COMMONWEALTH оf Pennsylvania, Appellee, v. Sheldon HANNIBAL, Appellant.
Supreme Court of Pennsylvania.
June 20, 2000.
Reargument Denied Sept. 1, 2000.
753 A.2d 1265
Argued Oct. 20, 1997.
Catherine Marshall, Mary L. Porto, Philadelphia, for Com.
Robert A. Graci, Harrisburg, for Attorney General‘s Office.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
FLAHERTY, Chief Justice.
This is an automatic direct appeal from the judgment of sentence of death imposed on appellant, Sheldon Hannibal, for first degree murder by the Court of Common Pleas of Philadelphia County.1,2
Appellant was charged in connection with the killing of Peter LaCourt. Following a jury trial, appellant was found guilty of criminal homicide (first degree murder);3 criminal conspiracy;4 and possessing instruments of crime.5 Appellаnt was tried jointly with his co-defendant, Larry Gregory.6
At trial, the evidence established that in the early morning hours of October 25, 1992, Peter LaCourt and his friend, Barbara Halley, encountered appellant and Tanesha Robinson, who were sitting in a stairway at the Cambridge Mall housing project. LaCourt tried to sell appellant a gold chain. After looking at the chain, appellant started an argument with LaCourt concerning whether the chain was genuine. Appellant refused to return the chain to LaCourt, pulled out a gun, and began to beat LaCourt with it. Appellant then knocked on the door of Larry Gregory, who joined in the beating, using
A Philadelphia Housing Authority police officer found LaCourt lying on the stairway and observed gunshot wounds to his head and back. Police found eleven 9 mm shell casings at the crime scene. Portions of the gold chain were also recovered from the stairway.
An autopsy revealed that LaCourt had suffered blunt force trauma injuries to the right front and top of his head, as well as injuries from falling. Six bullets struck LaCourt‘s body; two hit him from the front, resulting in a perforated gunshot wound of the lower left arm and a grazing gunshot wound to his fingers which were characterized as defensive wounds. The remaining four bullets struck LaCourt as he lay on the floor. The cause of death was ruled to be severance of LaCourt‘s brain stem by one of the bullets which struck him.
Ms. Robinson subsequently gave statements to police concerning the murder and testified on behalf of the Commonwealth at the preliminary hearings regarding appellant and Gregory. Following that testimony, she and two of her female friends were killed in Ms. Robinson‘s apartment in the presence of a six-month-old baby.
Appellant testified at trial that he did not know where he was on the night LaCourt was killed. Appellant further testified that he did not have an altercation with LaCourt; that he did not take LaCourt‘s chain; that he did not have a gun; and that he did not shoot LaCourt.
After the penalty phase hearing, the jury returned a sentence of death on appellаnt‘s first degree murder conviction. The jury concluded that there was one aggravating circumstance7 and no mitigating circumstances.8
In Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 233-34 (1999) we held:
To sustain a conviction for first degree murder, the Commonwealth must prove that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the accused did the killing, and that the killing was done with deliberation. It is the specific intent to kill which distinguishes murder in the first degree from lesser grades of murder. We have held that the use of a deadly weapon on a vital part of a human body is sufficient to establish the specific intent to kill. Finally, the Commonwealth can prove the specific intent to kill through circumstаntial evidence.
The evidence presented at trial was that appellant and Greggory beat and shot LaCourt and robbed him of a gold chain. Two female witnesses fled the beating. Robinson heard shots seconds after she left the scene of the beating, where appellant and Greggory were pistol whipping LaCourt. Robinson ran to her cousin‘s apartment on the sixth floor, where she looked from a window and saw appellant and Greggory fleeing in a gray car moments after the shooting. Two other witnesses testified concerning a plot to murder Robinson in order to prevent her from testifying at trial. Terrance Richardson testified that he was present when he heard Greggory and his brother give two other men a .357 revolver and $2,000 in cash and the directions tо “be fast about it” and to “leave no witnesses.” The next day fifteen year old Robinson and two of Robinson‘s friends were shot to death in Robinson‘s apartment. James Buigi, a cellmate of appellant, testified that appellant told him that he had ordered a “couple
Appellant contends that the trial court‘s instruction to the jury violated this court‘s holding in Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994). Specifically, appellant submits that the trial court erroneously instructed the jury regarding the element of specific intent by stating that a defendant could be found guilty of first degree murdеr where either he, his accomplice or co-conspirator possessed the requisite specific intent.
