Commonwealth v. Hitcho, G., Aplt. ( 2015 )

[J-89-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 691 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on 05/24/2012 (amended
: post-sentence motions denied on
v. : 11/27/2013) in the Court of Common Pleas,
: Criminal Division of Northampton County at
: No. CP-48-CR-0003415-2011.
GEORGE HITCHO JR., :
: SUBMITTED: September 22, 2014
Appellant :
OPINION
MR. JUSTICE STEVENS1 DECIDED: September 29, 2015
This is a direct appeal from a death sentence imposed after a jury convicted
George Hitcho, Jr. (“Appellant”) of first degree murder.2 At the penalty phase, the jury
found one aggravating circumstance and three mitigating circumstances, unanimously
determined the aggravating circumstance outweighed the mitigating circumstances, and
sentenced Appellant to death. For reasons that follow, we affirm Appellant’s conviction
and judgment of sentence.3
1 This case was reassigned to this author.
2 18 Pa.C.S. § 2502(a).
3 This Court automatically reviews direct appeals from the imposition of death sentences
pursuant to 42 Pa.C.S. § 9711(h)(1).
The record indicates that, on August 11, 2011, at approximately 5:00 p.m., William
M. Clancy, whose backyard was approximately seventy-five yards from Appellant’s
residence, observed Appellant driving his speeding pickup truck on an alley in front of Mr.
Clancy’s home. After Appellant parked his pickup truck alongside his backyard, which
abutted the alley, Mr. Clancy yelled, “Slow the fuck down, asshole.” N.T. 5/14/12, jury
trial, at 77. Mr. Clancy and Appellant began arguing, and after Appellant “pulled his
pants down and mooned” Mr. Clancy, he went inside his residence and called 911. Id. at
79. Mr. Clancy went back outside and observed Appellant holding a two-by-four piece of
lumber. With Mr. Clancy still communicating with the 911 operator, Mr. Clancy and
Appellant continued to argue and Appellant again “mooned” Mr. Clancy. As Appellant
angrily stalked back to his residence, he passed Robert Henninger and Todd Schaedel,
who were standing in the alley.
As a result of the 911 call, Freemansburg Police Officer Robert Lasso, who was on
duty and dressed in full uniform with the word “POLICE” emblazoned on the back, was
dispatched to Mr. Clancy’s residence, where he arrived in his marked police vehicle
approximately two minutes after the neighbor dispute had ended. Officer Lasso asked
Mr. Clancy for Appellant’s whereabouts, and Mr. Clancy pointed up the alley in the
direction of Appellant’s residence. Officer Lasso drove his police vehicle to the rear of
Appellant’s residence, and when he disembarked, he asked Mr. Henninger for
Appellant’s location. Mr. Henninger responded Appellant was in his backyard, and as
Officer Lasso walked toward the gate to Appellant’s backyard, Mr. Henninger heard
Officer Lasso call out to Appellant, “George, please talk to me, come out to talk to me.”
Id. at 167. Mr. Henninger and Mr. Schaedel both heard Appellant’s dogs barking, and
[J-89-2014] - 2
Mr. Schaedel heard Officer Lasso instruct Appellant, “[C]ontrol your dogs.” Id. at 125,
132. Mr. Schaedel additionally heard some muffled conversation between Appellant
and Officer Lasso.
Meanwhile, at some point, Officer Lasso called for back-up, and Police Chief
George S. Bruneio, who was one quarter of a mile away at the police station, responded
to the request. Chief Bruneio arrived at Mr. Clancy’s residence within two or three
minutes after receiving Officer Lasso’s request for back-up, and he observed Officer
Lasso’s police vehicle parked near Appellant’s backyard. Chief Bruneio parked his
police vehicle behind Officer Lasso’s police vehicle, disembarked, and as he asked Mr.
Henninger and Mr. Schaedel, who were still at the scene, where Officer Lasso was
located, he heard a “commotion” in Appellant’s backyard. Accordingly, Chief Bruneio
went over to the backyard gate.
Upon approaching the gate, Chief Bruneio noticed Officer Lasso positioned by
Appellant’s patio, approximately five feet from the rear door of the residence and with his
back to the door. Chief Bruneio saw Officer Lasso attempting to fend off two large
snarling dogs who were threatening Officer Lasso. Specifically, Chief Bruneio observed
Officer Lasso, who had a taser4 in his left hand pointed toward the sky, kicking at the
dogs. Officer Lasso’s sidearm, a .40 caliber Glock, was in his holster.
Chief Bruneio drew his own sidearm, which was also a .40 caliber Glock, and
entered the backyard. Intending for Officer Lasso to use his drawn taser on one of the
dogs, while he was going to shoot the other dog, Chief Bruneio yelled out to Officer Lasso,
4 A taser is a non-lethal weapon that delivers an electrical current designed to immobilize
a suspect for police purposes. Id. at 211-12.
[J-89-2014] - 3
“[S]hoot ‘em.” Id. at 208. Immediately, before either officer took any action towards the
dogs, and with Officer Lasso still pointing his taser towards the sky, “a loud shot rang out,”
and Officer Lasso fell facedown to the ground, lying motionless by the patio. Id. at 210,
242. The dogs became startled and ran past Chief Bruneio, who went down on one knee
and searched for the direction from which the gunshot originated. From his vantage
point, Chief Bruneio was unable to see inside the house and, thus, he was unaware that
Appellant was standing at the residence’s rear door. Approximately twenty to thirty
seconds elapsed from the time Chief Bruneio first observed Officer Lasso until the
moment when Officer Lasso was shot.
Suddenly, Appellant emerged from the back door, holding a 12-gauge shotgun
with the barrel pointed skywards. Appellant had his left hand on the pump of the shotgun
and his other hand on the trigger. With his sidearm trained on Appellant, Chief Bruneio
ordered Appellant to drop the shotgun, and Appellant replied, “[H]e’s trying to get in my
house.” Id. at 214. Chief Bruneio again ordered Appellant to drop the shotgun, and
Appellant replied, “[H]e tried to break in my house.” Id. Chief Bruneio became “very
stern,” and ordered Appellant to “drop it now.” Id. As Chief Bruneio made these
commandments, he realized Appellant’s shotgun had jammed after Appellant shot Officer
Lasso, thus rendering the shotgun temporarily inoperable.
After the third commandment, Appellant complied and placed the shotgun on
nearby steps. Chief Bruneio handcuffed Appellant and placed him in his police vehicle.
Chief Bruneio then ran back to where Officer Lasso was lying motionless surrounded by a
pool of blood emanating from a large shotgun wound to the base of his skull. Chief
Bruneio could not detect a pulse.
[J-89-2014] - 4
Meanwhile, uniformed Bethlehem Township Police Sergeant Gregory Gotschall
and Officer Robert Stametz, who had heard Officer Lasso’s initial request for back-up,
arrived at the scene, and Chief Bruneio told them, “It’s too late. He shot Robert.
Robert’s dead.” Id. at 260. Sergeant Gotschall observed Officer Lasso’s body on the
ground, unsuccessfully attempted to find a pulse, and then asked Chief Bruneio where
the shooter was located. Chief Bruneio informed the officers the shooter was in custody
in the rear of his police vehicle.
Sergeant Gotschall instructed Officer Stametz to “pat-down” Appellant for
weapons, and as he was preparing to do so, Officer Stametz noticed there was blood on
Appellant’s hands and the handcuffs. Because he did not have gloves with him, Officer
Stametz asked another responding officer, Lower Saucon Township Police Officer Robert
Winters, to pat-down Appellant, and Officer Stametz left to assist Sergeant Gotschall with
securing Appellant’s residence. As Officer Winters patted down Appellant, Bethlehem
Police Officer Richard Hoffman held Appellant. The pat-down did not reveal any
contraband; however, after it was completed, and as Officer Hoffman was placing
Appellant into the police vehicle, Appellant spontaneously stated, “I’m tired of that son of
a bitch always coming on my property and trespassing. I know my rights. I was
defending my property. He was trying to come in my back door.” Id. at 298-99. Officer
Hoffman said nothing in response, closed the police vehicle door, and ran to attempt to
render aid to Officer Lasso.
After Officer Lasso was removed from the scene by ambulance personnel, the
responding officers were huddled around the scene looking at each other in disbelief.
Realizing no one was guarding Appellant, Officer Hoffman sprinted to the vehicle and
[J-89-2014] - 5
when he looked through the window, Appellant gave him “a thousand yard stare”
indicative of someone who is very agitated. Id. at 301.
Subsequently, at approximately 5:27 p.m., Pennsylvania State Police troopers,
including Troopers Seth J. Kelly and Dennis Sims, Jr. arrived on the scene. At
approximately 6:32 p.m., the troopers removed Appellant from Chief Bruneio’s police
vehicle and placed him in the rear seat of a Pennsylvania State Police cruiser for
purposes of transporting him to the police station. As Trooper Kelly sat beside Appellant
in the rear seat, Trooper Sims advised Appellant he was being subjected to audio and
video recording, and he turned the camera so that it would face Appellant. Appellant
spontaneously stated, “Hey, I’m on candid camera.” Id. at 314; N.T. 5/15/12, jury trial, at
125. The troopers then transported Appellant to the police barracks.
Troopers subsequently collected the clothes, which Appellant was wearing, and
after securing a search warrant, at 10:39 p.m., troopers searched Appellant’s residence,
taking photographs and seizing various items, including ballistic vests, numerous
firearms, ammunition, marijuana plants, and drug paraphernalia.
Appellant was charged with first degree murder, and the Commonwealth provided
notice of its intention to seek imposition of the death penalty. Appellant filed pre-trial
motions, including motions for a change of venue and/or venire, to suppress evidence
seized by the police, and to suppress statements Appellant made to the police. On
January 27, 2012, the trial court held a hearing, at which the Commonwealth presented
the testimony of seven police officers, and in an opinion and order filed on April 20, 2012,
[J-89-2014] - 6
the trial court substantially denied Appellant’s motions. 5 Moreover, Appellant filed
several motions in limine challenging Pennsylvania’s capital sentencing scheme, seeking
to exclude evidence of the firearms legally seized by police from Appellant’s residence,
and seeking to exclude the autopsy photographs. The trial court substantially denied
these motions.6
Following voir dire, the guilt phase of Appellant’s jury trial commenced on May 14,
2012. At trial, the Commonwealth presented evidence from a number of civilian and
police witnesses, who testified about the time line and investigation of the shooting as
described supra. Additionally, Dr. Barbara Bollinger, a forensic pathologist who
performed the autopsy on Officer Lasso’s body, testified, to a reasonable degree of
medical certainty, that Officer Lasso died from a shotgun wound to the back of his head
and neck and the manner of death was homicide. N.T. 5/14/12, jury trial, at 69. Dr.
Bollinger testified the head and neck areas are vital parts of the human body, the wound
inflicted upon Officer Lasso was not survivable, and Officer Lasso died within seconds of
being shot. Id. at 70-71. Dr. Bollinger noted a 12-gauge shotgun, such as was used to
shoot Officer Lasso, has the ability to create and inflict more damage to a greater surface
area than other types of firearms, such as a .38 caliber handgun or rifles. Id. at 70.
5 The one exception is the trial court granted Appellant’s motion to suppress a statement
contained in Trooper Gregg M. Dietz’s investigation report related to Appellant allegedly
informing Chief Bruneio immediately after the shooting that he had “a couple” to drink.
See Trial Court Opinion dated 11/27/13 at 4 n.1.
6 As discussed more fully infra in Section II of this Opinion, the one notable exception is
the trial court granted Appellant’s motion to exclude a specific Mossberg 12-gauge
shotgun, which the police lawfully seized from Appellant’s residence.
[J-89-2014] - 7
Moreover, Trooper Kurt J. Tempinski, a forensic firearm expert, confirmed the 12-gauge
shotgun seized after Officer Lasso’s death was operable. N.T. 5/15/12, jury trial, at 79.
The defense presented testimony from numerous witnesses, including Appellant.
The witnesses were called to support Appellant’s attempt to reduce his level of culpability
by suggesting that, although Appellant shot Officer Lasso, he did so without the mens rea
necessary for first degree murder. More specifically, Appellant argued he shot Officer
Lasso in the “heat of passion,” under an unreasonable belief that deadly force was
required to save his life (“imperfect self-defense”), or under a diminished capacity due to
cognitive impairments.
For example, Appellant testified that, at approximately 4:30 p.m. on the day of the
shooting, he went to a local bar and consumed two beers after work. N.T. 5/16/12, jury
trial, at 106-07. He then proceeded to drive to his house and, after he passed Mr.
Clancy’s house, Mr. Clancy began shouting profanities at him. Id. at 109. Appellant
admitted he walked towards Mr. Clancy’s house while carrying a piece of wood, and Mr.
Clancy telephoned 911. Id. at 110-12.
Appellant indicated that, as he was walking down the steps onto his own property,
Officer Lasso arrived on the scene in his police cruiser and informed Appellant he needed
to talk to him about the neighborhood dispute. Id. at 113. Appellant asked if he could
first let his dogs out since they had been in the house for eight hours, and Officer Lasso
replied, “[N]o problem.” Id. Leaving Officer Lasso standing by his cruiser, Appellant
entered his residence via the back door and two of his dogs, a German shepherd and an
American bulldog, ran outside. Id. at 114. Appellant denied that he permitted his dogs
[J-89-2014] - 8
to run outside with the intent of having them menace Officer Lasso, and he indicated they
have a “really good” temperament. Id.
Appellant then proceeded to the basement to check on a litter of puppies, and
while he was doing so for approximately one or two minutes, he heard “banging on [his]
back door.” Id. at 118-19. Appellant testified he initially assumed one of his friends was
banging on the door, but as he went up the stairs and the banging became louder,
Appellant went “into [a] scared stage because somebody just broke in [his] house about
two weeks” prior to August 11, 2011. Id. at 119. Appellant testified the banging
sounded like someone was “kicking in” his back door and, when he approached the door
area, he saw someone pointing what he believed to be a gun at him saying harshly “open
the door or I’m going to shoot you and kill your dogs.” Id. at 121. Appellant claimed he
did not hear his dogs barking while he was in the basement and he could not initially
identify the person who was standing at his back door. Id. at 121-22. Appellant testified
he was afraid for his life and, when the person told him a second time to open the door or
he would shoot him and his dogs, he “soiled” his pants and “was about as scared as you
can get.” Id. at 122.
Appellant testified that, as of this time, he assumed Officer Lasso was still in the
alley waiting for him and, as it relates to the person banging on and kicking at the back
door, Appellant was focused on the object, which the person pointed right at Appellant.
