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COMMONWEALTH PENNSYLVANIA v. KENNETH ALBERT KOSTRA (05/14/85)

May 14, 1985

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH ALBERT KOSTRA, APPELLANT



COUNSEL

David J. Graban, Sharon, for appellant.

Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellee.

Before Spaeth, President Judge, and Rowley and Wieand, JJ.

Author: Wieand

WIEAND, Judge:

At or about 4:00 a.m. on March 29,1983, Kenneth Albert Kostra and several friends left a tavern after having spent the evening of the prior day and the early morning of the same day visiting licensed establishments in and around Sharon and Farrell, Mercer County. Less than a mile from the tavern, Kostra lost control of the vehicle which he was then driving. The vehicle left the road, became airborne, struck several utility poles, landed on its side, spun around and flipped upright. All passengers in the vehicle were injured. Russell Blackstock subsequently died. Kostra was tried by a jury for his part in the accident and was found guilty of homicide by vehicle,*fn1 driving while under the influence of alcohol,*fn2 homicide by vehicle while driving under the influence of alcohol,*fn3 reckless driving*fn4 and driving at an unsafe speed.*fn5 Post-trial motions were denied, and Kostra was sentenced to prison for not less than three years nor more than six years on the conviction for homicide by vehicle while driving under the influence of alcohol. Kostra appealed.

Appellant's first argument is that the Commonwealth failed to prove that he had been the legal cause of Blackstock's death. He argues that the direct cause Blackstock's death was not the injuries received in the accident but the subsequent removal of life support systems used to keep Blackstock alive. We reject this argument.*fn6

It is correct, as appellant argues, that the Commonwealth must prove beyond a reasonable doubt each and every element of the offense, including a casual connection between death and the wrongful act. See Commonwealth v. Floyd, 499 Pa. 316, 317, 453 A.2d 326, 327 (1982); Commonwealth v. Green, 477 Pa. 170, 174 , 383 A.2d 877, 879 (1978). The Commonwealth must prove "beyond a reasonable doubt that [the] death occurred as a result of injuries received in the incident or of a chain of events stemming from the incident." Commonwealth v. Baker, 299 Pa. Super. 241, 247, 445 A.2d 544, 547 (1982). Causation is an issue of fact for the jury. Commonwealth v. Hicks, 466 Pa. 499, 504, 353 A.2d 803, 805 (1976). "A defendant's actions are the legal cause of death if they are a direct and substantial factor in bringing it about." Commonwealth v. Paquette, 451 Pa. 250, 254, 301 A.2d 837, 839 (1973). "So long as a defendant's are a direct and substantial factor in bringing about death, legal responsibility may be found." Commonwealth v. Matthews, 480 Pa. 33, 37, 389 A.2d 71, 73 (1978). A defendant cannot escape legal liability for homicide if his act starts an unbroken chain of causation which leads to death. See: Commonwealth v. Robinson, 468 Pa. 575, 584, 364 A.2d 665, 670 (1976); Commonwealth v. Stafford, 451 Pa. 95, 100, 301 A.2d 600, 604 (1973)

In the instant case there was evidence that the cause of death had been multiple injuries sustained in the automobile accident. These injuries set in motion a chain of circumstances directly resulting in Blackstock's death. This was sufficient to show that the accident had been a substatial factor in bringing about death and hence a legal cause of death. See: State v. Fierro, 124 Ariz. 182, 185, 603 P.2d 74, 77 (1979) ("The removal of the life support systems [where victim had suffered brain death] was not the proximate cause of death, the gunshot wounds were, and it was not error to find that the defendant was the cause of the victim's death."); State v. Inger, 292 N.W.2d 119, 124-125 (Iowa 1980)(where a victim had suffered brain death due to a serious altercation with defendant, sufficient evidence existed to find that the trauma inflicted by defendant was the proximate cause of victim's death; a possible intervening medical error, such as premature removal from a support system, was not a defense.).

Appellant contends that Blackstock was not brain dead when the life support system was removed. This is a tantalizing argument, but it must ultimately fail. At commonlaw, death occurred when repiration and circulation ceased. In more recent times, the medical profession has expanded its definition of death to include the cessation of all brain functions. this expanded definition recognizes the ability, nonexistent at common law, to monitor brain functions. It also recognizes that heroic measures now available to sustain life, such as the use of life support systems and organ transplants, were also unknown to the common law. See Generally: Lovato v. District Court, 198 Colo. 419, 425-29, 601 P.2d 1072, 1076-78 (1979); In re Haymer, 155 Ill. App. 3d 349, 350-352, 71 Ill. Dec. 252, 254-5, 450 N.E.2d 940, 942-943 (1983).

The legislatures of several states, together with the courts, have followed the medical community in accepting the cessation of brain functions as an equivalent of death. In some states, the courts have held that the cessation of brain fuctions is equivalent to death. See generally: People v. Eulo 63 N.Y.2d 341, 472 N.E.2d 286, 482 N.Y.S.2d 436 (1984). Other states have adopted the Uniform Determination of Death Act. Pennsylvania has adopted this Act which provides that "[o]nly an individual who has sustained either: (1) irreversible cessation of circulatory and respiratory functions; or (2) irreversible cessation all functions of the entire brain, including the brain stem, is dead." 35 P.S. ยง 10203

The Uniform Act requires a cessation of all functions of the brain, including the brain stem. What this means appears in the opinion of the Court in In re Haymer, supra, as follows:

The Uniform Act requires a cessation of all functions of the brain, including the brain stem. What this means appears in the opinion of the Court in In re Haymer, supra, as follows:

Where there is total brain death, the brain has no potential for recovery....The cerebral cortex is the site of the highest centers of human intelligence, those concerned with the higher perceptions, and with the processes of thinking, emoting and consciousness. It may well be that lack of oxygen flow to the brain for a short period will result in total and irreversible cessation of the cortical brain functions. However, loss of oxygenated blood flow for such a period may not have a terminal effect upon the brain stem or lower brain. It is this portion of the brain which controls respiration, heart rate, blood pressure and other purely biological functions. Thus, a patient may well be rendered unconscious and incapable of recovering consciousness and any capacity for thought, emotion, and intellectual perception, but may have the ability to breathe spontaneously and maintain pulse and circulation. In such a situation, the person has not sustained total brain death (D. Meyers, Medico-Legal Implications ...


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