Com. v. Hackett

• Decision Date: 09 August 1999
• Citation: 735 A.2d 688,558 Pa. 78
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Richard HACKETT, Appellant.
• Court: Pennsylvania Supreme Court

558 Pa. 78

735 A.2d 688

COMMONWEALTH of Pennsylvania, Appellee, v. Richard HACKETT, Appellant.

Supreme Court of Pennsylvania.

Submitted December 29, 1998.

Decided August 9, 1999.

Norris E. Gelman, Philadelphia, for R. Hackett.

Catherine Marshall, Philadelphia, Robert A, Graci, Harrisburg, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

NIGRO, Justice.

In this capital case, Appellant Richard Hackett appeals the order of the Court of Common Pleas of Philadelphia County, which denied his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. For the reasons discussed below, we affirm.

During the early morning of July 31, 1986, three men entered the basement of a home where they knew Gregory Ogrod and his girlfriend, Maureen Dunne, were sleeping. The three men attacked the sleeping couple by repeatedly stabbing and clubbing both of them. In the end, Dunne was stabbed to death, but Ogrod withstood the attack and managed to chase the assailants from the house.

The attack on Dunne and Ogrod was the culmination of a conspiracy to kill Ogrod headed by Appellant and Morris (Marvin) Spence. Spence's discontent with Ogrod stemmed from a soured drug-dealing relationship. Spence and Ogrod had been partners in dealing illegal drugs, but their relationship deteriorated after Spence stole money which Ogrod had given him to purchase drugs. When Ogrod demanded restitution, Spence refused. Appellant's dissatisfaction with Ogrod resulted from a contentious living arrangement. In the Spring of 1986, Appellant had moved into Ogrod's house at the invitation of Ogrod's brother. Ogrod objected to Appellant's presence at the house, which led to an ongoing dispute between Ogrod and Appellant.

On July 28, 1986, Spence and Appellant met with David Carter and attempted to enlist his help in killing Ogrod. During the meeting, Spence and Appellant offered Carter $5,000.00 to kill Ogrod and his girlfriend. After discussing a plan for the murders, Carter expressed his reluctance, complaining that he was being asked to kill two people for the price of one. Two days later, when Spence went to Carter's house to finalize the plans for the attack, he met two of Carter's friends, James Gray and Keith Barrett. As the details of the plot were discussed, Carter renounced his decision to participate. Aware of Carter's refusal to partake in the conspiracy, Gray and Barrett offered to assist in the killings.

During the early morning of July 31, 1986, Appellant and Spence met with Gray and Barrett. Together, the foursome drove to Ogrod's house in Appellant's truck, and, after their arrival, Spence, Barrett and Gray entered the house. Once inside, Spence and Barrett went into the kitchen and armed themselves with knives; Gray carried a crowbar which he had found in Appellant's truck. The three of them went into the basement, where Ogrod and Dunne were sleeping, and attacked Ogrod and Dunne by stabbing and beating them. Following the attack, Spence, Gray and Barrett ran from the house to meet Appellant, who was waiting for them in his truck, and the four men drove off. Although Ogrod survived the assault, Dunne died.

On July 14, 1988, following a trial by jury, Appellant was convicted of murder of the first degree, aggravated assault, possession of an instrument of crime and criminal conspiracy. In the penalty phase, the Commonwealth moved the trial record into evidence and argued that two aggravating circumstances existed, namely, that Appellant had conspired to pay another person to kill the victim and that Appellant created a grave risk to another during the killing of the victim. See 42 Pa.C.S. § 9711(d)(2) & (7). After finding that both aggravating circumstances existed and that no mitigating circumstances were present, the jury returned a sentencing verdict of death. On April 26, 1990, the trial court denied post-trial motions and imposed the sentence of death for the murder conviction as well as terms of imprisonment for the remaining convictions. On appeal, this Court unanimously affirmed Appellant's judgment of sentence. See Commonwealth v. Hackett, 534 Pa. 210, 627 A.2d 719 (1993)

.

