Commonwealth v. Poplawski, R., Aplt.

[J-25-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 654 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on 09/06/2011 in the Court of
: Common Pleas, Criminal Division of
v. : Allegheny County at No. CP-02-CR-
: 0005652-2009.
: (Post sentence motions were denied on
RICHARD ANDREW POPLAWSKI, : 03/06/2012)
:
Appellant : ARGUED: April 9, 2014

OPINION

MR. JUSTICE STEVENS DECIDED: December 29, 2015

This is a capital direct appeal from the judgments of sentence imposed following

convictions on three counts of first-degree murder and related charges entered in the

Allegheny County Court of Common Pleas. For the following reasons, we affirm the

judgments of sentence.

On the morning of April 4, 2009, 21 year old Richard Poplawski (“Appellant”) was

asleep in his Pittsburgh home when his mother, Margaret Poplawski, awoke him with a

screaming complaint that their dogs were urinating and defecating on the living room

floor. N.T. at 1391, 1447-48. The two argued bitterly until his mother threatened to call

police to have him removed from the home. N.T. at 1448.

Appellant warned his mother against doing so and went back to his bedroom as

she began to place a phone call. N.T. at 1448. As he listened to his mother’s
conversation with a 911 operator, he dressed himself in a level-three ballistics vest and

other attire that he would later refer to as his “outfit for intended battle.” N.T. at 1448.

To complete the outfit he donned a belt designed to hold .357 ammunition and strapped

down his Dan Wesson .357 magnum to his hip. N.T. at 1449. Other firearms, including

a fully loaded AK-47 style Romarm semi-automatic rifle (“AK-47”) and a 12-gauge

shotgun loaded with alternating slug to buckshot ammunition, were propped up in the

corner of his bedroom. N.T. at 1449.

At 7:05 a.m., Allegheny County 911 received Margaret Poplawski’s report of a

domestic dispute at her home and her request that Appellant be removed because they

were arguing. N.T. at 61. Her voice was calm and she indicated that no violence or

weapons were involved, although she confirmed that legal weapons were kept in the

home. N.T. at 61. The dispatch conveyed “mother son domestic, wants her son out of

the house, giving her a hard time, no weapons.” N.T. at 62.

Margaret Poplawski returned to Appellant’s bedroom and, seeing his

preparations, expressed disbelief, saying “come on, you’re not going to do this.” N.T. at

1451. In his mind, Appellant would later tell authorities, he was saying to himself “come

on with it,” and he picked up his 12-gauge shotgun and walked out into the living room,

where he could see a police officer at the threshold of the front entrance. N.T. at 1451-

52.

Less than five minutes after receiving the dispatch, Pittsburgh Police Officers

Paul Sciullo and Stephen Mayhle had arrived at the Poplawski home. It was Officer

Sciullo whom Appellant first saw at the entrance, and he instantly fired his shotgun from

the hip, striking down the officer with duty weapon still in holster. N.T. at 1452. This

[J-25-2014] - 2
first shot was executed with a “point and click” Appellant would later explain. N.T. at

1452. Appellant then attempted to use the pump action of the shotgun to fire buckshot,

but the gun malfunctioned, so he quickly ran to the kitchen to clear the slug shell and

chamber a new round. At this time, he heard Officer Mayhle calling for assistance, and

Appellant emerged from the kitchen to exchange gunfire with Mayhle inside the house.

Mayhle landed two shots, one to the chest but stopped by Appellant’s vest and one to

the leg, forcing Appellant back toward the kitchen. Unable to see the officer’s position,

Appellant started firing into the wall between the kitchen and dining room and the firing

stopped, but he did not know if he had hit the officer. N.T. at 1454. He ran into his

bedroom to grab his AK-47 and started toward the front door, where he saw Officer

Sciullo lying motionless on his back at the threshold and Officer Mayhle lying outside at

the bottom of the steps. N.T. at 1454.

Pulling up to the scene at that moment was an SUV driven by off-duty Pittsburgh

Police Officer Eric Kelly. Officer Kelly had just completed his shift and picked up his

daughter from work, and the two were nearly home when they heard the police radio

report followed by the sound of gunfire from the Poplawski home, which was less than

two blocks away. N.T. at 106-07. After dropping off his daughter, Officer Kelly arrived

at the scene and was immediately met with gunfire from Appellant’s AK-47. Appellant

fired upon the driver’s door before the injured officer exited, and he continued to fire as

the officer stumbled his way to behind the rear wheel well, from where the officer drew

his duty weapon and fired futilely in several directions. N.T. at 1455. Appellant left the

porch to survey the rear of the property and, seeing nothing, returned to the front.

[J-25-2014] - 3
 Unsure if Officer Sciullo was still alive, Appellant stood over the officer and fired a

single AK-47 shot into his neck. N.T. at 1455. He turned his attention to Officer Mayhle

and fired several shots into his prone body, just in case the officer “was playing

opossum,” N.T. at 1455-56, causing the officer to twitch with each strike. N.T. at 92.

Appellant then fired upon an immobile Officer Kelly, who never returned fire. N.T. at

1456.

With no other activity around his house, Appellant attempted to confiscate Officer

Sciullo’s sidearm pistol, but he could not disengage the retention strap of the holster.

N.T. at 1456. He then returned to his bedroom to discard the depleted 40 round

magazine from the AK-47 and reloaded with a fresh 30 round magazine. N.T. at 1456.

Pittsburgh Police Officer Timothy McManaway arrived at the scene at 7:17 a.m.

and saw the SUV with its driver’s door open and Officer Kelly lying behind it, raising his

hand. N.T. at 170. He ran to Kelly and managed to drag the officer to a safer position

behind the SUV, but could not move him any further. Officer Kelly was bleeding heavily

from wounds to his leg and torso, according to McManaway, but was able to speak for a

short time before slipping into unconsciousness and losing a pulse. N.T. at 173-80,

245-52. McManaway also observed Margaret Poplawski at this time nervously smoking

a cigarette and pacing outside the garage side of the home. She was not visibly armed.

N.T. at 182. He yelled and motioned to her to leave the area when AK-47 gunfire

coming from a window of the house was directed at him, tearing up the SUV and

causing shrapnel to hit his face. N.T. at 175-76. McManaway returned fire and was

shot in the left hand during the course of several exchanges. N.T. at 178-80.

[J-25-2014] - 4
 Appellant’s semi-automatic weapon kept rescuers at bay for over 40 minutes until

an ad hoc rescue team comprising both S.W.A.T. and city police used a van draped

with bulletproof vests to retrieve Officers McManaway and Kelly from the scene shortly

after 8:00 a.m. N.T. at 184, 246. Just minutes later, S.W.A.T. personnel arrived in an

armored vehicle and drove it up to the front of the house and were met with heavy

gunfire for some time before the pattern changed to intermittent spurts of battle. N.T. at

367-73. Positioning of the armored vehicle to cover the location of Officer Mayhle

enabled a rescue/recovery team to reach the fallen officer. Appellant had not been

firing his weapon as the team approached, but “gunfire erupted” from his location when

they prepared to lift Mayhle. N.T. at 373. No one was injured during the recovery,

however. Eventually, a S.W.A.T. sniper positioned on a neighboring home’s roof used a

succession of seven or eight shots through the side wall to force Appellant from his

strategic firing position deep within the room to a position closer to the window. N.T. at

433. At that moment, the sniper saw the barrel of Appellant’s rifle protrude from the

window and he struck it with a single round, disabling the rifle. N.T. at 434.

Shortly thereafter, Appellant called Allegheny 911 at about 9:35 a.m. and told the

operator/dispatcher that he had run out of ammunition and was not shooting any more

police officers. N.T. at 498. The call was transferred to the 911 supervisor, and

eventually to a S.W.A.T. team negotiator on the scene, who construed Appellant's

dealings as deceptive--at one moment saying he was “done shooting innocent police

officers right now,” and in the next saying "well, I just want to take one more shot" with

his .357 revolver. N.T. at 527. When the negotiator asked him to simply toss the

revolver out the window, which had no glass remaining in it at that point, Appellant

[J-25-2014] - 5
claimed he could not. N.T. at 529. He also claimed he could not put his hands up at

the window and remained out of view inside the room. N.T. at 530. Appellant also

expressed anger over his disabled AK-47 and threw it against a wall during the phone

conversation. N.T. at 528. When asked about Officer Sciullo, Appellant said not to

worry about him because he shot him with a 12-gauge and something else and the

officer was dead. N.T. at 528. Eventually, the negotiator managed to arrange the

manner of surrender and police officers entered the home and placed Appellant under

arrest at 10:44 a.m. N.T. at 544-48.

Appellant was transported by ambulance to Pittsburgh’s Presbyterian Hospital.

Two ambulance crew members and a doctor made an initial assessment of Appellant's

injuries and, once they prepared Appellant for transport, cleared Detective Brian

Johnson to begin his interview with Appellant. Detective Johnson read Appellant his

Miranda1 rights from a prepared card he carried in his wallet, N.T. at 1312, and then

asked if Appellant would talk without the presence of a lawyer. Appellant agreed to talk,

but evaded questions with complaints that his flex-tie handcuffs were too tight, that he

received too much medication when, in fact, no medication had been administered, and

that the paramedic was leaning against him and touching his penis. N.T. at 1314-21.

Once at the hospital, Appellant stopped Detective Johnson's interrogation by invoking

his right to an attorney. N.T. at 52.

Appellant spent two hours in the trauma unit receiving treatment for a gunshot

wound to his right leg, bruising on his left chest, and an abrasion on his face before he

1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[J-25-2014] - 6
was moved to a room located in a secure unit of the hospital. N.T. at 65, 68, 140. He

wore a cervical collar and received for his pain Tylenol and Oxycodone orally and

Dilaudid intravenously,2 medications that could cause drowsiness. N.T. at 76-77. Once

staff placed him in the hospital bed and police handcuffed and shackled him to its

frame, he said to a patient care technician who was washing his face that he did not

wake up that morning wanting to kill people. N.T. at 1390. He asked her "how many

cops did I kill?" When she said she did not know, he replied "not enough, I bet." N.T. at

1392.

He slept for some time and awoke to see two Pittsburgh police officers in the

hallway guarding his room. He yelled to the officers "I'm sorry I killed three of your

friends," N.T. at 1336, and, sometime later, "all you cops are cock suckers, like you're

on a big power trip. I should have killed more of you." N.T. at 1343. When a nurse

later arrived with a dinner tray, one of the officers entered the room with her and,

noticing there was no table for the tray, suggested that the nurse could put it on his

chair. Appellant responded "you motherfuckers aren't going to eat. That's why I kill you

motherfuckers because of your power trips." N.T. at 1347. After Appellant ate and the

officer returned to the hallway, Appellant said in a calm voice that the officer who shot

him in the chest was brave and that only Appellant’s ballistics vest stopped the bullet.

"He could have ended it all," Appellant said. N.T. at 1348. He said the officers did not

deserve what happened and that he would spend the rest of his life in prison "biting off

dicks." N.T. at 1348.

2
Appellant described his pain as an 8 or 9 on a 10-point scale. N.T. at 90, 94.

[J-25-2014] - 7
 Appellant's room grew darker as evening came, so an officer turned on the

overhead light in the short hallway leading into the room to better observe Appellant.

N.T. at 1350. Appellant again screamed the invectives he had earlier directed at the

officers. N.T. at 1350. He later yelled at the officer "I wish it was you that came to my

door today." N.T. at 1351. The officers did not respond to Appellant's outbursts. N.T.

at 1351.

The police officers eventually recommended to their supervisor that he staff the

next shift with county deputy sheriffs, as it was the officers' opinion that Appellant was

attempting to provoke hostilities between himself and police. N.T. at 1338. Accordingly,

at 10:06 p.m., Sheriff's Deputies Troy Garrett and Brad Nevin began their shift and

applied their handcuffs and shackles to Appellant before the officers removed theirs.

Appellant asked if the deputies could dowse the light in the room, but the deputies cited

their need to observe him. N.T. at 1372.

No other interaction took place until about 2:00 a.m., when Appellant complained

that one of his handcuffs was too tight and asked if Deputy Garrett could loosen it. N.T.

at 1372. The deputy agreed the handcuff was somewhat tight and he loosened it. N.T.

at 1373. At that point, Appellant said he was sorry about what happened and that it all

happened so fast. He remembered hearing his mother crying in the basement and the

police officers screaming outside. N.T. at 1378. Without response from Deputy Garrett,

who remained silent throughout, Appellant said he did not care for the direction in which

the country was headed, but knew where he was going and that he deserved to go

there. N.T. at 1374. He said he had always considered himself a fighter for liberty and

a supporter of police, and he acknowledged that they had a hard job and that he did not

[J-25-2014] - 8
feel sorry for himself. N.T. at 1374, 1381. When Appellant had finished his comments

he thanked Deputy Garrett for listening to him, and Deputy Garrett walked outside the

room and took notes about what was just said. N.T. at 1376. He then called the major

crimes divisions of the Pittsburgh Police Department to inform them that Appellant was

volunteering facts about the shooting.

