Commonwealth v. Pestinikas

617 A.2d 1339, 421 Pa. Super. 371, 1992 Pa. Super. LEXIS 4260

• Court: Superior Court of Pennsylvania
• Decided: December 10, 1992
• Docket: 375 and 395
• Status: Published

Opinions

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 Ely’s family that they did not know where he had gone and others that he was living in their home.

After Ely was discharged from the hospital, appellants took Ely to the bank and had their names added to his savings account. Later, Ely’s money was transferred into an account in the names of Ely or Helen Pestinikas, pursuant to which moneys could be withdrawn without Ely’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 Ely had agreed to pay for his care. Beginning in August, 1983 and continuing until Ely’s death in November, 1984, however, appellants withdrew much larger sums so that when Ely 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, Ely’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 Ely 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 Ely 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 Ely 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 Ely, appellants engaged in a course of conduct calculated to deprive Ely 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 Ely 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 circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter____ This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death, (citations omitted)” 113 N.W. at 1129.

In Jones v. United States, 308 F.2d 307 (C.A.D.C.1962), the court stated:

“There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.” 308 F.2d at 310.

State v. Brown, supra, 129 Ariz. at 349-350, 631 P.2d at 131-132 (footnote omitted).

A similar rationale was employed by the Supreme Court of Virginia in Davis v. Commonwealth, 230 Va. 201, 335 S.E.2d 375 (1985), which upheld the conviction of a woman for involuntary manslaughter in the death by starvation and exposure of her elderly mother. The Davis Court held that the evidence had established the breach of an implied contract to care for her mother, in return for which the defendant had been permitted to live in her mother’s home and share her mother’s social security benefits. The legal principles upon which this holding was based were explained by the Supreme Court of Virginia as follows:

A legal duty is one either “imposed by law, or by contract.” Pierce v. Commonwealth, 135 Va. 635, 651, 115 S.E. 686, 691 (1923). When a death results from an omission to perform a legal duty, the person obligated to perform the duty may be guilty of culpable homicide. Biddle v. Commonwealth, 206 Va. 14, 20, 141 S.E.2d 710, 714 (1965); Pierce, 135 Va. at 651, 115 S.E. at 691. If the death results from a malicious omission of the performance of a duty, the offense is murder. On the other hand, although no malice is shown, if a person is criminally negligent in omitting to perform a duty, he is guilty of involuntary manslaughter. Biddle, 206 Va. at 20, 141 S.E.2d at 714.

Davis v. Commonwealth, supra 230 Va. at 205, 335 S.E.2d at 378.

“The omission or neglect to perform a legal duty resulting in death may constitute murder where the omission was willful and there was deliberate intent to cause death. So also, willfully allowing one to be exposed to conditions which will probably result in death, where there is a duty to protect such person, constitutes murder.” 40 C.J.S., Homicide, § 41, at p. 402 (citations omitted).

As a general rule, where one person owes to another either a legal or a contractual duty, an omission to perform that duty resulting in the death of persons to whom the duty was owing renders the person charged with the performance of such duty guilty of a culpable homicide. If several enter into a joint undertaking imposing upon all alike a personal duty in respect of its performance, the death of a third party by reason of the neglect or omission of such duty renders them all jointly liable. The duty imposed, however, must be a plain duty. It must be one on which different minds must agree, or generally agree, and which does not admit of any discussion as to its obligatory force. Where doubt exists as to what conduct should be pursued in a particular case, and intelligent men differ as to the proper action to be taken, the law does not impute guilt to anyone, where, from the omission to adopt one course instead of another, fatal consequences follow to others. The law does not enter into the reasons governing the conduct of men in such cases to determine whether they are culpable. Again, the duty must be one which the party is bound to perform by law or by contract, and not one the performance of which depends simply upon his humanity, or his sense of justice or propriety. It has been said that a legal duty to assist another does not arise out of a mere moral duty. Furthermore, where a legal duty is shown to have existed, it must also appear as a condition to culpability that the death was the direct and immediate consequence of the omission.

40 Am.Jur.2d, Homicide, § 88, at p. 381 (citations omitted). See also: 2 Wharton’s Criminal Law, § 172 (14th ed. 1979); LaFave and Scott, Criminal Law, § 26 (1972); Jones v. United States, 308 F.2d 307, 310 (D.C.Cir.1962); Flippo v. State, 258 Ark. 233, 236-237, 523 S.W.2d 390, 393 (1975); State v. Clark, 5 Conn.Cir. 699, 707-709, 261 A.2d 294, 299-300 (1969); People v. Montecino, 66 Cal.App.2d 85, 100-101, 152 P.2d 5, 13 (1944); People v. Beardsley, 150 Mich. 206, 208-209, 113 N.W. 1128, 1129 (1907).

