Com. v. Zewe

• Decision Date: 02 August 1995
• Citation: 444 Pa.Super. 17,663 A.2d 195
• Parties: COMMONWEALTH of Pennsylvania, v. David ZEWE, Appellant.
• Court: Pennsylvania Superior Court

Page 195

663 A.2d 195

444 Pa.Super. 17

COMMONWEALTH of Pennsylvania, v. David ZEWE, Appellant.

Superior Court of Pennsylvania.

Argued June 13, 1995.

Filed Aug. 2, 1995.

H. David Rothman, Pittsburgh, for appellant.

Michael Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before CIRILLO, FORD ELLIOTT and HESTER, JJ.

CIRILLO, Judge:

David Zewe appeals from a judgment of sentence entered in the Court of Common Pleas of Allegheny County following his conviction for two counts of first degree murder ¹ and three counts of recklessly endangering another person. ² We affirm.

Zewe was tried by a jury before the Honorable Alan S. Penkower on November 5, 1986. The evidence presented at trial established that Zewe had suffered from mental illness for approximately three years prior to the events necessitating this appeal. He enlisted in the Navy in 1976 and in 1980 began having auditory hallucinations in the form of voices accusing him of having sex with his dog. Zewe did not initially inform anyone of his problem.

Soon after, Zewe was transferred to Japan where his auditory hallucinations continued. Outward manifestations of the hallucinations drew attention to Zewe while in Japan and he was sent to a psychiatrist. Zewe sought and received a two week leave to return to the United States.

As a result of his mental illness Zewe was discharged from the Navy. From the time he returned from Japan (1980) to the time he was taken into custody (1983), Zewe, when he was not in the hospital, lived at his parents' home. During this time Zewe was diagnosed a paranoid schizophrenic and was prescribed medication for treatment of his mental illness. However, he only took his prescriptions sporadically. As a result, his condition fluctuated, but at no point was he outwardly violent. ³ Zewe complained that the source of his problem was transmitters and electrodes that the Navy had implanted in his head.

The Posati family lived next door to Zewe and his parents. Family members testified at trial that they knew who Zewe was and regularly saw him outside, but rarely said more than hello. They also testified that they had no knowledge of any animosity between the families.

On September 10, 1983 the Posatis were having a family reunion attended by approximately twenty-five to thirty people. At roughly 6:00 p.m. the Posatis and their guests decided to play volleyball. While the volleyball net was being set up some of the guests noticed Zewe entering the Posati's yard heavily armed. ⁴ Before anyone realized what was happening, Zewe began firing into the group of guests who had congregated outside.

Of the several people shot, Creaig Posati (the son of Mr. and Mrs. Posati) and Michael Frantz (Creaig's cousin) died as a result of the injuries they sustained that afternoon. Phillip Kosakowski, Claude Frantz and Lynne Downard, all guests at the party, were also wounded during the shooting.

Zewe's facial expression was described by witnesses as "angry" during the shooting, but his expression visibly calmed soon after. He began making statements to Mr. Posati and other guests, such as "Look what I've done ... I've shot these two boys ... shoot me." Referring to Creaig Posati as he lay on the ground, Zewe said "He's been hassling me, I can't take it anymore."

The police were summoned and Zewe did not resist when he was disarmed and taken into custody. He asked that the police not kill him and stated that "they asked for it and they got it."

Zewe attempted to establish that he was legally insane at the time of the killings and sought a not guilty verdict based on his insanity defense. ⁵ At the close of trial Zewe was found guilty but mentally ill on two counts of murder of the first degree and three counts of reckless endangerment of another person.

Zewe filed post-verdict motions which were denied. He was sentenced by Judge Penkower to two concurrent life sentences for first degree murder and one to two years for each conviction of reckless endangerment of another person to run consecutively with the life sentences. A timely notice of appeal was filed.

Zewe raises eight claims for our review:

(1) Whether the record established Zewe's insanity as a matter of law, or, in the alternative, whether the verdict was against the weight of the evidence?

(2) Whether the court's charge to the jury on expert testimony deprived appellant of a fair trial?

(3) Whether the trial court committed reversible error in allowing the cross examination of Zewe's expert on irrelevant and immaterial matters?

(4) Whether the verdict of guilty but mentally ill deprived Zewe of due process and equal protection?

(5) Whether the verdict of guilty but mentally ill denied Zewe of due process and equal protection of the law including effective assistance of counsel?

