Appeal from the Judgments of Sentence Entered by a Jury on June 21, 1983 and from the Order of the Court Entered On October 17, 1985 Denying Appellants Post-Verdict Motions Entered by the Court of Common Pleas of Luzerne County at Nos. 1290, 1506, 1507, 1508, 1519A-1519H, 1520 and 1524.
Basil G. Russin, Al Flora, Jr., Wilkes-Barre, for appellant.
Robert J. Gillespie, Jr., Dist. Atty., Joseph C. Giebus, Asst. Dist. Atty., Wilkes-Barre, Marion E. MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., concurs in the result. Nix, C.j., filed a dissenting opinion in which Zappala, J., joined.
In the early morning hours of September 25, 1982, George Emil Banks, appellant, went on a rampage in and near the City of Wilkes-Barre in Luzerne County. In the space of about one hour, appellant shot fourteen people with a Colt AR-15 semi-automatic rifle, killing thirteen and wounding one. All but one of the dead were the women and children who made up appellant's extended family; the other two victims were strangers (one survived) who were in the wrong place at the wrong time.
Following a lengthy jury trial before the Honorable Patrick J. Toole in the Court of Common Pleas of Luzerne County (with a jury selected in Allegheny County), appellant was convicted on June 21, 1983 on twelve counts of murder of the first degree. He was also convicted of murder of the third degree, attempted murder, aggravated assault, recklessly endangering another person, robbery and theft of a motor vehicle. The next day, June 22, 1983, in a separate sentencing proceeding before the same jury, appellant received twelve sentences of death. On October 17, 1985, the Court of Common Pleas of Luzerne County, per Judge Toole, denied appellant's post-verdict motions for a new trial and/or in arrest of judgment. Appellant was formally sentenced on November 22, 1985,*fn1 and he now appeals his convictions and judgments of sentence.*fn2 We affirm.
The extensive trial record in this case, viewed in the light most favorable to the Commonwealth as verdict winner, discloses the following. On the evening of September 24, 1982, appellant attended a birthday party for one Stanley O'Brien at the Galbraith family residence in Wilkes-Barre. Appellant arrived at the party in the vicinity of 9:00-9:30 p.m., accompanied by two of the victims, Dorothy Lyons and Regina Clemens, each appellant's girlfriend. Also present at the party was another victim, Susan Yuhas, Mrs. Clemens' sister and also a girlfriend of appellant. While at the party appellant drank some beer, played darts and conversed with numerous guests. Shortly after 9:30 p.m., appellant exchanged "T-shirts" with Sharon Gomb, as each admired or joked about the sayings printed on each other's shirt. Appellant's T-shirt read: "Kill Them All And Let
God Sort It Out."*fn3 Appellant's companions, Ms. Lyons and Ms. Clemens, appeared to become upset with this exchange of shirts. Numerous guests and hosts at the party observed appellant drink some beer, but testified that his speech and movements were "normal" and coordinated and that he did not appear to be intoxicated.
Appellant and Regina Clemens left the party in the vicinity of 10:30 p.m. Between 12:00-1:00 a.m. on September 25, 1982, appellant called the Galbraith house and spoke with Dorothy Lyons. After she hung up the phone, she was very upset and crying, and she asked her nephew, David Galbraith, to get appellant's rifle for her. The rifle, a Colt AR-15, had been kept at the Galbraith house for several weeks. Ms. Lyons took the rifle, which was established by ballistics and other evidence as the murder weapon, and left the party after 1:00 a.m. in a car, accompanied by Susan Yuhas.
Kenneth Scott knew appellant and he testified that he saw him in the parking lot of the Sherman Hills Apartments at approximately 1:15 a.m. Appellant was carrying a garbage bag containing several small boxes. Ms. Lyons had an apartment in the Sherman Hills Apartments in Wilkes-Barre and had stored boxes of ammunition there for appellant. (Small boxes of ammunition were found in the house where appellant eventually surrendered to police.) When Mr. Scott called to appellant and walked toward him, appellant told Mr. Scott that he ought to be careful yelling at people like that, he could get himself shot. The two spoke briefly and appellant seemed to be upset, although his speech was understandable and "normal," as was his walking.
