Com. v. Hackett

Decision Date26 September 2008
Docket NumberNo. 492 CAP.,492 CAP.
Citation956 A.2d 978
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. Richard HACKETT, Appellee.
CourtPennsylvania Supreme Court

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

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

OPINION

Justice BAER.

This is a direct appeal from an order of the trial court, which granted Appellee Richard Hackett's second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and awarded him a new trial on the ground that the Commonwealth engaged in purposeful discrimination in the selection of the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).1 For the reasons that follow, we vacate the order of the trial court and remand the matter for disposition of a remaining question as to whether Appellee is entitled to relief pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

While the facts underlying Appellee's conviction of first degree murder are set forth in our opinion affirming his judgment of sentence on direct appeal, Commonwealth v. Hackett, 534 Pa. 210, 627 A.2d 719 (1993), a brief recitation thereof will facilitate an understanding of the issues raised herein.

Appellee's murder conviction arises from his involvement in a conspiracy with Marvin Spence, James Gray, and Keith Barrett to kill Gregory Ogrod and Ogrod's girlfriend, Maureen Dunne. The testimony presented at trial revealed that prior to the night of the murder, Spence and Appellee had unsuccessfully solicited David Carter to kill Ogrod and Dunne. On July 31, 1986, at approximately 1:45 a.m., Jeffrey Horoschak called Ogrod's house. Ogrod did not answer the telephone. Instead, Appellee answered and told Horoschak that Ogrod was asleep. Thereafter, at 3:30 a.m. that same morning, Edward May drove Spence, Gray, and Barrett to a location one block from Ogrod's house. Approximately thirty minutes later, Appellee, who was already at the location, served as lookout while Spence, Barrett, and Gray attacked Dunne and Ogrod with knives and a crowbar while they slept in the basement of their home. Dunne was stabbed in the heart and died almost instantly. Ogrod, however, survived the attack and eventually identified Spence as one of the perpetrators.

About one hour after the murder, Appellee called his girlfriend, Wendi Rosenblum, and told her Ogrod was dead. Appellee directed Rosenblum to tell police that he had stayed at Rosenblum's apartment all night. While still covered in blood, Spence confessed to Carter, who was apparently with him after the incident, that he had committed murder. A week later, Appellee's girlfriend observed Appellee dispose of a crowbar.

Appellee, Spence, Gray, and Barrett were tried together in a jury trial in 1988. The Commonwealth presented Ogrod's identification of Spence as one of the attackers as well as the testimony of Horoschak, Rosenblum, Carter, and May. During jury selection, Spence, who is African-American, raised a claim under Batson, alleging that the prosecutor, Jack McMahon, improperly struck black jurors. Appellee, who is white, raised no such claim. Following the jury trial, all four defendants were convicted of murder.2 On July 17, 1988, Appellee and Spence were sentenced to death and Gray and Barrett were sentenced to life imprisonment. Post-trial motions were denied. Appellee filed a direct appeal in our Court, but did not raise a Batson claim. We affirmed Appellee's judgment of sentence on June 30, 1993. Commonwealth v. Hackett, supra.3

For purposes of the PCRA, Appellee's judgment of sentence became final in September of 1993, when the time for seeking certiorari from the United States Supreme Court expired.4 See 42 Pa.C.S. § 9545(b)(3) (providing that a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review). Generally, a PCRA petition must be filed within one year of the date the judgment becomes final. 42 Pa.C.S. § 9545(b)(1).5

Although Appellee's first PCRA petition was not filed until January 14, 1997, well after Appellee's sentence became final in 1993, it was deemed to be timely filed because his judgment of sentence became final prior to the 1995 amendments to the PCRA, and his petition was filed within one year of the effective date of such amendments. See Section 3(1) of the Act (Spec.Sess. No. 1), Nov. 17, 1995, P.L. 1118, No. 32. (providing that a petitioner whose judgment became final before the effective date of the amendments would be deemed to have filed a timely petition under the Act only if the petitioner's first petition was filed within one year of the amendments' effective date). In this first PCRA petition, Appellee did not raise a Batson claim, but rather asserted five claims of ineffective assistance of counsel. The PCRA court denied relief and this Court affirmed. Commonwealth v. Hackett, 558 Pa. 78, 735 A.2d 688 (1999).6

Appellee subsequently filed a petition for a writ of habeas corpus in federal court.7 On August 15, 2002, while the federal habeas corpus petition was pending, Petitioner filed a second PCRA petition, raising a single claim based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that execution of mentally retarded criminals violates the Eighth Amendment's prohibition against cruel and unusual punishment. The PCRA court dismissed Appellee's second PCRA petition without a hearing because Appellee's federal habeas corpus petition was pending. Appellee appealed to our Court, requesting a remand to the PCRA court on his Atkins claim. The Commonwealth did not oppose Appellee's request. On October 21, 2003, this Court reversed the PCRA court's order and remanded for further PCRA proceedings, citing Commonwealth v. Whitney, 572 Pa. 468, 817 A.2d 473 (2003) (holding that the pendency of a petitioner's federal habeas corpus petition does not divest a trial court of jurisdiction to address a PCRA petition). Commonwealth v. Hackett, 575 Pa. 49, 834 A.2d 514 (2003). As discussed infra at 17, the record is unclear as to whether proceedings were thereafter conducted on Appellee's Atkins claim.