(6) Whether the enactment of the verdict of guilty but mentally ill exceeds Pennsylvania's valid police power, thus depriving Zewe of his constitutional rights?

(7) Whether Zewe is entitled to a new trial because the trial court erred in instructing the jury?

(8) Whether Zewe is entitled to a new trial because of the inaccurate closing by the Commonwealth?

Zewe initially contends that he proved his insanity as a matter of law and, therefore, should be granted a new trial. The law in Pennsylvania, however, states that if there is sufficient evidence for a defendant to raise the issue of insanity, the burden is on the Commonwealth to prove the defendant's sanity beyond a reasonable doubt. Commonwealth v. Ruth, 309 Pa.Super. 458, 455 A.2d 700 (1983). This places the decision of whether or not the defendant is legally insane within the discretion of the jury rather than the judge, who decides matters of law. Therefore, because the determination of the defendant's sanity is a matter of fact to be decided by a jury, the first portion of Zewe's first claim has no merit.

Zewe also claims that the verdict is against the weight of the evidence. Where issues of weight of the evidence are concerned, it is not the function of an appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837, 841 (1973); McElrath v. Commonwealth, 405 Pa.Super. 431, 443, 592 A.2d 740, 745 (1991). A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one's sense of justice. McElrath at 441, 592 A.2d at 745. Furthermore, issues of credibility are left to the trier of fact; the jury is free to accept all, part, or none of the witness testimony. Commonwealth v. Pirela, 398 Pa.Super. 76, 82, 580 A.2d 848, 852 (1990),appeal denied, 527 Pa. 672, 594 A.2d 658 (1991); Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838, 841 (1982). Additionally, where evidence is conflicting, the credibility of the witnesses is solely for the jury and, if its finding is supported by the record, the verdict will not be disturbed. Commonwealth v. Manchas, 430 Pa.Super. 63, 71, 633 A.2d 618, 623 (1993).

Here, numerous eyewitnesses testified at trial as to Zewe's demeanor before, during, and after the shooting, as well as recounted comments he made. The jury heard testimony that in the past, Zewe had been told by voices in his head to hurt people, but had been able to resist them. They also heard testimony that Zewe thought that people at the party had obtained a gun from the police and were going to try to shoot him and he had to protect himself, yet Zewe did not attempt to protect himself from the police when they took him into custody.

Zewe's expert witness testified that Zewe was legally insane at the time of the killings. Zewe asserts that his expert testimony outweighs that of the Commonwealth's lay witnesses' testimony. This court has held, however, that:

It seems clear that the law in Pennsylvania is that evidence of lay witnesses alone can be sufficient to establish the sanity of a defendant who has offered expert testimony as to his insanity. The Commonwealth may meet its burden by testimony concerning the defendant's actions, conversations, and statements at the time of the crimes from which the jury can infer that he knew what he was doing when he committed the crimes and that he knew that his actions were wrong.

Commonwealth v. Young, 276 Pa.Super. 409, 413, 419 A.2d 523, 526-27 (1980). See also Commonwealth v. Scarborough, 491 Pa. 300, 308, 421 A.2d 147, 151 (1980) (it is up to the factfinder to determine the weight and credibility of the evidence, even psychiatric testimony).

In this case, the jury had ample evidence upon which to judge Zewe's sanity at the time of the shootings. The fact that the jury believed the testimony of several lay witnesses over that of the testimony proffered by Zewe's expert certainly does not shock the court's sense of justice. We conclude that the verdict was not against the weight of the evidence.

Zewe next asserts that he did not receive a fair trial because the trial court refused to instruct the jurors that they could not ignore the expert's opinion and could not afford it the same weight as they would testimony of other witnesses. As was stated previously, the law in Pennsylvania is that it is up to the jury to determine how much weight to afford the testimony of witnesses. Scarborough, 491 Pa. at 308, 421 A.2d at 151. Based upon this reading of the law in Pennsylvania, the trial court properly refused to utilize Zewe's jury instruction and instead relied on an instruction that is in substantial conformity with the Pennsylvania Suggested Standard Criminal Jury Instructions. See Pa.S.S.J.I. (Crim) § 4.10A.

Zewe's third claim of error states that the trial court erroneously permitted the Commonwealth to cross-examine his expert, Dr. Martone, on irrelevant and immaterial matters. Zewe's argument on this matter, however, is limited to a general discussion of why Zewe feels that the cross-examination was improper with no...