Commonwealth v. Konz

402 A.2d 692, 265 Pa. Super. 570, 1979 Pa. Super. LEXIS 2154

• Court: Superior Court of Pennsylvania
• Decided: April 27, 1979
• Docket: 549
• Status: Published

Opinions

PRICE, Judge:

After a five-day jury trial terminating on February 7, 1975, appellees were found guilty of involuntary manslaughter¹ in the death of appellee Dorothy Konz’s husband, David. Post-trial motions for new trial and in arrest of judgment were filed. An en banc hearing on the motions was conducted before the Lehigh County Court of Common Pleas, and an order was issued on December 6, 1976, granting appellees’ motion in arrest of judgment and thereby discharging appellees.

The Commonwealth brings this appeal and contends that the evidence presented at trial was sufficient to justify the jury’s verdict, thus necessitating the reversal of the lower court order of December 6. We reverse the order of the court below granting appellees’ motion in arrest of judgment, and remand for consideration by that court of appellees’ remaining motion for a new trial and other appropriate action.

Viewing the evidence in the light most favorable to the verdict-winner, i. e., the Commonwealth, and drawing all reasonable inferences therefrom on which the jury could have properly based the verdict, Commonwealth v. Ashford, 227 Pa.Super. 351, 322 A.2d 722 (1974), the following was adduced at trial. The decedent, Reverend David Konz, was a professor, student counsellor and chaplain at United Wesleyan College in Allentown, Pennsylvania. Reverend Konz was a diabetic, and had administered insulin to himself on a daily basis for seventeen years.

After an encounter on campus with a visiting evangelist speaker, decedent publicly proclaimed his desire to withdraw from insulin treatment and his belief that God would heal him of his diabetic condition. Subsequent to this proclamation, Reverend Konz assured the president of the university and members of the student body that he would do nothing foolish, would carefully monitor his condition, and would take insulin, if warranted.

Appellee Stephen Erikson, a student at United Wesleyan, was a friend of Reverend Konz, and a regular visitor to the Konz home. On March 18,1974, Erikson and Reverend Konz made a pact to pray together to enable the decedent to resist the temptation to administer insulin to himself. For a period of approximately three weeks prior to his death, Reverend Konz took insulin only once or twice.

On Saturday, March 22, 1974, the decedent experienced an acute need for insulin, and his behavior evidenced symptoms of insulin debt.² When decedent went to the refrigerator to obtain his insulin, he discovered that it had been removed. Evidence adduced at trial indicated that appellee Dorothy Konz had removed the insulin from the refrigerator and had hidden it from her husband.³ Decedent then tried to exit from the kitchen, but he was initially prevented from doing so by appellee Erikson, who was purposely obstructing the doorway leading out from the kitchen. Decedent eventually made his way to his bedroom or the bathroom. When decedent sought to go into the living room, he was again detained by Erikson, who obstructed the hallway leading from the bedroom and bathroom into the living room and prevented decedent from passing. Harsh words were exchanged, and Erikson then forced decedent into the master bedroom. There, joined by appellee Konz, Erikson talked with decedent for approximately one-half hour. During that half hour, decedent tried to telephone the police to obtain assistance, but was prevented from doing so by appellees who, in a struggle with decedent, rendered the telephone inoperable. The three later emerged from the bedroom, and subsequently decedent left the Konz household twice, both times in the company of either Mrs. Konz or Mr. Erikson. Later in the afternoon, decedent cancelled a speaking engagement of his which was scheduled for the following day — Sunday.

The nature of the deceased’s first journey is unclear. The record only indicates that some time during the late afternoon or early evening he and appellant Erikson left the Konz house for a short time.

During his second journey from his home on Saturday night, this time accompanied by Mrs. Konz, the decedent went to a local hospital to pick up Esther King, a close friend of the family who worked as a practical nurse at the hospital and who was leaving work when the Konzs arrived. At that time, the decedent was experiencing additional symptoms of insulin debt, to-wit, he appeared tired and was complaining of an upset stomach.

Upon returning home from the hospital, the decedent became increasingly ill, vomiting intermittently Saturday night through Sunday morning, and he was confined to bed practically all day Sunday. During this time, appellees, in effect, kept decedent isolated to the point of turning away visitors on Sunday, even though Reverend Konz was desirous of discovering whether one of the visitors wished to see him.

