Com. v. Zlatovich

• Decision Date: 09 October 1970
• Citation: 440 Pa. 388,269 A.2d 469
• Parties: COMMONWEALTH of Pennsylvania v. Mary Alice ZLATOVICH, Appellant.
• Court: Pennsylvania Supreme Court

Page 469

269 A.2d 469

440 Pa. 388

COMMONWEALTH of Pennsylvania v. Mary Alice ZLATOVICH, Appellant.

Supreme Court of Pennsylvania.

Oct. 9, 1970.

[440 Pa. 389] Henry J. Albaugh, Aliquippa, for appellant.

John G. Good, Jr., Dist. Atty., Beaver, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

EAGEN, Justice.

The appellant, Mary Alice Zlatovich, was tried in Beaver County before a jury on four indictments charging her with murder. She pled 'not guilty' and 'not guilty by reason of insanity.' The jury returned a verdict of guilty of murder in the second degree on each bill. Following the denial of motions for a new trial and a 'directed verdict,' a prison sentence was imposed on each conviction. This appeal followed.

The first assignment of error asserts that the jury's verdict was contrary to the evidence and the weight of the evidence.

The Commonwealth introduced testimony at trial as follows:

On the night of June 9, 1964, the appellant and a girl friend were in a bar in Midland, Pennsylvania, around midnight and had a few drinks. During the course of their stay, appellant's husband came into the bar and engaged in an argument with her. She threw some keys at him, and, when she refused his request to come home, he departed. About 1 a.m. on June 10th, police officers came upon the husband sitting on the sidewalk near the bar. Appellant then came out of the bar, and the argument between her and her husband was renewed.

The police escorted both to the police station and attempted to reconcile their differences. During this effort, appellant's husband said that he wanted to take their children from her. She replied that she would rather see the children dead, and that neither he nor anyone else would take the children from her.

The police officers talked privately with each party, but the appellant was uncooperative and expressed concern that the officers were plotting with her husband to take her children from her. She left the police station between 2:30 and 3 a.m. and went to the apartment of Orlando Ancrile, a bartender in the bar referred to before, and requested a ride to her home in Ohioville, Pennsylvania. On the way, she told Ancrile that she intended to leave town and take her children with her.

About an hour later appellant's brother-in-law, Bernard Zlatovich, the local chief of police, and Michael Haydin, an assistant chief of police, visited appellant's home and found her holding a rifle. She then told them that she was going to kill her husband. After some conversation, appellant regained her composure and made coffee for her visitors. A little later, she again became unsettled, left the house and entered a nearby wooded area. Haydin followed and attempted to talk with her, but she expressed resentment towards her husband and the police, and again said that no one would take her children from her. At Haydin's urging, she then calmed down and returned to her home. At about 4 a.m. when she appeared to be normal and at ease, Haydin left the premises. Zlatovich continued his stay for another hour and a half, and then left after concluding that appellant was 'very calm' and 'all right.' He took the rifle and other guns found in a nearby gun rack with him.

At about 6:05 a.m., appellant phoned Chief Zlatovich's home, and when Haydin answered the phone and identified himself, she said in a sobbing voice, 'Mike, please come over.' The two officers responded immediately to the call and when they arrived at the home, appellant was standing in the doorway between a bedroom and the living room with the youngest of her children alive in her arms. Four other children were found dead in a bedroom as the result of gunshot wounds. Appellant was sobbing and had a .32 caliber revolver in her hand. When Haydin attempted to take the youngest child from appellant's arms, she said, 'Mike, please don't take him away from me. I won't hurt him.' A little later on, when another police officer approached her and asked if he could take the baby, appellant, still sobbing, replied, 'No, please let me have him. I won't hurt him now.'

During the Commonwealth's case in chief, in addition to the testimony of Haydin as to appellant's condition at 4 a.m., and that of Chief Zlatovich as to her condition at 5:30 a.m., Ancrile testified that as he drove appellant in his automobile from Midland to Ohioville, she appeared quite normal to him, and that her conduct was in no way different than it had been on several other occasions when he had been with her. The Midland police officers testified that, while she was in that town's police station, appellant appeared embarrassed about being brought to the station and perturbed about her husband's statement concerning the children, but otherwise she was normal.