Significantly, on May 3, 2004, Appellee filed a supplemental PCRA petition, asserting a claim of racially discriminatory jury selection under Batson. Appellee's Batson claim was based on the trial court's March 22, 2004 ruling in codefendant Spence's PCRA matter, Commonwealth v. Spence, CP# 8609-3311, in which Spence was granted a new trial due to Prosecutor McMahon's purposeful discrimination in the jury selection process.8 Spence's Batson claim had, in turn, been based upon a videotaped training session conducted by the Philadelphia Office of District Attorney and presented by Prosecutor McMahon, which had been released to the public by the Office of District Attorney in April of 1997. The videotape is of a lecture given by Prosecutor McMahon, wherein he advocates the use of various racial and gender stereotypes to discriminate in the selection of jurors. See Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 729 (2000) (explaining the significance, content, and release date of the McMahon videotape).

Appellee contended that his supplemental PCRA petition fell under the exception to the PCRA's one-year timeliness requirement set forth at 42 Pa.C.S. § 9545(b)(1)(ii), which applies when "the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence." Acknowledging that a petition raising an exception to the one-year timeliness requirement must "be filed within sixty days of the date the claim could have been presented" pursuant to 42 Pa.C.S. § 9545(b)(2), Appellee maintained that his supplemental petition was timely filed within sixty days of the trial court's ruling in the Spence PCRA matter.9

Appellee also alleged in his supplemental PCRA petition that he was entitled to relief on his Batson claim under the state habeas corpus statute, 42 Pa.C.S. § 6501 et seq. He further contended that the grant of relief to Spence while denying him relief for the same constitutional violation would itself constitute a separate and distinct deprivation of due process and equal protection of the law. Finally, Appellee asserted that this Court should exercise its statutory authority under 42 Pa.C.S. § 9711(h)(3)(i), to vacate his death sentence on the grounds that it was arbitrarily imposed.

On October 5, 2005, without holding an evidentiary hearing, the PCRA court granted Appellee a new trial on the Batson claim. The court rejected the Commonwealth's contention that it lacked jurisdiction over Appellee's PCRA petition because it was untimely filed. The court reasoned that the "trigger-date" for the sixty-day provision in Section 9545(b)(2) was March 22, 2004, when it placed on the record its finding in Spence that the Commonwealth violated Batson by engaging in purposeful discrimination in striking a black juror. The court acknowledged that its ruling in Spence was based on the training videotape made by Prosecutor McMahon who had tried the case against Spence and Appellee. Nevertheless, it rejected the Commonwealth's argument that it was the discovery of the McMahon tape and not the court's ruling in Spence that constituted the "facts" supporting application of Section 9545(b)(1)(ii)'s exception to the one-year PCRA timeliness requirement. The PCRA court stated that "[i]t would be patently unjust to deny [Appellee] equal protection under the Pennsylvania and U.S. Constitutions on the basis that he did not share his codefendant's skin color, especially when...

To continue reading

Request your trial
109 cases
  • Commonwealth v. Masker
    • United States
    • Pennsylvania Superior Court
    • December 15, 2011
    ...requirements are to be broadly construed.” Commonwealth v. Burkett, 5 A.3d 1260, 1274 (Pa.Super.2010); see also Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008); Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). More......
  • Commonwealth v. Simpson
    • United States
    • Pennsylvania Supreme Court
    • March 26, 2013
    ...trial counsel was ineffective for failing to contest the above errors is cognizable under the PCRA. See Commonwealth v. Hackett, 598 Pa. 350, 364 n. 15, 956 A.2d 978, 986 n. 15 (2008). With respect to the McMahon contention, we have repeatedly emphasized that the McMahon training tape does ......
  • Commonwealth v. Sepulveda
    • United States
    • Pennsylvania Supreme Court
    • November 28, 2012
    ...v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1170 (2009) (Castille, C.J., concurring) (quoting Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978, 991 (2008) (Castille, C.J., concurring)). Some members of the Court have criticized the Spence requirement, indicating a preference to eliminate it al......
  • Commonwealth v. Robinson
    • United States
    • Pennsylvania Supreme Court
    • December 14, 2018
    ...triggers the running of the sixty-day clock for filing a facially untimely PCRA petition. Id. at 6-7; see Commonwealth v. Hackett , 598 Pa. 350, 956 A.2d 978, 984 (2008). Further, because counsel represented Robinson at the time, the PCRA court concluded that Robinson was presumed to have b......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT