J-A30029-15

                                   2016 PA Super 4



ESTATE OF SUSAN C. MCANDREW                          IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA




APPEAL OF: JOSEPH C. MCANDREW, JR.

                                                         No. 830 EDA 2015


                   Appeal from the Order Dated March 2, 2015
              in the Court of Common Pleas of Montgomery County
                      Orphans’ Court at No(s): 2011- X1951


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

OPINION BY JENKINS, J.:                               FILED JANUARY 05, 2016

        Appellant Joseph McAndrew (“Appellant”), through his guardian ad

litem, Joseph Hylan (“Guardian”), appeals the order entered March 2, 2015

in the Montgomery County Court of Common Pleas, Orphans’ Court Division,

dismissing Appellant’s exceptions to the adjudication of Appellant’s mother’s

will. After careful review, we affirm.

        On March 5, 2011, Appellant, then 23 years old and deeply mentally

disturbed, killed his father, twin brother, and mother, Susan McAndrew

(“Mother”), with a sword.          Following a bench trial, the trial court found

Appellant “guilty but mentally ill” of three first-degree murders.            On

November 20, 2014, the trial court sentenced Appellant to three consecutive

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*
    Former Justice specially assigned to the Superior Court.
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terms of life imprisonment without parole, with the recommendation that he

receive psychiatric treatment at SCI Waymart.1

        Mother died intestate. Her husband and Appellant’s twin were deemed

to have predeceased her,2 leaving Mother’s father and Appellant himself as

the only heirs to her estate.              The administratrix of Mother’s estate

(“Administratrix”) filed the estate’s first and final account, which showed a

balance of $837,639.83. Following the criminal proceedings, on December

19, 2014, the lower court entered an adjudication of the estate, holding

that, despite being found guilty but mentally ill, the killing was willful and

Appellant was a “slayer” barred from inheriting from Mother’s estate.

        Appellant filed objections to the adjudication.         The lower court

conducted oral argument on February 25, 2015, and dismissed and denied

the objections by order dated March 2, 2015. Appellant timely appealed on

March 27, 2015.
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1
  A panel of this Court affirmed Appellant’s judgment of sentence on
November 5, 2015. See Commonwealth v. McAndrew, 3548 EDA 2014,
November 5, 2015, (unpublished memorandum). Appellant did not file a
petition for allowance of appeal with our Supreme Court.
2
    Pennsylvania’s Simultaneous Death Act provides:

        Where the title to property or the devolution thereof depends
        upon priority of death and there is no sufficient evidence that the
        persons have died otherwise than simultaneously, the property
        of each person shall be disposed of as if he had survived, except
        as provided otherwise in this chapter.

20 Pa.C.S. § 8501.



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        Appellant now raises the following claim for this Court’s review:

        Does the Slayer’s Act prohibit the slayer, found guilty but
        mentally ill of homicide, from inheriting the victim’s estate?

Appellant’s Brief, p. 3 (emphasis in original). Both parties agree this claim

presents an issue of first impression that constitutes a question of pure law.

Accordingly, the standard of this Court’s review is de novo, and the scope of

review is plenary.      Shafer Elec. & Const. v. Mantia, 96 A.3d 989, 994

(Pa.2014).

     1. The Slayer Act

        Pennsylvania’s Slayer Act3 (“the Slayer Act”) defines a “slayer” as “any

person who participates, either as a principal or as an accessory before the

fact, in the willful and unlawful killing of any other person.”    20 Pa.C.S. §

8801.     To prevent slayers from acquiring property or benefits from the

estates of those they killed, the Slayer Act provides:

        No slayer shall in any way acquire any property or receive any
        benefit as the result of the death of the decedent, but such
        property shall pass as provided in the sections following.

20 Pa.C.S. § 8802. To accomplish this goal, the Slayer Act deems slayers

        to have predeceased the decedent as to property which would
        have passed from the decedent or his estate to the slayer under
        the statutes of descent and distribution or have been acquired by
        dower, by curtesy or by statutory right as surviving spouse.