Consistently with this legal thinking we hold that when, in 18 Pa.C.S. § 301(b)(2), the statute provides that an omission to do an act can be the basis for criminal liability if a duty to perform the omitted act has been imposed by law, the legislature intended to distinguish between a legal duty to act and merely a moral duty to act. A duty to act imposed by contract is legally enforceable and, therefore, creates a legal duty. It follows that a failure to perform a duty imposed by contract may be the basis for a charge of criminal homicide if such failure causes the death of another person and all other elements of the offense are present. Because there was evidence in the instant case that Elly’s death had been caused by appellants’ failure to provide the food and medical care which they had agreed by oral contract to provide for him, their omission to act was sufficient to support a conviction for criminal homicide, and the trial court was correct when it instructed the jury accordingly.

Our holding is not that every breach of contract can become the basis for a finding of homicide resulting from an omission to act. A criminal act involves both a physical and mental aspect. An omission to act can satisfy the physical aspect of criminal conduct only if there is a duty to act imposed by law. A failure to provide food and medicine, in this case, could not have been made the basis for prosecuting a stranger who learned of Ely’s condition and failed to act. Even where there is a duty imposed by contract, moreover, the omission to act will not support a prosecution for homicide in the absence of the necessary mens rea. For murder, there must be malice. Without a malicious intent, an omission to perform duties having their foundation in contract cannot support a conviction for murder. In the instant case, therefore, the jury was required to find that appellants, by virtue of contract, had undertaken responsibility for providing necessary care for Ely to the exclusion of the members of Ely’s family. This would impose upon them a legal duty to act to preserve Ely’s life. If they maliciously set upon a course of withholding food and medicine and thereby caused Kly’s death, appellants could be found guilty of murder.

Appellants’ reliance upon Commonwealth v. Konz, 498 Pa. 639, 450 A.2d 638 (1982), is misplaced. In that case, the Court did not consider criminal responsibility for an omission to perform a duty imposed by contract, but considered only the nature of the duties arising from the marital relationship. The Court held that where a husband was aware of his condition, i.e., diabetes, and competently made a voluntary decision to forego further treatment, i.e., insulin, his wife was not criminally liable for failing to summon medical help. Because Konz was carefully limited by the Court to its own facts, it provides little, if any, guidance in the instant case.

With respect to the alleged insufficiency of the evidence, it may also be observed that appellants’ culpable conduct, according to the evidence, was not limited merely to an omission to act. It consisted, rather, of an affirmative course of conduct calculated to deprive Kly of the food and medical care which was otherwise available to him and which was essential to continued life. It included efforts to place Kly beyond the ability of others to provide such needs. Such a course of conduct, the jury could find, as it did, had been pursued by appellants willfully and maliciously, who thereby caused Kly’s death.

Appellants argue that, in any event, the Commonwealth failed to prove an enforceable contract requiring them to provide Kly with food and medical attention. It is their position that their contract with Kly required them to provide only a place for Kly to live and a funeral upon his death. This obligation, they contend, was fulfilled. Although we have not been provided with a full and complete record of the trial, it seems readily apparent from the partial record before us, that the evidence was sufficient to create an issue of fact for the jury to resolve. The issue was submitted to the jury on careful instructions by the learned trial judge and does not present a basis entitling appellants to post-trial relief.³

Appellants next contend that the trial court committed reversible error when it (1) allowed the jury to view a photograph depicting the decedent’s nude body; and (2) overruled objections to evidence that appellants had attempted to have persons in high political office persuade the district attorney to drop charges against them. Our ability to conduct appellate review of these issues has been impaired by the absences of the photograph and the pertinent testimony from the record which has been certified to this Court.⁴ In order to resolve these issues, therefore, we rely on factual descriptions contained in the opinion of the trial court. See: Commonwealth v. Osellanie, swpra, 408 Pa.Super. at 476, 597 A.2d at 132.

The photograph about which appellants complain was in color and purported to show the decedent’s nude body as it lay on the coroner’s table in the same condition as when it was discovered by ambulance personnel and police on November 15, 1984. With respect to this photograph, the trial court observed as follows:

The photograph (Exhibit 54) depicts the victim’s unclothed body lying on the coroner’s table. It shows the condition of the victim’s body at the time of death as it was found by ambulance personnel and police. The exhibit clearly is not the kind of photograph of a corpse that is inflammatory or gruesome per se. Defendants claim that the Commonwealth attempted to “shock the jury and try its case on emotional appeal.”

