On March 24, 1987, a woman called the Philadelphia police from a pay phone and said she had been held captive for four months. The officers who reached her found her visibly shaken and repeating, “You have to help me.” She told them that the man who had held her was parked nearby, waiting for her to come back from what he believed was a visit to her family, that he had killed two women, and that three more were still in his basement. When they arrested Gary Heidnik he asked, “What’s this all about, Officer? Didn’t I pay my child support?” In the basement at 3520 North Marshall Street they found two women on a mattress, bruised and chained at the ankle, and a third, naked and handcuffed, in a hole under a board covered with bags of dirt. In the kitchen were six plastic bags of human remains. The court’s account of the two women who did not survive is set out in the opinion that follows. Sandra Lindsay was hung by one wrist from a rafter for three or four days in February on bread and water, collapsed and died, and Debra Dudley was killed on March 17 when Heidnik ran electric current through her chain as she lay in the pit, which he had filled with water.
A Philadelphia jury convicted him on July 1, 1988, of two counts of first-degree murder, six of kidnapping, five of rape, four of aggravated assault and two of involuntary deviate sexual intercourse. It rejected a defense of legal insanity built on three experts, one of whom testified that Heidnik’s conduct was controlled by an “infant brain” with the age of seventeen months. The prosecution answered with a forensic psychiatrist, with the social worker who had judged him calm and rational enough in the fall of 1986 to escort a patient off hospital grounds, with the transcript of a family-court hearing in which he had been evasive about his money, and with his stockbroker, who said he had grown a $1,500 account into $531,702. The same jury returned death on both murders. By the time the Supreme Court of Pennsylvania took up the case in March 1991, Heidnik had told his lawyer to drop the appeal and asked to be executed as quickly as possible. The court reviewed the evidence anyway, as the law required, and affirmed.
The two later proceedings make this file unusual. Governor Tom Ridge signed a death warrant on March 20, 1997. Lawyers Heidnik had never hired asked the Court of Common Pleas to stop the execution on the ground that he could not understand it, and after a hearing on April 14 at which Heidnik testified, the court found him competent. His daughter, Maxine Davidson White, then asked the federal and state courts to let her act for him as his next friend. On April 19 the Supreme Court of Pennsylvania, equally divided, granted a stay over three dissents, one of which called the eleventh-hour filings inexcusable. Its full opinion came in August 1998. It held that a condemned prisoner’s competence to be executed is too important to depend on how close the person raising it is to him, urged the Department of Corrections to arrange an impartial evaluation of everyone under a death warrant, and found Heidnik competent all the same. Chief Justice Flaherty concurred while writing that he believed Heidnik was insane. Heidnik was executed by lethal injection at the State Correctional Institution at Rockview on July 6, 1999, and Pennsylvania has executed no one since.
The woman who escaped on March 24, 1987, appears on this page as J.R. The court named her throughout, and her name has been printed many times since, but she was a private woman who had been raped, and the three women the police found in the basement are not named anywhere in these opinions; we have given her the same protection they have. The stockbroker and the acquaintance of eight years who testified for the prosecution are R.K. and S.C. Sandra Lindsay and Debra Dudley are named as the court names them, and press accounts often spell the first surname Lindsey. Maxine Davidson White keeps her name because she brought the 1997 and 1998 petitions herself and is the party in their captions. The address is the court’s, and the house is part of the public record of the case.
Three proceedings, in date order. The 1991 opinion is a review of a record the defendant had asked the court to leave alone, so it states the evidence in the light most favorable to the prosecution and nothing in it tests that account against a defense. The 1997 ruling is one page of directions to the lawyers, followed by Justice Castille’s dissent. The 1998 opinion is about who may raise a condemned man’s sanity and how, and it prints the court’s own April 18, 1997 opinion as an appendix, which is why the dates seem to run backward near the end of the page. The dates in the headings are the decision dates in the official reports. Heidnik’s own answers at the April 14, 1997 competency hearing are on a separate page in this archive.
These are the official Pennsylvania Reports texts at 526 Pa. 458, 554 Pa. 174 and 554 Pa. 177, taken from the Harvard Law School Library’s digitization; as the work of a state court they may be reproduced freely. The digitization garbled a few things and we have left them as they are. The defense organization, the Center for Legal Education, Advocacy and Defense Assistance, is CLEADA in most places and OLEADA in five. Its lawyer Billy Nolas becomes “Billy Ñolas” in one line, the appendix has the court saying it will “how vacate” an order where it means now, and the McFarland petition splits into “McFar land.” Three words broken across lines by the typesetter have been closed up where the opinions spell them whole elsewhere.
587 A.2d 687
COMMONWEALTH of Pennsylvania, Appellee, v. Gary Michael HEIDNIK, Appellant.
Supreme Court of Pennsylvania.
Argued Dee. 8, 1990.
Decided March 7, 1991.
A. Charles Peruto, Jr., for appellant.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Hugh J. Burns, Jr., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.
[OPINION BY LARSEN, Justice. type=majority]
OPINION OF THE COURT
LARSEN, Justice.
On July 1, 1988, a jury in the Court of Common Pleas of Philadelphia County convicted appellant, Gary M. Heidnik, of two counts of murder of the first degree, six counts of kidnapping, five counts of rape, four counts of aggravated assault and two counts of involuntary deviate sexual intercourse. Following the verdict of guilty of two counts of murder of the first degree, a separate sentencing hearing was held pursuant to 42 Pa.C.S.A. § 9711, and the same jury sentenced appellant to death for each of the convictions of murder of the first degree. Post verdict motions were argued and denied, and the trial court imposed the sentences of death on March 2, 1989.
Following the imposition of sentence, appellant filed a direct appeal in this Court. Appellant has since expressed his desire to have his execution carried out as expeditiously as possible and has, consequently, instructed counsel not to pursue the aforesaid appeal. The purpose of an automatic direct appeal to this Court of a sentence of death is to ensure that the sentence comports with the Commonwealth’s death penalty statute. Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1989). In addition to our statutory obligation, this Court is required to review the sufficiency of the evidence for all death penalty convictions. 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).
When testing the sufficiency of the evidence, the applicable standard of review is whether, viewing all the evidence in the light most favorable to the Commonwealth as verdict winner, a jury could find every element of the crime beyond a reasonable doubt. Commonwealth v. Bryant, 524 Pa. 564, 574 A.2d 590 (1990). In accordance with this standard, we find the evidence, as now set forth, sufficient beyond a reasonable doubt to sustain the jury’s verdicts of murder of the first degree.
On March 24, 1987, the Philadelphia Police Department received a telephone call from a woman who stated that she had been held captive for the last four months. When police officers arrived at the pay phone from which the call was made, they observed a woman who was “visibly shaken” and who repeatedly stated to the officers, “You have to help me.” (N.T. 6/21/88 at 274). After the officers were able to calm the woman, J.R., she told them that she had been held captive in a basement by a man named Gary Heidnik (appellant) for the last four months and that three other women were still being held in the basement. J.R. explained that appellant was parked nearby, waiting for her to return from what appellant believed was a visit to her family.
J.R. also told the officers that appellant had killed two of the women he had held captive and that she feared for the lives of the three women remaining in the basement. J.R. provided the officers with a description of appellant and told them where he was parked. When the officers apprehended appellant, he asked, “What’s this all about, Officer? Didn’t I pay my child support?”
Proceeding upon the information J.R. had supplied, police officers entered appellant’s home in North Philadelphia. In the basement of the home were two females lying on a mattress. The women were naked from the waist down, and their bodies were bruised. On the ankle of each woman was a heavy shackle with a long chain. In a corner of the basement the officers removed bags of dirt from a board covering a hole. In the hole lay a naked woman with her hands handcuffed behind her back and her ankle shackled. On returning to the first floor, the officers found in the kitchen six plastic bags containing human body parts.
J.R. and the women found by police in appellant’s basement on March 24, 1987 had been brought there by appellant under similar circumstances over a period of four months. Each had agreed to accompany appellant to his home after being approached by him as he drove along the streets of North Philadelphia. Each had engaged in consensual sex with him before being choked until unconscious. While unconscious, each was carried to appellant’s basement and chained to a sewer pipe. As many as three women at a time were confined in the hole appellant had dug in the basement floor. Each of the women was beaten by appellant, and with the exception of the last woman taken captive, each was raped by appellant repeatedly. Although J.R. and the three women rescued on March 24, 1987 survived the brutalities inflicted on them by appellant, two other captives, Sandra Lindsay and Debra Dudley, did not.
