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filed: November 8, 1985.


Appeal from the Judgment of Sentence of November 22, 1982 in the Court of Common Pleas of Allegheny County, Criminal Division No. CC8005318, 5319, 5320, 5321 and 5322


Paul D. Boas, Pittsburgh, for appellant.

Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Brosky, Tamilia and Roberts, JJ. Roberts, J., concurs in the result. Brosky, J., dissents.

Author: Tamilia

[ 349 Pa. Super. Page 5]

This is an appeal from the judgment of sentence entered on November 22, 1982. Appellant, Victor Belmonte, Jr., was convicted of four counts of third degree murder after a bizarre incident in which he ran amok and shot five of his neighbors from his father's house in Coraopolis, Pennsylvania. Appellant raises several substantive and procedural issues, a number of which concern his defense of insanity. After conducting a thorough review of the record in which this Court has painstakingly considered all of appellant's arguments, we affirm. While we basically agree with the conclusion of the lower court, the difficult issues in this case require us to expound on them.

[ 349 Pa. Super. Page 6]

The relevant facts are as follows. At the time of the incident in question, Victor Belmonte, Jr., the appellant, was 23 years old. He was a quiet and introverted young man who came from a closely knit family in Coraopolis. A somewhat unsuccessful stint in college coupled with being laid off from a job led the appellant to enlist in the United States Army. Having found his niche in life, appellant re-enlisted several times and was assigned to an intelligence gathering agency of the United States Army. Due to the nature of his work, which involved monitoring and intercepting Warsaw Pact Troop Transmissions, the appellant had the highest security clearance one can achieve in the military. His work also included weapons training and constant maneuvers wherein his unit would set up defensive positions in order to prepare for an enemy attack.

In March, 1979, the appellant was transferred to Pittsburgh, Pennsylvania, because his mother was dying of cancer, and remained in the military service for another year. Appellant's mother died in the spring of 1980 and appellant, following his discharge, received a civilian job with the U.S. Army in the Pittsburgh area.

In July of 1980, prior to attending Army summer camp at Fort Indiantown Gap in central Pennsylvania, and following the death of his mother, appellant became increasingly withdrawn and reclusive, avoiding almost all social interactions. His condition deteriorated further and he became extremely uncomfortable with his stay at the camp. Appellant's state of unrest culminated on the morning of July 20, 1980, when he left Fort Indiantown Gap and began walking toward Pittsburgh for ten hours. Eventually, appellant hitched a ride for part of the journey and took a train the rest of the way. Upon arriving in downtown Pittsburgh, appellant decided to take a bus to Coraopolis. At the bus stop, appellant was greeted by an old friend, yet he failed to even acknowledge him.

When appellant arrived at his father's home, he found the house empty. He proceeded to take a shower, drank a glass of milk, and then became frightened that people were

[ 349 Pa. Super. Page 7]

    closing in on him. Believing that some type of enemy attack was imminent, the appellant loaded several weapons, including a .35 caliber Marlin action rifle. He advanced to the third floor of the house from where he shot five of his neighbors on the street, killing four and wounding the fifth. Compounding the tragedy, most of the victims were people the appellant had known all of his life and with whom he was friendly.

Following the shooting, appellant ran down the stairs to the first floor, placing his weapons by the front door in an orderly manner. Appellant then left his home, took his automobile and drove around aimlessly for about an hour until he entered the Pennsylvania State Police Barracks in Carnegie at approximately 7:15 p.m. Elizabeth Blumer, the radio and desk operator at the State Police Barracks, was apparently the first person to encounter appellant after the killings. She testified he was not visibly shaken nor did he exhibit any nervousness when he appeared before her desk window. Appellant patiently waited when Blumer, who was taking a phone call, indicated that she would attend to him after she finished the call. Upon completion of the phone call, Blumer, joined by Cpl. John Kutchman, motioned to appellant to open the window and communicate his concern to them. Appellant then calmly stated, in a normal tone of voice, that he had just shot four people. At this time, he made no reference to these people being the "enemy" nor did he use language couched in military terminology. In a peaceful fashion, appellant accompanied Cpl. Kutchman to a private room to talk further about the incident. Appellant was advised of his Miranda rights, which he waived after being fully informed and then proceeded to describe the incident exactly. In a calm manner and without hesitation, appellant stated that "[w]e met the enemy at our position in Coraopolis." (N.T. 54). Appellant was then fingerprinted and turned over to the custody of Allegheny County Homicide Detectives, who informed him that he was being charged with four counts of criminal homicide and again advised him of his constitutional rights. At approximately

[ 349 Pa. Super. Page 810]

:15 p.m., appellant gave the Allegheny County detectives a more detailed but essentially identical statement. Appellant indicated that he understood his rights and was at all times responsive to questioning.

