*1 the crime element of this essential prove of the failure to light reversed. must be conviction trespass, appellant’s of defiant relinquished. Jurisdiction reversed. Judgment sentence A.2d 195 Pennsylvania, COMMONWEALTH ZEWE, Appellant. David Pennsylvania. Superior Court Argued 1995. June Aug. Filed 1995. *3 Rothman, Pittsburgh, appellant. David for
H. Com., Atty., Pittsburgh, Asst. Dist. Streily, Michael appellee. HESTER, JJ. CIRILLO, FORD ELLIOTT and
Before CIRILLO, Judge: entered in judgment from a of sentence appeals
David Zewe *4 his Allegheny County fоllowing Pleas the of Common Court murder1 and three degree two counts first conviction for We affirm. recklessly endangering person.2 another counts of Alan S. the Honorable was tried a before Zewe at presented 1986. The evidence Penkower November from mental illness Zewe had suffered trial established that the years necessitating three to events approximately prior in in in 1976 and Navy this He enlisted the appeal. 2501(a). § 1. 18 Pa.C.S.A.
2. 18 Pa.C.S.A. 2705. form of voices auditory hallucinations in the began having not Zewe did accusing dog. him of sex with his having initially anyone problem. inform of his where his audi- after, Japan Zewe transferred to
Soon was the manifestations of hallucinations Outward tory continued. in he and Japan hallucinations drew attention Zewe while a two Zewe and received psychiatrist. sought sent to a was leave to return to the United States. week from discharged As a result of his mental illness Zewe was (1980) to Japan from Navy. From the time he returned Zewe, (1983), he was custody taken when the time he was into home. this parents’ During in at his hospital, not lived was schizophrenic a diagnosed paranoid time Zewe was his mental illness. medication for treatment of prescribed However, As a sporadically. took his only prescriptions he result, fluctuated, out- point no was he his condition his the source of wardly complained violent.3 Zewe that had Navy and electrodes that the problem was transmitters head. implanted his door and his family parents.
The Posati lived next to Zewe Zewe they at trial knew who Family members testifiеd outside, more than rarely saw him said regularly was they any no They knowledge hello. also testified that had animosity between families. family were a September having
On Posatis to thirty peo- by approximately twenty-five reunion attended guests decided roughly p.m. At 6:00 the Posatis and their ple. volleyball being up net was set play volleyball. While the entering yard Zewe the Posati’s guests some nоticed happening, what was heavily anyone armed.4 Before realized his had told point 3. At one Zewe indicated to mother that voices anything she asked would ever "do him commit murder. When if he that," "no, guess During the responded like I not.” summer shooting head “told younger told his brother that the voices his you hurt because I you, anything but I never do me to hurt would you.” love shooting automatic weapon .223 caliber semi 4. The used (a velocity with a six Reuger high weapon). was also armed pistol. All were forty-five caliber automatic millimeter rifle and semi *5 congre- had guests who began firing group into Zewe gated outside. (the shot, of Mr. Posati son Creaig people the several
Of cousin) Posati) as died (Creaig’s and Frantz Michael and Mrs. Phillip that afternoon. injuries they sustained a result Downard, guests at Kosakowski, Lynne all Frantz and Claude shooting. during also were wounded party, as described witnesses expression facial visibly calmed shooting, expression but his during the “angry” to Mr. Posati and statements began making soon after. He ... shot these I’ve done I’ve such as “Look what guests, other lay Creaig to Posati Referring ... boys two shoot me.” me, hassling I can’t take Zewe “He’s been ground, on the said it anymore.” Zewe not resist when he summoned and did police
The were custody. He asked and taken into was disarmed and they asked for it “they not kill him and stated that police it.” got at legally that he was insane establish attempted guilty a not verdict based killings sought
the time of the was found At the close of trial Zewe insanity on his defense.5 the first two counts murder of ill on of another endangerment of reckless and three counts degree person. He was which were denied. filed motions post-verdict sentences two concurrent life by Judge Penkower to
sentenced convic- years and one to two each degree for first murder run con- person of another endangerment tion of reckless A timely appeal notice secutively with life sentеnces. was filed. for our review: eight
Zewe raises claims large quantity of additional ammunition fully loaded and Zewe had weapons procured prior the onset of person. had been his Zewe’s mental illness. contention that he insanity centered around Zewe’s 5. The defense they thought guests party because he had opened fire on the protect police, thе voices told him gun from the obtained himself. *6 (1) insanity as a the record established Zewe’s Whether or, alternative, law, whether the verdict of in the matter weight of evidence? against the the (2) testi- jury expert to the charge the court’s Whether of a fair trial? deprived appellant mony (3) error committed reversible the trial court Whether on irrele- expert of Zewe’s allowing thе cross examination and immaterial matters? vant (4) deprived ill mentally but guilty the verdict of Whether equal protection? of process Zewe due (5) ill denied guilty mentally the verdict of Whether law protection includ- process equal Zewe of due ing effective assistance of counsel?
