Submitted April 3, 2013
Appeal from the Order entered on 5/29/2012 (reconsideration denied on 6/19/12) in the Court of Common Pleas, Criminal Division of Blair County at No. CP-07-CR-0001980-1998. Trial Court Judge: Hiram A. Carpenter, III, Judge.
For Commonwealth of Pennsylvania, APPELLANT: Richard A. Consiglio, Esq., Derek J. Elensky, Esq., Blair County District Attorney's Office.
For Wright, William L., III, APPELLEE: Anna Margaret Ahronheim, Esq.
For Thomas M. Glenn, Jennifer K. Glenn-Elliott and William H. Wright, Next of Friends, AMICUS CURIAE: Billy Horatio Nolas, Esq., Federal Community Defender Office, Eastern District of PA.
BEFORE: MR. JUSTICE SAYLOR. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ. Mr. Chief Justice Castille and Messrs. Justice Eakin, Baer, McCaffery and Stevens join the opinion. Madame Justice Todd files a concurring and dissenting opinion.
[621 Pa. 449] MR. SAYLOR,
In this capital case, the Commonwealth appeals an order finding Appellee incompetent to waive his state post-conviction rights, including his right to counsel.
Appellee was sentenced to death for the 1998 murder of James Mowery. While his direct appeal was pending, Appellee [621 Pa. 450] filed a pro se habeas corpus petition in federal court, see 28 U.S.C. § 2254, asking that court to direct this Court to either issue a decision within 60 days or release him from custody. The district court appointed the Federal Public Defender for the Western District of Pennsylvania to represent Appellee. The habeas matter was stayed pending exhaustion of state remedies.
Although represented, Appellee filed a second pro se document in the federal court, demanding that his direct appeal be discontinued and that he be allowed to proceed immediately to execution. Appellee also filed papers reflecting that he wished to discharge counsel due to irreconcilable differences, and that counsel was forbidden to communicate with Appellee. Shortly thereafter, in December 2008, this Court affirmed Appellee's judgment of sentence. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119 (2008). Appellee then asked the federal district court to supply him with a replacement attorney to assist him in pursuing guilt-phase claims in that forum. The court denied the request, stating that Appellee had not established the existence of an irreconcilable conflict with counsel. Separately, Appellee petitioned the Third Circuit Court of Appeals (again, pro se) for mandamus relief in the
form of an order directing the district court to rule on his pro se filings. In August 2010, the Third Circuit denied the petition without prejudice, retaining jurisdiction and instructing the district court to determine whether Appellee was competent to waive counsel.
Meanwhile, on or about the last day of the one-year period for filing a petition under Pennsylvania's Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § § 9541-9546, counsel filed in the county court a petition on Appellee's behalf, albeit without a verification as required. See Pa.R.Crim.P. 902(A)(14). The [621 Pa. 451] Commonwealth moved to strike the petition for lack of a verification, and the court issued a rule to show cause why the motion should not be granted. Counsel responded that Appellee had refused all consultations and may be incompetent to waive his post-conviction rights, including his right to counsel. Thus, counsel sought permission to pursue the litigation through relatives of Appellee as next friends.
A hearing on the motion was held in October 2010. Appellee participated by videoconference and confirmed that he had declined all visits and phone calls with counsel, and had returned all mail from their office unopened. In this regard, Appellee asserted that: he wished to represent himself; the PCRA petition had been filed against his will and should not have been filed; he had discharged counsel two years earlier during the proceedings in federal court; he did not wish to " have anything to do with" counsel; and counsel were using the competency issue solely to avoid being discharged. See N.T., Oct. 15, 2010, at 8-14, 21, 27. The Commonwealth concurred with Appellee that the PCRA petition should not have been filed, but it agreed that the petition should not be stricken until Appellee's competence could be judicially established. See id. at 20. For their part, counsel asked the court to deny the motion to strike on procedural grounds, since they should be given an opportunity to cure any defect through amendment. See id. at 29.
At the conclusion of the hearing, the PCRA court entered an order continuing the matter on its own motion until it could confer with the federal district court concerning the appropriate [621 Pa. 452] path forward. With the competency issue now pending in both state and federal courts, the Third Circuit directed the federal district court to stay all proceedings to allow the state court to rule on Appellee's competence.
The PCRA court (per the same judge as presided at trial) appointed psychiatrist Dr. Hansa Shah and psychologist Dr. Gail Vant Zelfde, both of Norristown State Hospital, to perform an evaluation to determine Appellee's competence. In April 2011, these experts conducted a 2.5-hour clinical examination of Appellee and issued
a report based solely on that examination, opining that Appellee understood the reasons for his death sentence and its implications, and that he was competent to discharge counsel and waive his post-conviction rights. At a June 2011 evidentiary hearing, Attorney Nolas cross-examined the experts and called his own expert witness, who suggested that the court's experts lacked an adequate foundation for their opinions because they had not reviewed Appellee's extensive medical and court records. The Commonwealth also cross-examined the experts, as did Appellee, acting pro se.