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3
    20 Pa.C.S. § 8801 et seq.



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20 Pa.C.S. § 8803. Further, the Slayer Act expressly states that it shall “be

construed broadly in order to effect the policy of this State that no person

shall be allowed to profit by his own wrong, wherever committed.” 20

Pa.C.S. § 8815.

       In addition to the Slayer Act, the Probate, Estates and Fiduciaries Code

expressly provides:

       Slayer’s share.--Any person who participates either as a
       principal or as an accessory before the fact in the wilful [sic] and
       unlawful killing of any person shall not in any way acquire
       property or receive any benefits as the result of such killing, but
       such property or benefits shall be distributed as provided in
       Chapter 88 of this code (relating to slayers).

20 Pa.C.S. § 2106(c).

       A criminal conviction for murder acts as a conclusive bar to the slayer

receiving any benefit from the victim’s estate.4 In re Kravitz’s Estate, 211

A.2d 443, 448 (Pa.1965) (holding that a record of conviction and judgment

of sentence for murder is not merely prima facie evidence of, but is a

conclusive bar to, slayer’s right to take under or against decedent’s will);

see also In re Klein’s Estate, 378 A.2d 1182, 1186 n.21 (Pa.1977)

(record of a murder conviction conclusively establishes a willful and unlawful

killing under the Slayer’s Act). Further, the Slayer Act expressly permits the


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4
 The same is true of convictions for voluntary manslaughter. In re Estate
of Bartolovich, 616 A.2d 1043, 1045 (Pa.Super.1992) (“voluntary
manslaughter is a willful killing under the Slayer’s Act”).



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introduction of the record of a murder conviction in estate challenges as

follows:

      The record of his conviction of having participated in the willful
      and unlawful killing of the decedent shall be admissible in
      evidence against a claimant of property in any civil action arising
      under this chapter.

20 Pa.C.S. § 8814.

   2. Insanity defense vs. guilty but mentally ill

      Appellant was found “guilty but mentally ill” of three first-degree

murders.   The Crimes Code defines first-degree murder as an “intentional

killing[,]” which by definition is a killing that is “willful, deliberate and

premeditated[.]” See 18 Pa.C.S. § 2502 (a & d). Appellant now invites this

Court to treat his verdict of “guilty but mentally ill” the same as a verdict of

“not guilty by reason of insanity,” which verdict would allow Appellant to

inherit from Mother’s estate.   See Appellant’s Brief, pp. 9-12. We decline

Appellant’s invitation.

      In a codification of the English common law insanity defense known as

the M’Naghten Rule, the Crimes Code defines the insanity defense as

follows:

      (a) General rule.--The mental soundness of an actor engaged
      in conduct charged to constitute an offense shall only be a
      defense to the charged offense when the actor proves by a
      preponderance of evidence that the actor was legally insane at
      the time of the commission of the offense.

      (b) Definition.--For purposes of this section, the phrase
      “legally insane” means that, at the time of the commission of
      the offense, the actor was laboring under such a defect of

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      reason, from disease of the mind, as not to know the nature and
      quality of the act he was doing or, if the actor did know the
      quality of the act, that he did not know that what he was doing
      was wrong.

18 Pa.C.S. § 315. As of 1982, the Crimes Code has included the additional

verdict option of “guilty but mentally ill”, which the Code explains as follows:

      (a) General rule.--A person who timely offers a defense of
      insanity in accordance with the Rules of Criminal Procedure may
      be found “guilty but mentally ill” at trial if the trier of facts finds,
      beyond a reasonable doubt, that the person is guilty of an
      offense, was mentally ill at the time of the commission of the
      offense and was not legally insane at the time of the commission
      of the offense.

