On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 02-cv-00513) Senior District Judge: Hon. Ronald L. Buckwalter.
Submitted Under Third Circuit LAR 34.1(a) September 1, 2006
Before: MCKEE, GREENBERG AND ROTH, CIRCUIT JUDGES
Appellee Michael Pierce, a death-sentenced inmate incarcerated at the State Correctional Institution in Greene County, Pennsylvania ("SCI-Greene"), was convicted in 1990 following a jury trial of three counts of first degree murder, arson and other charges in connection with setting his parents' house on fire. Pierce's mother and 95 year-old grandmother died in the fire, and his father, who tried to save them, died six months later from complications due to smoke inhalation and bronchopneumonia. The fire was started in the basement by use of an accelerant, gasoline. Although an adult, Pierce was living with his parents just before the fire because his marriage had failed and he was unemployed. Pierce's sister, Joan, who escaped the fire, testified for the Commonwealth that Pierce believed that his parents were conspiring against him and trying to poison him.
Pierce's competence to stand trial and unyielding negative views about a psychiatric approach to his defense were issues from the beginning of the criminal proceedings. Our decision that we lack jurisdiction over this appeal requires that we discuss this background in some detail. Prior to the appointment of Janice Smarro, Esquire, Pierce moved to have two prior lawyers discharged on the ground that each was conspiring with the District Attorney of Philadelphia. One of these attorneys, Michael Wallace, Esquire, sought a court-ordered competency evaluation. In November 1989, Dr. Eric Becker did a mental status examination and concluded that Pierce was competent to stand trial. Apparently, the trial court, the Honorable David N. Savitt, found Pierce competent to stand trial in December 1989. App. 64. Wallace tried to have the trial court order other evaluations in 1990, but Pierce refused to cooperate with Dr. Pietro Miazzo, App. 67, 69, and he then sought to have Wallace removed from his case.
Pierce went to trial with Smarro as counsel and was found guilty. At the penalty hearing, the Commonwealth argued two aggravating circumstances, murder in the course of committing another felony (arson) under 42 Pa. Cons. Stat. Ann. § 9711(d)(6), and creating a grave risk of death to a person other than the murder victims under subparagraph (d)(7) of the same statute. In her penalty-phase summation, Smarro raised four mitigating circumstances: that Pierce had no significant prior criminal history, 42 Pa. Cons. Stat. Ann. § 9711(e)(1), that he was under the influence of extreme mental or emotional disturbance at the time of the murders, subparagraph (e)(3), his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired, subparagraph (e)(8), and any other mitigating factors under the catchall, subparagraph (e)(8). She implored the jury to consider that Pierce was out of touch with reality and mentally ill at the time of the offense, but she did not seek to have Pierce evaluated by a mental health professional, nor did she seek a competency evaluation or an inpatient commitment. The jury returned sentences of death for each of the three murder convictions, after finding that the Commonwealth had proved both of the aggravating circumstances. Pierce was sentenced to death.
During post-verdict proceedings in 1991, Pierce's new attorney, Earl Kauffman, Esquire, argued that Smarro was ineffective at the penalty phase for failing to present psychiatric testimony, among other things. Pierce, however, again refused to speak to a psychiatrist, thus undermining new counsel's strategy for appeal. Following hearings, the trial court denied post-verdict motions, holding that Smarro was not ineffective. Psychiatric investigation would have been a futile gesture because of Pierce's refusal to present such evidence. Judge Savitt explained:
With respect to the issue of psychiatric testimony, trial counsel testified at the July 10, 1991 [hearing] that defendant had told her "in no uncertain terms" that he would not speak to either a psychologist or a psychiatrist. In light of this, obtaining a psychiatric witness would have been a futile gesture. Furthermore, trial counsel did argue that the defendant was under the influence of extreme mental or emotional distress at the time he committed the act based on the testimony of Joan Pierce and Timothy O'Reilly and also that the defendant's capacity to conform his conduct to the requirements of law was substantially impaired also based on testimony at trial.
The state supreme court affirmed on July 1, 1994 in Commw. v. Pierce, 645 A.2d 189 (Pa. 1994). In pertinent part, the court held that trial counsel was not ineffective for failing to introduce expert testimony on the issue of Pierce's mental state and the effects of his drug and alcohol abuse, stating that: "[A]n accused cannot refuse to cooperate with counsel in preparation of a particular trial strategy and then argue counsel's ineffectiveness for failing to pursue that course of action." Id. at 196 (citing Commw v. Szuchon, 484 A.2d 1365 (Pa. 1984)). The court explained:
Appellant argues that trial counsel should have recognized that there was something critically wrong with [his] thought process and forced [him], against his own wishes, to present psychological evidence of emotional and mental disturbance in mitigation at the penalty phase. Trial counsel testified at the hearing on post-trial motions that she requested appellant submit to psychological and psychiatric interviews prior to trial and that appellant vehemently refused to cooperate. In fact at one of the hearings on post-trial motions (hearings were held on four separate dates) appellant testified that he had dismissed his first court appointed attorney over the issue of psychiatric evaluations. Appellant emphatically stated that there was nothing wrong with him and that he would not cooperate with preparation of psychological or psychiatric testimony.
Pierce, 645 A.2d at 196. No petition for certiorari was filed.
Pierce filed a state petition for post-conviction relief pro se in October 1994. Counsel was appointed and an amended petition was filed. The trial court permitted post-conviction counsel, Bernard Siegel, Esquire, to retain a psychologist, and Siegel attempted to have Pierce evaluated by Allan Tepper, Psy.D., to explore with him potential death penalty mitigation factors and issues, and the issue of his state of mind at the time of the offense. Pierce refused. The trial court convened a hearing on July 30, 1997, and Dr. Tepper was permitted to attend to speak with Pierce about his refusal to be examined. Pierce testified that he did not wish to pursue psychiatric defenses. He noted his high intelligence and asserted that he had certain guilt-phase issues he wished to pursue, including some involving jury instructions. He believed that, with the death sentence in place, his eventual federal habeas appeal would receive greater attention. On the other hand, if the death sentence was vacated, he "could spend 20, 25, 30, 40 years trying to get my appeal heard," and, in any event, he was not afraid to die. App. 193-94, 211.
Dr. Tepper testified that, although Pierce appeared to have underlying psychiatric problems, he understood that he might be giving up a substantial right in not pursuing the mental illness mitigating issues. Moreover, he could listen to what others had to say and voice his opinion. App. 228-230. The state post-conviction petition was denied. Judge Savitt concluded that the issues had been previously litigated, and to the extent that new ...