Com. v. Cheeks

• Decision Date: 27 September 1966
• Citation: 423 Pa. 67,223 A.2d 291
• Parties: COMMONWEALTH of Pennsylvania v. Bernard CHEEKS, Appellant.
• Court: Pennsylvania Supreme Court

Page 291

223 A.2d 291

423 Pa. 67

COMMONWEALTH of Pennsylvania v. Bernard CHEEKS, Appellant.

Supreme Court of Pennsylvania.

Sept. 27, 1966.

Rehearing Denied Nov. 7, 1966.

Edward K. Nichols, Jr., Alexander Brodsky, Philadelphia, for appellant.

Joseph M. Smith, Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

EAGEN, Justice.

On May 22, 1964, after a nine-day trial, the appellant, Bernard Cheeks, was convicted by a jury of murder in the first degree and punishment was fixed at life imprisonment. Post trial motions were overruled and sentence imposed in accordance with the jury's verdict. From the judgment of sentence, this appeal was filed.

The crime involved the robbery and stabbing on October 11, 1963, of Joe Henry Howell by four young males on a public street in Philadelphia. Following the occurrence, Howell, 57 years of age and slow of gait as the result of a stroke, walked directly to his sister's home about five blocks distant. When he arrived, his appearance was described 'like he had been beat' and 'crying.' Very shortly after his arrival, he told his sister that four unknown boys had assaulted and robbed him, and that one of the boys was wearing a patch over one eye. ¹ Because he urinated in his clothes, it was insisted that he go to the upstairs bathroom and change into pajamas. Upon emerging from the bathroom, he called to his sister and said, 'those boys did cut me.' She then noticed he was bleeding slightly from the abdomen in the area of the navel. His statements to his sister, as above described, were admitted in evidence over objection at trial as part of the res gestae. This is assigned as error.

The rule permitting res gestae declarations to be introduced in evidence is an exception to the hearsay rule. The principle is based upon the rationale that a spontaneous declaration of an individual who has recently suffered an overpowering emotional and shocking experience is likely to be truthful. See, 1 Henry, Penna. Evidence, § 466 (1953). Such evidence is limited to declarations supporting the conclusion that the statements were spontaneous utterances of thought created by, or emanating from, the litigated act, and so near in time thereto as to exclude the possibility that they were the product of premeditation or design. See, Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952); Commonwealth v. Rumage, 359 Pa. 483, 50 A.2d 65 (1948); and, Commonwealth v. Cupps, 157 Pa.Super. 341, 43 A.2d 545 (1945). No definite time limit, or distance from the site of the crime, has been fixed by the courts in determining what spontaneous utterances are admissible as part of the res gestae. Each case has been judged on its own facts and circumstances: Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962), and cases cited therein. The length of time which has elapsed between when the declarations were uttered and when the occurrence took place is only one element to be considered in determining their spontaneity. See Commonwealth v. Noble, supra, and Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945).

In the instant case, the precise time sequence of events is not ascertainable from the record. However, it is clear that the entire series of events took place within forty-five minutes or, at the most, one hour. The attack occurred after eleven p.m. o'clock. The decedent arrived at his sister's home no later than 11:30 p.m. o'clock. Reconstructing the picture, as disclosed by the testimony, the conclusion is inevitable that the statements were spontaneously uttered, were directly related to the event and were not the result of reflection or design. Under these circumstances, their admission in evidence was not error. The fact that the statements were not made Immediately after the assault is not, in itself, controlling. See, Commonwealth v. Stokes, supra, and Commonwealth v. Harris, supra. This Court has previously approved the admission in evidence of such declarations when the time period involved was as long or longer than that herein. See, Commonwealth v. Soudani, 190 Pa.Super. 628, 155 A.2d 227 (1959), aff'd 398 Pa. 546, 159 A.2d 687 (1960), cert. denied 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56 (1924); and, Commonwealth v. Werntz, 161 Pa. 591, 29 A. 272 (1894). See also, Commonwealth v. Calderbank, 161 Pa.Super. 492, 55 A.2d 422 (1947).

The next contention is that the evidence did not establish that the stab wound was the cause of death.

