## Facts

- Joseph Kly, age 92, was hospitalized with a condition that made swallowing difficult and required special food, care, and medication.
- After discharge, Kly did not want to live with his stepson; Walter and Helen Pestinikas agreed orally to provide Kly “food, shelter, care, and the required medicine.”
- The defendants received written discharge instructions and a prescription related to Kly’s care, but the prescription was never filled.
- Instead of housing Kly in their home, the defendants placed him in a small enclosed porch in a separate building without insulation or a bathroom and exposed to outside weather conditions.
- The defendants added their names to Kly’s bank account and withdrew more than $30,000 over time, leaving about $55 at his death.
- Roughly two years after Kly’s discharge, he was found dead; an autopsy determined the cause of death was starvation and dehydration.
- The Commonwealth prosecuted on an omission theory: the defendants undertook a duty of care by agreement, then knowingly failed to provide essentials while isolating Kly and using his funds.

## Issues

1. Whether a contractual undertaking to provide food, shelter, and medical care can constitute a “duty to perform the omitted act ... otherwise imposed by law” for omission liability under 18 Pa. C.S. § 301(b).
2. Whether the evidence was sufficient to prove third-degree murder, including duty, causation, and malice, based on the defendants’ failure to provide essential care.

## Decision

- The Superior Court of Pennsylvania affirmed the judgments of sentence for third-degree murder.
- The court held that a legally enforceable contract to provide essential care can create a legal duty under § 301(b), permitting criminal liability based on an omission when the other elements of homicide are proven.
- The court found sufficient evidence that the defendants assumed a duty to provide sustenance, shelter, and medical care; failed to do so; and that the omissions caused Kly’s death by starvation and dehydration.
- The court concluded the evidence supported malice, based on the prolonged deprivation and isolation of a vulnerable victim and the defendants’ financial exploitation and concealment-related conduct.
- The court rejected challenges to the jury instructions that conditioned omission liability on the existence of a contractual duty, finding the instructions consistent with § 301(b).

## Legal Principles

- Under 18 Pa. C.S. § 301(b), criminal liability may be based on an omission when the omitted act was legally required; a legal duty may arise from statute, common law, or a legally enforceable contract.
- A private contractual undertaking to provide essential protective services (such as food, shelter, and medical care) may qualify as a “duty ... imposed by law” for omission-based criminal liability.
- A moral obligation alone is insufficient; omission liability requires a legally recognized duty plus proof of the offense’s remaining elements, including causation and the required mental state.
- For Pennsylvania third-degree murder, malice can be inferred from a course of conduct showing extreme disregard for human life, including intentional withholding of necessities from a dependent, vulnerable person.

## Conclusion

The court affirmed third-degree murder convictions where defendants undertook a contractual duty to provide an elderly man with basic care and medical attention, then deliberately withheld necessities, causing death by starvation and dehydration; the contractual duty satisfied omission liability under § 301(b), and the surrounding conduct supported malice and causation.


Commonwealth v. Pestinikas, 421 Pa. Super. 371, 617 A.2d 1339 (Pa. Super. Ct. 1992)