Com. v. Long

• Decision Date: 26 April 1993
• Citation: 425 Pa.Super. 170,624 A.2d 200
• Parties: COMMONWEALTH of Pennsylvania, v. David Allen LONG, Appellant.
• Court: Pennsylvania Superior Court

Page 200

624 A.2d 200

425 Pa.Super. 170

COMMONWEALTH of Pennsylvania, v. David Allen LONG, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 19, 1993.

Filed April 26, 1993.

Robert D. Sebastian, Pittsburgh, for appellant.

Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com. appellee.

Before KELLY, JOHNSON and HESTER, JJ.

JOHNSON, Judge:

David Allen Long appeals from the judgment of sentence entered following his convictions for Involuntary Manslaughter, Homicide by Watercraft, Recklessly Endangering Another Person, and Reckless Operation of Watercraft. We affirm.

On May 12, 1991, Mark Yates, the victim, went with his friends Rich Meyers, Melissa and Melinda Folmer, Heather Adams and Matt Austin to an abandoned pier on the shore of the Ohio River, a few miles north of the city of Pittsburgh, Pennsylvania. During that time, the victim quickly consumed two to three cans of beer. Shortly thereafter, a power boat operated by Long stopped offshore directly in front of the group of friends. Rich and Melinda swam out to the boat and climbed on board. The boat then headed off in the direction of Pittsburgh. A short while later, the boat returned with Rich and Melinda and the two friends swam safely to shore.

The victim and Melissa then attempted to swim out to the boat. The victim swam closer to Long's boat than did Melissa. As the victim approached the boat and attempted to climb on board, Long pulled the boat away from him. This happened three times. Long then started making circles in the water in front of the victim causing waves 3-5 feet in height which swept over the victim's head. Long caused the boat to circle several times, causing the victim to go under the water. When the victim was experiencing difficulty maintaining his head above the water, he started screaming for help. In response, Long and his companions on the boat started throwing beer cans at the victim. Finally, Long ceased circling and sped away, ignoring the victim's cries for help.

After the boat departed from the scene, the victim's friends entered the water and attempted to rescue him. Rich Meyers reached the victim but was unsuccessful in his efforts to save him. The victim sank beneath the water and was drowned.

The police were summoned to the scene and the victim's friends described the events that led to the victim's drowning and identified Long's boat. The police subsequently ascertained Long's identity. Long and his companions on the motor boat were summoned to the McKees Rocks police station the day after the incident to give statements about the victim's death. Long was then arrested and charged with regard to the victim's death.

Following a bench trial before the Honorable Robert E. Dauer, Long was convicted on the present charges. Post-trial motions were denied and this appeal followed.

Long presents four issues for our review:

1. Whether the evidence presented at trial was sufficient to prove that Long's actions were the legal cause of the victim's death.

2. Whether the trial court erred in admitting a videotape which depicted the operation of Long's boat.

3. Whether the trial court erred in admitting the testimony of the Commonwealth expert Richard Bradshaw.

4. Whether Long's conviction can be sustained in light of the contradictory evidence presented by the witnesses at trial.

First, Long contends that the evidence presented at trial was insufficient to establish that his actions were the legal cause of the victim's death. We disagree.

Our standard, in reviewing the sufficiency of the evidence, is "whether viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, and drawing all proper inferences favorable to the Commonwealth, the [fact finder] could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Badman, 398 Pa.Super. 315, 325-326, 580 A.2d 1367, 1372 (1990). Both direct and circumstantial evidence can be considered when assessing the sufficiency of the evidence. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990). It is in light of this standard that we will address Long's contentions.

First, Long divides his attack on the sufficiency of the evidence into several discrete sub-arguments, each of which attempts to refute the Commonwealth's position that Long's actions started a chain of causation which resulted in the victim's death. It is undisputed that the Commonwealth must prove a direct causal relationship between the acts of a defendant and the victim's death. Commonwealth v. Barnhart, 345 Pa.Super. 10, 28, 497 A.2d 616, 626 (1985), appeal denied, 517 Pa. 620, 538 A.2d 874, cert. denied, Barnhart v. Pennsylvania, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1988).

