*1 517 which the Atkins restriction is phrased, it appear would that a strong argument that, exists if is determined to be intellectually disabled, of vacated, sentence death must be irrespective trial whether counsel can be faulted for failing to marshal better case prove disability.2 At a minimum, I suggest trial court direct supplemental briefing on point.
Richard Andrew Supreme Pennsylvania. Court of
Argued April 9, 2014. 29,
Decided Dec. course, post-conviction 2. Of ordinary proceedings centered on the counsel, stewardship may not be essential for the court to make a merits; rather, every full assessment underlying facet of the as a rule, general only proceed point determining the court need to the However, "arguable setting, merit” of claims. in the discrete Atkins established, "arguable prejudice and where merit” and are it would grossly seem assessing to be inefficient refrain from the full merits of (since prisoner actually whether the suffers from disability intellectual considering this alternative would entail relief in terms of whether a awarded, proceeding new step Atkins should be as an intermediate determining whether the death-sentence should be vacated and a life Indeed, imposed). sentence review cases where an Atkins collateral pursued claim overlay, has been without the ineffectiveness PCRA contemporaneously courts have made the ultimate determination of disability intellectual and vacated the sentence of death. See Common- 75, 77-80, 270, (2015); Bracey, v. wealth 632 Pa. 117 A.3d 272-73 Hackett, 567, 571, (2014); Commonwealth v. Pa. 99 A.3d DeJesus, 70, 73, (2012). Commonwealth v. 619 Pa. 58 A.3d 64-65 Moreover, above, point as indicated at the at which disabili- intellectual established, ty highly problematic denying is it seems to consider relief Thus, grounds. on reasonable-strategy adjustments some to the con- approach post-conviction may ventional claims be in order for this unique species of claim. *9 Allman, Lynn Esq., Howsie, Carrie Elliot C. Esq., Suzanne Swan, M. Esq., Allegheny Office, County Defender’s Public Pittsburgh, Poplawski. Richard Andrew Wayne Streily, Esq., Michael Ivory, Esq., B. Margaret Office, Attorney’s Amy Esq., Allegheny County Zapp, District General, Attorney Pennsyl- for Commonwealth PA Office of vania. *10 EAKIN, BAER, TODD,
CASTILLE, C.J., SAYLOR, STEVENS, McCAFFERY, JJ.
OPINION Justice STEVENS. of sen- capital appeal judgments is a direct
This convictions on three counts first- imposed following tence in the charges Allegheny and related entered degree murder reasons, following For the Court Common Pleas. County judgments affirm sentence. we 4, 2009, old Richard morning April year On the home asleep Pittsburgh his Poplawski (“Appellant”) mother, him with a Margaret Poplawski, awoke his when urinating that screaming complaint dogs their were and defe- room floor. at cating living on the N.T. 1447-48. The police to argued bitterly until his mother threatened call two to have him from the home. N.T. at 1448. removed so against doing his mother and went
Appellant warned began place phone to a call. N.T. back his bedroom as she he mother’s conversation a at 1448. As listened his with he himself a level-three ballistics operator, dressed vest “outfit for attire that he would later refer as his and other complete at 1448. To the outfit he intended battle.” N.T. strapped to hold ammunition and designed donned a belt .357 magnum hip. his to his N.T. at 1449. down Dan Wesson .357 firearms, fully AK-47 Romarm including style Other loaded (“AK-47”) 12-gauge shotgun rifle and a loaded semi-automatic ammunition, slug propped alternating with buckshot were in the of his N.T. at 1449. up corner bedroom. a.m., Margaret
At 911 received Allegheny County 7:05 at her home and her Poplawski’s report dispute of a domestic argu- they removed were request be because N.T. at 61. ing. Her was calm voice and she indicated that no or involved, although violence were weapons she confirmed legal weapons kept were in the N.T. home. at 61. domestic, dispatch conveyed son “mother wants her son out of house, time, giving her hard no N.T. weapons.” at 62. Margaret Poplawski to Appellant’s and, returned bedroom seeing preparations, expressed disbelief, on, his saying “come you’re not going mind, do this.” N.T. at 1451. In his authorities, would later tell saying he himself it,” “come on picked up shotgun with his he 12-gauge room, into living walked out police where he could see officer at the front threshold entrance. at 1451- N.T.
Less than five minutes after receiving dispatch, Pitts- burgh Police Officers Paul Stephen Mayhle Sciullo and had arrived at Poplawski home. It was Officer Sciullo whom entrance, Appellant first saw the instantly fired *11 from shotgun striking the down hip, duty with officer still in weapon holster. N.T. at This 1452. first shot was “point executed with a click” Appellant would later ex- N.T. at plain. Appellant 1452. then attempted to use the buckshot, action of the to pump shotgun fire the gun but malfunctioned, quickly so he ran to kitchen to clear the slug time, shell and chamber new round. At this he heard Mayhle calling assistance, Officer emerged and Appellant from exchange gunfire Mayhle the kitchen to with inside the shots, house. to Mayhle stopped landed two one chest but by Appellant’s vest to the leg, forcing Appellant and one back toward the kitchen. to position, Unable see the officer’s Appellant started into wall firing between the kitchen and dining room not firing stopped, he did if he but know hit had the officer. at 1454. N.T. He ran his into bedroom door, his grab AK-47 and started toward front where lying saw Officer Sciullo motionless on his back at the thresh- Mayhle lying and Officer old outside at the of the bottom steps. N.T. at 1454.
Pulling at that up the scene moment an was driven SUV by off-duty Pittsburgh Police Officer Kelly. Kelly Eric Officer daughter his from just picked up his shift and completed
had they heard the work, nearly home when and the two were from the gunfire the sound report radio followed police away. than two blocks N.T. home, which was less Poplawski daughter, Kelly off his Officer After dropping at 106-07. immediately gunfire met with at the scene and arrived upon the driver’s Appellant fired Appellant’s from AK-47. exited, and he continued fire injured officer door before the well, wheel way behind rear as the officer his stumbled futilely fired duty weapon his where the officer drew the porch at 1455. left N.T. in several directions. and, seeing nothing, re- property of the survey the rear to the front. turned alive, Appellant stood over if Officer Sciullo still
Unsure single shot into his neck. N.T. AK-47 the officer and fired Mayhle his Officer and fired 1455. He attention to at turned just in body, into the officer “was prone several shots his case 1455-56, the officer to causing at opossum,” N.T. playing N.T. at 92. then fired each strike. twitch with fire. Kelly, who never returned an immobile Officer upon at 1456. N.T. house, Appellant attempt- no around his activity other
With but he could pistol, confiscate Sciullo’s sidearm ed to Officer at strap the holster. N.T. disengage the retention depleted to his He then returned bedroom discard from the AK-47 and reloaded with fresh 30 magazine round at 1456. magazine. round N.T. at Timothy McManaway arrived
Pittsburgh Police Officer its driver’s a.m. and saw SUV with door the scene 7:17 it, N.T. Kelly lying raising hand. open and Officer behind *12 to a Kelly managed drag ran to and to the officer at 170. He SUV, any not move him could position safer but behind from to Kelly bleeding heavily was wounds Officer further. torso, according McManaway, and but able leg his slipping a short into unconsciousness for time before speak 173-80, McManaway at 245-52. also losing pulse. N.T. and a nervously smoking at time Margaret Poplawski observed garage of the home. cigarette pacing and outside the side She was not visibly armed. N.T. at 182. yelled He and motioned to her to gunfire leave area when AK-47 coming from a window of the house was him, directed at tearing up the SUV and to hit causing shrapnel his face. N.T. at 175-76. McManaway returned fire and was shot in the left hand during the course of exchanges. several N.T. at 178-80.
Appellant’s semi-automatic weapon kept at for bay rescuers over minutes until an ad hoc rescue team comprising both S.W.A.T. city police used a van draped bulletproof with vests to McManaway retrieve Officers Kelly from the scene shortly after 8:00 a.m. at N.T. 246. Just minutes later, personnel S.W.A.T. arrived an armored vehicle and up drove it front of the house and were met heavy with gunfire some time pattern changed before the to intermit- tent spurts N.T. at battle. 367-73. Positioning armored vehicle to cover the location of Mayhle Officer en- abled a rescue/recovery team to reach the fallen officer. firing his weapon had been as ap- the team proached, “gunfire but from erupted” his location they when prepared to lift Mayhle. N.T. at No injured one was during the recovery, however. Eventually, sniper S.W.A.T. positioned on a home’s roof neighboring used a succession of seven or eight through shots the side wall to force from strategic his firing position deep within the room to a position closer to at moment, the window. N.T. 433. At that sniper Appellant’s saw the barrel protrude rifle round, the window single and he struck with a disabling rifle. N.T. at 434.
Shortly thereafter, Appellant Allegheny called 911 at about 9:35 operator/dispatcher a.m. and told the that he run out had of ammunition and not shooting any police more officers. N.T. at 911 supervisor, 498. The call was transferred eventually negotiator scene, team S.W.A.T. who Appellant’s dealings deceptive—at construed one mo- saying shooting ment police was “done innocent officers now,” right “well, I saying just the next want to take one more shot” with .357 revolver. N.T. 527. When the negotiator him simply asked the revolver out the toss *13 remaining point, in it at that
window, no glass which had at 529. He also claimed he could not. N.T. Appellant claimed remained out up at the window and put not his hands could also ex- Appellant the room. N.T. at 530. of view inside against AK-47 and anger over threw his disabled pressed N.T. at 528. When during phone conversation. wall Sciullo, worry not to about Appellant Officer said asked about something him else 12-gauge him he shot with and because Eventually, officer was dead. N.T. at 528. and the managed to the manner surrender negotiator arrange Appellant under placed officers entered the home and police at arrest at 10:44 a.m. N.T. 544-48. Pittsburgh’s transported was ambulance
Appellant crew members and a Presbyterian Hospital. Two ambulance injuries and, Appellant’s initial assessment doctor made an cleared Detective transport, they prepared Appellant once Appellant. Detec- begin his interview with Brian Johnson rights from a Appellant his Miranda1 tive Johnson read wallet, then in his N.T. at card he carried prepared of a presence if would talk without Appellant asked talk, questions agreed but evaded with lawyer. Appellant too that he tight, his flex-tie handcuffs were complaints when, fact, no medication had too much medication received leaning paramedic and that administered, been at touching penis. his N.T. at 1314-21. Once against him and interroga- Detective Johnson’s hospital, stopped Appellant at attorney. his to an N.T. 52. by invoking right tion receiving unit spent two hours the trauma his on his right leg, bruising wound to gunshot treatment for a chest, he was moved an his face left abrasion before 65, 68, hospital. unit of the N.T. at a room located a secure for his pain collar and received 140. He a cervical wore Oxycodone orally intravenously,2 and Dilaudid Tylenol drowsiness. at 76-77. that could cause N.T. medications Arizona, 1602, 16 1. 384 U.S. 86 S.Ct. L.Ed.2d Miranda v. (1966). pain 10-point N.T. as an 8 or 9 on a scale. described 90, 94. Once staff him in placed the hospital police bed and hand- him frame, cuffed and shackled to its he said to a patient care technician who washing his face that he up did wake to kill morning wanting people. N.T. at 1390. He asked *14 her “how I many cops did kill?” she said not When she did know, replied he “not I enough, N.T. at 1392. bet.” slept
He for some time to and awoke see Pittsburgh two police officers in hallway guarding his room. yelled He the officers “I’m sorry I your friends,” killed three of N.T. at and, later, sometime “all you cops cock suckers, are like on you’re big power a I trip. should have of you.” killed more N.T. at 1343. a nurse "When later arrived a tray, with dinner one of the officers and, entered the room her with noticing there nowas table for the tray, suggested that the nurse could it on put Appellant his chair. “you responded motherfuckers going aren’t to eat. That’s Iwhy you kill motherfuckers of your because power trips.” N.T. at After Appellant 1347. ate and the officer returned hallway, Appellant said calm voice that the officer who shot him in the chest was brave only Appellant’s and that ballistics vest stopped bullet. “He all,” could have ended it Appellant said. N.T. at 1348. He said not the officers did deserve what that happened and spend he would rest his life in prison “biting off dicks.” N.T. at 1348. room
Appellant’s grew came, evening darker as so an officer turned the overhead light hallway the short into leading the room to better observe Appellant. Appel- N.T. at 1350. lant again screamed the invectives he had earlier directed at the officers. N.T. at 1350. yelled He later the officer “I you wish was that came to my today.” door N.T. at 1351. The officers not respond Appellant’s did N.T. at outbursts.