Id. at 122. Appellant indicated the person then turned and, standing with his back
approximately two feet from the back door, pointed the object at Appellant’s dogs,
resulting in Appellant fearing for his dogs’ lives. Id. at 124-25. Appellant reiterated he
believed the object to be a gun, and in fact, it looked like his gun, which had recently been
[J-89-2014] - 9
stolen from his home. Id. at 125. Appellant indicated the banging, yelling, and forceful
nature of the person led Appellant to believe the person was serious about killing his
dogs. Id. at 125.
Appellant testified he then heard someone yell, “Shoot ‘em,” and Appellant thought
the statement was a command for the person at the door to shoot Appellant. Id. at 126.
At this point, Appellant picked up his shotgun, which was by the back door, and “next thing
you know everything just went to a loud noise and flashed, and there was my gun going
off.” Id. Appellant indicated he had loaded the shotgun before he left for work and he
didn’t remember “exactly how” he discharged the gun. Id. at 127. Appellant denied
shooting the person solely because he was on Appellant’s property; but rather, Appellant
testified he “shot the person because [he] was threatening my life, my dog’s life, and was
forcing his way into my house by kicking the door.” Id. at 129. Appellant noted he did
not fire his shotgun until he heard someone else yell, “Shoot ‘em.” Id. Appellant
claimed that, when he fired his gun, he was unaware the person at his door was a police
officer and he did not notice the word “POLICE” on the back of the officer’s jacket. Id. at
128. Appellant testified he did not realize he had shot a police officer until after he exited
his house and Chief Bruneio so informed him. Appellant claimed he has no memory of
opening the back door, putting down the shotgun, walking outside, or being handcuffed
by Chief Bruneio. Id. at 130. Appellant denied joking that he was “on candid camera”
when he was in the state police vehicle and, immediately after the shooting, he felt like it
was a nightmare. Id. at 131.
On cross-examination, Appellant admitted he was angry after the verbal
altercation with Mr. Clancy, and since they lived in a small town, Appellant knew Officer
[J-89-2014] - 10
Lasso prior to the day of the shooting. Id. at 143-44. Appellant admitted it was a sunny,
summer day and, when Officer Lasso first arrived in his police cruiser and asked to speak
to Appellant, he was not threatening towards Appellant. Appellant denied knowing the
person who said, “Shoot ‘em” was a police officer. Id. at 186. Appellant claimed to have
no memory of the events occurring after his “firearm went off[,]” except he recalled that he
was placed in two separate vehicles. Id. at 189. He denied that he said, “Hey, I’m on
candid camera[,]” after he was placed in the state police vehicle, Id. at 194, and he denied
making the following statements at the state police barracks to Trooper Brian C. Roberts:
I don’t understand. I have 10 puppies downstairs and I tell him to stay out
of my fuckin’ yard. Lucky he did not get fuckin’ eaten. They are only three
weeks old and I and my friends have gotten bit, and he is waving around a
gun. Unreal. Fucking numb nuts. That’s some fuckin’ asshole
threatening to kick my ass again. Somebody threatens to kick my ass, a
cop sticks a gun in my face and then threatens to kill my dogs. Oh God,
fuckin’ city life sucks. I’m going back out in the woods. Fuckin’ assholes.
Id. at 196-97.
In response to Appellant’s denial that he made the aforementioned statements to
Trooper Roberts, the Commonwealth confronted Appellant with his videotaped statement
in which he made the precise statements at issue. Id. at 203-04. Upon viewing the
videotaped statement, Appellant professed to have no recollection of making the
statements.
Appellant further denied subsequently telling a fellow prison inmate, Benjamin
Ruffing, that he argued with a neighbor, got “hyped up,” and when a police officer
appeared on the scene, he killed him. Id. at 210-11. He also denied telling Mr. Ruffing
that he knew he was shooting at a police officer, that the “cop never saw it coming,” or that
he was intending to get in his pick-up truck and leave the scene when he was intercepted
[J-89-2014] - 11
by Chief Bruneio. Id. at 213-14. Appellant indicated he recalled speaking with a doctor
after the shooting, and he informed her that he “peed in [his] pants” due to the stress. Id.
at 214.
John Edward Stahr, Jr., a private investigator with twenty-five years of police
service, testified he was hired by the defense to examine the pants, which Appellant had
been wearing at the time of the shooting. His examination revealed bloodstains on the
outside and stains that appeared to be from defecation in the inside. Id. at 225. Mr.
Stahr admitted there was no indication from the police reports that Appellant had
informed the officers on the scene he had defecated in his pants or that the officers
observed any indication of such.
Chief Bruneio testified Appellant complained to the police about past thefts,
including the theft of his four wheel all-terrain vehicle from his property on August 4, 2010,
and the theft of a gun from his house on July 12, 2011. Andrew Hitcho, III, who is
Appellant’s cousin, testified he observed three males removing Appellant’s four wheel
all-terrain vehicle from his property, and he so informed Appellant, who became angry.
Moreover, he confirmed someone broke into Appellant’s home in July of 2011, and when
Appellant told Andrew about the break-in, he was angry. In response to the crimes,
Andrew installed a security system on Appellant’s property. Additionally, Keith
Hammerstone, who is also Appellant’s cousin, confirmed Appellant was the victim of a
break-in in July of 2011.
Trooper Dietz indicated he interviewed Chief Bruneio at 8:00 p.m. on the night of
the shooting, and Chief Bruneio informed him that, when Officer Lasso was shot, “Officer
Lasso had his taser removed from his holster and pointed at the dogs[.]” N.T. 5/16/12,
[J-89-2014] - 12
jury trial, at 43. Karen Hamm, who lives half a mile from Appellant, claimed she saw
police cruisers responding to the scene and, when she went closer to Appellant’s home,
she saw Mr. Schaedel, who told her Officer Lasso “banged” on Appellant’s door and
attempted to enter prior to being shot. Id. at 45. On cross-examination, Ms. Hamm
confirmed she was Appellant’s friend, and she was aware Mr. Schaedel, who was also
Appellant’s friend, was charged in this case with making false reports to law enforcement
officers.
Kelly Yerger testified she visited Appellant throughout the year, and his dogs were
“sweet, loving dogs.” Id. at 73. Her husband, Wayne Yerger, testified “they’re great
dogs.” Id. at 95. Ashley A. Nagle, who is Appellant’s daughter, confirmed Appellant
had an attachment to his dogs.
Susan Elizabeth Rushing, Ph.D., an assistant professor at the University of
Pennsylvania in the department of psychiatry, testified she evaluated Appellant at the
prison on March 9, 2012, and she additionally examined forty-nine different records
pertaining to Appellant. She noted Appellant had a history of repeated head injuries, had
experienced a number of concussions, and carried a diagnosis of post-concussive
syndrome. N.T. 5/17/12, jury trial, at 16.
Specifically, medical records indicated that, when Appellant was fifteen years old,
another child punched him in the eye, resulting in Appellant being hospitalized at the
Grand View Hospital with a fracture to his skull’s orbital floor. Id. at 17. Additionally, in
1988, when Appellant was twenty-three years old, he was admitted to the hospital and
diagnosed as suffering from a concussion as a result of a motorcycle accident. In 1993,
Appellant was treated at the hospital for work-related back pain and a doctor’s note,
[J-89-2014] - 13
which was dated September 10, 1993, indicated Appellant reported having suffered a fall
from a bunk bed when he was a child.
In 2001, Appellant was examined at the South Bethlehem Family Practice, where
he reported temper and impulse control difficulties. Dr. Rushing opined such problems
can occur following a concussion. Id. at 19. In 2002, doctors prescribed Appellant
Zoloft, which is an antidepressant medication commonly prescribed to people who have
sustained a traumatic brain injury, in an effort to assist Appellant in controlling his mood
instability.
Dr. Rushing further testified that, on June 24, 2004, Appellant was admitted to the
hospital and diagnosed as suffering from another concussion following a second
motorcycle accident. In 2005, Appellant was diagnosed with bipolar disorder, as well as
paranoid personality. On September 5, 2007, Appellant was involved in a third
motorcycle accident, admitted to the hospital’s intensive care unit (ICU) for three days,
and suffered a liver laceration and concussion. He was diagnosed as suffering from
post-concussive syndrome, which results when a person’s concussion symptoms do not
improve. Dr. Rushing noted Appellant’s medical records revealed Appellant reported to
a physician’s office on November 21, 2008, complaining of repeated episodes of fainting
accompanied with amnesia, and Appellant had previously received counseling and
medications related to his poor impulse control and anger issues.
During Dr. Rushing’s examination of Appellant on March 9, 2012, he
self-reported having suffered from ten separate head injuries, and he revealed to Dr.
Rushing that, in the year prior to the shooting, he had been experiencing high levels of
anxiety due, in part, to a number of thefts occurring in his neighborhood. Additionally,
[J-89-2014] - 14
following a break-in at his home, which occurred one month prior to the shooting,
Appellant began to feel paranoid that someone was trying to kill him or steal his pedigree
puppies. Id. at 23. He became nervous for the safety of the puppies and began
sleeping in the basement near the puppies. Dr. Rushing opined that Appellant
personified the animals. She testified Appellant relayed to her what memories he had
regarding the day of the shooting, and in particular, he remembered feeling incredibly
fearful for his and his dogs’ safety.
Dr. Rushing opined that, based on the medical records and her examination of
Appellant, Appellant suffered from mild cognitive impairment, which is pre-dementia, a
generalized anxiety disorder, a major depressive disorder, and substance abuse in
remission. Id. at 31. She further opined, to a reasonable degree of medical certainty,
Appellant’s brain damage decreased his ability to assess accurately the threat level on
the day of the shooting and caused him extreme emotional disturbance. Id. at 32-33.
On cross-examination, Dr. Rushing admitted Appellant is neither delusional nor
suffers from hallucinations, and he has the ability to form a specific intent to kill.
However, she found that, on the day of the shooting, Appellant was acting under an
extreme emotional state which impaired his judgment and increased his impulsivity. Dr.
Rushing denied the existence of any evidence of intoxication on the day of the shooting.
Dr. Rushing admitted that a 2011 letter from the Grand View Hospital denied the
existence of any hospital records for Appellant; however, Dr. Rushing testified she
learned about the incident regarding another child punching Appellant from a file kept
while Appellant was living at the New Boys Life Ranch. Id. at 52-53. Dr. Rushing
acknowledged the hospital records from the 1988 motorcycle accident noted only a
[J-89-2014] - 15
“possible concussion” and did not note Appellant actually suffered a concussion. Id. at
69-70. Moreover, the September 10, 1993 doctor’s note, which referenced Appellant’s
childhood fall out of a bunk bed, focused on Appellant’s symptom of back pain and gave
no indication Appellant injured his head when he fell from the bed.
Regarding the June 24, 2004 motorcycle accident, Dr. Rushing indicated on
cross-examination that Appellant was admitted and discharged from the emergency room
on the same day and alcohol intoxication was noted. She indicated the CT Scan of
Appellant’s head was negative, and she admitted Appellant’s loss of consciousness after
the motorcycle accident could have resulted from his intoxication as opposed to head
trauma. Id. at 83. As for the September 5, 2007 motorcycle accident, Dr. Rushing
admitted the hospital’s ICU records revealed Appellant was not “amnestic” as to the
accident and there was no diagnosis made by the hospital as to any head injury. Id. at
86. However, Dr. Rushing noted the hospital’s discharge summary indicated Appellant
was thrown from a motorcycle while not wearing a helmet, and for a physician that is a
very significant indicator for a head injury. Id. at 86-87. Dr. Rushing admitted the
treating physicians at the ICU did not diagnose a head injury or concussion resulting from
the June 24, 2004 motorcycle accident, and a CT scan performed at this time showed no
acute intracranial abnormality. However, Dr. Rushing noted a follow-up examination of
Appellant by a physician on September 20, 2007, revealed the existence of a cerebral
concussion and post-concussive syndrome. Id. at 91. She admitted an MRI of
Appellant’s brain performed in 2008 revealed no abnormalities. Id. at 110.
As for the break-in and theft of a gun from his home, Dr. Rushing noted Appellant
suspected the person responsible was a woman who had previously resided with him and
[J-89-2014] - 16
the theft of his four wheel all-terrain vehicle occurred a year prior to the shooting. Dr.
Rushing concluded it was a viable theory that Appellant shot Officer Lasso because he
acted impulsively due to the stress from the previous break-ins, his fear of losing his dogs,
and his head injuries. Id. at 105, 116-17.
The defense rested, and the Commonwealth presented rebuttal testimony from
Troopers Sims and Roberts. Trooper Sims confirmed he drove Appellant to the state
police barracks, and during the transport, he did not notice any fecal odors emanating
from Appellant. Trooper Sims further testified on rebuttal about statements, which
Appellant made to the police upon arrival at the police barracks. Specifically, Trooper
Sims testified that, at approximately 6:50 p.m., he escorted Appellant to an interview
room, and Appellant complained his ribs hurt. Trooper Sims told Appellant to “sit tight,
the criminal investigator would be in shortly to get him checked out, just sit quietly and
they will be in shortly.” N.T. 5/17/12, jury trial, at 122. Appellant replied, “I will talk. I
told him to get off my property. He ain’t [sic] coming on my property without a warrant.
He tried to kill my dogs and pointed a gun in my face. I don’t care if they’re [sic] a cop or
not, unbelievable.” Id. at 123.
Trooper Roberts testified on rebuttal that, at approximately 9:20 p.m., he read
Appellant his Miranda7 rights, and after Appellant initially stated he did not wish to speak
about the incident, Trooper Roberts informed Appellant that, if he needed anything or
wished to speak with him, he should so notify a patrol officer. As Trooper Roberts was
preparing to leave the interview room, Appellant stated:
7 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[J-89-2014] - 17
The only thing I need to know is what’s going on with my dogs because a
police officer threatened to kill them, and I need to know what happened to
them because all I did was black out, and when I woke up he was on the
ground and he had a gun pointed at me first and then the dogs second, and
the last thing--and I don’t remember anything else--I just want to know
what’s going on with my dogs.
N.T. 5/17/12, jury trial, at 126. Appellant further stated, “Everything would have been
fine if he did not point a gun at me and the dogs.” Id. at 127. Appellant told Trooper
Roberts, “Thank God my dogs are all right. Thank God. I can lose everything else in
my life, but you’re not taking my dogs, the only thing that I have left in my fuckin’ name.”
Id. at 128. Trooper Roberts denied Appellant complained of having soiled himself in any
fashion.