The standard by which this court reviews a challenge to a jury instruction is as follows:
When evaluating jury instructions the charge must be read as a whole to determine whether it was fair or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.
* * * *
We will not rigidly inspect a jury charge, finding reversible error for every technical inaccuracy, but rather evaluate
In Huffman, we addressed the propriety of the trial court‘s instruction on the issue of accomplice liability in a first degree murder case. That instruction provided as follows:
[I]n order to find a Defendant guilty of murder in the first degree, you must find that the Defendant caused the death of another person, or that an accomplice or co-conspirator caused the death of another person. That is, you must find that the Defendant‘s act or the act of an accomplice or co-conspirator is the legal cause of death of [the victim], and thereafter you must determine if the killing was intentional. Huffman, 638 A.2d at 962.
This court found the charge in Huffman to be patently erroneous because it allowed the jury to reach a first degree murder verdict without a finding that the accomplice/appellant himself possessed the requisite specific intent to kill. We stated:
[t]o determine the kind of homicide of which the accomplice is guilty, it is necessary to look to his state of mind; the requisite mental state must be proved beyond a reasonable doubt to be one which the accomplice harbored and cannot depend upon proof of the intent to kill only in the principal. Huffman, 638 A.2d at 962 (emphasis in original) (quoting Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931, 935 (1982)).
We recently reaffirmed the this critical rule of law in Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456 (1998), cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 (1999) noting specifically that first degree murder is distinguished from all other degrees of murder by the existence of a specific premeditated intent to kill that is harbored by the accused. Before a conviction for first degree murder can be sustained, it must be shown that the accused possessed a fully formed intent to take a life. Id.
You may find a defendant guilty of a crime without finding that he personally engaged in conduct required for committing that crime. A defendant is guilty of a crime if he is an accomplice of another person who commits that crime. A defendant does not become an accomplice merely by being present at the scene or knowing about the crime. He is an accomplice if with the intent of promotion [sic] or facilitating a commission of the crime he encourages, requests, solicits or commands the other person to commit it or he aids, agrees to aid or attempts to aid the other person in planning or committing it.
In considering accomplice, the least degree of concert or collusion is sufficient to sustain a finding of responsibility as аn accomplice.
(N.T. 3/9/94 (Vol.11) at 132-133). The court then instructed on first degree murder stating the following:
First degree murder is murder in which the killer has the specific intent to kill. You may find a defendant guilty of first degree murder if you are satisfied of the following three elements:
That he, his accomplice or co-conspirator killed the deceased.
Two, that LaCourt is dead.
And three, that the defendant, his accomplice or co-conspirator did so with the specific intent to kill and with malice.
(N.T. 3/9/94 (Vol.11) at 135-36). Immediately thereafter, the trial court provided the following definition of specific intent:
A person has the specific intent to kill if he has a fully formed intent to kill and is conscious of his own intention. As a definition of malice indicates, a killing by a person who has the specific intent to kill is a killing with malice provided that it is also without certain circumstances. Stated differently, a killing is a specific intent to kill if it is willful and deliberate. The specific intent to kill, including premedita-
tion needed for first degree murder does not require planning or previous thought or any particular length of time. In can occur quickly. All that is necessary is that there be time enough so that a defendant can and does fully form an intent to kill and is conscious of that intention. When deciding whether a defendant had the specific intent to kill, you should consider all of the evidence regarding his or his accomplice or co-conspirators words and conduct and the attending circumstances that may show his state of mind at that time. If you believe that a defendant intentionally used a deadly weapon оn a vital part of the victim‘s body, you may regard that as an item of circumstantial evidence from which you may, if you choose, infer that the defendant, his accomplice or co-conspirator had the specific intent to kill.
