Com. v. Ogrod

• Citation: 839 A.2d 294,576 Pa. 412
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Walter OGROD, Appellant.
• Decision Date: 30 December 2003
• Court: United States State Supreme Court of Pennsylvania

839 A.2d 294

576 Pa. 412

COMMONWEALTH of Pennsylvania, Appellee, v. Walter OGROD, Appellant.

Supreme Court of Pennsylvania.

Argued May 16, 2002.

Decided December 30, 2003.

J. Scott O'Keefe, Philadelphia, for Walter Ogrod.

Hugh J. Burns, Philadelphia, Lorie Karin Dakessian, Amy Zapp, Harrisburg, for Com. of PA.

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

OPINION

Justice NEWMAN.

Walter Ogrod (Appellant) appeals his convictions at his second trial for murder in the first degree,¹ and attempted involuntary deviate sexual intercourse,² as well as the imposition of the penalty of death by the Court of Common Pleas of Philadelphia County (trial court) for the July 12, 1988 sexual assault and killing of four-year-old Barbara Jean Horn (Barbara Jean).³ Our review of the conviction and sentence begins with a brief discussion of the October 1993 first trial of Appellant and the circumstances pursuant to which the trial court declared a mistrial. We then set forth the facts of the case as presented by the witnesses at the second trial in 1996. With that groundwork in place, we proceed to address the claims of error of Appellant.

Mistrial and Denial of Appellant's Double Jeopardy Claim

Judge Juanita Kidd Stout (Judge Stout) was the presiding judge of the first trial. Jury selection began on October 15, 1993. The trial itself took eight and a half days. Judge Stout charged the jury on November 2, 1993. After less than nine hours of deliberations, the jurors indicated to Judge Stout that they were deadlocked. Judge Stout instructed the jurors on their duty to consult with one another and to reexamine their opinions if convinced they were erroneous. Jury deliberations resumed. Once the jury left the courtroom, defense counsel requested a mistrial, which the judge denied: "not at this point.... It is not proper under the law to grant a mistrial at this point." N.T. 11/3/93 at 1125-1126. However, eventually the jury was unable to reach a unanimous verdict and the trial court declared a mistrial.

The trial court described the events leading to the mistrial as follows:

On November [3⁴] 1993 at 2:55 p.m., the jury sent a note to the Court indicating it was unable to reach a unanimous verdict. The Court advised the jury that it had been deliberating only 8 ½ hours after having heard testimony for 8 ½ days. The guidelines for deliberations were reread to them and the deliberations resumed at 2:59 p.m. The Appellant's attorney moved for a mistrial. The motion was denied. The jury continued to deliberate until 5 p.m. or thereabouts. On November [4⁵], 1993 at 10:35 a.m., the jury requested a review of the definition of reasonable doubt. That was given at 10:45 a.m. and the jury returned to deliberate. Between 10:45 a.m. and 2:15 p.m., screaming and table banging were audible in the hallway.

At 2:15 p.m., on one sheet of paper, the Court received the following two notes[:]

"Hon. Juanita K. Stout Court number 513 11/3/93. It has become apparent from the deliberations that the jury has been unable to reach a unanimous decision. Vote 11-1 respectfully submitted Charles Graham. Foreman."

"It has been said that there is NOTHING that can be said to convince or change the mind of the juror who does not agree. The juror has stated this and a unanimous verdict is not possible Charles T. Graham, Foreman."

The Court requested the Sheriff to bring the defendant to the Courtroom and notified counsel to return. During this brief interval, the jury foreman advised the Court crier that a verdict had been reached after all. The crier then advised the jury of the procedure for announcing the verdict and told the jurors that they might be polled.

After the defendant and attorneys had assembled, the jury was brought into the courtroom at 2:25 p.m. At that time, the following occurred:

COURT CRIER: Good Afternoon, your Honor, your Honor may I take the verdict, please?

THE COURT: You may.

COURT CRIER: Ladies and Gentlemen of the Jury, you have agreed upon a verdict?

THE JURY: Yes, we have.

COURT CRIER: Have all twelve agreed?

JUROR NUMBER 2: No.

COURT CRIER: On—.

SPECTATOR: Wait a minute.

JUROR NUMBER 2: I don't agree with the verdict.

THE COURT: If you do not agree with the verdict, I will have to declare a mistrial.

Opinion of Stout, J. at 1-3. The juror did not agree and, on November 4, 1993, the trial court declared a mistrial. N.T. 11/4/93, at 1135.