At the close of trial, the jury found Appellant guilty of first degree murder, and since
the Commonwealth was seeking the death penalty, the jury remained empanelled for a
separate penalty phase hearing. On May 24, 2012, after hearing additional testimony,
argument from both the defense counsel and prosecutor, and instructions from the trial
court, the same jury unanimously found one aggravating circumstance: The victim was a
peace officer or local law enforcement official who was killed in the performance of his
duties. See 42 Pa.C.S. § 9711(d)(1). One or more jurors also found three mitigating
circumstances: (1) Appellant has no significant history of prior criminal convictions; (2)
Appellant was under the influence of extreme mental or emotional disturbance; and (3)
The capacity of Appellant to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was substantially impaired. See 42 Pa.C.S. §
9711(e)(1), (2), (3). However, the jury unanimously further found the aggravating
circumstance outweighed the three mitigating circumstances, and consequently, the jury
sentenced Appellant to death. See 42 Pa.C.S. § 9711(c)(1)(iv).
[J-89-2014] - 18
Thereafter, Appellant filed a timely post-sentence motion, which the trial court
denied. Appellant timely appealed to this Court and timely filed a court-ordered concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925.
I. Sufficiency of the Evidence for First Degree Murder Conviction
Although not specifically challenged by Appellant, we begin by independently
reviewing the evidence to ensure that it is sufficient to support his conviction for first
degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert.
denied, 461 U.S. 970, 103 S.Ct. 2444 (1983) (providing that, in all cases in which the
death penalty is imposed, it is this Court’s duty to undertake a review of the sufficiency of
the evidence). Because evidentiary sufficiency presents a question of law, our standard
of review is de novo and our scope of review is plenary. Commonwealth v. Sanchez,
614 Pa. 1, 36 A.3d 24 (2011), cert. denied, 133 S.Ct. 122 (2012). In reviewing the
sufficiency of the evidence, “we must decide whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom in favor of the Commonwealth, as verdict
winner, support the jury’s finding of all the elements of the offense beyond a reasonable
doubt.” Commonwealth v. Mitchell, 588 Pa. 19, 42, 902 A.2d 430, 444 (2006), cert.
denied, 549 U.S. 1169, 127 S.Ct. 1126 (2007) (citation omitted).
To sustain a conviction for murder of the first degree, the Commonwealth must
prove that: (1) a human being was unlawfully killed; (2) the person accused is responsible
for the killing; and (3) the accused acted with malice and specific intent to kill. See 18
Pa.C.S. § 2502(a). At trial, the only disputed element was whether Appellant had the
requisite malice and intent to kill. For first degree murder, an intentional killing is a “killing
[J-89-2014] - 19
by means of poison or by lying in wait, or any other kind of willful, deliberate, and
premeditated killing.” 18 Pa.C.S. § 2502(d). We are cognizant that “the period of
reflection required for premeditation to establish the specific intent to kill may be very
brief; in fact the design to kill can be formulated in a fraction of a second. Premeditation
and deliberation exist whenever the assailant possesses the conscious purpose to bring
about death.” Commonwealth v. Rivera, 603 Pa. 340, 354, 983 A.2d 1211, 1220 (2009),
cert. denied, 560 U.S. 909, 130 S.Ct. 3282 (2010) (quotation and quotation marks
omitted). Moreover, the finder of fact may infer malice and specific intent to kill based on
the defendant’s use of a deadly weapon on a vital part of the victim’s body.
Commonwealth v. Arrington, ___ Pa. ___, 86 A.3d 831, 840 (2014), cert. denied, 135
S.Ct. 479 (2014).
We find the Commonwealth provided sufficient evidence to prove each element of
first degree murder beyond a reasonable doubt. Specifically, it is undisputed that,
following Appellant’s late afternoon verbal altercation with a neighbor, Officer Lasso
arrived on the scene in response to a 911 call. As Officer Lasso, who was in full uniform
with his gun holstered, stood with his back towards Appellant’s residence’s closed door,
and attempted to fend off two snarling dogs, Appellant used a shotgun to shoot him in the
back of the head, which forensic testimony established is a vital part of the human body.
Forensic testimony further established Officer Lasso’s wound was not survivable and he
died within seconds of being shot. The record evidence suggests a presence of mind
belying Appellant’s contentions he lacked specific intent. Viewed in the light most
favorable to the Commonwealth as the verdict winner, the evidence was sufficient to
support a finding Officer Lasso was unlawfully killed, Appellant killed him, and he acted
[J-89-2014] - 20
with malice and specific intent to kill. We now proceed to address the claims raised by
Appellant.
II. Denial of Motion in Limine to Exclude Firearms
Appellant first claims the trial court erred in denying his pre-trial motion in limine
seeking the exclusion of evidence related to four guns, which were lawfully seized by the
police from Appellant’s residence immediately after the shooting but not utilized in the
commission of the crime.8 Specifically, citing to Commonwealth v. Robinson, 554 Pa.
293, 721 A.2d 344 (1998), cert. denied, 528 U.S. 1082, 120 S.Ct. 804 (2000), and
Commonwealth v. Lee, 541 Pa. 260, 662 A.2d 645 (1995), cert. denied, 517 U.S. 1211,
116 S.Ct. 1831 (1996), Appellant argues any evidence of the four firearms should have
been excluded solely on the basis the weapons were undisputedly not the murder
weapon. Moreover, he suggests that, even if the four firearms were not subject to a
blanket exclusion on this basis, evidence of the four firearms was otherwise irrelevant and
highly prejudicial.
The Commonwealth admits the evidence reveals Appellant did not utilize any of
the four guns at issue in killing Officer Lasso and, instead, he used a specific 12-gauge
shotgun, which Chief Bruneio seized outside of Appellant’s residence immediately after
the shooting. However, the Commonwealth contends the trial court properly concluded
evidence of the four guns was admissible to show Appellant had the specific intent to kill
in that, although Appellant had an array of weapons at his disposal, he chose to utilize a
8 The four guns at issue include a Marlin 30-30 rifle, a Ruger M77 rifle, a Winchester M94
rifle, and a Rossi .38 caliber revolver. Appellant additionally includes a Mossberg
12-gauge shotgun in his list of challenged firearms; however, the record confirms the trial
court excluded evidence related to this specific firearm. N.T. 5/11/12, pretrial, at 138.
[J-89-2014] - 21
12-gauge shotgun, which would be likely to inflict more damage, when he shot Officer
Lasso. Alternatively, the Commonwealth contends evidence of the four guns was
admissible to demonstrate Appellant’s familiarity with weapons and, thus, negate his
claim that he mistook the taser gun, which Officer Lasso was holding, for a handgun.
Initially, we note that, “[w]hen reviewing the denial of a motion in limine, we apply
an evidentiary abuse of discretion standard of review.” Mitchell, 588 Pa. at 60, 902 A.2d
at 455 (2006) (citation omitted). Thus, we review the denial of the motion for an abuse of
discretion. Id. “In general, relevant evidence, i.e., evidence that logically tends to
establish a material fact in the case, tends to make a fact at issue more or less probable[,]
or supports a reasonable inference or presumption regarding a material fact, is
admissible.” Commonwealth v. Jordan, 619 Pa. 513, 524-25, 65 A.3d 318, 324 (2013),
cert. denied, 134 S.Ct. 1275 (2014) (quotation and quotation marks omitted). See
Commonwealth v. Patterson, ___ Pa. ___, 91 A.3d 55 (2014). However, although a
court may find that evidence is relevant, the court may nevertheless exclude the evidence
if its probative value is outweighed by the likelihood of unfair prejudice. Commonwealth
v. Reid, 571 Pa. 1, 34, 811 A.2d 530, 550 (2002), cert. denied, 540 U.S. 850, 124 S.Ct.
131 (2003) (citation omitted). Thus, in exercising its discretion, the trial court must
balance the evidentiary value of the evidence against the potential dangers of unfairly
prejudicing the accused, inflaming the passions of the jury, or confusing the jury. See
Jordan, supra.In the instant case, however, we need not resolve the issue of whether the trial
court abused its discretion in denying Appellant’s motion in limine, thus permitting the
Commonwealth to introduce evidence of the four guns. Assuming, arguendo, the trial
[J-89-2014] - 22
court erred, given the overwhelming evidence establishing first-degree murder, we find
any error to be harmless, and thus not warranting relief. Commonwealth v. Ballard, 622
Pa. 177, 207-08, 80 A.3d 380, 399-400 (2013), cert. denied, 134 S.Ct. 2842 (2014)
(“Harmless error exists whereN[,inter alia,] the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have contributed to the verdict.”)
(quotation and citation omitted)).
Specifically, in this regard, the evidence demonstrates that Appellant shot a
uniformed police officer in the back of the head from a distance of five feet with a shotgun.
The shooting occurred immediately after Appellant had an aggressive confrontation with
a neighbor during which time Appellant was in possession of a makeshift weapon. N.T.
5/14/12, jury trial, at 81, 90, 96, 107, 117-19. Furthermore, unchallenged testimony
established that the police seized from Appellant’s dining room another makeshift
weapon (a baseball bat with protruding spikes), N.T. 5/15/12, jury trial, at 42, and
testimony from Dr. Rushing set forth Appellant’s lack of control over his temper, although
he was found to be legally competent to be tried and held accountable for his actions.
N.T. 5/17/12, jury trial, at 19, 26-27, 32, 103-04. Additionally, while Appellant offered an
explanation for his actions to the jury, his testimony was fraught with inconsistencies and
based on an unbelievable version of events wherein Appellant related that he believed an
unknown intruder was attempting to break into his back door, even though he knew
Officer Lasso, with whom he was acquainted, was in the back of his house waiting to
speak with him. N.T. 5/16/12, jury trial, at 113, 119-25, 143-44, 148-49, 167.
[J-89-2014] - 23
In sum, the circumstances surrounding the shooting, Appellant’s unbelievable
explanation, the evidence establishing Appellant’s propensity towards violence, and the
weakness of Appellant’s defense, which was premised on his inability to manage his
anger and emotions, leads to the conclusion that any error in the trial court’s admission of
the four guns was harmless. See Ballard, supra. Thus, Appellant’s claim fails.
III. Admission of “Candid Camera” Statement at Guilt Phase
Appellant next maintains the trial court erred in permitting Trooper Kelly to testify,
over defense counsel’s objection, that, while Appellant was detained in the back seat of
the state police cruiser and subject to video surveillance, Appellant spontaneously stated,
“Hey, I’m on Candid Camera.” N.T. 5/14/12, jury trial, at 314. See id. at 305-06
(defense counsel objecting to Trooper Kelly offering such testimony and the trial court
overruling the objection). Appellant contends evidence of the statement was irrelevant
and, to the extent such could be found relevant, its relevance was outweighed by its
undue prejudice. In this regard, Appellant suggests the statement unfairly depicted him
as “callous and indifferent about the death of Officer LassoN[and] served no purpose
other than to inflame the jury and prejudice them against [Appellant].” Appellant’s Brief
at 19.
The trial court held the statement at issue was relevant since it was probative of
Appellant’s state of mind when he shot Officer Lasso. The trial court highlighted “[t]he
cavalier, nonchalant quality of [Appellant’s] statement, which was made at the crime
scene shortly after the shooting, bespoke a certain cold-bloodedness and thereby
undermined [Appellant’s] contention that he killed Officer Lasso in the heat of passion or
in an unjustified belief that he was acting in self-defense.“ Trial Court Opinion dated
[J-89-2014] - 24
11/27/13 at 52-53. The trial court further determined the probative value of the evidence
outweighed its prejudicial effect. Id. at 53.
We conclude the trial court did not err in this regard. In this capital case, Appellant
admitted at trial he shot Officer Lasso and his defense was centered on his alleged lack of
specific intent to kill. Appellant’s actions, statements, and demeanor before, during, and
after the commission of the shooting are generally relevant to show his state of mind.
See Commonwealth v. Reid, ___ Pa. ___, 99 A.3d 470 (2014); Commonwealth v.
Murphy, 493 Pa. 35, 425 A.2d 352 (1981) (indicating evidence of an appellant’s
statements and conduct at a time and place close to the commission of the crime for
which he is charged is admissible if relevant to show a defendant’s mental state when he
committed the charged crimes).
Here, Appellant made his spontaneous “candid camera” statement within an hour
and a half after he shot Officer Lasso, in the presence of other police officers, and as he
was about to be transported to the police station. We agree with the trial court that the
statement, made under such circumstances as to demonstrate Appellant was in a “joking
mood” shortly after having just shot a police officer, was relevant to show he did so with
malice and specific intent and undermined his attempts to reduce his level of culpability.
The evidence did not impugn Appellant’s character, nor was it unduly prejudicial.
Commonwealth v. Towles, ___ Pa. ___, 106 A.3d 591, 603 (2014). Accordingly, the trial
court did not err in admitting this evidence.
IV. Limiting of Defense’s Cross-Examination of Trooper Roberts
Appellant next argues that, during the guilt phase, the trial court improperly limited
defense counsel’s cross-examination of the lead police investigator, Trooper Roberts,
[J-89-2014] - 25
thus prohibiting defense counsel from eliciting testimony about out-of-court statements,
which Appellant made at the police station. Appellant contends that, by asking Trooper
Roberts on direct examination to “outline his investigation,” the Commonwealth “opened
the door” for defense counsel to “elicit [on cross] the statements [Appellant] made when
interviews of [Appellant] were conducted by Trooper Sims and Trooper Roberts.” 9
Appellant’s Brief at 20-21.
A review of the pertinent portion of the trial notes of testimony reveal that, at the
guilt phase on May 15, 2012, the Commonwealth presented during its case-in-chief the
testimony of Trooper Roberts, who testified, inter alia, that, as the lead investigator, he
assigned investigators to interview the witnesses, accumulated the physical evidence,
marshalled the evidence into a completed report, and filed the criminal charge against
Appellant. N.T. 5/15/12, jury trial, at 14-18.
On cross-examination, defense counsel showed Trooper Roberts the criminal
complaint and affidavit of probable cause. Id. at 21-22. The following relevant
exchange then occurred:
[DEFENSE COUNSEL]: Everything is true and correct in that affidavit?
9 Appellant’s out-of-court statements at issue are as follows: (1) “I will talk. I told him to
get off my property. He ain’t [sic] coming on my property without a warrant. He tried to
kill my dogs and pointed a gun in my face. I don’t care if you’re a cop or not, unbelievable.”
N.T. 5/15/12, jury trial, at 178; (2) “The only thing I need to know is what’s going on with
my dogs because a police officer threatened to kill them, and I need to know what
happened to them because all I did was black out, and when I woke up he was on the
ground and he had a gun pointed at me first and then the dogs second and the last
thing--and I don’t remember anything else--I just want to know what’s going on with my
dogs.” Id. at 180; (3) “[E]verything would have been fine if he did not point the gun at me
and the dogs.” Id. at 180; and (4) “Thank God my dogs are all right. Thank God. I can
lose everything else in my life, but you’re not taking my dogs, the only thing I have left in
my fucking name[.]” Id. at 181.
