Commonwealth v. Cotton

487 A.2d 830, 338 Pa. Super. 20, 1984 Pa. Super. LEXIS 7155

• Court: Supreme Court of Pennsylvania
• Decided: December 21, 1984
• Docket: 1979 Philadelphia, 1982
• Status: Published

Opinions

CAVANAUGH, Judge:

This is an appeal from a judgment of sentence imposed by the Common Pleas Court, Philadelphia County on June 29, 1982. After a non-jury trial, appellant, Leroy Cotton, was found guilty of murder in the second degree, robbery, and criminal conspiracy.¹ On appeal, Cotton maintains that the evidence was insufficient to show the causation element of second degree murder. Appellant contends that as a matter of law, the Commonwealth’s evidence was insufficient to show that the victim’s death occurred from his conduct while in the commission of an alleged robbery. Appellant also claims that the evidence was insufficient to support the robbery conviction thus nullifying the basis for the felony murder conviction. In addition, appellant argues that both trial and post-trial counsel provided ineffective assistance. These claims include failure to preserve meritorious issues for appellate review, failure to call character witnesses, and calling appellant to the stand before other defense witnesses. We disagree with appellant’s contentions and, therefore, affirm the lower court.

The convictions arise from events that transpired on March 20,1980 near 16th and Blavis Streets in Philadelphia. An eyewitness, Shirley Brockington, saw appellant, Leroy Cotton, and two other males in an altercation with Mr. Longin Markiw. Miss Brockington testified that the two unnamed men were standing on either side of Mr. Markiw while appellant struck the victim in the chest. The two men wrestled Mr. Markiw to the ground. One of the three men ripped a rear pocket on Mr. Markiw’s trousers. After the assailants fled the scene, Miss Brockington went to give assistance to the victim. She testified that Mr. Markiw appeared to be sick and that he was holding his chest and his pants pocket. Miss Brockington then walked the victim first to her house and then to his own home. Shortly thereafter, the police arrived at Mr. Markiw’s home. Another policeman, Officer Kiefer, arrived to transport Mr. Markiw to Northwest Detectives. At trial, one of the officers described Mr. Markiw as “ashen faced.” Officer Kiefer testified that Mr. Markiw appeared to be perspiring and in pain “all around his chest.” As a result, he took the victim to Temple University Hospital. At the emergency ward, staff members told the officer that the victim might be having a heart attack. Mr. Markiw was admitted to the hospital where he died five days later.

Kenneth E. Carpenter, M.D., testifying for the Commonwealth, stated that the stress of the incident aggravated Mr. Markiw’s heart disease, triggering a heart attack causing his death and stated his opinion with “reasonable medical certainty.” He also testified that the cause of death was heart disease aggravated by assault and robbery. On the autopsy report, Dr. Carpenter indicated that Mr. Mark-iw had suffered a heart attack anywhere from four to eight days prior to his death.

Dr. Carpenter’s testimony and his autopsy report were the only direct evidence offered by the Commonwealth to prove causation. Appellant claims that this was insufficient to show that Mr. Markiw’s death resulted from the alleged robbery. In deciding an insufficiency claim, this Court is bound to view all evidence in the light most favorable to the Commonwealth and to draw all reasonable inferences in its favor. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978). We also note that circumstantial evidence is sufficient to convict beyond a reasonable doubt. Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980).

Once the Commonwealth submitted evidence of causation, it was for the factfinder to determine if that evidence proves the element of the crime charged beyond a reasonable doubt. Merely because Dr. Carpenter’s opinion was cast in terms of a reasonable medical certainty, this Court cannot say, as a matter of law, that causation was not proved beyond a reasonable doubt. As pointed out by Justice O’Brien.

It was not necessary, as appellants contend, that the witness state it was his conclusion beyond a reasonable doubt ... “beyond a reasonable doubt” is a legal standard. Medical causation and legal causation are qualitatively different in their application ... whether the Commonwealth’s evidence is sufficient to warrant a finding of causal connection is initially a legal question for the court, but whether it is persuasive beyond a reasonable doubt is for the jury to say.

