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e wasn't hearing 'voices' when he went INTO the Navy...what happened?
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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. n3 Zewe complained that the
source of his problem was transmitters and electrodes that the Navy
had implanted in his head.
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COMMONWEALTH OF PENNSYLVANIA VS DAVID ZEWE, Appellant
No. 01723 Pittsburgh 1993
SUPERIOR COURT OF PENNSYLVANIA
444 Pa. Super. 17; 663 A.2d 195; 1995 Pa. Super. LEXIS 2205
August 2, 1995, FILED
SUBSEQUENT HISTORY: [***1]
Petition for Allowance of Appeal Denied April 16, 1996.
PRIOR HISTORY: Appeal from the Judgment of Sentence October 5, 1993 in
the Court of Common Pleas of Allegheny County, Criminal Nos. 8308693,
8308694, 8308808, 8308809, 8308810.
Appeal from the Judgment of Sentence, October 5, 1993, in the Court of
Common Pleas of Allegheny County, Criminal Division, No. 8308693,
8308694, 8308808, 8308809, 8308810.
DISPOSITION: Affirmed.
JUDGES: BEFORE: CIRILLO, FORD ELLIOTT and HESTER, JJ. FORD ELLIOTT,
J., files a Concurring Statement.
OPINIONBY: CIRILLO
OPINION:
[*20] [**197] OPINION BY CIRILLO, J.:
FILED August 2, 1995
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 n1 and three counts of recklessly
endangering another person. n2 We affirm.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 18 Pa.C.S.A. 2501 (a).
n2 18 Pa.C.S.A. 2705.
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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 [***2]
years prior to the events necessitating this appeal. He enlisted in
the Navy in 1976 and in 1980 [*21] 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. n3 Zewe complained that the source of his problem
was transmitters and electrodes that the Navy had implanted in his
head.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 At one point Zewe indicated to his mother that the voices had told
him to commit murder. When she asked if he would ever "do anything
like that," he responded "no, I guess not." During the summer of the
shooting Zewe told his younger brother that the voices in his head
"told me to hurt you, but I would never do anything to hurt you
because I love you."
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[***3]
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. n4 Before anyone
realized what was happening, [*22] Zewe began firing into the group
of guests who had congregated outside.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 The weapon used in the shooting was a .223 caliber semi automatic
Reuger (a high velocity weapon). Zewe was also armed with a six
millimeter rifle and a forty-five caliber semi automatic pistol. All
were fully loaded and Zewe had a large quantity of additional
ammunition on his person. The weapons had been procured prior to the
onset of Zewe's mental illness.
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[***4]
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
[**198] 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. n5 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 The insanity defense centered around Zewe's contention that he
opened fire on the guests at the party because he thought they had
obtained a gun from the police, and the voices told him to protect
himself.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[***5]
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:
[*23] (1) Whether the record established Zewe's insanity as a matter
of law,
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