Commonwealth v. Hannibal, 705 CAP

• Decision Date: 22 November 2016
• Docket Number: No. 705 CAP,705 CAP
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Sheldon HANNIBAL, Appellant
• Court: Pennsylvania Supreme Court

156 A.3d 197

COMMONWEALTH of Pennsylvania, Appellee

v.Sheldon HANNIBAL, Appellant

No. 705 CAP

Supreme Court of Pennsylvania.

SUBMITTED: January 20, 2016

DECIDED: November 22, 2016

Shawn Nolan, Defender Association of Philadelphia, Alan J. Tauber, Philadelphia, PA, for Appellant.

Hugh J. Burns, Jr., Peter Carr, Barbara Rae Paul, Philadelphia District Attorney's Office, Philadelphia, PA, Amy Zapp, PA Office of Attorney General, Harrisburg, PA, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

Justice Dougherty delivers the Opinion of the Court, except with respect to Part VI. Justices Baer and Mundy join the opinion in full. Justices Todd and Wecht join the opinion, except with respect to the reasoning contained in Part VI, and Justice Todd files a concurring opinion in which Justice Wecht joins. Chief Justice Saylor files a dissenting opinion, joined by Justice Donohue.

OPINION

JUSTICE DOUGHERTY

Sheldon Hannibal appeals from the order of the Court of Common Pleas of Philadelphia County denying his petition for relief from his death sentence, filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 –9546, following an evidentiary hearing limited to one issue. For the reasons set forth below, we affirm.

We summarized the underlying facts in our opinion on direct appeal affirming appellant's sentence of death. Commonwealth v. Hannibal , 562 Pa. 132, 753 A.2d 1265 (2000). The facts pertinent to the current appeal are that on October 25, 1992, appellant and codefendant, Larry Gregory, following an argument with the victim, Peter LaCourt, about the authenticity of a gold chain, took the chain and pistol-whipped LaCourt. LaCourt attempted to flee but stopped when appellant threatened to shoot him. LaCourt dropped to his knees, put his hands behind his head and appellant shot him six times, killing him. Fifteen-year-old Tanesha Robinson witnessed the robbery and beating, heard the gunshots as she fled the scene, and later gave a statement to police implicating appellant and codefendant. She also testified at their preliminary hearings. On August 4, 1993, however, she and two of her female friends were murdered execution-style (via close-range gunshots to the head) in an apartment located in the same housing development where LaCourt was murdered.

Appellant and codefendant were charged with the murder of LaCourt and were tried together. At trial, two witnesses testified concerning a plot to murder Robinson to prevent her from testifying at trial. Terrence Richardson testified he was present when codefendant and his brother gave two other men a .357 revolver and paid them $2,000 to kill Robinson, directing them to "be fast about it" and "don't leave [any] witnesses." N.T. 3/3/94 at 73. James Buigi testified he shared a prison cell with appellant in the fall of 1993 and appellant confided to him he shot and killed LaCourt during a robbery. Appellant additionally confided to Buigi he told "his friends" he needed Robinson "out of the way" because she was "the only witness that can hurt me in the trial." N.T. 2/28/94 at 122. Appellant told Buigi "my boys are loyal to me. They took care of that for me." Id. Appellant explained to Buigi his boys "found [Robinson] and shot her," and they killed the other females in the apartment because "they [were] not going to leave two witnesses behind [.]" Id. at 123.

Appellant testified at trial he did not know LaCourt or remember where he was on the night LaCourt was murdered; he did not have an altercation with LaCourt; he did not take a chain from him; he did not own a gun or shoot LaCourt; he never shared a cell with Buigi and never discussed anything with him. Appellant also presented three character witnesses who testified to his reputation as a peaceful, law-abiding citizen. The witnesses were cross-examined regarding their knowledge of appellant's criminal record.

The jury convicted appellant and codefendant of first-degree murder. At the ensuing joint penalty phase proceedings, the guilt phase evidence was incorporated. Appellant testified and also presented the testimony of his aunt and his girlfriend who described him as patient, hard-working and a good father to his children. The jury found one statutory aggravating circumstance, 42 Pa.C.S. § 9711(d)(6) (killing committed during perpetration of felony), and no statutory mitigating circumstances, rejecting appellant's assertion of the applicability of the age and catch-all mitigators, 42 Pa.C.S. § 9711(e)(4), (e)(8), and thus, the jury sentenced appellant to death.¹