In addition to beating and raping the captive women, appellant had devised a separate system of punishment for any of the women who screamed for help or attempted to escape. One method of punishment consisted of forcing the disobedient woman to stand suspended by her handcuffed wrist from a hook which appellant had installed in the basement rafters. Such punishment was administered to Sandra Lindsay for a period of three or four days in the first week of February, 1987. During that time, and for the preceding week, Ms. Lindsay was fed only bread and water. Also during that time, appellant forced one of the other captives to beat Ms. Lindsay because Ms. Lindsay was taking too long to eat the bread she was given. On the third or fourth day of her punishment, Ms. Lindsay collapsed after telling the other women that she felt sick. Appellant removed the handcuff from Ms. Lindsay’s wrist and kicked her body into the hole in the basement floor. When appellant was unable to find Ms. Lindsay’s pulse, he announced to the other women that Ms. Lindsay was dead and carried her body to the kitchen. He then decapitated and dismembered the body. Ms. Lindsay’s head was placed in a large pot on the stove and boiled. Other of her body parts were shredded in a food processor and mixed with dog food, which appellant then fed to the other women. Still other parts of Ms. Lindsay’s body were put into plastic bags and placed in his freezer.
In mid-March, appellant showed Ms. Lindsay’s head, still in the pot on his stove, to another of the captives, Debra Johnson Dudley. Appellant told Ms. Dudley that unless she changed her attitude she would end up the same way Ms. Lindsay did. Appellant had previously stated to J.R. that he considered Ms. Dudley to be “a pain in the ass” and that he “wanted to get rid of her.” (N.T. 6/20/88, p. 231, p. 154). On March 17, 1987, appellant administered an electrical shock to Ms. Dudley and two of the other captives as they lay trapped in the basement hole which appellant had filled with water. Appellant attached an electrical wire to Ms. Dudley’s metal chain causing her to scream out in prolonged pain. When Ms. Dudley’s screaming stopped abruptly, appellant lifted the board covering the hole and removed Ms. Dudley’s body. Appellant then placed the body in a freezer in his basement; he later disposed of the body in a state forest in New Jersey. After Ms. Dudley’s death, appellant ordered J.R. to write the following note: “Gary Heidnik and J.R. electrocuted Debra Dudley on March 17th in the basement of 3520 North Marshall Street by electrocution.” (N.T. 6/20/88 at 161). Appellant then told J.R. that she would no longer need to be handcuffed because the incriminating note would prevent her from going to the police. Appellant also told J.R. that, even if he were arrested, he would simply go into court and “act crazy” by saluting the judge, among other things. Appellant explained to J.R. that somewhere in the law it states that if a person acts crazy for a certain amount of years, his case is eventually thrown out. (N.T. 6/20/88, p. 168).
Appellant’s mental condition at the time Sandra Lindsay and Debra Dudley died was an issue at trial. Appellant called three expert witnesses to establish that he was legally insane at the time of the deaths. The test for legal sanity and criminal responsibility in this Commonwealth is to be determined under the M’Naughten rule. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987), cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). Under M’Naughten, a defendant is legally insane and absolved of criminal responsibility if, at the time of committing the act, due to a defect of reason or disease of mind, the accused either did not know the nature and quality of the act or did not know that the act was wrong. Commonwealth v. Tempest, 496 Pa. 436, 437 A.2d 952 (1981). In order for insanity to constitute a defense, a defendant must prove insanity by a preponderance of the evidence. 18 Pa.C.S.A. § 315(a).
Dr. Clancy McKenzie, the first of two psychiatrists called by appellant, testified that appellant suffered from schizophrenia and that during the period in question appellant did not know right from wrong and was unable to understand the nature and quality of his acts. Dr. McKenzie stated that appellant’s conduct during this time period was controlled by an “infant brain” with the chronological age of seventeen months. Dr. McKenzie reached this conclusion based on the fact that appellant’s mother gave birth to another child when appellant was seventeen months old. When appellant’s estranged wife notified appellant in October, 1986 that she had had a baby, Dr. McKenzie concluded that, “This took him back to the first time when the most important woman in the world to him, his mother, left him and had a baby. And at that point, the trauma in the present [being told that his estranged wife had borne a child] returned him to a trauma at age seventeen months, and he began to experience the world through the eyes of the seventeen month old. The reality is that mommy is never going to go away and leave me again.” (N.T. 6/22/88, p. 622).
Dr. Kenneth Kool, the second psychiatrist called by appellant, testified as to appellant’s long-standing schizophrenic illness. Dr. Kool testified that appellant’s schizophrenia affected him in such a manner that it prevented appellant from knowing the difference between right and wrong. It was Dr. Kool’s opinion that appellant’s acts were based on a “systematized delusion that God wanted him to produce a number of children, and this was essentially to him like a pact with God.” (N.T. 6/24/88, p. 909).
The third of appellant’s expert witnesses was Jack A. Apsche, Ph.D., an expert in the field of counseling psychology. Dr. Apsche reviewed appellant’s lengthy record of treatment for mental disorders dating back to 1962 and concluded that appellant did not know right from wrong and could not understand the nature and quality of his acts between November 26, 1986 and March 24, 1987, the period during which Ms. Lindsay and Ms. Dudley were murdered.
The Commonwealth presented several witnesses to rebut appellant’s insanity defense. Dr. Robert Sadoff, a forensic psychiatrist, testified that he had attempted to examine appellant but that appellant did not respond to any of the questions he was asked. Dr. Sadoff testified that appellant did, however, respond to his attorney’s presence by saluting him. Dr. Sadoff thereafter reviewed appellant’s extensive medical and psychiatric history, as well as information involving appellant’s financial dealings, and his prior involvement with the criminal justice and family court systems. It was Dr. Sadoff’s opinion that although appellant suffered from schizophrenia, his conduct between November 26, 1986 and March 24, 1987 indicates that his cognitive ability was intact and that he was able to understand the nature and quality of his acts at the time. Doctor Sadoff testified that appellant’s behavior during the relevant time (November 26, 1986 to March 24, 1987) showed that appellant knew what he was doing and knew that it was wrong. Other Commonwealth rebuttal witnesses included the following:
1) Ernestine Simpson, a social worker at a state hospital in New Jersey, testified that she interviewed appellant in the Fall of 1986 in order to determine whether appellant was sufficiently responsible to escort a patient, appellant’s ex-wife, off hospital grounds. Ms. Simpson determined that appellant was sufficiently responsible and recalled that she viewed appellant as being neat, clean, courteous, calm, rational and intelligent.
2) R.K., appellant’s stockbroker since 1974, testified that appellant was an astute investor who had raised his portfolio from $1,500 to $531,702 and that appellant had last placed an order for a purchase of stocks on November 17, 1986.
3) S.C., an acquaintance of appellant since 1978, testified that she had conversed with appellant in October and November of 1986. She testified that appellant’s behavior appeared to be the same as it had been over the previous eight years.
4) Harold Wexler, a court reporter who had recorded proceedings involving appellant in family court in January of 1987, read the entire transcript of these family court proceedings to the within jury. The within trial court, in its Opinion in support of its Order denying appellant’s post trial motions, characterized Appellant’s behavior during the family court proceedings as cunning and deceptive in answering questions about his true worth and his obligation to support his wife and son, both of whom were on welfare.
5) David Pliner, a car salesman who recalled appellant coming to his showroom in November, 1986 to purchase a Cadillac, testified that appellant acted just like any other customer and that appellant had offered him advice on investing.
6) Richard W. Hole, M.D., a psychiatrist at the Veterans’ Out-Patient Clinic in Philadelphia, testified that in December, 1986 appellant who had last been seen by Dr. Hole in February, 1986, asked to have his treatment reinstated. Appellant denied having any psychiatric symptoms, such as anxiety, hallucinations, depressions or delusions. Dr. Hole, nevertheless, prescribed thorazine, a tranquilizer widely used in managing schizophrenia, although he saw no ongoing problems at that time or when appellant returned in January and February of 1987.
7) Eva Wojciechowski, a court psychologist, testified that she had administered an intelligence test to appellant incidental to his attempt to gain partial custody of his son in March of 1987. Appellant’s test showed that his I.Q. was 148. Ms. Wojciechowski testified that appellant’s score placed him in the upper Vb of 1% of the total population.
