Appel v. Horn

Decision Date21 May 2001
Docket NumberNo. 99-9003,99-9003
Citation250 F.3d 203
Parties(3rd Cir. 2001) MARTIN DANIEL APPEL, v. MARTIN HORN, COMMISSIONER PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JAMES S. PRICE, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE AND JOSEPH MAZURKIEWICZ, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, Appellants
CourtU.S. Court of Appeals — Third Circuit

John M. Morganelli (Argued), Office of District Attorney of Northampton County, Easton, PA, Attorney for Appellants.

Billy H. Nolas (Argued), David W. Wycoff, Michael Wiseman, Defender Association of Philadelphia, Federal Capital Habeas Corpus Unit, Philadelphia, PA, Attorneys for Appellee.

Before: BECKER, Chief Judge, SLOVITER and GREENBERG, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The Commonwealth of Pennsylvania appeals from the order of the District Court dated May 21, 1999 granting the Petition of Martin Daniel Appel for a Writ of Habeas Corpus. The District Court granted the writ of habeas corpus after it determined that Appel had been constructively denied his Sixth Amendment right to counsel in violation of the Supreme Court's decision in United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). The District Court vacated Appel's conviction and sentence, but stayed execution of the writ for 180 days in order to permit the Commonwealth to provide Appel a new trial within that time.

I. FACTS

The parties agree that the District Court's Memorandum and Order of May 21, 1999 accurately sets forth the factual background, and we will accordingly accept these facts as accurate and summarize them here, supplemented by other uncontested facts of record.

On June 6, 1986, Appel and Stanley Hertzog, pursuant to a prearranged plan, robbed the First National Bank of Bath in East Allen Township, Pennsylvania. Appel killed two tellers and a bank official, and both robbers shot at others, injuring two other persons. Appel and Hertzog were arrested later that day and charged with murder, robbery, and related crimes. On June 9, 1986, while being held in prison, Appel confessed to certain law enforcement officers.1

On June 10, 1986, Appel filed an application for appointment of counsel with the Public Defender. It is the period between June 10, 1986 and June 20, 1986 that is critical to the writ of habeas corpus. On June 10, 1986, the Public Defender assigned Ellen Kraft and Lorenzo Crowe to serve as Appel's attorneys and they entered appearances on Appel's behalf. When Kraft and Crowe visited Appel in the Northampton County Prison on June 11, 1986, however, Appel immediately told them that he did not want them to serve as his attorneys. Kraft later testified that Appel had only requested a Public Defender after being told that he would need a lawyer in order to receive visitors while he was in that prison.

Kraft and Crowe nevertheless accompanied Appel to a hearing before the trial judge on June 12, 1986. During that hearing, the trial judge referred to Kraft and Crowe as Appel's "counsel" and they did not dispute this characterization. At the hearing, Appel told the judge, "I would like to represent myself. I feel I am best able to project my own thoughts and express my desires speaking for myself in the case." App. II at 14. After being told the charges against him and the possible penalties he faced, Appel again told the judge, "My choice is to represent myself. I have no objection to [Kraft and Crowe] as advisors." App. II at 32-33. He explained that having counsel would "slow down the wheels of justice, the prosecution's case against me." App. II at 33. The judge did not accept Appel's waiver of counsel at that time, stating that before he did so, he would order Appel to undergo a psychiatric examination in order to assist the judge in determining Appel's competency to waive counsel.

On June 17, 1986, Appel was examined by Dr. Janet Schwartz, a psychiatrist on the staff of Northampton County Mental Health and Mental Retardation Unit. Before that examination, Dr. Schwartz met with John Weaver, a social worker on that staff, who had interviewed Appel following the crime and had received from him, some background information. Dr. Schwartz received no information from either Kraft or Crowe and, after spending an hour with Appel, found Appel to be competent to waive his right to counsel. Dr. Schwartz's report to the court stated, "Mr. Appel appears to have made a rational and well thought out decision that he would like to receive the death penalty and would like this to occur as soon as possible. On the basis of my examination I feel that he is competent to make this decision and to refuse counsel." App. II at 154. On appeal, Appel makes the point that his competency evaluation was only Dr. Schwartz's second competency evaluation in a felony case, and her first capital one. She was, however, board certified in psychiatry and neurology.

