Com. v. Kostra

• Decision Date: 31 December 1985
• Docket Number: No. 1281,1281
• Citation: 349 Pa.Super. 89,502 A.2d 1287
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth Albert KOSTRA, Appellant. Pitts. 1984.
• Court: Pennsylvania Superior Court

Page 1287

502 A.2d 1287

349 Pa.Super. 89

COMMONWEALTH of Pennsylvania v. Kenneth Albert KOSTRA, Appellant.

No. 1281 Pitts. 1984.

Superior Court of Pennsylvania.

Argued May 14, 1985.

Filed Dec. 31, 1985.

David J. Graban, Sharon, for appellant.

Charles S. Hersh, Asst. Dist. Atty., Hermitage, for Commonwealth, appellee.

Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.

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, ¹ driving while under the influence of alcohol, ² homicide by vehicle while driving under the influence of alcohol, ³ reckless driving ⁴ and driving at an unsafe speed. ⁵ 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 of 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. ⁶

It is correct, as appellant argues, that the Commonwealth must prove beyond a reasonable doubt each and every element of the offense, including a causal 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 actions 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 substantial 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 the 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 common law, death occurred when respiration 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, 1076-1078 (1979); In re Haymer, 115 Ill.App.3d 349, 350-52, 71 Ill.Dec. 252, 254-5, 450 N.E.2d 940, 942-943 (1983).

The legislatures of the 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 functions 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 of all functions of the entire brain, including the brain stem, is dead." 35 P.S. § 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:

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 of Death and Dying 12, 25-27 (1981)), and thus would not have "irreversible cessation of total brain function according to usual and customary standards of medical practice." (Ill.Rev.Stat.1981, Ch. 110 1/2, par. 302(b) [the Uniform Anatomical Gift Act] ).

Id. at 353 n. 8, 71 Ill.Dec. at 256 n. 8, 450 N.E.2d at 944 n. 8.

In the instant case, Blackstock's final days were described via stipulation of counsel introduced at trial as follows:

(3) On the night of April 5, 1983, and during the day of April 6, 1983, the patient's condition deteriorated. His inter-cranial pressure markedly increased and exceeded his systemic blood pressure. He did not respond to measures undertaken to correct his inter-cranial pressure increase. He became totally unresponsive to any stimuli. He showed absolutely no sign of any neurological activity. Blood pressure also began to decrease down to 80 systolic. He was placed on dropamine-drip. Vital signs were maintained with dropamine infusion. He was elevated with the electrocardiogram which showed possible cerebral activity. However, this was not conclusive of absence of artifact. A cerebral CT scan was performed. This showed brain stem hemorrhage. A brain scan was performed and showed no inter-cranial blood flow. The entire clinical picture and studies performed showed that the patient had brain death. The family was explained the lack of any hope for any recovery. They requested that life-supporting measures be stopped.

(4) Russell Blackstock died in Northside Hospital on April 6, 1983. The final diagnosis was auto accident--multiple injuries, brain stem contusion and hemorrhage, splinetic lacerations.

* * *

(7) After examination of the deceased, Dr. Tochtenhagen [the Deputy Trumbell County Coroner] determined the cause of death to be brain stem hemorrhage and inter-cranial hemorrhage caused by the injuries resulting from the traffic accident of March 29, 1983.

(N.T. 11/21-22/83, at pp. 79-81) (emphasis added).

While this stipulation does not explicitly refer to the death of the brain stem, a review of the circumstances surrounding the victim's death suggests no other conclusion than that the brain and the brain stem were dead. The brain stem controls respiratory and circulatory functions. Blackstock's respiratory and circulatory functions, however, were being artificially maintained by life-supporting measures. When the life-supporting measures were suspended, death ensued. Thus it is evident that the brain stem was dead even before the life-support systems were removed, for the respiratory and circulatory functions were nonexistent without life-support measures. The evidence established, therefore, that Blackstock was legally dead even before heroic life support procedures were discontinued.

Appellant also contends that judgment should have been arrested because he was not tried within the time constraints of Pa.R.Crim.P. 1100. An extension should not have been granted, he argues, when a continuance of the trial was granted because of the hospitalization...