[J-89-2014] - 26
[TROOPER ROBERTS]: Yes, it is.
[DEFENSE COUNSEL]: Can you look at paragraph two, and can you
read that affidavit?
[THE PROSECUTOR]: Objection, your honor. May we approach?
(The following discussion was held at sidebar.)
THE COURT: What is your objection?
[THE PROSECUTOR]: I’d like an offer of proof. What’s going on?
It’s beyond the scope of my direct, number one.
THE COURT: What is the question?
[DEFENSE COUNSEL]: Number one, I asked him if he filed a
criminal complaint, and he said yes. I simply want to put in as fact that
when the victim was shot the taser was pointed at the dogs. It’s in his
affidavit of probable cause. It’s his signed statement.
[THE PROSECUTOR]: He can bring this out on his side of the
case.
THE COURT: I will allow the question.
[DEFENSE COUNSEL]: The officer said he does interviews. I
was going to elicit additional statements by [Appellant] because he testified
on direct.
THE COURT: What statements?
[DEFENSE COUNSEL]: Some other statements from [Appellant],
because he indicated on direct that it was part of his investigation that he
does interviews.
THE COURT: Is that part of his procedure?
[DEFENSE COUNSEL]: It would be.
THE COURT: I’ll let you go with this.
[DEFENSE COUNSEL]: I’ll do this now, and I’ll call him on my side
of the case.
(End of discussion at sidebar.)
[DEFENSE COUNSEL]: Officer, could you read paragraph two of the
affidavit of probable cause?
[TROOPER ROBERTS]: Upon arrival, Bruneio observed Officer Lasso
being attacked by two dogs. Bruneio observed Lasso with his electronic
immobilization device, taser, pointed at the dogs. Bruneio directed Lasso
to shoot the dogs. At that point Bruneio heard a loud pop and observed
Officer Lasso fall to the ground.
[DEFENSE COUNSEL]: And the taser is--when you say the
immobilization device, is that the taser?
[TROOPER ROBERTS]: Yes.
[DEFENSE COUNSEL]: That would be the exhibit--I believe it is--the
exhibit that was presented, the taser?
[TROOPER ROBERTS]: Yes.
THE COURT: For the record, that’s C-10.
[DEFENSE COUNSEL]: So when you filed charges against [Appellant],
what you put in the affidavit of probable cause at the time of the shooting,
the taser was pointed at the dogs, is that correct?
[J-89-2014] - 27
[TROOPER ROBERTS]: That was the information provided to me at that
time.
[DEFENSE COUNSEL]: Nothing further.
[PROSECUTOR]: Nothing further, your honor.
THE COURT: All right. Trooper, you may step down.
Id. at 22-25.
Contrary to Appellant’s averment, there is no indication from the record the trial
court prevented defense counsel from cross-examining or eliciting testimony from
Trooper Roberts regarding statements Appellant made at the police station. In fact,
when defense counsel initially proffered that he intended to cross-examine Trooper
Roberts in this manner, the trial court ruled, “I’ll let you go with this.” Id. at 23. However,
defense counsel then altered his course of action, indicating he would cross-examine
Trooper Roberts about Chief Bruneio’s statements concerning the taser, which were
included in the affidavit of probable cause, and he would then later recall Trooper Roberts
on direct examination to ask him questions about the statements, which Appellant made
to the troopers. Id. at 23-24. Appellant’s mischaracterization of the record
notwithstanding, we conclude the trial court did not limit Appellant’s cross-examination of
Trooper Roberts in the manner averred by Appellant.
In any event, as further discussed infra, the jury was made aware of Appellant’s
statements at issue via the testimony of Troopers Sims and Roberts, who testified as
Commonwealth rebuttal witnesses and confirmed Appellant made each of the
out-of-court statements at issue. See N.T. 5/17/12 at 123, 127-28.
V. Limiting of Defense’s Direct Examination of Trooper Roberts10
10 Appellant presents two separate argument sections, Claims D and E, related to the
trial court’s ruling, which pertained to defense counsel’s direct examination of Trooper
(continuedN)
[J-89-2014] - 28
Appellant next argues that, during the guilt phase, the trial court improperly limited
defense counsel’s direct examination of Trooper Roberts, thus improperly prohibiting
defense counsel, a second time, from eliciting testimony regarding the out-of-court
statements, as referenced infra in footnote eleven, which Appellant made at the police
station. In this regard, Appellant contends the trial court erred in ruling Appellant’s
out-of-court statements constituted inadmissible hearsay and/or his statements were
inadmissible pursuant to Pennsylvania Rule of Evidence 106.11 Appellant avers he was
prejudiced by the trial court’s ruling since it precluded the jury from considering his
out-of-court statements at issue, which supported his defense theories. Alternatively,
Appellant suggests the trial court’s ruling improperly forced him to testify as a condition
precedent to defense counsel eliciting testimony about the statements from Trooper
Roberts on direct examination.
In order to place Appellant’s current claim in context, we note the following: As
indicated supra, during the cross-examination of Trooper Roberts, defense counsel
declined to ask the trooper questions about Appellant’s statements, which Appellant
made at the police station, and instead, defense counsel informed the trial court he
planned to recall Trooper Roberts on direct examination to elicit the statements. See
(Ncontinued)
Roberts. See Appellant’s Brief at 21-37. However, as the arguments are inextricably
intertwined, we shall address them together.
11 Pa.R.E.106 provides the following: “If a party introduces all or part of a writing or
recorded statement, an adverse party may require the introduction, at that time, of any
other part--or any other writing or recorded statement--that in fairness ought to be
considered at the same time.”
[J-89-2014] - 29
N.T. 5/15/12, jury trial, at 23-24. Thereafter, immediately after the Commonwealth
rested its case-in-chief, the Commonwealth made an oral motion in limine seeking to
preclude defense counsel from eliciting testimony on direct examination of Trooper
Roberts concerning the aforementioned statements. N.T. 5/15/12, jury trial, at 107-08.
The Commonwealth argued that, in the event Appellant did not testify, and thus was not
subject to cross-examination, any attempt to have his self-serving out-of-court statements
and version of events presented to the jury via defense counsel’s direct examination of
Trooper Roberts would be impermissible. See id. at 108. Following argument from the
parties, the trial court granted the Commonwealth’s oral motion in limine as to the specific
statements set forth in footnote eleven, supra. See id. at 178-81.
Subsequently, Appellant testified and defense counsel did not question Appellant
as to whether he made the out-of-court statements at issue. However, on
cross-examination of Appellant, the prosecutor asked Appellant whether he remembered
making his out-of-court statements, and Appellant testified he had no memory of making
them.12 See N.T. 5/16/12, jury trial, at 195-97. Defense counsel then called Trooper
Roberts to testify on direct examination; however, despite the fact Appellant had testified
in accordance with the trial court’s ruling, defense counsel did not attempt to elicit any
12 For clarification, Appellant testified he “probably” made the following statement to
Trooper Roberts:
The only thing I need to know is what’s going on with my dogs because a
police officer threatened to kill them and I need to know what happened to
them because all I did was black out, and when I woke up he was on the
ground, he had a gun pointed at me first, and then the dogs second, and the
last thing--and I don’t remember anything else--I just want to know what’s
going on with my dogs[.]
N.T. 5/16/12, jury trial, at 195-96. He testified he did not remember making the
remaining statements.
[J-89-2014] - 30
testimony from Trooper Roberts concerning the statements Appellant made to the
troopers at the police station.
Thereafter, the Commonwealth called Troopers Sims and Roberts as rebuttal
witnesses, and they confirmed Appellant made each of the out-of-court statements at
issue. See N.T. 5/17/12, jury trial, at 123, 127-28.
Assuming, arguendo, the trial court erred in granting the Commonwealth’s motion
in limine, we agree with the Commonwealth that such error was harmless. See Mitchell,
supra (holding that an erroneous ruling on an evidentiary issues does not require us to
grant relief where the error is harmless). As indicated supra, the trial court’s ruling
prohibited defense counsel from eliciting, in the absence of Appellant testifying, testimony
from Trooper Roberts on direct examination regarding Appellant’s out-of-court
statements at issue. Thereafter, despite the fact Appellant testified, and then
subsequently called Trooper Roberts to testify during the defense’s case-in-chief,
defense counsel did not attempt to elicit testimony from the trooper concerning the
statements. Thus, although Appellant now baldly suggests, without citation to authority,
he was prejudiced since the trial court’s ruling “forced [him] to testify and be exposed to
cross examination,” see Appellant’s Brief at 37, the record belies this contention. That is,
Appellant cannot complain he was “forced” to testify so as not to lose the opportunity to
elicit the desired testimony from Trooper Roberts, when, after Appellant testified, he did
not seek to elicit such testimony from the trooper on direct examination. Moreover, as
discussed supra, evidence of Appellant’s out-of-court statements was, in fact, presented
to the jury via the rebuttal testimony of Troopers Sims and Roberts. For these reasons,
we are convinced any prejudice suffered by Appellant as a result of the trial court’s
[J-89-2014] - 31
granting of the Commonwealth’s motion in limine was de minimis. 13 See
Commonwealth v. Hairston, ___ Pa. ___, 84 A.3d 657, 671-72 (2014), cert. denied, 135
S.Ct. 164 (2014) (indicating harmless error exists if the record demonstrates the error did
not prejudice Appellant or the prejudice was de minimis).
VI. Passion, Prejudice, and Arbitrariness Review of Death Sentence
The death penalty statute requires this Court to conduct an independent penalty
review pursuant to 42 Pa.C.S. § 9711(h)(3). Commonwealth v. Martin, ___ Pa. ___,
101 A.3d 706, 732 (2014). Section 9711(h)(3) provides that “[t]he Supreme Court shall
affirm the sentence of death unless it determines that: (i) the sentence of death was the
product of passion, prejudice or any other arbitrary factor; or (ii) the evidence fails to
support the finding of at least one aggravating circumstance specified in subsection (d).”
42 Pa.C.S. § 9711(h)(3). Invoking this statutory provision, Appellant claims the jury’s
death sentence was the product of passion, prejudice or some other arbitrary factor, and
therefore, he is entitled to a new sentencing hearing. Appellant argues it is apparent the
jury relied on passion, prejudice or some other arbitrary factor since, despite the fact “one
or more jurors concluded [Appellant] was suffering from a mental or emotional
disturbance and could not appreciate the criminality of his conduct or conform his conduct
to the requirements of the law[,]” see Appellant’s Brief at 37, the jury still sentenced him to
death. Appellant suggests that, in finding these two mitigating factors existed, the jury
must have necessarily accepted the testimony of the defense’s mitigation experts, Dr.
13 To the extent Appellant suggests the defense’s direct examination of Trooper Sims
was similarly improperly limited by the trial court’s ruling, we note that, despite the fact
Appellant testified, he never called Trooper Sims as a witness during the defense’s
case-in-chief. Thus, similar to Appellant’s allegation of prejudice as it pertains to the
defense’s direct examination of Trooper Roberts, Appellant is not entitled to relief.
[J-89-2014] - 32
Rushing and Dr. Gerald Cooke,14 as providing an accurate assessment of Appellant’s
mental state at the time of the shooting. Appellant further suggests the jury necessarily
accepted additional mitigation evidence, including the fact Appellant was “so paranoid” he
had a security system installed and the shooting occurred during a “volatile situation”
where Appellant did not discharge his weapon until Chief Bruneio commanded, “Shoot
‘em.” See Appellant’s Brief at 41-43. Appellant avers that, since the jury found just one
aggravating circumstance,15 but seemingly accepted all of his mitigation evidence in
finding the two mitigating circumstances set forth supra, as well as a third mitigating factor
related to his lack of significant prior criminal convictions, the only logical explanation is
the jury’s death sentence was an “emotional decision,” which was the product of passion,
prejudice or some other arbitrary factor.
Initially, we note that, in presenting his argument, Appellant has developed a
substantial account of the factual record, and recounted the evidence he submitted in
mitigation, for our review; however, he has failed to develop a legal argument that would
14 Dr. Rushing testified at the penalty phase regarding, inter alia, Appellant’s history of
brain injuries, drug use, and chronic pain. Dr. Cooke, a forensic psychologist, testified
about, inter alia, Appellant’s history of amnesia and concussions. He opined, to a
reasonable degree of psychological certainty, that Appellant suffers from cognitive
disorders, which are an extreme mental or emotional disturbance. N.T. 5/23/12,
sentencing hearing, at 38.
15 As the Commonwealth notes, during the penalty phase, Appellant conceded the
existence of the aggravating circumstance at issue, i.e., the victim was a peace officer or
local law enforcement official who was killed in the performance of his duties. See N.T.
5/21/12, sentencing hearing, at 50.
[J-89-2014] - 33
warrant us setting aside the jury’s finding.16 In any event, as the trial court noted in its
opinion, Appellant’s “argument on this issue is, effectively, a challenge to the jury’s
weighing of the three mitigating circumstances found to exist against the single
aggravating circumstance.” Trial Court Opinion dated 11/27/13 at 81. This Court has
previously reaffirmed that the weighing process is exclusively a question for the finder of
fact, the language of 42 Pa.C.S. § 9711(h)(3) does not create an obligation for this Court
to reweigh the evidence, and we “may not reverse a death penalty on weight of the
evidence grounds.” Ballard, 622 Pa. at 230, 80 A.3d at 412 (citing Commonwealth v.
Reyes, 600 Pa. 45, 963 A.2d 436, 441-42 (2009), cert denied, 558 U.S. 850, 130 S.Ct.
127 (2009)).
[T]there is no mechanism by which a sentence of death may be
reversed by this Court on the basis of an improper weighing of aggravating
and mitigating circumstances because our authority to vacate a sentence is
prescribed by 42 Pa.C.S. § 9711(h)(3), which requires us to affirm the
sentence of death unless: “(i) the sentence of death was the product of
passion, prejudice or any other arbitrary factor; or (ii) the evidence fails to
support the finding of at least one aggravating circumstance specified in
subsection (d).” Id.
“[T]his restriction on our authority has caused this Court to reiterate
many times that it is exclusively the function of the jury in the first instance to
decide whether aggravating and mitigating circumstances exist and then
whether the aggravating circumstances outweigh any mitigating
circumstances.” Reyes, 963 A.2d at 441.
Commonwealth v. Diamond, ___ Pa. ___, ___, 83 A.3d 119, 135 (2013), cert. denied,
135 S.Ct. 145 (2014).
16 In fact, aside from citing to Commonwealth v. Dick, 602 Pa. 180, 978 A.2d 956 (2009),
cert. denied, 559 U.S. 1072, 130 S.Ct. 2098 (2010), for the general proposition that this
Court must conduct an independent penalty review pursuant to 42 Pa.C.S. § 9711(h)(3),
Appellant has failed to cite case law supporting his argument.
