concurring:
I join the majority Opinion by Wieand, J., but write separately because some elements of the majority Opinion are expressed differently than I perceive the issues to be and do not adequately express my views in this regard. I have no problem with the disposition of the technical rulings on the admissibility of evidence, the sufficiency of the evidence, avoidance of prosecution by exerting political influence and permission to search and to make a voluntary statement.
The dissent misconstrues the thrust of this case when it would find, contrary to the instruction of the trial court, the failure to perform a civil contract, through simple omission alone, is insufficient to meet the voluntary act requirements of Section 301 of the Crimes Code. The dissent errs in asserting that a contract may not create a legal duty which can lead to a homicide charge and conviction when the evidence establishes the breach of that duty was the direct cause of death, and secondly, in presuming that the evidence established a simple omission of the duty. It is clear that a contractual undertaking to feed, clothe and shelter an elderly dependent person establishes a legal duty to provide such reasonable care and that failure to do so, resulting in the death of the dependent *393person, may be the basis for a homicide charge. All that remains to be determined is the degree of the crime based upon whether the omission was negligent or intentional. As to the degree of the homicide, where the evidence establishes malice by reason of the prolonged denial of food, liquids and adequate care and shelter, the seclusion, isolation and concealment of the dependent person from professional caretakers, while withdrawing funds from the victim’s bank account for the personal use of the caretaker, malice and implied intent were present and a jury properly could find beyond a reasonable doubt guilt of murder in the third degree.
The facts in this case are essential to the legal ruling as they establish the contractual undertaking, the obligation, the omissions and voluntary actions, the malicious concealment and the misappropriation of funds of the victim. They establish the initial contact between the appellants and the decedent, Joseph Kly, who was approximately 90 years old, was made when he attempted to make pre-arrangements for his funeral. Six months later, the decedent was taken to Moses Taylor Hospital in the city of Scranton by members of his family, where he remained for approximately three weeks. When discharged from the hospital, he was alert of mind and was able to eat certain types of food and was gaining weight under the care of the hospital. Upon discharge, he informed hospital officials he did not wish to return to live with his stepson and instead asked them to contact the appellants. After conferring with the decedent and hospital personnel, appellants made arrangements to take Mr. Kly home with them.
On the day of discharge, April 12, 1982, the Pestinikas’ appeared at the hospital and were given certain instructions by medical personnel. Hospital personnel testified appellants agreed to abide by these instructions and provide Mr. Kly with the food, care, shelter and medicine that he needed. In particular, Mr. Kly needed a soft diet, and while he was mobile when discharged from the hospital, he was able to walk only with the aide of a walker. A prescription was given for Mr. Kly’s medication which, almost two years later, was found *394never to have been filled. Proceeding directly from the hospital, the appellants and Mr. Kly went to the bank where he had his savings account and placed that account in joint names with the defendants, giving them access to his money. Social security and black lung benefits which were deposited directly into this account were transferred to the account of Joseph Kly or Helen Pestinikas, permitting them to withdraw money from the account without Mr. Kly’s signature.
The evidence showed Mr. Kly was placed by the defendants in a hastily prepared, sparsely furnished closed-in porch in the building known as the Stage Coach Inn. Mr. Kly’s room was approximately 9 feet by 20 feet, cracks were showing in the walls, exposing the premises to the air. The room had no insulation, no bathroom, no sink, no refrigeration and no food. The Pestinikas’ led others to believe that Mr. Kly was staying at their home on North Main Avenue in the city of Scranton. Visiting Nurses Association personnel testified appellants prevented employees from this organization from seeing Mr. Kly. From May 1982 through July 1983 withdrawals from Mr. Kly’s bank account averaged between $300 and $320 per month, an amount generally consistent with the appellants’ agreement to take care of Mr. Kly for $300 per month. Beginning in August 1983, however, there was a systematic withdrawal of larger amounts of money from the joint account: $900 was withdrawn in August, $1,200 in October, $3,300 in November, and $3,500 in December. In 1984, sums in the amount of $1,500 in January, $1,000 in February, $2,700 in March, $2,100 in April, and $1,000 in May were withdrawn. In succeeding months during 1984 through November, when Mr. Kly died, thousands more dollars were withdrawn from the account so that a total of $35,000 had been withdrawn and when Mr. Kly expired, only $55 remained.