(N.T. 3/9/94 (Vol. II) at 136-137).
Appellant‘s claim, in essence is that the trial court informed the jury that it could find “a defendant” guilty of first degree murder if either defendant possessed the requisite specific intent to kill. The operative words with which the appellant is concerned are:
... the defendant, his accomplice or co-conspirator did so with the specific intent to kill and with malice.
Appellant interprets these words to mean that the accomplice may be convicted if either the accomplice or the princiрal had specific intent to kill. This misreads the instruction. When a series of nouns is separated by a comma and the last two elements of a series are the same entity (accomplice or co-conspirator), the sentence is properly understood to consist of a series of two nouns, not three. Thus, the sentence may be read to say, “the jury may find the accomplice guilty if it finds that the defendant and his accomplice (or you may think of him as a co-conspirator) acted with specific intent to kill and malice.”
Further, when the court clarified the various degrees of murder, it stated:
First, in order to clarify, I remind you that you are to consider the evidence and the law separately as to each individual in this case. Although this trial is based on а single incident, each defendant is on trial before you individually and is to be found guilty or not guilty based on the evidence or lack of evidence as to him alone.
The instruction was not in error and the court consistently and in understandable language referred to the need to consider whether each individual in the case possessed the requisite specific intent to kill.
Having concluded that Hannibal‘s conviction was proper, we are required to perform an automatic review of the sentence of death pursuant to
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
The jury found one aggravating circumstance in the case, that the killing was committed while in the perpetration of a felony, and no mitigating circumstances. Our review of the record establishes beyond any reasonable doubt that the killing was carried out during a robbery, and therefore that the murder was committed during the commission of a felony; that the sentence was not the product of passion, prejudice or any other arbitrary faсtor; and that the sentence was not disproportionate to the penalty imposed in similar cases.10
Justice NIGRO concurs in the result and files a concurring opinion.
Justice CAPPY files a dissenting opinion in which Justice ZAPPALA joins.
CASTILLE, Justice, concurring.
I join the majority opinion, but write separately to address the following points.
I agree with the majority that the jury charge here, considered as a whole, conformed to the rule announced in Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994), governing instructions on accomplice liability in first degree murder cases. The disapproved charge quoted in Huffman contained no elaboration on the basis for finding accomplice liability. Id. at 198-99, 638 A.2d at 962. Here, in contrast, as the majority has correctly noted, the trial court separately and thoroughly charged the jury on accomplice liability—indeed, it did so in an instruction that mirrors the language in the Crimes Code defining accomplice liability. See
The last point is worthy of elaboration. Criminal conduct involving multiple perpetrators often, but not always, involves multiple thеories of vicarious liability, i.e., conspiracy liability (which requires an agreement) and accomplice liability (which does not). The theories serve different purposes and have different contours. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983), was a sufficiency of the evidence case which discussed only the level of proof necessary to prove guilt of first degree murder on a theory of accomplice liability. Bachert‘s holding that the accomplice himself, and not merely a confederate, must possess the necessary mental state was thoroughly consistent with the Crimes Code‘s definition of accomplice liability. See
Two years ago, in Commonwealth v. Wayne, supra, this Court extended the Bachert/Huffman teachings on accomplice liability to first degree murder cases involving conspiracy liability. Although I joined in the Wayne opinion, upon further careful consideration of this recurring point, I am convinced that the Wayne reconfiguration was an erroneous
In Wayne, this Court accurately described the general rule of conspiracy liаbility as follows:
The general rule of law pertaining to the culpability of conspirators is that each individual member of the conspiracy is criminally responsible for the acts of his co-conspirators committed in furtherance of the conspiracy. The co-conspirator rule assigns legal culpability equally to all members of the conspiracy. All co-conspirators are responsible for actions undertaken in furtherance of the conspiracy regardless of their individual knowledge of such actions and regardless of which member of the conspiracy undertook the action. The premise of the rule is that the conspirators have formed together for an unlawful purpose, and thus, they share the intent to commit any acts undеrtaken in order to achieve that purpose, regardless of whether they actually intended any distinct act undertaken in furtherance of the object of the conspiracy. It is the existence of shared criminal intent that ‘is the sine qua non of a conspiracy.’ Wayne, 553 Pa. at 630, 720 A.2d at 463-64 (citations omitted).