At the inception of trial the trial judge reviewed certain photographs which the Commonwealth sought to introduce at trial. A total of twelve photographs, depicting various portions of the victim’s body, were submitted for inspection. Of these twelve, the Court ruled that a total of only three photographs were admissible, including the photograph now at issue. The Commonwealth’s photographic evidence underwent a painstaking and cautious screening process to eliminate photographs which could possibly inflame the minds and passions of the jurors.

Furthermore, under the second phase of the admissibility test, the photograph (Exhibit 54) was “of such evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. Petrakovich, [459 Pa. 511, 329 A.2d 844 (1974) ].

The photograph of the victim was important to the Commonwealth to sustain its burden of proof. There were no eyewitnesses to the death of Joseph Kly. There were no admissions or confessions from the defendants. There was no “smoking gun.” The photograph in question showed what happened to the decedent and, therefore, served as an aid to the jury in understanding the crime committed. Further, the introduction of this photograph served a number of specific and well-recognized evidentiary purposes. The photograph helped prove the corpus delicti; it showed the extent of the decedent’s wasted torso, and the readily observable condition of the decedent; it assisted in portraying the cause of death by starvation and it corroborated the testimony of a variety of the Commonwealth’s witnesses. The essential nature of this photographic evidence is further established by the fact that the exhibit helped to support the inference of the defendants’ intent to kill.

In Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d 547 (1982), the Court stated:

“A criminal homicide trial is, by its very nature, unpleasant, and the photographic images of the injuries inflicted are merely consonant with the brutality of the subject of the inquiry. To permit the disturbing nature of the images of the victim to rule the question of admissibility would result in exclusion of all photographs of the homicide victim, and would defeat one of the essential functions of a criminal trial, inquiry into the intent of the actor. There is no need to so- overextend an attempt to sanitize the evidence as to deprive the Commonwealth of opportunities of proof in support of the onerous burden of proof beyond a reasonable doubt.”

The photograph (Exhibit 54) of the decedent was not pleasant to view. However, murder was alleged, and the photograph was offered in support of proof of requisite intent. The general propriety of such a procedure has been well established. “In assessing the intent of the actor in a case of criminal homicide, be it to inflict serious bodily injury or to kill, the fact finder who deals in such an intangible inquiry must be aided to every extent possible.” Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 552 (1982), also see Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981), Commonwealth v. Smith, 477 Pa. 505, 384 A.2d 1202 (1978). In this light, the photograph of the victim depicting his severely emaciated body was supportive and necessary evidence of intent to kill. Although medical testimony was presented at trial, the degree of starvation and the readily observable severity of emaciation could only be demonstrated to the jury by the use of the photograph in question. The availability of alternate evidence of a verbal nature does not obviate the admissibility of photographs. Commonwealth v. McCutchen, supra.

The admission of the photograph (Exhibit 54) was not error and was proper due to its essential evidentiary value when balanced against the likelihood of inflaming the jury, (footnote omitted and emphasis in original).

The Supreme Court has held that photographs of a homicide victim are not per se inflammatory, and the admission of such photographs is within the sound discretion of the trial court. See: Commonwealth v. Edwards, 521 Pa. 134, 151, 555 A.2d 818, 827 (1989); Commonwealth v. Garcia, 505 Pa. 304, 313, 479 A.2d 473, 478 (1984); Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980). In making a determination regarding the admissibility of photographs of a homicide victim, a trial court must apply a two step analysis.

The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors. Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980).

Commonwealth v. Strong, 522 Pa. 445, 453, 563 A.2d 479, 483 (1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990). See also: Commonwealth v. Miller, 490 Pa. 457, 468-469, 417 A.2d 128, 134 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Commonwealth v. Batty, 482 Pa. 173, 177, 393 A.2d 435, 437 (1978).

In the instant case, it appears that the trial court deemed the photograph of the decedent sufficiently inflammable to require a cautionary jury instruction.⁵ The court determined, nevertheless, that the photograph possessed such evidentiary value as to outweigh any possibility of arousing passion in the jurors. On the limited record which has been provided to us, we cannot find that this was an abuse of discretion.