During the period Mr. Kly was in their care, the Pestinikas’ refused to disclose his whereabouts to his family, to visiting nurses or to hospital personnel. Ambulance personnel who arrived at the Stage Coach Inn on November 15, 1984, described the scene as sub-human. Mr. Kly was found in a bed in a room covered with filth and human feces. His severely *395emaciated body weighed less than 60 pounds. According to medical experts, Mr. Kly died not only of starvation but also dehydration from lack of water. Those experts testified it would have taken a considerable period of time for him to die in that condition and the process would have been extremely painful. The Commonwealth alleged that the starvation of Mr. Kly was deliberate on the part of the defendants in that they not only denied him of sustenance but prevented others from providing it.
Appellants were charged with first degree murder,1 third degree murder,2 voluntary manslaughter,3 involuntary manslaughter,4 criminal conspiracy to commit murder5 and recklessly endangering another person.6 Walter Pestinikis was also charged with two counts of intimidation of witnesses.
Following a jury trial lasting sixty (60) days, appellants were found guilty of murder in the third degree and recklessly endangering another person.
It should be considered first whether the court erred in instructing the jury that if the Commonwealth established beyond a reasonable doubt that the defendants owed Mr. Joseph Kly a legal duty of care by virtue of a contract clearly understood by defendants, who had the means, ability and opportunity to perform the duties of care, and the omission or failure to take care of Mr. Kly was the direct cause of his death, it could proceed to determine whether the Commonwealth proved each of the defendants guilty of any of the crimes.
Appellants contend and the dissent agrees the charge was in error because a civil contract cannot support a legal duty, the breach of which can result in criminal prosecution for homi*396cide. Section 301(b)(2) of the Crimes Code provides in relevant part:
Liability for the commission of any offense may not be based on an omission unaccompanied by action unless ... a duty to perform the omitted act is otherwise imposed by law.
The dissent concedes “an omission to act may create criminal culpability under our Crimes Code even though the law defining the offense, as here, requires an ‘act,’ where ‘a duty to perform the omitted act is otherwise imposed by law.’ 18 Pa.C.S. § 301(b)(2).” Commonwealth v. Cardwell, 357 Pa.Super. 38, 44, 515 A.2d 311, 314 (1986), alloc. den., 515 Pa. 573, 527 A.2d 535 (1987). Hence, if it is possible to find there was a duty imposed by law, the “simple omission,” resulting in death, would result in culpability on the part of appellants.
The majority properly holds section 301 is broad enough to include a contractual undertaking. There is no Pennsylvania case which holds otherwise or requires the stringent interpretation adopted by the dissent. The listing of statutory provisions by the dissent, which includes the term “imposed by law,” because they codify duties in many areas of the law, does not thereby limit the application of that term in this instance. Since the legislature has not spelled out its intent, we may look to the common law, the model penal code from which the section was drawn, and to the interpretation of such provisions by courts in other jurisdictions to guide us.
Corpus Juris Secundum states:
A charge of manslaughter may be predicated on a failure to act as well as on an act, that is to say, a failure to perform a legal duty may form a basis for involuntary manslaughter.
It is necessary and sufficient that the omission be due to gross or culpable negligence, or recklessness, and such culpable state must have been the proximate cause of the death. The death must have resulted from the neglect of a plain legal duty imposed by law or contract on accused personally.
*39740 C.J.S. HOMICIDE § 92. Omission to Perform Duty (footnotes omitted: see United States v. Bradford, 344 A.2d 208 (D.C.App.1975); Smith v. State, 408 N.E.2d 614 (Ind.App.1980); Delay v. Brainard, 182 Neb. 509, 156 N.W.2d 14 (1968); State v. Young, 56 A. 471 (1903); Davis v. Commonwealth, 230 Va. 201, 335 S.E.2d 375 (1985); State v. Benton, 38 Del. 1, 187 A. 609 (1936)).