At approximately 3:00 a.m., a magisterial district judge arraigned Appellant in his

hospital room, supplied him with a copy of the complaint, and advised him that until he

received a public defender at the county jail it would be wise for him to remain silent.

N.T. at 12. After that, Appellant spent the bulk of the night sleeping.

At about 7:00 a.m., Detective James Smith from the major crimes unit arrived at

the hospital and met with Deputy Garrett outside Appellant's room. N.T. at 1436. As

Deputy Garrett described Appellant's earlier actions and comments, Appellant caught

Detective Smith's eye and nodded to him, so the detective walked toward him. N.T. at

1437. Appellant said he liked the current guards but disliked the previous pair, and he

believed the hospital staff was mistreating him because of what he had done. N.T. at

1437. At these complaints, the detective began to walk out of the room to resume talks

with Garrett and told Appellant he would call a nurse to the room. N.T. at 1437.

Appellant stopped him by asking to see his arraignment papers and, upon seeing the

complaint against him, stated that he did not intend to shoot the neighbors' houses.

N.T. at 1438. Appellant then asked the detective his name and if he was with the

police. Detective Smith offered his name, rank, and assignment, and Appellant said he

wished to talk. Detective Smith advised that he had to get a pre-interrogation warning

[J-25-2014] - 9
form faxed from his office, first, because Appellant had invoked his right to remain silent

and requested counsel.

The form was faxed at 7:21 a.m. N.T. at 1439. At 7:30, Detective Smith

reentered Appellant's room while leaving the door open, uncuffed Appellant’s right hand,

and together with Appellant filled out the form. Appellant provided his biographical

information and confirmed after each paragraph that he understood his rights by

answering "yes, sir" and initialing the form each time. N.T. at 1440, 1442. At the end of

the form, Appellant confirmed that he was willing to waive his rights and answer

questions without the presence of a lawyer, again, by answering "yes, sir" and initialing

the form where the detective had written his affirmative answer verbatim. N.T. at 1441.

Appellant then signed the form.

With the Miranda waiver form signed, Detective Smith began the interview.

Appellant first asked the detective to explain the charges related to his shooting

neighboring homes. When the detective asked him if he was really interested in that

part of the complaint, Appellant admitted he was more interested in talking about

himself and his actions. N.T. at 1442.

He expressed surprise that he had only killed three police officers because he

was sure he had killed at least four, thinking his two AK-47 shots had pierced the

windshield of the S.W.A.T. vehicle that had pulled up in his yard. N.T. at 1442, 1459.

He explained why his mother called 911 and described in great detail how he donned

body armor and armed himself before the police arrived. N.T. at 1444-51. He provided

a step-by-step account of how he took down each officer, what firearm he used each

time, and where he and the respective officer were positioned when they engaged. N.T.

[J-25-2014] - 10
at 1452-57. His thought process as he approached and fired at Officer Sciullo, he said,

was "trigger ready, shot cop, and it's on." N.T. at 1466. He admitted shooting a

motionless Officer Sciullo a second time with the AK-47 and said he would have fired

upon the rescue of Officers Kelly and McManaway if he had seen it. He must have

been surveying the rear of his property, he said, when it took place: "I would have shot

them if I saw them.” N.T. at 1445-47. He also said he was thinking at the time he was

firing upon the S.W.A.T. forces outside that he was glad no children lived on the block

and that he was thinking about his neighbors, too. N.T. at 1465.

He described taking phone calls from friends during the stand-off, and even held

a conversation with a credit card collection agency while he was firing his AK-47 out the

window, telling the agency it was out of luck because he was in a shootout with police.

N.T. at 1460. His statement covered the moment a gunshot took out his AK-47 and

how he resorted to his .357 after that. N.T. at 1461. As he felt his strength diminishing

because of the leg wound, he took off his vest and noticed the bruise to his left chest

where Officer Mayhle had shot him. N.T. at 1462. He had contemplated suicide at that

moment, he said, but decided on jail, instead, because he could read, friends could visit,

and he could perhaps write a book. N.T. at 1464. He then called 911 to surrender.

N.T. at 1463.

Appellant told Detective Smith at the end of his statement that he just wanted

everyone to know how all this happened and that was why he wanted to tell the story.

N.T. at 1463. After taking the statement, Detective Smith gave Appellant the

opportunity to make corrections and confirm the accuracy of each paragraph before

signing his initials in red pen throughout. N.T. at 1466-67. Appellant not only made

[J-25-2014] - 11
various corrections to grammar and spelling, he also scrutinized details as to the

sequence and description of events. At one point, for example, Detective Smith had

written "police arrived, stepped to corner [of bedroom] to pick up shotgun[,]" but

Appellant changed it in his own hand to read "stepped to corner to pick up shotgun

before police arrived." N.T. at 1470. He took the time to make other fine distinctions

throughout the notes. N.T. at 1470-77. While reviewing the entirety of the notes,

Appellant said "well, that doesn't sound very good for me." N.T. at 1467.

Once he finished, Appellant added his own initialed statement that said "[p]olice

arrived much quicker than I expected. I was caught off guard. This led to a snap

decision to shoot. Believed police were going to kill me regardless, due to firearms in

the home at the ready." N.T. at 1468. After that, he wrote "red is mine" in reference to

the color ink he used, signed his statement, dated it, and recorded the time of 10:06

a.m. N.T. at 1468. During this entire interview, access to Appellant's room was not

denied, and medical staff had freely entered to perform their duties. N.T. at 1395, 1442.

Appellant was charged with three counts of criminal homicide, 18 Pa.C.S. §

2501(a), nine counts of attempted homicide, 18 Pa.C.S. § 901(a), nine counts of assault

of law enforcement officer, 18 Pa.C.S. § 2702.1(a), and other related charges based on

the events of April 4, 2009. On April 23, 2009, the Commonwealth issued notice of its

intention to seek the death penalty. The trial court subsequently granted a defense

motion for a change of venire, at which time this Court directed that jury selection take

place in Dauphin County. A hearing was held on Appellant's motion to suppress, which

the court denied in its order of September 20, 2010.

[J-25-2014] - 12
 Trial commenced in Allegheny County on June 20, 2011, and on June 25, 2011,

the jury returned with a verdict of guilty on all counts. The penalty phase began on June

27, 2011 and concluded on the following day. The jury voted unanimously to sentence

Appellant to death, finding three aggravating circumstances (that the victims were police

officers killed in the performance of their duties,3 knowingly creating a grave risk of

death to another person in addition to the victims,4 and committing multiple murders5)

and two mitigating circumstances (no prior convictions6 and a dysfunctional and difficult

childhood as coming under the “catch-all” provision7). Immediately following the jury's

penalty verdict, three sentences of death were imposed. Post sentence motions were

subsequently denied on March 6, 2012 and Appellant filed timely notice of appeal on

March 22, 2012.

I. Sufficiency of the Evidence

On appeal, Appellant has raised no argument regarding the sufficiency of the

evidence. However, “in all capital direct appeals, this Court reviews the evidence to

ensure that it is sufficient to support the first-degree murder conviction[.]”

Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). First-degree murder is an

3
42 Pa.C.S. § 9711(d)(1).

4
42 Pa.C.S. § 9711(d)(7).

5
42 Pa.C.S. § 9711(d)(11).

6
42 Pa.C.S. § 9711(e)(1).

7
42 Pa.C.S. § 9711(e)(8).

[J-25-2014] - 13
intentional killing, i.e., a “willful, deliberate and premeditated killing.” 18 Pa.C.S. §

2502(a), (d). In order to prove first-degree murder, the Commonwealth must establish

that: (1) a human being was killed; (2) the accused caused the death; and (3) the

accused acted with malice and the specific intent to kill. Id. The jury may infer the

intent to kill based upon the defendant's use of a deadly weapon on a vital part of the

victim's body. Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa. 2009) (citing

Commonwealth v. Baumhammers, 960 A.2d 59, 68 (Pa. 2008)).

In reviewing whether the evidence was sufficient to support a first-degree murder

conviction or convictions, the entire trial record must be evaluated and all evidence

considered. Id. In applying the above standards, we bear in mind that the

Commonwealth may sustain its burden by means of wholly circumstantial evidence, and

“the trier of fact, while passing upon the credibility of witnesses and the weight of the

evidence, is free to believe all, part, or none of the evidence.” Commonwealth v.

Cousar, 928 A.2d 1025, 1032–1033 (Pa. 2007); Commonwealth v. Sanchez, 82 A.3d

943, 967 (Pa. 2013).

Instantly, the evidence of the Commonwealth and all reasonable inferences

deduced therefrom, when taken in a light most favorable to the Commonwealth as

verdict winner, see Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013), support the

jury's verdict of first-degree murder in the deaths of Officers Sciullo, Mayhle, and Kelly.

As recounted supra, the Commonwealth presented Appellant's highly detailed

confession as to how he carried out his ambush-style attack upon Officers Sciullo and

Mayhle when they arrived at his home. He killed Officer Sciullo with a shotgun blast to

the head, and struck down Officer Mayhle with multiple rounds of shotgun and AK-47

[J-25-2014] - 14
gunfire. He gratuitously shot both officers additional times in the head and neck with his

AK-47 as they lay motionless on the ground. He opened fire on Officer Kelly's SUV as it

pulled up in front of his home, striking the officer's leg through the driver's side door, and

fatally pierced the officer's vest with the same high-powered AK-47 ammunition as Kelly

exited his vehicle. Neighbors identified the shotgun blasts as the first shots fired, and

they witnessed Appellant shooting at the prone bodies of all three officers. Expert

forensic testimony further substantiated the use of deadly weapons to vital parts of the

officers' bodies. Accordingly, we hold that sufficient evidence was presented to permit a

reasonable jury to conclude beyond a reasonable doubt that Appellant was guilty of

three counts of murder in the first degree.

II. Suppression

In his first briefed issue, Appellant levies a challenge to the trial court’s

evidentiary ruling deeming Appellant’s incriminating, post-arrest statements to police

admissible. His two-prong argument states, first, that police impermissibly failed to

scrupulously honor his invocation of the right to counsel. The invocation was clearly

and unequivocally made, Appellant emphasizes, when he eventually declared “I want

my fucking lawyer” as Detective Johnson was interviewing him in the hospital

emergency room. N.T. at 52. Although questioning ceased at this point, police

maintained a coercive presence over the many hours in which he lay restrained in a

hospital bed by standing outside his hospital room in plain sight, escorting all personnel

entering his room, and periodically turning on the overhead lights during nighttime

hours, he continues. He avers that this chronic pressure culminated with Detective

Smith, summoned to the hospital after Appellant had broken his 16 hours of silence by

[J-25-2014] - 15
volunteering statements to a Sheriff’s Deputy guarding his room, allowing Appellant to

begin a conversation that led to his signing a Miranda waiver form and providing

incriminating statements.8

The second prong of Appellant's argument for suppression denies that his

incriminating statement was the product of a voluntary, knowing, and intelligent decision

on his part. Pain and blood loss from the gunshot wound, fear and agitation expressed

about likely consequences, perceived hostility from guards, and several administrations

of intravenous pain killers, including schedule IV narcotics Oxycodone and Dilaudid over

a 16-hour period, all worked in concert to deprive Appellant of the lucidity that had

prompted him 16 hours earlier to invoke his Fifth and Sixth Amendment rights, he

insists. By the time Detective Smith entered the room, Appellant's state of mind made

him incapable of voluntarily initiating a conversation in which he could waive the

constitutional protections afforded by his earlier invocation, he claims.

The Commonwealth responds that Appellant's first prong argument asserting a

disregarded invocation asks this Court to do what it cannot do--upset the credibility

determinations of the suppression court, within whose sole province it is to pass on the

credibility of witnesses and the weight to be given their testimony. According to the

Commonwealth, when viewing the evidence under the governing standard and scope of

review, it is clear that police respected Appellant's invocation up until the time he

8
Appellant offers additionally that the court erred in crediting Deputy Garrett’s testimony
that he abruptly abandoned his refusal to speak to officers and gestured with an inviting
nod for Deputy Garrett to enter his room. If nothing else, he argues, his cervical collar
would have made it physically impossible for him to do this. As such, he contends the
court should have identified Deputy Garrett's role as the point at which wrongful breach
of his invocation began.

[J-25-2014] - 16
voluntarily waived his right to counsel many hours later. Credited was testimony by the

nursing staff and officers alike who explained that officers neither questioned Appellant

nor responded to his many outbursts during the time his invocation was effective.