The police officers eventually recommended their super- visor that staff the sheriffs, he next with county deputy shift it the officers’ opinion was was attempting provoke between police. hostilities himself and N.T. at 1338. Accordingly, at 10:06 p.m., Deputies Sheriffs Troy Garrett began Brad Nevin their their applied shift and handcuffs removed theirs. the officers shackles to before in the light if deputies could dowse
Appellant asked to observe him. N.T. room, cited their need deputies but the at 1372. a.m., 2:00 interaction took until about when place
No other tight was too that one his handcuffs Appellant complained it. N.T. at 1372. Deputy if Garrett could loosen and asked tight somewhat and he deputy agreed the handcuff was said he point, Appellant N.T. at 1373. At that loosened it. it all so happened happened what and that sorry about crying his mother in the hearing He remembered base- fast. N.T. at 1378. screaming officers outside. police ment and the Garrett, silent Deputy who remained response Without for the direction said he did care throughout, Appellant headed, going where he was country but knew which He said he go deserved there. N.T. at 1374. fighter liberty himself always had considered *15 they that had a hard police, acknowledged and he supporter sorry for himself. N.T. at job and that he did feel thanked had finished his comments he Appellant 1381. When him, Deputy and Garrett listening Deputy Garrett just room took what was the and notes about walked outside major the crimes divisions said. at 1376. He then called N.T. to inform them Pittsburgh Department of the Police shooting. facts the Appellant volunteering about a.m., a magisterial judge At 3:00 district approximately him a hospital room, supplied in his with arraigned Appellant him and that until he received copy complaint, the advised jail it for him to county at the would be wise public defender that, spent at 12. After the Appellant remain silent. N.T. night sleeping. bulk the a.m., major
At Detective James Smith about 7:00 hospital Deputy unit at the and met with crimes arrived Deputy room. N.T. at 1436. As Appellant’s outside Garrett comments, earlier actions and Appellant’s Garrett described him, eye and nodded so Appellant caught Detective Smith’s at 1437. Appellant toward him. N.T. the detective walked guards previous pair, disliked said he liked current but and he hospital believed the staff was him mistreating because of what he had done. N.T. at At 1437. complaints, these began detective to walk out the room to resume talks with Appellant Garrett and told call would room. nurse to the N.T. at Appellant 1437. him stopped by asking to see his and, arraignment papers upon seeing the complaint against him, that he stated did not to shoot neighbors’ intend houses. N.T. at 1438. Appellant then asked detective his and if police. name he was with the Detective Smith offered name, rank, his assignment, and Appellant and said he wished to talk. Detective Smith advised that he to get pre- had interrogation warning first, form faxed from office, because his right had invoked to remain silent and requested counsel.
The form 7:30, was faxed 7:21 a.m. N.T. at At Detective Smith reentered Appellant’s leaving room while door open, Appellant’s hand, uncuffed right together with Appellant filled out the form. Appellant provided his bio- graphical information confirmed paragraph after each rights he understood his by answering “yes, sir” initialing the form each time. N.T. at 1442. At the end of the form, Appellant confirmed that willing he was to waive his rights questions presence lawyer, answer without the of a again, by answering “yes, initialing sir” and form where the detective had written his answer verbatim. affirmative N.T. at 1441. Appellant signed then the form.
With the Miranda waiver form signed, Smith Detective began the interview. first asked the detective explain charges to his shooting neighboring related homes. When the him if really detective asked he was interested *16 part that of the complaint, Appellant admitted he was more in talking interested about his himself and actions. N.T. at 1442. expressed surprise
He he had only police killed three four, officers because he was sure he had killed at least thinking his two AK-47 pierced shots had the windshield pulled the vehicle that inup yard. S.W.A.T. had his N.T. at explained why 1459. He his called 911 and mother body and great how he donned armor detail described the at 1444-51. He police arrived. N.T. armed himself before took each account of he down provided how step-by-step officer, time, he firearm he used each and where what and positioned they engaged. were when N.T. officer respective process he and fired thought approached His at 1452-57. said, shot Sciullo, “trigger ready, cop, he at Officer was shooting at a motionless it’s on.” N.T. 1466. He admitted the AK-47 and time with said he Officer Sciullo second upon Kelly the rescue of Officers would have fired surveying it. must been McManaway he had seen He have if said, “I place; of his it took would property, the rear he when them if I them.” N.T. at 1445-47. He also said have shot saw at thinking firing upon he the time he was the S.W.A.T. was on glad that he no children forces outside was lived block thinking neighbors, and that his too. N.T. at he about 1465. taking phone during calls from friends
He described stand-off, a conversation with a credit card and even held his out the agency firing collection while he was AK-47 window, out of luck he telling agency was because was N.T. at 1460. His statement covered police. a shootout with took gunshot the moment a out his AK-47 and he how after that. at 1461. As he felt his his .357 N.T. resorted wound, took off his diminishing leg he strength because left Officer vest and bruise chest noticed where contemplated had him. N.T. at 1462. He had Mayhle shot moment, said, instead, jail, at that he suicide but decided read, visit, because he could friends could could N.T. at 1464. He then called 911 to perhaps write book. at surrender. N.T. 1463. of his told Detective Smith at the end statement just everyone all this happened
that he wanted know how why story. he wanted tell the N.T. statement, taking gave Appellant After Detective Smith accuracy make corrections and opportunity confirm his initials in paragraph signing pen of each before red throughout. only N.T. at 1466-67. made vari-
537 ous to grammar corrections and spelling, he also scrutinized as to the sequence details and description events. At one for point, example, Detective Smith “police had written ar- rived, stepped to pick corner to up shotgun[,]” [of bedroom] in Appellant changed but his own hand to read “stepped to comer to pick up shotgun police before arrived.” at N.T. 1470. He took the time make other fine distinctions throughout the notes. N.T. at reviewing 1470-77. While notes, entirety Appellant “well, said sound doesn’t very good me.” N.T. at 1467. finished,
Once he Appellant added his own state- initialed ment that said “[p]oliee much quicker expected. arrived than I I caught guard. snap off This led to a decision shoot. police Believed to kill going were regardless, me due to in firearms the home at ready.” N.T. that, 1468. After at in he wrote “red is mine” used, reference the color ink statement, signed it, dated and recorded the time of 10:06 During interview, a.m. N.T. 1468. at entire access denied, room Appellant’s was not freely medical staff had 1395,1442. perform entered to their at duties. N.T. charged with three counts criminal homi-
cide, 2501(a), § nine attempted homicide, Pa.C.S. counts of 901(a), § nine counts of Pa.C.S. assault of law enforcement officer, 2702.1(a), § 18 Pa.C.S. charges other related 4, on of April April 23, 2009, based the events 2009. On Commonwealth issued notice of its intention seek the death The trial court penalty. granted subsequently defense venire, motion for a change time this Court which that jury place directed selection A Dauphin County. take hearing on Appellant’s was held motion to suppress, which 20, court denied its September order 20, Trial Allegheny County commenced in on June 25, 2011, June jury on returned with a verdict of guilty on all penalty phase began counts. The on June 2011 and following day. jury concluded unanimously voted death, finding to sentence aggravating three (that police circumstances the victims were officers killed in duties,3 knowingly creating grave of their performance victims,4 addition to person risk of death to another murders5) circum- mitigating and two committing multiple (no dysfunctional and a and difficult prior convictions6 stances *18 the “catch-all” Imme- coming provision7). as under childhood verdict, of penalty sentences diately following jury’s the three subsequent- were Post sentence motions imposed. were death 6, notice of timely and filed ly on March 2012 denied 22, 2012. appeal March Sufficiency of the Evidence
I. argument has raised no re appeal, Appellant On However, “in all sufficiency of the evidence. garding the the evidence to appeals, this Court reviews direct capital first-degree the murder support it is sufficient ensure that Sanchez, 1, v. 614 Pa. 36 A.3d Commonwealth conviction[.]” (2011). 24, killing, murder is an intentional First-degree 37 Pa. ie,, “willful, killing.” 18 premeditated and deliberate (d). murder, 2502(a), prove first-degree § In order C.S. (1) being that: a human establish Commonwealth must (3) death; killed; (2) caused the accused the accused jury intent to kill. Id. The specific with malice acted upon kill defendant’s use of a based may infer the intent body. of Common part the victim’s deadly weapon on vital (2009) Johnson, 176, 915, (citing 920 604 Pa. 985 A.2d wealth v. Baumhammers, 1, 59, 599 Pa. 960 A.2d 68 v. Commonwealth (2008)). sufficient to reviewing
In whether the evidence convictions, or first-degree murder conviction support must and all evidence consid entire trial record be evaluated standards, In we bear mind applying ered. Id. above its of may that the Commonwealth sustain burden means evidence, fact, of and “the trier while wholly circumstantial 9711(d)(1). § 3. 42 Pa.C.S. 9711(d)(7). § 42 Pa.C.S. 1(d)(1 1). § 971
5. 42 Pa.C.S. 9711(e)(1). §
6. 42 Pa.C.S. 9711(e)(8). §
7. 42 Pa.C.S.
539 upon of passing credibility witnesses and the weight evidence, all, is free believe or part, none the evidence.” Cousar, 204, v. 1025, Commonwealth 593 Pa. 928 A.2d 1032- (2007); Sanchez, 253, Commonwealth v. 623 Pa. 82 A.3d 943, (2013).