The jury rejected appellant’s insanity defense. Our review of the record establishes that the evidence is sufficient beyond a reasonable doubt to support the jury’s conclusion that appellant was legally sane when he took the lives of Sandra Lindsay and Debra Dudley. And again, based upon the foregoing recitation of facts, we find the evidence to be sufficient beyond a reasonable doubt to sustain the jury’s verdicts of murder of the first degree.
Our statutory obligation requires that we determine the following: 1) whether the sentences of death were the product of passion, prejudice or any other arbitrary factor; 2) whether the evidence fails to support the finding of at least one specified aggravating circumstance; or 3) whether the sentences are excessive or disproportionate to the penalty imposed in similar cases considering both the circumstances of the crime and the character and record of the defendant. 42 Pa.C.S.A. § 9711(h).
In the penalty phase of the proceedings, the jury found the existence of the following aggravating circumstances with regard to Ms. Lindsay’s death: “... the defendant committed a killing while in the perpetration of a felony,” 42 Pa.C.S.A. § 9711(d)(6); and “The offense was committed by means of torture,” 42 Pa.C.S.A. § 9711(d)(8). For purposes of the sentencing statute, “torture” is understood as the infliction of a considerable amount of pain and suffering on a victim which is unnecessarily heinous, atrocious or cruel, manifesting exceptional depravity. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). Sandra Lindsay’s killing occurred during a kidnapping, supporting the finding that appellant committed a killing while in the perpetration of a felony. The evidence that Ms. Lindsay was hung by the wrist from a ceiling hook for three or four days, was fed only bread and water during that time, and was subjected to beatings as she hung from the hook is sufficient to support the finding of the sentencing jury that appellant killed Ms. Lindsay by means of torture.
With regard to Ms. Dudley’s death, the jury found the existence of the same aggravating circumstances as were found in regard to Ms. Lindsay’s death and found the following two additional aggravating circumstances: “... the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense,” 42 Pa.C.S.A. § 9711(d)(7); and “The defendant has been convicted of another murder, committed either before or at the same time of the offense at issue.” 42 Pa.C.S.A’ § 9711(d)(ll). As with Ms. Lindsay, Ms. Dudley’s death occurred during a kidnapping, supporting the jury’s finding that appellant killed her during the perpetration of a felony. The evidence that Ms. Dudley’s death occurred as the result of electrical charges being administered to her while she lay in a water-filled pit and screamed in agony, supports the jury’s finding that Ms. Dudley also was killed by means of torture. The fact that two other women in metal chains were in that water-filled pit with Ms. Dudley when appellant administered the electrical charge, supports the finding of a grave risk to others. The death of Ms. Lindsay, which occurred prior to Ms. Dudley’s death, supports the finding of a murder committed before the offense at issue.
In addition to the foregoing aggravating circumstances, the sentencing jury found the existence of the following mitigating circumstance with regard to the murders of both Ms. Lindsay and Ms. Dudley: “The defendant has no significant history of prior criminal convictions.” 42 Pa.C.S.A. § 9711(e)(1). The jury then unanimously found that this mitigating circumstance was outweighed by the aforementioned aggravating circumstances and, pursuant to 42 Pa.C. S.A. 9711(c)(l)(iv), fixed appellant’s sentence at death for the murder of each woman.
Finally, we have examined the record and find that the sentence of death was a product of the evidence and not a product of “passion, prejudice or any other factor.” 42 Pa.C.S.A. § 9711(h)(3). Based upon data supplied by the Administrative Office of Pennsylvania Courts (see Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984) and the Appendix attached thereto), we conclude that the sentences of death imposed upon appellant are neither excessive nor disproportionate to the penalty imposed in similar cases, considering the circumstances of the crime and the record of the accused.
For the foregoing reasons, we sustain the convictions of murder of the first degree and affirm the sentences of death.
McDERMOTT, J., did not participate in the consideration or decision of this case.
Appellant was sentenced by the trial judge to cumulative sentences on the other aforesaid felony convictions for an additional cumulative term of imprisonment of 150 to 300 years.
This Court has direct appellate jurisdiction over such appeals. 42 Pa.C.S.A. §§ 722(4) and 9711(h)(1); Pa.R.A.P. 702(b). Appellant’s other felony convictions were not appealed.
Ms. Lindsay had a deformed jaw which prevented her from closing her mouth completely.
Section 9711(c)(l)(iv) provides: the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.
The Prothonotary of the Supreme Court of Pennsylvania is directed to transmit the full and complete record of the trial, sentencing hearing, imposition of sentence and review by this Court to the Governor. 42 PA.C.S.A. § 971 l(i).
720 A.2d 1015
In re Gary M. HEIDNIK. Next Friend Petitioner: Maxine Davidson White.
Supreme Court of Pennsylvania.
April 19, 1997.
[OPINION BY PER CURIAM. type=majority]
ORDER
PER CURIAM.
And now this 19th day of April, 1997, as a result of an equally divided court, the temporary stay of execution entered April 18, 1997 is LIFTED. The Petition for a Stay of Execution is GRANTED. The Petition for Review Pursuant to this Court’s Supervisory and/or King’s Bench Powers is GRANTED. It is further ORDERED that the party seeking to proceed on Gary Heidnik’s behalf as “Next Friend” file a brief by 9:00 a.m., Monday, April 21, 1997, addressing the order of the Court of Common Pleas in addition to the following issues:
1. Whether Pennsylvania recognizes the concept of “Next Friend” standing under state jurisprudence;
2. If so, what are the standards under which “Next Friend” standing- is recognized under state jurisprudence;
3. Whether standards for “Next Friend” standing under state jurisprudence differ from the standards under federal jurisprudence; and
4. Whether this Court should adopt the federal standard.
The Commonwealth shall have until 5:00 p.m. Wednesday, April 23, 1997, to file its reply brief. This matter is to be listed for oral argument during the April 1997 session.
CASTILLE, NIGRO and NEWMAN, JJ., dissent and would lift the temporary stay, precluding further relief. CASTILLE, J., files a dissenting statement in which NEWMAN, J., joins.
[OPINION BY CASTILLE, Justice, type=dissent]
CASTILLE, Justice,
dissenting.
For the reasons set forth below, I wish to disassociate myself from the Court’s entry of a stay, granting of review, and listing of this matter for oral argument.
By way of background, as a result of inexplicable tactics by the attorneys purporting to act on petitioner Gary Heidnik’s behalf only two days before Heidnik was scheduled to be executed, the resources and staff of this Court, its Prothonotary’s Office, the Court of Common Pleas (the Honorable John J. Poserina, Jr.), the Clerk of Court for the United States District Court, the United States District Court for the Eastern District of Pennsylvania, the Third Circuit Court of Appeals for the Federal Circuit, and the United States Supreme Court of America, have had to undertake herculean efforts to try to sift through the numerous and at times meritless filings made by the attorneys proceeding on Heidnik’s behalf. In fact, the United States Supreme Court, after a hearing, deliberated until approximately 10:00 p.m., Friday, April 18, 1997 to review the issue of whether Heidnik had competently chosen to forgo all attempts to stay his execution. Heidnik has repeatedly stated since his sentence was imposed that he did not want his sentence appealed and that he wanted no efforts undertaken on his behalf to stop his execution. At a whirlwind pace, the United States Supreme Court rendered its ruling reversing and vacating the order of the Third Circuit, and reinstating the order of the Honorable Franklin S. Van Antwerpen of the United States District Court for the Eastern District of Pennsylvania, that Heidnik was competent to make a decision to forgo all attempts to stay his execution.
Billy Ñolas, Esquire then filed in this Court a Petition for Review of Court of Common Pleas Order, a Petition for Stay of Execution and for Review Pursuant to this Court’ Supervisory and/or King’s Bench Powers, and an Emergency Motion for Immediate Decision on Petition for Review and/or for Stay of Execution by Duty Justice. The Commonwealth promptly responded.
A per curiam order temporarily staying Heidnik’s execution pending further action .by this Court was entered by this Court on April 18, 1997. The Commonwealth attempted to have this Court’s stay order vacated by the U.S. Supreme Court but its motion was dismissed at approximately 12:40 a.m., April 19,1997.