On January 14, 1997, Appellant filed a petition for relief under the PCRA. By order dated November 13, 1997, the PCRA court denied Appellant's petition for relief. In his appeal to this Court, Appellant raises five claims, all of which allege that he was rendered ineffective assistance by his trial counsel.¹

To establish a claim of ineffective assistance of counsel under the PCRA, a defendant must show that (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999).²

In his first claim, Appellant appears to argue that trial counsel was ineffective for failing to raise in post-trial motions and on direct appeal the issue that the trial court violated the requirements of Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), by improperly limiting the voir dire of the second panel of venirepersons. This claim fails.

It is well settled that the scope of voir dire rests within the sound discretion of the trial court. Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1094 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1258, 143 L.Ed.2d 354 (1999); Commonwealth v. Marrero, 546 Pa. 596, 606, 687 A.2d 1102, 1107 (1996). The purpose of voir dire is to ensure the empanelling of a fair and impartial jury capable of following the instructions on the law as provided by the trial court. Karenbauer, 715 A.2d at 1094; Marrero, 546 Pa. at 606, 687 A.2d at 1107.

Appellant, a white male, contends that he was charged with a crime that was interracial because he was accused of conspiring with three African American men to kill two white people. Appellant maintains that since the crime was interracial, he was entitled to have the venirepersons questioned about their racial biases. Relying on Turner, Appellant argues that the trial court impermissibly limited the inquiry concerning racial prejudices to the following question:

Now, ladies and gentlemen of the jury panel, you already heard from me that a young white girl died as a result of this incident alleged to have taken place, and a young white man was injured. You will note, quite obviously, that three out of the four defendants are members of the black race. I therefore pose this question to all of you. Is there any among you that have any feelings against all the defendants individually or collectively resulting, therefore, in a fixed opinion as to their guilt or innocence individually or collectively because of the race or color of any of the defendants? If so, please raise your hand.

N.T., 6/24/88, at 410.

In Turner, the defendant was an African American who had been convicted and sentenced to death for the murder of a white victim. On appeal, the defendant argued that the trial court had improperly denied his request to ask the venirepersons about racial prejudices during voir dire. The United States Supreme Court agreed and held that "a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias." 476 U.S. at 36-37, 106 S.Ct. at 1688.

Contrary to Appellant's contention, the trial court in the instant matter did not violate the dictates of Turner. Here, unlike Turner, the trial court informed the venirepersons of the race of the victim and did not refuse to question prospective jurors about racial prejudices. Rather, as noted above, the trial court specifically asked the second panel of venirepersons whether they had any fixed opinions as to Appellant's guilt or innocence because of the race of any of the defendants. Appellant appears to contend, however, that by only asking this single question related to the issue of racial bias, the trial court impermissibly limited the scope of the voir dire. In Commonwealth v. Richardson, 504 Pa. 358, 473 A.2d 1361 (1984), this Court was presented with a similar claim. In Richardson, the defendant, an African American man, was charged with raping a white woman. At trial, the defendant requested that the trial court ask the venirepersons five specific questions during the voir dire, each of which was designed to uncover racial biases. The trial court refused, and instead, asked the prospective jurors the single question of whether the racial differences presented such a problem that it could interfere with their honest appraisal of the case and interfere with their ability to be completely fair to both the Commonwealth and the defendant. On appeal, the defendant claimed that the trial court erred by refusing to ask all five of the questions posed by him. This Court disagreed and held that "under the circumstances, where there are not factors present to infuse the case with an enhanced racial sensitivity, and racial differences were not a focus of evidence at trial, the one voir dire question posed by the trial court was sufficiently specific and probing to reveal prejudices which might have bearing upon the case." 504 Pa. at 364,473 A.2d at 1364.

In the instant case, the record demonstrates that the issue of race was neither raised at trial nor emphasized by the prosecutor. In fact, as noted by the trial court in Appellant's direct appeal, the only relevant color in this case was "green," "the color of money," because the victim was killed as a result of a dispute over illegal drugs and the alleged mishandling of funds. Trial Ct. Op., 4/26/90, at 21. Given these circumstances, we find that the trial court did not abuse its discretion by limiting the inquiry concerning racial prejudices to...