Com. v. Zettlemoyer

Decision Date07 February 1983
Citation500 Pa. 16,454 A.2d 937
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Keith ZETTLEMOYER, Appellant.
CourtPennsylvania Supreme Court

William A. Behe, Deputy Dist. Atty., Richard Lewis, Dist. Atty., Leroy Zimmerman, Atty. Gen., Marion E. MacIntyre, Asst. Atty. Gen., for appellee.

Judah Labovitz, A.C.L.U., amicus curiae.



LARSEN, Justice.

This appeal raises the issue of the constitutionality of the death penalty which sentence was imposed by a jury upon Keith Zettlemoyer, appellant, pursuant to the procedures set forth in section 9711 of the Sentencing Code, 42 Pa.C.S.A. § 9711. 1 For the reasons stated herein, we affirm appellant's conviction for murder of the first degree, find the sentencing procedures to be valid under both the federal and state constitutions, and uphold the sentence of death.

Appellant was arrested on October 13, 1980 and charged with criminal homicide for the shooting death of Charles DeVetsco. The trial was conducted in the Court of Common Pleas of Dauphin County before the Honorable John C. Dowling. On April 24, 1981, a jury convicted Keith Zettlemoyer of murder of the first degree, and, following a separate sentencing proceeding, that same jury pronounced a sentence of death. Following denial of his post-verdict motions by a court en banc, the case was automatically appealed to this Court. 42 Pa.C.S.A. § 9711(h)(1) and § 722(4).

As established by the Commonwealth's uncontradicted testimony and the reasonable inferences raised therefrom, the facts demonstrate a "carefully planned, brutally carried out, cold-blooded execution of a young man scheduled to testify against the [appellant] in a pending felony trial." Opinion of the Court of Common Pleas of Dauphin County, En Banc, October 16, 1981, denying appellant's post-verdict motions. (Slip opinion at 1.) The evidence discloses the following.

In the early morning hours of October 13, 1980, two officers of the Conrail Police Department were on routine patrol in an unmarked car in the Harrisburg railroad yards when they heard gunfire (two shots) coming from a nearby area. The officers proceeded to the area--an isolated, overgrown, unlit area used for dumping trash. When they arrived, the officers observed a 1967 Ford van parked on a dirt access road leading back to a creek and overgrown with bushes. Hearing rustling noises in the bushes in front of the van, the officers ordered the person making the noise to come out.

At this point, appellant emerged from the bushes holding a .357 magnum Smith and Wesson revolver in his right hand and a flashlight in his left. Appellant exclaimed "What's the matter, guys? I was only shooting rats." Officer Gregory W. Benedek replied "At 4:00 o'clock in the morning?", to which appellant responded "Yes, I do it all the time." The officers ordered appellant to drop his gun which, after hesitating several seconds, he finally did, at which point he was secured.

Sergeant William J. Houtz then retraced appellant's path into the woods and located the still trembling body of the victim, Mr. DeVetsco, lying face down. Charles DeVetsco had been shot four times, twice in the neck with a .22 caliber weapon and twice in the back with the .357 magnum in appellant's hand. The victim had been shot with a .22 caliber weapon while in the van (as indicated by several blood-soaked items, two spent .22 caliber bullet casings, and the weapon, all found in the van), handcuffed, and dragged from the van into the bushes where the fatal shots were fired (as indicated by drag marks and blood drippings).

When appellant emerged from the bushes, he was dressed in dark clothing, wearing dark gloves, and was heavily armed. Found on his person by officers of the Harrisburg Police Department who had quickly arrived on the scene, as well as by Conrail officers, were a hunting knife, 41 rounds of semijacketed hollow point .357 magnum ammunition (more deadly than "normal" ammunition), a shoulder holster, a tear gas cannister, penlight and two handcuff keys.

All of the victim's wounds were consistent with the shooting having been done while the victim was lying face down. The cause of death was massive hemorrhaging of the heart which had been penetrated by the .357 magnum bullets.

The Commonwealth also demonstrated that the victim had worked a short while with the appellant at a retail store and had been scheduled to appear as a witness on behalf of the Commonwealth, and against appellant who was a defendant in a criminal proceeding in Snyder County. During the jury selection portion of those proceedings on October 6, 1981, the Commonwealth indicated, in appellant's presence, that the prosecution intended to call Charles DeVetsco. The trial of that matter was to have begun on October 21, 1981.

