Commonwealth v. Hitcho, G., Aplt., 123 A.3d 731

Background

On August 11, 2011, Officer Robert Lasso (uniformed) responded to a 911 neighbor-dispute call at George Hitcho Jr.’s property; while fending off two dogs in the backyard, Lasso was shot in the back of the head with a 12‑gauge shotgun and died seconds later.
Chief Bruneio arrived as backup, found Lasso down, saw Hitcho emerge from the back door with a shotgun (which jammed), ordered him to drop it, and placed Hitcho under arrest; a post‑arrest search of Hitcho’s home recovered multiple firearms and other items.
Hitcho admitted shooting but claimed he believed an intruder threatened him and his dogs, asserting fear, blackout memory, brain‑injury–related impairments, and imperfect self‑defense/heat of passion; defense presented psychiatric evidence of prior head injuries and impulse problems.
Hitcho was convicted of first‑degree murder; at the penalty phase the jury found one aggravator (victim a peace officer killed in the line of duty) and three mitigating circumstances but unanimously concluded the aggravator outweighed mitigation and imposed death.
On direct appeal the Pennsylvania Supreme Court independently reviewed sufficiency and the penalty, rejected numerous evidentiary and constitutional challenges, and affirmed conviction and death sentence.

Issues

Issue	Hitcho’s Argument	Commonwealth’s Argument	Held
Sufficiency of evidence for first‑degree murder	Hitcho claimed lack of requisite malice/specific intent (heat of passion, imperfect self‑defense, diminished capacity).	Evidence showed shooting a vital part (back of head) at close range with a shotgun; intent can be inferred and premeditation may be instantaneous.	Evidence sufficient to support first‑degree murder conviction.
Admission of firearms seized (other than murder weapon)	Firearms were unrelated to the killing, irrelevant and unduly prejudicial; should be excluded.	Firearms show familiarity with weapons and choice of particularly lethal weapon; probative for intent and to rebut mistake about taser.	Even if admission were erroneous, any error was harmless given overwhelming evidence.
Admission of post‑arrest spontaneous statements ("I’m on candid camera" and other statements)	Statements were irrelevant or unduly prejudicial and painted Hitcho as callous.	Statements reflect state of mind and undermine claim of heat of passion/self‑defense; admissible as spontaneous and probative.	Court admitted statements as relevant to intent; no abuse of discretion.
Limiting/excluding evidence of Hitcho’s out‑of‑court statements to investigators	Defense contended limitation barred use of exculpatory statements and forced Hitcho to testify; exclusion was hearsay/Rule 106 issue.	Court argued ruling appropriate and, in any event, Troopers later testified to Hitcho’s statements in rebuttal.	Any ruling limiting direct presentation was harmless; the statements were presented to jury via rebuttal witnesses.
Victim impact evidence and notice	Hitcho argued victim‑impact statute and admission (including some descriptive passages) were unconstitutional/arbitrary and that lack of pre‑trial written statement for one witness prejudiced defense.	Pennsylvania precedent allows victim impact evidence; court may control inflammatory material; Commonwealth provided notice of witnesses and an offer of proof.	Statute and testimony upheld; challenged portions were individualized family impact and not improper; lack of written statement caused no prejudice.
Rebuttal testimony about prior threats and cross‑examination on PFAs/domestic abuse	Defense contended Commonwealth was allowed to introduce uncharged misconduct and prior allegations to impeach character witnesses and to rebut mitigation, causing unfair prejudice.	Rebuttal of mitigation and challenge to character are permitted; specific prior misconduct is admissible to rebut the impression created by mitigation witnesses.	Court permitted rebuttal and cross‑examination; any error was harmless or waived where no timely objection was preserved.
Constitutionality of 42 Pa.C.S. § 9711 burden and victim‑impact provision	Hitcho argued placing burden to prove mitigating circumstances by preponderance and allowing victim impact testimony are unconstitutional.	Precedent (including U.S. Supreme Court and Pennsylvania cases) upholds individualized sentencing and the statutory allocation and permits victim impact testimony.	Challenges rejected as contrary to controlling precedent; statute and victim‑impact practice upheld.
Penalty‑phase instructions (life‑no‑parole, presumption of life, unanimity required for death)	Hitcho requested explicit points for charge (explain LWOP, presumption of life, unanimity).	Trial court used standard instructions; defense failed to object at charge conference and thus waived challenges.	Claims waived for failure to preserve; no relief.

Key Cases Cited

Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982) (independent review of sufficiency in death cases and allocation of burden on mitigation)
Commonwealth v. Ballard, 80 A.3d 380 (Pa. 2013) (harmless‑error standard in capital cases and review under 42 Pa.C.S. § 9711)
Blystone v. Pennsylvania, 494 U.S. 299 (1990) (capital sentencing must permit consideration of any relevant mitigating evidence)
Payne v. Tennessee, 501 U.S. 808 (1991) (victim impact evidence admissible at capital sentencing)
Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009) (premeditation can be formed in a very short period; intent inference from use of deadly weapon)
Commonwealth v. Robinson, 721 A.2d 844 (Pa. 1998) (rules on admissibility of other‑crimes/evidence and mitigation rebuttal)
Commonwealth v. Ballard, 80 A.3d 380 (Pa. 2013) (victim‑impact guidance and harmless‑error analysis)