(6) of the of the verdict Whether enactment thus Pennsylvania’s police power, ill valid exceeds of his rights? Zewe constitutional depriving (7) the because trial is entitled to a new trial Whether Zewe jury? court the instructing erred (8) new because of the Zewe is entitled a trial Whether closing by inaccurate the Commonwealth? his initially proved insanity contends that therefore, and, be a new trial. granted
a matter of should law however, if is Pennsylvania, states that there law issue of insаni sufficient for a defendant to raise the evidence prove is on the defen ty, the burden Commonwealth v. a doubt. Commonwealth sanity beyond dant’s reasonable (1983). 458, Ruth, places A.2d This Pa.Super. 309 455 700 legally the defendant is insane decision of whether or not judge, than the who jury within the discretion of the rather Therefore, of law. because determination decides matters is be sanity matter оf fact to decided of the defendant’s no first claim has merit. jury, portion the first is against also claims that the verdict of the evi weight issues weight of the evidence. Where appellate of an concerned, it is not the function dence are record for based on a cold to substitute its judgment court 451 Pa. Paquette, Commonwealth v. that of the trial court. 24 Commonwealth, 837, (1973); v.
250,
841
McElrath
301 A.2d
(1991).
431, 443,
740,
A nеw trial
592 A.2d
745
Pa.Super.
405
only
of the evidence
weight
to the
challenge
on a
is warranted
one’s
as to shock
contrary
is so
to the evidence
if the verdict
441,
Further
Here, at trial as to eyewitnesses numerous testified before, as shooting, after the during, demeanor Zewe’s heard testi jury made. The recounted comments he well as in voices his by Zewe hаd been told past, that the mony They to resist them. but had been able people, head to hurt that at the thought people that Zewe testimony also heard to going and were police from the gun had obtained party himself, did yet protect him and he had to try to shoot took they the when police to himself from attempt protect not him custody. into legally Zewe was insаne witness testified that expert
Zewe’s expert that his Zewe asserts killings. at the time of the lay wit- that of the Commonwealth’s testimony outweighs held, however, that: has testimony. This court nesses’ is that evidence Pennsylvania the law It seems clear that the sufficient to establish alone can be lay witnesses testimony as to expert who has offered sanity of a defendant by meet its burden may The Commonwealth insanity. his actions, conversations, the defendant’s concerning testimony crimes from which the at the time of the and statements when he doing he was can infer that he knew what jury that his actions and that he knew committed the crimes wrong. were
25 413, 409, A.2d 419 Young, 276 Commonwealth Scarborough, (1980). Commonwealth v. See also 523, 526-27 (1980) (it 147, 300, is to the up 151 Pa. A.2d the credibility weight to the factfinder determine evidence, testimony). even psychiatric case, upon evidence which jury ample
In this
the
had
The fact
shootings.
at
time of the
sanity
Zewe’s
the
judge
lay
of several
witnesses
jury
testimony
that
the
believed the
expert
Zewe's
certain-
testimony proffered
over that of the
justice.
We conclude
not shock the court’s sense
ly does
weight of the evidence.
against
that
the verdict was not
a fair trial
that
did not receive
Zewe next asserts
they
jurors
to instruct
that
because the trial court refused
not
it
opinion and could
afford
ignore
expert’s
could not
testimony
of other witnesses.
weight
they
the same
would
law in
is that it
Pennsylvania
As was stated
previously,
weight
determine how much
afford
up
jury
Scarborough,
at
421 A.2d
testimony
of witnesses.
Pa.
reading
Pennsylvania,
of the law
upon
151. Based
this
the trial court
to utilize Zewe’s
instruc
properly refused
inis
tion and instead relied on an instruction that
substantial
conformity
Pennsylvania Suggested
with the
Standard Crimi
(Crim) See Pa.S.S.J.I.
nal
4.10A.
Jury Instructions.
trial
third claim
error states
*8
the
to cross-ex
erroneously permitted
court
Commonwealth
Martone,
Dr.
and immaterial
expert,
amine his
on irrelevant
however,
matter,
is limited
argument
matters.
on this
why
that
the cross-
general
discussion of
feels
authorit
improper
examination
with no citation to relevant
was
an
has
that
section of
argument
ies.6 This court
held
the
points
must
include relevant discussion of
appellant’s brief
authorities. Common
along
pertinent
raised
with citations
(1992).