At approximately 2:00 a.m., a group of four teenagers had left a friend's house on Schoolhouse Lane in Wilkes-Barre and were walking to their car when they heard a series of gunshots which seemed to be coming from 28
Schoolhouse Lane (appellant's home). The four were Raymond Hall, James Olson, Tommy Demellier and Molly McBride. At this time, appellant came out from the back of the house walking toward the group when Raymond Hall, recognizing appellant, stated "I know you." Appellant responded "Yeah, you're not going to live to tell anybody about this," and he aimed the AR-15 at Mr. Hall and shot him fatally. He then turned toward James Olson and shot him. Mr. Olson, although seriously wounded, survived to testify at trial. Thomas Demellier knocked Ms. McBride to the ground, seeking cover. Appellant, holding the rifle, dressed in green army fatigues with an ammunition bandolier around his chest and shoulders, backed away from them.
Later that morning, eight women and children were found shot to death at appellant's home at 28 Schoolhouse Lane. Most had been shot through the head at close range. The dead were: Susan Yuhas (age: twenty-three), and her two children to appellant, Bowendy Banks (age: four) and Mauritania Banks (age: one) who resided with appellant; Dorothy Lyons (age: twenty-nine), and her two children, Foraroude Banks (age: one) and Nancy Lyons (not appellant's daughter; age: eleven) who sometimes resided with appellant; Regina Clemens (age: twenty-nine) and her daughter to appellant, Montanzima Banks (age: six), who had resided at 28 Schoolhouse Lane until about two weeks before the shooting.
Joseph Yencha had been drinking at a nearby lounge, the Cabaret, until about 2:10 a.m. on September 25, 1982. He was seated in his car when appellant walked up to him, pointed the rifle at his head, and told him to "move over or I'll blow your f___ing head off." Mr. Yencha moved over, appellant got behind the wheel and he told Mr. Yencha to be quiet, he didn't want any more trouble because he had just "killed his two children." Appellant asked Mr. Yencha if he wanted to get out, then he stopped the car, allowed him to get out, and told him that he would leave the car where it could be found. The car was found later that day, with an unopened bottle of gin and a bullet cartridge in the car.
At 2:30 a.m., shots were heard at the Heather Highlands Trailer Park in nearby Jenkins Township. Residents of the trailer park called the police when they heard the shots and then a male voice shouting "That's what you get for f___ing with me. You f___ with me some more, I'll come back and kill the rest of you." When police officers arrived, they found Angelo Vital and Keith Mazzillo, alive and unharmed, outside the Mazzillo trailer. They also found the bodies of Sharon Mazzillo (age: twenty-four), a former girlfriend of appellant's, and their son, Kissmayu Banks (age: five), as well as Sharon's mother, Alice Mazzillo (age: forty-seven) and Scott Mazzillo (age: seven), Sharon's nephew. Angelo Vital and his brother, Keith Mazzillo, Alice Mazzillo's sons, witnessed the horrifying events at the trailer, and they testified at trial.
Angelo Vital, ten years of age at the time of trial, testified that appellant came into the trailer and said "I shot some of my family, now I'm going to shoot some of yours." Appellant then shot Kissmayu who had been asleep on the couch. Sharon and Alice Mazzillo tried to push appellant out of the trailer, and Alice then went into the back room to use the telephone, with Angelo following his mother. Angelo heard another shot and looked out to see appellant chasing Scott Mazzillo, saying "You called my son a nigger." Appellant then shot Scott Mazzillo, kicked him and hit him with the rifle. Appellant turned and fired one shot at Alice Mazzillo as she tried to call the police, striking her in the face and killing her, then left, telling Angelo "I'll get you next time."
Keith Mazzillo, thirteen years of age at the time of trial, testified to the same effect. He heard appellant state "I heard you call my son a little nigger," and saw him choke, kick, hit and shoot Scott Mazzillo. He did not see appellant shoot the others. Sharon Mazzillo's body was found outside the trailer, where Keith had heard her arguing with appellant. Both Angelo Vital and Keith Mazzillo identified the AR-15, introduced into evidence at trial, as the weapon appellant used that morning.
