Appendix — Nixon et ux. v. Pennsylvania

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APPENDIX A — OPINION OF THE SUPREME

COURT OF PENNSYLVANIA DATED AND

DECIDED NOVEMBER 27, 2000

SUPREME COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

Appellee,

v.

DENNIS E. NIXON,

Appellant.

COMMONWEALTH OF PENNSYLVANIA,

Appellee,

v.

LORIE A. NIXON,

Appellant.

Argued March 7, 2000.

Decided Nov. 27, 2000.

x* *

Before FLAHERTY, C.J., and ZAPPALA, CAPPY,

CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

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Appendix A

OPINION

ZAPPALA, Justice.

We granted allocatur for this Court to consider two

issues. First, we consider whether to adopt a “mature minor

doctrine” which would be an affirmative defense to the

parental duty to provide care to a minor. Secondly, we

consider whether Shannon Nixon had a right to refuse

medical care pursuant to her privacy rights under the

constitutions of the United States and this Commonwealth.

For the reasons that follow, we choose not to adopt a “mature

minor doctrine” as a criminal defense and further, we find

that Shannon Nixon’s constitutional right to privacy did not

relieve her parents from fulfilling their statutory obligations.

Therefore, we affirm the order of the Superior Court, which,

in turn, affirmed the order and judgment of sentence of the

Court of Common Pleas of Blair County.

This case arose from the following facts. Dennis and

Lorie Nixon, Appellants, were the parents of the victim,

Shannon Nixon. Shannon Nixon was sixteen years old at

the time of her death. In mid-June 1997, it became obvious

to Appellants that Shannon was not feeling well. Appellants

began to pray for their daughter’s health. They also took her

to their place of worship where Shannon was “anointed”!

Shannon initially reported feeling somewhat better, but then

her condition deteriorated. She became increasingly weak

1. Appellants and their children were members of the Faith

Tabernacle Church, a religion in which illnesses are addressed

through spiritual treatment rather than by medicine.

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Appendix A

and fell into a coma. After a few hours in a comatose state,

Shannon Nixon died. An autopsy determined that Shannon

died from diabetes acidosis, which was a treatable, though

not curable, condition.

Appellants were convicted of involuntary manslaughter,

18 Pa.C.S. § 2504, and also of endangering the welfare of a

child under 18 Pa.C.S. § 4304. These statutes respectively

state:

Involuntary manslaughter

(a) General rule. — A person is guilty of

involuntary manslaughter when as a direct result

of the doing of an unlawful act in a reckless or

grossly negligent manner, or the doing of a lawful

act in a reckless or grossly negligent manner, he

causes the death of another person.

Endangering welfare of children

(a) Offense defined. — A parent, guardian, or

other person supervising the welfare of a child

under 18 years of age commits an offense if he

knowingly endangers the welfare of the child by

violating a duty of care, protection or support.

Appellants’ first argument is that we should adopt a

“mature minor doctrine” and allow Appellants to assert such

doctrine as an affirmative defense to the endangering welfare

of children charge. If the affirmative duty created by

18 Pa.C.S. § 4304 was removed from Appellants, then it

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Appendix A

follows that the involuntary manslaughter conviction would

also fall. This is because the Commonwealth used § 4304 to

show an unlawful act, one of the alternative prerequisites to

§ 2504.

By placing an affirmative duty upon parents and

guardians, the legislature has acted to partially fulfill the

Commonwealth’s duty to care for those individuals who for

one reason or another are legally incapacitated. This duty to

care for those who are legally incapacitated arose under the

sovereign’s duty of parens patriae, and following

independence was assumed by the individual states.

See Commonwealth v. Baldwin, 54 Watts 1 (Pa.1832). By

mandating primary responsibility for the child’s wellbeing

upon the parents, the legislature has not only acted toward

fulfilling its role as parens patriae, but also has recognized

that parents have a duty to provide for their children which

accompanies the right to raise children with minimal state

encroachment. As the United States Supreme Court stated:

It is cardinal with us that the custody, care and

nurture of the child reside first in the parents,

whose primary function and freedom include

preparation for obligations the state can neither

supply nor hinder. And it is in recognition of this

that these decisions have respected the private

realm of family life which the state cannot enter.

But the family itself is not beyond regulation in

the public interest, as against a claim or religious

liberty. And neither rights of religion nor rights

of parenthood are beyond limitation. Acting to

guard the general interest in youth’s well being,

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Appendix A

the state as parens patriae may restrict the parent’s

control by requiring school attendance, regulating

or prohibiting the child’s labor, and in many other

ways. Its authority is not nullified merely because

the parent grounds his claim to control the child’s

course of conduct on religion or conscience. Thus,

he cannot claim freedom from compulsory

vaccination for the child more than for himself

on religious grounds. The right to practice religion

freely does not include liberty to expose the

community or the child to communicable disease

or the latter ill health or death.

Prince v. Commonwealth of Massachusetts, 321 U.S. 158,

166-67, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (citations and

footnotes omitted).

The Appellants argue that their daughter was mature

enough to make her own decisions regarding health care and

religion, and therefore ask us to create an exception to their

obligation on the basis of their daughter’s maturity. In

defining the mature minor doctrine, Appellants refer us to a

decision from our sister state of Tennessee which stated:

Whether a minor has the capacity to consent to

medical treatment depends upon age, ability,

experience, education, training and degree of

maturity or judgment obtained by the minor or,

as well as upon the conduct and demeanor of the

minor at the time of the incident involved.