Appellant filed an application to permit psychiatric and psychological examination by Dr. Thomas Eberle, Ph.D., on August 13, 1981, which was granted by the Honorable George H. Ross. A second application to permit psychiatric and psychological examination by Dr. Melvin Melnick, M.D., was filed on September 8, 1980, and granted on that same date by the Honorable Robert E. Dauer.

On December 30, 1980, after application and hearing, the Honorable John W. O'Brien ordered appellant committed to Farview State Hospital for 90 days, pursuant to section 403 of the Mental Health Procedures Act of 1976, as amended, 50 P.S. § 7402. At the same time Judge O'Brien denied appellant's request for a determination of criminal responsibility pursuant to 50 P.S. § 7404(a), leaving that matter for determination at trial. Subsequently, appellant was found competent to stand trial and on August 17, 1981, Judge O'Brien considered and denied a motion to reconsider application for pre-trial acquittal by reason of insanity pursuant to 50 P.S. § 7404(a).

After a trial before Judge O'Brien and a jury, appellant was convicted of four counts of third degree murder and acquitted on the counts of attempt and aggravated assault. Post trial motions were timely filed, argued and in due course denied. On November 22, 1982, appellant was sentenced to two consecutive terms of imprisonment of 10 to 20 years, to run concurrently with two additional 10 to 20 year terms. The instant appeal followed.

Appellant first contends that the Commonwealth failed to provide sufficient evidence that he was sane at the time he committed the murders. We disagree.

Appellant's sole defense at trial was that he was legally insane when he committed the offenses charged. Appellant does not challenge the M'Naghten rule which is

[ 349 Pa. Super. Page 9]

    the prevailing standard for legal insanity in Pennsylvania. Under M'Naghten, an accused is legally insane if "at the time he committed the act, either he did not know the nature and quality of the act or he did not know that it was wrong." Commonwealth v. Demmitt, 456 Pa. 475, 481, 321 A.2d 627, 631 (1974). In elaborating upon this test, our Supreme Court has noted that:

It is not intended to separate the emotionally disturbed defendants from the emotionally healthy. Rather, it is intended to include defendants, both disturbed and healthy, among those who are held criminally responsible . . . .

Id., 456 Pa. at 481, 321 A.2d at 631. Thus, the mere fact that an accused may have a history of mental illness does not mean that he is legally insane. Commonwealth v. Tempest, 496 Pa. 436, 437 A.2d 952 (1981); Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Pifer, 284 Pa. Super. 170, 425 A.2d 757 (1981). Even extreme mental illness does not compel a finding of not guilty by reason of insanity. Commonwealth v. Bruno, 466 Pa. 245, 252 n. 3, 352 A.2d 40, 44 n. 3 (1976). Rather, the accused is legally insane only if at the time of the crime he either did not appreciate the nature and quality of his act or did not know that it was wrong. Commonwealth v. Metzler, 499 Pa. 122, 451 A.2d 1352 (1982); Commonwealth v. Bruno, supra. "Conversely, in order for the Commonwealth to sustain their burden of proving appellant was sane, they must prove that appellant did know the nature and quality of his act and did know that it was wrong." Commonwealth v. Pifer, 284 Pa. Super. at 176, 425 A.2d at 760.

[ 349 Pa. Super. Page 10]

In cases where there is sufficient evidence to raise the issue of insanity, such as here, the burden of proof is upon the prosecution to establish sanity beyond a reasonable doubt.*fn1 Commonwealth v. Bruno, supra; Commonwealth Page 10} v. Tyler, supra; Commonwealth v. Delker, 467 Pa. 305, 356 A.2d 762 (1976); Commonwealth v. Thompson, 274 Pa. Super. 44, 417 A.2d 1243 (1979). We emphasize that this burden may be met by the testimony of lay witnesses. Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970).

[ 349 Pa. Super. Page 11]

The crux of the problem in the instant case is that the defense presented expert testimony of appellant's insanity*fn2 while the Commonwealth relied solely on the testimony of lay witnesses and the vigorous cross-examination of the appellant's expert witnesses. However, as stated previously, the testimony of a lay witness may be sufficient to establish sanity, Commonwealth v. Zlatovich, supra, and the prosecution need not offer expert testimony in order to rebut expert testimony on behalf of the accused. Commonwealth v. Tyson, supra; Commonwealth v. Bruno, supra. "The only requirement is that there must be sufficient evidence from any source whatsoever to support a finding of sanity beyond a reasonable doubt. Commonwealth Page 11} v. Demmitt, supra." Commonwealth v. Tyson, 485 Pa. at 352-3, 402 A.2d at 999.

In the instant case, the Commonwealth has presented such evidence of appellant's sanity, despite the strong evidence that appellant ...

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