Deputy Garrett entered Appellant's room only because Appellant asked him to loosen a

tight handcuff, and Garrett remained silent when Appellant began to talk about the

crime, his motivations, and his expression of remorse, the court found. While Detective

Smith arrived because Garrett notified him about Appellant's new willingness to talk,

Smith did not enter the room until Appellant motioned for him, and he advised Appellant

that they could not converse because Appellant had requested an attorney. The court

likewise accepted Detective Smith's testimony that it was only after Appellant said that

he no longer wanted an attorney because an attorney could not change anything, and

that he wanted to talk, that Smith Mirandized Appellant and took his statement.

The Commonwealth likewise posits that the record belies Appellant's second

prong assertion that he was incapable of validly waiving his rights. His treating

physician testified that he received medication that could cause drowsiness but would

not have impaired his judgment. Furthermore, no witness described Appellant as

incoherent or displaying confusion at any time, and Appellant's notations on the Miranda

form and his written commentary supplied further evidence of a voluntarily made

statement.

In reviewing a suppression court's denial of a suppression motion,
we may consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when read in the
context of the record as a whole. Where the suppression court's factual
findings are supported by the record, we are bound by these findings and
may reverse only if the court's legal conclusions are erroneous.
Nonetheless, we exercise plenary review over the suppression court's
conclusions of law.

[J-25-2014] - 17
Commonwealth v. Johnson, 42 A.3d 1017, 1028 (Pa. 2012).

Where, as here, an accused invokes his Fifth Amendment rights9 during a

custodial interrogation but later provides an incriminating statement, this Court reviews

the voluntariness of the accused’s statement by examining whether authorities refrained

from further interrogation “until counsel has been made available to him, unless the

accused himself initiates further communication, exchanges, or conversations with the

police.” Commonwealth v. Edwards, 903 A.2d 1139, 1150 (Pa. 2006) (citing Edwards v.

Arizona, 451 U.S. 477, 484–85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981)). See

also Commonwealth v. Keaton, 45 A.3d 1050, 1067 (Pa. 2012) (invocation of Fifth

Amendment right to counsel shields arrestee from further interrogation until counsel is

present, unless arrestee initiates further conversation with police). In Commonwealth v.

Hubble, 504 A.2d 168 (Pa. 1986), this Court held that a confession given after a

defendant invokes his right to counsel need not be suppressed where the defendant:

“(1) initiated ‘further communication, exchanges, or conversations with the police’, and

(2) knowingly and intelligently waived the right to counsel.” Id. at 175 (quoting Edwards,

451 U.S. at 485–86 n. 9, 101 S.Ct. at 1885 n. 9).

After careful review, we conclude that the record supports the lower court’s

findings of fact that led it to deny Appellant’s motion to suppress. Testimony adduced

from both suppression hearing transcripts established that Detective Johnson ceased

9
In addition to the case-specific Sixth Amendment right to counsel, the United States
Supreme Court has held that a separate, prophylactic right to counsel is encompassed
in the Fifth Amendment to counteract the ‘inherently compelling pressures' of custodial
interrogation. McNeil v. Wisconsin, 501 U.S. 171, 176-77, 111 S.Ct. 2204, 115 L.Ed.2d
158 (1991) (citing Miranda, supra).

[J-25-2014] - 18
his interview with Appellant once Appellant invoked his right to counsel. N.T. at 10, 52.

Approximately eighteen hours transpired from his invocation to his eventual

renunciation, during which time, according to testimony credited by the suppression

court in its exclusive role as finder of fact, law enforcement officers honored Appellant’s

invocation by remaining outside his hospital room except to escort hospital personnel

and the magisterial district judge during arraignment, and by ignoring Appellant’s

invectives and other attempts to establish communication. When Deputy Garrett

entered Appellant’s room on Appellant’s request that a handcuff be loosened, he

listened when Appellant volunteered statements concerning his case, but he neither

initiated the encounter nor conversed with Appellant, and he made notes only afterward.

N.T. at 107-124.

Even after receiving the magisterial district judge’s advice to maintain his silence

until his lawyer was assigned, Appellant summoned Detective Smith into his room and

expressed his desire to talk. N.T. at 7, 11-12. Again, the court credited Detective

Smith’s testimony that he stopped Appellant to inform him that they could not talk

because Appellant had invoked his right to counsel. N.T. at 10. Only when Appellant

then renounced his invocation and said he wished to speak did Detective Smith request

a Miranda form be faxed to the hospital, go over the form with Appellant, and begin an

interview. At the time of this interview, therefore, Appellant had been read his Miranda

rights twice by two different law enforcement personnel and had been advised of his

rights additionally by a magistrate. Moreover, testimony indicated Appellant was alert

and perceptive during each of these advisements and again at the time he renounced

his invocation, all of which occurred in a hospital setting. This record supports both the

[J-25-2014] - 19
suppression court’s factual findings, which are binding on this Court, and its legal

conclusion that Appellant freely decided to renounce his invocation of Fifth and Sixth

Amendment rights in a hospital environment in which law enforcement officers honored

his rights.

We draw the same conclusion with respect to Appellant’s assertion that the

totality of circumstances, with particular emphasis on the alleged mental effects of both

the pain he was experiencing and the pain medication he received, rendered his

statements involuntary. Simply because Appellant complained of pain and received

pain medication that could cause drowsiness did not automatically invalidate his

statements to police. The inquiry, instead, goes to whether his statements were “the

product of an essentially free and unconstrained choice by its maker.” Commonwealth

v. Hallowell, 282 A.2d 327, 329 (Pa. 1971).

The credited testimony of his treating physician and nurses indicated that

Appellant neither received medication that would impair his judgment nor showed signs

of such impairment during critical times. N.T. at 77-78, 81-82. Instead, he spoke

coherently, albeit with fear and agitation during the early hours of his admission, but

these emotions waned with the passage of time leading up to his renunciation. N.T. at

63-65, 68, 99-100, 137. Testimony also demonstrated that Appellant was coherent and

responsive during his hospital room arraignment, at which time he received the district

judge’s advice to remain silent. N.T. 4/6/10 at 11-12. Finally, his ability to complete the

Miranda form correctly on his own and to make written contributions in his own hand to

Detective Smith’s notes, N.T. 2/5/10 at 17-24, demonstrated both his capacity to know

what he was saying and his freely exercised will to say it. The sum of this evidence,

[J-25-2014] - 20
accepted by the court, pointed to a proper renunciation and statements voluntarily

made. Accordingly, the suppression court did not err in refusing to suppress Appellant’s

written and oral statements.

III. Admission of Racial Epithets

In his next issue, Appellant contends that reversible taint in both the guilt and

penalty phase resulted from the trial court’s erroneous evidentiary ruling, over defense

objection, permitting the jury to hear excerpts of Appellant’s 911 call in which he uttered

racial epithets that were irrelevant and highly prejudicial.

In his 911 call Appellant used the slur “nigger” several times. At trial, the court

granted defense counsel’s request that the jury hear the entire forty-one minute

recording of the 911 call made by Appellant. N.T. at 524. From that recording, several

excerpts were made exhibits and entered into evidence, as well. The first 911 call

excerpt accompanied the testimony of dispatcher Kathleen Cornell and offered the

following from Appellant:

APPELLANT: I’m done taking innocent police officers’ lives. So, if
someone can come and get me, that would be great.

DISPATCHER: Do you have any weapons on you?

APPELLANT: I got plenty of weapons on me, but I’m not shooting
any more cops because my weapons are out of ammunition and disabled.

DISPATCHER: You’re out of ammunition?

APPELLANT: Almost, but I promise you that I’m not going to shoot
any more fucking police officers.

[J-25-2014] - 21
N.T. at 496-97; see also N.T. at 1501; Commonwealth Exhibit 93.10 Also played as

Exhibit 94 were remarks accompanying the testimony of 911 Call Center shift

commander Robert Sabo:

APPELLANT: Richard Poplawski. I’m inside 1016 Fairfield Street.
Okay. I don’t want to end any more innocent officer’s [sic] lives in the line
of duty. Okay. Okay. [A]nd unless you want to send somebody in here.
I’m shot. (inaudible) And you know, I’m going to go to jail and fight the
niggers for the rest of my life.” Send somebody with a nice voice into the
fucking living room, which is the main room with the big window, and I’ll
explain to them we’re basically done for the--.

N.T. 507; Commonwealth Exhibit 93A, “side B,” at 12:41. The third excerpt was

admitted as Exhibit 95 and contained surrender negotiations between Sergeant

Campbell and Appellant, in which Appellant said, inter alia, it “ain’t no bullshit about

what happened and I will have to bite the niggers’ dicks off and fight for the rest of my

life.” Commonwealth Exhibit 93A, “side B,” at 18:15.

Prior to playing the entire recording and admitting these excerpts, the trial court

issued the following cautionary instruction:

THE COURT: For the record, ladies and gentleman, this is -- before
you put the headsets on, this is another one of these supplemental
instructions. Keeping in mind that you are to be the judges of the facts
and be fair and dispassionate and impartial in all matters. You will hear
statements attributed to the defendant in this tape-recording that contain
racial epithets. These are gratuitous comments made in the context of the
conversation and the events occurring at the time. Because they are

10
Exhibits 93, 94, and 95 represented segments taken from one entire recording, which
was admitted separately as Exhibit 93A, “side B.” Redacted from the recording played
during Cornell’s testimony was Appellant’s statement “I’m going to go to jail and fight
niggers for the rest of my life.” This statement did, however, appear on Commonwealth
Exhibit 93A, side “B” at approximately the 12-minute mark during Cornell’s call, and a
second statement to that effect was included in the playback of dispatcher Robert
Sabo’s call at Exhibit 94, as indicated infra.

[J-25-2014] - 22
 prejudicial racial comments, you must not allow them to stir up your
emotions to the prejudice of the defendant. You must not regard this
evidence as showing that the defendant is a person of bad character from
which you might be inclined to infer that he’s guilty of any of the crimes
charged here.

If you ultimately find the defendant guilty of any offense, it must be
based upon evidence of proof by the Commonwealth beyond a
reasonable doubt and not on the basis of any offensive language from
which you might infer a racist attitude. You may proceed.

N.T. at 496.

Appellant argues that the racist comments were irrelevant to proving the case of

first-degree murder and, accordingly, lacked any probative value to offset their highly

prejudicial effect. As such, their exclusion was required under then-effective former

Rules 401 and 403 of the Pennsylvania Rules of Evidence, he submits.11 In this vein,

Appellant notes that the trial court initially sustained his relevance-based objections to

the epithets but changed its ruling and deemed them admissible--despite maintaining

they were of questionable relevance--for their contextual value. Specifically, the trial

court advised why it was changing its ruling:

THE COURT: The problem is not that it is relevant. Clearly I would
agree with you that there is a very difficult issue as to whether it’s relevant
or not. But the problem is it appears to be contextual, meaning it’s there in

11
At the time the trial court made its evidentiary rulings, this Commonwealth defined
relevant evidence as that “having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Former Pa.R.E. 401, rescinded and replaced Jan.
17, 2013, effective March 18, 2013. Under former Rule 403 in effect at the time of trial,
relevant evidence was subject to exclusion “if its probative value [was] outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Former Pa.R.E. 403, rescinded and replaced Jan. 17, 2013, effective March
18, 2013.

[J-25-2014] - 23
 virtually everything that’s going on and being said. But there are several
cautionary instructions, one dealing with inflammatory photographs, one
dealing with evidence of other crimes which have melded together, and
I’ve got about a paragraph and a half here that I can tell them essentially
that they are not to regard the evidence asP[court’s comment ends
without explanation].

N.T. at 360. Appellant dismisses this reasoning also as having no support in former

Rule 401, which predicated the admissibility of evidence on relevance to a material fact.

Appellant continues that whatever contextual role the epithets could have

theoretically played in assisting the jury in rendering a verdict was all but negated by

admission of his written confession as well as by the substantive 911 statements

reflecting his consciousness of guilt. Indeed, redaction of the quintessentially

inflammatory slur “nigger” would have sacrificed nothing of value from the otherwise

incriminating telephonic evidence, he contends.

The court’s error was, furthermore, not harmless, Appellant continues, as the

profound prejudice associated with revealing Appellant to be a racist can hardly have

been rendered comparatively insignificant by the properly admitted evidence of his guilt.

This was particularly so in the penalty phase, Appellant contends, where the prosecutor

relied on a theme of Appellant as a “hater” who acted on his hate with devastating

consequences and may very well do so again if allowed to live out his life in jail. The

jury was, therefore, invited to punish Appellant for his belief system as well as for his

actions, Appellant’s argument goes.