On June 11, 1964, a sanity commission was appointed to determine whether the appellant was competent to stand trial. After a hearing, the commission reported that she was not, and the court ordered her committed to Dixmont State Hospital. A second sanity commission, appointed in 1966, again found appellant unable to understand the nature of the charges against her or to assist in her own defense. On the basis of this report, she was recommitted to Dixmont. In April 1967, a third sanity commission was appointed. This commission found her competent to stand trial, and on March 4, 1968, the trial commenced.

At trial, the appellant herself testified and specifically denied shooting her children. In an attempt to sustain the plea of 'not guilty by reason of insanity', the defense also introduced the testimony of three admittedly qualified psychiatrists. Two stated that, in their opinion, appellant was suffering from schizophrenia on the morning of June 10, 1964, and was unable to distinguish right from wrong. The third psychiatrist shared this view and in addition stated that he felt appellant could not appreciate the nature and consequences of her acts at the time. A psychologist testified that on the basis of psychological tests which he had administered to appellant, he also concluded appellant suffered from schizophrenia at the time involved. The Commonwealth offered no medical testimony in rebuttal to the above medical testimony.

Despite the Commonwealth's failure to rebut the opinion testimony of appellant's expert witnesses, in view of the whole record, the question of sanity was for the jury to resolve, and the verdict was not capricious or contrary to the weight of the evidence. Commonwealth v. Updegrove, 413 Pa. 599, 198 A.2d 534 (1964); Commonwealth v. Carluccetti, 369 Pa. 190, 85 A.2d 391 (1952). What we said in Carluccetti at page 200, 85 A.2d at page 395 is particularly apposite, 'There was * * * direct objective testimony concerning the defendant's actions, conversations and statements immediately prior to and on the day of the killings from which the jury could infer that (she) knew what (she) was doing when (she) killed (her children) and knew that it was wrong, which, after all, is the test of legal insanity rather than whether the accused was mentally ill from a medical viewpoint.'

The instant case is unlike the situation presented in Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970) for here the Commonwealth Did offer evidence which warranted a finding of sanity, albeit through the testimony of lay witnesses. The testimony of the appellant's utterances to the police within minutes of the killings ('Mike, don't take him away from me. I won't Hurt him,' and 'No, please let me have him. I won't Hurt him now' (emphasis added)) are particularly significant as indicating a mind conscious of the nature of her acts.

It is next complained that the trial court erred in its instructions to the jury on the burden of proof as to the issue of insanity. In the course of the charge, the court stated, in part, that the accused had the burden of proving insanity by the preponderance of the evidence and that the Commonwealth did not have to affirmatively prove sanity. Appellant argues that it was erroneous to so instruct the jury, however, this same contention was rejected by a majority of this Court in Commonwealth v. Vogel, supra, and nothing would be gained by further discussion here. Finally, it is urged that a new trial should be granted, because of a juror's alleged post trial remarks.

On the day after the verdict was recorded and the jury discharged, a news article in reference to the trial appeared in the Beaver Falls News, which included the following:

'After the verdict, one of the jurors said that the jury was afraid to return a verdict of not guilty by reason of insanity for fear that she might be released again in a year or so.'

It is argued that the rule long adhered to in Pennsylvania--that testimony of a discharged juror as to what occurred among the jurors in the jury room is inadmissible--is constitutionally invalid and, therefore, that the court below erred in not investigating the accuracy of the news article. Moreover, appellant argues that if the juror's remark proved to be true, due process would require that the verdict be set aside. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) is cited in support of this multi-faceted proposition. In our view, Parker is inapposite.

In Parker, a court bailiff in an Oregon state criminal trial, who was charged with overseeing the jury during sequestration, made several prejudicial comments to individual jurors concerning the defendant's guilt. The United States Supreme Court found that these comments constituted a violation of defendant's Sixth Amendment rights, made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Specifically, it found that the bailiff's conduct amounted to a denial of defendant's right to a 'trial, by an impartial jury * * *' and his right 'to be confronted with the witnesses against him. * * *'

The United States Supreme...