Moreover, the totality of the circumstances, the

nature of the treatment and its risks and probable

6a

Appendix A

consequences, and the minor’s ability to

appreciate the risk and consequences are to be

considered.

Cardwell v. Bechtol, 724 S.W.2d 739, 748 (Tenn.1987).

See also Belcher v. Charleston Area Medical Center, 188

W.Va. 105, 422 S.E.2d 827 (1992), and In re E.G., 133 Ill.2d

98, 139 Ill.Dec. 810, 549 N.E.2d 322 (1989).

This doctrine is not the legal equivalent of emancipation,

for an emancipated minor assumes all legal responsibility

for his or herself. Thus, in the situation of an emancipated

minor, the legal duty to provide care is no longer applicable.

There is no indication in argument or record that Shannon

Nixon was emancipated. Rather, she lived in Appellants’

home and did not assert her independence from Appellants

in a manner which would lead to a finding of emancipation.

See Nicholason v. Follweiler, 735 A.2d 1275, 1278

(Pa.Super.1999); Ross v. Commonwealth of Pennsylvania,

Department of Public Welfare, 60 Pa.Cmwith. 403, 431 A.2d

1135, 1138 (1981); and Detwiler v. Detwiler, 162 Pa.Super.

383, 57 A.2d 426 (Pa.Super. 1948).

We believe that, without passing comment upon the

wisdom of the mature minor doctrine itself, a terse review

of the facts and circumstances which confronted the courts

of our sister states readily reveals why the doctrine is not

applicable to Appellants’ case.

In Cardwell v. Bechtol, the Supreme Court of Tennessee

addressed the issue in the context of a civil medical

malpractice suit, under that state’s common law of torts. The

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Appendix A

defendant, a licensed osteopath, performed spinal

manipulations on a 17-year-old woman, without the consent

of her parents. After complications arose, her parents brought

suit against the osteopath for a variety of complaints related

to the failure to obtain proper informed consent. As a defense,

the osteopath asserted that the young woman was competent

to, and actually did give informed consent for the procedure

that he performed. The Tennessee court agreed with the

defendant, and adopted the mature minor exception, as

defined above.

In Belcher v. Charleston Area Medical Center, the

Supreme Court of Appeals of West Virginia also adopted a

version of the mature minor doctrine. That court addressed

the doctrine in the context of a wrongful death suit, where

the plaintiffs asserted that their son, a 17-year-old man with

muscular dystrophy, should have been consulted prior to his

doctor’s withholding medical treatment from him due to a

“Do Not Resuscitate” order which had been requested by

his parents. When the young man had a respiratory arrest

and cardiac failure, the hospital staff attempted to revive him

only with the minimal procedures allowed by a “Do Not

Resuscitate” order. That court held that

except in very extreme cases, a physician has no

legal right to perform a procedure upon, or

withhold treatment from a patient without the

patient’s consent, nor upon a child without the

consent of the child’s parents or guardian, unless

the child is a mature minor, in which case the

child’s consent would be required. Whether the

child has the capacity to consent depends upon

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Appendix A

the age, ability, experience, education, training,

and degree of maturity or judgment obtained by

the child, as well as upon the conduct and

demeanor of the child at the time of the procedure

or treatment. The factual determination would

also involve whether the minor has the capacity

to appreciate the nature, risks, and consequences

of the medical procedure to be performed, or the

treatment to be administered or withheld.

Belcher, 422 S.E.2d at 838.

Finally, Appellants bring the case of In re E.G., a Minor,

133 Ill.2d 98, 139 Ill.Dec. 810, 549 N.E.2d 322 (1989), to

our attention. The Supreme Court of Illinois held there that

[t]he common law right to control one’s health

care was also the basis for the right of an

incompetent patient to refuse life-sustaining

treatment through a surrogate.... We see no

reason why this right of dominion over one’s own

person should not extend to mature minors.

139 Ill.Dec. 810, 549 N.E.2d at 326. The rationale of the

Illinois court demonstrates the limitations of the doctrine.

As the Illinois court stated,

[t]he trial judge must determine whether a minor

is mature enough to make health care choices on

her own. An exception to this, of course, is if the

legislature has provided otherwise, as in the

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Appendix A

Consent by Minor to Medical Operations Act. We

feel the intervention of a judge is appropriate for

two reasons.

First, Illinois public policy values the sanctity of

life. When a minor’s health and life are at stake,

this policy becomes a critical consideration.

A minor may have a long and fruitful life ahead

that an immature, foolish decision could

jeopardize. Consequently, when the trial judge

weighs the evidence in making a determination

of whether a minor is mature enough to handle a

health care decision, he must find proof of this

maturity by clear and convincing evidence.

Second, the State has a parens patriae power to

protect those incompetent to protect themselves.

“[I]t is well-settled that the State as parens patriae

has a special duty to protect minors and, if

necessary, make vital decisions as to whether the

condition is life threatening, as wrenching and

distasteful as such actions may be.” The State’s

parens patiae power pertaining to minors is

strongest when the minor is immature and thus

incompetent (lacking capacity) to make these

decisions on her own. The parens patriae authority

fades, however, as the minor gets older and

disappears upon her reaching adulthood. The State

interest in protecting a mature minor in these

situations will vary depending upon the nature of

the medical treatment involved. Where the health

Raa i i ia

10a

Appendix A

care issues are potentially life threatening, the

State’s parens patriae interest is greater than if

the health care matter is less consequential.

