NO. 01246 PHILA. 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. 295-298 December Term, 1981
Darryl A. Irwin, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
Spaeth, President Judge, and Wieand and Cirillo, JJ.
[ 347 Pa. Super. Page 235]
This is an appeal from judgments of sentence for murder in the second degree, robbery, and criminal conspiracy. Appellant argues (1) that the evidence was insufficient to convict him of murder in the second degree; (2) that the trial court erred in admitting his statement to the police; (3) that the eyewitness testimony was so unreliable and contradictory as to be incapable of reconciliation; (4) that certain remarks by the prosecutor were improper; (5) that the trial court erred in admitting an in-court identification; and (6) that the trial court erred in permitting hearsay testimony.
[ 347 Pa. Super. Page 236]
Except for the last argument, which we find waived, we have reviewed appellant's arguments and find them without merit. We therefore affirm.
Appellant argues that the evidence was insufficient to convict him of murder in the second degree because the Commonwealth failed to establish beyond a reasonable doubt the cause of the victim's death. We have reviewed the evidence in the light most favorable to the Commonwealth, Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983), and find it sufficient. While we agree with the analysis of the trial court, see slip op. of tr. ct. at 12-16, we add the following comments to address appellant's contention that Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968), and Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971), compel the conclusion that the evidence of causation was insufficient.
In Radford and Embry the expert medical witnesses were unable to establish causation beyond a reasonable doubt. In Radford the medical testimony was to the effect that "defendant's assault . . . probably caused the death." 428 Pa. at 281, 236 A.2d at 803 (emphasis in original). In Embry the doctor who performed the autopsy testified that "he was only able to reconstruct the chain of causation with a 'reasonable degree of medical certainty.'" 441 Pa. at 185, 272 A.2d at 179. These cases continue to be cited for the principle that causation, as an essential element of the crime of murder, must be proved beyond a reasonable doubt. See, e.g., Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734 (1972). However, reliance on them has been criticized, and they have been distinguished. See, e.g., Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Webb, supra. But see Commonwealth v. Floyd, 499 Pa. 316, 453 A.2d 326 (1982) (Webb Court in error in distinguishing Embry). We are satisfied that Embry 's holding, that evidence of defendant's initiating a "chain of causation with a 'reasonable
[ 347 Pa. Super. Page 237]
degree of medical certainty'" was insufficient, has been overruled sub silentio. In Commonwealth v. Webb, the Court stated:
It was not necessary . . . that the [medical expert] witness state it was his conclusion beyond a reasonable doubt the head injuries caused McCall's [the victim's] death. "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 ...