Commonwealth v. Brown
| Decision Date | 14 March 1978 |
| Docket Number | 187477,Criminal Action |
| Citation | 6 Pa. D. & C.3d 627 |
| Parties | Commonwealth v. Brown |
| Court | Pennsylvania Commonwealth Court |
Robert C. Houpt, for Commonwealth.
John J. Duffy, for defendant.
Petition for writ of habeas corpus.
We are called upon to determine whether a person causing the death of a 36-week-old fetus in utero may be charged with criminal homicide under the Crimes Code of Pennsylvania (" Crimes Code" ). [1] The question is posed within the framework of a petition for a writ of habeas corpus, filed by defendant who is presently incarcerated in lieu of bail upon charges of the murder and manslaughter of the fetus.
The facts giving rise to the instant charges are quickly gleaned from the transcript of defendant's preliminary hearing, and for the purpose of deciding the narrow issue before us, were agreed upon by counsel for the parties.
On October 21, 1977, defendant, Stephen Craig Brown, stabbed his wife, Patricia Brown, 12 times, wounding her fatally in the neck, chest, abdomen and heart. Each of the wounds, inflicted with a large kitchen knife, penetrated Mrs. Brown's body to a depth of five to six inches. Mrs. Brown died within minutes of the attack.
At the time of the incident, Mrs. Brown was pregnant, carrying a viable male fetus then 36 to 38 weeks in gestation. As the result of wounds to the abdomen, liver and intestine of the fetus inflicted by defendant as he stabbed his wife in the lower abdomen, and maternal wounds, the fetus, called " Baby Boy Brown," died in the mother's uterus.
The testimony of the Commonwealth's forensic pathologist at the preliminary hearing established that had the fetus been born naturally, or delivered artificially immediately prior to the incident, it could have survived independently of its mother, absent the wounds inflicted by defendant. No air or other evidence of respiration or expansion was found in the lungs of the fetus, and when examined, the umbilical cord, although lacerated during the attack, was in place and attached.
Following the incident, defendant was arrested and charged in two criminal complaints with criminal homicide, the first charging criminal homicide of the mother, Patricia Brown, and the second, criminal homicide of the fetus, Baby Boy Brown.
Defendant, in his petition, contends that he is illegally detained upon the charge of homicide of Baby Boy Brown as, he argues, a fetus not yet born, is not a " human being" as that term is used in the Crimes Code, and cannot be the victim of a homicide. Restated, defendant argues that an act of " feticide" [2] or " infanticide" [3] or " abortional homicide," [4] as defendant's conduct is variously described, is not a criminal homicide in Pennsylvania, and he may not, therefore, be detained upon such charge.
Defendant has been charged with criminal homicide under the Crimes Code in that he did allegedly murder or commit manslaughter upon Baby Boy Brown, a fetus 36 to 38 weeks in gestation. In order to determine whether such act is encompassed within the criminal homicide provisions of the Crimes Code, it is necessary that we interpret and construe the Crimes Code endeavoring thereby to determine whether the legislature of Pennsylvania intended to make the killing of a viable fetus an act of murder. At the same time, we also examine other authorities on the subject.
Section 2501(a) of the Crimes Code, 18 C.P.S.A. § 2501(a), defines criminal homicide in the following language: " (a) Offense defined.-A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being ." (Emphasis supplied.)
The Crimes Code then classifies criminal homicide into three general subclassifications:
The subclassification " murder" is itself further divided into three degrees: murder of the first degree, murder of the second degree, and murder of the third degree. Id. § 2502, 18 C.P.S.A. § 2502. [5]
Murder of the first and second degrees under the Crimes Code, together, correspond to murder of the first degree as it was under The Penal Code of 1939. [6] Murder of the first degree under the Crimes Code is an intentional killing, and murder of the second degree is felony murder, both formerly encompassed in the crime of murder of the first degree under The Penal Code of 1939. Murder of the third degree under the Crimes Code, described as " all other kinds of murder," now substitutes for murder of the second degree under The Penal Code of 1939, and is described in the same language: Com. v. Polimeni, 474 Pa. 430, 378 A.2d 1189, 1194 (1977).
