Com. v. Pierce

• Decision Date: 01 July 1994
• Citation: 645 A.2d 189,537 Pa. 514
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Michael PIERCE, Appellant.
• Court: Pennsylvania Supreme Court

Page 189

645 A.2d 189

537 Pa. 514

COMMONWEALTH of Pennsylvania, Appellee, v. Michael PIERCE, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 18, 1993.

Decided July 1, 1994.

[537 Pa. 519] Earl G. Kauffman, Philadelphia, for M.P. Pierce.

Catherine Marshall, Norman Gross, Philadelphia, for Com.

Robert A. Graci, Harrisburg, for Atty. Gen.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This is a direct appeal from three concurrent judgments of sentence of death. Appellant was convicted of three counts of murder in the first degree as a result of the arson which caused the deaths of his mother, father and grandmother. In addition, the appellant was sentenced to concurrent terms of imprisonment of ten to twenty years for arson ¹, ten to twenty years for aggravated assault ², two and one-half to five years for recklessly endangering another person ³, and, three and one-half to seven years for risking a catastrophe. ⁴

In all cases where this Court affirms the imposition of a sentence of death we must conduct an independent review to determine if the evidence is sufficient to sustain the underlying conviction for murder in the first degree. Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242 (1994); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In order to prove murder of the first degree the Commonwealth must show that a human being was unlawfully killed, that the accused committed the killing, and that the killing was done in an intentional, deliberate and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991).

The evidence presented in the instant case established that at approximately 3:00 a.m. on the morning of July 10, 1989, Joan Pierce, the appellant's sister, was awakened by the strong smell of gasoline. Joan woke her father, George Pierce, and the two of them descended the stairs to discover the living room sofa on fire. George Pierce opened the basement door and flames then shot forth, forcing them to flee the house. George re-entered the house in an attempt to rescue his wife and mother-in-law. George was unable to reach the stairs and collapsed inside. He was pulled out of the flaming building by neighbors who had been awakened by the fire.

George was taken from the scene to a hospital where he was treated for burns and smoke inhalation. Eventually he was transferred to a nursing home where he died six months later from complications due to smoke inhalation and bronchopneumonia. Appellant's mother, Mary Pierce and her ninety-five-year-old mother, Anna Hayes, were pronounced dead at the scene, with the cause of death later determined to be smoke and soot inhalation.

Upon investigation, experts from the Philadelphia fire department determined that the house burned down as a result of two separate fires, each having been deliberately set. The minor cause of the fire was found to have been deliberately caused by an open flame being struck to the sofa. The major cause of the fire was found to have occurred in the basement by use of an accelerant. In the opinion of the fire department expert, a plastic anti-freeze bottle found on the basement floor had been filled with gasoline and deliberately set ablaze. In the opinion of the fire department investigator, the fire was the result of arson. The Pierce home was located at 3011 Byberry Road in Philadelphia and was physically located within a row of attached houses.

Sharon DeFazio, a neighbor, testified that she recognized the anti-freeze bottle as identical to the one George Pierce used as a container for gasoline for his lawnmower. Ms. DeFazio testified that Mr. Pierce had, shortly before the fire, given her a similar bottle filled with gasoline for her lawnmower, explaining that it was a safer container in which to keep gasoline. Ms. DeFazio also knew where in his garage Mr. Pierce had kept his anti-freeze bottle containing gasoline. After the fire the anti-freeze bottle containing gasoline was not found in the Pierce garage.

In the garden behind the Pierce home a partial impression of a shoe print was discovered. Soil samples taken from the impression matched soil samples taken from the boots the appellant was wearing on the morning of the fire. A short distance away from and to the rear of the Pierce home, in an area of abandoned buildings, police discovered a partially used book of matches. The same type of matchbooks were found in a box of matchbooks at the home of Tim O'Rielly, where the appellant had been staying the week preceding the fire. The area containing the abandoned buildings was surrounded by a fence. On the top rail of the fence police discovered a soil sample which matched with the samples taken from the impression in the garden of the Pierce home and the sample from the appellant's boots.