61 ALR3d 1207, Homicide by Withholding Necessities, provides:
§ 2. Summary and analysis
[a] Generally
Generally speaking, in order that a person who withholds food, clothing, or shelter from another may be found criminally liable under general statutes defining murder or manslaughter, it must be shown that (1) such person owed a duty to furnish food, clothing, or shelter; (2) the conduct of such person in not furnishing food, clothing, or shelter was wilful or done with malicious intent, or constituted culpable negligence; and (3) the lack of food, clothing, or shelter was the proximate cause of, or a cause contributing proximately to, the death....
Id. (footnotes omitted). While the initial annotation dealt primarily with duties of parents to children, and adults were not included in the consideration, the annotation has been supplemented (1991) by section 5.5, Failure of nonparent to provide food to a dependent adult, which provides:
Evidence was sufficient to support conviction of husband and wife for criminally negligent homicide of husband’s mentally retarded and totally dependent adult brother, who died of malnutrition and inflammation of lungs, where decedent did not receive adequate nutrition, weighed 75 pounds at time of death, and had not been taken to see a doctor during last two years of life. People v. Flayhart (1988, App Div, 3d Dept) [136 A.D.2d 767] 523 NYS2d 225.
To establish guilt for murder where death results from exposure to freezing weather, there must be a legal or con*398tractual duty which defendant was bound to perform. State v. Berry, 36 N.M. 318, 14 P.2d 434 (1932).
61 ALR3d 1207 § (2)(a) provides:
The question of the nature of the duty to provide food, clothing, or shelter, and its violation, has arisen most frequently in cases involving the parent-and-child relationship, although it also has arisen in a few instances involving husband and wife, as well as in an apparent or alleged guardian-and-child relationship.
Id. (footnotes omitted). See Jones v. United States, 113 U.S.App.D.C. 352, 308 F.2d 307 (1962) (Jones was convicted of involuntary manslaughter for failure to perform her legal duty of care of an infant). In Jones, the appeals court reversed because the trial court had not instructed on the legal duty of care, specifically whether the defendant had entered into a contract with the mother for care of the deceased or alternatively had assumed the care of the infant and secluded him from the care of his mother.
While Smith, supra, is not precisely on point it gives guidance as to the efficacy of a contractual obligation or assumption of cafe to establish legal liability sufficient to charge criminal homicide. Section 5.5 extends this rationale to nonparent-adult.
While Pennsylvania is silent on the precise meaning to be given to the term “duty imposed by law,” other states have made such determinations.
Duty imposed by law ... means either duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in reported decisions of the appellate courts of the State or jurisdiction involved.
Mauldin v. Sheffer, 113 Ga.App. 874, 880, 150 S.E.2d 150, 154 (1966); Sutker v. Pennsylvania Insurance Co., 115 Ga.App. 648, 651, 155 S.E.2d 694, 698 (1967), cert. denied. 22 C.J.S. § 44, footnote 45, states: “Rules governing imposition of duty to render aid or assistance as element of civil negligence are applicable to imposition of duty in context of criminal negli*399gence.” People v. Oliver, 1 Dist., 210 Cal.App.3d 138, 258 Cal.Rptr. 138, reh. den., review denied (1989).
What makes the contract or assumption of care a duty imposed by law is assumption of a responsibility for the care of a dependent person who thereby loses the protection he would have for being cared for by others with more specific legal responsibility. The history of homicide by omission to provide care primarily is traced through English law and American cases that clearly followed English law. The majority of cases resulting in murder or manslaughter charges involved infants and children, spouses, prison inmates, poor house inmates and sailors. In each of those categories there was a duty of care owed by dominant persons to dependent persons who were subject to the control of the superior persons. These duties were fixed in common law long before any rights were established by statute or made punishable at criminal law. The theory upon which criminal prosecution followed death by omission or callousness is the “depraved heart theory” attributable to a statement made by Lord Campbell in Regina v. Hughes, 1857, 7 Cox C.C. 301, 302:
But it has never been doubted that if death is the directed consequence of the malicious omission of the performance of a duty (as a mother to nourish her infant child) this is a case of murder. If the omission was not malicious and arose from negligence only, it is a case of manslaughter.