                                      *****

      (c) Definitions.--For the purposes of this section and 42
      Pa.C.S. § 9727 (relating to disposition of persons found guilty
      but mentally ill):

      (1) “Mentally ill.” One who as a result of mental disease or
      defect, lacks substantial capacity either to appreciate the
      wrongfulness of his conduct or to conform his conduct to the
      requirements of the law.

      (2) “Legal insanity.” At the time of the commission of the act,
      the defendant was laboring 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 he
      was doing what was wrong.

      (d) Common law M’Naghten’s Rule preserved.--Nothing in
      this section shall be deemed to repeal or otherwise abrogate the
      common law defense of insanity (M’Naghten’s Rule) in effect in
      this Commonwealth on the effective date of this section.

18 Pa.C.S. § 314.

      Regarding the interplay between the insanity defense and a verdict of

guilty but mentally ill, this Court has explained:


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              Several steps of inquiry logically follow from the
       legislature’s express language. First, the fact finder is called
       upon to determine if the Commonwealth has proven that the
       actor is guilty of every element of the offense charged beyond a
       reasonable doubt. The Commonwealth needed to prove that
       [the defendant] was guilty beyond a reasonable doubt of each
       element of [the crimes charged]. If the Commonwealth fulfills
       its burden of proof, . . . the fact finder then moves to the second
       step of the probe.

             The second step calls for a determination of whether the
       accused has proven the defense of insanity by a preponderance
       of the evidence. If he was able to succeed in proving by a
       preponderance of evidence that he was insane at the time of the
       commission of the offense, then he must be acquitted.
       However, if the accused was unable to fulfill his burden of
       proving insanity, . . . then the fact finder moves to the third level
       of scrutiny.

             The third level of examination calls for the fact finder to
       ascertain whether the facts establish beyond a reasonable doubt
       that the accused was mentally ill. If the fact finder establishes
       that the accused meets the statutory definition, the verdict must
       be guilty but mentally ill. If [the fact finder finds] that the
       evidence [does] not support the finding of mental illness, then
       the verdict would [be] merely guilty.

Commonwealth v. Trill, 543 A.2d 1106, 1127-28 (Pa.Super.1988).

       Here, (1) the Commonwealth proved the elements of first-degree

murder beyond a reasonable doubt; (2) Appellant failed to prove by a

preponderance of the evidence that he was insane at the time of the

commission of the murders;5 and (3) the trial court – the fact-finder –

determined Appellant was mentally ill.


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5
 Had Appellant proven he was insane, the trial court would have returned a
verdict of not guilty.



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       The fundamental fact is that Appellant was found guilty of first-degree

murder. By definition, this guilty verdict means that Appellant committed a

“willful, deliberate and premeditated” crime.    See 18 Pa.C.S. § 2502 (a &

d). While the guilty but mentally ill verdict will entitle Appellant to greater

access to mental health treatment while in prison, it does not transform the

verdict into a successful insanity defense, which would have resulted in an

acquittal.

       Both sides and the lower court correctly note that no reported Superior

Court case has determined the application of the Slayer’s Act to a verdict of

guilty but mentally ill. However, Appellant and the trial court each discuss a

1988    Common     Pleas   case,   Prudential   Insurance    v.   Roberts,   8

Fiduc.Rep.2s 309 (C.P. Westmoreland 1988). See Appellant’s Brief, p. 10;

Trial Court Order, December 19, 2014, pp. 3-4.              In Roberts, the

Westmoreland County Court of Common Pleas addressed the application of

the Slayer Act to a verdict of guilty but mentally ill in denying the slayer

benefits from the decedent’s insurance policy.           The Roberts court

determined as follows:

             No one questions the fact that the shooting death of [the
       deceased] was unlawful, the question is: does the mentally ill
       aspect of the guilty verdict preclude what would be the normal
       legal conclusion arising out of a guilty verdict on a murder
       charge, that the killing was also willful.