[J-89-2014] - 34
Although this Court is not privy to the jury’s deliberation, the fact the jury concluded
the aggravating circumstance outweighed any mitigating circumstances does not render
its verdict the “product of passion, prejudice or any other arbitrary factor.” 42 Pa.C.S. §
9711(h)(3)(i)). We cannot set aside the jury’s verdict based upon speculation that the
jury did not do its duty. Moreover, it does not follow that, since one or more jurors found
the existence of the three mitigating circumstances at issue, the jury necessarily
“accepted” all of the mitigation evidence set forth by Appellant. Rather, the jury was free
to believe all, part, or none of the evidence presented. See Diamond, supra.VII. Death Sentence Against the Weight of the Evidence
Appellant next avers generally that “his death sentence was against the weight of
the evidence.”17 Appellant’s Brief at 44 (footnote omitted). Appellant recognizes that,
under our existing jurisprudence, claims regarding weight of the evidence are not
available to challenge a death sentence. See Appellant’s Brief at 44 n.16 (citing Ballard,
supra). See also Diamond, supra; Reyes, supra. However, he notes he is raising a
weight of the evidence claim for preservation purposes. See Appellant’s Brief at 44 n.16.
As our precedent makes it clear that claims regarding weight of the evidence are not
available to challenge a death sentence, and Appellant offers no basis for us to depart
therefrom, we find this claim to be unavailing.
17 Appellant fails to recognize his previous argument in which he attempted to invoke our
statutory obligation under Section 9711(h)(3) was effectively a challenge to the weight of
the evidence for his death sentence. In Ballard, supra, we specifically rejected the notion
that our review under Section 9711(h)(3) for passion, prejudice or other arbitrary factors is
a mandate to review the weight of the evidence.
[J-89-2014] - 35
VIII. Jury Instructions at Penalty Phase18
Appellant next claims the trial court abused its discretion in denying three of his
proposed points for charge at the penalty phase. Specifically, Appellant contends the
trial court erred in failing to give the following three proposed jury instructions:
A. Life Without the Possibility of Parole
Under Pennsylvania law, a person who has been convicted of first
degree murder must be sentenced to one of two possible sentences; death
or life in prison without the possibility of parole. In Pennsylvania, a
sentence of life in prison without the possibility of parole means just that. A
person convicted of first-degree murder is not eligible for parole. If
sentenced to life in prison without the possibility of parole, Defendant will
die in prison.
N.T. 5/23/12, sentencing hearing, at 171-72; Appellant’s Penalty Phase Points for Charge
No. 1; Trial Court Opinion dated 11/27/13 at 94-95.
B. Presumption of Life Imprisonment in Capital Cases
There is a presumption of life imprisonment in this case. The
Commonwealth bears a heavier burden to show aggravating factors
beyond a reasonable doubt while factors in mitigation need only be proven
by a mere preponderance of the evidence. Life has intrinsic value and
should not be taken by the Commonwealth without good cause, proven to
our highest standard, whereas life imprisonment remains our default
punishment for capital cases.
N.T. 5/23/12, sentencing hearing, at 172-73; Appellant’s Penalty Phase Points for Charge
No. 3; Trial Court Opinion dated 11/27/13 at 96.
C. Death Sentence Never Required
A jury is never required to impose a death sentence and a sentence
of death cannot be imposed except by unanimous vote.
18 Appellant presents three claims (Claims H, I, and J) pertaining to the trial court’s jury
instructions at the penalty phase. For the sake of clarity, we shall address the claims
under one heading.
[J-89-2014] - 36
N.T. 5/23/12, sentencing hearing, at 175; Appellant’s Penalty Phase Points for Charge
No. 10; Trial Court Opinion dated 11/27/13 at 97-98.
Initially, we note that “[i]t is a bedrock appellate principle that ‘issues not raised in
the lower court are waived and cannot be raised for the first time on appeal.’ ‘A general
exception to the charge to the jury will not preserve an issue for appeal. Specific
exception shall be taken to the language or omission complained of.’” Commonwealth v.
Sanchez, ___ Pa. ___, 82 A.3d 943, 978 (2013), cert. denied, 135 S.Ct. 154 (2014)
(quotations omitted). Moreover, this Court has held, in the criminal trial context, “the
mere submission and subsequent denial of proposed points for charge that are
inconsistent with or omitted from the instructions actually given will not suffice to preserve
an issue, absent a specific objection or exception to the charge or the trial court’s ruling
respecting the points.” Commonwealth v. Pressley, 584 Pa. 624, 632, 887 A.2d 220,
225 (2005) (footnote omitted).
Our review of the record confirms that, prior to the parties’ closing arguments, the
trial court conducted an on-the-record charging conference in chambers at which it
denied Appellant’s proposed points for charge at issue. N.T. 5/23/12, sentencing
hearing, at 171-75. Defense counsel did not object or take exception to the trial court’s
rulings. In fact, in denying Appellant’s first and second proposed instructions at issue,
the trial court indicated it planned to use the standard charges, and defense counsel
responded, “That’s fine” and “Okay.” Id. at 172-73. In denying Appellant’s third
proposed instruction at issue, the trial court indicated it was going to give the standard
instruction, and defense counsel remained silent. Id. at 175. Additionally, at the
conclusion of the charging conference, the trial court inquired as to whether the parties
[J-89-2014] - 37
had “anything else on the jury instructions[,]” and defense counsel replied, “No.” Id. at
175-76. Moreover, following the jury charge, Appellant failed to object to the instruction
or take exception to it before the jury retired to deliberate. Indeed, the trial court inquired
of counsel whether there were any objections to the charge as given, and defense
counsel replied, “None, your honor.” N.T. 5/24/12, sentencing hearing, at 114.
As is evident, Appellant made no specific objection or exception to the charge or
the trial court’s rulings respecting the points. See Pressley, supra. This Court
abolished the relaxed waiver doctrine in capital direct appeals filed after the date of our
decision in Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003), cert. denied,
543 U.S. 822, 125 S.Ct. 30 (2004). Thus, Appellant’s challenges to the trial court’s death
penalty instruction have been waived on direct appeal.
IX. Constitutionality of Pennsylvania’s Death Penalty Statute
Appellant next presents two constitutional challenges to Pennsylvania’s capital
sentencing statute. We note:
A presumption exists “[t]hat the General Assembly does not intend to
violate the Constitution of the United States or of this Commonwealth” when
promulgating legislation. 1 Pa.C.S. § 1922(3). Duly enacted legislation is
presumed valid, and unless it clearly, palpably and plainly violates the
Constitution, it will not be declared unconstitutional. Commonwealth v.
Davidson, 595 Pa. 1, 938 A.2d 198, 207 (2007). Accordingly, the party
challenging the constitutionality of a statute bears a heavy burden of
persuasion. Id.Commonwealth v. Baker, 621 Pa. 401, 411, 78 A.3d 1044, 1050 (2013).
A. Burden of Proof Regarding Mitigating Factors
Appellant first presents a broad claim that the capital sentencing statute requiring
the defendant to prove mitigating circumstances by a preponderance of the evidence, 42
[J-89-2014] - 38
Pa.C.S. § 9711(c)(1)(iii), is unconstitutional. 19 According to Appellant, Section
9711(c)(1)(iii) creates an impermissible “burden of proof” barrier to individualized
sentencing, which is not imposed upon defendants in non-capital sentencing schemes,
and improperly serves to expand the circumstances under which the penalty of death
may be imposed.
Initially, we note the United States Supreme Court has held that, to pass
constitutional muster, States must satisfy the requirement of individualized sentencing by
permitting capital juries “to consider and give effect to any mitigating evidence relevant to
a defendant’s background and character or the circumstances of the crime.” Blystone v.
Pennsylvania, 494 U.S. 299, 304-05, 110 S.Ct. 1078, 1082, 108 L.Ed.2d 255 (1990)
(quotation and quotation marks omitted). A State’s death penalty statute “cannot limit
the sentencer’s consideration of any relevant circumstance that could cause it to decline
to impose the [death] penalty.” Blystone, 494 U.S. at 309, 110 S.Ct. at 1084 (quotation
and quotation marks omitted). The High Court has specifically held that Pennsylvania’s
death penalty statute satisfies these constitutional requirements. See id.Moreover, Appellant’s constitutional claim involves arguments, which this Court
has previously considered and rejected. See Commonwealth v. Walker, 540 Pa. 80,
101, 656 A.2d 90, 101 (1995), cert. denied, 516 U.S. 854, 116 S.Ct. 156 (1995) (holding
death penalty statute does not violate due process clause by placing the burden of
proving the mitigating circumstances upon the accused); Commonwealth v. O’Shea, 523
19 Appellant grounds his claim in his rights to due process, equal protection, and freedom
from cruel and unusual punishment. However, he fails to develop a specific argument
under the provisions.
[J-89-2014] - 39
Pa. 384, 567 A.2d 1023 (1990), cert. denied, 498 U.S. 881, 111 S.Ct. 225 (1990)
(rejecting claim that placing the burden of proof on the defendant to prove mitigating
circumstances by a preponderance of the evidence is unconstitutional and invalidates the
sentencing process); Zettlemoyer, supra (holding Section 9711 does not violate a
defendant’s due process protections by placing on the defendant the burden of proving,
by a preponderance of the evidence, the existence of mitigating circumstances). As this
Court held in Zettlemoyer:
[T]he Commonwealth must prove every element necessary to
establish murder of the first degree and every element necessary to
establish one or more aggravating circumstance which the legislature has
determined is of a sufficiently heinous nature as to require imposition of the
death penalty. The accused is then given the opportunity to prove, by a
preponderance of the evidence, that there are mitigating circumstances that
might convince the jury that the sentence should nevertheless be set at life
imprisonment. Such an allocation is not offensive to due process.
Zettlemoyer, 500 Pa. at 65-66, 454 A.2d at 963.
As Appellant has not developed an argument convincing us otherwise, we find his
instant constitutional challenge to the capital sentencing scheme to be unavailing.
B. Victim Impact Testimony
Appellant next advances a broad claim that the capital sentencing statute
permitting victim impact testimony, 42 Pa.C.S. § 9711(a)(2),20 is unconstitutional since it
20 Section 9711(a)(2) provides:
(2) In the sentencing hearing, evidence concerning the victim and the
impact that the death of the victim has had on the family of the victim is
admissible. Additionally, evidence may be presented as to any other
matter that the court deems relevant and admissible on the question of the
sentence to be imposed. Evidence shall include matters relating to any of
the aggravating or mitigating circumstances specified in subsections (d)
and (e), and information concerning the victim and the impact that the death
of the victim has had on the family of the victim. Evidence of aggravating
(continuedN)
[J-89-2014] - 40
lacks specific guidance to juries regarding how they must consider such testimony
against the statutory aggravating and mitigating circumstances testimony. According to
Appellant, the lack of guidance means either that the victim impact testimony, which is, by
its nature, emotionally-charged information, adds an arbitrary element into the jury’s
determination or otherwise disrupts the careful weighing process required in capital
cases.21 To support his argument, Appellant argues Section 9711(a)(2) violates various
federal decisions. See Appellant’s Brief at 55-56 (citing, inter alia, Furman v. Georgia,
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (indicating jury’s discretion must be
suitably directed and limited to minimize the risk of arbitrary and capricious capital
sentencing)).
Appellant’s broad constitutional claim involves arguments, which Appellant
concedes this Court has previously considered and rejected. 22 See Ballard, supra(holding statute permitting victim impact testimony during penalty phase of a capital
murder prosecution to be constitutional); Commonwealth v. Means, 565 Pa. 309, 773
A.2d 143 (2001) (plurality) (rejecting claim that jury is not given proper direction in how to
weigh victim impact testimony). Importantly, as this Court has explained:
(Ncontinued)
circumstances shall be limited to those circumstances specified in
subsection (d).
42 Pa.C.S. § 9711(a)(2).
21 Similar to his previous constitutional challenge, Appellant grounds his claim in his
rights to due process, equal protection, and freedom from cruel and unusual punishment.
However, he fails to develop a specific argument under the provisions.
22 Appellant asserts he has presented the constitutional claim for preservation purposes.
[J-89-2014] - 41
[V]ictim testimony is just one of the relevant factors the jury may consider
when weighing the aggravating and mitigating circumstances it has found
during its deliberations on sentence. The addition of victim impact
testimony into the deliberative process is not such an arbitrary factor that its
inclusion would preclude meaningful appellate review. We are satisfied
that the trial judges of this Commonwealth can adequately prevent unduly
prejudicial and inflammatory information from entering into the jury’s
deliberations in the guise of victim impact testimony.
Ballard, 622 Pa. at 216-17, 80 A.3d at 404 (quoting Means, 773 A.2d at 154) (citations
omitted).
Moreover, regarding the jury’s weighing of the victim impact testimony in the case
sub judice, we note the trial court instructed the jury in a fashion similar to that approved of
in Ballard, Means, and Commonwealth v. Taylor, 583 Pa. 170, 876 A.2d 916 (2005).
See N.T. 5/24/12, sentencing hearing, at 105-06. Since Appellant has provided us with
no new theory upon which we should disregard our precedent, and prevailing federal law
permits testimony regarding the impact to family members at the sentencing phase,23 we
find no relief is due.
X. Admissibility of Certain Victim Impact Testimony
Anticipating we would reject his constitutional challenge regarding the introduction
of victim impact testimony, Appellant next claims the trial court abused its discretion by
admitting into evidence certain testimony, which Appellant believes was outside the
scope of permissible victim impact testimony. In a related argument, Appellant argues
the trial court abused its discretion by not requiring the Commonwealth to provide
defense counsel with a written pre-trial victim impact statement with regard to one of the
witnesses. To fully understand this claim, some background is required.
23 See Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
[J-89-2014] - 42
Proposed victim impact evidence was reviewed during the penalty phase outside
of the presence of the jury. Specifically, the substance of Jessica Hawk’s (the victim’s
sister), Jennifer Lasso’s (the victim’s wife), and Elsie Stem’s (the victim’s mother)
proposed testimony was set forth in writing, and the trial court overruled the specific
objections raised by Appellant.24 Additionally, as to Donald Lasso (the victim’s father),
the Commonwealth noted that, although he had not prepared a written statement, the
Commonwealth intended to present his testimony during the penalty phase.
Specifically, the Commonwealth provided an offer of proof that Donald Lasso would make
a brief statement indicating “as a father that he feels such a loss over his son, that they
worked on model cars, that he misses him so much, [and] that he saw him every day.”