On appellant's direct appeal, which preceded Commonwealth v. Grant , 572 Pa. 48,813 A.2d 726 (2002), appellant was represented by new counsel, and this Court afforded appellant unitary review of claims of trial court error as well as claims of trial counsel's ineffectiveness during the guilt and penalty phases.² Ultimately, we affirmed the judgment of sentence. Relevant to the issues on this appeal, we rejected appellant's substantive claim of the denial of a fair trial based on the introduction of evidence linking him to the murder of Tanesha Robinson, finding her murder was part of the history of the case and was admissible to show appellant's consciousness of guilt. For the same reason, we rejected his derivative claim of trial counsel's ineffectiveness for failing to object to the evidence about Robinson's murder. We additionally rejected appellant's claim of counsel's ineffectiveness for failing to subpoena prison records, which allegedly would have shown Buigi and appellant had not been cellmates, because we determined appellant failed to show such records existed. We also determined the trial court did not err in its instruction to the jury regarding the element of specific intent to kill as it related to first-degree murder and accomplice liability. Hannibal , 753 A.2d at 1269–71. Finally, we dismissed appellant's claim of trial counsel's ineffectiveness for failing to "obtain psychiatric assistance at the penalty phase" because appellant failed to indicate "what a psychiatric witness would have stated if one had been called." Id. at 1272 n.11.

Appellant filed a timely pro se PCRA petition in 2001, which was assigned to former Judge Willis Berry, Jr. for disposition as the trial judge, the Honorable Eugene H. Clarke, Jr. (now deceased), had retired. Unfortunately, considerable delay ensued. An amended petition was filed by counsel in 2005, the Commonwealth filed a motion to dismiss in 2010, and a number of additional pleadings were filed by both sides. In all, Judge Berry oversaw appellant's PCRA litigation for about eleven years, but retired from the bench without scheduling a hearing or issuing a decision. In 2012, the matter was reassigned to the Honorable Glenn B. Bronson who reviewed the amended petition, which contained sixteen issues, the motion to dismiss and the supplemental pleadings. The court determined the claims were without merit and issued notice of its intent to dismiss the petition without a hearing, to which appellant filed a response and the Commonwealth filed an answer. The parties then agreed to an evidentiary hearing on the layered issue of trial counsel's alleged ineffectiveness for failing to present penalty phase mitigation evidence regarding appellant's cognitive functioning, and appellate counsel's failure to properly litigate the claim on appeal.

On July 18, 2014, Shawn Nolan, Esquire, Chief of the Capital Habeas Corpus Unit of the Federal Community Defender Office, entered his appearance for appellant and a three-day hearing was conducted shortly thereafter, on July 28, 29, and 31.

Appellant presented neuropsychologists Dr. Carol Armstrong and Dr. Barry Crown, both of whom offered expert testimony, based on their tests and examinations of appellant, that he suffered from organic brain damage, most likely originating in his early developmental period, resulting in cognitive dysfunction and disability. Moreover, both experts testified they reviewed school, work and forensic records existing at the time of appellant's trial which, in their opinions, raised red flags indicating a neuropsychological exam should have been performed. Among other things, the records revealed appellant, who lived in Trinidad until his early teenage years, was illiterate upon entering his first year of schooling in the United States (ninth-grade in Philadelphia), and read at only the third-grade level two years later.

In response, the Commonwealth presented neuropsychologist Dr. Thomas Swirsky–Sacchetti, who offered expert testimony that his testing and examination revealed appellant was of low-average intelligence but had no brain damage of any kind. Dr. Swirsky–Sacchetti criticized the opinions of appellant's experts based upon their methodologies and test interpretations, and specifically criticized their opinions that appellant's inability to read at an appropriate age level was indicative of brain damage or anything other than his low-average intelligence combined with a lack of education.

Trial counsel, Thomas Q. Ciccone, Esquire, was deceased when the hearing was conducted, and direct appeal counsel, David M. McGlaughlin, also did not testify.³ The PCRA court determined appellant's forensic, school and Job Corps work records were readily available to trial counsel who should have been reasonably alerted by the reports to pursue neuropsychological testing.⁴ However, the court concluded appellant failed to show prejudice. As will be discussed in more detail below, the PCRA court credited Dr. Swirsky–Sachetti's testimony opining appellant had no brain damage and did not deem credible the contrary testimony of Drs. Armstrong and Crown. The court dismissed the petition. Appellant appealed to this Court raising fourteen principal claims. The PCRA court prepared a Pa.R.A.P. 1925(a) opinion addressing the claims. The issues raised in appellant's brief to this Court correspond with the claims he raised in his Pa.R.A.P. 1925(b)...