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COMMONWEALTH v. ZLATOVICH (10/09/70)

decided: October 9, 1970.

COMMONWEALTH
v.
ZLATOVICH, APPELLANT



Appeal from judgments of Court of Common Pleas of Beaver County, Aug. T., 1964, Nos. 6 to 9, inclusive, in case of Commonwealth v. Mary Alice Zlatovich.

COUNSEL

Henry J. Albaugh, for appellant.

John G. Good, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen concurs in the result. Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Eagen

[ 440 Pa. Page 389]

The appellant, Mary Alice Zlatovich, was tried in Beaver County before a jury on four indictments charging her with murder. She pleaded "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.

[ 440 Pa. Page 390]

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

[ 440 Pa. Page 391]

    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 ...


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