Appeal from Judgment of Sentence October 25, 1985, in the Court of Common Pleas of Centre County, Criminal No. 85-85.
Peter D. Goldberger, Bellefonte, for appellant.
Ray F. Gricar, District Attorney, Bellefonte, for Com., appellee.
Wieand, Olszewski and Tamilia, JJ. Wieand, J., concurs in the result.
[ 365 Pa. Super. Page 601]
This is an appeal from the judgment of sentence imposed following appellant's plea of guilty, but mentally ill, in connection with the murder of her infant son. After careful consideration of the briefs*fn1 and record on appeal, we conclude that we must affirm.
The victim, Garret Comitz, was born to appellant, Sharon Comitz, and her husband, Glenn Comitz, on December 3, 1984. One month later, on January 3, 1985, appellant drove Garret to a point in Centre County, Pennsylvania, where a stream called Black Bear Run passes under Route 504, and dropped him into the stream. Garret's body was found the next morning, fully clothed and lying face down in the water. As disclosed by a subsequent autopsy, the cause of death was either suffocation or exposure to the elements.
Appellant at first told state police, on the day before Garret's body was found, that Garret had been kidnapped from her car while it was parked at a shopping center. In
[ 365 Pa. Super. Page 602]
the weeks that followed, however, the police uncovered evidence implicating appellant in her son's death. The investigation eventually culminated in a complaint and information charging appellant with first and third degree murder.
Appellant initially entered a plea of not guilty to each offense. Thereafter, however, appellant agreed to plead guilty but mentally ill to the charge of third degree murder. At the change of plea hearing held June 14, 1985, the trial court accepted appellant's plea, finding that appellant was mentally ill at the time of the offense. After changing her plea and prior to being sentenced, appellant was examined by Dr. Robert Sadoff, a prominent forensic psychiatrist. At that time appellant was placed under hypnosis and, while hypnotized, acknowledged that she had killed Garret.
Following testimony and argument at sentencing, the trial court determined that appellant was not currently "severely mentally disabled," see 42 Pa.C.S. Sec. 9727, and then sentenced appellant, by order filed October 29, 1985, to a term of eight to twenty years imprisonment. Appellant filed a "Petition to Amend Sentence," which the trial court denied, treating the petition as a motion to modify sentence. Appellant then filed a timely notice of appeal on November 25, 1985. Appellant's counsel subsequently withdrew and were replaced by appellate counsel, who entered his appearance on May 6, 1986.
Before addressing the issues on appeal, we observe that appellant's mental condition has been the focus of attention in this matter. According to various medical records and reports received into evidence, appellant has a history of depressions associated with her family and with childbirth. Records from Geisinger Medical Center, for example, disclose that appellant suffered from postpartum depression following the birth of her first child, Nicole.*fn2 Appellant
[ 365 Pa. Super. Page 603]
also became depressed, according to the evidence, while pregnant with Garret. Deborah Gette, a close church friend, testified that she had two long telephone conversations with appellant a few days before Garret was born. At that time, appellant expressed concern over her depression, telling Ms. Gette that she was afraid that what happened with Nicole would happen with the new baby.*fn3 The evidence demonstrates that appellant continued to be depressed after Garret's birth, appellant's doctor having ordered her to take medication for that depression.
The evidence presented at sentencing concentrated on appellant's mental condition at the time she murdered Garret as well as appellant's prognosis for the future. Dr. Sadoff, an expert witness for appellant, testified that he believed appellant had "dissociated"*fn4 at the time of Garret's death, and characterized appellant's dissociation as "somewhere towards the pathological or abnormal as an atypical association nearing or approaching multiple personality . . . ." N.T. 10/25/85, 15. Dr. Sadoff thought that the hypnosis confirmed appellant's dissociation, stating that it also allowed appellant an opportunity to express information concerning Garret's death that she had repressed. Dr. Sadoff further testified that he believed appellant required
[ 365 Pa. Super. Page 604]
comprehensive psychiatric treatment, preferably as an outpatient, as he did not think appellant would receive adequate therapy on an inpatient basis. He stated that he did not believe appellant represented a risk to her daughter Nicole, indicating that, in his opinion, appellant did not do anything to harm Nicole in 1980. See footnote 2.
Dr. Stephen Ragusea testified for the Commonwealth. Dr. Ragusea expressed his opinion that appellant was mentally ill but indicated that there was no evidence that she was actually psychotic at the time of the crime. Having reviewed a videotape of the hypnotic session, Dr. Ragusea found the session to be flawed and concluded that the tape contained no evidence that appellant was a multiple personality or that appellant had experienced a dissociative reaction. Concerning the future, Dr. Ragusea remarked that, given that appellant had a history of family depressions and had herself suffered major depressions, "we are likely to see long periods when (appellant) will probably function fine, punctuated by periods when she will not. During those periods wherein she does not function well I think we have to make sure that people don't get hurt as a result of her problem." N.T. 10/25/85, 77. Dr. Ragusea concluded that appellant had a profound psychological problem as well as a behavioral problem (in that she killed a small child), which together called for intensive inpatient treatment.
Appellant presents the following questions for our review: (1) Whether a mother's psychiatric condition is necessarily a "substantial ground tending to excuse . . . (her) criminal conduct" under 42 Pa.C.S. Sec. 9722(4) where she has killed her newborn baby during a psychotic postpartum depression of sufficient severity to support a plea of "guilty but mentally ill" and, whether appellant's prior counsel were therefore ineffective for failing to include this question in their motion to modify sentence; (2) whether the sentencing court abused its discretion in ruling that the aggravating factors in this case balanced out the mitigating factors, including substantial mental illness; and (3) whether appellant's prior counsel were ineffective in representing
[ 365 Pa. Super. Page 605]
appellant at sentencing due to their failure to familiarize themselves with and present the known scientific facts concerning atypical dissociative reactions in postpartum psychosis.
Preliminarily, we observe that appellant's second issue, which contests a discretionary aspect of the trial court's sentence, was neither raised at sentencing, nor included in a motion to modify sentence. Appellant did file a "Petition to Amend Sentence," which the trial court treated as a motion to modify sentence filed in accordance with Pa.R.Crim.P. 1410. That petition, however, merely requested the trial court to reconsider its sentence in light of psychiatric and psychological reports from Dr. Joseph Silverman which had not been available at the time of sentencing. Importantly, appellant did not raise, either in the petition or at the hearing on the petition, the allegation which she now asserts with respect to her second issue, i.e., that the trial court abused its discretion in ruling ...