Geschwendt v. Ryan
|18 June 1992
|George GESCHWENDT, Appellant, v. Joseph M. RYAN, Superintendent (Warden); and the Attorney General of the State of Pennsylvania: Ernest Preate; and the District Attorney of Bucks County.
|U.S. Court of Appeals — Third Circuit
Before: STAPLETON, GREENBERG and ALDISERT, Circuit Judges.
Reargued May 6, 1992
Before: SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH and ALDISERT, Circuit Judges.
George Geschwendt, who is serving life imprisonment for six first degree state murder convictions, appeals from a judgment of the district court entered on March 21, 1991, denying his petition for habeas corpus. We will affirm.
We will only summarize the facts as developed at the trial in the Court of Common Pleas in Bucks County, Pennsylvania, for they are not in dispute and are set forth in the opinion of the Supreme Court of Pennsylvania on Geschwendt's direct appeal from his conviction. See Commonwealth v. Geschwendt, 500 Pa. 120, 123-24, 454 A.2d 991, 992-93 (1982). Prior to March 12, 1976, Geschwendt purchased a .22 caliber gun and falsely reported to the local police that it was stolen on the day of the purchase. Geschwendt at that time resided with his mother and brother in Bensalem Township directly across the street from a residence occupied by the Abt family. On March 12, 1976, after his brother and mother had gone to work, Geschwendt broke into the Abt's empty home. Geschwendt waited for the Abts to return and, as they did so, using the gun he had reported stolen, he shot and killed five of them, as well as a boyfriend of one of the victims. Geschwendt had intended to kill the entire family, but he left before he completed his mission, because he was alarmed by the constant ringing of the telephone. While Geschwendt attempted to conceal his role in the killings by disposing of his clothes and the gun, when questioned he gave a complete confession which he has never repudiated.
Geschwendt was indicted for six first degree murders. The case was tried to a jury in two stages: a culpability stage to determine the offenses, if any, Geschwendt had committed, followed by a penalty phase. As Geschwendt indicates in his brief, "[t]he defense was insanity," for he did not deny committing the homicides. Thus, with the use of expert testimony, he attempted to establish that he was insane. However, the Commonwealth countered with expert testimony that Geschwendt was sane. Following the completion of the evidence on the first phase, the court defined the elements of first degree murder, including the specific intent to take life required, and instructed the jury that Geschwendt could be convicted of that offense if the Commonwealth proved beyond a reasonable doubt that the elements had been satisfied. The court also instructed the jury that it could convict Geschwendt of third degree murder if he suffered from a mental defect rendering him incapable of forming the requisite intent for first degree murder. Furthermore it charged the jury it could convict Geschwendt of voluntary manslaughter. 1 In accordance with Pennsylvania procedure, the judge told the jury that if it found Geschwendt guilty of first degree murder, it would deliberate again to decide whether to sentence him to life imprisonment or death. Of course, the court also instructed the jury that Geschwendt could be found not guilty.
The court gave detailed instructions on the insanity defense, telling the jury five times that the Commonwealth bore the burden of proving Geschwendt guilty beyond a reasonable doubt, three times that the Commonwealth bore the burden of proving Geschwendt sane beyond a reasonable doubt, and three times that, if the Commonwealth failed to prove Geschwendt sane beyond a reasonable doubt, the jury should find him not guilty. At trial Geschwendt did not assert that the court erred in its formulation of either the substantive law or the burden of proof on the insanity defense and he still makes no such claim. Nevertheless, he objected to the charge as the jury could find him not guilty only by returning a general verdict, whereas he urged that he was entitled to a charge that the jury could return a specific verdict of not guilty by reason of insanity. The trial court refused to give the specific verdict charge, and Geschwendt was convicted of six counts of first degree murder.
