Com. v. Pestinikas

• Decision Date: 10 December 1992
• Citation: 421 Pa.Super. 371,617 A.2d 1339
• Parties: COMMONWEALTH of Pennsylvania v. Walter PESTINIKAS, Appellant. COMMONWEALTH of Pennsylvania v. Helen PESTINIKAS, Appellant.
• Court: Pennsylvania Superior Court

Page 1339

617 A.2d 1339

421 Pa.Super. 371

COMMONWEALTH of Pennsylvania v. Walter PESTINIKAS, Appellant.

COMMONWEALTH of Pennsylvania v. Helen PESTINIKAS, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 12, 1991.

Decided Dec. 10, 1992.

Harold Kane, Philadelphia, for appellants.

Michael J. Barrasse, Dist. Atty., Scranton, for Com., appellee.

Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, amicus curiae.

Before WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.

WIEAND, Judge:

The principal issue in this appeal is whether a person can be prosecuted criminally for murder when his or her failure to perform a contract to provide food and medical care for another has caused the death of such other person. The trial court answered this question in the affirmative and instructed the jury accordingly. The jury thereafter found Walter and Helen Pestinikas guilty of murder of the third degree in connection with the starvation and dehydration death of ninety-two (92) year old Joseph Kly. ¹ On direct appeal from the judgment of sentence, ² the defendants contend that the trial court misapplied the law and gave the jury incorrect instructions. They argue, therefore, that they are entitled to an arrest of judgment because of the insufficiency of the evidence against them or at least a new trial because of the trial court's erroneous instructions to the jury.

The trial of this case began on November 24, 1986 and was concluded by the return of the jury's verdict on February 12, 1987. Only a portion of the evidence presented during this lengthy trial has been transcribed and certified to this Court for review. It is the responsibility of appellants "to provide a complete and comprehensive record to the reviewing court for the purposes of appeal." Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). See: Pa.R.A.P. 1911(a) and (d). Appellants' duty was "to order the transcript required and ascertain its presence in the record prior to certification for appeal." Commonwealth v. Osellanie, 408 Pa.Super. 472, 475, 597 A.2d 130, 131 (1991). A reviewing court "may only consider facts which have been duly certified in the record on appeal." Commonwealth v. Buehl, 403 Pa.Super. 143, 148, 588 A.2d 522, 524 (1991). See also: Commonwealth v. Lowry, 385 Pa.Super. 236, 246, 560 A.2d 781, 785-786 (1989). Although appellants' failure to provide us with a complete transcript has impaired our ability to conduct meaningful review of several additional issues raised by appellants, the record now before us does not prevent a determination of the principal issues which appellants have raised.

Joseph Kly met Walter and Helen Pestinikas in the latter part of 1981 when Kly consulted them about pre-arranging his funeral. In March, 1982, Kly, who had been living with a stepson, was hospitalized and diagnosed as suffering from Zenker's diverticulum, a weakness in the walls of the esophagus, which caused him to have trouble swallowing food. In the hospital, Kly was given food which he was able to swallow and, as a result, regained some of the weight which he had lost. When he was about to be discharged, he expressed a desire not to return to his stepson's home and sent word to appellants that he wanted to speak with them. As a consequence, arrangements were made for appellants to care for Kly in their home on Main Street in Scranton, Lackawanna County.

Kly was discharged from the hospital on April 12, 1982. When appellants came for him on that day they were instructed by medical personnel regarding the care which was required for Kly and were given a prescription to have filled for him. Arrangements were also made for a visiting nurse to come to appellants' home to administer vitamin B-12 supplements to Kly. Appellants agreed orally to follow the medical instructions and to supply Kly with food, shelter, care and the medicine which he required.

According to the evidence, the prescription was never filled, and the visiting nurse was told by appellants that Kly did not want the vitamin supplement shots and that her services, therefore, were not required. Instead of giving Kly a room in their home, appellants removed him to a rural part of Lackawanna County, where they placed him in the enclosed porch of a building, which they owned, known as the Stage Coach Inn. This porch was approximately nine feet by thirty feet, with no insulation, no refrigeration, no bathroom, no sink and no telephone. The walls contained cracks which exposed the room to outside weather conditions. Kly's predicament was compounded by appellants' affirmative efforts to conceal his whereabouts. Thus, they gave misleading information in response to inquiries, telling members of Kly's family that they did not know where he had gone and others that he was living in their home.