139 Ill.Dec. 810, 549 N.E.2d at 327 (citations omitted).

We find the current case to have a crucial distinction

from the cases relied upon by Appellants.” * The legislature

of this Commonwealth has provided a statute which identifies

those minors who are deemed sufficiently mature to give

consent to medical treatment.

Any minor who is eighteen years of age or older,

or has graduated from high school, or has married,

or has been pregnant, may give effective consent

to medical, dental and health services for himself

or herself, and the consent of no other person shall

be necessary. |

Act of Feb. 13, 1970, P.L. 19, No. 10, § 1, 35 P.S. § 10101.

Our legislature, as Appellants assert, has created several other

situations where a minor may give lawful consent for medical

2. Because we find that an affirmative duty was statutorily

placed upon Appellants, we need only note that this Court has

indicated that, “[t]he inherent dependency of a child upon his parent

to obtain medical aid, i.e., the incapacity of a child to evaluate his

condition and summon aid himself, supports imposition of such a

duty upon the parent.” Commonwealth v. Konz, 498 Pa. 639, 450

A.2d 638, 641 (1982) (emphasis added).

3. Appellants fail to cite, and our own research fails to reveal

any cases from our sister states which hold that the doctrine espoused

by Appellants is viable as a defense in a criminal case.

{

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Appendix A

treatment. See Act of April 14, 1972, P.L. 221, No. 63 § 12,

71 P.S. § 1690.112 (minors may consent to diagnosis or

treatment when suffering from the use of controlled or

harmful substances); Act of April 23, 1956 P.L. (1955) 1510

§ 14, 35 P.S. § 521.14 (allows minors to consent to the

treatment of venereal disease); and Act of Dec. 9, 1969 P.L.

333, § 1 as amended, 35 P.S. § 10001 (allows minors over

17 years old to voluntarily donate blood without parental

consent) but cf. 18 Pa.C.S. § 3206(c) (requires a minor to

petition court for consent to an abortion when the parents do

not consent; before giving such consent, the court must

ascertain that the minor is mature and capable of giving

informed consent). 3

We agree that these statutes create specific exceptions

to the general rule of incapacity. The statutes do not, contrary

to Appellants’ assertion, show a legislative intent that any

minor, upon the slightest showing, has Capacity either to

consent to or to refuse medical treatment in a life and death

Situation. We therefore hold that the maturity of an

unemancipated minor is not an affirmative defense applicable

to the charges brought-against Appellants.‘

Appellants’ second argument is that the parental duty to

provide medical care was negated by Shannon Nixon’s

privacy interests under the constitutions of the United States

4. We note that our Superior Court has held, that “even if [the

minor victims] were considered mature enough to freely exercise

their religious beliefs, it does not dispel [the parents’] duty while

the children are in their care, custody, and control to provide them

with parental care, direction and sustenance.” Commonwealth v.

Cottam, 420 Pa.Super. 311, 616 A.2d 988 (1992).

12a

Appendix A

and Pennsylvania.’ This Court has acknowledged that both

~ constitutions do offer protections of personal privacy, which

results from the “penumbra” of articulated rights. See In re

“B”, 482 Pa. 471, 394 A.2d 419 (1978). The Pennsylvania

Constitution encompasses “the right to be let alone.” Stenger

v. Lehigh Valley Hospital Center, 530 Pa. 426, 609 A.2d

796 (1992). The difference between the two constitutions is

in the tests involved in determining if a violation of privacy

has occurred. In order to determine if a violation of the United

States Constitution has occurred, a flexible balancing

approach is employed with increasing levels of scrutiny

corresponding to increasing levels of confidentiality

intrusions. See id. at 801. On the other hand, under

Pennsylvania’s constitution, while the right to privacy is not

absolute, we do not apply a flexible approach. In this

Commonwealth, only a compelling state interest will

override one’s privacy rights. Id. at 802, citing Fabio v. Civil

Service Commission of the City of Philadelphia, 489 Pa.

309, 414 A.2d 82 (1980).

A compelling interest in the welfare of minors may

impinge upon the constitutional rights of both minors and

adults simultaneously. In Commonwealth v. Wormser, 260

Pa. 44, 103 A. 500 (1918), this Court examined whether a

criminal prosecution could stand for the crime of employing

a minor at night and without a certificate. As a defense, the

5. Neither the Commonwealth nor Appellants have addressed

whether parents of a deceased minor have standing to assert the

minor’s constitutional rights as a bar to prosecution of their own

criminal behavior. In the present circumstances, we decline to

address this question sua sponte.

l3a

Appendix A

appellant argued that such a criminal prosecution infringed

upon his, and the minor’s, constitutional right to contract.

We stated,

[t]he statute in question was enacted under the

general police power of the Commonwealth. Its

object is declared te be “to provide for the health,

safety, and welfare of minors,” and it is too clear

for discussion that this is an appropriate subject

for legislative action not only in the exercise by

the Commonwealth of its authority as parens

patriae but also of the inalienable power to enact

such laws as promote the health, morals and

general welfare of the people.

260 Pa. at 46, 103 A. at 501.

As we find that the state’s interest as parens patriae in

the very life of an unemancipated minor is a compelling

interest, and the imposition of a parental duty to provide

care for a minor in their custody is an appropriate subject

for legislative action, we need not to examine this

constitutional question further. Additionally, as we find that

Pennsylvania’s Constitution is more protective of privacy

than the United States Constitution, an analysis of that

jurisprudence is unnecessary.