Instantly, the evidence the Commonwealth all therefrom, reasonable inferences deduced in a when taken light most to the winner, favorable Commonwealth verdict see Murray, Commonwealth v. 623 Pa. 83 A.3d (2013), support jury’s of first-degree verdict in the murder Sciullo, Mayhle, deaths Officers As Kelly. recounted supra, presented the Commonwealth Appellant’s highly de tailed confession as how he carried out his ambush-style attack upon Mayhle Officers they Sciullo and when arrived his home. He killed Officer Sciullo a shotgun with to the blast head, and struck Officer Mayhle down with multiple rounds shotgun gunfire. and AK-47 He gratuitously offi shot both *19 cers additional times in the head and neck with his as AK-47 they lay ground. the opened motionless He fire on Officer Kelly’s home, as it in front of pulled up striking SUV his leg through door, officer’s side fatally pierced driver’s and the officer’s vest with the same high-powered AK-47 ammuni tion Kelly his Neighbors exited vehicle. identified the shotgun fired, blasts as the first shots they and witnessed Appellant of shooting prone at all three officers. bodies Expert forensic testimony further substantiated the use of deadly of the weapons parts vital officers’ bodies. Accord ingly, we hold sufficient was presented permit evidence a a jury beyond reasonable conclude reasonable doubt that Appellant of of guilty three counts murder the first degree. Suppression
II. issue, In first challenge his briefed levies a Appellant to the trial court’s evidentiary ruling deeming Appellant’s incriminating, post-arrest police statements admissible. states, first, His two-prong argument police impermissi- bly failed to honor his invocation of scrupulously right made, clearly unequivocally The invocation
counsel. “I want eventually he declared when emphasizes, interviewing as Detective Johnson was fucking lawyer” my Although room. N.T. at emergency hospital him in the a coercive point, police maintained questioning ceased in a lay restrained many hours which presence over hospital plain his room standing outside hospital by bed room, periodi- his entering all escorting personnel sight, hours, during nighttime lights on the overhead cally turning chronic pressure that this culminated He avers he continues. Appel- to the after Smith, hospital summoned with Detective volunteering by of silence his hours lant had broken room, allowing his Deputy guarding to a statements Sheriffs signing to his a that led begin conversation incriminating form and state- Miranda waiver providing ments.8 Appellant’s argument suppression prong of second product incriminating statement was that his
denies intelligent part. on his voluntary, knowing, and decision Pain wound, agitation gunshot loss from the fear and blood likely consequences, perceived hostility expressed about killers, pain guards, administrations intravenous and several Oxycodone narcotics Dilaudid including IV over schedule deprive Appellant all in concert to period, a 16-hour worked him 16 to invoke lucidity prompted that had hours earlier rights, By Fifth he insists. his and Sixth Amendment room, state Appellant’s time entered the Detective Smith voluntarily initiating mind him conversa- incapable made protections tion in which he could waive constitutional invocation, he claims. afforded earlier *20 first Appellant’s prong that responds The Commonwealth asks this Court argument asserting disregarded invocation crediting additionally Deputy the court Appellant offers that erred abruptly speak testimony he his refusal Garrett’s that abandoned gestured inviting Deputy enter nod for Garrett to officers with an and else, argues, nothing collar would have his If he his cervical room. such, As he physically impossible him to do this. contends made it for Deputy point Garrett's role as the court should have identified at began. wrongful invocation breach of his which to do what it cannot do—upset the credibility determinations court, suppression province within whose sole tois on pass credibility and the weight given witnesses be testimony. their According Commonwealth, when view- ing evidence under the governing standard scope and review, it is clear that police respected Appellant’s invocation up until the time he voluntarily his right waived to counsel many hours later. testimony by Credited was nursing staff and officers explained alike who that officers neither questioned Appellant to his responded many nor outbursts during the time his invocation was effective. Deputy Garrett room Appellant’s only entered Appellant because him to asked tight handcuff, loosen a and Garrett remained silent when Appellant began crime, motivations, talk about the his and expression remorse, his the court found. While Detective Smith arrived Garrett him Appellant’s because notified about willingness talk, new Smith did not enter the room until Appellant him, for motioned Appellant advised that they could not converse because Appellant requested had an The court attorney. likewise Detective accepted Smith’s testi- that it mony after only longer said that he no an wanted attorney attorney an could not change because anything, talk, he wanted to that Smith Mirandized Appellant and took his statement. posits Commonwealth likewise that the record Appellant’s
belies prong incapa second assertion he was ble of validly waiving rights. his His treating physician testified that he received medication that could cause drowsi ness impaired but would not have judgment. his Further more, no witness or display described incoherent ing time, confusion any Appellant’s notations Miranda form commentary supplied written further of voluntarily evidence made statement.
In reviewing suppression court’s denial of a suppression motion, may only we consider evidence the Common- wealth and so of the much evidence the defense as remains uncontradicted when read the context of the record as a whole. the suppression Where court’s factual
542 record, by we are bound these by are
findings supported only if court’s conclu- legal reverse findings may Nonetheless, exercise re- plenary we sions are erroneous. court’s law. suppression conclusions view over Johnson, 354, 1017, 42 615 Pa. A.3d 1028 v. Commonwealth (2012). here, his Fifth
Where, as an accused invokes Amend pro but later rights9 during interrogation ment a custodial statement, this Court reviews the vol- incriminating vides an whether by examining of the accused’s statement untariness “until counsel interrogation refrained from further authorities him, unless the accused himself has been made available communication, or conversations exchanges, further initiates Edwards, 151, v. 588 Pa. 903 police.” with the Commonwealth Arizona, (2006) 1139, 451 (citing 1150 Edwards v. U.S. A.2d (1981)). 477, 484-85, 101 1880, 1885, 378 See S.Ct. 68 L.Ed.2d Keaton, 1050, 1067 675, 615 Pa. 45 A.3d also Commonwealth v. (2012) (invocation of to counsel shields right Fifth Amendment present, until counsel is interrogation arrestee from further In police). further conversation with unless arrestee initiates Hubble, 497, (1986), 509 Pa. 504 168 Commonwealth v. A.2d given a confession after a defendant this Court held that suppressed to counsel need where right invokes be “(1) communication, exchanges, initiated ‘further defendant: (2) police’, and intelli knowingly or conversations with (quoting to counsel.” at 175 right waived the Id. gently 9). Edwards, 9, at n. 101 at 1885 n. U.S. 485-86 S.Ct. review, supports that the record After careful we conclude deny it to findings Appellant’s court’s fact led lower suppress. Testimony suppres- motion to adduced both that Detective Johnson hearing transcripts sion established once invoked his ceased his interview with eighteen 52. right Approximately to counsel. N.T. counsel, right case-specific Amendment In addition to the Sixth Supreme separate, prophylactic United Court has held that a States right encompassed to counsel is in the Fifth Amendment to counteract interrogation. ‘inherently compelling pressures’ of custodial Wisconsin, 171, 176-77, 111 S.Ct. v. 501 U.S. McNeil (1991) (citing Miranda, supra). L.Ed.2d 158 transpired hours from his invocation to his eventual renuncia- tion, time, during which according testimony credited court in its suppression exclusive role as fact, finder of law enforcement officers Appellant’s honored invocation by re- maining his hospital outside room except hospital escort *22 personnel magisterial and the judge district during arraign- ment, by and ignoring Appellant’s invectives and other at- tempts to communication. establish When Deputy Garrett Appellant’s entered room on Appellant’s request that a hand- loosened, cuff be he listened Appellant when volunteered concerning case, statements his but he neither initiated the nor encounter conversed with Appellant, and he *23 the district arraignment, room at time received which Finally, at 11-12. to remain silent. N.T. advice judge’s 4/6/10 correctly to the form on his own Miranda ability complete his to contributions in his hand Detec- and to make written own notes, 17-24, his N.T. at both tive Smith’s demonstrated 2/5/10 saying freely and exercised capacity know what he his court, evidence, accepted by it. The sum of say will voluntarily renunciation statements proper to a and pointed suppression court did err Accordingly, made. written and oral statements. refusing suppress Appellant’s Epithets of Admission Racial
III. issue, In next contends that reversible from the guilt penalty phase taint in both the and resulted evidentiary ruling, objec over trial court’s erroneous defense of 911 tion, excerpts Appellant’s to hear permitting jury racial that were irrelevant epithets call which he uttered highly prejudicial. and the slur several “nigger”
In his 911 call used trial, granted request At defense counsel’s times. court of the forty-one recording the entire minute jury hear
545 call made N.T. at Appellant. 524. From that record- several ing, excerpts were made exhibits and entered into evidence, as first well. The 911 call excerpt accompanied testimony dispatcher Kathleen Cornell offered the following from Appellant: taking
APPELLANT: I’m done police innocent officers’ So, me, lives. if can someone come get that would be great.
DISPATCHER: Do have on you any you? weapons plenty APPELLANT: I got weapons me, but I’m not shooting any cops my weapons more because out are ammunition and disabled. out of
DISPATCHER: You’re ammunition? Almost, you APPELLANT: I promise but I’m not going to shoot more any fucking police officers. see also 496-97; 1501;
N.T. N.T. at Commonwealth Exhibit Also played 93.10 as Exhibit 94 were accompanying remarks testimony 911 Call Center shift commander Robert Sabo: Poplawski.
APPELLANT: Richard I’m inside Fair- any field I don’t Okay. Street. want more to end innocent officer’s Okay. Okay. lives in line of duty. [sic] [A]nd shot, you unless to send I’m want in here. somebody (inaudible) know, I’m jail And you going go fight niggers my somebody for the rest life.” with a Send fucking nice which living room, voice into the is the main window, room big with the and I’ll them we’re explain basically done for the—. 607; B,” 93A,
N.T. “side at 12:41. Commonwealth Exhibit third excerpt admitted Exhibit contained *24 93, 94, represented segments Exhibits taken and 95 from one entire 93A, recording, separately which was admitted as Exhibit "side B.” recording played testimony during from Redacted Cornell’s go fight Appellant’s going jail niggers "I’m to for the statement and did, however, my appear of on Common- rest life.” This statement 93A, “B" at approximately wealth Exhibit side 12-minute mark call, during Cornell’s a second effect was included and statement to that playback dispatcher Robert at Exhibit of Sabo’s call as indicated infra. Campbell and Sergeant Ap- negotiations surrender between alia, said, it “ain’t no inter bullshit Appellant which pellant, the niggers’ and I will have to bite dicks happened about what of life.” Commonwealth Exhibit fight my off for the rest 93A, B,” at “side 18:15. admitting these recording entire playing
Prior cautionary in- following trial court issued the excerpts, struction: record, gentleman, this
THE For the ladies COURT: on, of this is one you put headsets another is—before that Keeping you instructions. in mind supplemental these dispassion- of facts and fair and judges be are be the in all matters. You will hear statements impartial ate tape-recording in this con- to the defendant attributed comments gratuitous These are made epithets. tain racial occurring events of conversation and the the context comments, prejudicial racial they at the time. Because are to the up your them stir emotions must not allow you regard of You must prejudice the defendant. a person that the of bad showing defendant is evidence to infer that you might inclined character from which be charged crimes here. any he’s of of the guilty offense, of guilty any find the defendant you ultimately If of the Common- upon proof it must evidence based be doubt and not the basis beyond reasonable wealth you infer a racist language might which any offensive may proceed. attitude. You N.T. at 496. racist comments were irrelevant argues that the and, first-degree accordingly, murder proving the case highly prejudicial to offset their value any probative
lacked such, required As exclusion was under then- effect. their Pennsylvania Rules former 401 and 403 effective Rules Evidence, vein, notes that In this submits.11 rulings, evidentiary this Com- time court made its 11. At the the trial "having any tendency monwealth defined relevant evidence as consequence to the determina- any the existence fact that is of make probable probable more or less than it would be tion of the action *25 trial initially court objec- sustained his relevance-based tions to epithets changed ruling but its them deemed admissible—despite maintaining they of questionable were relevance—for their contextual value. Specifically, the trial court itwhy changing ruling: advised its
THE problem COURT: The is not that it is relevant. I Clearly agree you very would with there is a difficult issue as to relevant or not. But problem whether it’s is contextual, appears meaning in virtually be it’s there that’s on everything going being said. But there are instructions, several cautionary dealing one with inflamma- tory photographs, dealing one with evidence of other crimes which together, have melded and I’ve got about a paragraph and a half I here that can tell them essentially they are not to regard the evidence as ... [court’s comment ends without explanation],
N.T. at 360. Appellant reasoning dismisses also as having 401, no support predicated former Rule which the admissi- bility of on evidence relevance a material fact.
Appellant continues that whatever epi- contextual role the thets could theoretically played assisting have jury rendering negated by a verdict was all but admission his written by confession as well as 911 state- substantive Indeed, ments reflecting guilt. consciousness redaction of the quintessentially inflammatory “nigger” slur have would sacrificed nothing incriminating value the otherwise evidence, telephonic he contends. was, furthermore, harmless,
The court’s error Appellant continues, as profound prejudice revealing associated with hardly be a racist can have been rendered comparatively insignificant by the properly admitted evidence 401, replaced
without the Former evidence.” Pa.R.E. rescinded and 17, 2013, 18, Jan. March effective 2013. Under former Rule 403 in trial, subject effect at the time of relevant evidence was to exclusion "if probative outweighed by danger prejudice, its of unfair [was] value issues, misleading jury, confusion of the or or considerations time, delay, presentation undue or needless of cumulative waste 17, 2013, replaced evidence." Former Pa.R.E. rescinded and Jan. effective March penalty phase, in the so particularly This guilt. of his contends, on a theme of prosecutor relied where devastating acted his hate with “hater” who Appellant as if very again do so allowed live may well consequences therefore, jail. was, punish invited jury life in out his *26 actions, as as for his system for well his belief goes. argument Appellant’s integral epithets counters that the were
The Commonwealth
statement,
that their
Appellant’s
of
to the cohesiveness
task of
the
with the difficult
jury
would
left
excision
have
offered in an
language segments
piecing together broken
of first-
proof
that stood as crucial
inculpatory statement
way
regrettable
It is in that
the
remarks
degree murder.
it maintains. “The issue
importance,
of vital
were
contextual
admissions,
as ‘I’llhave
germane
[such
highly
is
these
whether
my
for the
of
could have
fight
my
life’]
to
for
rest
life
in
‘nigger’
way
from
such
reasonably
divorced
the word
been
evidentiary integrity[,]”
the
as to
their relevance
preserve
for
at 32.