Despite the fact that throughout Saturday and Sunday decedent was experiencing symptoms of lack of insulin, and such symptoms were apparent to those around him, appellees did not seek to obtain medical assistance for the decedent and at no time sought the advice of any medical experts. It should be noted, that the seriousness of decedent’s condition was readily apparent even to the Konzes’ eleven year old daughter, Amy, who asked her mother why no doctor was summoned.

Instead of seeking medical attention for decedent, appellees chose to administer cracked ice and keep decedent, in effect, isolated. Decedent’s condition grew progressively worse as the evening wore on, and his death occurred at approximately 6:00 a. m. Monday. Cause of death was determined to be ketoacidosis resulting from lack of insulin. Although Mrs. Konz was aware of her husband’s death as early as 7:30 a. m. Monday, she did not attempt to notify the authorities until 5:00 p. m.

Appellees were found guilty by a jury of the crime of involuntary manslaughter. Section 2504 of the Pennsylvania Crimes Code⁴ provides that:

“A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, he causes the death of another person.”

To impose criminal liability based on an omission as opposed to an act, the omission must be “expressly made sufficient by the law defining the offense,”⁵ or “the duty to perform the omitted act [must be] otherwise imposed by law.”⁶

We hold that appellee Dorothy Konz, as wife of decedent, was under a duty to obtain medical aid for her diabetic husband when it became readily apparent that he was suffering the effects of lack of insulin, and in serious need of medical attention.⁷

The state of the law as to the duty owed by one spouse to obtain medical assistance for the other is not well-settled, with only a handful of cases addressing the issue. Indeed, our research uncovered no recent Pennsylvania case of import to the instant appeal. Nevertheless, a review of the case law from other jurisdictions discloses a duty of care, vague though it may be, arising from the spousal relationship. In the case of Territory v. Manton, 8 Mont. 95, 19 P. 387 (1888), the Supreme Court of Montana, in imposing a duty upon the defendant to seek medical aid for his wife who died of exposure, stated: “[the defendant’s] drunkenness does not excuse him from the discharge of his duty to his wife as husband.” Id. at 109, 19 P. at 394. In the case of Jones v. United States, 113 U.S.App.D.C. 352, 308 F.2d 307 (1962), the court stated that, “[t]here are at least four situations in which failure to act may constitute breach of a legal duty. One can be held criminally liable where one stands in a certain status relationship to another .” Id. at 355, 308 F.2d at 310; see 40 Am.Jur.2d Homicide § 90 at 383 (1968). It should be noted that the court cited the marital relationship as one such “status relationship.” Id. at 355 n. 9, 308 F.2d at 310 n. 9.

In light of the above cases, we conclude that the marital relationship creates a duty of care between the two spouses. We hold that one spouse owes the other a duty to summon medical aid when the other is in a condition necessitating the need for immediate medical attention.

The dissent seeks to establish a standard of care between spouses such that “one spouse is not under a duty to call for medical help for the other spouse, if the spouse is not helpless” (dissenting opinion at 699), citing the cases State v. Mally, 139 Mont. 599, 366 P.2d 868 (1961), and Westrup v. Commonwealth, 123 Ky. 95, 93 S.W. 646 (1906), to support its proposition. Although the courts in both cases mention a state of helplessness in the deceased as a factor in their decision, there are significant distinctions between those cases and the instant case. In Westrup, the husband of the deceased obtained medical aid for his wife, and his wife unwaveringly refused treatment. In Mally, the husband also summoned medical aid for his wife, although at a late date. In imposing a duty upon the husband to obtain medical aid for his wife, the court in that case noted: “[t]he record is replete with evidence that [the wife] could not have consciously or rationally denied medical aid.” 139 Mont, at 609, 366 P.2d at 873. In the instant case, the record does not indicate that Reverend Konz refused or would have refused any medical assistance. Indeed, the record supports the opposite conclusion. Reverend Konz, upon discovering his insulin removed from the refrigerator, sought to contact the authorities to obtain aid, but was prevented from doing so by appellees. On the day before Reverend Konz’s death, visitors to the Konz residence were not allowed admittance to see him, even though the decedent seemingly welcomed their company.