Thereafter, at the court's direction, Drs. Shah and Vant Zelfde conducted a thorough records review of Appellee's mental-health [621 Pa. 453] history (6,000 pages in all), and sought to re-interview him. Appellee refused to be interviewed a second time, however, alleging in a letter to the PCRA court that the experts had become " contaminated" by the federal defenders and their experts, and that any further interview would be used against him. In October 2011, Drs. Shah and Vant Zelfde issued an addendum to their original report, stating that, upon review of Appellee's records, they were no longer confident in their initial opinion concerning Appellee's competence.
Three months later, in January 2012, the court resumed its evidentiary hearing in a two-day proceeding at which Drs. Shah and Vant Zelfde were the only witnesses. Having undertaken the records review, Dr. Vant Zelfde testified that Appellee displayed cognitive rigidity, paranoid ideations, and personality disorders. She stated that some of these traits were evident from Appellee's voluminous and highly detailed writings such as those reflected in his numerous prison grievances, as well as his history of dismissing professionals who could be of assistance to him. Overall, she indicated that, in light of Appellee's documented history, her observations of Appellee during the June 2011 proceeding, and Appellee's refusal to be re-interviewed on the grounds of an imagined conspiracy, Appellee was severely impaired in his decision-making and, within a reasonable degree of psychological certainty, he was incompetent to make a knowing, intelligent, and voluntary decision to waive counsel. Dr. Vant Zelfde clarified, however, that she was not speaking of incompetence in a legal sense, but only in a psychological sense. See N.T., Jan. 17, 2012 (day session), at 41, 111, 159; N.T., Jan. 17, 2012 (evening session), at 20. See generally Holmes v. Buss, 506 F.3d 576, 581 (7th Cir. 2007) (delineating the difference between
psychological and legal competence). As to legal competence, Dr. Vant Zelfde indicated only that she would continue to endorse the language contained in the October 2011 addendum reflecting that she and Dr. Shah could no longer be confident in their initial assessment that Appellee was competent. See N.T., Jan. 17, 2012 (day session), at 119.
[621 Pa. 454] Dr. Shah testified similarly, stating that, based on all of the same factors cited by Dr. Vant Zelfde, she considered Appellee incompetent, within a reasonable degree of psychiatric certainty, to waive counsel knowingly, intelligently, and voluntarily. See N.T., Jan. 18, 2012, at 10. Dr. Shah added that she viewed the April 2011 initial report as a " mistake," because she and Dr. Vant Zelfde had not conducted a sufficiently thorough background investigation due to their interpretation of the PCRA court's directive with regard to the scope of the requested evaluation. See N.T., Jan. 18, 2012, at 34. Still, both experts stated that, in spite of Appellee's mental difficulties, he is aware that: he was tried and convicted of first-degree murder; he was sentenced to death as a result of that conviction; a withdrawal of the PCRA petition could lead to his execution; and death is final. See id. at 28 (Dr. Shah); N.T., Jan. 17, 2012 (evening session), at 36-37 (Dr. Vant Zelfde).
At the January 2012 hearing, the Commonwealth also sought to call as fact witnesses several of Appellee's prior attorneys, proffering that these individuals would confirm that Appellee had cooperated with them during legal proceedings that had occurred many years earlier. The Commonwealth explained that such testimony was necessary to rebut a suggestion made by Attorney Nolas at the June 2011 hearing that Appellee should be found incompetent to make decisions, in part, because he displays a pattern of refusing to cooperate with professionals who are in a position to assist him. The Commonwealth stressed, in this regard, that the court's mental-health experts had recited this alleged aspect of Appellee's mental-health history in their October 2011 addendum, thus reflecting that their assessment may have been based on a false premise. Separately, the Commonwealth suggested that, although Appellee was already represented by counsel, he [621 Pa. 455] should have his own standby lawyer since he viewed himself as having discharged counsel, whose interests were opposed to his own relative to the competency determination. See supra note 6. For his part, Appellee (joined by the Commonwealth) requested that he be given a colloquy such as the one approved in Commonwealth v. Bronshtein, 556 Pa. 545, 729 A.2d 1102 (1999), conducted by the court or standby counsel (if the court agreed to appoint such counsel), and that the court make its decision based on the colloquy. The court, however, deferred ruling on all of these requests, and ultimately
announced its adjudication, as described below, effectively denying them.
On May 29, 2012, the PCRA court issued an opinion and order, concluding that Appellee was incompetent to waive his rights, including his right to counsel. The court expressed that Appellee had demonstrated a pattern of thwarting the attempts of individuals who could aid him, and of viewing opportunities for him to advance his case as conspiracies against him that would be furthered by his cooperation. The court reasoned, in this regard, that Appellee's refusal to be re-interviewed by the experts was consistent with the " diagnosed difficulties" they delineated in their October 2011 addendum. Commonwealth v. Wright, No. 98-CR-1980, slip op. at 7 (C.P. Blair, May 29, 2012) (" Wright I" ). The court explained, moreover, that the experts' conclusions were based on: their exposure, during Appellee's pro se cross-examination of them, to his preoccupation with minute detail while losing sight of the larger picture; Appellee's pattern of dismissing professional resources available to him; his impulsive reactivity and " irritable and pressured" speech; his " rigid approach, theatrical behavior, and black and white thinking; " and his " underlying [621 Pa. 456] paranoid frame of reference." Id. at 7-9. As for ...