Com. v. Daniels

• Decision Date: 27 July 1978
• Citation: 480 Pa. 340,390 A.2d 172
• Parties: COMMONWEALTH of Pennsylvania v. William DANIELS, Appellant.
• Court: Pennsylvania Supreme Court

Page 172

390 A.2d 172

480 Pa. 340

COMMONWEALTH of Pennsylvania v. William DANIELS, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 17, 1977.

Decided July 27, 1978.

William C. Costopoulos, Lemoyne, Richard D. Ballou, Honesdale, for appellant.

Nicholas A. Barna, Dist. Atty., Stephen G. Bresset, Honesdale, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

POMEROY, Justice.

Appellant William Daniels, charged with murder in connection with the death of Jonathan D. Smith, ¹ was tried before a jury in the Court of Common Pleas of Wayne County. The jury returned a verdict of guilty of voluntary manslaughter. Following the denial of post-trial motions and the entry of judgment of sentence, a direct appeal was brought here. ² We will affirm.

A summary of the evidence upon which the jury could properly have based its verdict, see, E. g., Commonwealth v. Hubbard, 472 Pa. 259, 266, 372 A.2d 687 (1977); Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824 (1975), is necessary to an understanding of appellant's claims. The record discloses that in 1967 Jonathan Smith, 21 years of age, was a resident at the Hillcrest School, a privately operated boarding school for retarded children and juveniles near Hawley, Pennsylvania. William Daniels was employed at the school as a night attendant. According to the testimony of numerous former residents at the school, Smith was a target of a pattern of physical abuse either directed by or performed by Daniels. Smith was beaten from time to time, either by Daniels or by others acting at his direction, and once suffered a broken arm as a consequence. On at least one occasion Smith was tied in a spread-eagle fashion to his bed. He was deprived of food. He was put out of the school's dormitory while partially clothed or naked, and exposed to the cold for varying lengths of time. One distinctive form of abuse was "the drink," in which Smith was placed in a bathtub and forcibly held under water and deprived of air for a period of time.

Repeated abuses of this sort continued until Smith's death on the morning of May 19, 1967. Dr. Hobart Owens, the school's physician, testified that Smith had been suffering from influenza pneumonia for some ten days prior to his death; other witnesses testified that he had been ill for some two weeks. During this period, Smith was running a high temperature; other symptoms included coughing, abnormal sweating, shaking and lethargy. Despite this illness, appellant ordered Smith on the night before his death to "run wetters," ³ a form of punishment. Some time later, Norman Murray and James Sipes, two residents of the school, were ordered by appellant to take Smith from the dormitory and throw him naked over a nearby embankment. The school was located on high ground and witnesses testified that the weather at the time was cold, with snow on the ground. Smith was out of doors for a period from one-half hour to an hour. When he was allowed to return to the building, he was shivering noticeably and asked for medical attention. Instead, Daniels ordered him to resume "running wetters." One witness testified that Smith was subjected to "the drink" on the same night; another testified that the last such incident was one or two nights before Smith's death.

Several hours after these events, Smith went to the bathroom, asked for a drink of water, collapsed and died. Appellant, who had told Smith ". . . you better not die on my shift," had already left the premises, leaving Murray in charge until the day shift arrived. On Smith's death certificate Dr. Owens stated the cause of death to be a pulmonary embolism. Smith's body, being unclaimed, was sent to Temple University Medical School in Philadelphia on the day of his death, and was eventually cremated. No autopsy was ever performed.

The Commonwealth's chief medical witness was Dr. Halbert Fillinger, a forensic pathologist. He testified that in his opinion the cause of Smith's death was bronchial pneumonia, which was the result of the following "multiple contributing factors:" "the dehydration, the physical abuse which has weakened this deceased . . . a prior ongoing infection . . . weakening him, making him more susceptible to the effects of abuse both physical and climatologic, and the accelerating process of pneumonia causing his death." Dr. Fillinger further testified that, assuming the truth of the events described by the former residents, "(t)he circumstances described . . . both in times several days to several weeks prior to his demise and specifically on the night of his death, indicate clearly particularly those circumstances that occurred shortly before his death a series of episodes which accelerated his diseased process and brought about his death," and that Smith's exposure to the cold on the night before he died "had a marked accelerating effect upon his demise." The Commonwealth produced another medical witness, Dr. Marvin Aranson, who also qualified as an expert in forensic pathology. It was Dr. Aranson's opinion that the cause of Smith's death was "a pneumonia due to the exposure to the water ("the drink"), the exposure to the cold temperatures, and aggravated by the other factors of beatings and starvation." He also testified that, in his opinion, "(t)he non-medical treatment of beatings, starvation and exposure would be that which made an otherwise healthy 23-year old or 22-year old die from this disease, which healthy people in this age group do not usually die from."