On November 12, 1993, Appellant filed a motion to bar retrial claiming a violation of the Double Jeopardy Clause of the United States Constitution. The trial court denied the motion on November 30, 1993.⁶ On December 7, 1994, the Superior Court affirmed the decision of the trial court.⁷ On June 21, 1995, this Court denied Appellant's petition for allowance of appeal. On January 16, 1996, the United States Supreme Court denied Appellant's petition for a writ of certiorari.⁸ On June 25, 1996, Appellant sought federal habeas corpus relief claiming that a retrial would violate federal constitutional protections against double jeopardy. On September 18, 1996, the United States District Court for the Eastern District of Pennsylvania denied the habeas petition.⁹

Second Trial

The second trial of Appellant before Judge Stout began on September 16, 1996. On October 8, 1996, after several days of trial, the jury found Appellant guilty of attempted involuntary deviate sexual intercourse and murder in the first degree. A penalty phase hearing ensued. At its conclusion, the jury found one aggravating circumstance¹⁰ and no mitigating circumstances and set the penalty at death. Appellant filed post-sentence motions, which were assigned to Senior Judge David N. Savitt (Judge Savitt) following the death of Judge Stout. On December 20, 1999, the trial court held an evidentiary hearing on Appellant's allegations of trial counsel ineffectiveness.¹¹ On May 25, 2000, Judge Savitt denied the post-sentence motions.

Statement of Facts

The record of the second trial established the following facts.¹² The first witness the Commonwealth called was Joanna Zablocky (Ms. Zablocky), who on July 12, 1988, the date the body of four-year-old Barbara Jean was discovered, lived at 1409 Saint Vincent Street with her father, mother and older sister. Notes of Testimony (hereinafter, "N.T.") 9/30/96 at 139-140. Ms. Zablocky testified that at 5:30 P.M., her mother told her that someone had left a box in the front of the house. Id. at 140-141. Because the trash had just been picked-up earlier that day, the father of Ms. Zablocky (Mr. Zablocky) went out to look at the box. After looking in the box, he yelled into the house that there was a baby in the box. Ms. Zablocky called 9-1-1. Id. at 141. Her father shouted, again saying that the baby was dead. Id. Ms. Zablocky testified that she told the 9-1-1 operator that there was a box in front of her house with a dead baby in it. Id. The Zablockys waited for police to arrive and Mr. Zablocky stood near the box to make sure that no one disturbed it. Id. Ms. Zablocky described the box as a television box and identified it in court. Id. at 145-146. At approximately 5:45 or 5:50 P.M., the Zablockys flagged-down a police officer, who stayed with the box until other officers arrived. Id. at 141. Ms. Zablocky later asked police if she could look in the box. An officer briefly lifted the lid. Ms. Zablocky told the jury that she saw a child's body on its side and a little head with a green trash bag on top. Id. at 148-149. She also identified the bag as similar to the one the prosecution marked as an exhibit. Id. at 148.

The Commonwealth then called Michael Massi (Mr. Massi), a sixty-eight year old man, who on July 12, 1988 was the sales manager of an automobile dealership. Id. at 156. Mr. Massi testified that on that day at approximately 5:00 or 5:30 P.M. he had stretched out in a chair and was looking from an office window and onto-Saint Vincent Street. Id. at 157. He said that he saw a man approximately twenty-five feet away carrying a television box. Id. at 158, 162. The man held the box in such a way that Mr. Massi could see printed on the box the words "color television, 13 inches." Mr. Massi identified the box the prosecution had marked as an exhibit, describing it as the box he saw the day the body of Barbara Jean was discovered. Id. at 157. Mr. Massi explained that he thought that the box was heavy because when the man "got on the other side of Saint Vincent Street, he laid the box down, so as to sort of catch your breath." Id. at 158. After carrying the box down the sidewalk in front of a church on Saint Vincent Street, the man then started to drag it by a plastic bag that was sticking out of the box. Id. at 158-161. Mr. Massi told the jury that he never saw the face of the man, that he only "saw the back of his head, and maybe a little profile of the right side, but that's about it." Id. at 166. He said that the man was Caucasian, with dark brown or black hair, and estimated that the man was in his early thirties, was between 5'6" and 5'9" in height and weighed approximately 170 pounds. Id. at 168-169. Mr. Massi could not identify anyone in the courtroom as the person that he saw. Id. at 168.

David Schectman (Mr. Schectman) was the next Commonwealth witness. N.T. 10/1/96 at 9. He testified that in 1988, he lived at 1429 Saint Vincent Street. Id. at 10. He explained that at 5:12 P.M., he was sitting on the tailgate of his Chevrolet station wagon reading a newspaper. His wife, Lorraine, was in the passenger seat. They were waiting for their children to return home in the camp van before leaving for Lorraine's doctor appointment. Id. at 10-11. Mr. Schectman testified that he saw a man near the church approach his house alternately carrying a 13-inch color television box and dragging it by a plastic bag that was inside the box. Id. at 11-14. Mr. Schectman identified the 13-inch color television box in court as the box he saw the man with on ...