holding that one acting merely as an accessory after the fact is not an accomplice to the crime
How later courts described this case
- holding that one acting merely as an accessory after the fact is not an accomplice to the crime
- co-conspirators’ statements found highly reliable when “made in each others’ presence, in front of a third party who was not part of the conspiracy, and contrary to their own penal interests”
Written by the judges who cited it.
The opinion
CAPPY, Justice,
concurring.
I concur.
*227 I agree with the majority’s statement that 42 Pa.C.S. § 9711(d)(2) allows a jury to find a contract to kill as an aggravating circumstance only if the killing is performed as a result of that contract; 1 however, I write separately to express my disagreement with the majority’s conclusion that “Carter’s refusal to perform the contract to kill directly caused and/or resulted in the killing of the victim by Hackett [and Spence].” (Majority op. at 225, n. 8.)
A brief review of the pertinent facts is necessary to illustrate my position. Hackett and Spence contracted with Carter to kill Ogrod. 2 In the course of their negotiations, they agreed that anyone with Ogrod at the time of the proposed killing (particularly the victim, Dunne) would also be killed so as to leave no witnesses. Ultimately, Hackett, Spence, and two other conspirators, Gray and Burnett, killed Dunne. Ogrod survived the attack.
However, as the majority notes, Carter had withdrawn from the conspiracy to kill by refusing to perform the contract the day before the killing. The majority opinion states that
the fact that Carter ended his involvement before the crime was committed was not only uncontradicted, but independently corroborated by the statements of co-conspirators Gray and Burnett, who did participate in the murder and who had nothing whatsoever to gain from such an assertion. These uncontradicted and corroborated facts, as a matter of law, established that Carter was not an accomplice.
(Majority op. at 221-222).
I agree that a contract to kill was formed among Hackett, Spence and Carter, and that the victim, Dunne, was a subject *228 of the contract to kill. I further agree with the majority’s statement that
[t]he plain meaning of § 9711(d)(2) is that once the contract for the killing of the victim has been entered, § 9711(d)(2) is triggered provided causation exists. There is no requirement that the contractee perform the contract as long as the contract to kill directly caused and/or resulted in the killing. Here, Hackett [and Spence] entered into a contract to kill with Carter and gave Carter a VCR as consideration for the contract.
(Majority op. at 225, n. 8 (emphasis added).) However, I cannot agree with the majority’s conclusion that
Carter’s refusal to perform the contract to kill directly caused and/or resulted in the killing of the victims by Hackett [and Spence]. Section 9711(d)(2) was properly applied in this case.
(Majority op. at 225, n. 8 (emphasis added).)
The majority concedes that Carter did not participate in the actual killing as he had contracted. As such, it is clear that the majority does not argue that the killing occurred pursuant to the contract. However, it is not clear whether the majority’s position is that it was the creation of the contract to kill Ogrod and Dunne, or Carter’s subsequent refusal to perform the contract that directly resulted in the killing. After consideration of both positions, I am unable to agree with either, as I find that neither the creation of the contract itself nor Carter’s refusal to perform the contract was the cause of the killing. In my view, causation must flow from the contract itself. At minimum, causation is implied in the words of section 9711(d)(2), i.e. a contract for “the killing of the victim.” In my view, this clearly refers to the actual killing act, hence, the contract must be causally linked in order for this subsection to be satisfied. 3 The consequences of a contractee’s refusal to perform the contract is irrelevant to our inquiry.
*229 Further, as there appears to be no evidence of a contract to kill between Hackett or Spence and any of the other actual participants in the killing, I disagree with the majority opinion to the extent that it finds that the aggravating circumstance of a contract killing has been sufficiently proven.
However, the result reached by the majority is a correct one as a review of the record reveals that Hackett was sentenced to death after the jury found two aggravating circumstances and no mitigating circumstances. The jury found the existence of aggravating circumstances under section 9711(d)(2) and section 9711(d)(7). While I disagree that the evidence is sufficient to support the finding of an aggravating circumstance under section 9711(d)(2), I agree that the finding of an aggravating circumstance under section 9711(d)(7) is supported by sufficient evidence. As the jury properly found at least one aggravating circumstance and no mitigating circumstances, the sentence of death was properly rendered. 42 Pa.C.S. § 9711(c)(iv); Commonwealth v. Stokes, 532 Pa. 242 , 615 A.2d 704 (1992).
. I note that neither Hackett nor Spence raise this issue. However, I believe that we must consider it under our duty to automatically review the sufficiency of the evidence in capital cases. 42 Pa.C.S. § 9711(h), Pa.R.A.P.1941.
. I acknowledge that the evidence is also sufficient to prove that Hackett and Spence contracted with another man, Torres, in that they hired Torres to help them find a “hit man.” However, Torres "gave up" the endeavor well before the actual killing. As such, the majority's strongest argument relies on the contract with Carter, which I address infra.
. There is a long line of cases in Pennsylvania in the homicide causation context providing that causation cannot be established in the criminal context on a "but for” or civil law proximate cause basis. See Burkoff, Criminal Offenses and Defenses in Pa. (2nd ed.), p. 196.