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Appendix A

In summary, we hold that the mature minor doctrine

suggested by Appellants is not an applicable defense in this

case. We also hold that Appellants’ convictions are not an

unconstitutional violation of the victim’s right to privacy.

We therefore affirm the order of the Superior Court.°

Justice CAPPY files a concurring opinion.

6. We note that Superior Court addressed various constitutional

arguments regarding convictions under 18 Pa.C.S. § 2504 and

§ 4304 in Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616

(1985) and Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d

988 (1992). We have not addressed many of the issues presented in

those cases and will not do so here, as the parties do not raise them.

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Appendix A

CAPPY, Justice, concurring.

From my review of the record, it is evident that Shannon

Nixon did not have the maturity to make an informed decision

regarding medical treatment. Thus, I concur in the majority’s

result, which affirms the order of the Superior Court,

upholding the trial court’s judgment of sentence. I write

separately, however, because I do not agree with the

majority’s characterization of the question that appellants

raised for our consideration or with the majority’s view of

the role that legislative intent should play in this case or

with the majority’s ultimate decision to reject the mature

minor doctrine. !

The question raised in this appeal — did Shannon Nixon,

even though a minor, have the right to refuse medical

attention — is of weighty import, and involves a matter which

1. I found the majority opinion ambiguous. When I read the

majority’s statement on page 5 of its opinion that “(w]e believe that,

without passing comment on the wisdom of the mature minor

doctrine itself, a terse review of the facts and circumstances which

confronted the courts of our sister states readily reveals why the

doctrine is not applicable to Appellants’ case”, I was given to believe

that the majority had decided not to determine, one way or the other,

whether the doctrine would be adopted in Pennsylvania. If this had

been the case, then the better course of action would have been the

dismissal of this appeal as improvidently granted, rather than the

issuance of an opinion containing dicta. It was after some

deliberation of the majority’s discussion of the Statutory exceptions

to the general rule of minor incapacity on pages 7 and 8 of its opinion,

that I concluded that the majority has evaluated the doctrine and

determined that it will not be part of our common law under any

circumstances.

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Appendix A

has “deep roots in our common law.” In re Fiori, 543 Pa.

592, 673 A.2d 905, 909 (1996). In Pennsylvania, the control

of one’s own person and the right of self-determination are

closely guarded through the principle of informed consent,

which declares that absent an emergency, medical treatment

may not be imposed without a person’s permission. Id. The

right to refuse treatment or to withdraw treatment once it

has begun is a logical corollary to that principle. Id.

Under the common law, a minor is deemed incompetent

to provide informed consent. Parents United for Better Schs.,

Inc. v. School Dist. of Phila. Bd. of Educ., 166 Pa.Cmwilth.

462, 646 A.2d 689, 691 (1994). Until the age of majority, a

minor’s parents make medical treatment decisions on his or

her behalf. Id. The Pennsylvania legislature, however, has

rendered the authority of parents to speak for their minor

child with respect to health care less than absolute in certain

circumstances, by enacting several statutes that allow minors

to speak for themselves. Under 35 P.S. § 10101, a minor

who is eighteen or older or graduated from high school or

who has married or has been pregnant, may consent to health

care treatment; under 35 P.S. § 10001, a minor who is

seventeen years of age or older may donate blood in any

voluntary, non-compensatory program without parental

permission; under 35 P.S. § 10103 and 35 P.S. § 521.14(a),

a minor who may be pregnant or infected with a venereal

disease may seek and receive treatment; under 71 PS.

§ 1690.112, a minor who suffers from use of a controlled or

harmful substance may consent to the furnishing of medical

care or counseling; and finally, under 18 Pa.C.S. § 3206(c),

a minor who proves in the court of common pleas that she is

mature and capable of giving informed consent may consent

to and obtain an abortion.

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Appendix A

These statutes are at the heart of the majority’s holding.

The majority states:

[These] statutes create specific exceptions to the

general rule of incapacity. The statutes do not,

contrary to Appellants’ assertion, show a

legislative intent that any minor, upon the slightest

showing, has capacity either to consent to or to

refuse medical treatment in a life and death

situation. We therefore hold that the maturity of

an unemancipated minor is not an affirmative

defense applicable to the charges brought against

Appellants.

Majority opinion at 1155.

While the majority and I agree that these statutes provide

“specific exceptions” to the general precept that minors are

legally incapable of informed consent, the majority and

I part company in several respects.

First, I believe that the majority’s characterization of

appellants’ position is inaccurate. In my view, appellants

did not assert that a minor upon the “slightest showing” of

capacity should be permitted to consent to or to refuse health

care treatment or premise application of the mature minor

doctrine on a “life and death situation.” Instead, appellants

argued that “a minor of demonstrated maturity” or “[a] minor

who is able to demonstrate the requisite maturity” “should

have the ability to make determinations as to medical care.”

(Brief for Appellants, pp. 11-12.).

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Appendix A

Second, I do not believe that legislative intent should

have the decisive role in the case sub judice that the majority

apparently gives it. The majority’s holding against

recognition of the mature minor doctrine is expressly and

exclusively premised on the intent with which the legislature

enacted its statutory exceptions to the general rule of parental

consent. While it is certainly proper and advisable for this

court to take note of relevant statutory authority in assessing

the wisdom of the doctrine, and to strive for a judicial

pronouncement that is consistent with that authority,

see Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897, 904, 905

(1979), it is not appropriate to give it a dispositive role.