After Kly was discharged from the hospital, appellants took Kly to the bank and had their names added to his savings account. Later, Kly's money was transferred into an account in the names of Kly or Helen Pestinikas, pursuant to which moneys could be withdrawn without Kly's signature. Bank records reveal that from May, 1982, to July, 1983, appellants withdrew amounts roughly consistent with the three hundred ($300) dollars per month which Kly had agreed to pay for his care. Beginning in August, 1983 and continuing until Kly's death in November, 1984, however, appellants withdrew much larger sums so that when Kly died, a balance of only fifty-five ($55) dollars remained. In the interim, appellants had withdrawn in excess of thirty thousand ($30,000) dollars.

On the afternoon of November 15, 1984, when police and an ambulance crew arrived in response to a call by appellants, Kly's dead body appeared emaciated, with his ribs and sternum greatly pronounced. Mrs. Pestinikas told police that she and her husband had taken care of Kly for three hundred ($300) dollars per month and that she had given him cookies and orange juice at 11:30 a.m. on the morning of his death. A subsequent autopsy, however, revealed that Kly had been dead at that time and may have been dead for as many as thirty-nine (39) hours before his body was found. The cause of death was determined to be starvation and dehydration. Expert testimony opined that Kly would have experienced pain and suffering over a long period of time before he died.

At trial, the Commonwealth contended that after contracting orally to provide food, shelter, care and necessary medicine for Kly, appellants engaged in a course of conduct calculated to deprive Kly of those things necessary to maintain life and thereby cause his death. The trial court instructed the jury that appellants could not be found guilty of a malicious killing for failing to provide food, shelter and necessary medicines to Kly unless a duty to do so had been imposed upon them by contract. The court instructed the jury, inter alia, as follows:

In order for you to convict the defendants on any of the homicide charges or the criminal conspiracy or recklessly endangering charges, you must first find beyond a reasonable doubt that the defendants had a legal duty of care to Joseph Kly.

There are but two situations in which Pennsylvania law imposes criminal liability for the failure to perform an act. One of these is where the express language of the law defining the offense provides for criminal [liability] based upon such a failure. The other is where the law otherwise imposes a duty to act.

Unless you find beyond a reasonable doubt that an oral contract imposed a duty to act upon Walter and Helen Pestinikas, you must acquit the defendants.

Appellants contend that this was error.

The applicable law appears at 18 Pa.C.S. § 301(a) and (b) as follows:

(a) General rule.--A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

(b) Omission as basis of liability.--Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

(1) the omission is expressly made sufficient by the law defining the offense; or

(2) a duty to perform the omitted act is otherwise imposed by law.

With respect to subsection (b), Toll, in his invaluable work on the Pennsylvania Crimes Code, has commented

... [Subsection (b) ] states the conventional position with respect to omissions unaccompanied by action as a basis of liability. Unless the omission is expressly made sufficient by the law defining the offense, a duty to perform the omitted act must have been otherwise imposed by law for the omission to have the same standing as a voluntary act for purposes of liability. It should, of course, suffice, as the courts now hold, that the duty arises under some branch of the civil law. If it does, this minimal requirement is satisfied, though whether the omission constitutes an offense depends as well on many other factors.

Toll, Pennsylvania Crimes Code Annotated, § 301, at p. 60, quoting Comment, Model Penal Code § 2.01 (emphasis added).

In State v. Brown, 129 Ariz. 347, 631 P.2d 129 (1981), the Court of Appeals for Arizona affirmed a manslaughter conviction of the operator of a boarding home in connection with the starvation death of a ninety-eight year old resident. The Arizona Court interpreted a statutory provision which is similar to Section 301 of the Pennsylvania Crimes Code in the following manner:

As stated in A.R.S. Sec. 13-201 and demonstrated by the case law, the failure to perform a duty imposed by law may create criminal liability. In the case of negligent homicide or manslaughter, the duty must be found outside the definition of the crime itself, perhaps in another statute, or in the common law, or in a contract. The most commonly cited statement of the rule is found in People v. Beardsley, 150 Mich. 206, 113 N.W. 1128 (1907):

"The law recognizes that under some...