The Commonwealth counters that the epithets were integral to the cohesiveness

of Appellant’s statement, and that their excision would have left the jury with the difficult

task of piecing together broken language segments offered in an inculpatory statement

that stood as crucial proof of first-degree murder. It is in that way the regrettable

[J-25-2014] - 24
remarks were of vital contextual importance, it maintains. “The issue is whether these

highly germane admissions, [such as ’I’ll have to fight for my life for the rest of my life’]

could have reasonably been divorced from the word ‘nigger’ in such a way as to

preserve their relevance and evidentiary integrity[,]” the Commonwealth posits. Brief for

Appellee at 32. In a case involving multiple counts of murder, attempted murder, and

other egregious offenses, it was imperative for the court to admit the “exact words” in

which Appellant acknowledged he took the lives of “innocent police officers” and should

lose his freedom for life, the argument continues. All the words together, therefore,

demonstrated the malevolence and intent behind these unprovoked crimes, the

Commonwealth insists.

In furtherance of its position, the Commonwealth cites to extra-jurisdictional

authority for the proposition that racial epithets should avoid redaction where they are

important to the finder of fact’s understanding of the material conversations in which

they were made. In U.S. v. Price, 13 F.3d 711 (3d Cir. 1994), the Commonwealth

reports, the Third Circuit Court of Appeals reviewed a drug distribution conspiracy case

in which the trial court denied a defense request to delete from tape recordings of the

defendant his references to rival gang members as “niggers.” The circuit court agreed

that it would have been “virtually impossible” to redact this term without altering the

substance of the conversation regarding the drug conspiracy, and so upheld the

decision to admit the evidence. Id. at 720-21.

For its part, the trial court discusses neither the relevance of the epithets nor their

relative probity as compared to potential for prejudice. Instead, it confines its opinion to

say that Appellant offers nothing to rebut the presumption that juries follow cautionary

[J-25-2014] - 25
instructions, and that, at the worst, any error in the evidentiary ruling was harmless

given the overwhelming evidence of Appellant’s guilt in this brutal crime: “[t]he

suggestion that because the jury heard the defendant utter racial epithets their [sic]

ability to render a fair verdict was impaired is absurd.” Trial Court Opinion, dated

November 5, 2012, at 33.

The admissibility of evidence is a matter for the discretion of the trial court and a

ruling thereon will be reversed on appeal only upon a showing that the trial court

committed an abuse of discretion. Commonwealth v. Sherwood, 982 A.2d 483, 495

(Pa. 2009). “An abuse of discretion may not be found merely because an appellate

court might have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as

to be clearly erroneous.” Id. (quoting Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa.

2007) (citation omitted)).

In the event of an erroneous admission of evidence, a verdict can still be

sustained if the error was harmless. See Commonwealth v. Wright, 961 A.2d 119, 144

(Pa. 2008). An error is harmless if it could not have contributed to the verdict, or stated

conversely, an error cannot be harmless if there is a reasonable possibility the error

might have contributed to the conviction. Id. We have found harmless error where:

“(1) the error did not prejudice the defendant or the prejudice was de
minimis;

(2) the erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the erroneously
admitted evidence; or

(3) the properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the verdict.”

[J-25-2014] - 26
Id. (quoting Commonwealth v. Young, 748 A.2d 166, 193 (Pa. 1999) (citation omitted)).

The Commonwealth has the burden of proving harmless error beyond a reasonable

doubt. Id. at 143.

Here, any error in including the epithets in the otherwise highly relevant and

probative 911 call recording of Appellant’s statements was insignificant compared to

properly admitted evidence overwhelmingly establishing that Appellant intentionally and

fatally shot three police officers without provocation. He prepared for their arrival by

donning body armor and arming himself with several firearms, struck down the first

officer, Officer Sciullo, at the front entrance while the officer’s gun was still in its holster,

and overtook Officers Mayhle and Kelly with multiple weapons. He continued to spray

gunfire at anyone who moved outside the home and prevented attempts to render aid to

Officer Kelly, who lay dying on the front sidewalk. As this brutal exhibition played out at

his home, Appellant telephonically admitted more than once in clearly stated fashion

that he killed “innocent police officers” during the episode and was prepared to go to

prison for the rest of his life for having done so. Nearly 24 hours later, he volunteered a

written admission to the same effect in a constitutionally sound custodial interrogation.

Neither identity nor the specific intent to kill was ever seriously challenged at trial. This

was not a close case. See Wright, supra at 144.

The jury, therefore, heard such overwhelming evidence of both guilt on which to

base its verdict and aggravating circumstances on which to base its sentence that not

even this all-too-familiar epithet with the potential to incite passion among reasonable

people could have factored in its guilt or penalty phase deliberations. Juries are

presumed to follow instructions, Commonwealth v. Freeman, 827 A.2d 385, 409 (Pa.

[J-25-2014] - 27
2003); Commonwealth v. Carter, 643 A.2d 61, 77 (Pa. 1994) (trial court instruction to

jury not to consider prosecutor’s statements as evidence cured any prejudice which may

have been caused by comments), and the court specifically advised jurors they were

not to draw an adverse character inference from the two references. Thus, we conclude

that any error attending the inclusion of Appellant’s use of epithets in an otherwise

highly relevant statement was harmless.

IV. Discovery Violations

In his next briefed issue, Appellant contends the court erred in repeatedly

permitting Commonwealth experts to testify beyond the scope of their respective pre-

trial reports, thus constituting a discovery violation under Pa.R.Crim.P. 573(E), infra,

which, inter alia, provides that the court may prohibit a party from introducing evidence

not properly disclosed in pre-trial discovery. Each expert, Appellant says, agreed during

testimony on cross-examination that his report did not contain the opposed opinions,

and in so admitting revealed a clear strategy by the Commonwealth to conduct trial by

surprise. Appellant asserts a manifestly unfair process resulted, especially in one

instance when the objected-to opinion related to a matter that Appellant had specifically

asked about during discovery only to be told it would not be raised at trial. In that

regard, Appellant moved for mistrial, which motion the court denied.

Moreover, Appellant submits that the court's basis for admission in many

instances--that the evidence was fairly basic and should have been anticipated and

easily understandable--actually called for its exclusion under the standard predicating

admission on the need to explain complicated evidence that what would otherwise be

outside the ken of the jury. If the evidence at issue here was easily grasped, then it

[J-25-2014] - 28
should not have been presented by expert witnesses, Appellant argues. Resulting was

unfair surprise impeding defense counsel's ability to prepare adequate expert defense,

Appellant submits.

Pennsylvania Rule of Criminal Procedure 573 governs pre-trial discovery and

provides in relevant part as follows:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant, and subject
to any protective order which the Commonwealth might obtain under this
rule, the Commonwealth shall disclose to the defendant's attorney all of
the following requested items or information, provided they are material to
the instant case. The Commonwealth shall, when applicable, permit the
defendant's attorney to inspect and copy or photograph such items.
....

(e) any results or reports of scientific tests, expert opinions, and written or
recorded reports of polygraph examinations or other physical or mental
examinations of the defendant, which are within the possession or control
of the attorney for the Commonwealth;
....

(E) Remedy. If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply with
this rule, the court may order such party to permit discovery or inspection,
may grant a continuance, or may prohibit such party from introducing
evidence not disclosed, other than testimony of the defendant, or it may
enter such other order as it deems just under the circumstances.

Pa.R.Crim.P. 573.

The admission of expert testimony is a matter of discretion for the trial court, and

will not be disturbed absent an abuse of discretion. Commonwealth v. Walker, 92 A.3d

766, 772 (Pa. 2014). An abuse of discretion “is not merely an error of judgment, but if in

reaching a conclusion the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by

the evidence or the record, discretion is abused.” Id. at 772-73 (citation omitted).

[J-25-2014] - 29
 Expert testimony is admissible in all cases, civil and criminal alike, “when it

involves explanations and inferences not within the range of ordinary training

knowledge, intelligence and experience.” Id. at 788 (quoting Commonwealth v. Leslie,

227 A.2d 900, 903 (Pa. 1967)). Even where an expert’s testimony arguably went

beyond the scope of his or her report, the defendant still bears the burden of proving he

suffered prejudice from the admission of the testimony. See Commonwealth v. Henry,

706 A.2d 313, 326-327 (Pa. 1997). The trial court has broad discretion in choosing the

appropriate remedy for a discovery violation. Commonwealth v. Jones, 668 A.2d 491,

512 (Pa. 1995).

First, Appellant complains that the expert report of Allegheny County Chief

Medical Examiner Dr. Karl Williams, who conducted the autopsy of Officer Michael

Kelly, indicated that the locations of injuries and directions of projectiles were based on

standard anatomical position without offering any opinion about which wounds came

first or how Officer Kelly was positioned when hit. N.T. at 263, 292. At trial, however,

when the Commonwealth asked Dr. Williams if he could determine which “grouping of

gunshot wounds on Eric Kelly’s body were administered first,” defense counsel’s

objection was overruled. The trial court had initially sustained objections to testimony

regarding the order of specific wounds received, but at trial it allowed Dr. Williams to

infer from the alignment of bullet holes in the driver’s side door of Kelly’s SUV with the

gunshot wounds in his leg that Officer Kelly received this grouping of gunshot wounds

as he sat in the driver’s seat, and it allowed him to then opine further that Kelly received

the directly fatal gunshot wound to his torso as he exited the vehicle. Dr. Williams’

report had identified this as the “most inevitably fatal” shot.

[J-25-2014] - 30
 Appellant argues that the absence of these observations from Dr. Williams’ report

deprived him of the opportunity to prepare expert rebuttal as to the order of wounds. He

fails, however, to carry his burden of explaining how this admission of evidence

prejudiced his defense. Examination of the entire record reveals that Dr. Williams’

testimony merely corroborated unrebutted eyewitness accounts that Appellant initiated

gunfire on Officer Kelly, who fell to the ground immediately after first alighting his vehicle

and remained incapacitated there. The crime scene investigation, as well, noted the

incapacitated officer lay on the sidewalk next to his SUV for an extended time as

Appellant’s gunfire prevented paramedics and fellow officers from offering aid. The

uncontradicted evidence admitted elsewhere during trial overwhelmingly established

that he fired the fatal shot while Officer Kelly was just exiting his vehicle. Unsupported

by a showing of prejudice, this claim fails.

Appellant next contends that Allegheny County Associate Medical Examiner and

Forensic Pathologist Dr. Todd Luckasevic also testified to opinions not in his report

when describing the autopsy of Officer Mayhle. The defense objected when the

prosecution asked Dr. Luckasevic if he could opine on the position of Officer Mayhle at

the time he received a fatal gunshot wound that entered his face and severed his

cervical spine. At side bar, defense counsel asked for an offer of proof, and the

prosecutor replied that she expected the doctor to say the officer was either standing,

sitting up, or directly underneath the shooter because those would be the three

possibilities based on the essentially level trajectory the bullet had taken once it entered

the face. N.T. at 567. Defense counsel protested that, again, this opinion was not in

the doctor’s report, nor was it offered when defense counsel interviewed the doctor six

[J-25-2014] - 31
months earlier, and she decried the prosecutor’s practice of relying on “surprise

opinions” to make its case. N.T. at 567. The court disagreed that the question would

produce a surprise opinion, noting that “I don’t think you have to be a forensic

pathologist to figure out if the bullet goes straight, you either have to be standing up,

sitting down, or on the groundPthis is pathology, but it isn’t rocket science, so the

objection is overruled.” N.T. at 567.

Review of the trial transcript shows that Dr. Luckasevic determined from his

examination that the bullet entering Officer Mayhle’s face traveled at a slightly

downward trajectory from front to back, dropping about three-quarters of an inch along

that pathway as it severed his cervical spinal cord. N.T. at 568. When asked by the

Commonwealth what position the officer must have been in to sustain that wound path,

Dr. Luckasevic responded that because many positions would be consistent it was a

difficult question to answer. The doctor recommended, instead, that he could offer an

opinion as to whether the wound was consistent with a particular scenario. N.T. at 568.

The Commonwealth then supplied a hypothetical based on Exhibit 76, a crime scene

photograph depicting Officer Mayhle’s body lying face up on a concrete slab. Assuming

that the concrete was beveled out underneath the officer’s head, the prosecutor asked

the doctor if he could determine the location of the firearm in relation to the officer. The

doctor answered “[i]f, as you say, the concrete’s beveled out, the bullet had to have

been fired from above in a downward fashion.” N.T. at 569. It followed, the doctor

opined under this same assumed scenario, that the two gunshot wounds to Officer

Mahyle’s back must have preceded this head wound given the “immediately

incapacitating” effect severance of the spinal cord would have had. N.T. at 576-78.

[J-25-2014] - 32
Moreover, the shallower of the two back wounds was marked by a path entering the low

back and exiting much higher, consistent with the officer bending down in a running

motion. N.T. at 580. In fact, the doctor opined, the three shallow wounds to the officer’s

body were all consistent with this physical position. N.T. at 576-78.