In a case
posits.
Appellee
Commonwealth
Brief
murder,
murder,
involving
attempted
counts
multiple
for
offenses,
imperative
the court
egregious
other
Appellant acknowledged
admit the “exact words” which
should lose his
police
took the
of “innocent
officers” and
lives
All
life,
for
continues.
the
argument
the
words
freedom
therefore,
and intent
together,
demonstrated
malevolence
crimes,
insists.
unprovoked
the Commonwealth
behind these
In
of its
the Commonwealth cites to
position,
furtherance
extra-jurisdictional
for
that racial
authority
proposition
they
important
are
epithets should avoid redaction where
of the material
understanding
the finder
fact’s
conversa-
Price,
In
v.
For its trial court discusses neither the relevance epithets of the nor their relative probity compared to potential for prejudice. Instead, it opinion say confines its that Appellant nothing offers presumption rebut the juries cautionary that, worst, follow instructions, and any error the evidentiary ruling harmless given overwhelming of Appellant’s evidence guilt this brutal crime: suggestion “[t]he because the jury heard the defendant utter epithets racial their ability [sic] render a fair verdict was impaired is absurd.” Trial Court Opinion, 5, 2012, dated at 33. November admissibility is evidence a matter
discretion the trial court ruling and a thereon will be reversed appeal only upon showing that the trial court an committed abuse discretion. Commonwealth v. Sher *27 wood, (2009). 92, 483, 603 Pa. 982 495 “An A.2d of abuse may discretion merely appellate be found an court because might conclusion, have a requires reached different but unreasonableness, partiality, prejudice, result manifest or bias, ill-will, or or lack of support such so as to clearly be Dillon, erroneous.” (quoting Id. Commonwealth v. 592 Pa. (2007) (citation omitted)). 351, 131, 136 925 A.2d In of an the event erroneous admission evi dence, a verdict can still be sustained if the error harm was 270, 119, less. See v. 599 961 Wright, Commonwealth Pa. A.2d (2008). 144 An error is if it harmless could not have contrib verdict, to the or uted stated an error cannot be conversely, harmless if possibility might there is a the error reasonable have to the conviction. harm contributed Id. We have found less error where:
“(1) the error did not or prejudice preju- the defendant minimis; dice de
(2) erroneously merely evidence was cumula- admitted substantially tive of other untainted which evidence evidence; or erroneously similar admitted (3) admitted and uncontradicted evidence properly and the effect of the guilt overwhelming prejudicial was so insignificant by comparison so the error error was to the could not have contributed verdict.” Young, v. 561 Pa. 748 A.2d (quoting Id. Commonwealth (1999) (citation omitted)). The Commonwealth has beyond harmless error reasonable proving the burden doubt. Id. at
Here, including epithets the otherwise any error recording Appellant’s 911 call highly probative relevant and insignificant compared properly admitted statements was establishing that intention- overwhelmingly evidence ally fatally police provocation. shot three officers without by donning body for their arrival armor and prepared He firearms, first arming himself with several struck down the Sciullo, officer, at the front entrance while the officer’s Officer holster, in its gun Mayhle was still and overtook Officers He continued to Kelly multiple weapons. spray gunfire with prevented outside the home and at- anyone who moved lay who tempts Kelly, dying to render aid Officer played front As this out at his sidewalk. brutal exhibition home, than once in Appellant telephonically admitted more clearly police stated fashion that he killed “innocent officers” during episode prepared go prison and was for the later, having Nearly rest of his life for done so. hours to the same in a volunteered written admission effect constitutionally interrogation. custodial identi- sound Neither kill ty specific seriously challenged nor intent to was ever Wright, not a at 144. supra at trial. This was close case. See therefore, such evi jury, overwhelming heard *28 on its verdict guilt aggrava dence both which base not ting circumstances on which to base its sentence that even potential with the to incite epithet passion this all-too-familiar in or among people guilt reasonable could have factored its presumed deliberations. Juries are to follow penalty phase Freeman, instructions, 532, v. 573 Pa. Commonwealth 827 Carter, (2003); 385, 409 Commonwealth v. A.2d 537 Pa. (1994) (trial jury court not to 643 A.2d instruction as prosecutor’s any consider statements evidence preju- cured comments), may by dice which have been caused and the court specifically they advised jurors were not draw an adverse Thus, character inference from the two references. con- we error any attending clude that of Appellant’s inclusion use in epithets an highly otherwise relevant statement was harmless. Discovery
IV. Violations In issue, his next Appellant briefed contends court erred in repeatedly permitting experts testify Commonwealth beyond the of their scope respective pretrial reports, thus a constituting discovery 573(E), violation under Pa.R.Crim.P. alia, infra, which, inter provides may that the court prohibit party introducing evidence not in properly pre- disclosed trial Each discovery. expert, Appellant says, agreed during testimony on cross-examination that his report did not contain opposed opinions, and so admitting revealed clear strategy by the by surprise. Commonwealth conduct trial resulted, asserts a manifestly process espe- unfair cially objected-to when the opinion one instance related to matter specifically during asked had about discovery only to be told it would be raised at trial. In mistrial, regard, Appellant which motion moved court denied.
Moreover, Appellant submits that the court’s for ad- basis many mission in instances—that fairly the evidence was basic anticipated easily and should have been understandable— actually called for its exclusion predicating under the standard explain complicated admission the need to evidence that jury. what would otherwise be the ken of the If the outside here easily grasped, evidence issue then should not presented by expert witnesses, have Appellant argues. been Resulting surprise was unfair impeding defense counsel’s abili- ty defense, to prepare adequate expert Appellant submits.
Pennsylvania pre- Rule Criminal Procedure governs discovery provides trial part relevant follows: (B) Disclosure the Commonwealth.
552
(1) cases, Mandatory. request In all court the defen- by subject to order which the Com- dant, any protective and might rule, under monwealth obtain this Commonwealth following all of the attorney shall disclose the defendant’s information, provided they or are material requested items shall, applica- instant The Commonwealth to the case. when or ble, attorney inspect copy and permit the defendant’s photograph such items.
(e) tests, expert opinions, or of scientific reports results any of reports polygraph or recorded examinations written defendant, or or of physical other mental examinations control possession attorney or of the which within are Commonwealth; for the
(E) If time of the Remedy. any during pro- at the course it is to the attention of the court ceedings brought rule, has failed to the court party comply may with may or party permit discovery inspection, such order intro- grant continuance, may prohibit party or such not other than of the ducing disclosed, testimony evidence defendant, just it such it may or enter other order as deems under the circumstances.
Pa.R.Crim.P. of testimony The admission is a expert matter court, not discretion the trial will be disturbed absent Walker, v. Commonwealth of discretion. 625 Pa. an abuse (2014). 450, 766, 92 772 An discretion “is not A.3d abuse if in judgment, reaching an error of but merely a conclusion or or misapplied, judgment the law is overridden exercised unreasonable, manifestly partiality, preju or the result of is ill-will, record, dice, or the evidence or the bias shown omitted). (citation Id. at is discretion abused.” 772-73 Expert cases, is in all civil testimony admissible alike, explanations criminal “when and infer involves range ordinary training knowledge, ences within the Common- Id. intelligence experience.” (quoting 788 Leslie, 331, (1967)). wealth v. 424 Pa. 227 A.2d Even an expert’s where testimony arguably beyond scope went report, his or her the defendant still bears burden proving he suffered prejudice from the admission of the testimony. See Commonwealth v. Henry, 550 Pa. *30 (1997). 313,
A.2d 326-327 The trial court has broad discretion choosing the appropriate remedy a discovery for violation. Jones, (1995). 491, Commonwealth v. 542 Pa. 668 A.2d First, Appellant complains that the of report expert Allegheny County Williams, Chief Medical Examiner Dr. Karl autopsy who conducted the of Kelly, Officer Michael indicated injuries the of of projectiles locations and directions were position based standard anatomical without offering any opinion came or Kelly about which wounds how Officer first however, positioned trial, was when hit. N.T. at 292. At the if when Commonwealth asked Dr. Williams he could “grouping gunshot Kelly’s determine which of wounds on Eric first,” body objection were administered defense counsel’s was court initially objections overruled. The trial had sustained received, of testimony regarding specific order wounds the but trial it allowed Dr. to infer from alignment Williams of bullet of Kelly’s holes the driver’s side door SUV with the gunshot leg wounds in his that Officer this Kelly received seat, grouping gunshot of as he sat wounds driver’s opine it allowed him to then Kelly further that received the directly gunshot fatal to his as wound torso he exited the report vehicle. had this as “most Dr. Williams’ identified inevitably fatal” shot. of
Appellant argues that the absence these observations from Dr. him of report deprived opportunity Williams’ fails, prepare as to expert rebuttal the order of wounds. He however, of carry explaining his how this admission burden his prejudiced evidence defense. Examination of the entire merely record that Dr. testimony reveals Williams’ corroborat- eyewitness ed accounts that unrebutted initiated gunfire on who Kelly, ground immediately Officer fell alighting after first his vehicle and incapacitated remained investigation, well, there. The crime scene noted to his lay on the next SUV incapacitated officer sidewalk prevented paramedics Appellant’s gunfire extended time as an offering aid. The uncontradicted officers fellow during overwhelmingly trial es- admitted elsewhere evidence Kelly Officer the fatal shot while tablished that fired showing preju- exiting Unsupported just vehicle. dice, claim fails. that Allegheny County contends Asso
Appellant next Pathologist Todd ciate Examiner and Forensic Dr. Medical in his opinions report testified to when Luckasevic also object Mayhle. Officer The defense describing autopsy if Dr. Luckasevic he could prosecution when the asked ed at the time he received position Mayhle on the Officer opine that entered his face and severed his gunshot a fatal wound bar, for an At defense counsel asked offer spine. cervical side replied expected she proof, prosecutor and the or standing, sitting up, the officer either say doctor shooter because those would be the directly underneath *31 on essentially trajectory level the possibilities three based it once entered the face. N.T. at 567. bullet had taken that, opinion this was not protested again, counsel Defense nor was it offered counsel the doctor’s when defense report, earlier, six months and she decried the interviewed the doctor relying “surprise opinions” on to make prosecutor’s practice that disagreed question its N.T. at 567. The court case. “I noting that don’t think produce surprise opinion, would a if pathologist figure out the bullet have to be a forensic you down, standing up, goes you sitting have be straight, either this is rocket pathology, or on the ... but isn’t ground science, objection is overruled.” N.T. at 567. so the that Dr. transcript of the trial Luckasevic
Review shows that entering examination the bullet determined trajecto- traveled at a Mayhle’s slightly face downward Officer back, of an dropping three-quarters ry from front about spinal as it along pathway inch that severed his cervical cord. by position Commonwealth what N.T. at 568. asked When path, in to that Dr. the officer must have been sustain wound many positions would be responded Luckasevic because consistent it question difficult to answer. The doctor recommended, instead, that he an opinion could offer toas whether the wound was consistent awith scenario. particular N.T. at 568. The Commonwealth supplied hypothetical then on based Exhibit a crime scene photograph depicting Officer Mayhle’s body lying face on a up concrete As- slab. suming that the concrete was out beveled underneath the head, officer’s prosecutor asked doctor if he could determine the location of the firearm in relation the officer. “[i]f, The doctor you answered say, the concrete’s beveled out, the bullet had have been fired from in a above followed, downward fashion.” at It N.T. the doctor opined scenario, under this same assumed that the two gun- Mayhle’s shot wounds to Officer have preceded back must given head wound “immediately incapacitating” effect severance of spinal cord would have had. N.T. 576-78. Moreover, the shallower the two back wounds was marked path entering the low back much exiting higher, consistent with bending the officer down in a running motion. fact, N.T. at 580. In opined, the doctor the three shallow body wounds the officer’s were all consistent with this physical position. N.T. at 576-78. cross-examination, however,
On gained defense counsel agreement doctor’s that the fatal gunshot to the face could have created bevel the concrete officer beneath the slug because that never exited the head: DEFENSE That A COUNSEL: wound fatal head [the wound], exit, there is no correct?