It is well settled that when a person has committed a crime, and knows that he is wanted for it, any attempt by that person to flee or conceal his whereabouts, to escape from custody or resist arrest, to conceal or destroy evidence, to give false statements or testimony, to intimidate or attempt to influence witnesses, or to otherwise engage in conduct designed to avoid apprehension or prosecution for such crime may be admissible as evidence of consciousness of guilt, and may, along with other evidence in the case, form a basis from which guilt may be inferred. See: Packel and Poulin, Pennsylvania Evidence, Ch. IV, § 423 (1987); 29 Am.Jur.2d, Evidence, § 278. See, e.g.: Commonwealth v. Lark, 518 Pa. 290, 308-309, 543 A.2d 491, 500 (1988) (attempts to intimidate or influence witnesses); Commonwealth v. Goldblum, 498 Pa. 455, 473, 447 A.2d 234, 243 (1982) (attempting or planning to kill witness); Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964) (flight or concealment); Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A.2d 464, 476 (1955) (false or contradictory statements by accused); Commonwealth v. Soli, 273 Pa.Super. 158, 163, 417 A.2d 216, 219 (1979) (efforts to destroy or dispose of incriminating evidence). “ ‘[EJvidence of the misconduct of a party in connection with the trial is admissible as tending to show that the party guilty of the misconduct is unwilling to rely on the truth of his cause, or is conscious that it is an unjust one.’ ” Packel and Poulin, supra § 423, at p. 277, quoting McHugh v. McHugh, 186 Pa. 197, 203, 40 A. 410, 412 (1898). In Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743 (1953), the Supreme Court stated the rule as follows:

Flight, manifestations of mental distress, fear at the time of or just before or just after discovery of the crime, an attempt to commit suicide at such time, as well as evidence to prove motive, intent, plan or design are admissible. Cf. Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71; Commonwealth v. Boschino, 176 Pa. 103, 34 A. 964; Commonwealth v. Del Giorno, 303 Pa. 509, 154 A. 786, 788; Hester v. Commonwealth, 85 Pa. 139; McManus v. Commonwealth, 91 Pa. 57; McMeen v. Commonwealth, 114 Pa. 300, 306, 9 A. 878; Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145, and other cases cited in Commonwealth v. Truitt, 369 Pa. 72, 81, 90, 85 A.2d 425; Commonwealth v. Marshall, 287 Pa. 512, 135 A. 301; Commonwealth v. Guida, 298 Pa. 370, 148 A. 501.

Id. at 159, 94 A.2d at 747. See also: Commonwealth v. Giacobbe, 341 Pa. 187, 193, 19 A.2d 71, 74 (1941) (defendant’s attempt to commit suicide admissible to show consciousness of guilt); Commonwealth v. Sanchez, 416 Pa.Super. 160, 171-173, 610 A.2d 1020, 1026-1028 (1992) (defendant’s post-arrest threats to commit suicide admissible to show consciousness of guilt).

In reliance on this principle, the trial court allowed testimony that appellants had attempted to avoid prosecution by exerting political influence on the prosecuting attorney. This testimony was received to show consciousness of guilt and was described by the trial court in its post-trial opinion as follows:

The jury heard testimony that defendants attempted to have certain politically connected persons intercede on their behalf. Ann Anstine, a member of the Pennsylvania Republican State Committee, testified that both defendants had come to visit her on more than one occasion after their arrest and pleaded with her to intercede on their behalf and try “to get Preate off the investigation.” Lester Buerlein, chairman of the Wayne County Republican Party, testified that defendants met with him at his office in Honesdale. At this meeting the defendants asked him to intercede on their behalf and “try to get the investigation stopped.”

Appellants contend that the allowance of this testimony was error. We disagree.

After careful consideration, we conclude and, therefore, hold that an attempt by a criminal defendant to obtain and apply political pressure for the purpose of obtaining a dismissal of charges is a relevant circumstance tending to show consciousness of guilt. It is a fact tending to show that the defendant “ ‘is unwilling to rely on the truth of his cause, or is conscious that it is an unjust one.’ ” Packel and Poulin, supra, quoting McHugh v. McHugh, supra. As such, it may be considered by a jury, together with other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt.⁶

Appellants moved pre-trial to suppress statements which they made to police and evidence obtained by police during two warrantless searches of the room in which Ely’s body was found. Their suppression motions were denied, and appellants now argue that this was error.

Where, as here, it is the defendants who have appealed, we consider only the evidence presented by the prosecution, and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record for the suppression court’s findings, we are bound thereby and may reverse only if the legal conclusions drawn from those facts are in error. Commonwealth v. Whitney, 511 Pa. 232, 239-240, 512 A.2d 1152, 1156 (1986). See also: Commonwealth v. O’Shea, 523 Pa. 384, 395, 567 A.2d 1023, 1028 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990); Commonwealth v. Agnew, 411 Pa.Super. 63, 71, 600 A.2d 1265, 1269 (1991). An appellate court will “affirm the decision of the suppression court ‘if it can be sustained for any reason whatsoever, even if the [suppression] court offered an erroneous reason to support its action.’ ” Commonwealth v. Bowers, 400 Pa.Super. 377, 381, 583 A.2d 1165, 1167 (1990), quoting Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 309-310, 422 A.2d 1126, 1131 (1980). See also: Commonwealth v. O’Shea, supra; Commonwealth v. Bagley, 408 Pa.Super. 188, 193, 596 A.2d 811, 813 (1991).