However, the Wayne Court fashioned an exception to this general rule, based upon the perception that first degree murder should be treated differently from other offenses because of the severity of the punishment. Importing the accomplice liability principles that animated Bachert and Huffman, it reconfigured conspiracy law, essentially holding that the crime of first degree murder would no longer be susceptible to traditional conspiracy analysis. Under the Wayne reconfiguration, a defendant cannot be convicted of first degree murder under a theory of conspiracy liability, even if the killing was in furtherance of the conspiracy, unless the Commonwealth separately proves that the defendant harbored a specific intent to kill. Id. at 630-31, 720 A.2d at 464. I
There is a synergy that arises from criminal confederations. People who might not have the individual courage, the ability, or the ill judgment to commit a crime on their own become emboldened when they join with confederates to plan and launch a criminal enterprise. In recognition of the distinct dangerousness of this criminal phenomenon, the legislature has codified conspiracy itself as a separate crime—i.e., conspiracy is not just a theory of liability, it is a distinct crime. There is no logical reason to single out first degree murder from other crimes in determining the reach of conspiracy liability.
I would return to the terms of the Crimes Code and the settled pre-Wayne law recognizing the long-standing principle that, in a conspiracy, “‘the least degree of concert or collusion betweеn parties to an illegal transaction makes the act of one the act of all.‘” Commonwealth v. Strantz, 328 Pa. 33, 40, 195 A. 75, 79 (1937) (citing Chief Justice Gibson in Rogers v. Hall, 4 Watts 359, 361 (1835)). “No principle of law is more firmly established than that when two or more persons conspire or combine with one another to commit any unlawful act, each is criminally responsible for the acts of his associate or confederate committed in furtherance of the common design.” Strantz, 328 Pa. at 40, 195 A. at 79. If one actor in a conspiracy acts on a specific intent to kill, and that act furthered the common design, then conspiracy liability should attach to all conspirators. The rule operates to dissuade persons from entering into criminal confederations that have, as a foreseeable consequence, the killing of another.
The traditional rule, moreover, is a practical necessity. The victim is never available in a murder case to testify who, among multiple actors, killed him. In homicides involving multiple actors, there is frequently no doubt at all that the killing was intentional and warrants a first degree conviction (as is indisputably the case here) but (again, as here) there is no independent eyewitness to testify which actor delivered the blow(s) that establish the degree of guilt.2 It is in precisely such circumstances that traditional principles of vicarious liability are essential. As noted in the Dissenting Opinion in Huffman, without such theories,
a jury will always be stuck with the broken record of how to attribute specific intent without identifying the particular roles of the perpetrators. So the killers will walk away from first degree murder and the death penalty. So the people will have been deprived of a fair trial. Huffman, 536 Pa. at 204, 638 A.2d at 965 (Papadakos, J., dissenting).
I would return to first principles and permit conspiracy liability to operate as it always had before, with respect to all crimes.
In summary, in cases invоlving theories of accomplice and conspiracy liability for first degree murder, I believe that the jury should be instructed on the elements of first degree murder, as well as what is necessary to prove liability as an
NIGRO, Justice, concurring.
