Commonwealth v. Pestinikas
617 A.2d 1339 (1992)
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Rule of Law:
A failure to perform a duty imposed by contract can be the basis for a criminal homicide conviction if the omission causes the death of another and is accompanied by the requisite mens rea, such as malice.
Facts:
- In late 1981, Joseph Kly, a 92-year-old man, met Walter and Helen Pestinikas to pre-arrange his funeral.
- In March 1982, Kly was hospitalized for Zenker's diverticulum, a condition that made it difficult for him to swallow.
- Upon his discharge on April 12, 1982, Kly expressed a desire not to return to his stepson's home and arranged for the Pestinikases to care for him.
- The Pestinikases orally agreed to follow medical instructions from hospital personnel and to provide Kly with food, shelter, care, and necessary medicine.
- Instead of housing Kly in their home, the Pestinikases placed him in an uninsulated, unheated, and isolated enclosed porch of a rural building they owned, which lacked a bathroom, sink, or telephone.
- The Pestinikases actively concealed Kly's whereabouts from his family and a visiting nurse, whose services they refused.
- After being added to Kly's bank account, the Pestinikases withdrew over $30,000 over time, leaving a balance of only $55 upon his death.
- On November 15, 1984, Kly's emaciated body was found; an autopsy determined the cause of death to be starvation and dehydration.
Procedural Posture:
- Walter and Helen Pestinikas were tried before a jury in the Court of Common Pleas of Lackawanna County (trial court).
- The jury found both Walter and Helen Pestinikas guilty of murder of the third degree and recklessly endangering another person.
- The jury acquitted both defendants of criminal conspiracy, and Walter Pestinikas was acquitted of intimidating witnesses.
- The Pestinikases (appellants) filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania (intermediate appellate court).
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Issue:
Does a failure to perform a contractual duty to provide care, which results in death, constitute an omission for which a 'duty to perform... is otherwise imposed by law' sufficient to support a criminal homicide conviction under 18 Pa.C.S. § 301(b)(2)?
Opinions:
Majority - Wieand, Judge
Yes. 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. The Pennsylvania Crimes Code, at 18 Pa.C.S. § 301(b)(2), allows for criminal liability based on an omission if 'a duty to perform the omitted act is otherwise imposed by law.' The court interprets the phrase 'imposed by law' to include legally enforceable duties arising under civil law, such as a contract, distinguishing such duties from mere moral obligations. However, an omission based on a contract cannot support a murder conviction without the necessary mens rea of malice. In this case, there was sufficient evidence not only of a contractual duty and a fatal omission, but also of an affirmative course of conduct—including isolating Kly and concealing his whereabouts—that demonstrated the malice necessary for a third-degree murder conviction.
Concurring - Tamilia, Judge
Yes. A contractual undertaking to care for a dependent person establishes a legal duty, and the failure to perform that duty, resulting in death, can be the basis for a homicide charge. The dissent mischaracterizes the case as one of simple omission; the appellants' conduct went far beyond a mere breach of contract to include active and malicious concealment, misappropriation of funds, and denial of life-sustaining care. The term 'duty imposed by law' is broad enough to encompass contractual duties, especially where one assumes responsibility for a dependent person, thereby precluding others from rendering aid. This interpretation is supported by common law principles and the Model Penal Code, which recognize that a legal duty can arise from various relationships, including contracts.
Dissenting - McEwen, Judge
No. The trial court erred in instructing the jury that a criminal homicide conviction could be based solely on a finding of a breach by omission of an oral contract. The phrase 'imposed by law' in 18 Pa.C.S. § 301(b)(2) denotes duties specifically created by a statute, ordinance, or administrative regulation, not duties voluntarily assumed by private individuals in a contract. While there was ample evidence of the appellants' affirmative acts of concealment and isolation to sustain a homicide conviction on that basis, the jury instruction was flawed because it permitted a conviction based solely on the contractual omission. Therefore, the appellants are entitled to a new trial, but not an arrest of judgment, as the evidence of their affirmative acts was sufficient for a jury to find them guilty.
Dissenting - Del Sole, Judge
No. A duty that arises out of a contract is not a 'duty imposed by law' within the meaning of 18 Pa.C.S.A. § 301(b)(2). A survey of Pennsylvania statutes reveals that the phrase 'imposed by law' consistently refers to obligations created by statute or regulation, not private agreements. Contractual duties are voluntarily assumed by the parties, not imposed upon them by law. Penal statutes must be strictly construed, and expanding the definition to include contractual duties would subject parties to criminal liability without clear notice that breaching a contract could constitute a crime. A 'legal duty' imposed by contract is distinct from a 'duty imposed by law,' and the statute only refers to the latter.
Analysis:
This decision establishes a significant precedent in Pennsylvania by holding that a private contractual agreement can create a 'duty imposed by law' sufficient to form the basis for criminal homicide liability. It broadens the scope of criminal omissions beyond duties created by statute (e.g., parent-child) to include those voluntarily undertaken by contract. This ruling has a major impact on caregiver liability, affirming that individuals or entities who contractually agree to care for vulnerable persons can face murder charges for malicious neglect leading to death. The case clarifies that the key elements are the existence of a legally enforceable duty, a fatal omission, and a malicious state of mind, setting a higher bar for criminal responsibility than a simple breach of contract.
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