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Commonwealth v. Pestinikas

Superior Court of Pennsylvania
617 A.2d 1339 (1992)



Joseph Kly met Walter and Helen Pestinikas (defendants) when he contacted them about prearranging his funeral. Kly was living with his stepson and was later hospitalized and diagnosed with a disease that made it difficult for him to swallow food. When he was discharged, Kly said he did not want to return to his stepson’s home, and arrangements were instead made for the Pestinikases to care for Kly in their home. On the day of Kly’s discharge, the Pestinikases were given care instructions and a prescription to fill for Kly. The Pestinikases orally agreed to follow the instructions and provide Kly with food, shelter, care, and the required medicine. According to the evidence at trial, the prescription was never filled. Instead of allowing Kly to live in their home, the Pestinikases placed him in a small, enclosed porch of a distant building, where there was no insulation or bathroom and he was exposed to outside weather conditions. The Pestinikases took Kly to the bank where they had their names added to his account. Over time, the Pastinikases withdrew over $30,000 from the account. About two years after Kly’s discharge from the hospital, he was found dead, and an autopsy revealed starvation and dehydration as the causes of death. The Pestinikases were charged with murder, and at trial, the judge instructed the jury that the defendants could not be found guilty of a malicious killing for failing to supply food, shelter, and medicine, unless a duty to do so had been imposed upon them by contract. The jury charge was based on a state statute, 18 Pa.C.S. § 301(b), which states that liability may not be based on an omission unless the omission is sufficient as defined by the criminal statute or a duty to perform the omitted act was “otherwise imposed by law.” The jury found the defendants guilty of third-degree murder. The Pastinikases appealed, arguing that the jury instructions were incorrect.

Rule of Law


Holding and Reasoning (Wieand, J.)

Dissent (McEwen, J.)

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