Com. v. Hackett

• Decision Date: 30 June 1993
• Citation: 627 A.2d 719,534 Pa. 210
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Richard HACKETT, Appellant.
• Court: Pennsylvania Supreme Court

Page 719

627 A.2d 719

534 Pa. 210

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

Supreme Court of Pennsylvania.

Argued Oct. 20, 1992.

Decided June 30, 1993.

[534 Pa. 214] Thomas A. Bergstrom, Philadelphia, for appellant.

Ronald Eisenberg, Deputy Dist. Atty., Catherine Marshall, Chief, Appeals Div., Hugh Burns, Asst. Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

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

OPINION OF THE COURT

FLAHERTY, Justice.

Following a trial by jury in the Court of Common Pleas of Philadelphia County, the appellant, Richard Hackett, was convicted of murder of the first degree, aggravated assault, possession of an instrument of crime and criminal conspiracy. On April 26, 1990, a sentence of death was imposed with respect to the murder conviction and terms of imprisonment were imposed for the other offenses. The present direct appeal ensued. We affirm.

Hackett's convictions arose as the result of a conspiracy which he led for the primary purpose of killing Gregory Ogrod. The evidence presented at trial established that, at 3:30 a.m. on July 31, 1986, three men armed with knives and a crowbar entered the basement of a home where they knew Gregory Ogrod and Maureen Dunne were sleeping. The men attacked the sleeping couple, repeatedly stabbing and clubbing them both. Maureen Dunne was stabbed to death in the heart; however, Ogrod managed to get up and struggle against the assassins, who fled at his display of resistance. As Ogrod watched the intruders running down his street, he recognized one of them as Marvin Spence. Spence was one of only a small number of people who knew Ogrod and Maureen Dunne would be found sleeping in the basement that night. Aside from Ogrod and his brother, only Hackett had a key to the front door of Ogrod's house.

This assault was the culmination of a conspiracy headed by Hackett and Spence, who were friends and wanted Ogrod killed. Hackett's antipathy toward Ogrod resulted from a living arrangement that went bad. Hackett moved into Ogrod's house in the spring of 1986 at the invitation of Ogrod's brother, who worked for Hackett in Hackett's landscaping business. Hackett did not get along with Ogrod and, in July 1986, Ogrod told him to leave. Hackett responded that he would throw Ogrod out of his own house if he failed to "cool out." A few days later, Ogrod returned home and found that Hackett had removed Ogrod's effects from Ogrod's upstairs bedroom to the basement and had taken Ogrod's refrigerator.

Spence's discontent with Ogrod grew out of a soured drug-dealing relationship. Spence had been Ogrod's partner in dealing illegal drugs, but their business relationship began to unravel when Spence began stealing money Ogrod had given him to buy drugs for resale. When Ogrod demanded restitution, Spence refused. The two men argued constantly for about a month, during which time Spence threatened to kill Ogrod.

By the end of July, 1986, Hackett had made statements that he wanted harm to come to Ogrod. On July 7, 1986, Hackett had told Officer Anthony Daulerio that Ogrod was a "bad guy" who owed him money, that he wanted to "get" Ogrod but that Ogrod had "biker friends," and that Hackett was going to "get somebody to get" Ogrod. Hackett also had told his office receptionist, Heidi Guhl, who knew the people involved, that if Ogrod did not "watch himself, he was going to get hurt real bad." Ms. Guhl was concerned because Hackett had a paper on his desk with the phone number of Edgar Torres, a supposed middleman to hit-men, and with the address of Maureen Dunne, whom she knew, and who was always referred to by Hackett as "a bitch." In addition, on July 17, 1986, Ms. Arlene Horoschak spoke by phone with Hackett about her son, Jeffrey Horoschak, who was Ogrod's friend. Hackett told her to tell Jeffrey not to hang around Ogrod because "there's a contract out on Greg's life and anybody who's with him will be killed too."

Further, Hackett had asked Edgar Torres in the spring of 1986 if he could help Hackett find an assassin to "bump someone off for money," and assured Torres that he had money to pay. Hackett gave Torres pictures of Ogrod and Maureen Dunne and even met with Torres and a supposed assassin, a friend of Torres known only as "Ant." Finally, Torres admitted that he could not find any hit men, and told Hackett he was "giving it up."