At about 6:00 a.m., appellant arrived at his mother's house. His mother, Mrs. Mary Yelland, told the police that appellant stated "I killed them. I killed them all." Mrs. Yelland called appellant's house and spoke with a police officer. Appellant got on the telephone with Luzerne County Detective James Zardecki and asked how his kids were. Detective Zardecki told him the children were hospitalized and seriously hurt, but appellant responded "You're lying. I killed them. I know they're dead . . . . Just tell me I killed them and I'll kill myself." After a minute or two of Detective Zardecki trying to convince appellant that his children were alive, and repeated statements by appellant that he knew they were dead, the line went dead. Detective Zardecki had no trouble understanding appellant who was responsive and spoke in a "normal" tone.
After this call, appellant told his mother to drive him to his friend's (Jacob Whitt's) house at 24 Monroe Street in Wilkes-Barre. On their way there, their vehicle was involved in a traffic accident. Appellant stated he was going to kill the other driver, but his mother convinced him not to, and the two drove away. When they arrived at Monroe Street, appellant went into the house, telling his mother he would never see her again. He then went inside and prepared himself for a siege.
Mrs. Yelland returned to her home where, a short time later, police officers came believing appellant was there. Mrs. Yelland informed them appellant was at 24 Monroe Street. Police officers then surrounded the house by about 7:00 a.m.
Between 7:30-8:00 a.m., Mrs. Geraldine Whitt called her son Jacob's home to talk with him, and appellant answered the telephone. They recognized each other's voices. Mrs. Whitt asked appellant what he was doing there, and he replied "I killed them all. They're all dead. I killed my whole family . . . . I barricaded myself in Jake's house and I came here to die." He also told Mrs. Whitt that it was too late to pray for him now, "but you can pray for my soul."
Mrs. Whitt had no trouble understanding appellant, who sounded calm and coherent.
Telephone communications were established by police officers with appellant. Various civilians and police officers spoke with appellant, trying to convince him that his children were alive and in need of blood, and that he should therefore give himself up. Police arranged to have a radio broadcast played to corroborate the ruse that appellant's children were alive. While he persisted to tell people that they were lying because he knew he killed his children who he did not want "to grow up in a white racist world," eventually he gave himself up, at 11:15 a.m., after speaking with Mr. Robert Brunson, an acquaintance of appellant. Appellant told Officer Donald Smith he would have to break the window to hand the gun out, which he did, and he asked the officer not to shoot him. After handing out the AR-15 with a "banana" ammunition clip attached and two additional clips, he came out of the house with his hands above his head, as he had been instructed. Neither Officer Smith nor Mr. Brunson, nor any of those who spoke with appellant that morning, had any difficulty understanding appellant, who was calm and responsive to questions and instructions. Most of the witnesses testified that appellant did not appear to be intoxicated, although there was some evidence that he had an odor of alcohol about him.
Appellant was taken to the Wilkes-Barre police station and advised of his constitutional rights by Detective Patrick Curly. He told police officers there that he knew they had been lying to him about the children being alive. He further stated to Detective William Maguire that "he wished he was dead, because he stated that the State was going to kill him, anyway, in the electric chair."
The Commonwealth also introduced evidence from various witnesses to show appellant's apparent motive for his rampage. This evidence supported the inference that appellant was disturbed about losing control over his extended family. Regina Clemens had moved out of appellant's residence about two weeks before the shooting spree, and
was planning to move to Florida to get away from appellant. In the week before the murders, appellant was seen slapping and hitting Susan Yuhas, Regina Clemens' sister, stating "You're just like your sister Gina. You're going to leave just like her."