Except where the legislature has established a comprehensive

statutory scheme, aimed at occupying an entire area, this

court is guided, not directed, by legislative action. Id.

Lastly, I, unlike the majority, would recognize the mature

minor doctrine. Indeed, the same statutes that inform the

majority’s rejection of the doctrine lead me to the opposite

result. I agree with the legislature’s willingness to make

appropriate exceptions to the rule of minor incapacity in the

first place and with the policies reflected in the exceptions

the legislature has seen fit to enact. By their terms, the

exceptions fall into two broad categories: those that are

premised on a specific medical condition that ought to be

treated and those that focus on a minor’s status. With regard

to the latter, the legislature has decided, for example, that

turning eighteen, marrying, becoming a parent or graduating

from high school are indicative of one’s readiness to make

health care decisions on one’s own. 35 P.S. § 10101.

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Appendix A

In the same way, I believe that when it is demonstrated

that a minor has the capacity to understand the nature of his

or her condition, appreciate the consequences of the choices

he or she makes, and reach a decision regarding medical

intervention in a responsible fashion, he or she should have

the right to consent to or refuse treatment. I would, therefore,

adopt the mature minor doctrine.

The record falls far short of establishing that Shannon

Nixon met this standard. Accordingly, I concur in the

majority’s result.”

2. Because I conclude that the mature minor doctrine does not

apply in this case as a matter of fact, I decline to address appellants’

contention that the doctrine provides them with an “affirmative

defense” to the charges the Commonwealth brought against them.

Because I would find that under the common law, a mature minor

may consent to or refuse medical treatment, I would not reach, and

I express no opinion on, the privacy issue appellants raise under the

United States and Pennsylvania Constitutions. P.J.S. v. Pennsylvania

State Ethics Comm’n, 555 Pa: 149, 723 A.2d 174, 176 (1999).

20a

APPENDIX B — OPINION OF THE SUPERIOR

COURT OF PENNSYLVANIA DATED AND

FILED SEPTEMBER 21, 1998

SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

Appellee,

v.

DENNIS E. NIXON,

Appellant.

COMMONWEALTH OF PENNSYLVANIA,

Appellee,

v.

LORIE A. NIXON,

Appellant.

Argued April 14, 1998.

Filed Sept. 21, 1998.

* * *

Before DEL SOLE, TAMILIA and EAKIN, JJ.

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Appendix B

DEL SOLE, Judge:

Appellants, Dennis and Lorie Nixon, were convicted of

involuntary manslaughter and endangering the welfare of a

child. They were sentenced to two and one-half to five years

incarceration and a fine of $1,000. This direct appeal

followed. We affirm.

On appeal, Appellants raise five issues. The first three

issues concern Appellants’ trial counsel’s ineffectiveness for

failing to raise: (1) Shannon Nixon’s refusal of medical

treatment pursuant to her right of privacy guaranteed by the

U.S. and Pennsylvania constitutions; (2) Shannon Nixon’s

ability to refuse medical treatment as a mature minor; and

(3) a violation of the notice requirement of due process where

spiritual treatment was authorized by statute. Appellants

additionally argue the trial court erred in failing to deliver a

mistake of fact charge to the jury. Finally, Appellants argue

the trial court improperly imposed an excessive sentence.

Appellants were the parents of Shannon Nixon

(“Shannon”). The Nixon family are members of the Faith

Tabernacle Church, a religion in which illnesses are

addressed through spiritual treatment rather than by

medicine. Thus, when Shannon began to feel ill in June of

1997, Appellants took her to be “anointed” at the church

and prayed for her recovery. Shannon initially felt better and

told her parents she had received her “victory”, a recovery

in answer to prayer. However, soon Shannon was ill again.

As Shannon became increasingly weak and fell into a coma,

Appellants continued to pray for her recovery. Shannon died

hours after she fell into a coma. During the autopsy, it was

determined that Shannon died of complications related to

the onset of diabetes acidosis.

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Appendix B

Because of the way Appellants have framed their first

three issues, we choose to address the ineffective assistance

of counsel claims, as well as the merits of the claims

underlying the ineffectiveness claims. Appellants have

complained, and we agree, that the trial court’s rulings on

these issues were not precise. No opinion has been filed to

provide additional guidance on the rulings. Therefore, we

can not determine clearly whether the trial court found these

issues to be waived or whether the trial court addressed them

on their merits. Because Appellants have raised these issues

in the guise of ineffectiveness and alternatively on their

merits, we choose to address both arguments.

Ineffective Assistance of Counsel

Trial counsel is presumed to be effective and an appellant

has the burden of proving otherwise. Commonwealth v.

Williams, 524 Pa. 218, 229, 570 A.2d 75, 81 (1990).

Appellants present three issues they claim trial counsel was

ineffective for failing to raise. A careful review of the record,

however, shows that these issues were adequately raised and

argued by Appellant’s trial counsel before and during the

trial and were rejected by the trial court. Accordingly, there

was no waiver of issues and counsel was not ineffective for

failing to raise these claims.

Right to Privacy/Mature Minor

As described above, Appellants claim that Shannon had

a right to refuse medical treatment pursuant to her

constitutional right to privacy which would eliminate

Appellants’ duty to provide treatment. Appellants argue that

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Appendix B

a court evaluating a privacy interest should look at whether

there exists a compelling state interest upon which to base

encroachment into the right of privacy. Further, Appellants

argue, because Shannon exercised her right to privacy, “her

incapacity as a minor to seek medical treatment fades” and

thus, “the [Appellants’] parental duty is discharged.”