N.T. 5/21/12, sentencing hearing, at 32. Defense counsel objected to the
Commonwealth failing to provide defense counsel with a written victim impact statement
pertaining to Donald Lasso. Id. at 32-34. The Commonwealth responded it had listed
Donald Lasso on the formal notice of intent to present victim impact testimony, which was
provided to defense counsel. Id. at 33. Accordingly, the trial court ruled Donald Lasso
could testify and noted defense counsel was permitted to object as necessary during Mr.
Lasso’s testimony. Id. at 33-34.
Thereafter, as relevant to Appellant’s instant claims, Jessica Hawk testified in
accordance with her statement as follows:
Everyone has heard about Officer Robert Lasso, Officer Lasso. Let
me tell you about Robert, my brotherN.Although he’s my little brother, he
has always been there for me. When my husband was sick many years
ago, Rob was there to take care of my kids, bring me dinner at the
24The portions to which Appellant objected during the review of the proposed victims’
impact statements are the same portions which Appellant presently challenges.
[J-89-2014] - 43
hospital, [and] take care of my house. That all happened the week
before his wedding. Rob has always been there for me. He’s always
been my rock. And now he’s just gone.
One of the things I miss most about Rob are the phone calls. He’d
always answer, yello, hey Lady!
***
My younger son Owen is 14N.Owen has been devastated by
Robert’s death, and he wanted to do something for him. So he had
wristbands made. He sold them for three dollars each and they read
Officer Robert Lasso-our forever hero.
Rob has always been a hero to my family[.]
Id. at 62-63, 65 (bold added).
Jennifer Lasso testified she and the victim have two children, Rose, who is seven
and a half years old, and Frankie, who is five years old. Id. at 78. She then testified in
accordance with her statement as follows:
August 11th started out as a great dayN.We got home and Robert
was called in a little bit early to work. No big deal. We had a great day,
and we were going to then meet him for dinner. Rose and I even drove
through Freemansburg and saw him around 4:00. He gave us a great
big smile and waved. Rose called him around 4:30 to tell him we just
picked out Frankie’s book bag for preschool. Little did either of us
know that it would be the last time we would talk to Robert.
While I was at Rose’s dance practice, I noticed I missed six phone
calls. I knew something wasn’t right. I was told to get to the hospital right
away, Robert was hurt. I could tell it was worse than a broken bone, but I
stayed calm and didn’t panic. Sitting in traffic on 378, I was starting to freak
out a little more. I was upset traffic wasn’t moving fast enough, and I just
kept thinking I can handle anything; as long as he wasn’t shot in the
head, we can get through.
***
Rose and Frankie not only had their father ripped from their life but
they were also stripped of their innocenceN.There are so manyNthings
that they will miss out on, all because their father was one of the good
guys.
Id. at 81-83 (bold added).
Elsie Stem testified in accordance with her statement as follows:
Robert was 31 years old, and like the commercial says I never
realized 15 was middle age. He will always be my baby boy.
[J-89-2014] - 44
***
One of the hardest things I’ve ever had to do was tell my 83-year-old
mother that Robert was murdered. She just screamed, not my Robert
over and over again. Those screams will haunt me forever.
***
I, as well as my whole family, will have many memories that will
never again include Robert because his life was cut far too short. I will
never see those beautiful blue eyes look back at me or be able to hug him
again.
Id. at 67-68 (bold added).
Donald Lasso admitted he did not write a victim impact statement, and upon
questioning by the Commonwealth, he testified substantially similar to the subject matter
contained in the Commonwealth’s offer of proof. Id. at 74-77. The Commonwealth’s
final question to Donald Lasso was as follows: “Is there anything else, Mr. Lasso, you’d
like to tell the jury about the impact that this had on you personally, sir?” Id. at 77. In
response, Donald Lasso testified, “Just that my whole family misses him. He was such
a wonderful boy and so professional about everything. We just miss him so
much.” Id. (bold added).
Respecting the bolded portions of each statement, Appellant reiterates a
combination of several claims. Specifically, Appellant argues the statements do not fall
within the ambit of proper victim impact testimony since the statements impermissibly
focused on Officer Lasso’s particular characteristics, related to the effect of his death
upon the community at large, and/or were not otherwise a subjective commentary on the
consequences of the murder. Appellant cites to Means, 565 Pa. at 333-34, 773 A.2d at
158, for the proposition that “[g]eneralizations of the effect of the victim’s death on the
community at large [and] information concerning the particular characteristics of the
[J-89-2014] - 45
victim presented in a vacuum will not fall within the ambit of [proper victim impact
testimony].”
“[O]ur review in this area is deferential to the trial court’s discretion.” Ballard, 622
Pa. at 219, 80 A.3d at 405-06 (citation omitted). As our High Court has explained, victim
impact evidence is “designed to showNeach victim’s uniqueness as an individual human
being.” Payne v. Tennessee, 501 U.S. at 823, 111 S.Ct. at 2600 (italics omitted). As
such, “[v]ictim impact evidence is simply another form or method of informing the
sentencing authority about the specific harm caused by the crime in question.”
Commonwealth v. Flor, 606 Pa. 384, 430, 998 A.2d 606, 633 (2010), cert. denied, 131
S.Ct. 2102 (2011) (quotation and quotation marks omitted). When a witness’s statement
is an individualized and subjective commentary on the consequences of the murder, it is
proper victim impact testimony. Commonwealth v. Jordan, 619 Pa. at 538, 65 A.3d at
332-33. “Victim impact testimony is permissible when the Commonwealth establishes
that the victim's death had an impact on the victim's family as opposed to presenting mere
generalizations of the effect of the death on the community at large.” Commonwealth v.
Eichinger, 591 Pa. 1, 31, 915 A.2d 1122, 1139 (2007), cert. denied, 552 U.S. 894, 128
S.Ct. 211 (2007).
Moreover, we emphasis that, “[a]lthough the evidence that is the subject of Section
9711(a)(2) has been generally labeled “victim impact” evidence, it is important to note that
the text of the statute explicitly refers twice to two types of evidence or information:
‘concerning [1] the victim and [2] the impact that the death of the victim has had on the
family of the victim.’” Ballard, 622 Pa. at 219, 80 A.3d at 406 (quoting Flor, 998 A.2d at
634); 42 Pa.C.S. § 9711(a)(2). As it relates to the introduction of evidence regarding the
[J-89-2014] - 46
particular characteristics of the victim during the penalty phase, in Commonwealth v.
Singley, 582 Pa. 5, 868 A.2d 403 (2005), cert. denied, 546 U.S. 1021, 126 S.Ct. 663(2005), for example, the appellant, citing to Means, supra, alleged certain testimony
constituted improper victim impact testimony since it referred to the victim’s particular
characteristics. Id. at 24, 868 A.2d at 414. This Court affirmed the trial court’s
admission of the victim impact statement, which included information as to the good
qualities of the victim, particularly as they related to his job. Id. at 25, 868 A.2d at 415.
Specifically, the victim’s fiancée explained the victim’s employer had shut down his plant
for some days after the victim’s death, and then asked her to participate in an award
ceremony to recognize the characteristics exemplified by the victim. Id. In affirming the
admissibility of the testimony, we acknowledged the information was not relayed in a
vacuum; but rather, it was presented in the context of the fiancée’s involvement in the
award ceremony, and her family relationships after the victim’s death. Id. Similarly, in
Flor, supra, this Court found no error in the trial court permitting victim impact testimony
which included brief references to the victim’s good qualities as a police officer and a
person.
Here, beginning with a review of the record concerning the challenged statements
of Jessica Hawk, Jennifer Lasso, and Elsie Stem, to which Appellant objected, and
placing them in the full context of each witness’s testimony, we conclude the statements
were proper personal accounts of either the victim, or the victim’s death’s impact on the
family. See Ballard, supra. Contrary to Appellant’s suggestion, the testimony was not
generalized statements on the effects of Officer Lasso’s death on the community, and the
references to Officer Lasso’s personal characteristics were not made in a vacuum. See
[J-89-2014] - 47
Singley, supra. More specifically, the statements by Jessica Hawk related to the manner
in which the victim took care of her and her family, was a personalized statement of what
she would miss about the victim, and explained how her son, who was the victim’s
nephew, was coping with the loss. Moreover, the statements by Jennifer Lasso were a
personalized account of how she and her young daughter interacted with the victim on
their final day together, provided a personal account of how she was informed of the
victim’s murder, and demonstrated the devastating impact the murder had on the young
children in the family. Finally, the statements by Elsie Stem were a personal account of a
mother’s loss of her child and how the loss has impacted her, as well as the victim’s
maternal grandmother. Additionally, in instructing the jury, the trial court, specifically
pointing to the testimony of Jessica Hawk, Jennifer Lasso, and Elsie Stem, cautioned the
jury to not let an emotional response limit its rational inquiry into the culpability of
Appellant. N.T. 5/24/12, sentencing transcript, at 105-06. Accordingly, under our
jurisprudence, the testimony was proper and we find no abuse of discretion by the trial
court. See Ballard, supra.Turning to a review of the record as it relates to Appellant’s current challenge to a
specific portion of Donald Lasso’s testimony, we initially note Appellant did not object to
the particular statements at issue. N.T. 5/24/12, sentencing transcript, at 77. Though
Mr. Lasso offered testimony beyond those statements included in the Commonwealth’s
verbal offer of proof, it was incumbent upon Appellant to object and give the trial court the
option of a corrective measure. Thus, we find Appellant’s claim to be waived. See
Ballard, 622 Pa. at 220, 80 A.3d at 406 (holding that, where victim impact witness
[J-89-2014] - 48
deviated from the approved statement, the appellant was required to object to preserve
his claim of error); Pa.R.A.P. 302.
However, this does not end our inquiry as, in a related and broader argument,
Appellant suggests the trial court should not have permitted Donald Lasso to offer any
victim impact testimony, including the statements at issue, since the Commonwealth
failed to provide defense counsel with a pre-trial written victim impact statement from Mr.
Lasso. In support of his argument, Appellant relies on Commonwealth v. Natividad, 565
Pa. 348, 773 A.2d 167 (2001) (plurality), abrogated on other grounds, Commonwealth v.
Freeman, 573 Pa. 532, 827 A.2d 385 (2003), for the proposition that the Commonwealth
was required to provide Appellant with a written pre-trial victim impact statement from
Donald Lasso so that a proper review of the witness’s proposed testimony could be
conducted.
In Natividad, three justices stated a preference for the Commonwealth to provide
to the defense formal pre-trial notice consisting of a list of potential victim impact
witnesses and a brief outline of their proffered testimony. Specifically, the plurality
decision held the following:
Adequate notice is one of the essential elements of procedural due
process. We agree that the better practice is to require notice of the intent
to introduce victim impact testimony prior to trial. A requirement of notice
prior to trial enables the defendant to investigate the background of the
decedent, and prepare for potential victim impact testimony prior to jury
selection. Nor is it a burden for the Commonwealth to provide pretrial
notice limited to a list of potential witnesses and a brief outline of their
proffered testimony.
Natividad, 565 Pa. at 366, 773 A.2d at 178 (citation omitted).
Subsequent to Natividad, however, this Court has not amended the Rules of
Criminal Procedure to reflect a new judicially created rule reflecting the plurality holding in
[J-89-2014] - 49
Natividad. More specifically, 42 Pa.C.S. § 9711, which regulates the sentencing hearing
process, does not mandate pre-trial notice of victim impact testimony. Moreover, our
subsequent jurisprudence has not expressly adopted the notice requirement suggested
in Natividad; but rather, we have examined the issue in terms of analyzing, what, if any,
prejudice the appellant may have suffered by the alleged lack of pre-trial notice in the
specific case. See Commonwealth v. Rega, 593 Pa. 659, 705, 933 A.2d 997, 1024
(2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879 (2008) (assuming, arguendo,
defense counsel was entitled to formal pre-trial notice of potential victim impact
witnesses, the appellant did not demonstrate he was prejudiced by the Commonwealth’s
failure to provide such notice).
In the case sub judice, assuming, arguendo, the Commonwealth was obligated to
provide pre-trial notice of Donald Lasso as a potential witness, along with a pre-trial
outline of his proffered testimony, we conclude Appellant cannot demonstrate he was
prejudiced by any failure in this regard. Initially, we note the Commonwealth provided
defense counsel with pre-trial notice that Donald Lasso would potentially offer victim
impact testimony. Moreover, while the Commonwealth did not provide a pre-trial brief
outline of Mr. Lasso’s proposed testimony, the Commonwealth provided defense counsel
with a verbal offer of proof as to the substance of Mr. Lasso’s potential testimony at the
sentencing hearing prior to the commencement of testimony. Appellant acknowledges
as much and does not aver he was unfairly surprised by the fact Donald Lasso testified.
Rather, his claim of prejudice is grounded in the assertion that, if he would have been
provided with a pre-trial outline of Mr. Lasso’s testimony, including the statements at
[J-89-2014] - 50
issue, defense counsel could have made relevant objections prior to Mr. Lasso testifying,
as he did with regard to Jessica Hawk, Jennifer Lasso, and Elsie Stem.
We find Appellant’s claim of prejudice to be unavailing. Initially, we note defense
counsel was not prevented from objecting to specific portions of Donald Lasso’s
testimony during the sentencing hearing and, in fact, prior to Mr. Lasso testifying, the trial
court specifically informed defense counsel he could object, as needed. N.T. 5/21/12,
sentencing hearing, at 33-34. To the extent Appellant is suggesting he would have been
prejudiced by objecting to portions of Donald Lasso’s testimony in front of the jury, we
have previously rejected such a claim, noting objections may be made at sidebar. See
Ballard, 622 Pa. at 220, 80 A.3d at 406. As Appellant has not demonstrated prejudice as
it relates to the notice provided in this case, we find no relief is due.
XI. Permitting Lyndell Boger to Testify on Rebuttal During Penalty Phase
Appellant’s next claim is the trial court erred in permitting Lyndell Boger to testify as
a Commonwealth rebuttal witness during the penalty phase. Specifically, Appellant
contends Ms. Boger’s testimony was inadmissible since it concerned specific allegations
of Appellant’s prior, uncharged criminal misconduct, it was not relevant to rebut
Appellant’s character evidence, and in any event, the probative value of the testimony
was outweighed by its prejudicial effect.