By the end of July, 1986, Spence had made statements to Hackett's girlfriend, Wendi Rosenblum, and to David Carter that he wanted harm to come to Ogrod. In mid-July, Spence told Wendi Rosenblum that he was going to kill Ogrod and that, if Maureen Dunne got in the way, he was going to kill her too.

On July 28, 1986, Spence offered David Carter a "hit job." Spence showed him Ogrod's home and then took him to meet with Hackett who offered Carter $5,000 to kill Ogrod and also a girl, a policeman's daughter (i.e., Maureen Dunne). Carter was reluctant and complained that since he would have to kill any potential witnesses, he was being asked to kill two people for the price of one. Hackett responded, "if you got to kill the bitch, kill the bitch," but offered no additional money. Carter then instructed "give me half now and half when I finish," but the conspirators had no money on hand, and instead gave Carter a down payment of a VCR. When Carter and Spence met on July 30, 1986, to discuss how an attack on the proposed victims should take place, Carter disagreed with the proposed attack and announced that he was "out of it" and went to bed.

The presence and involvement of Hackett and Spence at the scene of the attack was evidenced by testimony of Jeffrey Horoschak, Wendi Rosenblum and David Carter. Jeffrey Horoschak testified that when he called Ogrod's house at 1:45 a.m. on July 31, 1986, two hours before the murder, Hackett answered and told him Ogrod was asleep. At approximately 5 a.m. the same day, Hackett called his girlfriend, Wendi Rosenblum, at her apartment, and told her "Greg [Ogrod] is dead." Shortly thereafter, he arrived, sweating and shaking, at her apartment by coming through the basement of the building. He told Rosenblum to say to the police that he had been at her apartment all night. The next morning, Hackett asked Rosenblum to go to Torres, get the photographs he had given Torres, and throw them away. Approximately one week later, Rosenblum saw Hackett take a crowbar from her basement and conceal it in his pants. Later, Hackett threw the crowbar in a dumpster next to a convenience store.

Spence's involvement was shown by testimony from Carter. At 7 a.m. on July 31, 1986, Spence and co-conspirator James Gray, visited Carter and told him, "It's done ... We did it." Spence, obviously pleased, explained that, after arming themselves with knives and a crowbar and creeping up upon the sleeping victims, they just "hacked and stabbed whoever was down there." They left when "the white boy [Ogrod] jumped up" and ran at them. Spence was covered with blood as he gave this account to Carter.

Carter's testimony was corroborated by Edward May who testified that, at approximately 3:30 a.m. on July 31, 1986, he encountered co-conspirator Keith Barrett. Barrett arranged for May to give Barrett and his two friends, Spence and Gray, a ride to a location that was one block from Ogrod's house. There they met another man, similar in appearance to Hackett, with a pickup truck similar to that owned by Hackett. The murder occurred about one-half hour later, at approximately 4 a.m Hackett was found guilty by a jury of murder of the first degree, ¹ aggravated assault, possession of an instrument of crime, and criminal conspiracy. As to the murder charge, the Commonwealth argued two aggravating circumstances: that Hackett had conspired to pay another person to kill the victim; ² and, that Hackett had created a grave risk to another during the killing of the victim. ³ The jury found the two aggravating and no mitigating circumstances, and returned a sentencing verdict of death. Following the denial of a motion for a new trial, this direct appeal followed.

Although Hackett does not allege that the evidence is insufficient to sustain the verdict against him, this Court is required in capital cases to review the sufficiency of the evidence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). 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, 567, 574 A.2d 590, 592 (1990). Viewed in accordance with that standard, the evidence presented at trial as reflected above overwhelmingly established Hackett's guilt. We conclude that there is sufficient evidence to sustain the verdict against Hackett.

Hackett first argues that the trial court erred in refusing to grant a new trial under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because the prosecutor's opening statement referred to facts allegedly proven only by the improperly redacted post-arrest statements of Hackett's conspirators and because the prosecutor improperly used hearsay. In Bruton, the Supreme Court held that the introduction of statements of a co-conspirator, made after the conspiracy had ended and not falling within a traditional hearsay exception, violated the accused's constitutional right to confront witnesses against him. The Bruton Court emphasized that the inquiry was whether the prosecutor's remarks in the context of the remaining evidence against the accused lent "substantial, perhaps critical weight" to the prosecutor's case. Bruton, 391 U.S. at 128, 88 S.Ct. at 1624. As a result of Bruton, the practice of redaction, the editing of a co-defendant's statement to remove all...