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COMMONWEALTH PENNSYLVANIA v. GERALD FRANK ULATOSKI (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD FRANK ULATOSKI, APPELLANT



COUNSEL

John J. Hudacsek, Jr., Beaver Falls, Arthur S. Herskovitz, Aliquippa, Anthony J. Lalama, Pittsburgh, for appellant.

Joseph S. Walko, Dist. Atty., Joseph M. Stanichak, Layden C. Sadecky, Asst. Dist. Attys., Beaver, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Manderino, J., filed a dissenting opinion.

Author: Roberts

[ 472 Pa. Page 56]

OPINION OF THE COURT

Appellant Gerald Frank Ulatoski was tried for the murder of his wife Joyce and convicted by a jury of murder of the third degree. Post-trial motions in arrest of judgment and for a new trial were denied by the court en banc. In this appeal,*fn1 appellant's sole contention is that he is entitled to a new trial because the testimony of three prosecution witnesses, which was offered to show the existence of marital discord in the Ulatoski household, should not have been admitted over his objection. We hold that the trial court did not abuse its discretion in admitting the testimony and affirm the judgment of sentence.

The facts of this case are correctly set forth in the trial court opinion:

"The testimony established that on February 4, 1975, at 3:28 A.M., a police officer of the Economy Borough Police Department and some officers from surrounding areas arrived at the home of Gerald and Joyce Ulatoski after a call to the Economy Police Department that a shooting had occurred at that residence. At the time the police arrived, the defendant, Mr. Ulatoski, was standing at the door, fully dressed and with his hair neatly

[ 472 Pa. Page 57]

    combed. He directed the officer into the nursery where the body of Joyce Ulatoski was lying on the floor near the baby's crib. On the floor about two feet from the victim's head was the gun with which she had been shot. The police officer examined Mrs. Ulatoski and could find no life signs. At that time the defendant was placed under arrest and advised of his constitutional rights. At that time the defendant gave a statement to the police as to how the shooting occurred. He said that he had arrived home at 10:00 P.M. from his part time job. He said he had been fooling around with a .22 caliber pistol at the kitchen table while he and his wife were having a discussion. He said, "not a fight, but a discussion." The defendant told the police that the baby started crying and his wife went into the baby's bedroom. He told the police that he just stepped into the baby's bedroom and the gun went off. The defendant also told the officers that the gun had a fine trigger. He also said that he used the pistol for target practice and sometimes just got the gun out to play with it.

"The defendant's testimony at trial differed from the statement which he gave to the police officers at the scene of the shooting. At trial the defendant testified that he followed his wife from the kitchen into the baby's room with the pistol in his hand. He testified that the baby was laying in the crib and his wife was leaning over doing something with the baby; that as he walked up to her she turned toward him. At that point the gun went off, and his wife fell to the floor.

"It was established by a State Police firearms expert that the fatal bullet came from the weapon found near the body, and that the weapon was in good working order. Two experts testified that the weapon would not fire with the safety on and that the trigger had to be pulled in order for the weapon to fire. It was also established that the gun would not discharge accidently.

[ 472 Pa. Page 58]

"The Commonwealth also presented evidence by a qualified gunsmith who had examined the weapon and stated that the internal parts showed no signs of wear and tear and that the gun could pass for a new weapon. He further testified that he had tested the trigger pull ...


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