Commonwealth v. Hackett

626 Pa. 567

99 A.3d 11

COMMONWEALTH of Pennsylvania, Appellant

v.Richard HACKETT, Appellee.

No. 675 CAP

Supreme Court of Pennsylvania.

Submitted Aug. 29, 2013.

Decided Aug. 18, 2014.

Hugh J. Burns, Jr., Esq., Kristen Ann McDonald, Esq., Philadelphia District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.

Norris E. Gelman, Esq., Philadelphia, for Richard D. Hackett.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION

Justice STEVENS.

Following our remand in this capital case, the Commonwealth appeals the order of the Court of Common Pleas of Philadelphia County granting Appellee Richard Hackett's petition pursuant to the Post Conviction Relief Act (PCRA).¹ Upon determining that Appellee has proven that he is “ mentally retarded” as defined by this Court in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005), and thus, is exempt from execution in accordance with the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the PCRA court set aside Appellee's death sentence. As the PCRA court made findings which are not supported by substantial evidence of record and made an error of law by improperly equating borderline intellectual functioning with mental retardation (intellectual disability),² we reverse the PCRA court's order vacating Appellee's death sentence and dismiss his petition for collateral relief.

I. FACTS AND PROCEDURAL HISTORY

The Commonwealth charged Appellee with first-degree murder, conspiracy, and related offenses and notified him of its intent to seek the death penalty in connection with the 1986 death of sixteen-year old Maureen Dunne, who was brutally stabbed while she lay sleeping in bed with her boyfriend, Gregory Ogrod.³ At Appellee's 1988 trial, the Commonwealth presented evidence that Appellee orchestrated a conspiracy to kill the victims with Marvin Spence, James Gray, and Keith Barrett. In the early morning hours of July 31, 1986, three men entered Ogrod's home and repeatedly stabbed the couple and clubbed them with crowbars. Despite this unforeseen attack, Ogrod got up and fought off his assailants. Nevertheless, Dunne died from a stab wound to the heart. As the perpetrators fled, Ogrod recognized Spence as one of his attackers. Appellee, who lived in Ogrod's home, knew Ogrod and Dunne were sleeping in the basement and was the only person, aside from Ogrod and his brother, who had a key to the home.

Although evidence showed Appellee and Spence directed the conspiracy, the men wanted Ogrod killed for different reasons. Appellee's aversion towards Ogrod developed in the spring of 1986 after Ogrod's brother invited Appellee to live in the home he and Ogrod shared. Even though Appellee managed to live there rent free and stored equipment for his landscaping and snow removal business in Ogrod's garage, Appellee did not get along with Ogrod. When Ogrod asked Appellee to move out in July 1986, Appellee threatened to throw Ogrod out of his own home if he did not “cool out.” Several days later, Appellee moved all of Ogrod's belongings from his bedroom to the basement without his permission. In contrast, Spence wanted Ogrod killed as a result of a drug-related dispute. Once Appellee and Spence discovered their shared hatred for Ogrod, they worked together to bring their plan to have Ogrod killed to fruition.

Appellee initially sought to hire an assassin to murder Ogrod. Appellee first contacted Edgar Torres to find a hitman “to bump someone off for money.” When Torres asserted this task would cost him considerable money, Appellee assured Torres he would pay. Appellee subsequently gave Torres photographs of the victims and met with alleged assassins. Eventually, Torres told Appellee he could not find an individual for the job and refused to participate in Appellee's plan. Appellee and Spence offered another potential hitman named David Carter $5,000 to kill Ogrod and Dunne. While Carter initially agreed to this plan, Appellee and Spence's contract with Carter fell through as the men could not agree on the manner in which Carter would kill the victims.

At trial, several witnesses connected Appellee to the attack on Ogrod and Dunne, which occurred at 4:00 a.m. on July 31, 1986. Jeffrey Horoschak stated that when he called Ogrod's home at 1:45 a.m. that morning, Appellee told him Ogrod was asleep. Edward May testified that at 3:30 a.m., he gave a ride to Spence, Barrett, and Gray to a location near Ogrod's home, where the men met with a fourth individual who resembled Appellee and drove a truck similar to the one Appellee owned. Appellee's girlfriend, Wendy Rosenblum, testified that, at 5:00 a.m., Appellee called to tell her Ogrod was dead and came to her apartment through the basement, visibly shaking and sweating.

Appellee's subsequent conduct suggested he had facilitated the attack. Rosenblum claimed Appellee asked her to tell police he had been at her apartment all night and ordered her to obtain and destroy the photographs of the victims he had given to Torres to identify the individuals he wanted killed.