DR. That is correct. LUCKASEVIC: DEFENSE COUNSEL: So wound any didn’t bevel *32 sidewalk. that be correct to say? Would THE COURT: What? any
DEFENSE COUNSEL: That bullet doesn’t bevel side- walk.
DR. It stayed LUCKASEVIC: No. in—that bullet— any DEFENSE COUNSEL: wound A didn’t Gunshot bevel sidewalk? No, there, stayed it that’s correct.
DR. LUCKASEVIC: you prosecutor] [The asked COUNSEL: DEFENSE sidewalk, are in the that the there bevels opine that because A from up came above. gunshot wound I thought I think that. I opined DR. don’t LUCKASEVIC: I in front of his face. the muzzle was said you’re saying not that at all? DEFENSE So COUNSEL: Correct. LUCKASEVIC: DR. can’t say person You where the
DEFENSE COUNSEL: exactly position body of the at the you know unless they time that were shot? I give
DR. You can me scenarios. Right. LUCKASEVIC: with, I percent know 100 can that’s consistent but don’t say was, was, body gun where the where the shooter where just I any Again, dealing was. of that. I’m with know don’t of the I trajectory path or terminal bullet. terminal air, no it if it gun—where have flew the idea where I actually something, deflected off don’t know that. counsel on to Dr. develop N.T. 586-87.12 Defense went on the him if opinion point by asking Luckasevic’s further tell where Officer was at the time he Mayhle could received No[,]” no Dr. way the fatal “There is tell that. wound. prosecu- at 592. Finally, Luckasevic testified. N.T. after redirect, tion, opinion Mayhle on that Officer may elicited have been shot in face after he fell off the front backwards steps concussion-type injury porch and sustained traumatic confirmed, impact, counsel, re-cross, again, on that defense any degree to know possible the doctor with certainty the order events: you can’t tell us then what
DEFENSE COUNSEL: So A to the or B gunshot face] [the wound [the order fatal came; right? of the is that injury head] to the back impact redirect, opine one of in the On Luckasevic did the marks Dr. Mayhle’s directly have concrete slab located behind Officer head could bullet, possibly porch, skipped from a fired from the front resulted lay lodged off officer’s head as he there. N.T. at sidewalk
557 DR. tell, That’s We have—I can’t LUCKASEVIC: correct. no. So he shot in gotten
DEFENSE COUNSEL: could have the face and then fell the steps? down DR. or correct, LUCKASEVIC: That’s he could have fell got steps [sic] down shot the face. [being] one more or
DEFENSE COUNSEL: Neither less likely? tell,
DR. I can’t no. LUCKASEVIC: N.T. at 601.
According Appellant, testimony corroborated the ease in chief that Appellant firing Commonwealth’s down upon thereby helped the officers and “clearly the Common- specific wealth murder and the intent to first-degree establish of kill.” Brief Appellant at 58. The trial court’s observation portion
that this of the “not science” expert opinion was rocket evidence, ignores accepted Appellant purpose expert continues, beyond knowledge is to explain which matters or experience average lay Brief of person. Minerd, v. Commonwealth (citing
57 562 Pa. A.2d (2000)). argument, through any Appellant’s however, explain fails argument authority or citation to how the exclusion developed testimony positions Dr. on victim at the time Luckasevic’s of the fatal have shooting possibili- would created reasonable charge. ty first-degree outcome murder different Moreover, ably the record that defense counsel demonstrates position through victim line of her questioning nullified the Luckasevic, developed cross-examination Dr. which possible critical that it expert opinion ascertain angle Mayhle’s precise the wound Officer location and position The most at the time he received his fatal wound. Mayhle’s Dr. an that Officer opinion Luckasevic offered was gunshot just wounds as caused a manner likely were they were hypothetical consistent with the Commonwealth’s with the N.T. at 601. As hypothetical. defendant’s alternate unfair- testimony that Dr. Luckasevic’s
such, claim Appellant’s him merit. is without ly prejudiced complains prejudice also reversible Shakir, a Dr. Abdulrezak permitted the court arose when *34 Allegheny for the Medical Examiner’s pathologist forensic Office, projectile caused the testify type to about what began As Dr. to to Sciullo. Shakir describe Officer wounds not wound of an “typical gunshot wound was a how the counsel that bullet,” anticipated N.T. at defense ordinary that identify the bullet caused wound the doctor would conference, rejected objected. the court defense At sidebar beyond scope argument testimony went counsel’s the defense with sur report of the coroner’s ambushed to it on the size of the testimony. going “He’s prise base shotgun slugs,” I that this is of the wounds. assume one correctly. court N.T. at 890. predicted entry Dr. that the wound in Officer opined gaping Shakir wound one head was the kind entrance finds Sciullo’s “ordinary guns, from like “ordinary with an bullet” fired caused, instead, rifles,” by a rifled handguns and but was and, injury ultimate- shotgun slug profound that caused brain on N.T. at Dr. went to ly, death. 892. Shakir describe gunshot that transected the brain as well and second wound wound, N.T. at and thereafter constituted another lethal head, neck, and torso entry six more wounds to the catalogued Sciullo, post-mortem, two of them Officer received lay doorway in the opined, body Appellant’s as the officer’s home. N.T. at 892-910.13 cross-examination, agree- expert’s On defense counsel elicited post-mortem Sciullo’s torso were ment that the two wounds Officer police gunfire likely hours later when the S.W.A.T. most incurred providing attempting to fallen force was cover for officers reach the rebutting any officers. at 930-31. Counsel also succeeded N.T. during possibly direct that the two fatal head wounds inference made ground, agreed as Dr. while Officer Sciullo was on the Shakir occurred understanding of the ballistics evidence that the wounds with counsel’s body where the officer’s could not have been sustained at the location N.T. at was recovered. 924-25. respect
With testimony Shakir, Dr. agree we with trial court report the coroner’s identifying comparatively large entry wounds Officer placed Sciullo Appellant on fair notice that Dr. may Shakir draw the reason able inference that a shotgun rifled slug was used. See Trial Court Opinion, dated if 28. Even we were 11/5/12 assume, instead, that a discovery violation this expert attended testimony, Appellant fails how specify caused testimony him prejudice other than offering generic statement that the expert opinion “particularly damaging” because it includ weapons ed “what were for Appellant used.” Brief at 54. Appellant’s properly own to police, admitted statement howev er, shot indicated he had shotgun Officer Sciullo with a rifle slug. Again, our precedent above clarifies that cited prejudice is not simply presumed in the of discovery violation, instance but must be established by complaining party. We there fore find that no reversible error attended the admission expert Dr. Shakir’s testimony slug types. To the extent *35 Appellant’s challenge to testimony fairly Dr. Shakir’s may be to incorporate generic assertions, read in appearing elsewhere brief, the that the testimony improper opinion included on the position shot, Officer Sciullo the time he was the record demonstrates that defense counsel effectively cross-examined on expert point. supra. See footnote
Finally, well into testimony Dr. expert Robert Levine, a firearms examiner for Allegheny County Medical Office, objected Examiner’s that defense he had testified to a of opinions number that were not in report: contained his seven, through
DEFENSE COUNSEL: I have eight sat from opinions Dr. that are not Levine contained within his report. Eight lab of them. I starting am now No. 9.1 don’t I supposed know what am to with I do this information. an gave that opening saying physical statement evidence statement, match my didn’t clients’ and the prosecution is bringing opinions now ten different I’ve never heard prosecutorial misconduct, before. It’s a and I move for mistrial. object suppres- to to a they had the imagine gall
I can’t late, opinions are in in they bringing being motion sion against I this. of trial. don’t know how defend the middle sorry. happened I’m It’s never before. Motion for mistrial is denied. Dr. [About]
THE COURT: him. He’s Levine, opportunity an interview you had beyond scope that I that’s doing anything see you He where bullets expert. He’s ballistics tells report. from, exactly came and that’s what he’s go they where doing. And what kind of bullet COUNSEL: identifies
DEFENSE are, testify I no to him prior beginning and had idea they that— break, a minute give you take
THE COURT: We’ll you have to break before cross-examine. may, I I asked COUNSEL: If Dr. Levine
DEFENSE for me yesterday going any surprises if there be were if today, going he was be— you’re going does he know when to be THE COURT: How surprised? said, you offering I are going
DEFENSE COUNSEL: be not in any your report? that are opinions interjected 1110-11. prosecutor N.T. at When he was on prepared diagram Dr. Levine to simply asking identify a shot of a hole the wall was fired based which side investigators holes and where the locations recovered of her bullet, responded counsel that was one defense not know that “that hole was concerns because she did associ- are four with that because there holes that wall.” ated bullet objected only that not did Dr. N.T. at 1111. *36 fail to match with holes and address report Levine’s bullets to trajectories, had the doctor also indicated defense but just days offering any before that he would not counsel be report. not contained in his N.T. at 1111-12. opinion from his again prejudice asserts stemmed inabili- Appellant surprise opinion an appropriate defense ty prepare important to these details about victim testimony pertaining and shooter Another positioning. example of surprise testi- mony Levine, by Appellant says, offered Dr. his opinion was that on marks leading observed concrete sidewalk Appellant’s porch front by could have been made downward angled shots from an gun. fired AK-47 type Defense counsel objected had to the of such prospect day evidence on the testified, objection before Dr. Levine but was denied. This testimony particularly Appellant submits, damning, because it suggests that stood over the officers and Appellant them, fired down at thus “clearly helping] the Commonwealth first-degree establish murder and the intent to specific kill.” Brief for Appellant at 68.
The responds, initially, Commonwealth discovery that no violation took as the place, ample defense had notice that the concrete slab had been removed the sidewalk could used to be that at Appellant gunshots establish fired Officer Mayhle lay as he there. This opinion expressed objections trial court in denying defense counsel’s day before:
THE Counsel], COURT: Ms. you’ve Middleman [Defense for a long they known time that had that concrete slab. You pictures had concrete You pictures slab. had the marks on the concrete slab.
N.T. at 880. still had opportunity to ask his evidence, expert give opinion an on own the Common- continued, wealth and it cited the trial court’s observation prior to testimony question. the matter involved “one He’s expert] agree [the defense either or not going agree. They experts. They are are either going say say or not is.” at N.T. justifies hypothetical ques- Commonwealth further its
tion eliciting opinion on the source of markings concrete having properly eyewitness testimony been based on his porch firing stood front what looked to be an AK-47 type assault rifle down body motionless Mayhle. responsive opinion Officer Dr. Levine’s was a rea- was, sonable from the inference drawn evidence and under our Montalvo, decision v. 604 Pa. 986 A.2d Commonwealth *37 (2009) on opinion of (upholding expert admission based therefrom), inferences and reasonable competent evidence basis, main- on that the Commonwealth admitted properly at 47. Appellee tains. Brief vigorous counsel’s cross- shows that defense The record ably Dr. the limitations of his of Levine revealed examination evidence opinions drawn from ballistics position shooter/victim or markings crime “defects” at the scene. obtained being of caused appearance had the the concrete slab testified, he also conceded that he Dr. but gunshot, Levine degree certainty that would have say any could with rifle was said to type Appellant from the AK-47 be been matter, Nor, say for that could firing. N.T. at 1146-47. or hitting slab were fired from what direction bullets respect N.T. at how 1146-47. With old defects were. home, inside the the record shows gathered evidence ballistics placing on direct examination how opined that Dr. Levine to a connecting a hole and bullet straight probe through him to infer location of in a lodged closet wall enabled shooting. On the time cross-examina- during Appellant tion, however, acknowledged defense counsel’s Dr. Levine the use probe that it is describe point accurate than determining flight bullet lines rather assisting shooter, consequently of a modified his precise locations possible anywhere locations diagram range allow for a rooms in the interior. along cutting a line across several N.T. at 1138-34. ability deftly purportedly counsel’s to handle so this
Defense leads us to conclude that no surprising expert opinion unfairly questionable practice prosecutor’s prejudice accompanied from Dr. eliciting expert opinions inferences and Levine report. signifi- in his counsel that were not included Defense opinions by value of Dr. Levine’s establish- cantly limited the any could made the ing from direction have that bullets fired respective points markings question concrete exchanged Mayhle gunfire which Officer could anywhere along spanning lines several rooms. have been Moreover, explain fails to how he could have further discovery rebutted evidence of such expert opinion had We, therefore, been sooner. received find error in any admission of Dr. testimony Levine’s was harmless.