Commonwealth v. Webb, 449 Pa. 490, 496, 296 A.2d 734, 737 (1972). Furthermore, it would be an undue burden to require the Commonwealth’s medical experts to state their opinions that death resulted from a specific cause “beyond a reasonable doubt.” That concept is a legal standard that the factfinder must use in determining guilt.²

Dr. Carpenter’s opinion finds support in the record and the hypothetical question asked of him was proper. It conformed to the facts as supported in the record, and the appellant will not now be heard to complain that the hypothetical question failed to conform to the facts as he made no objection to that effect at trial. P.L.E. Appeals § 110. We shall not presume to invade the jury’s traditional fact finding function and hold that the opinion based on this hypothetical question was improper. Dr. Carpenter’s testimony showed that the cause of death was heart disease aggravated by the assault and robbery. The Commonwealth also provided testimony regarding the victim’s condition immediately after the incident. In view of this, we cannot say, as a matter of law, that the factfinder had

428 Pa. 279, 236 A.2d 802 (1968) where a physician testified to "a reasonable degree of medical certainty” that a heart attack was caused by stress occasioned by a purse snatching and ensuing struggle. In both cases, causation was found to be lacking. A reading of the Pennsylvania cases leads to the conclusion that the broad language of Embry is of doubtful precedential value especially in light of the Webb decision. For example, in the following cases Embry and/or Radford were distinguished and in no other case has the requirement been made that the expert medical testimony be couched in terms of "beyond a reasonable doubt." Commonwealth v. Roberson, 485 Pa. 586, 403 A.2d 544 (1979); Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978) ; Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978); Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Nole, 448 Pa. 62, 292 A.2d 331 (1972); Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972); Commonwealth v. Odom, 448 Pa. 474, 295 A.2d 331 (1972); Commonwealth v. Lomax, 291 Pa.Super. 635, 436 A.2d 680 (1981); Commonwealth v. Alston, 269 Pa.Super. 573, 410 A.2d 849 (1979); Commonwealth v. Rawls, 270 Pa.Super. 432, 411 A.2d 796 (1979) .

Most recently, in Commonwealth v. Floyd, 499 Pa. 316, 453 A.2d 326 (1982), our Supreme Court concluded that the opinion of a medical examiner expressed in terms of a reasonable degree of medical certainty was adequate evidence in the record of causation for the finder of fact to conclude beyond a reasonable doubt that the cause of death was a criminal act. Importantly, Floyd can be read as having overruled Embry. In reaching its conclusion it followed Commonwealth v. Webb, supra, and added: “We believe that the Webb court was in error in distinguishing Embry." 499 Pa. 316 at 320, 453 A.2d 326 at 328.

insufficient evidence to establish the cause of death beyond a reasonable doubt.

To hold otherwise would be a judicial usurpation of the jury’s function. Also, the evidence of robbery in this case was clearly sufficient to support appellant’s conviction.

In considering appellant’s claims of ineffectiveness of trial and post-trial counsel for failing to preserve issues for appellate review, this Court uses a two-step analysis. First, we must determine if the issues not preserved were of arguable merit, and if so, we then determine if counsel’s decisions had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983). Obviously, counsel will not be ineffective for failing to preserve a baseless claim. Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Appellant’s initial claim of ineffectiveness is that both trial and post-trial counsel failed to preserve for review a motion to dismiss pursuant to Pa.R. Crim.P. 1100. Considering that appellant’s trial began 378 days after the complaint was filed, a Rule 1100 motion to dismiss may have been appropriate. On the other hand, a defendant may waive his right to a speedy trial and this is precisely what appellant did on two occasions. The colloquy conducted by the Honorable Paul Ribner at both proceedings, demonstrates that appellant made an informed and voluntary decision. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). Consequently, neither trial or post-trial counsel were ineffective for failing to preserve a Rule 1100 motion.

