# Commonwealth v. Zlatovich

> Supreme Court of Pennsylvania · October 9, 1970 · 440 Pa. 388

URL: https://www.frixlaw.com/law-library/cases/9747500

## Case

- **Full name:** Commonwealth, v. Zlatovich, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 9, 1970
- **Citations:** 440 Pa. 388; 269 A.2d 469; 1970 Pa. LEXIS 591
- **Precedential status:** Published
- **Opinion:** Dissent by Pombeoy
- **Judges:** Robeets, Pombeoy, Bell, Jones, Cohen, Eagen, O'Brien, Boberts, Pomeroy
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part by Commonwealth v. Demmitt, 456 Pa. 475 (1974).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747500

## Opinion text

Dissenting Opinion by
Me. Justice Pombeoy :
I dissent from that portion of the opinion of the Court which approved the charge of the trial judge relative to the sanity presumption. The pertinent portion of the charge is as follows: “Since sanity is the legally recognized normal condition of human beings, its existence in any given instance is presumed. That means that in the absence of any proof to the contrary, it is assumed that the Defendant had normal mental capacity. Because of the presumption, the duty of establishing insanity as a defense to a criminal charge is . . . upon the one who asserts it. . . . it is incumbent upon her [the defendant] to establish the alleged defective mental condition by a fair preponderance of the evidence. . . . The presumption of sanity, which was mentioned before, holds good and is the full equivalent *399 of express proof of sanity until that presumption has been successfully rebutted, by the Defendant.” As in Commonwealth v. Vogel, 440 Pa. 1 , 268 A. 2d 89 (1970), I do not question the correctness of the charge at the time it was given 1 ; the presumption of sanity persisted throughout the trial, as the equivalent of evidence, no matter what evidence was introduced by the defendant to rebut it; and the burden was on the defendant to prove insanity by a preponderance of the evidence.
In Vogel , there was not unanimity as to the extent of the function of the insanity presumption, and whether and when the presumption disappears in the face of affirmative rebuttal evidence. Speaking for myself, I continue of the belief that to rebut the presumption of sanity, it should be incumbent upon the defendant to produce competent evidence sufficient to create a reasonable doubt in the mind of the trier of fact; if he does so, the presumption disappears. I expressed the further view that once the presumption has been thus eliminated the burden of persuasion should be upon the Commonwealth to establish sanity, as it must all other facts necessary to support a guilty verdict, beyond a reasonable doubt.
I think the charge was in error, however, under any of the diverse views expressed by the members of the Court who constituted a majority in Vogel . While the trial judge in Ms charge indicated that the presumption was rebuttable, its effect was to allow the jury to consider the presumption (along with affirmative evidence of sanity presented by the Commonwealth), in determining whether the defendant had carried her burden of proving the defense by a preponderance of the *400 evidence. After qualified psychiatric testimony that defendant was schizophrenic and was not able to appreciate the nature or quality of her acts, the jury’s determination as to whether the defense of insanity had been made out by a preponderance of the evidence should have been based only on the evidence pro and con; the presumption had served its purpose and should no longer have been in the case.
The trial in the case at bar took place in 1968; onr decision and opinions in Commonwealth v. Vogel were not filed until July 13, 1970.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747500. Public record. Not legal advice.