In reviewing the record of this case, it is apparent that the symptoms of Reverend Konz’s insulin debt were in evidence throughout the weekend and were apparent to those around him — even his eleven year old daughter. The decedent began to experience the acute need for insulin on Saturday morning. He was very thirsty, vehemently expressed his desire for insulin, and even went so far as to attempt to summon medical assistance for himself. Later in the day, he cancelled an upcoming speaking engagement, and as the day wore on he appeared tired and began to complain of stomach cramps, both being additional symptoms of insulin debt.

His condition increasingly deteriorated as the weekend wore on, with the decedent frequently vomiting throughout Sunday, and being bed-ridden practically all day. Despite the fact that his condition grew progressively worse, his wife summoned no aid. Indeed, she not only failed to summon aid, but, in effect, prevented her husband from making contact with any outsiders, against his wishes. Taking into consideration the above mentioned facts, and Dorothy Konz’s knowledge of decedent’s diabetic condition and his lack of insulin injections over a three-week span prior to this time, we find that she, as decedent’s wife, had a duty to summon medical assistance for him.

Judge Spaeth, in his dissenting opinion, proposes that appellees’ duty was only to be on guard for the onset of a state of helplessness in the deceased. Of course, as applied to the instant case, this standard is worthless, since medical testimony adduced at trial indicated that when a diabetic suffering from lack of insulin lapsed into such a state, he is beyond help. Therefore, under the circumstances of this case, we hold that Mrs. Konz, as wife of the deceased, and Stephen Erikson, as accomplice to Mrs. Konz, were under a duty to summon medical aid for Reverend Konz, and this duty was breached.

Of course, a finding of duty and breach thereof is not in itself sufficient to support a conviction for involuntary manslaughter. There must also be a finding of proximate cause. As applied to the instant case, there must be sufficient evidence in the record to support a finding by the jury that Reverend Konz’s death was the direct and immediate consequence of appellees’ breach of duty.

We hold that there was sufficient evidence to establish proximate cause. Medical testimony presented at trial indicated that hospitalization as late as Sunday night would have assured Reverend Konz a ninety-nine percent chance of survival. In light of the evidence, the jury was justified in making a finding of proximate cause.

We reverse the order in arrest of judgment and remand for consideration by the court below of the remaining motion for a new trial and other appropriate action.

CERCONE, President Judge, concurs in the result. VAN der VOORT, J., files a concurring opinion. SPAETH, J., files a dissenting opinion. JACOBS and WATKINS, former President Judges, and HOFFMAN, J., did not participate in the consideration or decision of this case.

1 . 18 Pa.C.S. § 2504.

2 . Decedent stated that he was very thirsty. He rushed to the kitchen sink and began to drink water. (N.T. 262).

3 . The insulin was returned to the refrigerator sometime prior to Sunday night.

⁴

5 . 18 Pa.C.S. § 301(b)(1).

6 . 18 Pa.C.S. § 301(b)(2).

7 . We hold that appellee Stephen Erikson is an accomplice under 18 Pa.C.S. § 306(c), and as such, maintains a culpability equal to that of Mrs. Konz. Therefore, all further analysis with respect to Mrs. Konz applies equally to appellee Erikson. See also 40 Am.Jur.2d Homicide § 90 at 385 (1968).

An interesting question arises as to whether it is possible to have “the intent of promoting or facilitating the commission of the offense,” 18 Pa.C.S. § 306(c)(1), where the offense is one based on gross negligence or recklessness, which do not themselves require specific intent. While this specific question heretofore has yet to be addressed by an appellate court in this state, a review of case law from other jurisdictions lends support to the proposition that one can be an accomplice or an aider and abettor to the offense of involuntary manslaughter even though intent is not an element of the offense itself. See, e. g., Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173 (1944); State v. Newberg et al., 129 Or. 564, 278 P. 568 (1929); State v. McVay, 47 R.I. 292, 132 A. 436 (1926); State v. Morris, 224 Tenn. 437, 456 S.W.2d 840 (1970); Wade et al. v. State, 174 Tenn. 248, 124 S.W.2d 710 (1939); State v. Hopkins, 147 Wash. 198, 265 P. 481 (1928), cert. denied 278 U.S. 617, 49 S.Ct. 21, 73 L.Ed. 540. See generally, Annot. 95 A.L.R.2d 175 (1964).