On cross-examination, however, defense counsel gained the doctor’s agreement

that the fatal gunshot to the face could not have created the bevel on the concrete

beneath the officer because that slug never exited the head:

DEFENSE COUNSEL: That wound A [the fatal head wound], there is
no exit, correct?

DR. LUCKASEVIC: That is correct.

DEFENSE COUNSEL: So that wound didn’t bevel any sidewalk.
Would that be correct to say?

THE COURT: What?

DEFENSE COUNSEL: That bullet doesn’t bevel any sidewalk.

DR. LUCKASEVIC: No. It stayed in -- that bullet --

DEFENSE COUNSEL: Gunshot wound A didn’t bevel any sidewalk?

DR. LUCKASEVIC: No, it stayed there, that’s correct.

6

DEFENSE COUNSEL: [The prosecutor] asked you to opine that
because there are bevels in the sidewalk, that the gunshot wound A came
from up above.

DR. LUCKASEVIC: I don’t think I opined that. I thought I said the
muzzle was in front of his face.

DEFENSE COUNSEL: So you’re not saying that at all?

DR. LUCKASEVIC: Correct.

[J-25-2014] - 33
 DEFENSE COUNSEL: You can’t say where the person was unless
you know exactly the position of the body at the time that they were shot?

DR. LUCKASEVIC: Right. You can give me scenarios. I can say
that’s consistent with, but I don’t know 100 percent where the body was,
where the shooter was, where the gun was. I don’t know any of that.
Again, I’m just dealing with the terminal trajectory or terminal path of the
bullet. I have no idea where the gun -- where it flew in the air, if it actually
deflected off something, I don’t know that.

N.T. at 585, 586-87.12 Defense counsel went on to develop Dr. Luckasevic’s opinion

further on the point by asking him if he could tell where Officer Mayhle was at the time

he received the fatal wound. “There is no way to tell that. No[,]” Dr. Luckasevic

testified. N.T. at 592. Finally, after the prosecution, on redirect, elicited the opinion that

Officer Mayhle may have been shot in the face after he fell backwards off the front

porch steps and sustained a traumatic concussion-type injury on impact, defense

counsel, on re-cross, confirmed, again, that it was not possible for the doctor to know

with any degree of certainty the order of events:

DEFENSE COUNSEL: So you can’t tell us then in what order A [the
fatal gunshot wound to the face] or B [the impact injury to the back of the
head] came; is that right?

DR. LUCKASEVIC: That’s correct. We have -- I can’t tell, no.

DEFENSE COUNSEL: So he could have gotten shot in the face and
then fell down the steps?

DR. LUCKASEVIC: That’s correct, or he could have fell [sic] down
the steps and got shot in the face.

DEFENSE COUNSEL: Neither one [being] more or less likely?

12
On redirect, Dr. Luckasevic did opine that one of the marks in the concrete slab
located directly behind Officer Mayhle’s head could have possibly resulted from a bullet,
fired from the front porch, that skipped off the sidewalk and lodged in the officer’s head
as he lay there. N.T. at 597.

[J-25-2014] - 34
 DR. LUCKASEVIC: I can’t tell, no.

N.T. at 601.

According to Appellant, this testimony corroborated the Commonwealth’s case in

chief that Appellant was firing down upon the officers and thereby “clearly helped the

Commonwealth establish first-degree murder and the specific intent to kill.” Brief of

Appellant at 58. The trial court’s observation that this portion of the expert opinion was

“not rocket science” ignores the accepted purpose of expert evidence, Appellant

continues, which is to explain matters beyond the knowledge or experience of the

average lay person. Brief of Appellant at 57 (citing Commonwealth v. Minerd, 753 A.2d

225, 230 (Pa. 2000)).

Appellant’s argument, however, fails to explain through any developed argument

or citation to authority how the exclusion of Dr. Luckasevic’s testimony on victim

positions at the time of the fatal shooting would have created a reasonable possibility of

a different outcome on the first-degree murder charge. Moreover, the record

demonstrates that defense counsel ably nullified the victim position line of questioning

through her cross-examination of Dr. Luckasevic, which developed the critical expert

opinion that it was not possible to ascertain from the wound angle Officer Mayhle’s

precise location and position at the time he received his fatal wound. The most Dr.

Luckasevic offered was an opinion that Officer Mayhle’s gunshot wounds were just as

likely caused in a manner consistent with the Commonwealth’s hypothetical as they

were with the defendant’s alternate hypothetical. N.T. at 601. As such, Appellant’s

claim that Dr. Luckasevic’s testimony unfairly prejudiced him is without merit.

[J-25-2014] - 35
 Appellant also complains that reversible prejudice arose when the court

permitted Dr. Abdulrezak Shakir, a forensic pathologist for the Allegheny Medical

Examiner’s Office, to testify about what type of projectile caused the wounds to Officer

Sciullo. As Dr. Shakir began to describe how the wound was not a “typical gunshot

wound of an ordinary bullet,” N.T. at 890, defense counsel anticipated that the doctor

would identify the bullet that caused the wound and objected. At sidebar conference,

the court rejected defense counsel’s argument that the testimony went beyond the

scope of the coroner’s report and ambushed the defense with surprise testimony. “He’s

going to base it on the size of the wounds. I assume that this is one of the shotgun

slugs,” the court predicted correctly. N.T. at 890.

Dr. Shakir opined that the gaping entry wound in Officer Sciullo’s head was not

the kind of entrance wound one finds with an “ordinary bullet” fired from “ordinary guns,

like handguns and rifles,” but was caused, instead, by a rifled shotgun slug that caused

profound brain injury and, ultimately, death. N.T. at 892. Dr. Shakir went on to describe

a second gunshot wound that transected the brain as well and constituted another lethal

wound, N.T. at 897, and thereafter catalogued six more entry wounds to the head, neck,

and torso of Officer Sciullo, two of them received post-mortem, he opined, as the

officer’s body lay in the doorway to Appellant’s home. N.T. at 892-910.13

13
On cross-examination, defense counsel elicited the expert’s agreement that the two
post-mortem wounds to Officer Sciullo’s torso were most likely incurred from police
gunfire hours later when the S.W.A.T. force was providing cover for officers attempting
to reach the fallen officers. N.T. at 930-31. Counsel also succeeded in rebutting any
inference made during direct that the two fatal head wounds possibly occurred while
Officer Sciullo was on the ground, as Dr. Shakir agreed with counsel’s understanding of
(Pcontinued)

[J-25-2014] - 36
 With respect to the testimony of Dr. Shakir, we agree with the trial court that the

coroner’s report identifying comparatively large entry wounds to Officer Sciullo placed

Appellant on fair notice that Dr. Shakir may draw the reasonable inference that a

shotgun rifled slug was used. See Trial Court Opinion, dated 11/5/12 at 28. Even if we

were to assume, instead, that a discovery violation attended this expert testimony,

Appellant fails to specify how the testimony caused him prejudice other than offering a

generic statement that the expert opinion was “particularly damaging” because it

included “what weapons were used.” Brief for Appellant at 54. Appellant’s own properly

admitted statement to police, however, indicated he had shot Officer Sciullo with a

shotgun rifle slug. Again, our precedent cited above clarifies that prejudice is not simply

presumed in the instance of a discovery violation, but must be established by the

complaining party. We therefore find that no reversible error attended the admission of

Dr. Shakir’s expert testimony on slug types. To the extent Appellant’s challenge to Dr.

Shakir’s testimony may be fairly read to incorporate generic assertions, appearing

elsewhere in the brief, that the testimony included improper opinion on the position of

Officer Sciullo at the time he was shot, the record demonstrates that defense counsel

effectively cross-examined the expert on this point. See footnote 13, supra.

Finally, well into the testimony of expert Dr. Robert Levine, a firearms examiner

for the Allegheny County Medical Examiner’s Office, the defense objected that he had

testified to a number of opinions that were not contained in his report:

(continuedP)
the ballistics evidence that the wounds could not have been sustained at the location
where the officer’s body was recovered. N.T. at 924-25.

[J-25-2014] - 37
 DEFENSE COUNSEL: I have sat through seven, eight opinions from
Dr. Levine that are not contained within his lab report. Eight of them. I am
now starting No. 9. I don’t know what I am supposed to do with this
information. I gave an opening statement saying that the physical
evidence didn’t match my clients’ statement, and the prosecution is now
bringing in ten different opinions that I’ve never heard before. It’s
prosecutorial misconduct, and I move for a mistrial.

I can’t imagine they had the gall to object to a suppression motion
being late, and they are bringing opinions in in the middle of trial. I don’t
know how to defend against this. I’m sorry. It’s never happened before.

THE COURT: Motion for mistrial is denied. [About] Dr. Levine, you
had an opportunity to interview him. He’s not doing anything that I see
that’s beyond the scope of his report. He’s a ballistics expert. He tells you
where bullets go and where they came from, and that’s exactly what he’s
doing.

DEFENSE COUNSEL: And identifies what kind of bullet they are, and I
had no idea prior to him beginning to testify that --

THE COURT: We’ll take a break, give you a 20 minute break before
you have to cross-examine.

DEFENSE COUNSEL: If I may, I asked Dr. Levine yesterday if there
were going to be any surprises for me today, if he was going to be --

THE COURT: How does he know when you’re going to be
surprised?

DEFENSE COUNSEL: I said, are you going to be offering any
opinions that are not in your report?

N.T. at 1110-11. When the prosecutor interjected that he was simply asking Dr. Levine

to identify on a prepared diagram from which side of a hole in the wall a shot was fired

based on the locations of the holes and where investigators recovered the bullet,

defense counsel responded that was one of her concerns because she did not know

that “that hole was associated with that bullet because there are four holes in that wall.”

N.T. at 1111. Appellant objected that not only did Dr. Levine’s report fail to match

bullets with holes and address trajectories, but the doctor also had indicated to defense

[J-25-2014] - 38
counsel just days before that he would not be offering any opinion not contained in his

report. N.T. at 1111-12.

Appellant again asserts prejudice stemmed from his inability to prepare an

appropriate defense to surprise opinion testimony pertaining to these important details

about victim and shooter positioning. Another example of surprise testimony offered by

Dr. Levine, Appellant says, was his opinion that marks observed on the concrete

sidewalk leading to Appellant’s front porch could have been made by downward angled

shots fired from an AK-47 type gun. Defense counsel had objected to the prospect of

such evidence on the day before Dr. Levine testified, but this objection was denied.

This testimony was particularly damning, Appellant submits, because it suggests that

Appellant stood over the officers and fired down at them, thus “clearly help[ing] the

Commonwealth establish first-degree murder and the specific intent to kill.” Brief for

Appellant at 58.

The Commonwealth responds, initially, that no discovery violation took place, as

the defense had ample notice that the concrete slab had been removed from the

sidewalk and could be used to establish that Appellant fired gunshots at Officer Mayhle

as he lay there. This opinion was expressed by the trial court in denying defense

counsel’s objections the day before:

THE COURT: Ms. Middleman [Defense Counsel], you’ve known for
a long time that they had that concrete slab. You had pictures of the
concrete slab. You had pictures of the marks on the concrete slab.

N.T. at 880. Appellant still had the opportunity to ask his own expert to give an opinion

on the evidence, the Commonwealth continued, and it cited the trial court’s observation

prior to testimony that the matter involved “one question. He’s [the defense expert]

[J-25-2014] - 39
either going to agree or not agree. They are experts. They are either going to say or

not say it is.” N.T. at 880.

The Commonwealth further justifies its hypothetical question eliciting opinion on

the source of concrete markings as having been properly based on eyewitness

testimony that Appellant stood on his front porch firing what looked to be an AK-47 type

assault rifle down at the motionless body of Officer Mayhle. Dr. Levine’s responsive

opinion was a reasonable inference drawn from the evidence and was, under our

decision in Commonwealth v Montalvo, 986 A.2d 84, 95 (Pa. 2009) (upholding

admission of expert opinion based on competent evidence and reasonable inferences

therefrom), properly admitted on that basis, the Commonwealth maintains. Brief for

Appellee at 47.

The record shows that defense counsel’s vigorous cross-examination of Dr.

Levine ably revealed the limitations of his shooter/victim position opinions drawn from

ballistics evidence obtained at the crime scene. The markings or “defects” on the

concrete slab had the appearance of being caused by a gunshot, Dr. Levine testified,

but he also conceded that he could not say with any degree of certainty that it would

have been from the AK-47 type rifle Appellant was said to be firing. N.T. at 1146-47.