As it relates to this claim, at the penalty phase, Appellant presented evidence of his
character and the circumstances of the offense in an effort to establish the “catch-all”
mitigator provided for in 42 Pa.C.S. § 9711(e)(8) (“Mitigating evidence shall
includeN[a]ny other evidence of mitigation concerning the character and record of the
[J-89-2014] - 51
defendant and the circumstances of his offense.”).25 In this regard, Appellant presented
testimony from numerous witnesses, who testified about Appellant’s acts of charity,
including riding his motorcycle to raise money for Toys For Tots, donating money to a
father after his sixteen year-old son died in a car accident, donating money for children’s
Christmas parties, donating money so a young family could rent a house, and buying food
for a family in need. N.T. 5/21/12, sentencing hearing, at 96-97, 100, 117, 138-39; N.T.
5/22/12, sentencing hearing, at 47; N.T. 5/23/12, sentencing hearing, at 137. The
witnesses described Appellant as a happy, wonderful, pleasant, hard-working person
who helped his neighbors with various tasks and provided housing to people in need.
N.T. 5/21/12, sentencing hearing, at 114, 125, 142, 152; N.T. 5/22/12, sentencing
hearing, at 15, 46, 48. The witnesses further described Appellant as a person who
enjoyed playing with children, wanting to teach them about fishing and outdoor activities,
and indicated Appellant was “real cautious to the kids.” N.T. 5/22/12, sentencing
hearing, at 47.
Additionally, Appellant presented testimony to establish that, beginning in
approximately 2010, Appellant had a change in his demeanor. Specifically, witnesses
testified they noticed Appellant had become more “distant,” and he seemed to be
distraught, moody, anxious, angry, and upset easily. N.T. 5/21/12, sentencing hearing,
at 101-02, 116, 149-50; N.T. 5/22/12, sentencing hearing, at 49. The witnesses
suggested Appellant’s change in demeanor and deteriorating mental state resulted from,
inter alia, the fact Appellant was in pain and taking medicine due to his previous
25 Section 9711(e)(8) is referred to as the “catch-all” mitigator because it encompasses a
wide range of evidence, including life history and character. See Hairston, supra.[J-89-2014] - 52
accidents. N.T. 5/21/12, sentencing hearing, at 154; N.T. 5/22/12, sentencing hearing,
at 48-50.
After Appellant presented his numerous witnesses, and defense counsel rested,
the Commonwealth indicated it intended to call a sole rebuttal witness, Lyndell Boger.
N.T. 5/23/12, sentencing hearing, at 158. Defense counsel objected, arguing the
probative value of any testimony from Ms. Boger would be outweighed by its prejudicial
effect. Id. at 158-59. The trial court requested an offer of proof from the
Commonwealth, and the district attorney indicated the following:
The Commonwealth would call Lyndell Boger, who residesNacross
the street essentially [from Appellant]. She’s going to indicate that--I’m
trying to get the date here.
Your honor, the date of this would be March 6th of 2008. That her
son, who was a teenager at the time, came home and indicated that
[Appellant] threatened him and so she decided, the mom, M[s.] Boger, to go
over to talk to [Appellant].
Her boy was playing ball. She approached [Appellant] and said to
him that she felt he was overreacting, that her son was only playing ball,
throwing the ball against the wall. [Appellant]Nstated to M[s.] Boger
that--[Appellant] stated to M[s.] Boger that if her son bounced the ball
against his wall one more time he would shoot him, drag his body onto the
porch, and tell the police he was trespassing on his property.
[Ms.] Boger then contacted the Freemansburg police department
about this matter. We have the report. Officer Lasso responded and
basically he spoke to [Appellant], told him, you know, not to do anything,
didn’t charge him with anything, and that was the end of the incident.
Id. at 159-60.
Defense counsel argued Ms. Boger’s testimony would be improper since no
citation was issued in connection with the incident. Id. at 160. The Commonwealth
responded it was permitted to rebut Appellant’s mitigation evidence regarding his good
acts and character by revealing that he had made threats to a neighborhood child on a
prior occasion. Id. Moreover, the Commonwealth responded that Ms. Boger’s
[J-89-2014] - 53
testimony was particularly relevant, and probative, since Officer Lasso, the victim in this
case, was the investigating officer with regard to Ms. Boger’s complaint. Id. at 161.
Defense counsel argued Ms. Boger’s testimony was irrelevant as it relates to Appellant’s
character and, since Officer Lasso was involved, the prejudicial effect would be greater.
Id. The trial court overruled Appellant’s objection, and Ms. Boger testified substantially in
accordance with the Commonwealth’s offer of proof. Id. at 161-65.
It is clear that, during the penalty phase, a defendant may present any evidence
“relevant and admissible” to any mitigating circumstance, including any evidence
concerning the character and record of the defendant and the circumstances of his
offense. Commonwealth v. Robinson, 583 Pa. 358, 385, 877 A.2d 433, 449 (2005).
However, the Commonwealth may offer evidence to rebut a defendant’s mitigating
evidence of good character and the circumstances of his offense. Commonwealth v.
Harris, 550 Pa. 92, 703 A.2d 441 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538(1998) (upholding Commonwealth’s introduction of several statements made by the
defendant to rebut his character evidence that he was a nice person and amenable to
rehabilitation). That is, the defendant may not offer his mitigation evidence in a vacuum
without challenge or rebuttal by the Commonwealth so as to present false or misleading
evidence or to create a false impression of his character, record, or the circumstances of
the offense. Ballard, 622 Pa. at 212, 80 A.3d at 401; Robinson, supra. Moreover, “the
admission of rebuttal testimony is within the sound discretion of the trial court,Nand the
appropriate scope of rebuttal evidence is defined by the evidence that it is intended to
rebut.” Ballard, 622 Pa. at 212, 80 A.3d at 401 (quotation, quotation marks, and citations
omitted). See Commonwealth v. May, 584 Pa. 640, 659, 887 A.2d 750, 761 (2005), cert.
[J-89-2014] - 54
denied, 549 U.S. 832, 127 S.Ct. 58 (2006) (“Rulings on the admissibility of evidence,
including evidence proffered at the penalty phase of a capital trial, are within the
discretion of the trial judge, and such rulings will form no basis for appellate relief absent
an abuse of discretion.“).
Ordinarily, specific instances of conduct involving other crimes are not admissible
to prove character. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981).
Exceptions to this prohibition exist where the prior bad act is offered to prove, inter alia,
motive, intent, plan, or absence of mistake. See id. at 175, 424 A.2d at 720. “These
circumstances are most pertinent in the context of establishing guilt.” Commonwealth v.
Hughes, 581 Pa. 274, 332, 865 A.2d 761, 796 (2004). The present claim, by contrast,
concerns a sentencing proceeding, in which the prior bad act evidence was deemed
admissible by the trial court as tending to rebut Appellant’s evidence of his good character
under the “catch-all” mitigator. See id. Contrary to Appellant’s scant argument on this
point, the prevailing precedent in this area of the law provides that, where a defendant’s
prior criminal misconduct is relevant to rebut a mitigating circumstance, it is admissible.26
See id. (suggesting that, if the defendant presents character evidence during the penalty
26 Appellant’s entire argument as to this portion of his challenge to Ms. Boger’s testimony
is as follows:
First, Ms. Boger’s testimony was inadmissible as it dealt with allegations of
criminal misconduct by the Defendant which did not result in a criminal
charge being filed. See Commonwealth v. Hoover, 16 A.3d 1148(Pa.Super. 2011). The allegation was investigated by Officer Lasso and
no citation was filed against the Defendant. As such the evidence should
not have been introduced as character impeachment evidence.
Appellant’s Brief at 63.
We note Hoover is not on point as it dealt with issues related to whether the
Commonwealth should have been able to cross-examine a defendant’s character
witnesses about the defendant’s prior arrests and/or participation in an Accelerated
Rehabilitative Disposition program during the guilt phase of a criminal proceeding.
[J-89-2014] - 55
phase in furtherance of establishing the “catch-all” mitigator, the Commonwealth may
offer relevant rebuttal evidence, including specific instances of prior criminal misconduct
for which the defendant was not convicted).
Here, Appellant adduced substantial testimony in furtherance of establishing his
good character and providing an explanation for the circumstances of his offense,
including testimony seeking to portray himself as someone who assisted his neighbors,
had a “soft spot” for children, and whose demeanor was pleasant and happy until
approximately 2010, when his demeanor and mental state deteriorated dramatically due
to pain and the use of prescribed medications. The Commonwealth’s rebuttal witness’s
testimony, on the other hand, demonstrated that, more than three years prior to the killing
of Officer Lasso, in 2008, Appellant threatened to kill a fourteen-year-old neighbor boy
simply because the child was throwing a tennis ball off the wall of Appellant’s home. As
the trial court concluded, Ms. Boger’s testimony relevantly rebutted the impression of
good character, which Appellant was attempting to establish, as well as Appellant’s
attempts to provide an explanation for the circumstances of his offense.
Appellant maintains, however, that even if Ms. Boger’s testimony was relevant
during the penalty phase, the prejudicial effect outweighed its probative value. We
recognize that, although relevant, evidence may be excluded “if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.E. 403. Unfair prejudice means “a tendency to suggest
decision on an improper basis or to divert the jury’s attention away from its duty of
weighing the evidence impartially.” Id. (Cmt). See Commonwealth v. Brown, 605 Pa.
[J-89-2014] - 56
103, 122, 987 A.2d 699, 710 (2009), cert. denied, 562 U.S. 844, 131 S.Ct. 76 (2010)
(applying Pa.R.E. 403 to evidence offered during the penalty phase of capital direct
appeal).
Appellant suggests he was unfairly prejudiced by Ms. Boger’s testimony since “its
real effect [was] to show [Appellant] would shoot anyone who came on his property and
claim they were trespassing.” Appellant’s Brief at 64. However, Ms. Boger never
testified that Appellant shot her son, and instead, she testified Appellant made threats
towards her son. As indicated, such testimony rebutted Appellant’s portrayal of himself
as a charitable, wonderful, “kid-loving” neighbor. Moreover, inasmuch as Appellant
attempted to demonstrate his demeanor did not change until sometime around 2010, Ms.
Boger’s testimony refuted this version by highlighting the incident between Appellant and
her son occurred in 2008. Lastly, the fact Officer Lasso was the same officer who
responded to the scene in 2008 to investigate a neighborhood dispute, and then was
subsequently shot by Appellant in 2011 as he investigated an unrelated neighborhood
dispute, was relevant to rebut Appellant’s claim of mitigation as it related to the
circumstances of the offense. This portion of Ms. Boger’s testimony shed light on the
fact Officer Lasso had previously investigated complaints made against Appellant and,
thus, the incident in 2011 was not Appellant’s first contact with the officer. Therefore, in
weighing the relevance and probative value of Ms. Boger’s rebuttal testimony against its
prejudicial effects, we find the trial court’s permissive allowance of her testimony to rebut
the character evidence presented by Appellant at the penalty phase did not constitute an
abuse of discretion.
XII. Cross-Examination of Defense Witness Robert Henninger
[J-89-2014] - 57
Appellant’s next argument is, during the penalty phase, the trial court improperly
permitted the Commonwealth to cross-examine Appellant’s character witness, Robert
Henninger, as to whether he was aware Appellant’s now ex-wife, Jeanette Hitcho, filed a
protection from abuse (PFA) action against Appellant. Appellant contends the
Commonwealth’s cross-examination of Mr. Henninger was improper since it concerned
specific allegations of Appellant’s prior criminal misconduct for which he was not
convicted. Additionally, he suggests the Commonwealth’s cross-examination was
irrelevant and unduly prejudicial.
During the penalty phase, as indicated supra, Appellant presented testimony from
numerous witnesses, including Mr. Henninger, in furtherance of establishing his good
character. Specifically, as relevant to the instant claim, Mr. Henninger testified on direct
examination that he has been friends with Appellant for approximately twenty years, and
he spent time with Appellant, Appellant’s now ex-wife, and their children. N.T. 5/21/12,
sentencing hearing, at 91. He indicated their families would spend time together,
particularly on Sundays, “hanging out” and fishing. Id. at 90-92. Mr. Henninger
described Appellant’s interaction with his family and Mr. Henninger’s family as a “normal
family thing.” Id. at 92.
On cross-examination, without objection by defense counsel, the Commonwealth
asked Mr. Henninger the following question: “And you would agree that th[e] relationship
[between Appellant and Jeanette] was not very good, was it?” Id. at 105. Mr.
Henninger replied, “They seemed to get along fairly well, from what I seen.” Id.
Furthermore, without objection, the Commonwealth asked Mr. Henninger whether he was
aware that there were “lots of issues between them in terms of having fights and stuff?”
[J-89-2014] - 58
Id. at 106. Mr. Henninger testified, “They had arguments, yes.” Id. The following
relevant exchange then occurred:
[DISTRICT ATTORNEY]: Are you aware of any hostilities between
Jeanette and [Appellant] back then?
[MR. HENNINGER]: Not that I know of, no.
[DISTRICT ATTORNEY]: Were you aware that she filed for protection--
[DEFENSE COUNSEL]: Objection, your honor.
THE COURT: Approach the bench.
(The following discussion was held at sidebar).
[DEFENSE COUNSEL]: Judge, he said he doesn’t know, so he
can’t answer the question. He’s not going to know about the protection
from abuse action. Secondly, judge, I think it’s prejudicial. Probative
value is outweighed by prejudice. Plus, we’re going to have Jeanette
Hitcho testify, so she is the best person to explain, if the Commonwealth
can get into that, as to what the circumstances were around that.
[DISTRICT ATTORNEY]: Your honor, this is the penalty phase.
Guilt and innocence are over. He’s offered for good character. That was
the question [defense counsel] asked, if he was aware of his character.
He said he saw a loving relationship between his wife and kid. We
are allowed to get into the fact that there is violence in this guy’s background
directed to the wife, children, and I just asked him if he was aware of this or
not. If [defense counsel] tells me he’s going to call Jeanette Hitcho as a
witness, I’m going to ask her questions about PFAs that she filed against
him.[27]
THE COURT: Did he say he’d meet with his wife and children?
[DEFENSE COUNSEL]: On Sundays, yes.
THE COURT: His exact language was it was like a family thing.
[DEFENSE COUNSEL]: He did say that. My objection with him is
he says he doesn’t know. He’s already said I don’t know about things like
that.
THE COURT: If he had an anger problem? What was the
question?
[DISTRICT ATTORNEY]: The last question was, was he aware
that Jeanette Hitcho filed for protection from abuse against [Appellant]. If
he says no, I want to put the defense on notice here that we are--he’s
putting evidence of what a good guy he is. On rebuttal, I can bring in all the
people who he threatened, he was a loudmouth to, he was angry. They
don’t get to get that evidence in, in a vacuum.
[DEFENSE COUNSEL]: We understand that, but the statute
requires us to do that. But I think for this person we can fret about it later.