Based upon the Commonwealth's uncontradicted evidence, it is clear that the victim was shot first with the .22 caliber weapon, dragged from the van into the deserted woods, and summarily executed by the appellant by two shots of the .357 magnum in order to prevent his (the victim's) testifying against appellant at the Snyder County criminal proceedings. The evidence is, thus, sufficient to establish appellant's guilt of murder of the first degree 2 beyond a reasonable doubt. 3


At trial, appellant admitted general criminal culpability for murder (see Notes of Testimony (N.T.), April 20, 1981, at 366; opening argument of defense counsel), but offered a defense of diminished capacity which defense was first recognized in this Court in Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976), in an attempt to reduce the degree of guilt from murder of the first to murder of the third degree. (N.T. April 24, 1981 at 788; closing argument of defense counsel). Several of appellant's assertions of trial error are related to this defense. 4

In Walzack, this Court sustained as relevant the admission of certain psychiatric testimony to the effect that a pre-frontal lobotomy negated the required mens rea for murder of the first degree, namely, that the actor had formed the specific intent to kill. This Court has quite recently explained that diminished capacity is an extremely limited defense, Commonwealth v. Weinstein, --- Pa. ---, 451 A.2d 1344 (1982), and that Walzack stands only for the proposition that "psychiatric testimony which speaks to the legislatively defined state of mind encompassing a specific intent to kill is admissible." Id. at ---, 451 A.2d at 1347. Thus, psychiatric testimony is irrelevant, under Walzack, unless "it speaks to mental disorders affecting the cognitive functions [of deliberation and premeditation] necessary to formulate a specific intent." Id. at ---, 451 A.2d at 1347. 5 This Court carefully examined the proferred psychiatric testimony in Weinstein and determined that it was no more (nor less) than testimony as to that appellant's irresistable impulses or inability to control himself, and not to his ability to formulate and carry out a plan or design, and was, therefore, irrelevant and inadmissible on the issue of appellant's specific intent to kill. Id. at ---, 451 A.2d at 1350.

Essentially, as will be seen, such was also the quality of the evidence produced in the instant case. Appellant offered the testimony of nine lay witnesses and a psychologist, Dr. Stanley Schneider, to support his assertion that appellant had a "schizoid personality with paranoid features." (N.T. April 23, 1981 at 714-15). After Dr. Schneider had testified at length as to the numerous tests he had made on appellant and had given his diagnosis of "schizoid personality with paranoid features," defense counsel asked the following question: "[W]ith a reasonable degree of medical certainty, was the defendant's mental illness of such an intensity at that time, at the time of the killing, that he was not mentally capable of fully forming the specific intent which is required for a willful, deliberate and premeditated act?" (N.T. April 23, 1982 at 725). The court sustained the Commonwealth's objection to this question on the grounds that no foundation had been laid for the psychologist to express such an opinion and that the evidence that had been introduced was irrelevant to the question of whether appellant had the capability to form the specific intent to kill. This ruling was correct.

Initially, we reject appellant's contention that certain language in two post-Walzack cases expressed an intention on the part of this Court to extrapolate the dimensions of the defense of diminished capacity. In Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980), three Justices of this Court found that the trial court had not erred in giving a jury instruction on diminished capacity which included the statement "[i]f you find the defendant has a diminished capacity due to his personality disorder, this diminished capacity may be considered by you ..." Id. at 31, n. 2, 422 A.2d at 121, n. 2. As Commonwealth v. Weinstein, supra, instructs, this jury charge gave far too liberal an interpretation of Walzack and, accordingly, was eminently more favorable to the appellant than a correct charge would have been. See Commonwealth v. Hamilton, 459 Pa. 304, 329 A.2d 212 (1974), cert. denied 420 U.S. 981, 95 S.Ct. 1411, 43 L.Ed.2d 663 (1974). Accordingly, the statement by the plurality in Sourbeer that the jury instruction was "perfectly proper" was only intended to hold that any error was beneficial to the appellant and cannot be read to imply that a "personality disorder" will suffice to demonstrate an accused's diminished capacity.

Similarly, in Commonwealth v. Brantner, 486 Pa. 518, 406 A.2d 1011 (1979), the defense had offered psychiatric...

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