Com. v. Yasipour

• Decision Date: 17 September 2008
• Docket Number: No. 1474 MDA 2006.,1474 MDA 2006.
• Citation: 957 A.2d 734,2008 PA Super 214
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Brian YASIPOUR, Sr., Appellant.
• Court: Pennsylvania Superior Court

957 A.2d 734

2008 PA Super 214

COMMONWEALTH of Pennsylvania, Appellee v. Brian YASIPOUR, Sr., Appellant.

No. 1474 MDA 2006.

Superior Court of Pennsylvania.

Argued April 30, 2008.

Filed September 17, 2008.

Edward J. Rymsza, Williamsport, for appellant.

Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: LALLY-GREEN, SHOGAN and COLVILLE^*, JJ.

OPINION BY SHOGAN, J.:

¶ 1 Appellant, Brian Yasipour, Sr., appeals from the judgment of sentence entered following his convictions of third degree murder, possession of an instrument of crime, and tampering with evidence.¹ We affirm.

¶ 2 We summarize the factual history of this case as follows. On the morning of August 24, 2001, Appellant, then age 52, was present at a custody hearing against his wife, Millie Yasipour ("Millie"), regarding a petition Appellant filed seeking to increase his custody of his daughter, Susan Yasipour ("Susan"). Contrary to the outcome sought, Appellant's custody was reduced by the court. After the hearing, Appellant requested a special visitation with Susan later that day, even though a visit was not scheduled for that day. After lunch that afternoon, Millie took Susan out of day care and turned her over to Appellant. Susan protested consistently throughout the afternoon.

¶ 3 At approximately 4:00 p.m., Appellant's neighbors heard a girl screaming, "Stop, Daddy, no. Stop. No, Daddy." Appellant stabbed Susan sixty-one times in the neck and chest with several kitchen knives. A short time later, at 4:30 p.m., Appellant was seen buying flowers at a Bi-Lo store. Appellant told the store clerk they were for his daughter. Later that afternoon, Appellant was seen dumping trash bags into the dumpster of a Uni-Mart store. The bags contained multiple pornographic videotapes. In addition, Appellant commenced cleaning the area of the murder. Appellant washed Susan's body and the clothes she had been wearing, along with the linens and clothes that he had worn. Appellant also washed the knives in the kitchen sink. At approximately 7:30 p.m., Appellant telephoned 911 to report the murder.

¶ 4 When police arrived at Appellant's home, Appellant told them he had returned to his residence and found his daughter dead in an upstairs bedroom. The clothes dryer was still running at the time the police arrived. Police discovered Susan's body in the upstairs bedroom, with flowers on her chest. Appellant was arrested and charged with one count each of homicide, possession of an instrument of crime, and tampering with or fabricating physical evidence.

¶ 5 The trial court summarized the procedural history of this case as follows:

After a non-jury trial, [Appellant] was found guilty but mentally ill of third degree murder, possession of an instrument of crime and tampering with evidence, in connection with the killing of his [four]-year-old daughter. By Order dated June 2, 2006, [Appellant] was sentenced to twenty to forty years incarceration on the count of murder, one to five years on the count of possession of an instrument of crime, and six months to two years on the count of tampering with evidence. All sentences were directed to run consecutively, for an aggregate sentence of twenty-one and one-half to forty-seven years.

Trial Court Opinion, 8/21/06, at 1.

¶ 6 On June 9, 2006, Appellant filed post-sentence motions. The trial court heard argument on the post-sentence motions and denied relief on August 21, 2006. On August 28, 2006, Appellant filed the instant appeal.

¶ 7 Appellant presents the following issues for our review:

I. Did the trial court err in determining that the evidence at trial was insufficient to establish [Appellant's] insanity at the time of the offense?

II. Did the trial court's 20 to 40 year state prison sentence, pursuant to its guilty but mentally ill verdict, violate [Appellant's] state and federal constitutional rights to be free from cruel and unusual punishment?

III. Was the evidence at trial insufficient to establish that [Appellant] committed the crime of tampering with evidence beyond a reasonable doubt where the Commonwealth's evidence failed to establish that [Appellant's] behavior impaired the availability of evidence to the police and/or that he possessed the requisite intent to commit the offense?

Appellant's Brief at 4.

¶ 8 Appellant first argues the trial court erred in concluding that Appellant failed to present sufficient evidence to establish his insanity at the time of the offense. Essentially, Appellant contends that the testimony presented by Appellant satisfied the proper burden for proving that Appellant was insane at the time of the murder.