Appellant's mental condition at the time of the shootings was a major issue at trial, and the expert opinions of the psychiatric witnesses for the defense were diametrically opposed to the opinions of the Commonwealth's expert psychiatric witnesses. Defense counsel, the Luzerne County Public Defender and two assistant public defenders, presented numerous lay witnesses and three psychiatrists in an attempt to establish that appellant was legally insane under the M'Naghten rule, which despite repeated challenges remains the test for determining legal sanity and criminal responsibility in this Commonwealth. Commonwealth v. Oblek, 496 Pa. 519, 437 A.2d 1162 (1981). Under M'Naghten, a defendant is legally insane, and absolved of criminal responsibility, if "at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it that he did not know what he was doing was wrong." Commonwealth v. Roberts, 496 Pa. 428, 434, 437 A.2d 948 (1981), quoting The Queen v. M'Naghten, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843). Or as it is sometimes stated in the streamlined version, "an accused is criminally responsible [and not legally insane] unless at the time of committing the act, due to a defect of reason or disease of the mind, the accused (1) did not know the nature and quality of the act or (2) did not know that the act was wrong." Commonwealth v. Tempest, 496 Pa. 436, 440, 437 A.2d 952 (1981) (citations omitted).
In addition to the insanity defense, counsel also presented the defense of diminished capacity, Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976), attempting to reduce appellant's degree of guilt by showing that, because of his mental condition and intoxication due to consumption of
alcohol (beer and gin) and pills (Dilantin), he was unable to form the specific intent to commit murder of the first degree. There was evidence that appellant drank beer at the Galbraith's party, and several witnesses detected an odor of alcohol about him the following morning. Additionally, appellant had told lay witnesses and psychiatrists that he had been drinking gin for several days prior to and including September 25, 1982 and that, after he left the birthday party, he went home and took some pills (Dilantin) which he washed down with gin, and then passed out.
As to the insanity defense, lay and psychiatric witnesses for the defense presented a profile of a disturbed and paranoid man. Appellant, a prison guard at the state correctional institution in Camp Hill, was forty years of age at the time of the murders. He grew up taunted and tormented by both blacks and whites as he was the son of a black father and a white mother. Appellant was constantly called "half-breed," "zebra," and other derogatory names, as was his brother. Through the years, he developed a persecution complex and became obsessed with the paranoid delusion that there were soon to be international race wars and uprisings. In fact, he had written a chapter of a novel, featuring himself and his sons, dealing with survival in the aftermath of a race war. He prepared himself for the race wars by purchasing weapons, planting food along escape trails in the woods and reading the standard "survivalist" fare such as Soldier of Fortune magazine. At various times, he had spoken of killing himself, of killing people at a shopping mall, and of killing his children rather than see them brought up as he had been in a racist society.
The defense called three psychiatrists as experts. All three agreed, essentially, that appellant had been, before, during and after the murders, suffering from a severe mental defect, paranoid psychosis with paranoid delusions. All also agreed that, when dealing in the area of appellant's paranoid delusions concerning racism and race wars, appellant was completely obsessed and singularly focused, but that all other aspects of his personality, including his cognitive
functioning, were "normal" and intact. (Appellant had a high I.Q., over 120, and was described as being in the upper five percent of the population based on intelligence.)
Dr. Anthony J. Turchetti, a forensic psychiatrist who was appointed by the lower court in October, 1982, to examine and evaluate appellant, stated that in his opinion, appellant was, on September 25, 1982 (the date of the killings), actively suffering from psychosis paranoia which affected his thoughts, discretion and judgment and "because of this, I don't think he was capable of distinguishing right from wrong at that time."*fn4 Dr. DeWitt Weatherly and Dr. Michael K. Spodak also testified as expert witnesses for the defense. Drs. Weatherly and Spodak, both forensic psychiatrists licensed to practice their specialty in Maryland but not in Pennsylvania,*fn5 each testified that, in his opinion, appellant did not, as a result of his paranoid psychosis, understand the nature and quality of his criminal acts on September 25, 1982 and was unable to distinguish between right and wrong with respect to those acts.
Appellant also took the stand himself, against the advice of counsel, to offer a "partial" defense of a conspiracy against him. This theory will be discussed more fully in discussing appellant's competency to stand trial, but essentially was that appellant was the victim of a racist conspiracy involving, among others, police officers, the Mayor of Wilkes-Barre, the District Attorney's office and the judge. Appellant admitted shooting most of the victims, but claimed that Detective Curly shot and killed two of the
victims and that Detective Curly and others had moved the corpses, altered their features, "doctored" their wounds and concealed or destroyed evidence, all as a part of a racist conspiracy.
