Com. v. Green

• Decision Date: 23 March 1978
• Citation: 383 A.2d 877,477 Pa. 170
• Parties: COMMONWEALTH of Pennsylvania v. Derek GREEN, Appellant.
• Court: Pennsylvania Supreme Court

Page 877

383 A.2d 877

477 Pa. 170

COMMONWEALTH of Pennsylvania v. Derek GREEN, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 13, 1977.

Decided March 23, 1978.

[477 Pa. 173] Jack M. Myers, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Asst. Dist. Atty., for appellee.

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

OPINION

MANDERINO, Justice.

On October 14, 1974, appellant, Derek Green, was tried before a jury and found guilty of murder of the first degree and possession of an instrument of crime. Post-verdict motions were denied, and appellant was sentenced to life imprisonment on the murder conviction and to a consecutive sentence of two and one-half to five years on the weapons violation. This direct appeal of the murder conviction followed, and appellant's appeal of the weapons offense, filed in the Superior Court, was transferred and consolidated with his appeal of the murder conviction. We now affirm the judgments of sentence.

Appellant's conviction arose out of the apparent attempted robbery and shooting of one Ben White outside a Philadelphia taproom. After the shooting, the victim was hospitalized, and a kidney damaged by the gunshot had to be surgically removed. Less than forty-eight hours later, the victim was found dead in his hospital room, having suffocated on his own vomit.

Appellant first argues that the prosecution failed to sustain its burden of proving the cause of death beyond a reasonable doubt.

Of course the prosecution must always prove causation beyond a reasonable doubt. See, e. g., Commonwealth v. Ilgenfritz, 466 Pa. 345, 350, 353 A.2d 387, 390 (1976). In Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976), we reviewed the principles controlling when a defendant contends the prosecution's medical testimony does not sufficiently establish criminal causation:

"This Court has upon occasion found medical testimony too uncertain to establish criminal causation beyond a reasonable doubt. See Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968). It is clear, however, . . . that the Commonwealth is not required to prove that a merely hypothetical supervening event did not take place. See Commonwealth v. Williams, 450 Pa. 158, 299 A.2d 643 (1973). . . . Moreover, even if the wound inflicted by the accused is not in itself mortal and a subsequent event is found to be the immediate cause of death, the accused does not escape legal liability if his act started an unbroken chain of causation leading to the death. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Carn, 449 Pa. 228, 296 A.2d 753 (1972)." Id. at 584-85, 364 A.2d at 670.

In the instant case, the medical examiner who performed the autopsy testified that although the vomit being sucked into the deceased's lungs was the immediate cause of death, he was convinced beyond a reasonable doubt that the cause of death was the gunshot wound which in turn necessitated the surgery. It seems clear to us that appellant's conduct was a "direct and substantial factor in causing the death of the victim." Commonwealth v. Stafford, 451 Pa. 95, 97, 301 A.2d 600, 602 (1973). This is not a case where the prosecution established only that appellant's conduct "probably" caused the death, or only proved causation "with a reasonable degree of medical certainty." See Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 302 (1968); Commonwealth v. Williams, 476 Pa. 344, 382 A.2d 1202 (1978).

Appellant argues that it is "not only possible but probable that some act of gross negligence on the part of a doctor or a nurse was the act most directly causative of Ben White's death." We agree with appellant that intervening acts are always "possible." The prosecution, however, is not required to prove that a "hypothetical supervening event" did not take place. Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976). As to appellant's argument that it was "probable" that the gross negligence of a doctor or nurse intervened, there was absolutely no evidence of any negligence on the part of any doctor or nurse.

Where, as here, a victim is shot at close range necessitating the removal of a vital organ, where "post-operative complications" ultimately result in death, and where there is medical testimony opining unequivocally that the gunshot wound started in motion a chain of events which culminated in death, we are satisfied that a jury could conclude beyond a reasonable doubt that the gunshot wound inflicted by appellant was the legal cause of death. Compare Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976).

Appellant next argues that it was reversible error to allow the detective who recorded appellant's written confession to testify that appellant also read the confession into a tape recorder shortly before he was arraigned. Appellant contends that the prosecution should have been required to establish a foundation as to the recording's authenticity, and since the voluntariness of appellant's confession was crucial, permitting this testimony was highly prejudicial and requires the grant of a new trial.

The prosecution was not required to establish a foundation as to the recording's authenticity. The authenticity of a tape recording must only be established if the tape recording is introduced into evidence. See Commonwealth v. Smalls, 460 Pa. 436, 333 A.2d 853 (1975); United States v. Starks, 515 F.2d 112 (3d Cir. 1975).

Appellant contended at trial that his confession was involuntary. Evidence that appellant read the confession into a tape recorder was relevant evidence on the issue of voluntariness and, as the trial judge observed, relevant on the issue of whether appellant understood the content of the written confession which he earlier signed.

Appellant is correct in pointing out that evidence that the confession was read into a tape recording prejudiced his defense. That alone is not reason to exclude the evidence. All of the prosecution's evidence is intended to prejudice the defense. Simply because it is damaging to the defense is no reason to exclude the evidence. Commonwealth v. Smalls, supra.

Prejudicial evidence is inadmissible only if it violates rules concerning the admission of evidence. The only claim made here is that no reference can be made to a tape recording, even if not introduced into evidence, unless the recording is authenticated. There is no such rule, and no valid reason has been presented why such a rule should be established.

Appellant's next assignment of error involves the impeachment of appellant's credibility by the use of two prior convictions. Appellant was nineteen years old at the time of his trial. The two convictions were both within two years of the time of trial. Appellant relies on this Court's decision in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and claims that the trial court did not exercise the discretion which Bighum requires a trial court to exercise before allowing the use of prior convictions to impeach a defendant's credibility.

The nature of a trial court's discretionary responsibility, and the thrust of our decision in Bighum, was recently capsulized by the Superior Court in Commonwealth v. Flores, 247 Pa.Super. 140, 371 A.2d 1366, 1369-70 (1977):

"In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) our Supreme Court adopted the approach of Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965) and established that a balancing test is to be used in determining when prior convictions could be used to impeach a defendant's credibility and that this test was within the exercise of judicial discretion. The Luck court stressed this proposition when it stated, '(t)he matter is, we reiterate, one for the exercise of discretion; and, as is generally in accord with sound judicial administration, that discretion is to be accorded a respect appropriately reflective of the inescapable remoteness of appellate review.' 348 F.2d at 769. However, neither Luck nor Bighum grant the trial court absolute discretion in determining when prior convictions can be used to impeach a defendant's credibility, but rather the trial court's exercise of discretion is reviewable by an appellate court within certain considerations."

In Bighum, we identified those considerations as:

"(T)he age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; (and) the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction. ...