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Commonwealth v. Ogrod12/30/2003
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. On December 7, 1994, the Superior Court affirmed the decision of the trial court. 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. 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.
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 circumstance 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. On May 25, 2000, Judge Savitt denied the post-sentence motions.
Statement of Facts
The record of the second trial established the following facts. 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
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