In rebuttal, the Commonwealth introduced lay and expert testimony to establish appellant's sanity. Dr. Park E. Dietz and Dr. Robert L. Sadoff, both of whom are forensic psychiatrists licensed to practice their specialty in Pennsylvania,*fn6 testified for the Commonwealth. Both psychiatrists reviewed previous psychiatric evaluations of appellant, observed him in court at trial and on previous occasions, examined appellant, reviewed numerous documents and letters, and examined the extensive testimony of witnesses and statements of people who had been in contact with appellant on September 24-25, 1982.
While Drs. Dietz and Sadoff basically agreed with the diagnosis of the defense psychiatrists that appellant suffered from a serious mental defect, paranoia psychosis, which did not otherwise impair his personality, intelligence and cognitive functioning, they did not agree with their expert opinions. Each testified that, in his opinion, appellant was able to know and understand the nature and quality of his acts, to distinguish between right and wrong, and to form the specific intent to murder. Each doctor also seriously questioned the bases for the defense psychiatrists' opposite conclusions. Significant factors in forming their opinion that appellant knew the nature and quality of his acts and knew his acts were wrong included appellant's behavior and repeated acknowledgements that he knew he had killed his family and children, his threats to kill at least several of the victims before he actually shot them, his threats to return to kill Angelo Vital and Keith Mazzillo, and many other indications that he knew and understood
that what he did was wrong.*fn7 There were also numerous indications of premeditation and planning, including appellant's telephone call to Dorothy Lyons to get the AR-15 for him, and his driving to the Sherman Hills Apartments to get the ammunition.
The jury rejected appellant's defenses and, after deliberating for about five hours, with one request for clarification as to the degrees of homicide, returned its verdicts on June 21, 1983, finding appellant guilty of murder of the first degree on twelve counts, murder of the third degree for the killing of Raymond Hall, attempted murder of James Olson, and on the remaining counts of assault, robbery and theft.
The following day, a sentencing proceeding was conducted before the same jury, pursuant to the Sentencing Code. 42 Pa.C.S.A. § 9711(a). The Commonwealth sought the death penalty on each conviction for murder of the first degree on three aggravating circumstances under section 9711(d), namely that appellant knowingly created a grave risk of death to other persons (d)(7), that appellant had a significant history of felony convictions involving violence (d)(8), and that appellant had been convicted of another offense committed at the time of the offenses at issue for which a sentence of life imprisonment or death was imposable (d)(10). Appellant presented three mitigating circumstances under section 9711(e), namely that appellant was under the influence of extreme mental or emotional disturbance (e)(2), the capacity of appellant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (e)(3), and "any other evidence of mitigation concerning the character and record of defendant and the circumstances of his offense" (e)(8). After deliberating for almost six hours, the jury returned twelve sentences of death based on its finding of one aggravating circumstance ((d)(10)-other offenses for which death sentence was imposable) which outweighed the
one mitigating circumstance it found ((e)(2)-extreme mental or emotional disturbance). 42 Pa.C.S.A. § 9711(c)(iv).
From the foregoing, we have no difficulty in finding the evidence sufficient to sustain appellant's convictions beyond a reasonable doubt.*fn8 As we have seen, there was overwhelming evidence that appellant premeditated, planned and specifically intended to kill his family members.*fn9 And, there was abundant evidence, both from lay witnesses and the Commonwealth's expert and well-qualified psychiatric witnesses, to support the jury's finding that appellant was legally sane and criminally responsible for his acts of September 25, 1982 under M'Naghten, and that he possessed the capacity to form the specific intent to kill. See Commonwealth v. Zettlemoyer, supra note 8 at 500 Pa. 27-39 (evidence that appellant Zettlemoyer had a "schizoid personality with paranoid features" was insufficient to establish defense of diminished capacity); Commonwealth v. Weinstein, 499 Pa. 106, 114, 451 A.2d 1344, 1347 (1982) (psychiatric testimony under Walzack /diminished capacity is irrelevant unless "it speaks to mental disorders affecting the cognitive functions [of deliberation and premeditation] necessary to formulate a specific intent"); Commonwealth v. Tempest, supra (although mother, who drowned her son and then went downstairs to watch game shows on television until her husband came home was mentally ill, she was nevertheless legally sane under M'Naghten, as evidenced by her statements made during and after the drowning); Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970) (mother who shot her four children rather than see her children taken from her by her husband was legally
sane under M'Naghten; lay testimony alone was sufficient to rebut the opinion of three defense psychiatrists that mother was insane).