~ Appellants’ Brief at 21. Appellants additionally assert

Shannon’s ability to refuse medical treatment as a mature

minor abrogated Appellants’ duty of care. Because both of

these arguments necessitate an abrogation of Appellants’

parental duty of care, we will address them together.

Although Shannon, as a mature minor, had a right to

refuse medical treatment pursuant to her constitutional right

to privacy, this right does not discharge her parents’ duty to

override her decision when her life is in immediate danger.

Our Supreme Court, in Green Appeal, 448 Pa. 338, 292 A.2d

387 (1972), permitted a sixteen-year-old boy to refuse to

undergo an operation based upon religious beliefs. However,

the permission to refuse medical treatment extended to

minors in Green was strictly limited to situations in which

the minor’s life was not threatened. Thus, Green did not

provide Shannon with the legal means to refuse medical

treatment at a time when her life was in danger.

In a case more directly on point, a panel of this court

specifically refused to extend a minor’s right to exercise

religious beliefs in such a manner that the parents’ duties to

the minor were abrogated. Commonwealth v. Cottam, 420

Pa.Super. 311, 616 A.2d 988 (1992). In Cottam, the

defendants failed to provide food to their fourteen-year-old

son and twelve-year-old daughter for a six-week period. The

24a

Appendix B

defendants argued that their children were mature enough to

voluntarily exercise their religious beliefs by refraining from

eating and consequently, the defendants had no duty to

provide food for the children. The court did not agree, holding

instead that:

... even if [the children] were considered mature

enough to freely exercise their religious beliefs,

this does not dispel [defendants’] duty while the

children are in their care, custody and control to

provide them with parental care, direction and

sustenance. X

Cottam at 335-37, 616 A.2d at 1000.

In Commonwealth v. Barnhart, 345 Pa.Super. 10, 497

A.2d 616 (1985), another set of parents from Appellants’

church were convicted of involuntary manslaughter and

endangering the welfare of a child after relying solely on

spiritual healing to treat their two-year-old son’s cancer. This

court held that every parent in the Commonwealth of

Pennsylvania had a duty of care to their child, at the very

least, “to avert the child’s untimely death.” Barnhart, at 621.

The court elaborated on the nature of the parents’ duty:

A parent has the legal duty to protect her child,

and the discharge of this duty requires affirmative

performance. The inherent dependency of a child

upon his parent to obtain medical aid, i.e., the

incapacity of a child to evaluate his condition and

summon aid by himself, supports imposition of

such a duty upon the parent.

Id. (citations omitted).

25a

Appendix B

Appellants had a duty to their minor child Shannon to

override her own religious beliefs and obtain medical

treatment for her when her condition became life-threatening.

Neither Shannon’s right of privacy, nor her status as a mature

minor abrogated that duty. Thus, Appellants’ arguments fail

on their merits.

Notice

Appellants argue that their prosecution violated notice

requirements of due process where spiritual treatment was

authorized by statute. Appellants’ argument refers to a

possible conflict between criminal statutes and child abuse

statutes. The Child Protective Services Act (“The CPSA”)

provides:

If, upon investigation, the county agency

determines that a child has not been provided

needed medical or surgical care because of

seriously held religious beliefs of the child’s

parents, guardian or person responsible for the

child’s welfare, which beliefs are consistent with

those of a bona fide religion, the child shall not

be deemed to be physically or mentally abused.

The county agency shall closely monitor the child

and shall seek court-ordered medical intervention

when the lack of medical or surgical care threatens

the child’s life or long-term health. In

cases involving religious circumstances, all

correspondence with a subject of the report and

the records of the Department of Public Welfare

and the county agency shall not reference “child

26a

Appendix B

abuse” and shall acknowledge the religious basis

for the child’s condition, and the family shall be

referred for general protective services, if

appropriate.

23 Pa.C.S.A. § 6303(b)(3).

The involuntary manslaughter statute provides:

A person is guilty of involuntary manslaughter

when as a direct result of doing an unlawfulact in

a reckless or grossly negligent manner or the

doing of a lawful act in a reckless or grossly

negligent manner, he causes the death of another

person.

18 Pa.C.S.A. § 2504.

Appellants argue that because the CPSA exempts parents

who utilize spiritual treatment for their children from

characterization as child abusers, they did not have sufficient

notice that their spiritual treatment of Shannon could be

criminal under the involuntary manslaughter statute. We

disagree.

We find that the CPSA and the involuntary manslaughter

statutes are not in conflict in their plain meaning, as well as

under a constitutional analysis. A plain reading of the statutes

shows that an act which does not qualify as child abuse may

still be done in a manner which causes death and thus

qualifies as involuntary manslaughter. This precise situation

occurred in this case. While the Nixons were not considered

27a

Appendix B

child abusers for treating their children through spiritual

healing, when their otherwise lawful course of conduct led

to a child’s death, they were guilty of involuntary

manslaughter.