Nor, for that matter, could he say from what direction the bullets hitting the slab were

fired or how old the defects were. N.T. at 1146-47. With respect to ballistics evidence

gathered inside the home, the record shows that Dr. Levine opined on direct

examination how placing a straight probe through a hole and connecting to a bullet

lodged in a closet wall enabled him to infer the location of Appellant during the time of

the shooting. On cross-examination, however, Dr. Levine acknowledged defense

[J-25-2014] - 40
counsel’s point that it is accurate to describe the use of a probe as assisting in

determining bullet flight lines rather than the precise locations of a shooter, and

consequently modified his diagram to allow for a range of possible locations anywhere

along a line cutting across several rooms in the interior. N.T. at 1133-34.

Defense counsel’s ability to handle so deftly this purportedly unfairly surprising

expert opinion leads us to conclude that no prejudice accompanied the prosecutor’s

questionable practice of eliciting expert inferences and opinions from Dr. Levine that

were not included in his report. Defense counsel significantly limited the value of Dr.

Levine’s opinions by establishing that bullets fired from any direction could have made

the concrete markings in question and the respective points from which Appellant and

Officer Mayhle exchanged gunfire could have been anywhere along lines spanning

several rooms. Moreover, Appellant fails to explain how he could have further rebutted

this evidence had discovery of such expert opinion been received sooner. We,

therefore, find any error in the admission of Dr. Levine’s testimony was harmless.

Finally, Appellant contends the aggregation of all the discovery violations he

asserts required the court to grant his motion for mistrial. It was grossly unfair and

alarming, he argues, that the Commonwealth was not only using expert testimony

beyond what it presented during discovery but was also gathering more expert opinion

during the course of trial, all without volunteering the post-discovery opinion when it

gained it. N.T. at 879. The Commonwealth had two years in which to supplement

reports and supply opinions regarding the officers' body positions when shot, what

weapons were used, where Appellant stood when he shot at the officers, and ballistic

evidence that the defense was unaware of and unprepared to defend against. The

[J-25-2014] - 41
result of this impermissible gamesmanship of withholding crucial expert conclusions and

inferences up until the time the expert was on the witness stand, Appellant posits,

warranted the remedy of mistrial.

It is well settled that no number of failed claims may collectively warrant relief if

they do not do so individually. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009). “Yet, when the failure of individual claims is based upon a lack of prejudice, the

cumulative prejudice arising from those individual claims may properly be considered.”

Commonwealth v. Simpson, 112 A.3d 1194, 1205-06 (Pa. 2015) (citations deleted).

Regarding each admission of expert opinion evidence not fairly included in

pretrial discovery, our assessment above is that either properly admitted evidence from

independent sources had already established the same point, or effective cross-

examination of the expert had greatly diminished or altogether eliminated the

incriminating force of the opinion. We, therefore, discern no indication that the

aggregate effect of discovery violations prejudiced Appellant, particularly in light of

compelling evidence supporting the charges of first-degree murder.

V. Admission of StormFront.Org Website Visit

Appellant next asserts reversible guilt and penalty phase error attended

reference to his internet visit to a “white nationalist” website in the hours before he

committed his deadly acts. He first charges error with the ruling permitting the

Commonwealth to introduce guilt phase evidence that he visited the website

StormFront.org, identified as a "white nationalist," "anti-Semitic" website, several hours

before the shootings began. This evidence was irrelevant to proving intent, Appellant

argues, as there was no indication that his crimes were motivated by race or anti-

[J-25-2014] - 42
Semitism, and was highly prejudicial as it was used to cast Appellant as a morally

reprehensible person who associated himself with the beliefs and attitudes of white

supremacists and neo Nazis. Using this evidence to draw an adverse inference,

moreover, violated Appellant’s First Amendment right to freedom of association, he

argues.

Initially, Appellant claims the trial court, in admitting the evidence, erroneously

reversed its pre-trial ruling that granted Appellant's motion in limine to preclude

testimony describing 41 pages of Appellant’s postings on the StormFront.org website.

At the pre-trial hearing, the court determined that Appellant’s racist comments posted on

the website were irrelevant to his state of mind during the alleged attack on police

because nowhere in his postings had he endorsed or threatened violence against

police.

THE COURT: Perhaps I am missing something. Even if the
Commonwealth were able to establish by some standard that Mr.
Poplawski harbored -- and I’m not saying he did harbor -- racist or anti-
Semitic views, what does that have to do with this case?

PROSECUTOR: Well, Your Honor, he expressed --

THE COURT: He is alleged to have shot three police officers in
uniform and on duty.

PROSECUTOR: One of which is an African American.

THE COURT: Oh, come on. First through the door, last though the
door, you’re seriously going to tell me that he shot Sciullo and Mayhle to
get to Kelly? Is that what we’re P

PROSECUTOR: That’s not what I am saying, Your Honor. I am saying
he has expressed animus toward police officers, toward African
Americans and to just about every other race and nationality on the face of
the earth.

***

[J-25-2014] - 43
 DEFENSE COUNSEL: Your Honor, I would suggest to this Court this
is an attempt by the Commonwealth to paint our client as a domestic
terrorist unrelated to this event, and that, of course, then taints the
potential penalty stage as well. The only thing that’s on point, could be on
point is animus toward police.

Again, the only thing I’ve been given is six pages of indeed postings
there. I would suggest to this Court reading those postings, there’s
nothing that expresses animus toward police whatsoever. If indeed he
uses bad thoughts, bad words, if he indeed posted feelings of anti-Jew,
anti-black, anti this anti that, it’s, again, before you get to the point, it’s
unrelated to the actual offense itself, and as a result should be
inadmissible as evidence.

THE COURT: [Prosecutor], can you point the Court to a posting that
shows animus toward the police?

N.T. at 6-11.

As the prosecutor searched her notes, defense counsel directed the court’s

attention to an excerpt from page 10 of Appellant’s postings wherein Appellant wrote “I

mean, I’m not talking about disrespecting any cops. Just not bending for them in fear as

many people do.” N.T. at 11. Defense counsel continued that Appellant wrote of the

potential of needing guns to safeguard personal interests, but observes that there is “not

an actual threat toward any racial group, ethnic group or police contained anywhere in

the 41 pages that the [trial court] has in front of him.” N.T. at 14. The prosecutor

offered nothing to contradict defense counsel’s account of the postings. N.T. at 14.

[J-25-2014] - 44
 Invoking Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309,

(1992),14 the trial court ruled there was no constitutional ground upon which to admit

Appellant’s postings, as they were unrelated to the crime committed:

THE COURT: The Court will grant the motion in limine. The
evidence of Mr. Poplawski’s beliefs as opined by Mr. Pitcavage [the
detective who retrieved Appellant’s website postings] will not be permitted
in evidence, neither will any posting in the guilt phase of the proceeding.

The Court, however, will reserve the right to permit those into
evidence in the penalty phase, inasmuch as Court [sic] does not know
what the defense -- pretty much knows what the Commonwealth is going
to present as aggravating circumstances, but I have no idea what the
defense is going to present as mitigating circumstances, and the
Commonwealth may use some of that information as rebuttal to matters
which the defendant may well present.

N.T. at 14.

Contrary to Appellant’s contention, therefore, the guilt phase transcript shows not

a reversal of the court’s pre-trial ruling as it related to Appellants postings, but, instead,

a ruling on whether an investigator could testify that Appellant had visited the

StormFront.org website in the hours before the shooting. To this offer, the only

objection defense counsel advanced was that the visit was irrelevant to Appellant’s

14
In Dawson, the United States Supreme Court held that a First Amendment violation
attended penalty phase evidence and argument that the defendant belonged to the
Aryan Brotherhood, a white racist group, where there was no indication from the
stipulation that the group endorsed or threatened the kind of violence for which the
defendant had been charged. The Court acknowledged there is no per se barrier to the
admission of evidence of protected beliefs that bear a relation to proving the crime
charged. Dawson’s membership in a racist group, however, bore no relationship to his
violent crime against a white victim. Nor was it relevant to mitigation evidence that he
was a caring family member and had earned good conduct credits in prison by
attending substance abuse classes. Evidence of his membership, therefore, was
unconstitutionally prejudicial, the Court held, and it vacated judgment of sentence and
remanded the matter for further proceedings, leaving open the possibility for a harmless
error determination.

[J-25-2014] - 45
state of mind at the time of the shooting. When the court agreed with this position but

nevertheless declared the evidence admissible for its contextual value, i.e., to show the

sequential history of events leading up to the shootings, defense counsel offered no

further objection to admission on that basis:

DEFENSE COUNSEL: One of the exhibits is a list of all of the
websites that were visited from their Compaq computer for the 24 hours
preceding the shooting. My understanding is that Detective Haney will be
giving, in addition to authentication the list of websites, he will give a brief
description of each website. But I think this is akin to the issue of the
books in that just because you read something or look at something, that’s
not evidence of your state of mind. So I would suggest to the Court that
this is very similar to the books and irrelevant.

In addition, I think it would be very difficult, given that the computer
was in a house that was shared by more than one person to differentiate
between that which is --

THE COURT: Do you want to respond to that?

PROSECUTION: Yes. Number one, that’s why we had the stipulation
to Mr. Poplawski’s fingerprint on the computer. With regards to his web
browsing, Your Honor, I would only propose to put in a single page, which
would be from 3:30 a.m. on the morning of the 4th, up until 5:00 a.m. on
the morning of the 4th.

Your Honor, my understanding was Your Honor disallowed the
books because we couldn’t necessarily show that there was any link
between his state of mind, and he could have read those when he was --
like you did when you were in college and so forth. This I think is a little bit
different because --

THE COURT: All right. It’s contemporaneous with the event, but what is
it that it shows?

PROSECUTION: Basically, there are a variety of things that are visited
here. Most relevant, Your Honor, there’s a website called Raw Meaty
Bones. He was looking at dog biscuits.

THE COURT: That’s certainly not relevant.

PROSECUTION: No, Your Honor, it’s just the whole -- the list is in the
order that it’s in. They are all there. Another one is Let’s Go Pens. It’s a

[J-25-2014] - 46
 hockey website. The other one is StormFront, which Your Honor’s well
aware of that he was -- and we do not intend to produce any specific
postings from StormFront, merely that he was on the website. There’s
also a Fox News link to a contemporaneous story about the mass murder
turned suicide in upstate New York where a number of people were
murdered and then the shooter took his own life. These, again, that’s all --
that’s on this one page from --

...

PROSECUTION: It’s 3:28.08 a.m. up until -- the last posting is 4:58:59
a.m.

DEFENSE COUNSEL: Your Honor, I would suggest to the Court that
because he was on the Meaty Bones website, that doesn’t make him a
dog. And because he is on the Penguin website [after brief trial court
interruption] because he’s on the Penguin website, that doesn’t make him
a hockey player. Because he was on StormFront --

THE COURT: I’m going to allow this to be introduced because it
shows what he was doing immediately prior. If he were drinking beer,
taking drugs or if he were doing those things, Commonwealth would be
entitled to show that, too. It will come in without any further comment
about it. The jurors can make whatever appropriate inferences they feel.

DEFENSE COUNSEL: So then Detective Haney will not be permitted
to describe --

THE COURT: He’ll be able to describe what the websites are, yes,
but briefly and quickly, I hope.

N.T. at 870-72.

The pre-trial and trial transcripts therefore show the trial court precluded only

testimony regarding beliefs Appellant had expressed in postings on the website, on

grounds they were unrelated to his attack on the police and, thus, irrelevant. Otherwise,

the trial court deemed Appellant’s website visit admissible as part of the narrative

concerning his actions in the hours leading up to the shootings. To admission of the

website visit on this basis, Appellant offered no objection and sought only clarification as

[J-25-2014] - 47
to the extent Detective Haney would be permitted to elaborate on the website itself.15

Appellant has, therefore, waived his present challenge to the admission of such

evidence. Pa.R.A.P. 302 (preservation of issue must be made with a timely and specific

objection; appellant may not raise an issue for the first time on appeal). Freeman, supra

at 402 (abrogating this Court's capital direct appeal relaxed waiver rule and holding, “as

a general rule on capital direct appeals, claims that [a]re not properly raised and

preserved in the trial court are waived and unreviewable. Such claims may be pursued

under the PCRA, as claims sounding in trial counsel's ineffectiveness or, if applicable, a

statutory exception to the PCRA's waiver provision.”).

Appellant also asserts prosecutorial misconduct during the penalty phase

summation, where it was suggested that Appellant drew his motivation from the

StormFront.org website:

PROSECUTOR: Richard Poplawski was smart enough to know better.
Richard Poplawski was smart enough to make something of himself.
What might he have done with his life with that 135 IQ? We’ll never know
because he used his powers, left the light and went into the darkness.
What kind of darkness?

Look at what he was doing in the hours before he murdered these
three good men. What kind of things was he looking at? He was reading
about a mass murderer in Upper State New York who killed a bunch of
immigrants who had come to this country to become citizens, and then he
took his own life. He was visiting the Nazi website StormFront. Nazism,
StormFront, haters, ladies and gentlemen. Richard Poplawski turned a[ll]
those intellectual powers towards evil. And what he learned on those
websites, chatting with those people, those like-minded haters and bigots
and racists, we’ll never know. But I submit to you, folks, that’s where all
this came from.