We turn now to appellant's specific assignments of error. Appellant first and principal claim is that the lower court erred in finding him to be competent to stand trial. On February 28, 1983, pursuant to defense counsels' application under section 402-403 of the Mental Health Procedures Act of 1976, Act of July 9, 1976, P.L. 817, No. 143, 50 P.S. §§ 7402-7403 (supp. 1986), a preliminary competency hearing was held at which the court scheduled a full evidentiary hearing. The reason for defense counsels' concern over appellant's competency was his stubborn insistence on pursuing his "conspiracy" theory, i.e., that the police officers, the Mayor of Wilkes-Barre, the District Attorney's office and perhaps the court were conspiring against him in concealing and altering evidence, shooting some of the victims, rearranging some of the corpses and covering up some of their wounds, and obstructing his attempts to expose the "conspiracy." He viewed his trial as a means of "taking the mask off the devil."
The first pre-trial competency hearing was held on March 14, 1983, at which much lay testimony was introduced, as well as the expert opinions of Dr. Michael Spodak (for the defense) and Dr. Robert Sadoff (for the Commonwealth). The lower court allowed broad latitude to both sides to explore appellant's competency. Again, the psychiatric opinions were diametrically opposed. Dr. Spodak testified that, while appellant's cognitive functions and intelligence were reasonably unimpaired, his paranoid delusions of the conspiracy were so strong that he would be substantially unable to understand the nature and object of his proceedings or to participate and assist in his defense. (The Mental Health Act provides that a person shall be deemed incompetent to stand trial if he is "substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense . . . ." 50 P.S. § 7402(a)) Dr. Sadoff, on the other hand, testified unequivocally
that appellant was able to follow the advice of counsel and to participate and assist in the defense, although he might choose not to. He also testified that, in his opinion, appellant fully understood the nature and object of the pending criminal proceedings as a trial to determine his guilt or innocence and sentence if found guilty, even though he choose to use the proceedings to advance his own agenda and to expose the "conspiracy" to the public. On March 18, 1983, the court issued an order declaring appellant was "not substantially unable to understand the nature or object of the proceedings against him, or to participate and assist in his defense," and he directed appellant to stand trial.
At the request of defense counsel, a second pre-trial competency hearing was held on May 6, 1983, with Dr. Sadoff again testifying for the Commonwealth and Dr. DeWitt Weatherly for the defense. Dr. Weatherly stated that, in his opinion, because of appellant's obsessive and paranoid preoccupation with this perceived conspiracy, he would be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense. On cross-examination, however, Dr. Weatherly conceded that appellant did not have a loss of cognitive function, that he knew he was in a court of law for a competency hearing, that he was charged with thirteen counts of homicide and other offenses for which the penalty could be execution, that he knew what the functions of the various "players" in the criminal judicial system were, that he understood the insanity defense and that he would not be executed if he was found not guilty by reason of insanity, and that he knew he could cooperate with counsel in presenting that defense or he could refuse to cooperate. The crux of Dr. Weatherly's and defense counsels' position that appellant was incompetent to stand trial was that, despite appellant's cognitive awareness and intellectual capacity, he wanted to use the criminal trial to "go through some sort of sensational, explosive proceeding to reveal his story and . . . wake up the community, arouse the community, precipitate a race war, revolution." In summary,
Dr. Sadoff testified for the Commonwealth that his opinion had not changed, and that appellant remained competent to stand trial despite his obsession with a conspiracy and his choice to ...