The entry of a stay to allow further review of this matter under the circumstances of this case is unnecessary. With respect to the “Next Friend” issue, this Court has already stated that it finds the standards of Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) as “persuasive” and allowed the execution of Keith Zettlemoyer based upon its holding that Whitmore v. Arkansas precluded “Next Friend” standing in Zettlemoyer. See Commonwealth v. Zettlemoyer, No. 107 Capital Docket (filed May 2, 1995). Notwithstanding this Court’s adoption of the Whitmore standard in 1995, resulting in an execution, three members of this Court at this time now disregard the standard insofar as it is to be applied to Heidnik’s execution now pending.
Furthermore, in order for a stay to be entered, the moving party must show that it is likely to prevail on the merits. Commonwealth v. Martorano, 535 Pa. 178, 634 A.2d 1063, 1066 (1993). This standard has plainly not been met. In view of the order in Zettlemoyer, it is not likely that Heidnik will prevail on the merits with respect to the “Next Friend” issue, unless of course, this Court chooses to reverse it’s prior holding. Since there is virtually no merit to the “Next Friend” issue, third parties, quite simply, have no standing to seek review or otherwise make any filing on behalf of Heidnik. He has specifically stated that he does not want third parties intervening on his behalf to stop his execution.
Accordingly, the application to stay Heidnik’s execution should be denied and no further review should be permitted by filings made by third parties against Heidnik’s wishes. I would further note that eleventh hour tactics such as those employed by Mr. Ñolas and his colleagues can unnecessarily jeopardize the interests of a client, and are inexcusable, especially where the interests at stake are literally a matter of life or death.
NEWMAN, J., joins in this dissenting statement.
The warrant was signed by Governor Ridge on March 20, 1997, Heidnik's judgment of sentence was affirmed by this Court in 1991. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991).
720 A.2d 1016
In re Gary M. HEIDNIK. Petition of Maxine Davidson WHITE, Next Friend.
Supreme Court of Pennsylvania.
Argued April 29, 1997.
Decided Aug. 19, 1998.
Reargument Denied Sept. 15, 1998.
Billy H. Nolas, Robert Brett Dunham, Philadelphia, for Maxine D. White.
Ronald Eisenberg, Christopher Diviny, Catherine Marshall, Philadelphia, for Com.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, NIGRO and NEWMAN, JJ.
[OPINION BY ZAPPALA, Justice. PER CURIAM type=majority]
OPINION
ZAPPALA, Justice.
Following a whirlwind of activity generated out of a warrant of execution, we entered a stay and granted a Petition for Review in order to examine, with due reflection and deliberation apart from an ‘emergency’ setting, certain threshold issues that are likely to recur in the carrying out of capital sentences. Of particular concern are two issues relating to the mental state of the person subject to the warrant: the person’s “competence to be executed,” and the circumstances in which another person may initiate or pursue litigation contesting the carrying out of the sentence.
The competence issue arises out of the ancient common law tradition proscribing the execution of one who is insane. The United States Supreme Court, in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), determined that this proscription is incorporated in the Eighth Amendment’s ban on cruel and unusual punishments. The several opinions in support of the judgment in that case suggested that the minimum elements for determining “sanity” in this context relate to the person’s awareness of the punishment and the reason for it, or, as we put it in Commonwealth v. Jermyn, 539 Pa. 371, 652 A.2d 821, 824 (Pa.1995), whether the person “comprehends the reason for the death penalty and its implications.”
In Jermyn, we cited Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (Pa.1955), for the common law principle that no insane person could be tried, sentenced, or executed. Moon had been convicted of first degree murder for killing the president judge of the Warren County Common Pleas Court and sentenced to death. His mental condition came before the court pursuant to The Mental Health Act of June 12, 1951, P.L. 533, which authorized commitment of “any person detained in any penal or correctional institution ... thought to be mentally ill or in such condition that he requires care in a mental hospital....” Section 344(a)(1). The common pleas court determined that Moon was legally sane and refused the commitment. Our court remanded for further proceedings, holding that the legislature, in using the statutorily defined term “mentally ill,” intended to broaden the test to be used in staying criminal proceedings beyond “insanity,” which was the term used in the predecessor Mental Health Act of July 11, 1923, P.L. 998.
Although Article IV of the present Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143, as amended, 50 P.S. § 7401 et seq., by its title purports to deal with “Determinations Affecting Those Charged With Crime Or Under Sentence” (emphasis added), Section 402(a), 50 P.S. § 7402(a), sets forth a “Definition of Incompetency” applicable only to a person charged with a crime, i.e., “substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense.” Thus in Jermyn, observing that Section 402 “is plainly worded [and] applies only during the trial, conviction and imposition of sentence,” we held that the Mental Health Procedures Act was inapplicable to the proceeding to determine Jermyn’s competency to suffer execution. 652 A.2d at 823. Rather, the common law/ constitutional standard was controlling.
As noted, the principal issue in Jermyn was whether the common pleas court had applied the proper standard in determining Jermyn’s mental condition. For present purposes, it is important to note that the competency issue was placed before the court by counsel who had been appointed in December of 1987 to represent Jermyn in connection with his motion under the Post-Conviction Relief Act. Following our decision affirming the denial of collateral relief, counsel had filed a petition for certiorari with the United States Supreme Court, which was still pending when the warrant was issued scheduling the execution for the week of December 6, 1993. There was thus no question as to counsel’s authority to file the “Application for Court Determination of Defendant’s Competency” that brought the issue before the court; counsel’s appointment had not expired.
In many cases, however, because counsel, whether court-appointed or privately retained, is not engaged to provide open-ended service, a condemned prisoner will not be represented at the time an execution warrant is signed after completion of direct and collateral review. Moreover, as previously indicated, the Mental Health Procedures Act is inapplicable to such proceedings. Finally, there would appear to be no way in which the prisoner himself can initiate review of the issue. If he cannot comprehend the reasons for the penalty or its implications, he cannot conceive of the need to take any measures to postpone it. Conversely, if he can conceive of such a need, by definition he must comprehend the implications of the penalty, and the very filing of the application would refute its substance, i.e., the allegation of incompetency. In such cases, then, where all other litigation has been completed, it would seem that the issue of the condemned prisoner’s competency to be executed can only be raised by a person acting on the prisoner’s behalf.
In Commonwealth v. Zettlemoyer, No. 107 Capital Appeal Docket, we filed a per curiam order rejecting a claim of next friend standing by the victim’s mother and by the attorney who had represented Zettlemoyer in post-conviction proceedings. We stated that, “[w]hile this Court is not bound by the U.S. Supreme Court’s decision in Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), we find its reasoning persuasive in this matter.”
In Whitmore, the putative next friend in the Arkansas Supreme Court and in the United States Supreme Court, Jonas Whitmore, was a fellow death row prisoner with Ronald Simmons. He had sought to intervene in the state court to appeal Simmons’s conviction and sentence despite Simmons’s explicit waiver of his right to direct appeal. The Arkansas Supreme Court declined to grant next friend standing as a matter of state common law. After reviewing the nature of next friend standing for purposes of the federal habeas corpus statute, the United States Supreme Court wrote:
Without deciding whether a “next friend” may ever invoke the jurisdiction of a federal court absent congressional authorization, we think the scope of any federal doctrine of “next friend” standing is no broader than what is permitted by the habeas corpus practice, which codified the historical practice. And in keeping with the ancient tradition of the doctrine, we conclude that one necessary condition for “next friend” standing in federal court is a showing by the proposed “next friend” that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability.
110 S.Ct. at 1728. Since there had already been a state court proceeding where it was determined that Simmons had made a knowing, intelligent, and voluntary waiver of his appellate rights and was competent to do so, this condition was not satisfied. Thus Whitmore did not have standing to proceed before the Supreme Court and the writ of certiorari was dismissed for want of jurisdiction.
In addition to the requirement that the next friend explain why the real party in interest cannot appear on his own behalf, the Supreme Court also noted the requirement that the next friend “be truly dedicated to the best interests of the person on whose behalf he seeks to litigate” along with the further suggestion that a next friend “must have some significant relationship "with the real party in interest.” 110 S.Ct. at 1727. However, because Whitmore was unable to establish Simmons’s incompetence, the Court did not further address the “dedicated to the best interests” or “significant relationship” elements.
