Charles Peruto, Jr., Philadelphia, for appellant.

Thomas Quinn, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, McEwen and Cirillo, JJ. McEwen, J., files concurring opinion. Cirillo, J., files concurring and dissenting opinion.

Author: Cavanaugh

[ 338 Pa. Super. Page 23]

This is an appeal from a judgment of sentence imposed by the Common Pleas Court, Philadelphia County on June 29, 1982. After a non-jury trial, appellant, Leroy Cotton, was found guilty of murder in the second degree, robbery, and criminal conspiracy.*fn1 On appeal, Cotton maintains that the evidence was insufficient to show the causation element of second degree murder. Appellant contends that as a matter of law, the Commonwealth's evidence was insufficient to show that the victim's death occurred from his conduct while in the commission of an alleged robbery. Appellant also claims that the evidence was insufficient to support the robbery conviction thus nullifying the basis for the felony murder conviction. In addition, appellant argues that both trial and post-trial counsel provided ineffective assistance. These claims include failure to preserve meritorious issues for appellate review, failure to call character witnesses, and calling appellant to the stand before other defense witnesses.

[ 338 Pa. Super. Page 24]

We disagree with appellant's contentions and, therefore, affirm the lower court.

The convictions arise from events that transpired on March 20, 1980 near 16th and Blavis Streets in Philadelphia. An eyewitness, Shirley Brockington, saw appellant, Leroy Cotton, and two other males in an altercation with Mr. Longin Markiw. Miss Brockington testified that the two unnamed men were standing on either side of Mr. Markiw while appellant struck the victim in the chest. The two men wrestled Mr. Markiw to the ground. One of the three men ripped a rear pocket on Mr. Markiw's trousers. After the assailants fled the scene, Miss Brockington went to give assistance to the victim. She testified that Mr. Markiw appeared to be sick and that he was holding his chest and his pants pocket. Miss Brockington then walked the victim first to her house and then to his own home. Shortly thereafter, the police arrived at Mr. Markiw's home. Another policeman, Officer Kiefer, arrived to transport Mr. Markiw to Northwest Detectives. At trial, one of the officers described Mr. Markiw as "ashen faced." Officer Kiefer testified that Mr. Markiw appeared to be perspiring and in pain "all around his chest." As a result, he took the victim to Temple University Hospital. At the emergency ward, staff members told the officer that the victim might be having a heart attack. Mr. Markiw was admitted to the hospital where he died five days later.

Kenneth E. Carpenter, M.D., testifying for the Commonwealth, stated that the stress of the incident aggravated Mr. Markiw's heart disease, triggering a heart attack causing his death and stated his opinion with "reasonable medical certainty." He also testified that the cause of death was heart disease aggravated by assault and robbery. On the autopsy report, Dr. Carpenter indicated that Mr. Markiw had suffered a heart attack anywhere from four to eight days prior to his death.

Dr. Carpenter's testimony and his autopsy report were the only direct evidence offered by the Commonwealth to prove causation. Appellant claims that this was insufficient

[ 338 Pa. Super. Page 25]

    to show that Mr. Markiw's death resulted from the alleged robbery. In deciding an insufficiency claim, this Court is bound to view all evidence in the light most favorable to the Commonwealth and to draw all reasonable inferences in its favor. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978). We also note that circumstantial evidence is sufficient to convict beyond a reasonable doubt. Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980).

Once the Commonwealth submitted evidence of causation, it was for the factfinder to determine if that evidence proves the element of the crime charged beyond a reasonable doubt. Merely because Dr. Carpenter's opinion was cast in terms of a reasonable medical certainty, this Court cannot say, as a matter of law, that causation was not proved beyond a reasonable doubt. As pointed out by Justice O'Brien.

It was not necessary, as appellants contend, that the witness state it was his conclusion beyond a reasonable doubt . . . "beyond a reasonable doubt" is a legal standard. Medical causation and legal causation are qualitatively different in their application . . . whether the Commonwealth's evidence is sufficient to warrant a finding of causal connection is initially a legal question for the court, but whether it is persuasive beyond a reasonable doubt is for the jury to say.

Commonwealth v. Webb, 449 Pa. 490, 496, 296 A.2d 734, 737 (1972). Furthermore, it would be an undue burden to require the Commonwealth's medical experts to state their opinions that death resulted from a specific cause "beyond a reasonable doubt." That concept is a legal standard that the factfinder must use in determining guilt.*fn2

[ 338 Pa. Super. Page 26]

Dr. Carpenter's opinion finds support in the record and the hypothetical question asked of him was proper. It conformed to the facts as supported in the record, and the appellant will not now be heard to complain that the hypothetical question failed to conform to the facts as he made no objection to that effect at trial. P.L.E. Appeals ยง 110. We shall not presume to invade the jury's traditional fact finding function and hold that the opinion based on this hypothetical question was improper. Dr. Carpenter's testimony showed that the cause of death was heart disease aggravated by the assault and robbery. The Commonwealth also provided testimony regarding the victim's condition immediately after the incident. In view of this, we cannot say, as a matter of law, that the factfinder had

[ 338 Pa. Super. Page 27]

    insufficient evidence to establish the cause of death beyond a reasonable doubt.

To hold otherwise would be a judicial usurpation of the jury's function. Also, the evidence of robbery in this case was clearly ...

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