Appellant also alleges that trial and post-trial counsel were ineffective for failing to preserve for review the decision to waive a jury trial. In reviewing the record, it is clear that appellant made a knowing, voluntary and intelligent waiver of his jury trial right. The record shows that the waiver colloquy was in accord with the standards set forth in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).

Appellant also alleges ineffectiveness for failure to preserve several evidentiary questions for appellate review. First, appellant contends that counsel should have preserved an objection to hearsay testimony. Specifically, this concerns the testimony of two police officers who were at the hospital shortly after Mr. Markiw arrived. The officers testified that they were told by hospital personnel that the victim was suffering a heart attack. However, this testimony related to facts not capable of dispute and could not have prejudiced appellant. Secondly, appellant maintains that counsel should have preserved an objection to the lower court’s restriction of cross-examination. The trial judge did not permit cross-examination that would have required Dr. Carpenter to speculate whether Mr. Markiw would have suffered a heart attack absent the robbery. In view of the fact that counsel was permitted to strenuously cross-examine the Commonwealth’s witnesses, we find no abuse of discretion where the court prevented this kind of speculation. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Paskings, 447 Pa. 350, 355, 290 A.2d 82 (1972). Lastly, appellant contends that counsel should have preserved an objection to Dr. Carpenter’s conclusion regarding the manner of death. This issue is without merit, because the opinion of an expert may be based on the facts admitted or proven or on reports admitted into evidence. Commonwealth v. Haddle, 271 Pa.Super. 418, 413 A.2d 735 (1979). The record indicates that Dr. Carpenter’s opinion was based on admitted evidence.

After a careful review of the record with regard to the remaining issues appellant claims should have been preserved, we find that these issues are without merit and trial counsel and post-trial counsel were not ineffective for failing to preserve them.³

In addition, appellant raises two issues of trial counsel’s ineffectiveness. These claims are waived, however, since new post-verdict counsel failed to raise them. Commonwealth v. Lee, 254 Pa.Super. 495, 386 A.2d 59 (1978).⁴

Lastly, appellant alleges that post-trial counsel was ineffective for failing to raise the ineffectiveness of trial counsel. This claim is not supported by the record, since post-trial counsel did in fact raise the ineffectiveness of trial counsel in post-verdict motions.

Judgment of sentence affirmed.

McEWEN, J., files concurring opinion. CIRILLO, J., files concurring and dissenting opinion.

1 . 18 Pa.C.S. §§ 2502, 3701, 903.

2 . It is true, as the dissent points out, that our Supreme Court in Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971), stated that "when only one witness is presented by the Commonwealth to establish causation and that witness cannot do so beyond a reasonable doubt, a necessary element of the proof of that crime is missing.” The Embry decision relied on an earlier case, Commonwealth v. Radford,

3 . Appellant argues that counsel should have preserved an objection to the sufficiency of the bill of information charging him with murder. However, we find that the bill in question did serve to notify the accused of the charges against him. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982). Appellant also alleges that counsel should have preserved a challenge to the Commonwealth’s failure to provide putative exculpatory material. However, we find that no prejudice would have resulted from this since trial counsel used the information from this material to impeach a Commonwealth witness. Similarly, appellant’s contention that counsel should have preserved an objection to the court’s granting a continuance is without merit. The granting of a continuance is within the discretion of the trial judge and we do not find that Judge Stout abused her discretion. Commonwealth v. Rainey, 271 Pa.Super. 240, 412 A.2d 1106 (1979).

4 . Even though these issues have been waived, we find that they are without merit. Appellant alleged that trial counsel failed to call character witnesses, but there is nothing to indicate that counsel had knowledge of any witnesses or that they even existed. Commonwealth v. Brinton, 303 Pa.Super. 14, 449 A.2d 54 (1982).