The judge held a second hearing on June 20, 1986. The judge questioned Appel again, and Appel repeated his intention to proceed without an attorney. Kraft and Crowe were present at this hearing, but provided no information relevant to Appel's competency and specifically advised the court in response to its inquiry that they had nothing to put on the record at that time. They did not challenge the psychiatrist's conclusion. The judge then accepted Appel's waiver of counsel based on Dr. Schwartz's report and appointed Kraft and Crowe as standby counsel pursuant to Pa. R. Crim. P. 318(d) (renumbered Rule 121(D) and amended March 1, 2000, effective April 1, 2001).2

Appel pled guilty on July 20, 1986 to three counts of criminal homicide, two counts of attempted homicide, one count of robbery, two counts of aggravated assault and various other charges. See Commonwealth v. Appel, 517 Pa. 529, 533, 539 A.2d 780, 781 (1988) (hereafter Appel I). Under Pennsylvania law, following the defendant's plea of guilty to criminal homicide, the court fixes the degree of guilt after a hearing. In Appel's case, the hearing was held August 7 through August 9, 1986. At that hearing, Appel reiterated his waiver of counsel and stated, inter alia,

I would like to state for the record, that during the entire proceedings and/or hearings in this matter, I have been very much aware of what is going on. That is to say, I am rational, sane, competent and alert. I have had plenty of opportunities to discuss and consult with stand-by counsel, Mr. Crowe and Ms. Kraft. And I have consulted with them on various occasions.

I feel that by cooperating with the prosecution and by pleading guilty to all charges, that I have done the honorable thing. And, I hope that I have set a precedent here today for all future defendants in so doing.

The only mitigating factors that I wish to enter into the record, would be:

One, that I have had no prior felony convictions against me; and,

Two, that I was gainfully employed at the time of my arrest.

I would also like to say that I will not appeal your decision or any decisions that you made. Furthermore, I trust that the American Civil Liberties Union will not interfere with this matter and that no other outside legal aid groups will make any appeal [on] my behalf.

Commonwealth v. Appel, 547 Pa. 171, 182, 689 A.2d 891, 896 (1997) (brackets in original) (quoting Degree of Guilt Hearing Tr. 8/9/86, at 367) (hereafter Appel II).

The trial court found Appel guilty of three counts of first degree murder for the deaths of the three bank employees. See id.

On August 19, 1986, after the degree of guilt hearing, Appel was examined at the request of Kraft and Crowe by Dr. Paul Kenneth Gross, another psychiatrist. Dr. Gross found "no evidence of any psychosis, severe depression, agitation or paranoia," App. II at 71, and stated in his written report that there was "no evidence that [Appel] was suffering from any mental disease or defect at the time of the crime and that, at that time, he was fully aware of his behavior, could appreciate the nature and quality of it, and knew the wrongfulness of his behavior." App. II at 71.

At sentencing, Appel again waived his right to counsel and requested that he be sentenced to death. The court imposed three sentences of death on September 3, 1986. Appel did not file any post-verdict motions but the Pennsylvania Supreme Court reviewed Appel's conviction and sentence based on an automatic direct review, see 42 Pa. Cons. Stat. Ann. 9711(h), and affirmed, finding that "the evidence supports beyond a reasonable doubt the trial court's findings that defendant was guilty of three counts of first degree murder." Appel I, 517 Pa. at 536, 539 A.2d at 783.

Governor Tom Ridge signed Appel's death warrant on February 28, 1995, which set the execution date for the week of April 4, 1995. However, shortly after the death warrant was signed, Appel requested counsel and filed a petition under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. 9541 et seq., in which Appel argued, among other things, that he was mentally ill and incompetent during the 1986 proceedings resulting in his guilty plea and death sentence, and that he was denied effective assistance of counsel during the 1986 proceedings.

The PCRA trial court conducted hearings from May 6 to 19, 1995. At these hearings, Appel presented a number of psychologists and physicians who examined Appel eight or nine years after the murders. They testified that he had suffered from Graves' disease, a form of hyperthyroidism, during the summer of 1986. This condition is characterized by an enlarged thyroid, a rapid pulse, and increased metabolism due to excessive thyroid secretion. Appel's experts testified that the Graves' disease caused him to become paranoid and delusional. He told them that the bank robbery had been part of a CIA mission to eliminate CIA "moles" and...

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