15
Though the trial court interjected before defense counsel finished her question
seeking clarification, we may infer from her silence afterward that the court had
answered her intended question.

[J-25-2014] - 48
N.T. at 328. With this argument the prosecutor attempted to “stoke the passions and

prejudice of the jury,” Appellant argues. Yet, defense counsel offered no objection to

the prosecution’s closing, electing, instead, to present a contrary summation that the

evidence showed Appellant was perhaps a man frustrated with the government and

what he considered its unpatriotic policies on, among other things, gun ownership:

DEFENSE COUNSEL: Now, again, I remembered Deputy Garrett
interviewed my client in the jail, and you heard some of that. My client
was saying, I’m a patriot. The world and the United States as we know it
is going to fall apart. There’s going to be some type of war going on. The
government I don’t trust. Well, again, there wasn’t a whole lot of emphasis
on that in this entire case until right now. Counsel closed to you and he
brought that issue up.

Well, it’s not the elephant in the room that no one talks about. The
proverbial horse is out of the barn because one thing we haven’t really
talked about here is what’s going on, not just right now, not just in
Pittsburgh, what hasn’t been talked about and why people act the way that
they do, you have people out there, you have a lot of people out there,
they claim to be patriots. That’s the word my guy used. There’s a couple
themes they have. The one theme is we hate the government. We don’t
trust the government. And they have their websites, they have this, they
have that. But usually what they believe in is, number one, we hate the
government, we don’t trust it, and frankly, they are not going to take our
guns.

N.T. at 358-59.

Now on appeal, for the first time, Appellant protests against the prosecutorial

suggestion that he acted on a hatred and racism cultivated during visits to the website.

To the trial court’s opinion that he has waived this issue on appeal for failing to make a

timely and specific objection, he contends that such position is “disingenuous” where he

had already achieved a pre-trial ruling barring evidence describing the beliefs Appellant

expressed in his website postings, only to see the ruling undone later during the guilt

phase:

[J-25-2014] - 49
 An appellant cannot be faulted for waiving an issue where the issue was
the subject of a pretrial motion and hearing. To hold that this issue is not
preserved is baffling and unfounded based on the record. A pretrial
motion was litigated, and despite initially being granted, later denied by the
trial court’s decision to allow the testimony detailing the nature of the
website. Counsel would have no reason to double object on the same
basis argued during the pre-trial motions as the judge’s decision to allow
the testimony in the middle of trial constituted a ruling on the issue.

Brief of Appellant, at 67.

Appellant’s account is inaccurate, however, for, as our review above identifies,

the trial court did not reverse itself on the pre-trial ruling that Appellant’s racist and anti-

Semitic beliefs as expressed in connection with the StormFront.org website were

inadmissible. The most the court permitted during the guilt phase trial with respect to

Appellant’s visit to StormFront.org was to show his actions in the hours before the

shooting. This guilt phase ruling did not upset the pre-trial ban against evidence relating

to beliefs, and, thus, gave no reasonable indication that it would be futile to object to a

penalty summation suggesting Appellant drew motivation from hateful content

expressed on StormFront.org. It was incumbent upon Appellant, therefore, to make a

contemporaneous and specific objection to this effect. This issue has been waived.

See Commonwealth v. Jordan, 65 A.3d 318, 336 (Pa. 2013).16

16
We reject Appellant's position that merits-review is required pursuant to our
observation in Baumhammers, supra at 72, that some issues are of a “primary
constitutional magnitude” so as to necessitate immediate review even where the
appellant has defaulted on the claim by failing to preserve it appropriately. The entirety
of Appellant's argument in this regard is that "this is a matter of constitutional
significance as the United States Supreme Court recognized [in Dawson v. Delaware,
supra] that this issue impacts on an individual's First Amendment rights. Commenting
upon Mr. Poplawski's protected rights as a means to gain a death sentence is improper
and flies in the face of established precedent." Brief of Appellant at 68-69.

(Pcontinued)

[J-25-2014] - 50
 VI. Future Dangerousness

In his next issue, Appellant asserts that the prosecutor, in both opening and

closing penalty phase remarks, impermissibly argued that Appellant posed a future

(continuedP)
Unlike in Dawson, however, which turned on the admission of evidence during the
penalty phase that the defendant was associated with the Aryan Brotherhood, there was
no evidence admitted here that Appellant associated with a white nationalist
organization. Rather, the only evidence admitted was a stipulation that in the hours
before the shootings, Appellant had visited a number of websites including
StormFront.org. By contrast, the defendant in Dawson specifically argued that it was
the admission of evidence related to his association that violated his constitutional
rights. The Supreme Court held that such evidence of abstract beliefs was irrelevant:
Whatever label is given to the evidence presented, however, we conclude
that Dawson's First Amendment rights were violated by the admission of
the Aryan Brotherhood evidence in this case, because the evidence
proved nothing more than Dawson's abstract beliefs. Cf. Texas v.
Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 2544, 105 L.Ed.2d 342
(1989) (“[T]he government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable”).
Delaware might have avoided this problem if it had presented evidence
showing more than mere abstract beliefs on Dawson's part, but on the
present record one is left with the feeling that the Aryan Brotherhood
evidence was employed simply because the jury would find these beliefs
morally reprehensible. Because Delaware failed to do more, we cannot
find the evidence was properly admitted as relevant character evidence.

Id. at 167, 112 S. Ct. at 1098.
The present case is factually distinguishable from Dawson. While the prosecutor
offered his personal viewpoint to the jury in his summation that the website visit
revealed Appellant's endorsement of the views expressed therein, this argument did not
constitute evidence, and the jury was so instructed as to that fact. As it stood by the
end of penalty phase summations, the Commonwealth had presented no evidence that
Appellant held any membership, allegiance, or commitment with, or had expressed any
endorsement of or belief in, the white nationalist movement as discussed in the website
he visited for several minutes that morning. Because Appellant's connection with this
belief system was too attenuated under the evidence, we disagree with Appellant that
this issue raises a First Amendment matter of primary significance as to require that we
forego invocation of the waiver doctrine.

[J-25-2014] - 51
danger to the prison population. The standard under which claims of prosecutorial

misconduct are to be reviewed is well-established:

It is well settled that, during the penalty phase, where the presumption of
innocence no longer applies, a prosecutor is afforded reasonable latitude
and may properly comment on the evidence with oratorical flair.
Comments by a prosecutor do not constitute reversible error unless their
unavoidable effect was to prejudice the jury, forming in their minds a fixed
bias and hostility toward the defendant such that they could not weigh the
evidence objectively and render a true penalty determination.

***

[R]emarks made by a prosecutor must be evaluated in the context in
which they occur. Furthermore [in closing argument], the prosecutor may
fairly respond to points made in the defense closing.

***
[W]ithin reasonable bounds enforced by the trial court, a prosecutor may
employ oratorical license and impassioned argument in arguing for the
death penalty. While reference to irrelevant matters should be avoided,
we note that murder victims are not simply props or irrelevancies in a
murder prosecution, and innocuous references to victims and their families
are not necessarily prejudicial.

Commonwealth v. Freeman, 827 A.2d [at] 408–09, 413, 415 [ ](internal
citations and quotation marks omitted); see also Commonwealth v.
Fletcher, 861 A.2d 898, 917 (Pa. 2004) (“There is nothing improper in the
prosecutor arguing the appropriateness of the death penalty because that
is the only issue before the jury at the penalty phase of the trial.”) (citation
omitted). However, this Court has deemed improper “overly aggressive or
highly inappropriate advocacy that could have impermissibly shifted the
balance in favor of a death sentence.” Freeman, supra at 415 (citation and
internal quotation marks omitted).

Paddy, supra at 458-59. “In making such a judgment, we must not lose sight of the fact

that the trial is an adversary proceeding . . . and the prosecution, like the defense, must

be accorded reasonable latitude in fairly presenting its version of the case to the jury.”

Commonwealth v. Rainey, 656 A.2d 1326, 1334 (Pa. 1995) (citations omitted).

[J-25-2014] - 52
 The first contested remark occurred during opening arguments in which the

prosecution discussed the multiple murder aggravating factor at Section 9711(d)(11)

that it sought:

PROSECUTOR: So what is the first aggravating factor? The first
aggravating factor is that at the time of the killing, Richard Poplawski took
two additional lives. So that in other words, for Paul Sciullo’s count of
murder, you can consider the murders of Stephen Mayhle and Eric Kelly.
For Stephen Mayhle’s murder, you also can consider the murders of Paul
Sciullo and Eric Kelly, and for Eric Kelly you should also consider the
murders of Paul Sciullo and Stephen Mayhle. That’s the first aggravating
factor. I submit to you, you don’t need to hear any more evidence on that.
It’s been proven beyond any doubt that Richard Poplawski murdered
those three men.

Now, what does that tell you? Why is this an aggravating factor?
Why is that a factor that makes this case worthy of the death penalty?
Well, it’s because Richard Poplawski got a taste of what it was like to
murder somebody. And he did it two more times. I submit to you he could
have stopped after the first or second, but he didn’t.

Think about the things that he said when he was inside that house.
I just want to shoot one more time. Think about his attitude on the phone
with the 911 dispatchers. Oh, no, he’s already dead. I shot him with a 12-
gauge and something else. I’m the one that needs help. Ladies and
gentlemen, I submit to you, Richard Poplawski got a taste and he liked it.
He’s like a dog that’s bitten once and will bite again, and he did that day.
Two more times. That’s the first aggravating factor. I’m not going to
present any more evidence on that.

N.T. at 17-18.17

At the conclusion of the prosecutor’s opening, defense counsel sought a mistrial

and asked the court to bar future death penalty proceedings for what she argued was

the prosecutor’s willful disregard of the court’s earlier ruling against future

17
We condemn the prosecutor’s comparison of Appellant to a dog as highly irregular
and improper. Given the overwhelming aggravating circumstances, however, we refrain
from concluding that the comment so infected the jury that it could not weigh the
evidence objectively and render a fair sentence.

[J-25-2014] - 53
dangerousness argumentation. N.T. at 32-33. The court agreed that the prosecution

had flouted its earlier ruling, but it denied the request for mistrial. Side bar discussion

concluded with the court indicating it would reconsider its position on the admission of

such evidence later in the penalty proceedings. N.T. at 34. The court, however, made

no subsequent reversal of its side bar ruling.

Appellant contends that the court’s admonishment without consequences was

insufficient in light of the prosecutor’s clear attempt to prejudice the jury with a

prohibited future dangerousness argument. Both the Commonwealth and the court

respond that Appellant has mischaracterized the opening remarks, as they addressed

not the future danger Appellant posed but, instead, his commission of multiple crimes in

satisfaction of the Section 9711(d)(11) aggravator.

We agree that the prosecutor confined his opening remarks to Appellant’s past

conduct without introducing commentary about future dangerousness. If read in a

vacuum, the first part of the statement--“[h]e’s like a dog that’s bitten once and will bite

again”--is predictive and would seem to signal a discussion of future conduct. There is

more to the statement, however, and, when read both in its entirety and in context, it is

a description of the past: “He’s like a dog that’s bitten once and will bite again, and he

did that day. Two more times.” The prosecution, moreover, made this statement within

an argument dedicated to establishing only that Appellant’s actions on the day of his

crime qualified as an aggravating circumstance under Section 9711(d)(11). We

therefore discern no future dangerousness argument in the prosecutor’s opening

remarks.

[J-25-2014] - 54
 Appellant also charges misconduct with the prosecutor’s closing argument, over

objection, that racist and anti-authority statements attributed to Appellant during trial

indicate he would pose a danger to prison guards and black inmates if he were to

receive a sentence of life in prison. Appellant argues that the prosecutor’s argument

called upon the jury to consider his future dangerousness as a super-statutory, stand-

alone aggravating circumstance, a use proscribed under our decisional law. See e.g.

Commonwealth v. Trivigno, 750 A.2d 243, 253-56 (Pa. 2000) (plurality) (expressing

concern that, under circumstances of the case, prosecutor offered future

dangerousness argument as an aggravating factor). He acknowledges that this Court

has never considered future dangerousness arguments to constitute per se error, but

advocates that we change our position in accordance with the concurring opinion in

Trivigno, which stated that an Eighth Amendment violation results from permitting a jury

to consider non-statutory aggravating circumstances under a statutory scheme that

requires the jury to select punishment based on a weighing of statutory aggravators and

mitigators. 750 A.2d at 256-57 (Saylor, J. concurring).