In Zettlemoyer, although we found the Whitmore reasoning persuasive; we did not separately analyze its application to the distinct questions of standing to pursue Post-Conviction Relief Act litigation of issues relating to Zettlemoyer’s original trial and standing to assert the issue of Zettlemoyer’s competency to be executed. In the former situation, because the issue is virtually identical to that in Whitmore, i.e., next friend standing to pursue litigation that has been waived by the real party in interest, the Whitmore reasoning is directly applicable. The latter situation, however, presents a conundrum. Since the ultimate proposition sought to be established is that the condemned prisoner is incompetent to be executed, it makes no sense to inquire preliminarily whether the prisoner is competent to forego raising that issue himself. As noted above at p. 1019, one who is able to raise the inquiry by definition cannot be incompetent, and one who is incompetent cannot raise the inquiry. And if one cannot raise the inquiry due to incompetence, one cannot knowingly forego raising it.
As to this limited issue, then, next friend standing cannot be conditioned on a showing by the putative next friend that the real party in interest is unable to litigate his own cause due to mental incapacity. Accordingly, we must examine the applicability of the other conditions for next friend standing — whether the next friend is “truly dedicated to the best interests of the person on whose behalf he seeks to litigate,” and whether there is a “significant relationship with the real party in interest.”
Not surprisingly, there is little guidance in this area. In the hundreds of reported cases where next friend status was noted, the relationship between the person pursuing the cause of action and the person subject to incapacity was readily apparent, as was their concern for the real party’s interests, e.g., parent-child, or husband-wife when married women were deemed legally incompetent to sue in their own right. See, e.g., Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 (Pa.1938); Freiler v. Kear, 126 Pa. 470, 17 A. 668 (1889). Thus it has never been necessary to define the relational or interest requirements for next friend status beyond noting that they not be in conflict with the interests of the real party. See Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58 (1938) (action brought by grandmother as next friend of minor, although child still resided with parents).
Upon consideration, we must conclude that, at least in the context of this issue, any attempt to fashion such a definition is doomed to futility. The mere fact that the matter of the condemned prisoner’s competence is of constitutional dimension suggests that any limitations based on degree of interest or relationship are unworkable. We are simply unwilling to hold that this important issue might escape review because the condemned prisoner lacks family or friends sufficiently “close” to him who are able and willing to raise it.
As we observed in Bertinelli, the actions of the next friend “are always subject to the control and supervision of the court, which has the right in each case to determine whether the litigation is in the [real party’s] best interests.” 331 Pa. at 75, 200 A. at 59. We are confident that by maintaining a sharp focus on the narrow issue of whether the condemned prisoner comprehends the reason for the death penalty and its implications, the judges who are presented with these cases will be able to protect against “ ‘intruders or uninvited meddlers, styling themselves next friends,’” Whitmore, 110 S.Ct. at 1728, quoting United States ex rel. Bryant v. Houston, 273 F. 915, 916 (2d Cir.1921), who would abuse the process. For example, to prevent the inquiry from being used solely for delay by persons opposed to executions in the abstract, the court should require at a minimum that the putative next friend set forth specific reasons why he or she believes that the particular condemned prisoner does not comprehend the penalty or its implications. Or where the prisoner has waived his right to pursue direct and/or collateral review of his conviction and it has been determined that he was competent to do so, as in Whitmore, the court may require a more significant showing, in the nature of changed circumstances, before requiring a hearing.
In this case the attorney from OLEADA who filed the “Application for Stay of Execution Pursuant to Ford v. Wainwright ” in the common pleas court had never been retained or appointed to represent Gary Heidnik. However, an affidavit was attached to the Application which set forth the personal observations and belief of the OLEADA executive director that Heidnik was incompetent. Attorney William Costopolous also signed an affidavit stating the belief, based on his observations, that Heidnik was incompetent. He further stated that he had asked OLEADA “to take whatever steps are necessary to secure a stay of execution for Mr. Heidnik and a judicial determination of his competency to be executed,” and that based on his “ethical obligation as an officer- of the Court to seek review of Mr. Heidnik’s case,” he had requested that OLEADA “present these issues to the Courts.” Affidavit of William C. Costopolous, ¶ 16, pp. 4-5. Under these circumstances, pursuant to the foregoing analysis we find that it was appropriate for the common pleas court to accept the Application and proceed with the hearing notwithstanding the absence of a formal claim of next friend standing. Likewise, the present Petition for Review filed by Maxine Davidson White as next friend is properly before this Court for disposition.
Without reference to the question of who may initiate procedures to determine a prisoner’s competence to be executed, Justice Marshall’s lead opinion in Ford acknowledged the possibility that states might need to impose “some high threshold showing on behalf of the prisoner ... to control the number of nonmeritorious or repetitive claims of insanity,” 106 S.Ct. at 2605, as did Justice Powell’s concurring opinion, 106 S.Ct. at 2610 (state “may properly presume that petitioner remains sane at the time sentence is to be carried out, and may require a substantial threshold showing of insanity merely to trigger the hearing process.”) Several courts have imposed such a requirement, see, e.g., Washington v. Harris, 114 Wash.2d 419, 789 P.2d 60 (1990), or even affirmed findings of competence made without evidentiary hearings based on the absence of such a preliminary showing, see, e.g., Caldwell v. Tennessee, 1990 WL 29290. So that there is no doubt, we hold that the courts of Pennsylvania, when presented with petitions seeking a review of a condemned prisoner’s sanity, may consider the adequacy of the assertions in the petition before requiring a hearing, and in an appropriate case rule on the matter without hearing.
We also note that although five Justices of the Supreme Court held in Ford that the Eighth Amendment incorporates the prohibition against executing a person who is insane, there was no clear guidance, much less a major ruling, as to the procedural requirements for determining a prisoner’s competence to suffer execution. In Ford itself, the determination as to competency that brought the issue to the Court was not a judicial matter. Rather it was a decision made by the governor after Ford’s counsel “invoked the procedures of Florida law governing the determination of competency of a condemned inmate,” 106 S.Ct. at 2598. In accordance with those procedures, the governor appointed three psychiatrists, who conducted a joint interview with Ford and then filed separate reports. Without referring to the competency question or making any other statement, the governor signed a warrant for execution. Ford’s counsel attempted, unsuccessfully, to present the issue of Ford’s competency to be executed in the state courts. The federal district court dismissed a subsequent habeas corpus petition without holding an evidentiary hearing on the issue of Ford’s sanity.
A majority of the Supreme Court agreed that the governor’s determination was not entitled to a “presumption of correctness” for federal habeas corpus purposes because it did not provide a “fair” opportunity for Ford’s counsel to offer contrary evidence or argument. The Court therefore reversed and remanded for further proceedings in the district court. Justice Marshall’s lead opinion left to the states “the task of developing appropriate ways to enforce the constitutional restriction upon ... execution of sentences,” 106 S.Ct. at 2605, observing that “instructive analogies may be found in ... procedures for determining whether a defendant is competent to stand trial ... or involuntary commitment proceedings.” Id., n.4. Chief Justice Burger, joined by Justice Rehnquist, found the Eighth Amendment inapplicable, and stated that “wholly executive procedures” would satisfy due process. Justice O’Connor, joined by Justice White, also found no Eighth Amendment substantive right not to be executed while insane, but expressed the view that since Florida law had created such an interest the procedures implemented to protect that interest had to satisfy minimal due process requirements, particularly the “opportunity to be heard.”
Justice Powell, who provided the fifth vote for finding that the Eighth Amendment incorporated the prohibition against executing an insane person, suggested in his concurring opinion that
a constitutionally acceptable procedure may be far less formal than a trial. The State should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s own psychiatric examination. Beyond these basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake. As long as basic fairness is observed, I would find due process satisfied, and would apply the presumption of correctness of § 2254(d) on federal habeas corpus.
106 S.Ct. at 2610. However, Justice Powell had previously noted that the presumption of correctness required by the federal habeas corpus statute applied to factual findings of “a State court of competent jurisdiction,” and that “no amount of stretching can extend [the term “State court”] to include the governor.” Id. at 2608-09. Thus it would appear that Ford required that the state determination be made by a court or at least some other person or body “independen[t] from the prosecutorial arm of the government,” 106 S.Ct. at 2609, for the state to avoid relitigating the competency issue de novo in federal habeas corpus proceedings. However, recent amendments to the habeas corpus statutes in the Anti-Terrorism and Effective Death Penalty Act have caused some confusion about whether claims of competence to be executed can even be raised in federal habeas corpus proceedings. See, e.g., In re Medina, 109 F.3d 1556, 1564-65 (11th Cir. 1997)(“provisions of § 2244(b), as amended, operate to. foreclose review of competency to be executed claims in second habeas applications”) and In re Davis, 121 F.3d 952 (5th Cir. 1997)(same); contra, Martinez-Villareal v. Stewart, 118 F.3d 628 (9th Cir. 1997)(to avoid constitutional difficulty attendant to holding that § 2244(b) precludes review of competency to be executed claims in habeas applications, held that competency claim does not fall within rubric of § 2244).
