                          [J-92-2015] [M.O. - Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 705 CAP
                                               :
                     Appellee                  :   Appeal from the Order dated January 9,
                                               :   2015 in the Court of Common Pleas,
                                               :   Philadelphia County, Criminal Division
              v.                               :   at No. CP-51-CR-0428351-1993.
                                               :
                                               :   SUBMITTED: January 20, 2016
SHELDON HANNIBAL,                              :
                                               :
                     Appellant                 :


                                 DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                     DECIDED: November 22, 2016
       I agree with Appellant’s position that errors and attorney derelictions occurred in

connection with the admission of evidence, at his trial, of a triple murder for which

Appellant was never charged or tried. Although the majority finds the relevant claim to

have been previously litigated, see Majority Opinion, slip op. at 31-32, it is significant,

from my point of view, that this Court has never addressed the main contention that

Appellant sought to raise on direct appeal.1

       At the direct appeal stage, Appellant presented a substantially developed

argument that his trial counsel was ineffective in failing to assert that the prejudicial

1
  I note that, although my name is listed as within the Court complement in published
versions of the direct-appeal disposition, I did not participate in the decision, since I was
ineligible to vote given that the case was argued prior to my tenure on the Supreme
Court. For this reason, my name is not included in the voting summary set forth at the
conclusion of the opinion. See Commonwealth v. Hannibal, 562 Pa. 132, 146, 753 A.2d
1265, 1272-73 (2000) (Opinion Announcing the Judgment of the Court).
impact of evidence of the collateral triple murder greatly outweighed its probative value.2

See Brief for Appellant in Hannibal, 562 Pa. 132, 753 A.2d 1265, 1997 WL 33544659, at

*29-33.   In addressing this claim, however, this Court’s lead opinion relegated the

treatment, along with the disposition of numerous of other claims, to a superficial and

conglomerated footnote. See Hannibal, 562 Pa. at 144 n.11, 753 A.2d at 1272 n.11.

For example, the lead opinion mischaracterized the claim that Appellant was attempting

to raise as involving only the murder of a single individual, see id. (indicating that

“[Appellant] claims that his trial was unfair because evidence of the murder of Tanesha

Robinson, a witness, was admitted into evidence[.]”), whereas, the claim encompassed

the admission of evidence of a collateral triple murder. See, e.g., Brief for Appellant in

Hannibal, 562 Pa. 132, 753 A.2d 1265, 1997 WL 33544659, at *29 (“[T]he prosecution

deliberately, meticulously and relentlessly infected the trial of the murder of Mr. LaCort

with another, shadow trial concerning the uncharged but particularly inflammatory crime,

the murder of Tanesha Robinson and her two young companions, in the presence of a

six month old baby.” (emphasis added)).

       The lead opinion also treated Appellant’s claim as entailing an assertion that trial

counsel failed to object to the admission of such evidence, when, in point of fact,

Appellant’s brief had related that counsel repeatedly objected and moved for a mistrial.

See id. at *32-33 (“[T]rial counsel made a number of objections and an initial motion for

mistrial with respect to this evidence and the lack of notice given.”). Finally, and most

significantly, the lead opinion wholly overlooked the actual point of Appellant’s

argument, i.e., the contention that trial counsel’s stewardship was deficient in his failure

2
  See, e.g., Commonwealth v. Newman, 528 Pa. 393, 399, 598 A.2d 275, 278 (1991);
accord Pa.R.E. 404(b)(2) (explaining that evidence of other bad acts is admissible, in a
criminal case, “only if the probative value of the evidence outweighs its potential for
unfair prejudice”).