Hughes involved the death of a workman caused by the failure of a fellow workman to take certain precautions in lowering bricks down a shaft. Hughes points out what has been ignored by the dissent. A legal duty may arise in many ways from enumerable relationships with or without contractual or legislative enactments. To require a statute to be enacted to establish the duty is to ignore the evolution of law and the incorporation of common law in the statutory law. If common law is to be eradicated, it must be done so with specific language by the legislative enactment which nullifies it.
In Gibbins and Proctor, 1918, 13 Crim.App.Rep. 134, the English court affirmed murder convictions against the father of a seven-year old child and the father’s paramour for causing *400the child to starve to death. As to the paramour, Proctor, who had undertaken the obligation to provide for the child, the court, quoting from an earlier case of Instan, 1893, 1 QB. 450, 17 Cox C.C. 602, declared that Proctor had a legal duty to the child that she “willfully and deliberately left unperformed, with the consequence that there had been an acceleration of the death of the deceased owing to the non-performance of that legal duty” and that a verdict of manslaughter “at least was inevitable.” 13 Crim.App.Rep. at 139.
The crime of murder in the third degree in its elements comprehends these timeless concepts of culpability. In describing the element of malice which is necessary to a finding of third degree murder, supplying the specific intent required, our Court has stated: “Malice consists either of an express intent to kill or inflict great bodily harm, or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, indicating unjustified disregard for the probability of death or great bodily harm.” Commonwealth v. Person, 345 Pa.Super. 341, 498 A.2d 432 (1985); Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981).
The irrationality of the dissent’s position is the implication that by entering into a contract appellants are somehow insulated from all the acts and omissions which clearly establish their guilt of third degree murder because the Legislature did not specifically define a contract as creating a duty imposed by law. The only rational interpretation of duty is that the law will find the duty when the duty clearly exists by statute, contract or action of the parties. See Model Penal Code § 2.01, Comment 3, N. 30: “The duty imposed by law may be a statutory duty, a contractual duty, or duty arising from tort law.” In construing the legislative intent we cannot fail to consider the comments of the Model Penal Code and the guidance provided by common law which it codifies. Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976).
The question as proposed by the dissent ignores the quintessential elements of this case which are the active and passive negligence and intentional denial of life-sustaining care *401to a dependent elderly person appellants undertook to maintain at the victim’s expense. It is not the contract alone which measures the liability but also the callous mistreatment that went beyond the mere failure to fulfill the contract. This contractual failure was exacerbated and made more culpable by the appellants’ actions in active concealment of the victim’s condition from relatives and medical authorities, thereby preventing him from being saved from incredible suffering and death comparable only to that suffered by persons incarcerated in German, Russian and Japanese death camps during World War II. If appellants are insulated from liability in the death of the victim in this case because he entered their care voluntarily or by agreement, many thousands of Jewish men, women and children who believed they entered camps in Europe to be cared for pending relocation, have suffered their unspeakable degradation, pain and death in vain.
Society can best be measured by the manner in which it treats its elderly and its children. In this case, treatment of 92-year old Joseph Kly was so far below any acceptable standard of reasonable care by persons owing a duty of care that to ignore their behavior is to repudiate the laws of society and to return to the law of nature. We can be punished for throwing trash on a sidewalk yet may suffer no penalty for discarding a human life by denying him sustenance and deliberately causing his death. The trial court gave a carefully, thought out and well-worded instruction on creation of a legal duty by means of an oral or implied contract. Coupled with the evidence of deliberate life-threatening abuse and neglect as we understand those terms today, the jury properly and without any other reasonable choice concluded the elements of third degree murder were established beyond a reasonable doubt by the Commonwealth.
OLSZEWSKI, J., joins concurring opinion by TAMILIA, J.. 18 Pa.C.S. § 2052(a).
. Id., § 2502(c).
. Id., § 2503.
. Id., § 2504.
. Id., § 903.
. Id., § 2705.