In the interest of avoiding last minute litigation, and to ensure that it is not violating the constitutional prohibition against executing an insane person, the Department of Corrections should consider instituting procedures to obtain a timely impartial evaluation of the mental state of every person under warrant of execution, allowing for reasonable participation by persons who would wish to assert that the prisoner does not understand the reason for the penalty or its implications. In the absence of regulations or' statutory mechanisms, however, the courts of common pleas must address the questions within the parameters that have been developed and remain to be developed on a case by case basis.
Having thus addressed the significant procedural issue in this case, we can readily resolve the substantive issue despite its gravity. Indeed, “having examined the transcripts of the common pleas court hearing and the hearing in the district court, and all the papers filed in this court,” we previously expressed the view that “we would affirm the conclusion that Heidnik is competent under the standard of Ford v. Wainwright, as adopted by this Court in Commonwealth v. Jermyn.” No. 50 E.D. Misc. Dkt.1997, Per Curiam Opinion filed April 18, 1997, [Appendix A] at 11. Upon re-examining all the materials, we now reach the same conclusion. Accordingly, the Order of the Court of Common Pleas is affirmed.
Justice CASTILLE did not participate in the consideration or decision of this case.
Exhibit A
SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, Respondent v. GARY M. HEIDNIK, Petitioner
No. 50 Eastern District Miscellaneous Docket, 1997
Application for Stay of Execution
Filed: April 18, 1997
OPINION
PER CURIAM
In recognition of the potential for confusion and misunderstanding attendant to the constricted time frame within which these events occurred, along with the public interest in ensuring that matters of this nature are neither unduly delayed nor disposed of without thorough consideration, the Court deems it prudent to file this Opinion to explain the issues that were presented in this matter and the process that was involved in resolving those issues.
Pursuant to a warrant issued by the Governor, Gary Heidnik was scheduled to be executed on Tuesday, April 15, 1997. On April 11, 1997, an “Application for Stay of Execution Pursuant to Ford v. Wainwright ” was filed in the Philadelphia Court of Common Pleas by attorney Billy H. Ñolas of the Center for Legal Education, Advocacy & Defense Assistance (CLEADA). That same day, an “Application for Stay of Execution” was filed in this Court, attaching the application that had been filed in common pleas court and the accompanying affidavits. The Application requested that this Court issue a stay of execution if the common pleas court denied the stay or did not act by 5:00 p.m. on April 14. The Application filed in this Court asserted that a stay was appropriate to preserve this Court’s jurisdiction because of significant questions under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). It further asserted that Heidnik was not competent to be executed, that Heidnik was psychotic and did not understand the nature of any judicial proceeding, and that Heidnik cannot understand the reasons for his scheduled execution or its implications.
The Application filed in the common pleas court included the affidavits of Dr. Lawson F. Bernstein, Dr. Clancy D. McKenzie, Michael Cíate, Robert Brett Dunham, Esquire, and William C. Costopoulos, Esquire. In summary, the affidavit of Dr. Bernstein, dated April 10, 1997, identified him as a medical doctor and psychiatrist who served as a staff psychiatrist at the State Correctional Institute in Pittsburgh for several years until 1994. Dr. Bernstein had the opportunity to evaluate and observe Heidnik during that time and interviewed Heidnik again during a contact visit with him at SCI-Pittsburgh on April 10,1997.
Dr. Bernstein stated that it was his opinion within a reasonable degree of medical certainty that Heidnik suffered from paranoid schizophrenia, and described him as a seriously disturbed, cognitively impaired, psychotic individual. Dr. Bernstein further stated that he was familiar with the standards for competency under Ford v. Wainwright and that, based upon his understanding of those standards and his knowledge of Heidnik, it was his professional opinion that Heidnik neither appreciates the punishment he is about to suffer, the reasons for his impending execution or its implications. Dr. Bernstein indicated that Heidnik’s failure to comprehend reality and understand the reasons for or the facts of his impending execution is the result of his serious mental illness.
The undated affidavit of Dr. McKenzie described him as a licensed physician and psychiatrist who has been engaged in the study and practice of general and forensic psychiatry since 1963. Dr. McKenzie evaluated Heidnik after his arrest on charges of first degree murder. He stated that he continued to stay in touch with Heidnik and visited him in prison after the trial, with the most recent visit having occurred approximately fifteen months before. Dr. McKenzie opined with a reasonable degree of medical certainty that Heidnik suffers from schizophrenia, is actively psychotic, and is not in contact with reality. Dr. McKenzie stated his belief that Heidnik meets the standard of incompetency to be executed under Ford v. Wainwright.
Michael date’s affidavit dated April 10, 1997, stated that he was an Official Visitor for the Pennsylvania Prison Society who visited Heidnik in prison on June 4,1992, and January 15, 1997. Cíate described his personal impression of Heidnik’s mental condition and physical condition.
The affidavit of Robert Brett Dunham, Esquire, dated April 10, 1997, identified him as the Executive Director of CLEADA. Dunham stated that Heidnik was not one of CLEADA’s clients, but that following the issuance of the death warrant scheduling Heidnik’s execution for April 15,1997, they learned that Heidnik believed he was represented by William Costopoulos, Esquire. They contacted Costopoulos and were informed that he was not Heidnik’s counsel.
CLEADA was also informed about the opinions of Dr. Bernstein, Dr. McKenzie, and Michael Cíate as to Heidnik’s condition and requested that the three individuals provide affidavits about his condition. Dunham also stated that he and Costopoulos made arrangements with the Department of Corrections to visit Heidnik on April 10, 1997. Dunham described their meeting with Heidnik, stating that Heidnik did not understand that the person speaking to him was Costopoulos. Dunham also expressed his personal belief that Heidnik was incompetent to be executed.
The affidavit of William Costopoulos, Esquire dated April 11,1997, stated that he was contacted by CLEADA on April 4, 1997. Costopoulos indicated that he spent approximately two hours with Heidnik during the April 10 visit. He set forth his recollection of Heidnik’s response to his visit and stated that Heidnik did not believe that the death warrant was valid since it has the name of someone calling himself Tom Ridge. Costopoulos expressed his personal opinion that Heidnik was incompetent to be executed.
On April 14, the common pleas court conducted a hearing at which Heidnik testified. During the course of the hearing the court directed that Heidnik be examined by a psychiatrist. Following the examination, the hearing resumed with the psychiatrist’s testimony, after which Heidnik testified further. At the close of the hearing the court indicated that it found Heidnik competent under the standard of Ford v. Wainwright and therefore would deny the stay. The court stated that detailed findings of fact and conclusions of law would be filed and offered the parties the opportunity to submit proposed findings and conclusions. Before the hearing adjourned, Heidnik indicated in response to questioning by Attorney Dunham that he did not wish the attorneys to appeal. See Notes of Testimony at 109, 113.
On April 15, the OLEADA attorneys filed a petition in the United States District Court for the Eastern District of Pennsylvania seeking (1) in forma pauperis status, (2) a stay pursuant to McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), (3) appointment of federal habeas corpus counsel, and (4) formal “next friend” status for Heidnik’s daughter and ex-wife. See Bench Memorandum of Van Antwerpen, J. at 1. Through hearing and telephone conferences the court clarified the issues and at 2:00 p.m. issued a stay for purposes of holding a hearing to determine its jurisdiction to consider the application, which involved the issue of whether Heidnik had given an appropriate waiver under Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). The court scheduled the hearing for 7:00 p.m. During this time, the common pleas court filed its findings of fact and conclusions of law. Mr. Justice Castille entered an Order staying execution until 2:00 p.m., April 16, 1997, to afford this Court opportunity to consider the matters presented. On April 16, a per curiam order was entered staying execution until further order of this Court.