             A verdict of not guilty by reason of insanity has been held
       not to raise the bar of the Slayer[] Act (Gabel Est., 27
       Fiduc.Rep. 322); but that is not the verdict rendered in [the
       defendant’s] case.


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            In [In re] Kravitz[’s Estate, 211 A.2d 443,] 418 Pa. 319
      [(1965)], the Supreme Court held that a murder conviction was
      a conclusive bar to the convicted party’s right to receive any
      property or benefit because of the Slayer Act. We have here a
      murder conviction. Should it be treated any differently because
      the verdict reflected that the defendant was mentally ill in
      addition to being guilty?

            The verdict of guilty but mentally ill was created by statute
      in 1982: 18 Pa.C.S.[] Section 314. Its intended effect was not
      to excuse criminal conduct as is the case where a defendant is
      found not guilty by reason of insanity; rather, the legislature
      provided that a person found guilty but mentally ill “may have
      the same sentence imposed upon him which may be lawfully
      imposed on any defendant convicted of the same offense.” 42
      Pa.C.S.[] Section 9727. The act does not in any way reduce the
      defendant’s culpability for his or her act nor in any way does it
      negate the element of intent or willfulness normally required for
      conviction. The only difference is that at sentencing the court
      may, after a finding that the defendant is severely mentally
      disabled and in need of treatment, order the defendant to serve
      some or all of the sentence imposed in treatment pursuant to
      the “Mental Health Procedures Act” 42 Pa.C.S.[] Section 9272(a)
      and (b).

                                      ***

      [W]e conclude that a guilty but mentally ill verdict where the
      defendant has been convicted of murder does not diminish the
      legal sanctions which may come to bear on the person convicted.
      Among the sanctions which follow a murder conviction is the civil
      disability imposed upon the convicted person under the Slayer’s
      Act.

Roberts, 8 Fiduc.Rep.2s at 310.

      Using the Roberts court’s reasoning, the trial court stated the

following in denying Appellant’s objections to Mother’s estate’s accounting:

             We can find no flaw in [the Roberts court’s] logic. For
      this reason, we are not persuaded by the spirited arguments of
      [Appellant’s] guardian ad litem as to why the Slayer’s Act should
      not apply. The guardian parses the concept of “guilty but
      mentally ill” by referring to the definition of a mentally ill person

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       in the Crimes Code, to wit: “One who as a result of mental
       disease or defect, lacks substantial capacity either to appreciate
       the wrongfulness of his conduct or to conform his conduct to the
       requirements of the law.” 18 Pa.C.S.[] § 314.

             The guardian asserts that, under this definition,
       [Appellant] should not be deemed to have acted willfully and
       with the intent to kill. He argues that the Slayer’s Act should
       apply only when “a person who intentionally kills the decedent
       with a primary motivation of gaining financial benefit from the
       decedent’s estate or . . . the person, not suffering from a mental
       disorder, kills the decedent[.]” (Guardian’s Supplemental Brief,
       6).

             We find this proposed refinement of the Slayer’s Act can
       not [sic] be grafted onto the plain language of the statute.
       Therefore, we must dismiss the [Appellant’s] objections to the
       account, and hold [Appellant] is a slayer and is barred from
       inheriting from his mother’s estate.

Trial Court Order, December 19, 2014, pp. 4-5.

       We find the trial court properly decided this matter based on the sound

reasons in the Roberts court’s persuasive decision.      Accordingly, we hold

that a verdict of guilty but mentally ill for first-degree murder bars a killer

from inheriting from the decedent’s estate under the Slayer Act.6

       Order affirmed.




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6
  We note that the Eastern District of Pennsylvania, in a separate matter
brought in federal court by father’s life insurer, applied Pennsylvania law to
also determine that Appellant was a slayer. See Genworth Life & Annuity
Insurance Company v. Estate of Joseph McAndrew, Sr., et al., Civil
Action No. 2:14-cv-01578-W.Y. (E.D.Pa.) (applying Pennsylvania law).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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