Commonwealth v. Pestinikas

617 A.2d 1339 (1992)


Kly met Walter and Helen Pestinikas (Ds) in the latter part of 1981 when Kly consulted them about prearranging his funeral. In March 1982, Kly 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. When given food he was able to swallow he regained some of the weight which he had lost. When leaving the hospital, he expressed a desire not to return to his stepson's home and sent word to Ds that he wanted to speak with them. Arrangements were made for Ds to care for Kly in their home. When Ds came for him 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 Ds' home to administer vitamin B-12 supplements to Kly. Ds agreed orally to follow the medical instructions and to supply Kly with food, shelter, care and the medicine which he required. The prescription was never filled, and the visiting nurse was told by Ds that Kly did not want the vitamin supplement shots and that her services, therefore, were not required. Kly did not get a room at Ds' house but instead he was placed in an 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. Ds' made affirmative efforts to conceal his whereabouts. They told members of Kly's family that they did not know where he had gone and others that he was living in their home. When Kly had been discharged, Ds took Kly to the bank and had their names added to his savings account. Kly's money was transferred into an account in the names of Kly or Helen Pestinikas, pursuant to which moneys could be withdrawn without Kly's signature. From May 1982, to July 1983, Ds withdrew $300 per month. But those sums increased and when Kly died, a balance of only $55 remained. Ds had withdrawn in excess of $30,000. Kly's dead body appeared emaciated, with his ribs and sternum greatly pronounced. He had 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 Kly would have experienced pain and suffering over a long period of time before he died. Ds were tried for murder and were convicted in that they contracted with Kly and then calculated to deprive Kly of those things necessary to maintain his life.