At the hearing in the district court, Heidnik was present but did not testify. The CLEADA attorneys presented the testimony of three doctors. The Commonwealth presented the testimony of the doctor who had examined Heidnik for the common pleas court hearing the day before. On April 16, the district court granted in forma pauperis status but denied and dismissed the application in all other respects, filing a Bench Memorandum in support of its order.
The court found that although Heidnik suffers from paranoid schizophrenia, those seeking “next friend” status did not satisfy the Whitmore v. Arkansas burden of establishing that Heidnik was incompetent. The court stated that Heidnik’s paranoid schizophrenia does not substantially affect his capacity to appreciate his position and make a rational choice with respect to continuing or abandoning habeas corpus proceedings in federal court.
The court further found that even if the “next Mends” had standing to pursue a full federal habeas corpus proceeding, the common pleas court’s finding that Heidnik was competent under the standard of Ford v. Wainwright would be entitled to a presumption of correctness.
While the district court was considering the matters before it, the CLEADA filed in this Court a “Petition for Leave to Supplement Application for Stay of Execution,” along with the “Supplement to Application for Stay of Execution, Discussing the Lower Court Proceedings and the Need for a Stay on Appeal” as to which leave to file was sought. Although no petition for review had been filed from the order of the common pleas court, the CLEADA attorneys asserted at the outset of the Supplement that, “This is an appeal from the denial of a motion for stay of execution filed in the Court of Common Pleas in Philadelphia. Meaningful appellate review cannot possibly be accomplished before Mr. Heidnik’s scheduled execution date, and Appellant accordingly urges that the Court enter a stay of execution.” The “Petition for Leave to File” noted that the filing “addresse[d] the issues presented in the common pleas court proceedings in this matter on April 14,1997.”
The CLEADA attorneys argued in the Supplement that the execution violates the Eighth Amendment to the United States Constitution as Heidnik is incompetent and does not have a rational understanding of the reasons for imposition of the death penalty. They submitted that Heidnik has been unable to consult with anyone about his legal rights. They also contended that Heidnik’s beliefs make it impossible for him to make rational litigation decisions and suggested that the conditions of incarceration on death row had an effect on Heidnik’s mental state.
In a similar claim, the CLEADA attorneys argued that the conditions of Heidnik’s confinement are physically and psychologically punitive such that he is waiving his rights involuntarily. They also challenged the evaluation of Heidnik by the court-appointed psychiatrist the previous day, as it was based upon a single brief visit. Additionally, the CLEADA attorneys contended that the common pleas court erroneously precluded the presentation of evidence relevant to Heidnik’s competency. They argued that the common pleas hearing did not provide the fundamental fairness required by the Eighth and Fourteenth Amendments to the United States Constitution.
Relying upon Whitmore v. Arkansas, the CLEADA attorneys also asserted that the Court should grant “next friend” status to Heidnik’s daughter, Maxine Davidson White, because she “is truly dedicated” to her father’s interests and has a “significant relationship” with him. They argued in the alternative that if the Court finds that White does not meet the requirements for “next friend” status, the Court should appoint another individual for that purpose.
The Commonwealth filed a response to the motion for stay of execution and to the supplement filed by Heidnik’s counsel to the original motion. Since its response was filed subsequent to the evidentiary hearing on Heidnik’s competency to be executed held on April 14, 1997, before the common pleas court, the Commonwealth summarized in detail the testimony of the psychiatrist who had examined Heidnik during the course of the hearing. The Commonwealth asserted that based on the record before the common pleas court and the findings of facts and conclusions of law made by the common pleas court, the motion for a stay before this Court should be denied. It further argued that the supplement to Heidnik’s motion for a stay did not provide a basis for the relief requested since it relied upon the characterization of the hearing testimony made by Heidnik’s counsel and upon matters not in evidence.
The Commonwealth asserted also that Heidnik’s counsel could not seek a stay based on an argument that appellate review may be sought under a “next friend” analysis. The Commonwealth challenged the standing of a third party to enter the litigation in this case, citing Zettlemoyer v. Horn, 53 F.3d 24 (3rd Cir.1995). The Commonwealth asserted that Zettlemoyer makes clear that “next Mend” appellate litigation would be improper in this case because Heidnik is competent to proceed and did not wish to proceed with appellate review.
On April 15, 1997, a “Second Supplement to Application for Stay of Execution, Discussing the Constitutional Impropriety in the Lower Court’s Wholesale Adoption of the District Attorney’s Submitted Order, Without Affording Petitioner an Adequate Opportunity to Object to the Language in the Order” was filed with this Court. Therein, it was argued that the failure to afford the CLEADA attorneys an opportunity to object to the language of the common pleas court’s April 14, 1997 order resulted in a violation of Heidnik’s due process rights.
On April 16, 1997, the CLEADA attorneys filed “Petitioner/appellants [sic] Motion for Leave to Further Supplement Application for Stay of Execution” along with the “Third Supplement in Support of Application for Stay of Execution” as to which leave to file was sought. Therein, the CLEADA attorneys argued that the evaluation of Heidnik during the common pleas court hearing was inaccurate and unreliable, based on allegations that the psychiatrist had contacts with the Commonwealth attorneys and was not an impartial witness for the court.
On April 17, 1997, the United States Court of Appeals for the Third Circuit heard an appeal from the district court order. On April 18, the court vacated the district court order and remanded, directing the district court to designate Maxine Davidson White as Heidnik’s next friend and to appoint counsel for her. The court further ordered the district court to continue its stay of execution pending action on the McFar land petition filed in the district court. The court of appeals held that the testimony of the court-appointed psychiatrist, as a matter of law, was insufficient to support a finding of competence pursuant to Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) and Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). While acknowledging Heidnik’s considerable intelligence and expressive powers, it found that there was no evidence that Heidnik could make a rational decision regarding the waiver of further appeals.
Pursuant to the circuit court’s order, the district court entered an order on April 18, designating Heidnik’s daughter as “next friend”, appointing the CLEADA attorneys as counsel for her nunc pro tunc, and continuing its stay indefinitely pending the filing of and action on a habeas corpus petition.
In light of the district court’s Bench Memorandum and the circuit court’s opinion it is important to reiterate that no petition for review from the common pleas order denying the Application for Stay has ever been filed. Based on Heidnik’s testimony at the close of the common pleas hearing that he did not wish the CLEADA attorneys to appeal, which was followed by the filing of the motion in the district court seeking “next friend” status for Heidnik’s daughter, it would appear that the CLEADA attorneys acted in conformity with Heidnik’s wishes in not filing a petition for review.
Because the execution has been stayed by the federal courts pending litigation there, and nothing is pending before this Court, we how vacate the Order staying execution entered on April 16, 1997. If the counsel for the “next friend” appointed in the federal litigation intends to pursue an appeal from the common pleas court order of April 14, 1997, they are directed to file a proper petition for review to perfect the record in this regard by Monday, April 21,1997.
FLAHERTY, C.J., files a concurring opinion.
[OPINION BY FLAHERTY, Chief Justice, type=concurrence]
FLAHERTY, Chief Justice,
concurring.
I am forced to concur, although I believe the record, state and federal, demonstrates that Gary Heidnik, as found by the United States District Court for the Eastern District of Pennsylvania, “... is presently suffering from mental illness in the form of paranoid schizophrenia ...,” and, in my view, is insane, and I cannot stand by and say nothing while an insane person is put to death by the state contrary to the mores of civilized society. The court correctly observes, however, that, “... a request for ‘next friend’ status was never addressed to the common pleas court and is not presented for decision in this Court.” The stay, thus, must be vacated on the present state of the record. We have no jurisdiction to do otherwise.
Our per curiam Opinion describing the litigation in this Court and in the federal courts, filed April 18, 1997, at No. 50 E.D. Misc. Dkt.1997, is attached as Appendix A.
Our per curiam Opinion at No. 50 E.D. Misc. Dkt.1997 touched on the issue of the lack of a proper party in the appellate context. The present Petition for Review attempted to cure this defect by explicitly claiming next friend status for Maxine Davidson White, a claim that had previously been alluded to in one of the supplements to the application for stay of execution filed by the Center for Legal Advocacy & Defense Assistance (CLEADA). Because there were no reported decisions of this court to guide consideration of this significant issue, we accepted the case and directed the parties to address the parameters of next friend standing under Pennsylvania law vis-a-vis federal law.