27 For clarification, we note Jeanette Hitcho did not testify during the penalty phase.
[J-89-2014] - 59
THE COURT: He said he didn’t know. I’ll overrule the objection
and let you explore a little bit further.
(End of discussion at sidebar).
[DISTRICT ATTORNEY]: Mr. Henninger, you indicated that you knew
Jeanette Hitcho, [Appellant’s] ex-wife, and that you observed the
relationship between her and [Appellant] and their children over some
period of time, and I would like to ask you whether you were aware that
Jeanette Hitcho had to file for a protection from abuse petition against
[Appellant]?
Are you aware of that?
[MR. HENNINGER]: No, I wasn’t.
Id. at 106-09 (footnote added).
Initially, Appellant presently argues that the PFA order at issue was entered by
consent of the parties, and therefore, it does not qualify as “a conviction.” See
Appellant’s Brief at 66-67. As such, relying on Hoover, supra, Appellant suggests the
existence of the PFA order was inadmissible to impeach his character witness’s
testimony. Id. However, our review of the record confirms Appellant has waived this
specific claim since he did not present the argument as a basis for his objection in the trial
court. See Commonwealth v. Smith, 604 Pa. 126, 158, 985 A.2d 886, 904 (2009), cert.
denied, 131 S.Ct. 77 (2010) (“[I]t is beyond cavil that if the ground upon which an
objection is based is specifically stated, all other reasons for its exclusion are waived.”)
(quotation and quotation marks omitted)); Commonwealth v. Cousar, 593 Pa. 204, 231,
928 A.2d 1025, 1041 (2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2429 (2008) (“[A]
party complaining, on appeal, of the admission of evidence in the [c]ourt below will be
confined to the specific objection there made.”) (quotation, quotation marks, and citation
omitted)).
This does not end our inquiry, however, as Appellant further suggests, in claims
preserved in the trial court, the Commonwealth’s cross-examination was irrelevant and
[J-89-2014] - 60
unduly prejudicial since it went beyond the scope of direct examination and failed to
address Appellant’s character traits elicited on direct. As indicated supra, a defendant
may present any evidence “relevant and admissible” to any mitigating circumstance.
Robinson, 583 Pa. at 385, 877 A.2d at 449. “However, [A]ppellant may not offer this
evidence in a vacuum without challenge or rebuttal by the Commonwealth.” Id. (citation
omitted). “The scope of cross-examination is a matter within the discretion of the trial
court and will not be reversed absent an abuse of that discretion.” Ballard, 622 Pa. at
200, 80 A.3d at 394 (quotation and quotation marks omitted).
The trial court concluded the Commonwealth’s cross-examination of Mr.
Henninger concerning his knowledge of the existence of the PFA order was not irrelevant
or unduly prejudicial, as it was an attempt to discredit Mr. Henninger’s direct examination
character testimony, which suggested Appellant’s interaction with his family, including his
now ex-wife, was “normal.” As the trial court noted, the Commonwealth was permitted to
challenge the version of Appellant’s character, which Mr. Henninger was trying to present
to the jury on Appellant’s behalf.
In any event, assuming the trial court erred in permitting the Commonwealth to
question Mr. Henninger concerning his awareness of the PFA order, we conclude the trial
court’s determination to permit the cross-examination was harmless error. Without
objection, the Commonwealth elicited testimony from Mr. Henninger, who admitted that
Appellant “had the ability to be loud and angry at times,” and Appellant and Jeanette “had
arguments.” N.T. 5/21/12, sentencing hearing, at 106, 109. Additionally, Appellant’s
character witness, Timothy Hunger, who was Appellant’s long-time friend, admitted on
cross-examination, without objection, that he was aware that Jeanette had filed a PFA
[J-89-2014] - 61
action against Appellant alleging he was physically abusing her and their son. N.T.
5/22/12, sentencing hearing, at 51-52. Also, Appellant’s character witness, Wayne
Yerger, who had been friends with Appellant for thirty years, admitted on
cross-examination, without objection, that he told the police Appellant was physically
abusive to his female partners, including his ex-wife, Jeanette, as well as their son. N.T.
5/21/12, sentencing hearing, at 147. Further, defense witness John Stahr, who
conducted a criminal record check on behalf of Appellant, admitted on direct examination
that Jeanette had received a final PFA order against Appellant on September 17, 2003.
N.T. 5/23/12, sentencing hearing, at 149-50. On cross-examination, Mr. Stahr, without
objection, confirmed the allegations of the abuse underlying the PFA order, including the
fact Appellant banged Jeanette’s head on the floor and threw her to the ground, as well as
grabbed their eleven-year-old son by the throat and lifted him off the ground. Id. at
153-54. He explained the final order was entered “[u]pon agreement of the parties for
entry of a consent order, [and the] order w[as] entered without any admission of liability by
[Appellant] and without a finding of abuse by [the] court.” Id. at 155. Moreover, as
discussed more fully infra, Appellant’s character witness, Kelly Yerger, admitted on
cross-examination, without objection, that Appellant was an arrogant, “loudmouth” who
was violent and committed domestic abuse on his female partners, including Jeanette.
N.T. 5/21/12, sentencing hearing, at 132. Thus, no relief is due on this claim. See
Ballard, 622 Pa. at 207, 80 A.3d at 398 (indicating harmless error exists where the error
did not prejudice the defendant or the prejudice was de minimis; or the erroneously
admitted evidence was merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence).
[J-89-2014] - 62
XIII. Recross-Examination of Defense Witness Kelly Yerger
Appellant’s next argument is that, at the penalty phase, during the
recross-examination of Appellant’s character witness, Kelly Yerger, the trial court
improperly permitted the Commonwealth, over objection, to question Mrs. Yerger as to
whether Appellant committed abuse against Jeanette during the time he was her
husband. Appellant suggests the question was an improper inquiry into his specific
criminal misconduct for which he was not convicted, and in any event, the probative value
was outweighed by its prejudicial effect.
During the cross-examination of Mrs. Yerger, the Commonwealth, without
objection, asked Mrs. Yerger, “Do you remember telling the state police that [Appellant is]
violent and committed domestic abuse on his female partners?” N.T. 5/21/12,
sentencing hearing, at 132. Mrs. Yerger replied, “Yes. I answered that question yes.”
Id. Subsequently, on recross-examination, the following relevant exchange occurred:
[DISTRICT ATTORNEY]: Mrs. Yerger, when you spoke to the police, you
said--you said [Appellant] is violent and committed domestic abuse on his
female partners, plural. You were aware there was more than one woman,
correct?
[MRS. YERGER]: There’s--there’s multiple people that he’s dated.
[DISTRICT ATTORNEY]: I understand. Did you know Jeanette Hitcho?
[MRS. YERGER]: Yes.
[DISTRICT ATTORNEY]: And that was one of the partners you were
talking about, correct?
[MRS. YERGER]: Yes.
[DISTRICT ATTORNEY]: He committed abuse to her as a husband--
[DEFENSE COUNSEL]: Objection, your honor.
THE COURT: It’s overruled.
[DISTRICT ATTORNEY]: --correct?
[MRS. YERGER]: Correct.
Id. at 134-35.
[J-89-2014] - 63
We dispose of this claim by noting that any error with regard to the trial court
permitting the challenged question on recross-examination was harmless. As it relates
to Appellant abusing Jeanette during their marriage, as discussed in detail in Section XII,
supra, numerous witnesses testified, without objection, regarding the alleged abuse.
Therefore, any error in the trial court permitting Mrs. Yerger to clarify that Appellant
abused Jeanette during the parties’ marriage, as opposed to when she was “just a female
partner,”28 warrants no relief. See Ballard, supra.XIV. Direct Examination of David Wollman and Louise Luck
Appellant’s next contention is that, during the penalty phase, the trial court
improperly limited Appellant’s direct examination of David Wollman, who was Appellant’s
stepbrother, as well as Louise Luck, who Appellant presented as a capital mitigation
specialist.29 Specifically, Appellant argues the trial court erred in ruling that Mr. Wollman
and Ms. Luck were not permitted to testify that Appellant had told them he had been
sexually abused while he was at the New Boys Life Ranch since such testimony would
constitute inadmissible hearsay. As further discussed infra, we find any error attributed
to the trial court’s ruling to be harmless.
28 To the extent Appellant suggests the trial court erred in permitting the Commonwealth
to question Mrs. Yerger regarding Appellant’s abuse of “female partners,” thus creating a
nameless, faceless group of battered females, see Appellant’s brief at 68-69, we
conclude the claim is waived due to defense counsel’s failure to lodge an objection
thereto. See Pa.R.A.P. 302(a).
29 Ms. Luck explained the defense hired her to provide background information on
Appellant, and in preparation thereof, she interviewed over fifty people, examined
numerous records pertaining to Appellant, and prepared a multigenerational family
history.
[J-89-2014] - 64
In order to place Appellant’s current claim in context, we note that, during the
penalty phase, the following relevant exchange occurred during defense counsel’s direct
examination of Mr. Wollman:
[DEFENSE COUNSEL]: Now, did you attend the--did [Appellant]
ever--did you attend the New Boys [Life] Ranch?
[MR. WOLLMAN]: Yes.
[DEFENSE COUNSEL]: Was [Appellant] there?
[MR. WOLLMAN]: Yes.
[DEFENSE COUNSEL]: Thereafter, sometime later in approximately
1994, did [Appellant] indicate anything happened to him at the New Boys
[Life] Ranch?
[MR. WOLLMAN]: Yes.
[DEFENSE COUNSEL]: What did he indicate?
[MR. WOLLMAN]: There was molestation.
[DISTRICT ATTORNEY]: Objection, your honor. This is complete
hearsay.
THE COURT: Approach the bench.
N.T. 5/22/12, sentencing hearing, at 20. The trial court dismissed the jury, and during
the course of arguing Mr. Wollman’s testimony was proper, defense counsel also
indicated, “[W]hy can’t I say he told M[s.] Luck that, too?” Id. at 26. In response, the
Commonwealth indicated it would object to Ms. Luck testifying that Appellant told her he
was sexually molested twenty years ago; however, the Commonwealth indicated it would
not object to Ms. Luck testifying that Appellant’s medical records revealed Appellant
informed his treating psychiatrist, Eric D. Becker, M.D., that he had been sexually abused
by a guard while in detention at the New Boys Life Ranch. Id. at 26-36. The trial court
ruled, “I don’t see an exception to the hearsay rule andNI will sustain the objection.” Id.
at 38.30
30 There is some dispute as to whether the trial court intended its ruling to apply solely to
the direct examination of Mr. Wollman or whether the trial court further intended to limit
defense counsel’s anticipated direct examination of Ms. Luck. See Appellant’s Brief at
(continuedN)
[J-89-2014] - 65
Thereafter, defense counsel did not question Mr. Wollman further regarding
Appellant’s alleged sexual abuse. However, on the direct examination of Ms. Luck,
defense counsel asked Ms. Luck whether she reviewed Dr. Becker’s records, and Ms.
Luck answered affirmatively. Id. at 116. She indicated Appellant was treated by Dr.
Becker in 2003. Moreover, the following relevant exchange occurred:
[DEFENSE COUNSEL]: I’m just going to show you Dr. Becker’s records.
You have seen those before?
[MS. LUCK]: Yes, I have. He’s given two medications, Zyprexa, which is
an antipsychotic medication, and Tegretol, both medications, and that’s
used to treat bipolar disorder.
[DEFENSE COUNSEL]: And under history of physical or sexual abuse,
what, if anything, did he respond, he meaning [Appellant], at the top of the
page?
[MS. LUCK]: Yes. History of sexual abuse. Sexually abused by a
guard in detention, and I was able to interview several other individuals that
substantiated.
[DISTRICT ATTORNEY]: Objection, your honor. That’s hearsay.
THE COURT: It’s overruled.
Id. at 116-17.
Additionally, it is noteworthy that, during the direct examination of Wayne Yerger at
the penalty phase, Mr. Yerger testified Appellant told him “something about” being
sexually abused while he was at the New Boys Life Ranch; however, Appellant would not
go into detail about the abuse. N.T. 5/21/12, sentencing hearing, at 143-44.
(Ncontinued)
74 (indicating trial court’s ruling applied to both witnesses); Trial Court Opinion dated
11/27/13 at 131 (disagreeing with Appellant’s characterization of the court’s rulings on the
matter); Commonwealth’s Brief at 51-53 (implicitly accepting the proposition that the trial
court’s ruling pertained to statements Appellant may have made to Mr. Wollman and Ms.
Luck). Regardless, assuming, arguendo, Appellant is correct that the trial court
prevented defense counsel from questioning Mr. Wollman and Ms. Luck as to statements
of sexual abuse, which Appellant may have made to them, we find he is not entitled to
relief if, as the Commonwealth claims, the error was harmless. See Mitchell, supra.
[J-89-2014] - 66
Appellant complains the trial court prevented Mr. Wollman and Ms. Luck from
testifying Appellant told them he had been sexually abused at the New Boys Life Ranch;
however, as the Commonwealth astutely argues, the jury heard testimony relative to
Appellant’s allegations of sexual abuse. Consequently, Appellant is not entitled to relief
in this regard. See Mitchell, 588 Pa. at 63, 902 A.2d at 457 (indicating harmless error
exists if the error did not prejudice the defendant or the prejudice was de minimis).
XV. Statutory Review
As noted above, this Court is required to affirm the death sentence unless we find
“the sentence was the product of passion, prejudice or any other arbitrary factor; or the
evidence fails to support the finding of at least one aggravating circumstance.” Ballard,
622 Pa. at 233, 80 A.3d at 414 (citing 42 Pa.C.S. § 9711(h)(3)). After a thorough review,
we conclude Appellant’s death sentence was not the product of passion, prejudice or any
other arbitrary factor; but rather, it was supported by overwhelming evidence, detailed
above, that Appellant killed Officer Lasso. Moreover, the evidence supported the jury’s
finding of an aggravating circumstance under Section 9711(d)(1) (the victim was a peace
officer or local law enforcement official who was killed in the performance of his duties).
Since the jury concluded unanimously that the aggravating circumstance outweighed the
mitigating circumstances they found, the jury was statutorily required to impose this
sentence of death under 42 Pa.C.S. § 9711(c)(1)(iv). Thus, there is no basis upon which
to upset the death verdict.
XVI. Conclusion
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For the foregoing reasons, Appellant’s judgment of sentence is affirmed.31
Messrs. Justice Eakin and Baer and Madame Justice Todd join the opinion.
Mr. Chief Justice Saylor files a concurring opinion.
31The Prothonotary of this Court is directed to transmit to the Governor’s office a full and
complete record of the trial, sentencing hearing, imposition of sentence, and the opinion
and order of our Court in accordance with 42 Pa.C.S. § 9711(i).
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