The Commonwealth's medical trial testimony may be summarized as follows: Upon Howell's admission to the hospital at 2:10 a.m. o'clock in the early morning following the occurrence, an examination disclosed an obvious penetrating wound of the abdomen in the area of the umbilicus. Since the extent of the wound was not ascertainable from an exterior examination, an operation was deemed necessary and was performed. It disclosed a puncture of the abdominal cavity, measuring about one inch in length, and it also disclosed that the only interior damage therefrom was to the mesentery, a leaf of tissue attached to the intestines through which the blood vessels course and supply nourishment to these organs. However, during the operation the whole gastrointestinal tract was manually handled and checked for wounds.

In order to prevent a common post-operative complication, ² a 'Levin' tube was inserted in the patient through the nostril to the stomach to suction off damaging secretions and air that might accumulate in that organ. Following the operation and after coming out of the anesthesia, the patient, Howell, was uncooperative, disorientated, resisted treatment, demonstrated delirium tremens, hallucinations, wouldn't stay in bed and wandered into the hospital halls and the rooms of other patients. Out of precaution, he was then tied to the bed. However, he managed to pull out the tube three times and developed hiccups. ³

On October 15th, the abdomen became markedly distended. This followed a period during which the patient had continued to be uncooperative and had again extracted the tube. However, the abdominal distention was described as 'secondary to the operation, and not secondary to pulling out the tube.' It was also stated that the operation itself 'produced a temporary paralysis in the intestine which caused accumulation of the gas and fluids and it was necessary to remove the fluids to keep the man alive.'

As a result of the above described complication, another longer 'Cantor' tube was inserted. This had a bag of mercury at the end for weight purposes and had to be positioned under a fluoroscope or x-ray machine. Howell pulled out this tube on at least two occasions, the second of these instances occurred on October 18th, in the x-ray room, just as the process of inserting the tube was about completed. As a result a gag reaction immediately followed, causing a large amount of gastric material in the stomach to be sucked into the lungs. A tracheotomy was hurriedly performed without material result. Howell expired about 1:30 p.m. o'clock on the same day from suffocation, resulting in heart stoppage due to lack of oxygen in the lungs.

Under this proof, it is our studied conclusion that the question of causal connection was for the jury to resolve. The fact that the stabbing was not the immediate cause of death is not controlling. See, Commonwealth ex rel. Peters v. Maroney, 415 Pa. 553, 204 A.2d 459 (1964), and Commonwealth v. Williams, 304 Pa. 299, 156 A. 86 (1931). As pointed out in Peters, supra, one charged with homicide cannot escape liability merely because the blow he inflicted is not mortal, or the immediate cause of death. If his blow is the legal cause, i.e., if it started a chain of causation which led to the death, he is guilty of homicide. See, Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125 (1950); Commonwealth v. Eisenhower, 181 Pa. 470, 37 A. 521 (1897); and United States v. Hamilton, 182 F.Supp. 548 (D.C.1960).

In this case, the stabbing necessitated the operation; the operation was the direct cause of the stomach complication and abdominal distention; the insertion of the tubes was required to alleviate this condition and to save the victim's life. The fact that the victim, while in a weakened physical condition and disorientated mental state, pulled out the tubes and created the immediate situation, which resulted in his death, is not such an intervening and independent act sufficient to break the chain of causation or events between the stabbing and the death. See, Beale, The Proximate Consequences of an Act, 33 Harv.L.Rev. 633 (1920); Levitt, Cause, Legal Cause & Proximate Cause, 21 Mich.L.Rev. 34 (1922); Edgerton, Legal Cause, 72 U.Pa.L.Rev. 211 (1924); and McLaughlin, Proximate Cause, 39 Harv.L.Rev. 149 (1925).

The next assignment of error concerns the admission in evidence at trial of testimony of incriminating statements by the appellant while in police custody. In these statements, Cheeks admitted participation in the robbery, detailed the occurrence, and said that he was the one who stabbed Howell, but claimed the stabbing was accidental. Admittedly, no warning of the appellant's rights to remain silent or to have the assistance of counsel was given before or during the questioning. The case of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), is cited in support of appellant's contention that the evidence was (in the absence of such warnings) constitutionally tainted and, therefore, inadmissible. However, since the instant trial commenced (and in fact terminated) before June 22, 1964, the date of the Escobedo decision, that decision does not apply: Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). ⁴ The testimony was not inadmissible solely on the ground that the warnings mentioned were not given. See, Davis v....