Finally, Appellant aggregation contends the of all the dis- covery violations he asserts required the court to grant his *38 motion for It mistrial. unfair grossly alarming, he argues, that the Commonwealth was not only using expert it testimony beyond presented what during discovery but was also gathering expert opinion during trial, more the course of all without volunteering post-discovery the it opinion when gained it. N.T. at 879. The Commonwealth had two years in which to supplement reports and supply opinions regarding the positions shot, officers’ when body what weapons were used, where when Appellant officers, stood he shot at the ballistic that the evidence defense was unpre- unaware of and pared against. defend The result of this impermissible of gamesmanship withholding crucial expert conclusions and inferences up until the time the expert was the witness stand, Appellant posits, warranted the of remedy mistrial.
It is well that no of may settled number failed claims collectively warrant relief if they do not do so individually. Johnson, 329, 523, Commonwealth v. 600 Pa. 966 A.2d (2009). “Yet, of when the failure individual is claims based a lack upon prejudice, prejudice the cumulative arising those may properly individual claims be considered.” Com Simpson, monwealth v. 631 Pa. 1205-06 A.3d (2015) (citations deleted).
Regarding each of expert opinion admission evidence fairly in pretrial discovery, included our assessment above is that properly either admitted evidence from independent already sources had or point, established same effective expert cross-examination or greatly had diminished altogether incriminating eliminated force the opinion. We, therefore, no aggregate discern indication that the effect of discovery prejudiced Appellant, particularly violations light of compelling supporting charges evidence of first- degree murder. StormFront.Org Website Visit Admission
V. guilt penalty phase next reversible asserts Appellant to a to his internet visit “white error attended reference before he committed the hours nationalist” website ruling permitting charges error with deadly acts. He first guilt phase evidence he introduce Commonwealth StormFront.org, identified as “white visited website nationalist,” website, “anti-Semitic” several hours before began. proving This evidence was irrelevant shootings as no that his intent, argues, there was indication anti-Semitism, race or and was crimes were motivated morally as a used cast highly prejudicial associated himself with the beliefs person who reprehensible Using supremacists of white and neo Nazis. and attitudes inference, moreover, violated to draw an adverse evidence association, right freedom First Amendment Appellant’s argues. court, in admitting the trial Initially, Appellant claims *39 evidence, ruling granted erroneously pre-trial reversed its motion limine testimony preclude describing Appellant’s StormFront.org on the Appellant’s postings of web- pages hearing, At determined pre-trial site. court on the were irrele- posted comments website Appellant’s racist on during alleged police to his of mind attack vant state he or threat- postings in his had endorsed because nowhere against police. ened violence if missing something. I am Perhaps
THE COURT: Even some were able establish standard the Commonwealth saying I’m not he Poplawski that Mr. did harbored—and views, what that have or anti-Semitic does harbor—racist with this case? do Well, Honor, expressed— Your
PROSECUTOR: shot three alleged police THE He is have COURT: duty. officers uniform and an African American. is PROSECUTOR: One which door, Oh, through on. last THE COURT: come First door, to tell me that he though you’re seriously going shot Mayhle Seiullo and to get Kelly? Is that what we’re PROSECUTOR: That’s not Iwhat ana saying, Your Honor. I am saying he expressed officers, has police toward animus toward African just Americans and to every about other nationality race and on the face of the earth. Honor,
DEFENSE COUNSEL: Your I would suggest this Court this is attempt by an paint Commonwealth to our client as a domestic event, terrorist to this unrelated that, course, then potential taints the penalty stage only as well. The thing that’s on point, point could be on is animus police. toward
Again, the only thing given I’ve pages been is six postings indeed I there. would to this suggest Court read- ing postings, those nothing there’s that expresses animus police toward If whatsoever. indeed he thoughts, uses bad words, if posted bad he indeed feelings anti-Jew, anti- black, that, it’s, anti this anti again, you get before to the point, itself, it’s to the unrelated actual offense and as result should be inadmissible as evidence.
THE [Prosecutor], COURT: can you to a point Court posting that animus toward the police? shows N.T. 6-11.
As prosecutor notes, searched her defense counsel di- rected the court’s attention to an excerpt page 10 Appellant’s postings mean, wherein “I I’m not Appellant wrote talking disrespecting any cops. about Just not bending for them many in fear as people do.” N.T. at 11. Defense *40 counsel continued that of the potential wrote needing guns to safeguard personal interests, but observes that there is “not any an actual threat toward racial group, ethnic or group police in anywhere contained the that pages the [trial has front of him.” at 14. court] N.T. The prosecutor nothing to offered contradict defense counsel’s account of postings. the N.T. at 14. 159, 112 Delaware, S.Ct. 503 U.S.
Invoking Dawson v. no ruled there was (1992),14the trial court 117 L.Ed.2d post Appellant’s to admit ground upon which constitutional to the crime committed: unrelated ings, they as were the motion limine. grant The THE Court will COURT: opined by as Mr. Poplawski’s of Mr. beliefs The evidence Appellant’s who retrieved website Pitcavage detective [the evidence, any will not neither permitted will be postings] guilt phase proceeding. in the the posting however, permit the to those Court, right reserve will inasmuch as Court penalty [sic] in the phase, into evidence much knows what defense—pretty not know what does as cir- present aggravating is to going the Commonwealth is cumstances, going I no what the defense have idea but circumstances, Common- and the mitigating as present of that information rebuttal may use some wealth may present. the defendant well matters which at 14. N.T. contention, therefore, guilt Appellant’s
Contrary pre-trial of the court’s a reversal phase transcript shows instead, but, Appellants postings, it ruling as related investigator testify an could on whether ruling in the hours before StormFront.org website had visited offer, only objection To defense counsel shooting. Appellant’s state that the visit was irrelevant advanced was Dawson, Supreme that a First the United States Court held 14. In argument phase penalty evidence and Amendment violation attended Brotherhood, Aryan belonged a white racist to the defendant stipulation that the group, was no indication from the where there which the the kind of violence for group endorsed or threatened acknowledged per no charged. The there is been Court defendant had protected beliefs that bear a of evidence of se barrier to the admission membership charged. in a proving crime Dawson's relation however, against relationship no to his violent crime group, bore racist mitigation evidence that he was Nor was it relevant to a white victim. prison good credits in caring family member and had earned conduct membership, attending abuse Evidence substance classes. held, therefore, unconstitutionally prejudicial, Court for further remanded the matter judgment of sentence and vacated leaving open possibility error determi- proceedings, for a harmless nation. *41 of mind at the time of the shooting. agreed When court with this position but nevertheless declared the evidence value, i.e., for admissible its to contextual show the sequential history of leading up shootings, events to the defense counsel no objection offered further to on admission that basis: COUNSEL: is a DEFENSE One the exhibits list of all that the websites were from visited their com- Compaq puter the 24 hours preceding the shooting. My under- standing is that Haney will be in giving, Detective addition websites, authentication the list a give he brief will description of each website. But I think this is akin to the in just issue the books that you because something read or look something, at that’s not your evidence of state of I mind. So would suggest the Court that this is very similar to the books irrelevant. addition,
In I think it very difficult, would be given that was in a computer house that shared than more person one to differentiate between that which is— THE Do you COURT: respond want that? one,
PROSECUTION: Yes. why that’s had Number we stipulation Poplawski’s Mr. fingerprint computer. to his regards browsing, Honor, With Your I web would only propose put single page, which would be morning 4th, 3:30 a.m. on the of the up until 5:00 a.m. on the morning of the 4th. Honor,
Your Your my understanding was Honor disal- lowed the because we couldn’t necessarily books show that mind, there link any between state of he could you have read those when he was—like when you did were I college so forth. think is little This bit different because—
THE All right. COURT: It’s contemporaneous with the event, but what is that it shows? Basically,
PROSECUTION: there are a variety things relevant, that Honor, are visited here. Most Your there’s Meaty looking dog website called Raw Bones. He was biscuits. That’s not relevant. certainly COURT:
THE No, Honor, just Your it’s the whole—the PROSECUTION: there. Another They in. all list is the order it’s are Pens, The other one hockey is Let’s Go It’s a website. one StormFront, Honor’s aware of which Your well is *42 any specific to produce postings we do intend was—and StormFront, on merely that he was the website. link contemporaneous story a Fox News to a also There’s in York upstate murder turned suicide New about mass then the people murdered and where a number were These, on again, took his own life. that’s all—that’s shooter from— page this one post- last up It’s 3:28.08 a.m. until—the
PROSECUTION: 4:58:59 a.m. ing is Honor, I suggest Your COUNSEL: would
DEFENSE website, Meaty he on Bones Court because him a he is on the dog. that doesn’t make And because interruption] trial court be- Penguin [after brief website website, that him a Penguin he’s on the doesn’t make cause on player. Because was StormFront— hockey THE to allow this to be going COURT: I’m introduced If doing prior. he was immediately what because shows beer, doing if drinking taking drugs or he were he were that, to show things, those would be entitled Commonwealth in any too. It will come without further comment about it. jurors appropriate they The can make inferences whatever feel. Haney then COUNSEL: So will not
DEFENSE Detective permitted to describe— be
THE be able what websites COURT: He’ll describe are, hope. yes, briefly quickly, but I N.T. 870-72. trial therefore pre-trial transcripts show regarding Appel only testimony
trial court precluded beliefs website, they on postings grounds on the expressed lant had in and, thus, police attack on the irrelevant. were unrelated to his Otherwise, the trial court deemed Appellant’s visit website part admissible the narrative concerning his actions the hours leading up to the shootings. To admission of the visit on this basis, website no objection and offered sought only clarification as the extent Detective Haney permitted would be elaborate the website Ap- itself.15 pellant has, therefore, waived his present challenge admission of such evidence. Pa.R.A.P. 302 (preservation issue must be made with a timely specific objection; appellant may not an raise issue the first on appeal). time Freeman, supra (abrogating at 402 this Court’s capital direct appeal relaxed waiver rule and holding, “as a rule on general capital direct appeals, claims properly [a]re not raised preserved trial court are waived and unreviewable. claims may PCRA, Such be under the pursued as claims sounding trial or, counsel’s ineffectiveness if applicable, exception to the PCRA’s statutory provision.”). waiver also prosecutorial asserts during misconduct *43 penalty summation, phase where was suggested Appel- that lant drew motivation his from the StormFront.org website: Poplawski
PROSECUTOR: Richard was enough smart to Poplawski know Richard better. was smart enough something might make himself. What he have done with his life with that 136 IQ? We’ll never know he used because light his powers, left and went into the darkness. What kind darkness?