Appellants point to statutes in Minnesota and Florida

which were found to violate due process requirements upon

review by courts considering appeals of convictions similar

to Appellants’. These statutes, however, differ significantly

from the CPSA. The Minnesota statute in question in State

v. McKown, 475 N.W.2d 63 (Minn.1991), cert. denied, 502

U.S. 1036, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992), provided

that “spiritual means or prayer . . . shall constitute ‘health

care.’ ” Id. at 65, n. 3. Similarly, a Florida statute at issue in

Hermanson v. State, 604 So.2d 775 (Fla.1992), provided that

while spiritual treatment will not be characterized as child

abuse, a court may still order:

... when the health of the child requires it, the

provision of medical services by a physician, . . . ,

or treatment by a duly accredited practitioner who

relies solely on spiritual means for healing in

accordance with the tenets and practices of a well-

recognized church or religious organization.

Id. at 776 (emphasis added).

Thus, the Florida statute raised spiritual intervention to

a level equal to that of medical treatment. The Minnesota

and Florida legislatures specifically defined spiritual healing

as accepted treatment for illness in children, raising it to the

same level as conventional medical treatment.

28a

Appendix B

The CPSA specifically does not equate spiritual

treatment with medical care; rather, it merely exempts parents

who treat their children in this manner from characterization

as child abusers. Further, the CPSA does not negate the duty

imposed on parents to procure medical care for their children;

in fact, the CPSA provides a protocol through which the state

can step in and enforce that duty “when the lack of medical

or surgical care threatens the child’s life or long-term health.”

It is clear that if the Pennsylvania legislature wanted to

authorize spiritual treatment as health care, it could have

adopted a statute similar to the one in Minnesota. However,

the purpose of the CPSA is to ensure that children in life-

threatening danger receive proper medical attention. Thus,

the statutes upon which our sister courts found

unconstitutional are distinguishable from the CPSA.

Jury Charge

At trial, Appellants requested the court instruct the jury

that Appellants were acting under a mistake of fact. Their

mistake of fact, Appellants allege, was that they believed

“their daughter would not die and the Lord would intervene.”

Appellants’ Brief at 35. The trial court, however, found the

facts did not warrant a mistake of fact charge, and based its

holding on Appellants’ testimony about God as the giver

and taker of life. The trial court concluded “. . . there was no

mistake of fact by them seeking divine intervention.”

R.R. at 428a.'

1. In reviewing trial matters, we have relied on the Reproduced

Record because an original trial transcript was never filed with this

court. We note that Appellee has not objected to the Reproduced

Record.

29a

Appendix B

We shall not reverse a trial court’s refusal to give a

requested jury charge unless the court’s refusal was

prejudicial to the defendants. Commonwealth v. Cottam, 420

Pa.Super. 311, 333-35, 616 A.2d 988, 999 (1988). If the

proposed jury charge is inapplicable and improper, the court

should not give it to the jury. Id.

The trial court found that Appellants’ testimony did not

provide a proper basis for a mistake of fact charge. We will

not disturb the trial court’s finding, especially as we look at

the testimony of Appellant Lorie Nixon: “I feel that God is

the giver and taker of life.” R.R. at 388a. While Appellants

had hope and faith that divine intervention could cure

Shannon, they also knew it might not.

Sentencing

Appellants argue the trial court abused its discretion in

imposing a sentence above the aggravated range outlined in

the sentencing guidelines. Further, Appellants assert, the trial

court failed to consider Appellants’ rehabilitative capacity.

We disagree.

Because these issues challenge the discretionary aspects

of sentencing, we must first decide whether to accept

Appellants’ appeal. 42 Pa.C.S.A. § 9781. Appellants’ brief

contains the requisite statement of reasons relied upon in

support of appeal as required by Pa.R.A.P. 2119(f) and

Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17

(1987). Therefore, we must determine if Appellants have

raised a substantial question that the sentence imposed is

not appropriate under the Sentencing Code. Commonwealth

v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

30a

Appendix B

The trial court sentenced Appellants above the

aggravated range outlined in the Sentencing Guidelines; thus,

a substantial question is raised only when the sentence is

unreasonable. Id. at 150-52, 539 A.2d at 374. We note that

ordinarily, allegations that a sentencing court “failed to

consider” or “did not adequately consider” various factors

is really a request for this court to put its judgment in place

of the trial court’s and do not raise a substantial question.

Commonwealth v. Montalvo, 434 Pa.Super. 14, 641 A.2d

1176 (1994). Further, a claim of excessiveness when the

sentence is within the statutory limits is not a substantial

question. Commonwealth v. Dungan, 372 Pa.Super. 323, 539

A.2d 817 (1988). However, because of the unusual nature

of this case, we will briefly address the merits of Appellants’

argument.

The standard of review in sentencing matters is well

settled. Sentencing is left to the discretion of the sentencing

court and will not be disturbed absent a manifest abuse of

discretion. Commonwealth v. Plank, 498 Pa. 144, 145, 445

A.2d 491, 492 (1982).

Appellants argue the trial court improperly considered

their prior record in deciding their sentence. Appellants’ prior

records stem from the death of their child, Clayton, in 1991.

Clayton was nine years old and died from complications

arising from an ear infection. Because Appellants did not

take Clayton for medical treatment, they were prosecuted

and pled no contest to involuntary manslaughter and

endangering the welfare of a child. In that instance,

Appellants received two years of probation.

3la

Appendix B

The trial court based its departure from the sentencing _

guidelines on the repetitive nature of Appellants’ crime. The

trial court adequately explained its rationale and justification

for the sentence in its June 10, 1997 order. The court gave

great emphasis to the lack of opportunity for rehabilitation

of Appellants and possibility of a recurrence of these criminal

events. We will not disturb the trial court’s well-justified

sentence.