498,
wealth v. Rodgers,
413
claims waived. issue guilty mentally but next contends that the verdict Pennsyl- process equal protection.
ill him of due deprived statute, ill found at 18 Pa.C.S.A. mentally but guilty vania’s 314, states: (a) offers a defense timely rule. —A who person General Proce- Rules of Criminal in accordance with the insanity if ill” at trial mentally found may “guilty dure be doubt, finds, beyond a reasonable trier of facts offense, ill time of mentally at the of an was person legally and was not insane commission of the offense of the offense. time of the commission (c) 42 of this section purposes Definitions. —For found persons (relating disposition § 9727 Pa.C.S. ill): mentally guilty but
(1) dis- “Mentally a result of mental ill.” One who as defect, appre- either capacity or lacks substantial ease or to conform his of his conduct wrongfulness ciate the of the law. requirements conduct to the (2) commission of “Legal insanity.” At the time of the a defect of act, laboring was under such the defendant mind, not to know the reason, frоm disease or, if he did doing of the act he was quality nature and it, doing know what he was he did not know that wrong.
(d) M’Naghten’s preserved. Nothing Rule law Common — or otherwise repeal deemed to in this section shall be insanity (M’Naghten’s law defense of abrogate the common Rule) date on the effective in this Commonwealth effect of this section. Trill, decision Commonwealth
This court’s
denied,
(1988),
Pa.
alloc.
In
holding,
so
this court
that the
explained
Pennsylvania
“guilty but
ill”
mentally
suspect
statute creates neither a
class
therefore,
implicates
nor
a fundamental right;
any analysis of
its constitutionality warrants the utilization of the rational
Upon examining
basis test.
the statute to
if it
see
violated
state due
this court found
process requirements,
statute
vague,
was not
it did not encourage arbitrary convic-
tions,
confusion, and, therefore,
compromise
jury
verdicts or
was not violative of
process requirements.
state
federal due
Id. at
Similarly, Zewe’s fifth sixth and claims of error involve discussion, previous constitutional issues. Based on our wе “guilty find that Zewe’s claim that the ill” statute is unconstitutional must fail.
Zewe next claims that he is entitled to a new trial jury. because the trial court erred instructing Our standard of review in this matter is well settled: scope appellate jury charge review of a for reversible prejudicial requires charge
and error that the be evaluated general considered as a whole. The effect of the jury charge controls because error will not be predicated upon Further, excerpts charge. isolated from the a trial court’s
29 in- statutory express language from the deviation instruction in the inaccuracy jury or a technical struction ex- clearly accurately, adequately, which nevertheless will not mandate reversal. jury the law to the presses (citations Trill, omit- 543 A.2d at ted). instruction to the objects to the trial court’s
Zewe first § 314 mental illness. He claims that Pa.C.S.A regarding illness.” defining mental capacity’ lack of ‘substantial “uses *11 Zewe, reversible Judge to Penkower committed According that insanity requiring as legal when defined error knowing what he incapable in was “either question actor wrong.” it is Zewe doing, judging is that incapable [or] in the “incаpable” use of the word exception special took instruction. con “legal insanity” ill” and are distinct
“Mentally separate has definition under 18 Pa.C.S.A. and each cepts statutory not used “incapable” is Although 314. Pennsylvania it is used “legal insanity,” definition Pa. Jury Instructions. See Standard Criminal Suggested (Crim) instruc Judge § 5.01A. Even if Penkower’s S.S.J.I. Bar, suggested by Pennsylvania from the one tion differed are no jury, to the thеre clearly as it stated the law long for reversal. grounds to the Penkower’s instruction objected Judge also charges liability. civil These manslaughter and
jury regarding and, law to the stated the accurately also plainly therefore, warranting a new trial. the level do not rise to entitled to a new trial
Finally Zewe claims that he is the Commonwealth. closing by an improper becаuse of brief, however, any issues for present insufficient claim, comply fails to with our review. Like his third 2119(a), appeal must be that issues requiring Pa.R.A.P. authority appel in the by supported discussed and properly a bald assertion only Zewe makes lant’s brief. no upit with improper and backs closing was
Commonwealth’s In at 199. Rodgers, supra relevant law. See citation to addition, Zewe’s оnly general brief contains reference to alleged improper might where the statement be located.7 For above, the reasons set out we find Zewe has waived his right review on this issue. appellate of sentence Judgment affirmed. ELLIOTT, J.,
FORD files a Concurring Statement. ELLIOTT, Judge, FORD concurring: I join opinion I majority, although appel find lant’s equal protection process and duе issues to be compel ling. As I believe that questions presented the Constitutional by appellant by are controlled this court’s decision in Com Trill, monwealth v. supra, at 374 543 A.2d authority this court has no to overturn or reconsider that decision, and therefore appellant’s arguments must await re supreme view our court.
Submitted 1995. July
Filed 1995. 2119(e)
7. Pa.R.A.P. statеs: applicable appeal Where under the law an issue is not reviewable on below, forth, preserved argument unless raised or must set thereto, immediate connection therewith or in a footnote either a specific page pages cross reference to the or of the statement of the relating required pursu- case which set forth the information thereto 2117(c) (statement place raising preservation ant to Rule or issues), substantially or the same information.