Moreover, Section 401(a), which applies “[wjhenever a person ... who is undergoing sentence, is or becomes severely mentally disabled” (emphasis added), merely allows "proceedings for examination and treatment under the civil provisions of the act” to be instituted "in the same manner as if [the person] were not so ... sentenced.” The civil provisions for involuntary commitment are set out in Article III, where the term "severely mentally disabled” is defined in Section 301(a) to mean that "as a result of mental illness, [a person's] capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to himself or others.” 50 P.S. § 7301(a). The standards for determining clear and present danger are further delineated in Section 301(b).
In Moon, the issue of the defendant's mental condition was raised by the county sheriff, in his capacity as keeper of the jail in which Moon was detained while his motion for new trial was pending. The Mental Health Act of 1951 authorized counsel for a prisoner, the superintendent of the institution where he was detained, or any responsible person to petition for commitment. The only language in Article IV of the present Mental Health Procedures Act specifying who may initiate proceedings appears in a section that by its terms is limited to persons charged with a crime. Section 402(c), 50 P.S. § 7402(c), provides: Application to the court for an order directing an incompetency examination may be presented by an attorney for the Commonwealth, a person charged with a crime, his counsel, or the warden or other official in charge of the institution or place in which he is detained. As noted in the text, however, the definition of incompetency in Section 402(a) only'applies to persons charged with a crime, not those undergoing a sentence.
In Franz v. Lockhart, 700 F.Supp. 1005 (E.D.Ark.1988), Rev. Louis Franz, a prison counselor, and Darrel Hill, also a death row inmate, who had also unsuccessfully sought next friend standing in the state court to appeal different murder convictions of Simmons, filed for federal habeas corpus relief asserting next friend standing. The District Court held that the state court’s finding of Simmons’s competence precluded consideration of next friend or guardian ad litem status for Franz or Hill. 700 F.Supp. at 1014. Franz and Hill also asserted that the Eighth Amendment requires appellate review of a capital trial such that Arkansas could not constitutionally allow a waiver of appeal. They argued that they had standing to advance this argument not because of any incapacity or incompetence of Simmons, but "because of the type of claim asserted and of the rights sought to be vindicated.” 700 F.Supp. at 1015. The court rejected this claim of standing as well. The court noted that "if the case were one of first impression ... [it] would conclude that the unique and awful nature of the execution of another human being dictates recognition of an exception to traditional standing and waiver rules so as to protect values shared by us all, values which are more important than a murderer's desire to be put to death immediately.” However, the court stated that it was "compelled to acknowledge that nothing in the cases governing on the merits suggests that third party assertion of constitutional values is permitted in circumstances such as these.” 700 F.Supp. at 1024.
Cf. Franz v. Lockhart, 700 F.Supp. at 1011, n. 2. (“It is clearly inconceivable that any defendant who would otherwise be found incompetent ... would be permitted to be killed by the State for the sole reason that the parties seeking to assert [his] rights were not closely enough related to him to meet the common law requirements for next friend status.”)
We need not decide whether the court would have been justified in dismissing the petition or deciding the matter without hearing.
We once again express onr concern that the CLEADA attorneys would appear to have a conflict of interest in representing Maxine Davidson White if they previously represented Gary Heidnik and he instructed them not to file any appeals. Although such a conflict could be an additional basis for a court to disallow a particular individual or attorney to initiate or participate in proceedings to establish a condemned prisoner’s incompetency to be executed, we decline to do so here.
In a number of states there are statutory provisions or court rules governing the procedures for examining the mental condition of a condemned prisoner. Some of these statutes specify who may raise the issue, see, e.g., Arizona Revised Statutes § 13-4022(A)(1997)(director of state department of corrections, prisoner's attorney, or attorney for the state may file motion); Cal. Penal Code § 3701 (1997)(if there is a good reason to believe defendant has become insane, warden must call this fact to attention of district attorney of county where prison is located, whose duty it is to file petition); Conn. Gen. Stat. § 54-101 (1997)(warden may make application); Fla.R.Crim.P. 3.811 (1997)(counsel for prisoner may move for stay of execution and hearing in court of circuit where execution is to take place); Miss. Code Ann. § 99-19-57(2)(a)(1997)(convict, or a person acting as his next friend, or commissioner of corrections may file application); § 552.060(2) RS.Mo. (1997)(director of department of corrections notifies, among others, circuit court of county where correctional facility is located); R.R.S. Neb. § 29-2537 (1997)(warden or sheriff having custody gives notice to a judge of the district in which the convict was tried and sentenced); N.Y. C.L.S. Corree. § 656(2)(1998)(petition may be filed by the inmate, the inmate’s counsel, an employee of the department [of corrections], the inmate's legal guardian, a member of the inmate's immediate family, or a bona fide friend who has maintained regular contact with the inmate); although not all of these are in fact limiting, see, e.g., Official Code of Georgia Annotated § 17-10-3(b)(1997)(applicant or some other person on his behalf) Md. Ann. Code art. 27, § 75A(c)(1)(1997)(petition may be filed by the inmate, counsel for the inmate, or any other person on the inmate’s behalf); Wyo. Stat. § 7-13-901(b)(1997)(custodian [sheriff, warden, or head of facility in which convict is being held] or other interested person). In some states, the procedure is an administrative one, see, e.g., Ark. Stat. Ann. § 16-90-506(d)(1)(Director of Department of Correction notifies Deputy Director of Division of Mental Health Services of Department of Human Services, who causes inquiry to be made); Fla. Stat. § 922.07 (1997)(Governor appoints commission of three psychiatrists when informed that a person under sentence of death may be insane), but see Fla.R.Crim.P. 3.811 (1997) supra; Mass. Ann. Laws ch. 279, § 62 (1998)(governor may respite execution if prisoner is insane as determined by examination by two psychiatrists designated by commissioner of mental health).
In Commonwealth v. Jermyn, 539 Pa. 371, 652 A.2d 821 (1995), we quoted the Supreme Court as concluding in Ford v. Wainwright, "that it was abhorrent to execute one 'whose mental illness prevents him from comprehending the reasons for the penalty or its implications.’ ” 539 Pa. at 374, 652 A.2d at 822, quoting 477 U.S. at 417, 106 S.Ct. at 2606. We held that the standard to be applied in determining whether a person is competent to be executed is whether he "comprehends the reason for the death penalty and its implications." 539 Pa. at 376, 652 A.2d at 824.
The court did not specifically advise Heidnik of his appellate rights or conduct a colloquy to determine whether Heidnik intended to waive his rights or if such waiver was knowing, voluntary and intelligent.
No request for leave to file this supplement was made.
The Bench Memorandum noted at page 2 that, "The decision of Judge Poserina of the Court of Common Pleas, along with his findings of fact and conclusions of law, were appealed to the Supreme Court of Pennsylvania. At the time of our instant Memorandum and Order, the Supreme Court of Pennsylvania had not yet ruled.” The circuit court opinion, after stating that the common pleas court had denied the stay, indicated, "An appeal to the Pennsylvania Supreme Court is pending.” Opinion at p. 5. Additionally, in its discussion of whether the common pleas court’s findings would be entitled to a presumption of correctness for federal habeas corpus purposes, the court wrote, "the findings by the state court are currently under review by the Pennsylvania Supreme Court. Under these circumstances, the presumption would not appear to be operative.” Opinion at 15, n. 7.
No request for “next friend” status was addressed to the common pleas court or plainly presented for decision in this Court. The issue was identified only in the context of the request for stay of execution, specifically in paragraph VII of the "Supplement to Application for Stay, etc.” presented to the Court on April 15. This Court is clearly unable to address that issue on the present record. We note, however, that if the CLEADA attorneys were instructed by their client not to file an appeal, there would appear to have been a conflict of interest preventing them from representing a person asserting that their client was incompetent to give them such instructions.
Our prothonotary has also received a "Request for Immediate Remand to the Court of Common Pleas in Light of the Decision of the United States Court of Appeals for the Third Circuit” from the CLEADA attorneys, which, apart from its caption, requests only that counsel be permitted until the close of business today to make a filing stating the "next friend’s” position as to the proper course of further proceedings in the Pennsylvania courts. The Commonwealth has also filed a "Motion to Vacate Stay and Answer to Next Friend’s Request for Immediate Remand to Court of Common Pleas.” Since there is nothing presently pending before this Court, the "Request for Immediate Remand, etc.” is dismissed as not ripe for adjudication. In light of our independent decision to vacate the stay, the Commonwealth's Motion is dismissed as moot.