I.

Appellant's challenge to the sufficiency of the evidence is not directed to the proof of malice, ⁴ but rather to the medical evidence of causation. This argument is in two parts, neither of which we can accept. As to the first part, which is that the Commonwealth's proof impermissibly deviated from the allegations of the indictment, see Commonwealth v. Pope, 455 Pa. 384, 391, 317 A.2d 889 (1974), the record shows that this issue was not raised before the court below on post-verdict motions; it is therefore waived. Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978); Commonwealth v. Carr, 471 Pa. 86, 369 A.2d 1207 (1977); Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975). Compare Commonwealth v. Williams, 476 Pa. 557, 570-571, 383 A.2d 503, 509-10 (1978). The second part of the argument, which is that Dr. Fillinger's testimony was insufficient to warrant the jury's conclusion that death occurred by means of a criminal agency, is similarly misplaced, for it ignores the clearly sufficient evidence given by Dr. Aranson. ⁵

II.

We next consider appellant's argument that Dr. Fillinger was permitted to base his opinion on hearsay and that reversible error was thereby committed.

Dr. Fillinger testified that he had conducted an investigation into the death of Jonathan Smith. His testimony showed that he had made use of the following sources in arriving at his opinion: interviews with former residents of the school (all of whom testified for the Commonwealth concerning Smith's symptoms); certain hospital records (Commonwealth's Exhibit # 9, the hematology and serology reports); the death certificate (Commonwealth's Exhibit # 8); a letter from and a conversation with a person who had performed a dissection of a body believed to be that of the deceased; ⁶ the testimony the doctor had heard during the trial; and certain police reports concerning Smith's death. Dr. Fillinger was asked whether, as a result of this investigation, he had come to an opinion regarding the cause and manner of Smith's death. He answered in the affirmative and, over objection, was permitted to testify to that opinion. The doctor later testified in answer to a hypothetical question that assuming the testimony of the Commonwealth's witnesses to be true, the incidents of physical and other abuse set forth by those witnesses "indicate clearly" a direct causal relationship between the abuse and Smith's death. No objection was made to this hypothetical question.

Appellant largely relies on cases holding that an expert should not be permitted to express an opinion in response to a hypothetical question which is based on assumed facts not of record or warranted by the evidence. See, E. g., Commonwealth v. Paskings, 447 Pa. 350, 355, 290 A.2d 82 (1972); Murray v. Siegal, 413 Pa. 23, 29-30, 195 A.2d 790 (1963). But no such objection was made, or indeed could properly be made, to the hypothetical question asked of Dr. Fillinger in this case, which was grounded exclusively on the testimony of witnesses who had already been heard. See, E. g., Abbott v. Steel City Piping Co., 437 Pa. 412, 421-22, 263 A.2d 881 (1970); Battistone v. Benedetti, 385 Pa. 163, 169-70, 122 A.2d 536 (1956); Hampton v. S. S. Kresge Co., 224 Pa.Super. 543, 551-52, 307 A.2d 366 (1973). Thus the objection that the medical evidence was inadmissible because based on hearsay must necessarily be viewed as directed to the bases, which are recited above, for Dr. Fillinger's opinion on the cause and manner of Smith's death.

What we said in Reardon v. Meehan, 424 Pa. 460, 465-66, 227 A.2d 667, 670-71 (1967), is pertinent here:

"The employment of testimony of an expert rises from necessity, a necessity born of the fact that the subject matter of the inquiry is one involving special skills and training beyond the ken of the ordinary layman: (citations omitted.) . . . The qualifications of this witness and the competency of his testimony, to a considerable extent, were matters within the discretion of the court below. See: Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 301, 186 A. 125 (1936); Stevenson v. East Deer Township, 379 Pa. 103, 106, 108 A. 815 (1954)."

Accord: Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Commonwealth v. Nasuti, 385 Pa. 436, 443, 123 A.2d 435, 438 (1956) ("Expert testimony is admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the range...