The case next turned to the penalty phase. At that stage, the court instructed the jury that, if it found that the first degree murders were accompanied by at least one aggravating circumstance, and no mitigating circumstance, it was obliged to sentence Geschwendt to death, but otherwise the sentence would be life imprisonment. The court explained that the Commonwealth could demonstrate that there was an aggravating circumstance by proving beyond a reasonable doubt that Geschwendt broke into the house with the intent to commit murder. On the other hand, the court stated that if Geschwendt formed that intent after he entered, then the Commonwealth would not have proven that there was an aggravating circumstance.
The court also reminded the jury that Geschwendt, who was 24 years old at the time of the murders, urged that his mental age and lack of maturity constituted a mitigating circumstance, and it noted that Geschwendt had presented evidence on this point from a Dr. Strochak. It then told the jury that, if Geschwendt established by a preponderance of the evidence that he "lacked maturity, was young mentally insofar as his age was concerned, you have then determined that a mitigating circumstance exists, and if you so determine, then the punishment must be life imprisonment."
The court then reiterated that, if the jury found one aggravating circumstance but no mitigating circumstance, the sentence would be death, but if it did not find an aggravating circumstance, or if it found a mitigating circumstance, then the sentence was to be life imprisonment. During the deliberations, the court, in response to a question from the jury, instructed it that, if there was a mitigating circumstance, the sentence was to be life imprisonment even if there was an aggravating circumstance. The jury returned six death penalty verdicts.
The punishment, however, was not carried out, for after Geschwendt's trial the Supreme Court of Pennsylvania invalidated the death penalty in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978). Accordingly, Geschwendt was resentenced to life imprisonment. Thereafter, the Superior Court of Pennsylvania, and then the Supreme Court of Pennsylvania, in a divided decision, affirmed Geschwendt's conviction and the modified sentence on direct appeal. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982). 2 A three-justice plurality in the Supreme Court believed that Geschwendt's principal issue on the appeal was his challenge to the trial court's refusal to charge the jury that a verdict of not guilty by reason of insanity might lead to his psychiatric treatment and commitment. It rejected his argument, reasoning that while Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), had changed the law after Geschwendt's trial so that such a charge would thereafter be given, the change was not retroactive and thus did not apply in his case. 3 In Mulgrew the court held that "when insanity is raised as a possible defense to criminal charges, a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after the return of a verdict of not guilty by reason of insanity." 475 Pa. at 277-78, 380 A.2d at 352. Geschwendt does not now question the holding on his direct appeal that Mulgrew was inapplicable in his case. 4
The Supreme Court of Pennsylvania, in the plurality opinion, indicated that the issue which is raised on this appeal, that the trial court erred in not instructing the jury that it could return a verdict of not guilty by reason of insanity, had not been properly preserved. Nevertheless, it dealt with and rejected this contention on the merits, as it held that it was not "supported by the record when the charge is viewed as a whole." Commonwealth v. Geschwendt, 500 Pa. at 135 n. 8, 454 A.2d at 999 n. 8. Three justices dissented on the ground that Geschwendt had been entitled to a specific charge that he could be found not guilty by reason of insanity, as they concluded that there had been a requirement in Pennsylvania since 1860 that when sanity is in issue the jury be allowed to return a specific verdict of not guilty by reason of insanity. 500 Pa. at 138, 454 A.2d at 1001. Furthermore they maintained that Mulgrew should be applied in Geschwendt's case. The seventh justice concurred without opinion in the result reached by the plurality.
Subsequently, Geschwendt filed a petition for habeas corpus in the district court, arguing that his due process rights had been violated by the trial court's refusal to charge the jury that he could be found not guilty by reason of insanity. 5 Following the appointment of counsel, Geschwendt moved to amend his petition to include a contention that his counsel was ineffective on his direct appeal, as that counsel had failed to assert that the trial court erred in its "refusal to give the jury an instruction that would have informed it of its right to return a verdict of not guilty by reason of insanity." The matter was referred to a magistrate judge who filed a report dated February 4, 1991, recommending that the court grant Geschwendt habeas relief because Pennsylvania law...
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