I concur in the result reached by the majority. In my view, any error which may have occurred in the instructions regarding accomplice liability was harmless. The evidence in this case clearly established that Appellant was the actual shooter, and not the accomplice. Therefore, any irregularity in the trial court‘s accomplice instruction could not have affected Appellant‘s verdict аnd thus, must be viewed as harmless error. Accordingly, I agree with the majority that Appellant is not entitled to a new trial on this basis.
CAPPY, Justice, dissenting.
I respectfully dissent. Specifically, I find the majority‘s disposition of Appellant‘s issue raised pursuant to Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994) and Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982) to be disingenuous.
In Huffman, this court stated that in order for a defendant to be found guilty of first degree murder, the Commonwealth must establish that the defendant himself possessed the specific intent to kill, and that a defendant could not be convicted of first degree murder solely because his accomplice or co-conspirator who actually committed the homicidal act possessed the specific intent to kill. Id. at 962.
Huffman did not announce a new rule of law. This court‘s first clear recitation of this principle was delivered in Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982). Justice (now Chief Justice) Flaherty delivered the opinion of the court, stating that the trial court must instruct the jury that
[t]o determine the kind of homicide of which the accomplice is guilty, it is necessary to look to his state of mind; the
requisite mental state must be proved beyond a reasonable doubt to be one which the accomplice harbored and cannot depend upon proof of the intent to kill only in the principal. Id. at 935.
This requirement is not one which this court idly imposed on the trial courts. We have stated that such an instruction is mandatory because “[i]t is the unique harboring of malice with willful premeditation that causes first degree murder to be distinctly villainous. It is precisely because of the deliberate nature of first degree murder that this crime carries the most severe penalty the law can impose—death. To allow a conviction for first degree murder to stand without proof beyond a reasonable doubt establishing that the accused actually harbored the specific intent to kill, would be unconscionable.” Commonwealth v. Wayne, 553 Pa. 614, 614, 720 A.2d 456, 464 (1998).1
Appellant claims that the Huffman and Bachert rule was violated in this matter. Specifically, he points to the trial court‘s instruction to the jury that Appellant could be convicted of first degree murder if the Commonwealth had established that “the defendant, his accomplice or co-conspirator [shot the victim] with the specific intent to kill and with malice.” N.T., 3/9/1994, 135-36. Appellant claims that such an instruction gave the jury permission to convict him of first
The majority rejects this argument by stating that
[w]hen a series of nouns is sepаrated by a comma and the last two elements of a series are the same entity (accomplice or co-conspirator), the sentence is properly understood to consist of a series of two nouns, not three. Thus, the sentence may be read to say, “the jury may find the accomplice guilty if it finds that the defendant and his accomplice (or you may think of him as a co-conspirator) acted with specific intent to kill and malice.” Majority op. at 142, 753 A.2d at 1271.
Had the instruction been given as the majority rephrases it, I would wholeheartedly agree that it met the Huffman and Bachert rule. Yet, this is not the instruction that was given. Rather, it is a concoction derived from the majority‘s hopes that the jury was privy to the same book of grammar that it had at its disposal.
The plain words spoken by the trial court judge informed the jury that they could find the defendant guilty if the Commonwealth showed that the defendant, his accomplice or co-conspirator shot the victim with the specific intent to kill. In my opinion, this instruction informed the jury that it could find Appellant guilty of first degree murder even if only his accomplice or co-conspirator, rather than Appellant himself, had the specific intent to kill. Unlike the majority, I am unable to transmogrify this simple statement, which I believe clearly violates the Huffman and Bachert rule, into a wholly different instruction. As I believe that it would be unconscionable to allow Appellant‘s conviction to stand where the jury was erroneously instructed that the Commonwealth need not prove that Appellant actually harbored the specific intent to kill, I must respectfully dissent.
Justice ZAPPALA joins this dissenting opinion.