                          [J-92-2015] [M.O. - Dougherty, J.] - 2
to trigger the essential balancing inquiry concerning probative value versus prejudicial

impact. Compare Hannibal, 562 Pa. at 144 n.11, 753 A.2d at 1272 n.11 (“[T]here was

no basis to object to the evidence because it was admissible to show [Appellant’s]

consciousness of guilt.”), with Brief for Appellant in Hannibal, 562 Pa. 132, 753 A.2d

1265, 1997 WL 33544659, at *29-30 (“It is a fundamental principle of law in this

Commonwealth that even relevant evidence must at times be excluded if the potential

for prejudice exceeds the probative value of the evidence.” (emphasis in original)).3

       In the circumstances -- where lapses in judicial review have occurred and the

fault rather plainly lies with this Court -- I believe that we should presently review the

3
  The lead opinion additionally criticized Appellant’s brief on direct appeal for failing to
set forth the three-part test governing claims of deficient attorney stewardship. See
Hannibal, 562 Pa. at 144 n.11, 753 A.2d at 1272 n.11. However, Appellant’s brief had
substantively covered all three facets of the test, in that he straightforwardly asserted
that trial counsel committed a material dereliction by failing to advance the balancing
inquiry; that the lawyer had “no possible strategic reason” for failing to do so; and that
material prejudice ensued. Brief for Appellant in Hannibal, 562 Pa. 132, 753 A.2d 1265,
1997 WL 33544659, at *32-33.

To the extent that the lead opinion’s truncated disposition was based on Appellant’s
failure to include mere boilerplate, I do not regard this as a fair approach to claims
resolution. Moreover, to the degree that the Court requires boilerplate, counsel on
direct appeal should be deemed ineffective for failing to set it forth.

Parenthetically, I note that this Court is suffering pointed criticisms from the federal
courts pertaining to other instances of superficial treatment of claims for relief in the
capital litigation arena. See, e.g., Dennis v. Secretary, Pa. DOC, 834 F.3d 263, 285 (3d
Cir. 2016) (“[T]he Pennsylvania Supreme Court’s decisions . . . rested on unreasonable
conclusions of fact and unreasonable applications of clearly established law[.]”); id. at
346 (Jordan, J., concurring) (characterizing the relevant disposition by this Court as a
three-sentence “drive-by discussion,” reflecting a “lack of analytical rigor and attention to
detail [that is] painful to contemplate” and which is “so obviously wrong” that “any
fairminded jurist must disagree”); Miller v. Beard, ___ F. Supp. 3d ___, ___, 2016 WL
5848728, at *21-22 (E.D. Pa. Oct. 5, 2016) (highlighting the paucity in the treatment by
the Court of a claim for relief asserted by a capital appellant on direct appellate review;
observing that the Court’s review proceeded “without any basis or substantial reference
to the trial or PCRA court record”; and concluding that that such review manifested “an
unreasonable application of clearly established federal law”).



                           [J-92-2015] [M.O. - Dougherty, J.] - 3
claim which Appellant has been attempting to raise for more than fifteen years without

interposing additional hurdles. Notably, in this regard, the majority finds no material

difference between the claim asserted on direct appeal and the one that Appellant

advances at present. See Majority Opinion, slip op. at 31-32. Furthermore, I find a

fundamental inconsistency in the majority’s simultaneous assertion that a claim is

previously litigated on the ground that it is the same claim disposed on direct appeal,

see id., but that the newly-asserted claim must also be regarded as a different claim,

when confronted with the question of whether the Court should remedy its own patent

failure to fairly address it in the first instance. Compare Majority Opinion, slip op. at 31

(indicating that “Appellant has failed to articulate any material difference between the

instant claim of a due process violation resulting in an unfair trial and the substantive

claim raised and rejected on direct appeal.”), with id. at 32 n.14 (asserting that, in his

present brief, appellant presently “has not raised” the claim asserted on direct appeal).4

4
   This Court has obviously had difficulty with a fair and just application of the previous
litigation doctrine, which too frequently has been administered in a rote fashion, rather
than with evaluative judgment. See, e.g., Commonwealth v. Collins, 585 Pa. 45, 56-58,
888 A.2d 564, 570-71 (2005) (discussing such lapses in the context of permutations of
the previous litigation doctrine deemed to encompass claims of ineffective assistance of
counsel asserted at the post-conviction stage). From my point of view, application of
the doctrine should be better grounded in fundamental fairness.
Notably, had Appellant’s present brief straightforwardly asserted the claim raised on
direct appeal, this would have invited a dismissive application of the previous litigation
doctrine.    Nevertheless, viewed substantively and without compartmentalization,
Appellant’s present arguments encompass precisely the same concerns as were raised
on direct appeal about low probative value, see, e.g., Brief for Appellant at 20
(discussing the “unreliability and incredulity” of the source of the evidence that Appellant
had been involved in the triple murder), and high prejudicial effect, see, e.g., id. at 16
(explaining that “the prosecutor was permitted to introduce evidence and argument of
the execution style killing of three young women” and “that an infant was abandoned at
the scene”); id. at 24 (“Courts have long recognized the prejudicial effect of allegations
that a defendant committed other criminal acts.”). It is also significant, from my point of
view, that application of our state evidentiary rules requiring a balancing of probative
value and prejudice (the overlay of the direct appeal) serves to protect defendants’ due
(continued…)