Our supreme court has long held that establishing causation under a tort theory is insufficient to impose criminal liability upon a person. Commonwealth v. Root, 403 Pa. 571, 575, 170 A.2d 310, 311 (1961). Rather, the Commonwealth must prove that the defendant's conduct was so directly and substantially linked to the actual result as to give rise to the imposition of criminal liability. Commonwealth v. Rementer, 410 Pa.Super. 9, 18, 598 A.2d 1300, 1304 (1991); 18 Pa.C.S. § 303. In Rementer, we set out a two part test which requires that: (1) the defendant's conduct must be an antecedent but for which the result in question would not have occurred, or that the victim's death was not entirely attributable to other factors, and (2) the results of the defendant's actions cannot be so extraordinarily remote or attenuated that it would be unfair to hold the defendant criminally responsible. Id. at 19-20, 598 A.2d at 1305.

In order to meet the requirements of the first part of the test, the defendant's conduct need not be the sole cause of the victim's death in order to establish a causal connection. Id. Criminal responsibility may be properly assessed against an individual whose conduct was a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result. Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889, appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 (1974). The second part of the test is met when the victim's death is the natural or foreseeable consequence of the defendant's actions. Rementer, supra; Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). Where the fatal result was an unnatural or obscure consequence of the defendant's actions, justice would prevent us from allowing the result to have an impact upon a finding of the defendant's guilt. Rementer, 410 Pa.Super. at 23, 598 A.2d at 1306-1307.

Here, the immediate cause of the victim's death was by drowning. In his first sub-argument, Long asserts that it was the victim's own entry into the water, after consuming alcohol, which caused his death. This argument is not supported by the record.

Testimony presented by various witnesses reflects that the victim was a better than average swimmer and that prior to Long circling in front of the victim with his boat, the victim had experienced no difficulty swimming. The medical examiner's report indicated that there was unabsorbed alcohol in the victim's stomach and that the victim's blood alcohol level was only about 0.02%. Further, there was no testimony indicating that the victim displayed any signs of intoxication or that he was experiencing any motor instability or incapacity, prior to Long's actions with the boat.

However, even if the victim had been intoxicated upon entering the water, contributory negligence of the victim is not a defense in a criminal action. See, e.g., Commonwealth v. Heck, 341 Pa.Super. 183, 213, 491 A.2d 212, 227 (1985) (Contributory negligence is not a defense to a charge of homicide by vehicle). After a thorough review of the record, we conclude that the mere fact that the victim entered the water after consuming alcohol is insufficient to relieve Long from the responsibility for his actions, which began the chain of causation resulting in the victim's death.

In his second sub-argument, Long contends that since the victim was still alive and crying out for help at the time that Long's boat left the scene, his actions could not have caused the victim's death. Long asserts that the victim's death was solely due to the rescue effort on the part of Rich Meyers. We find no merit in these contentions.

The courts of this Commonwealth have held on numerous occasions that a defendant can be held responsible for the death of a victim despite the fact that the victim does not die immediately from the defendant's actions but, rather, dies from the foreseeable consequences of those actions. See, e.g., Commonwealth v. Rementer, supra; Commonwealth v. Paquette, supra; Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966); Commonwealth v. Skufca, supra.

In Commonwealth v. Skufca, supra, a mother went out for a social evening, leaving her two small children, aged three years and ten months, alone and locked in the bedroom of their apartment. During the course of the mother's absence, a fire started in the building. The children suffocated in the fire, despite rescue efforts, due to the manner in which the door was fastened. There, we upheld the mother's conviction on charges of involuntary manslaughter, holding that while the direct cause of the children's death was smoke inhalation, the legal cause of the children's death was the unlawful conduct by mother in leaving her children unattended in circumstances that prevented their rescue from the fire. Skufca at 133, 321 A.2d at 894. We stated in response to the mother's allegation that she was not the legal cause of the children's death, "it has never been the law of this Commonwealth that criminal responsibility must be confined to a sole or immediate cause of death." Skufca at 132, 321 A.2d at 894.

Similarly in Commonwealth v. Cheeks, supra, the defendant...