Commonwealth v. Hitcho, G., Aplt.

[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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