On the day on which Ely’s body was discovered, Helen Pestinikas called a volunteer ambulance company to remove the body, and the police were routinely notified. When they arrived, they were not aware of the circumstances of Kly’s death and did not suspect that it had been caused by criminal conduct. They arrived to render assistance and not to investigate a possible homicide. When the Pestinikases were asked questions, they exhibited no reluctance to provide answers and, in fact, volunteered information. Helen Pestinikas was asked if the police could return to the room to take photographs, and she readily consented, telling Lt. Joseph Naus that he could “do whatever he had to do.” Several days later, both Walter and Helen Pestinikas signed written consents permitting police to search the room without a warrant. The suppression court found that these consents had been given voluntarily. Appellants had not in any way been placed in a coercive atmosphere during the days immediately following Kly’s death, and the trial court’s findings that their cooperation was voluntary are fully supported by competent evidence. Because the warrantless searches of the room were made with appellants’ voluntary consent, the suppression court properly held that the fruits thereof were not subject to suppression. See: Commonwealth v. Markman, 320 Pa.Super. 304, 313-315, 467 A.2d 336, 341-342 (1983). See also: Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Bagley, supra, 408 Pa.Super. at 201, 596 A.2d at 817.

Because we agree with the suppression court that the several searches of Kly’s room were consensual, we find it unnecessary to review the court’s conclusion that appellants lacked standing to object to the warrantless search of Kly’s room. Whether or not they had “standing,” it was eminently clear that they voluntarily had consented to have the police enter Kly’s room and conduct a search.

Finally, when appellants unexpectedly presented themselves at the district attorney’s office on November 19, 1984, and insisted upon making a statement in order to “clear the air,” they were not subjected to custodial interrogation, and their statement was not coerced. On this occasion, appellants were advised of their Miranda⁷ rights and declined an offer to have counsel present. Therefore, the suppression court could find, as it did, that appellants’ statement had been given voluntarily and was not subject to being suppressed.

Having found no valid reason for disturbing the jury’s verdicts, we conclude that the judgments of sentence must be, as they are,

AFFIRMED.

TAMILIA, J., files a concurring opinion, in which OLSZEWSKI, J., joins. McEWEN, J., files a dissenting opinion in which DEL SOLE, J., joins. DEL SOLE, J., files a dissenting opinion in which McEWEN, J., joins.

1 . The jury acquitted both defendants of criminal conspiracy, and Walter Pestinikas was also acquitted of intimidating witnesses.

2 . Each appellant was sentenced to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years. Separate convictions for recklessly endangering another person were deemed to merge for sentencing purposes in the convictions for murder of the third degree.

3 . We reject appellants' contention that Section 301 of the Crimes Code is unconstitutionally vague. This issue was not raised by appellants in their post-trial motions, and it has not been addressed by the trial court. Therefore, the issue of the constitutionality of 18 Pa.C.S. § 301 has not been preserved for appellate review. See: Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979); Commonwealth v. Copeland, 381 Pa.Super. 382, 385, 554 A.2d 54, 55 (1988).

4 . Efforts to obtain this evidence have been unsuccessful.

5 . During its charge to the jury, the court gave cautionary instructions as follows:

Certain photographs of the body of Joseph Kly were admitted into evidence for whatever rational value they may have in proving or disproving the facts in this case. They are not pleasant photographs to look at. You should not let them stir up your emotions to the prejudice of the defendant. Your verdict must be based on a rational and fair consideration of all of the evidence and not on passion or prejudice against the defendant, the Commonwealth or anyone else connected with this case.

6 . The trial court, during its final charge, gave cautionary instructions to the jury as follows:

You have heard evidence tending to show that the defendant may have been involved in improper conduct for which the defendant is not on trial. I am speaking of testimony to the effect that the defendant spoke to persons to have the investigation dropped. This evidence is before you for a limited purpose. That is, the purpose of tending to show consciousness of guilt. This evidence must not be considered by you in any way other than for the purpose I just stated. You must not regard this evidence as showing that the defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt.

If you find the defendant guilty, it must be because you are convinced by the evidence that the defendant committed the crimes charged and not because you believe the defendant is wicked or was involved in other improper conduct.

7 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).