Rosenblum stated that, a week after the murders occurred, she saw Appellee take a crowbar out of the basement of her apartment, conceal it in his pants, and throw it in a nearby dumpster.

At the conclusion of the trial, the jury convicted Appellee of murder, conspiracy, aggravated assault, and possession of an instrument of crime. At the penalty hearing, the jury found two aggravating circumstances as Appellee conspired to pay another person to kill the victims and created a grave risk to Ogrod during the attack. See 42 Pa.C.S. § 9711(d)(2),(5). Finding no mitigating circumstances, the jury sentenced Appellee to death on July 17, 1988, which this Court affirmed on June 30, 1993. Commonwealth v. Hackett, 534 Pa. 210, 226, 627 A.2d 719, 727 (1993). Appellee filed a PCRA petition on January 14, 1997. After the PCRA court denied the petition, this Court affirmed, and the United States Supreme Court denied certiorari. Commonwealth v. Hackett, 558 Pa. 78, 735 A.2d 688 (1999) ; Hackett v. Pennsylvania, 528 U.S. 1163, 120 S.Ct. 1178, 145 L.Ed.2d 1086 (2000).

Appellee subsequently filed a habeas corpus petition in federal court.⁴ While this petition was pending, Appellee filed his second PCRA petition, seeking relief from his execution pursuant to Atkins, in which U.S. Supreme Court concluded that the execution of intellectually disabled individuals constitutes cruel and unusual punishment under the Eighth Amendment.⁵ The PCRA Court dismissed Appellee's petition as it felt it could not resolve Appellee's claims while his federal habeas petition was pending. This Court reversed the PCRA court's decision and remanded for further proceedings pursuant to Commonwealth v. Whitney, 572 Pa. 468, 817 A.2d 473 (2003), in which this Court held a trial court has jurisdiction to address a PCRA petition during the pendency of a petitioner's federal habeas proceedings.

On May 3, 2004, Appellee filed a supplemental PCRA petition to raise a claim pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) after his co-defendant Spence was granted a new trial as a result of the prosecution's discrimination in jury selection. The PCRA judge, Willis Berry, Jr., granted relief on the Batson claim and dismissed the Atkins claim as premature. However, this Court reversed the PCRA court's decision as Appellee's Batson claim was untimely filed and remanded for further proceedings pursuant to Atkins. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008).

Upon remand, Judge Berry held several hearings on Appellee's Atkins claim from May to November 2011. The first witness Appellee chose to call was Ms. Judy Pezola, who taught Appellee at the Ashbourne School for children with special needs in her first year of teaching in 1974 after being certified in special education. Remembering back thirty years, Ms. Pezola recalled that ten-year-old Appellee worked at a first or second grade level and “needed structure and individualized attention to stay focused on his assignments and to work independently.” As Appellee was labeled “brain injured,” Ms. Pezola claimed “as far as [she] knew, kids who were labeled brain injured were educably mentally retarded.” N.T., Atkins Hearing, 5/11/11, at 9–10, 15, 22; Pezola Aff. at 1–2.

On cross-examination, Ms. Pezola admitted Appellee was not labeled mentally retarded and conceded she was “not an expert” when asked to define the terms “brain-injured ” and “mentally retarded.” Although Ms. Pezola maintained all her students were mentally retarded, she agreed the Ashbourne School accepted children with learning disabilities and emotional issues. When confronted with a report in which she indicated Appellee was “very capable of attending to a task until completion” and “able to structure his time well when working independently,” Ms. Pezola claimed she wrote reports in a positive light. In other reports, she stated Appellee “takes great pride in helping other children read” and “acquires new math concepts easily if he's provided with the opportunity to practice and review the material.” When asked about developmental delays Appellee claimed to have, Ms. Pezola denied Appellee had issues tying his shoes or going to the bathroom. N.T., Atkins Hearing, 5/11/11, at 22–24, 29–30, 32, 35–36, 42.

Next, Appellee presented the testimony of four mental health experts. Appellee's first expert, Dr. Barry Crown, a neuropsychologist practicing clinical and forensic psychology, opined that Appellee fits within the category of “mild mental retardation.” Dr. Crown gave the Wexler adult intelligence scale to Appellee in 2009 after this Court remanded the case for an Atkins hearing more than seven years after Appellee filed his petition. Recognizing individuals with mild mental retardation typically have scores between 50 and 70, Dr. Crown reported Appellee's I.Q. score to...