Appellants make several other arguments in which they

assert the trial court did not properly give weight to certain

testimony and sentencing factors. However, Appellants do

not dispute the fact that the trial court was aware of and even

addressed these factors. As stated above, we will not disturb

a trial court’s sentence on this basis absent an abuse of

discretion.

Judgment of sentence affirmed.

32a

APPENDIX C — PA. R.A.P. RULE 1925 ORDER OF

THE COURT OF COMMON PLEAS, BLAIR COUNTY,

PENNSYLVANIA DATED AND FILED JULY 16, 1997

THE COURT OF COMMON PLEAS

BLAIR COUNTY, PENNSYLVANIA

96 CR 1260

COMMONWEALTH OF PENNSYLVANIA

v.

DENNIS NIXON

NORMAN D. CALLAN JUDGE

Pa. R.A.P. RULE 1925 ORDER,

AND NOW, this 16th day of July, 1997, in conformance

with Pa. R.A.P. Rule 1925, the reasons for the rulings on the

pre-trial motions are set forth in the Orders dated February

11, 1997. Individual voir dire was conducted on the day of

Jury Selection March 31, 1997, and completed on April 1,

1997. The reasons for the rulings on the objections made

during trial are set forth in the trial transcript. The reasons

for the sentence imposed are set forth in the sentencing

transcript and the Order dated June 10, 1997.

BY THE COURT:

s/ Norman D. Callan

3.

33a

APPENDIX D— ORDERS OF THE COURT OF COMMON

PLEAS OF BLAIR COUNTY, PENNSYLVANIA DATED

FEBRUARY 11, 1997 AND FILED FEBRUARY 14, 1997

IN THE COURT OF COMMON PLEAS OF

BLAIR COUNTY, PENNSYLVANIA

96 CR 1260

COMMONWEALTH OF PENNSYLVANIA

DENNIS EUGENE NIXON, SR.

96 CR 1261

COMMONWEALTH OF PENNSYLVANIA

LORIE ANN NIXON

PRESIDING JUDGE: — THE HONORABLE NORMAN D.

CALLAN

* oe *

ORDER

AND NOW, this 1 ith day of February, 1997, the above-

captioned matter having come before this court pursuant to

pre-trial omnibus motions, on this one in particular founded

on the free exercise clause of the Constitution of the United

34a

Appendix D

States, as well as that of the state, Article 1, Section 3, the

court is familiar with the cases referred to, not only Barnhart,

but other constitutional issues dealing with freedom of

religion and the free enterprise clause provides substantial

protection for lawful conduct granted in religious belief. It

does not, however, stand for the proposition of allowing

unlawful conduct. The court is satisfied that the state has a

compelling state interest in the public health, safety, morals

and general welfare. There can’t be any more least restriction

than the prosecution after the event.

For those reasons, the objection and the Motion to

Dismiss based on the free exercise clause is denied and

dismissed.

BY THE COURT:

s/ Norman D. Callan

J.

35a

Appendix D

IN THE COURT OF COMMON PLEAS OF

BLAIR COUNTY, PENNSYLVANIA

96 CR 1260

COMMONWEALTH OF PENNSYLVANIA

DENNIS EUGENE NIXON, SR.

96 CR 1261

COMMONWEALTH OF PENNSYLVANIA

LORIE ANN NIXON

PRESIDING JUDGE: — THE HONORABLE NORMAND.

CALLAN

* * *

ORDER

AND NOW, this 11th day of February, 1997, the above-

captioned motion to dismiss based upon the age of the alleged

victim, being three days shy of 17 years of age, and therefore,

not subject to the caveats of Barnhart and Cottam, the court

having reviewed both of those cases, the court is satisfied to

follow the language of Cottam at 616 A.2d at Page 1000,

36a

Appendix D

“Tfeven if Laura and Eric were considered mature

enough to freely exercise their religious beliefs,

this does not dispel appellant’s duty while the

children are in their care, custody and control, to

provide them with parental care direction and

sustance.”

The court based upon that is satisfied that the motion to

dismiss based upon the age of the victim must be denied and

dismissed at this level. This will not preclude a motion for a

demurrer during the trial, in the event that the factual basis

can be made out that would bring it within the confines that

there was no duty of parental care, that she was not in the

custody of her parents, or would take it out of the above-

quoted aspect of the Cottam case.

BY THE COURT:

s/ Norman D. Callan

J.

37a

Appendix D

IN THE COURT OF COMMON PLEAS OF

BLAIR COUNTY, PENNSYLVANIA

96 CR 1260

COMMONWEALTH OF PENNSYLVANIA

DENNIS EUGENE NIXON, SR.

96 CR 1261

COMMONWEALTH OF PENNSYLVANIA

LORIE ANN NIXON

PRESIDING JUDGE: — THE HONORABLE NORMAN D.

CALLAN

*x * *

ORDER

AND NOW, this 11th day of February, 1997, the above-

captioned matter having come before this court on one of

the omnibus pre-trial motions to dismiss, premised on the

wording in the Child Protective Services Act, 23 Pa. C.S.A.

b3, definition of child abuse, the court rejects embracing the

caselaw from New Jersey. The court is satisfied with the

38a

Appendix D

current status of Pennsylvania law as to Barnhart and Cottam,

as to the duty of these parents and that their religion is not a

defense in the respect as to the crimes alleged in this

prosecution.

For that reason, the motion to dismiss is denied and

dismissed.

BY THE COURT:

s/ Norman D. Callan

J.