¶ 9 The defense of insanity is codified at 18 Pa.C.S.A. § 315, which states the following:

(a) General rule.—The mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of evidence that the actor was legally insane at the time of the commission of the offense.

(b) Definition.—For purposes of this section, the phrase "legally insane" means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.

18 Pa.C.S.A. § 315 (emphasis original).²

¶ 10 To plead the defense of insanity suggests that the defendant committed the act, but was not legally culpable. Commonwealth v. Mizell, 493 Pa. 161, 164, 425 A.2d 424, 426 (1981). An insanity defense focuses upon a defendant's capacity, at the time of the offense, to understand the nature and quality of his actions or whether he knew that his actions were wrong. Commonwealth v. Hughes, 581 Pa. 274, 319 n. 29, 865 A.2d 761, 788 n. 29 (2004).

¶ 11 It has long been accepted that criminal defendants may be presumed sane for purposes of determining their criminal liability. Commonwealth v. Rabold, ___ Pa. ___, ___, 951 A.2d 329, 341 (2008). Thus, under the clear language of section 315(a), the burden of proving insanity by a preponderance of the evidence is upon the defendant. Commonwealth v. Heidnik, 526 Pa. 458, 466, 587 A.2d 687, 690-691 (1991); see also Commonwealth v. Reilly, 519 Pa. 550, 564, 549 A.2d 503, 509-510 (1988) (summarizing the history of the defense of insanity in this Commonwealth). Moreover, we have long stated that "[t]he Commonwealth can prove an accused's sanity not only by psychiatric testimony but also by lay testimony which shows that he or she knew the nature and quality of the act committed and knew that what had been done was wrong." Commonwealth v. Frisoli, 277 Pa.Super. 396, 419 A.2d 1204, 1206 (1980) (citing Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974)). Furthermore, it is within the factfinder's right to disbelieve an insanity defense and credit the testimony of the eyewitnesses. Commonwealth v. Holley, 945 A.2d 241, 249 (Pa.Super.2008) (holding that the jury was within their rights to disbelieve the defendant's insanity defense and credit the testimony of the eyewitnesses).

¶ 12 Our review of the record reflects that, in rendering the verdict, the trial court specifically stated Appellant did "not meet the McNaughton standard and was not insane at the time [of the murder], though [Appellant] was certainly suffering from mental disorders." N.T., 6/24/06, at 20. In reaching its conclusion, the trial court heard testimony from various psychiatric specialists and lay persons. Psychotherapist Nicole Miele testified that she had provided treatment services to Appellant for two months in 1996 when Appellant suffered depression and paranoid feelings. N.T., 3/14/06, at 119-188. Dr. Michael Marceau testified that he also evaluated Appellant in 1996 and indicated Appellant had been reporting symptoms of depression and paranoia. N.T., 3/15/06, at 24. Dr. Stanley Schneider testified that he interviewed Appellant five days after the murder and diagnosed Appellant with dissociative amnesia, because Appellant stated he had no recollection of what happened during the time of the murder. N.T., 3/15/06, at 56. Dr. Schneider explained that form of amnesia is an inability to recall important personal information, usually over traumatic or stressful situations. Id. at 56-57. Dr. Jacqueline Sallade testified that she had evaluated Appellant in 1995 in relation to a disability claim Appellant had with the Social Security Administration and reported Appellant had characteristics of a person with a dissociative state. N.T., 3/15/06, at 112. Dr. Terri Calvert testified that Appellant had a long history of mental illness and suffered from auditory hallucinations, and paranoia. N.T., 3/16/06, at 9-12. Dr. Calvert opined that the symptoms Appellant reported over the years were consistent with "post traumatic stress disorder." Id. at 51. Dr. Pogos Voskanian testified that he examined Appellant on three occasions after the murder and determined Appellant suffered from post-traumatic stress disorder and schizophrenia. N.T., 3/16/06, at 114. Dr. Voskanian further testified that, as a result of Appellant's psychiatric condition, Appellant could not differentiate between right and wrong. Id. at 92.

¶ 13 The Commonwealth presented the testimony of Dr. Timothy Michals, who testified that, after conducting several evaluations of Appellant and upon review of Appellant's record, he did not believe Appellant suffered from post traumatic stress disorder or paranoid schizophrenia. N.T., 3/16/06, vol. 2, at 19-20, 52. Dr. Michals explained that he had significant experience in dealing with post traumatic stress disorder and that certain behaviors of Appellant were inconsistent with the disorder being present. Id. at 22, 25-26, 27-28, 30. Rather, Dr. Michals opined that Appellant suffered from bipolar disorder. Id. at 14. Dr....