                          [J-92-2015] [M.O. - Dougherty, J.] - 4
       The Commonwealth’s contention that Appellant was involved in the collateral

triple murder rested largely on the testimony of jailhouse informant James Buigi. This,

in my view, lessens its probative value substantially.5          Moreover, given that the

Commonwealth had the use of admissible testimony from two eyewitnesses who placed

Appellant at the crime scene in the role of an armed aggressor at the time of the killing

for which Appellant was on trial, as well as Buigi’s testimony to Appellant’s confession to

having perpetrated this killing, I question the necessity for the Commonwealth to adduce

highly prejudicial other-bad-acts evidence to demonstrate a consciousness of guilt.

       In terms of prejudicial impact, it would be difficult to overstate the inherent

inflammatory power of evidence of the killing of a fifteen-year-old girl and two young

women in the presence of a baby. Cf. Commonwealth v. Robinson, 623 Pa. 345, 375,

82 A.3d 998, 1016 (2013) (commenting on the impact of multiple murders upon lay

jurors in capital sentencing). Indeed, one cannot review the present record without

apprehending the degree to which the collateral triple murder pervaded the guilt and

penalty phases of trial.       For example, the prosecutor overtly (and, in my view,

improperly) capitalized on this effect, including in his closing argument to the jury at the

penalty stage, as follows:



(…continued)
process right to a fair trial (which is the theme of the present post-conviction
presentation). Accord United States v. Enjady, 134 F.3d 1427, 1432-33 (10th Cir. 1998).
5
   Although the courts generally have allowed the prosecution’s use of jailhouse
informants in criminal cases, it is an attenuation to authorize the admission of evidence
of collateral, uncharged crimes based on such evidence. In this regard, my thoughts
are in line with those jurisdictions regarding this strain of evidence as being inherently
suspect. See, e.g., State v. Marshall, 882 N.W.2d 68, 81-83 (Iowa 2016) (explaining
that “[t]he problem of proof, along with questions of reliability, have given rise to
requiring some corroboration of jailhouse informant testimony to support a conviction in
at least eighteen states”).



                             [J-92-2015] [M.O. - Dougherty, J.] - 5
             And there are three young women, teenagers. They all have
             families who come here and cry; mothers, fathers, sisters,
             brothers. They would cry an ocean along with the [victim’s]
             family. You would have tears filling this room. But none of
             those tears affect those two. All of the tears in the world
             don’t put a dent in those cold, feelingless hearts.

             That snitch-ass bitch got to die. The others in the room.
             They all die. It’s got to be done in front of a little crying baby.
             There is someone crying, a baby crying while his mother is
             executed[,] while the gun is placed against her head so it
             doesn’t make too much noise and her brains are blown out.
             The little baby is crying. But that doesn’t put a dent in those
             cold hearts. But they want mercy. They don’t deserve it.

             Ladies and Gentlemen, any person, or persons, who can do
             these terrible things so long as they breathe the same air
             that you and I breathe are a danger to us all.

N.T., Mar. 11, 1994, at 68-69.
      In summary, in my considered judgment trial counsel was ineffective for failing to

pursue a determination by the trial court that the probative value of the evidence of the

collateral triple murder was substantially outweighed by the inflammatory impact.

      Accordingly, I would award a new trial and respectfully dissent.



      Justice Donohue joins this dissenting opinion.




                          [J-92-2015] [M.O. - Dougherty, J.] - 6