At the time the fire was raging two teen-age boys were in the vicinity. The boys, Harry Espanshade and Randy Zehnder, approached two officers who were in the area on an unrelated matter and told them of the fire. The boys then began to walk through the woods towards the fire. As they were proceeding towards the fire they saw a man running away from the fire wearing jeans and a flannel shirt over a dark T-shirt. The boys immediately gave the police a description of the man. A few minutes later they again saw the man, this time without the flannel shirt. Two hours later while at the scene of the fire the boys saw the same man walking up the street toward the Pierce home. They identified him as the appellant.

Police Sergeant Shanfield was one of the officers who had been notified of the fire by Harry and Randy. As he was driving towards the Pierce house a man crossed in front of his car and ran into the woods. As the man was running Sergeant Shanfield observed him stumble. Two and one-half hours later the Sergeant saw appellant at the police station and recognized him as the man he had seen running into the woods earlier. After appellant was arrested he was treated at the Philadelphia county prison for an injury to his toe.

Joan Pierce, appellant's sister, testified that her parents and appellant had a very strained relationship. Appellant had accused his parents of putting steroids in his food and depriving him of an inheritance from his Uncle Al. One week prior to the fire George and Mary had asked appellant to leave the family residence. Appellant had told Joan on many occasions that he hated their parents and threatened to kill them. Joan had seen appellant on Sunday night before the fire; he was wearing jeans, a dark T-shirt and a red flannel shirt and boots.

The week before the fire appellant had been living with his friend Tim O'Rielly and Tim's mother across the street from his parents' home. Mrs. O'Rielly testified that during that week appellant had told her that he would have no peace while his parents were alive. Appellant told Mrs. O'Rielly that he would get away with murdering his parents and would flee to Indonesia. Mrs. O'Rielly related this conversation to Joan Pierce.

Tim O'Rielly testified that during the week appellant stayed in his home, appellant repeatedly expressed the intent to kill his parents. Appellant told Tim of his intent to burn down the Pierce home and either commit suicide or escape to Indonesia. Appellant referred to his parents as "the enemy." Appellant explained that he would break his grandmother's neck so she wouldn't have to suffer, or be placed in a nursing home.

Appellant had a disagreement with Tim's mother and decided to leave the O'Rielly home the Sunday before the fire. Appellant left Tim's house about 11:00 p.m. Sunday night before the fire. At that time he was wearing a dark blue or green T-shirt, jeans and boots, and carrying a black and red flannel shirt Tim had given him.

At approximately 3:25 a.m. on the morning following appellant's departure from the O'Rielly home, Tim was in his kitchen when he noticed lights on in the Pierce garage and observed the garage door partially opened. About ten minutes later the lights went out and he heard a thud and then saw the garage door was closed. Two minutes thereafter he saw the fire erupt in the Pierce house. Tim called the police and went outside to help with the fire.

Appellant was arrested later that morning when he was observed walking towards the Pierce home.

The evidence linking appellant to the murder is circumstantial. In testing the sufficiency of the evidence where a conviction is based upon circumstantial evidence, we review the evidence along with all inferences and conclusions that reasonably and logically can be drawn therefrom. Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902 (1991). Where the conviction for first degree murder is based upon arson the Commonwealth must first establish that there was a fire of incendiary origin and that the accused deliberately caused the fire. Commonwealth v. Cockfield, 465 Pa. 415, 350 A.2d 833 (1976). The Commonwealth must then establish that the fire was the cause of death. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982). The Commonwealth has established its burden of proof in the instant case; the evidence was sufficient to sustain appellant's convictions for murder in the first degree as to Anna Hayes, Mary Pierce and George Pierce. ⁵

We now turn to the specific questions raised by appellant. Appellant raises five claims of ineffective assistance of trial counsel; these shall be addressed first. An allegation of ineffective assistance of counsel must be reviewed according to the following criteria:

The standard to be applied in reviewing claims of ineffective assistance of counsel is well settled. The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms...