Criminal Law, Pages 128–131

Commonwealth v. Pestinikas

Superior Court of Pennsylvania, 1992


The victim, Kly, consulted with defendants about pre-arranging his funeral. He had a medical condition that made it very hard for him to swallow food and was hospitalized for this the next year. He did not wish to go back to his stepson's house when he was discharged, so he arranged for defendants to care for him in their home in 1982. They were advised of what was required, and orally agreed to supply the victim with food, shelter, care, and medicine as he required.

However, defendants never filled the victim's prescription and moved him to a porch at another building they owned. This porch was 9'x30', had no insulation, refrigeration, bathroom, sink, or telephone, and cracks in the walls exposed the victim to the elements. Defendants also tried to conceal his whereabouts and lied to those inquiring about where he was.

Defendants also had their names added to his savings account and transferred it to an account where defendants could access it without his permission. They initially only withdrew their $300 fee, after the first year they began withdrawing larger sums. Defendants had withdrawn roughly $30,000 in the year afterwards, leaving only $55 in the account when Kly died.

In 1984, Kly starved to death after 2½ years of being "cared for" by defendants. Defendants called the police and claimed to have given him cookies and juice that morning, but an autopsy revealed that he had been dead for up to thirty-nine hours beforehand. In addition, he would have slowly and painfully starved for a long period before he died.

Procedural History:

Trial court held that defendants could be guilty of murder for the alleged acts if a contract imposed a duty upon them. Thereafter, the jury found defendants guilty of third-degree murder.


Were defendants guilty of murder?


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 129–130
18 Pa.C.S. § 301
  1. 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.
  2. 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.


Several other states have upheld convictions for manslaughter for starving people. A duty imposing a duty is a legal duty. This is what the law means by a duty imposed by law, as opposed to merely having a moral duty. A failure to fulfill this legal duty then may be the basis for a charge of criminal homicide if the failure causes another's death. As there was evidence that defendants' failure to provide food and medical care for Kly did cause his death, their omission was sufficient to support their conviction. Murder also requires mens rea, which is for a jury to decide.


Yes, defendants' malicious failure to act with a contractual duty of care was sufficient to find them guilty of murder. Affirmed.