Look at he was doing what in the hours he before good murdered these three men. What kind of things was looking reading at? He was about a mass murderer Upper York State New who killed immigrants a bunch of citizens, who had come to this country become and then he took own life. He was visiting the Nazi website Nazism, haters, StormFront, StormFront. gen- ladies and Poplawski tlemen. Richard turned a[ll] those intellectual powers towards evil. And what he on those learned web- Though interjected the trial court before defense counsel her finished clarification, question seeking may we infer from her silence afterward question. intended that court had answered her
sites, those like-minded haters chatting people, with those I racists, we’ll never know. But submit bigots and and this from. folks, all came you, that’s where attempted argument prosecutor N.T. at 328. With jury,” Appellant of the passions prejudice “stoke Yet, objection no to the argues. defense counsel offered instead, contrary electing, present prosecution’s closing, perhaps that showed the evidence summation he considered government man what frustrated with on, gun ownership: among things, other policies its unpatriotic I Now, remembered again, Depu- DEFENSE COUNSEL: jail, you client in the heard my ty Garrett interviewed I’m a My saying, patriot. some that. client going it is to fall States as we know and the United world going on. The type be some going There’s war apart. Well, again, I there a whole government don’t trust. wasn’t right on that in this entire case until now. lot of emphasis brought up. closed to and he that issue you Counsel Well, room no one elephant not talks it’s one horse is out the barn because proverbial about. The on, going is what’s really haven’t talked about here thing we now, just in hasn’t been just Pittsburgh, not what right do, people way they you act the why about and talked there, there, people a lot of out you have out have people my guy That’s the word used. they patriots. claim to be is they The one theme we couple themes have. There’s trust the And government. We don’t government. hate websites, this, they have have that. they their they have is, one, hate the they But what believe number we usually it, are not frankly, they we trust government, don’t going guns. to take our *44 358-59.
N.T. at time, protests on for the first appeal,
Now on that he acted a hatred prosecutorial suggestion the against to To the trial during visits the website. and racism cultivated on appeal has this issue opinion that he waived court’s objection, he contends timely specific to make a failing that such position “disingenuous” is where he already- had a pre-trial ruling achieved barring describing evidence the Appellant expressed beliefs in his postings, only website to see ruling during the undone later guilt phase: An appellant waiving cannot be faulted for an issue where subject the issue was the of a pretrial hearing. motion and To hold that is not preserved baffling issue is unfounded on the A pretrial based record. motion was litigated, despite initially being granted, by later denied the trial court’s decision to testimony detailing allow the nature the website. Counsel would have no reason to object on argued double the same basis during pre-trial motions as the judge’s decision to allow the testimony middle of trial on ruling constituted the issue.
Brief of Appellant, at 67.
Appellant’s inaccurate, however, for, account is as our re- identifies, view trial above court did not reverse on itself the pre-trial ruling Appellant’s racist and anti-Semitic expressed beliefs as connection with StormFront.org website were The most the permitted inadmissible. court during the trial guilt phase respect with to visit to Appellant’s StormFront.org show his actions in hours before This shooting. guilt phase ruling did not upset pre- and, trial against relating beliefs, thus, ban evidence gave no that it object reasonable indication would be futile to penalty suggesting Appellant summation motivation drew expressed hateful content on It StormFront.org. therefore, incumbent upon Appellant, contempora- make a objection neous specific this effect. This has issue been Jordan, waived. See v. 619 Pa. Commonwealth A.3d (2013).16 318, 336 reject Appellant’s position pursu- required We is that merits-review Baumhammers, supra ant to our observation that some issues “primary magnitude” are of a constitutional so as to necessitate imme- appellant diate review even where the has defaulted the claim failing preserve appropriately. entirety Appellant’s argu- regard signifi- ment in this is that “this is a matter of constitutional Supreme recognized cance as the United States [in Court Dawson v. Delaware, supra] impacts that this issue on an individual’s First Amend-
572 Dangerousness Future
VI. that issue, prose asserts the Appellant his In next remarks, penalty phase closing cutor, opening in both danger a future posed argued Appellant that impermissibly which claims The standard under prison population. the is well-estab be reviewed misconduct are prosecutorial lished: rights protected a Commenting upon Poplawski's as rights. Mr.
ment
improper
in
face of
is
and flies
the
gain a
sentence
death
means
at 68-69.
precedent.”
Appellant
Brief of
established
however,
Dawson,
of evidence
on the admission
which turned
in
Unlike
with the
during
penalty phase that the defendant was associated
the
Brotherhood,
here
no
admitted
that
Aryan
there was
evidence
Rather,
only
organization.
the
with white nationalist
associated
hours before the
stipulation that
in the
evidence admitted was
including
shootings,
number of
Storm-
visited a
websites
Appellant had
contrast,
argued
specifically
By
in
Front.org.
the defendant
Dawson
his association that
of evidence related to
the
that it was
admission
Supreme
rights.
held
such
The
Court
that
his constitutional
violated
beliefs was irrelevant:
evidence of abstract
however,
presented,
given
we
is
to the evidence
label
Whatever
rights
by
violated
were
First Amendment
the
conclude that Dawson’s
case,
evidence
this
because
Aryan
the
Brotherhood
admission of
nothing
beliefs.
proved
more than Dawson's abstract
evidence
the
Johnson,
397, 414,
105
491 U.S.
S.Ct.
Texas v.
Cf.
(1989) ("[T]he
may
prohibit
expres-
government
the
L.Ed.2d
or
simply
society
the
itself offensive
idea
sion of
because
finds
an idea
might
problem if it had
disagreeable").
have avoided this
Delaware
mere
beliefs on
showing more than
abstract
presented evidence
feeling
present
one is left with the
part,
on the
record
Dawson's
but
simply
employed
because
Aryan
evidence was
Brotherhood
that
morally reprehensible. Because
jury
find these beliefs
would
more,
proper-
evidence was
to do
we cannot find the
Delaware failed
evidence.
ly admitted as relevant character
167,
* * * [Rjemarks made by prosecutor must in be evaluated context in they which occur. Furthermore closing argu- [in ment], the prosecutor may fairly respond points made in the defense closing.
n n n
[W]ithin court, reasonable bounds enforced the trial prosecutor may employ oratorical impassioned license and in argument for arguing penalty. the death While reference avoided, irrelevant matters should we note be that mur- der victims are not or simply props irrelevancies in a prosecution, murder and innocuous references to victims and their necessarily families are not prejudicial. Freeman, 532, 385,
Commonwealth v. Pa. 573 827 A.2d 408- (2003)(internal 09, 413, 415 quotation citations and marks omitted); Fletcher, 403, see also v. Commonwealth 580 Pa. (2004) (“There 898, 861 A.2d is nothing improper 917 prosecutor arguing appropriateness of the penalty death because that is the only jury issue before the at penalty trial”) (citation omitted). phase However, of the this Court has improper “overly aggressive deemed or highly inappro priate advocacy that impermissibly could have shifted Freeman, balance in of a favor death sentence.” supra (citation omitted). quotation and internal marks 431, (2011). Com. Paddy, 272, v. 609 Pa. 15 A.3d 458-59 “In making such judgment, we sight must lose the fact primaiy significance
this issue raises a First Amendment matter of as to require forego that we invocation of the doctrine. waiver prosecu- ... and the adversary proceeding that the trial is an tion, defense, must accorded reasonable latitude like the be jury.” its of the ease to the Com- version fairly presenting (1995) Rainey, 540 Pa. 656 A.2d monwealth v. omitted). (citations during open
The first contested remark occurred multiple prosecution discussed ing arguments which 9711(d)(ll) factor at aggravating Section murder sought: aggravating what is the first factor? So
PROSECUTOR: killing, that at time of the first factor is aggravating took additional lives. that in Poplawski Richard two So murder, count of can words, you other Paul Sciullo’s Kelly. and Eric Stephen Mayhle the murders consider murder, can Stephen Mayhle’s you For also consider for Eric Kelly, Kelly of Paul and Eric murders Sciullo you also consider the murders Paul should Sciullo That’s the first factor. I Mayhle. aggravating Stephen *47 you any don’t need to hear more evidence you, submit proven beyond any It’s doubt that Richard that. been murdered those three men. Poplawski is this Now, you? Why aggrava- that tell an what does is that a factor that this case ting Why factor? makes Well, of the death it’s Richard worthy penalty? because a of what it like to murder some- Poplawski got taste it I body. you And he did two more times. submit second, or stopped could have after the first but he didn’t. Think that he when he things said was inside about I more Think just that house. want to shoot one time. on the with the 911 phone dispatchers. about his attitude Oh, him no, already 12-gauge he’s dead. I shot with help. I’m something else. the one needs Ladies got I a taste gentlemen, you, Poplawski submit Richard dog it. He’s like a once and will and he liked that’s bitten day. did that more times. That’s again, bite and he Two any I’m not aggravating going present the first factor. on that. more evidence
N.T. at 17-18.17 prosecutor’s
At the conclusion of the opening, defense coun- sel sought mistrial and asked the court to bar future death penalty for proceedings what she argued prosecutor’s was the willful disregard of the court’s ruling against earlier future dangerousness argumentation. N.T. at 32-88. The court agreed that prosecution had flouted its ruling, earlier but it request denied mistrial. Side bar discussion con- cluded with the court it indicating would its posi- reconsider tion on the admission of such evidence later penalty in the proceedings. court, however, N.T. at 34. The made no subsequent reversal of its ruling. side bar
Appellant contends that court’s admonishment without consequences was insufficient in light the prosecutor’s clear attempt to prejudice jury prohibited with a future danger- argument. Both ousness the Commonwealth and the court respond has mischaracterized the opening re- marks, as they danger addressed the future but, posed instead, his commission of multiple crimes in satis- 9711(d)(ll) faction of the aggravator. Section agree We that the prosecutor confined opening remarks to Appellant’s past conduct without introducing commentary dangerousness. vacuum, about future If in a read the first statement—“[hje’s part like a that’s dog bitten once and will again”—is predictive bite signal and would seem to statement, discussion of future conduct. is more There to the and, however, when read entirety both in its and in context, description is a of the past: dog “He’s like a that’s once bitten again, day. will bite and he did that times.” Two more moreover, prosecution, made this an statement within argument establishing only dedicated to that Appellant’s ac- *48 day tions on of his qualified aggravating the crime as an 9711(d)(ll). circumstance under Section We therefore discern prosecutor's comparison Appellant dog 17. We condemn the of to a as highly irregular improper. overwhelming aggravating Given the circumstances, however, concluding we refrain from that comment the jury weigh objectively so infected the that could not the evidence render a fair sentence. argument prosecutor’s opening the dangerousness no future remarks. prosecutor’s charges also misconduct with the
Appellant objection, anti-authority that racist over closing argument, during indicate he attributed trial statements inmates if he danger prison guards a and black pose would prison. argues a of life in were to receive sentence argument upon jury that called the to consid- prosecutor’s the a standalone dangerousness super-statutory, er his future as circumstance, proscribed a use under our aggravating deci- 232, e.g. Trivigno, v. 561 Pa. law. See Commonwealth sional (2000) 243, (plurality) (expressing 253-56 concern 750 A.2d case, of that, prosecutor circumstances offered under factor). argument aggravating as an dangerousness future that this has acknowledges He Court never future considered error, per to constitute se advo- dangerousness arguments but our change position that accordance with the we cates Eighth which stated that an concurring Trivigno, opinion results from to consid- permitting jury Amendment violation non-statutory statutory circumstances under a aggravating er punishment on a requires jury scheme select based that statutory aggravators mitigators. 750 A.2d at weighing concurring). (Saylor, 256-57 J. Commonwealth under responds generally
The that Trivigno, may argue by Appellant, prosecutor case cited long as the court informs dangerousness future thereafter is not jury “that a life sentence means that a defendant eligible power but has the parole, Governor of a or if grant a commutation sentence life death based following the recommendation Board Pardons at It trial hearing.” undisputed N.T. is public jury. See N.T. court so instructed 378-79. is the discre admissibility solely evidence within appeal only
tion of
court and we
reverse on
the trial
will
Thomas,
of that
v.
upon abuse
discretion. Commonwealth
denied,
621,
468,
(1998),
528 U.S.
552 Pa.
717 A.2d
cert.
(1999).