Thus, the Crimes Code creates one principal homicide offense, that of criminal homicide, and the several types of homicide-murder of the three degrees, voluntary manslaugher and involuntary manslaughter-are constituent subsidiary offenses within the principal offense of criminal homicide: Com. v. Polimeni, supra, at 440, 378 A.2d at 1194-95.
Recalling again that one must be a human being in order to be the victim of a criminal homicide under the Crimes Code, we observe that the words are not defined in section 2501, describing criminal homicide, or in section 2502, describing the degrees of murder. Neither are they defined in any other section of the Crimes Code. [7] Nor, do we note, is the word " murder" defined in the Crimes Code. We must therefore search elsewhere to find the definitions of the words and the origin of sections 2501 and 2502 of the Crimes Code.
Section 2502, relating to murder of the three degrees, merely distinguishes among the degrees, but does not, as we have noted, attempt to define murder itself. As we have also observed, however, section 2502 of the Crimes Code is nearly identical to the language of The Penal Code of 1939 describing the offense of murder. Our Supreme Court has observed this similarity, as well, and has accordingly said:
" When we read Section 2502(a) and (b) [footnote omitted] together, it becomes apparent that the Legislature followed the same pattern as that used in the drafting of the previous murder section found at Section 701 of the 1939 Code. . . This virtual adoption of the former Section 701 provides the clearest possible indication of a legislative intent to incorporate [in the Crimes Code] the existing law of murder [footnote omitted]. . ." (Emphasis supplied.) Com. v. Allen, 475 Pa. 165, 379 A.2d 1335, 1339 (197). Accordingly, we look to The Penal Code of 1939, and again we discover that murder is not defined.
Our Supreme Court has recognized this omission, as well, and has accordingly held on a number of occasions that the definition of murder is to be derived from the common law. " . . . However, since this statutory classification [in The Penal Code of 1939] merely categorizes murder into two degrees, it is to the common law that one must look for the definition of murder . . ." Com. v. Yuknavich, 448 Pa. 502, 506, 295 A.2d 290, 292 (1972). (Emphasis supplied.)
And in Com. v. Redline, 391 Pa. 486, 137 A.2d 472 (1958): " . . . The so-called murder statute of this State [Penal Code of 1939] is but a categorizing of common law murder into two degrees. . ." Id. at 492, 137 A.2d at 475.
Finally, we observe that section 107(b) of the Crimes Code abolishes common law crimes in Pennsylvania and provides that no conduct constitutes a crime unless it is a crime under the Crimes Code or another statute of the Commonwealth. At the same time, in Toll, Pennsylvania Crimes Code Annotated, § 107, at 28, the reporter comments pertinently: " Although the Crimes Code abolishes common law offenses, it does not abolish the common law definitions except insofar as inconsistent with the statute." Accordingly, we must look to the common law to determine whether an unborn fetus can be the subject of murder, or, stated in the context of the case at bar, whether an unborn fetus is a " human being" as those words appear in section 2501 of the Crimes Code.
The Supreme Court of Pennsylvania has frequently said that the definition of murder at common law is not only best articulated, but was first adopted into the jurisprudence of Pennsylvania in and by Com. v. Drum, 58 Pa. 9 (1868). [8]
In Drum, murder was defined by Justice Agnew in his charge to the jury, [9] and during the course of his charge Justice Agnew instructed the jury: " . . . At the common law murder is described to be, when a person of sound memory and discretion unlawfully kills any reasonable creature in being . . ." Id. at 15. (Emphasis supplied.) Referring to that specific instruction, the court in Redline said: " . . . 'the reasonable creature in being' specified in the common law definition of murder, as stated in the Drum case, was none other than the human being whose death at the hands of another is still necessary to constitute a homicide. . ." supra at 493, 137 A.2d at 475. (Emphasis supplied.)
Thus, as we observe, the words " human being" with which we are concerned at bar were equated by Redline with the words " reasonable creature in being," as the latter phrase derives from the common law. Beyond this, however, neither Drum nor Redline provide a definitive explication of either phrase. We must then endeavor to seek further guidance by examining the common law to which Drum refers.
Commenting upon the definition of murder at common law as expressed by Justice Agnew in Drum, the court in Redline said: " . Such is substantially the definition of murder which ...
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