During
Eichinger, upheld Court as fair or rebuttal response dangerousness future defendant’s placing future con- mitigation to the defendant’s evidence Id. at issue. duct always has been defined appropriate scope rebuttal *50 to offered rebut. See
according to the evidence is Hickman, 427, 309 v. 453 Pa. generally Commonwealth A.2d (1973) (“It rebuttal, 564, is not to submit on proper 567 the opponent’s not in evi- evidence which does fact rebut dence.”). this Indeed, setting, pre- in the character evidence See, e.g., has enforced. cept particularly been Commonwealth (1986) Weele, 514 A.2d Pa.Super. v. Vander instance, when a character witness testifies (explaining, “[f]or reputation truthful- being familiar with defendant’s ness, of assault is pertaining cross-examination a crime improper”). mitigating prof of his catch-all circumstance
As part fer, evidence that he had been Appellant introduced character helpful stu bright, high-achieving, an kind and exceptionally well-regarded others was a who worked well with dent junior high school, in when he sudden year classmate his until argument, In closing school. at 270-287. ly left N.T. testimony to such and asked specifically alluded prosecution prison. or in good be a bad influence whether would on prospect, Ap the latter based prosecution suggested on expressing opinions law en admitted statements pellant’s summa forcement, race, fighting prison. in The relevant tion follows: you Poplawski And do think Richard is
PROSECUTOR: in good prison or a influence if going to be influence bad in Do give prison parole? you him life without you decide to in like he was when he was going helpful think he’s be you again going or think he’s use his eighth grade, do for evil? powers
instruction, point support advocacy presented does not as the on such a substantive discussion. mind, Keep very we know he’s bright. We know he can very manipulative you be because talking heard him Sergeant for the Campbell part of 45 better minutes. We know he dislikes black people. We know that he dislikes authority figures. We know how he police feels about going officers. How is he to react the first time a black inmate looks at him wrong prison? he going How is jail react the first guard prison time a tells him to A go to or to B or if go to that prison guard C? What also is a man of color and he turns back Poplawski? Richard
Ladies gentlemen, make no dog mistake. This has times, bitten three again you give and will bite if him the opportunity.
N.T. at 346-47. seen,
As can be prosecutor attempted to frame part of the response summation as fair to Appellant’s mitigation on, offer that he good had been a influence well-regarded by, his as peers recently high However, school. consistent *51 with assurances previously defense counsel made to the court that good he would confine such character to a evidence presentation conduct, concerning Appellant’s past defense suggested counsel never this of predictive evidence was future good prison behavior toward staff and the general prison Therefore, population. prosecutor’s dangerousness future argument response to, of, did not fair represent or rebuttal Appellant’s character evidence.
Nevertheless, in of compelling aggravating view circum- stances, the court’s instruction of proper jury respect with particular aggravating up jury’s circumstances for the consideration, jury’s finding factors, and the of two mitigating we no prosecutorial discern indication that on Appel- remarks lant’s in dangerousness prison future so jury inflamed the as to have of incapable rendered it appropriately weighing aggra- vating mitigating reject evidence. Accordingly, Appel- we argument lant’s that such remarks shifted of the the balance jury’s in of penalty. favor the death considerations Photographs Penalty Phase
VII.
Images Memorial Services of this Court vacate sentence and Appellant urges prosecutorial of penalty hearing because for new remand as inappropriate he presenting in what describes misconduct funeral to the fallen officers’ relating impact victim evidence in presentation this prosecutor’s and memorial services. contends, by marked an intentional and regard, Appellant consisting of: passions to emotions and overarching appeal religious officer’s recalling one blood-stained family testimony viewing; a video of for a closed casket medallion and the need caskets, mo depicting flag-draped city’s memorial service bagpipes; march to and other silence, ments funeral of honor. monuments the officers’ N.T. pictures decorated sponte the court sua admonished the at 71-95. after Even argues, prosecution effectively Appellant prosecution, in this course to his unfair detriment to continue permitted his of a headstone. He asserts showing picture another violation therefore obtained penalty death was Fifth, Fourteenth Amendments. Eighth, and rights under the that respond and the trial court Both the Commonwealth now, raising only claim for for the has waived object time, he did not first on appeal. concedes being offered at testimony they or were any the exhibits rightfully where trial, applies waiver nevertheless denies but motions in limine seeking filed the record establishes aggravating circumstance” preclusion non-statutory of “any impact testimony representative to one and limitation victim previously rejected have the same family. from each We may motion argument holding generic, pre-trial objection never contemporaneous a specific, substitute to a trial court: made *52 objections specific made
Appellant
timely
never
motion
pre-penalty phase
Appellant had filed
evidence.
limine
on the
impact
all victim
evidence
exclude
that,
pertain
any
such
did not
grounds
because
evidence
circumstance,
of the
aggravating
the admission
statutory
the mo-
was unconstitutional. The court denied
evidence
tion,
that
noting
the United States Supreme Court had
ruled
such evidence was permissible, citing Payne [v.
Tennessee,
808,
U.S.
S.Ct.
Baumhammers, (footnote omitted). supra at 93 Accordingly, the instant claim is may considered, all, waived and if be at only as part a collateral attack on trial counsel’s steward- ship.19 Statutory Review
VIII. Turning, finally, our statutory review of the death sen- tence under 9711(h)(3), Section note that Appellant we con- tends the Commonwealth sought during penalty phase to inflame the passions of the jury an effort to produce a sentence based on emotion rather than on a proper balancing of aggravating mitigating circumstances. Specifically, offers as an preservation alternative basis for issue sponte, trial court’s sua side-bar order to cease with funeral related pictures testimony: THE Tranquilli, respect COURT: Mr. I am sure out of due ... [w]ith here, family objected, victim’s [defense hasn’t counsel] but I’m telling all, you right you're way now over the line. First of way closed issue is over casket the line. You will those not ask kind questions again, going stop and we’re with the funeral issue. I'm played tape. done with it. You That’s it. Tailor this. I am going line, not to have you step this case come because back over the you doing. and that’s all have been (Penalty)
N.T. objection at 95-96. “The trial court’s actions made an unnecessary,” argues Appellant, Brief of but this argues cannot be so where he proper remedy now that the would have consisted of a sentencing hearing, clearly mistrial and a new which did was, therefore, upon Appellant occur. It incumbent to voice a specific timely objection preserve to this effect order to issue raises; admonition, moreover, he now he failed to do so. As the court’s prevent lodging prejudice objection, did not him application appropriate. waiver doctrine is
582 danger in summation as to the future remarks prosecutorial inmates, of guards and and its tack Appellant posed prison for of memorial services held the officers were showing images under the properly captured to emotion are improper appeals 9711(h)(8) review, require and re- Appellant argues, Section above, hearing. As noted howev- sentencing mand for a new object statements and has thus er, not to these Appellant did Martin, 623, v. 627 Pa. See Commonwealth waived issues. (2014) in 706, cases which this (collecting 101 A.3d 732-35 penalty phase claims Court has declined address defaulted factors). arbitrary of statutory under the review rubric event, record, In careful review of the we any upon that three sentences of death were Appellant’s conclude factor, any arbitrary or other product passion, prejudice based, instead, on evidence overwhelming were establish but Sciullo, fatally Stephen shot Officers Paul ing Eric with malice and intent to Mayhle, Kelly specific had the proving The Commonwealth burden kill. aggravating beyond of all circumstances applicable existence 9711(c)(l)(iii); § 42 Common doubt. Pa.C.S. reasonable Perez, (2014). 601, 829, The v. 625 Pa. 93 A.3d 842 wealth sufficiently that all three murder victims established evidence duties, performance killed their police were officers 9711(d)(1), that Appellant in satisfaction Section in the convicted of all three murders committed same criminal satisfying aggravating circumstance Section episode, 9711(d)(ll). Hairston, v. 603 Pa. See Commonwealth (2009) if (aggravating applies A.2d circumstance two or more the same criminal people defendant murders Finally, ample testimony Section episode). established the 9711(d)(7) grave circumstance created risk victim, persons including multiple to other death besides scene, on the Officer police particular other officers heavy gunfire took on McManaway, who sustained gunshot to the face and a direct wound shrapnel wound Kelly. to save the life of Officer Eric attempted hand as he statutory with the man- Additionally, complies the sentence of a of death where one or imposition date for the sentence aggravating more circumstances are found to outweigh any- 9711(c)(l)(iv). circumstances. 42 mitigating § Pa.C.S. jury record that the shows three aggravating balanced circum- against two statutory stances mitigating circumstances and determined that the aggravating outweighed circumstances the mitigating Therefore, circumstances. no there exists *54 Pa,C.S. ground to vacate pursuant the sentence to 42 9711(h)(3)(i). § Accordingly, affirm we Appellant’s convictions of death.20 sentences EAKIN,
Justice former Chief Justice CASTILLE and former Justice McCAFFERY did not participate the decision of this ease. BAER join
Justices opinion. TODD the Chief Justice concurring SAYLOR files a opinion. SAYLOR,
Chief Justice concurring. join I I II Parts of majority the opinion and concur the result relative to the balance.
With
to the
regard
treatment
Part III of Appellant’s
claim of trial court error related to
of his
the admission
containing
statements
I
epithets,
difficulty
racial
have
with the
majority’s abbreviated
of
disposition
claim based on harm-
the
lessness, particularly as it
penalty phase
relates
the
of trial.
See
Majority Opinion,
550-51,
at
Concerning
V’s
website, I
a controversial
would
that
visited
challenge to have been
deem
waived
Appellant’s
does
at
585 judicial a probing assessment is properly reserved to post-conviction. dangerousness (Part VI), the issue of
Regarding future recently prosecutor Court related that “a is permitted dangerousness discuss a future during rebuttal, defendant’s places after defendant conduct at issue.” Com future Eichinger, 138, 162, monwealth v. 631 Pa. 108 A.3d (2014) added). (emphasis majority appears appropri ately mitigation determine evidence on a centered defen on positive dant’s influence as peers recently high school, as (see 580-82, 130 734-36), Majority Opinion, at is A.3d not of at issue, type future conduct in placing but never proceeds 578-79, deny theless to relief based harmless See id. error. Again, viewing isolation, A.3d at 733-34. this claim in 130 I regard difficulty do not the prosecutor’s with remarks sufficient, itself, implicating dangerousness future penalty hearing, warrant a new I an but would reserve of the aggregation prosecutorial assessment over for the reaching post-conviction stage, where broader range may of it appropriately be considered.
Finally, I am concerned with the
apparent
abuse
prosecution
victim-impact
latitude
afforded
introduce
evidence,
580-81,
Majority Opinion, at
v. Pennsylvania, DEPARTMENT COMMONWEALTH TRANSPORTATION, OF BUREAU OF DRIVER *56 Appellee. LICENSING, Supreme Pennsylvania. Court of
Argued May 2015.
Decided Dec. notes made only at afterward. N.T. 107-124. receiving Even after magisterial district advice judge’s to maintain his lawyer silence until his was assigned, Appel- lant summoned Detective Smith into his room expressed and 7,11-12. his desire to talk. N.T. at Again, the court credited testimony Detective Smith’s that he stopped Appellant inform him they that not talk Appellant could because had his right Only invoked counsel. N.T. at 10. when Appel- lant his then renounced and speak invocation said he wished to a Miranda form be faxed to the request did Detective Smith hospital, the form go Appellant, over with and begin an interview, therefore, interview. At the time of this Appellant read Miranda had been his rights by twice two different law personnel rights enforcement and had been advised of his additionally by magistrate. Moreover, testimony indicated Appellant was alert and perceptive during each these at again advisements and he his time renounced invoca- tion, all of which in a hospital setting. occurred This record supports suppression court’s factual both which findings, Court, are on its binding legal and conclusion that Appel- lant freely decided to his invocation of Fifth renounce rights Sixth Amendment in a hospital environment which law rights. enforcement officers honored his draw the conclusion respect Appel We same with totality circumstances, lant’s that the particu assertion with emphasis lar alleged pain mental effects both the he received, ren- pain medication experiencing Simply because involuntary. his statements dered that pain and received medication could complained pain his automatically invalidate state- did cause drowsiness instead, goes his inquiry, to whether police. ments uncon- “the of an product essentially were free statements Hallowell, its maker.” Commonwealth strained choice v. (1971). Pa. 282 A.2d treating physician of his and nurses testimony The credited indicated that neither received medication signs impair- his nor such impair judgment showed would 81-82, 77-78, Instead, he critical times. N.T. at during ment agitation during with fear and spoke coherently, albeit admission, his but these with early hours of emotions waned leading up to N.T. of time his renunciation. passage 63-65, 68, 99-100, Testimony also demonstrated responsive during hospital Appellant was coherent