The Commonwealth responds generally that under the case cited by Appellant,

Trivigno, a prosecutor may argue future dangerousness as long as the court thereafter

informs the jury “that a life sentence means that a defendant is not eligible for parole,

but that the Governor has the power to grant a commutation of a sentence of life or

death if based on the recommendation of the Board of Pardons following a public

hearing.” N.T. at 256. It is undisputed that the trial court so instructed the jury. See

N.T. at 378-79.

The admissibility of evidence is solely within the discretion of the
trial court and we will reverse on appeal only upon abuse of that

[J-25-2014] - 55
 discretion. Commonwealth v. Thomas, 717 A.2d 468, 477 (Pa. 1998),
cert. denied, 528 U.S. 827, 120 S.Ct. 78, 145 L.Ed.2d 66 (1999). During
the penalty phase, the Commonwealth may offer evidence to rebut a
defendant's mitigating evidence of good character. Commonwealth v.
Harris, 703 A.2d 441, 451 (Pa. 1997), cert. denied, 525 U.S. 1015, 119
S.Ct. 538, 142 L.Ed.2d 447 (1998) (upholding Commonwealth's
introduction of several statements made by an appellant to rebut
appellant's character evidence that he was a nice person and amenable to
rehabilitation); Commonwealth v. Abu–Jamal, 555 A.2d 846, 858 (Pa.
1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 175 (1990)
(holding that Commonwealth's introduction of statements made by
appellant and his Black Panther membership to rebut appellant's character
evidence that he was a peaceful and genial man).

Commonwealth v. Rice, 795 A.2d 340, 355 (Pa. 2002) (Opinion Announcing the

Judgment of the Court).

“Future dangerousness is not an enumerated aggravating circumstance in

Pennsylvania, See 42 Pa.C.S. § 9711(d), and, unlike the statutory aggravating

circumstances, it may not be used by a jury as the sole reason for imposing a death

sentence.” Commonwealth v. Eichinger, 108 A.3d 821, 835 (Pa. 2014) (citing

Commonwealth v. Marrero, 687 A.2d 1102, 1108 n. 19. (Pa. 1996)). It is not, however,

per se error for a prosecutor to argue a defendant’s future dangerousness, so long as

the court grants the capital defendant’s request to instruct the jury that his first-degree

murder conviction precludes his eligibility for parole. See Id. (citing Simmons v. South

Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed 133 (1994); Commonwealth v.

Chambers, 685 A.2d 96, 106 (Pa. 1996)).18 Recently, in Eichinger, this Court upheld a

18
Giving the Simmons instruction after the future dangerousness argument is made
prevents a jury from mistakenly believing a defendant, convicted of first-degree murder,
is parole eligible and may pose a danger to the public at-large. The instruction thereby
protects the defendant’s right to due process by ensuring the jury will review the
defendant’s purported dangerousness in its proper context. Appellant argues
(Pcontinued)

[J-25-2014] - 56
prosecutor’s discussion of the defendant’s future dangerousness as fair response or

rebuttal to the defendant’s mitigation evidence placing his future conduct at issue. Id.at

835.

The appropriate scope of rebuttal has always been defined according to the

evidence that it is offered to rebut. See generally Commonwealth v. Hickman, 309 A.2d

564, 567 (Pa. 1973) (“It is not proper to submit on rebuttal, evidence which does not in

fact rebut the opponent's evidence.”). Indeed, in the character evidence setting, this

precept has been particularly enforced. See, e.g., Commonwealth v. Vander Weele,

514 A.2d 189, 193 (Pa. Super. 1986) (explaining, “[f]or instance, when a character

witness testifies to being familiar with a defendant's reputation for truthfulness, cross-

examination pertaining to a crime of assault is improper”).

As part of his catch-all mitigating circumstance proffer, Appellant introduced

character evidence that he had been an exceptionally bright, high-achieving, kind and

helpful student who worked well with others and was a well-regarded classmate until his

junior year in high school, when he suddenly left school. N.T. at 270-287. In closing

argument, the prosecution alluded to such testimony specifically and asked whether

Appellant would be a good or bad influence in prison. The prosecution suggested the

(continuedP)
summarily, however, that the Simmons instruction is “inadequate” where, as here, a
prosecutor confines the dangerousness argument to the prison context. While it may be
correct that the prosecutor’s argument as made obviated the need for the Simmons
instruction, we decline to address further whether a due process deprivation arose from
the instruction as given or from the absence of an alternate instruction, as the advocacy
presented on the point does not support such a substantive discussion.

[J-25-2014] - 57
latter prospect, based on Appellant’s admitted statements expressing opinions on law

enforcement, race, and fighting in prison. The relevant summation follows:

PROSECUTOR: And do you think Richard Poplawski is going to be a
good influence or a bad influence in prison if you decide to give him life in
prison without parole? Do you think he’s going to be helpful like he was
when he was in eighth grade, or do you think he’s again going to use his
powers for evil?

Keep in mind, we know he’s very bright. We know he can be very
manipulative because you heard him talking to Sergeant Campbell for the
better part of 45 minutes. We know that he dislikes black people. We
know that he dislikes authority figures. We know how he feels about
police officers. How is he going to react the first time a black inmate looks
at him wrong in prison? How is he going to react the first time a jail guard
in prison tells him to go to A or to B or go to C? What if that prison guard
also is a man of color and he turns his back on Richard Poplawski?

Ladies and gentlemen, make no mistake. This dog has bitten three
times, and he will bite again if you give him the opportunity.

N.T. at 346-47.

As can be seen, the prosecutor attempted to frame this part of the summation as

fair response to Appellant’s mitigation offer that he had been a good influence on, and

well-regarded by, his peers as recently as high school. However, consistent with

assurances defense counsel previously made to the court that he would confine such

good character evidence to a presentation concerning Appellant’s past conduct,

defense counsel never suggested this evidence was predictive of future good behavior

toward prison staff and the general prison population. Therefore, the prosecutor’s future

dangerousness argument did not represent fair response to, or rebuttal of, Appellant’s

character evidence.

Nevertheless, in view of compelling aggravating circumstances, the court’s

proper instruction of the jury with respect to the particular aggravating circumstances up

[J-25-2014] - 58
for the jury’s consideration, and the jury’s finding of two mitigating factors, we discern no

indication that prosecutorial remarks on Appellant’s future dangerousness in prison so

inflamed the jury as to have rendered it incapable of appropriately weighing aggravating

and mitigating evidence. Accordingly, we reject Appellant’s argument that such remarks

shifted the balance of the jury’s considerations in favor of the death penalty.

VII. Penalty Phase Photographs and Images of Memorial Services

Appellant urges this Court to vacate sentence and remand for a new penalty

hearing because of prosecutorial misconduct in presenting what he describes as

inappropriate victim impact evidence relating to the fallen officers’ funeral and memorial

services. The prosecutor’s presentation in this regard, Appellant contends, was marked

by an intentional and overarching appeal to emotions and passions consisting of: family

testimony recalling one officer’s blood-stained religious medallion and the need for a

closed casket viewing; a video of the city’s memorial service depicting flag-draped

caskets, moments of silence, and a funeral march to bagpipes; and other pictures of

decorated monuments in the officers’ honor. N.T. at 71-95. Even after the court sua

sponte admonished the prosecution, Appellant argues, the prosecution was effectively

permitted to continue in this course to his unfair detriment by showing another picture of

a headstone. He asserts his penalty of death was therefore obtained in violation of his

rights under the Fifth, Eighth, and Fourteenth Amendments.

Both the Commonwealth and the trial court respond that Appellant has waived

this claim for raising it only now, for the first time, on appeal. Appellant concedes he did

not object to any of the exhibits or testimony as they were being offered at trial, but

nevertheless denies waiver rightfully applies where the record establishes that he filed

[J-25-2014] - 59
motions in limine seeking preclusion of “any non-statutory aggravating circumstance”

and limitation of victim impact testimony to one representative from each family. We

have previously rejected the same argument in holding that a generic, pre-trial motion

may not substitute for a specific, contemporaneous objection never made to a trial

court:

Appellant never made timely and specific objections to the evidence.
Appellant had filed a pre-penalty phase motion in limine to exclude all
victim impact evidence on the grounds that, because such evidence did
not pertain to any statutory aggravating circumstance, the admission of
the evidence was unconstitutional. The court denied the motion, noting
that the United States Supreme Court had ruled that such evidence was
permissible, citing Payne [v. Tennessee, 501 U.S. 808 (1991)]. However,
the court indicated that Appellant could request from the Commonwealth
an offer of proof as to each witness and could lodge an objection particular
to that witness if appropriate. Appellant never objected to any of the
Commonwealth's fourteen victim impact witnesses. Because Appellant
failed to object to the evidence on the grounds that he now raises, his
issue is waived. Pa.R.A.P. 302(a).

Baumhammers, supra at 93 (footnote omitted). Accordingly, the instant claim is waived

and may be considered, if at all, only as part of a collateral attack on trial counsel’s

stewardship.19

19
Appellant offers as an alternative basis for issue preservation the trial court’s sua
sponte, side-bar order to cease with funeral related pictures and testimony:

THE COURT: Mr. Tranquilli, I am sure out of due respect . . . [w]ith
the victim’s family here, [defense counsel] hasn’t objected, but I’m telling
you right now you’re way over the line. First of all, that closed casket
issue is way over the line. You will not ask those kind of questions again,
and we’re going to stop with the funeral issue. I’m done with it. You
played the tape. That’s it. Tailor this. I am not going to have this case
come back because you step over the line, and that’s all you have been
doing.

(Pcontinued)

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 VIII. Statutory Review

Turning, finally, to our statutory review of the death sentence under Section

9711(h)(3), we note that Appellant contends the Commonwealth sought during the

penalty phase to inflame the passions of the jury in an effort to produce a sentence

based on emotion rather than on a proper balancing of aggravating and mitigating

circumstances. Specifically, prosecutorial remarks in summation as to the future danger

Appellant posed to prison guards and inmates, and its tack of showing images of

memorial services held for the officers were improper appeals to emotion are properly

captured under the Section 9711(h)(3) review, Appellant argues, and require remand for

a new sentencing hearing. As noted above, however, Appellant did not object to these

statements and has thus waived the issues. See Commonwealth v. Martin, 101 A.3d

706, 732-35 (Pa. 2014) (collecting cases in which this Court has declined to address

defaulted penalty phase claims under the rubric of statutory review for arbitrary factors).

In any event, upon careful review of the record, we conclude that Appellant's

three sentences of death were not the product of passion, prejudice or any other

arbitrary factor, but were based, instead, on overwhelming evidence establishing that

Appellant fatally shot Officers Paul Sciullo, Stephen Mayhle, and Eric Kelly with malice

and the specific intent to kill. The Commonwealth had the burden of proving the

(continuedP)
N.T.(Penalty) at 95-96. “The trial court’s actions made an objection unnecessary,”
argues Appellant, Brief of Appellant at 81, but this cannot be so where he now argues
that the proper remedy would have consisted of a mistrial and a new sentencing
hearing, which clearly did not occur. It was, therefore, incumbent upon Appellant to
voice a specific and timely objection to this effect in order to preserve the issue he now
raises; he failed to do so. As the court’s admonition, moreover, did not prevent him
from lodging a prejudice objection, the application of waiver doctrine is appropriate.

[J-25-2014] - 61
existence of all applicable aggravating circumstances beyond a reasonable doubt. 42

Pa.C.S. § 9711(c)(1)(iii); Commonwealth v. Perez, 93 A.3d 829, 842 (Pa. 2014). The

evidence sufficiently established that all three murder victims were police officers killed

in the performance of their duties, in satisfaction of Section 9711(d)(1), and that

Appellant was convicted of all three murders committed in the same criminal episode,

satisfying the aggravating circumstance at Section 9711(d)(11). See Commonwealth v.

Hairston, 985 A.2d 804, 809 (Pa. 2009) (aggravating circumstance applies if defendant

murders two or more people in the same criminal episode). Finally, ample testimony

established the Section 9711(d)(7) circumstance that Appellant created a grave risk of

death to other persons besides the victim, including multiple other police officers on the

scene, and in particular Officer McManaway, who took on heavy gunfire and sustained

a shrapnel wound to the face and a direct gunshot wound to the hand as he attempted

to save the life of Officer Eric Kelly.

Additionally, the sentence complies with the statutory mandate for the imposition

of a sentence of death where one or more aggravating circumstances are found to

outweigh any mitigating circumstances. 42 Pa.C.S. § 9711(c)(1)(iv). The record shows

that the jury balanced three aggravating circumstances against two statutory mitigating

circumstances and determined that the aggravating circumstances outweighed the

mitigating circumstances. Therefore, there exists no ground to vacate the sentence

[J-25-2014] - 62
pursuant to 42 Pa.C.S. § 9711(h)(3)(i). Accordingly, we affirm Appellant’s convictions

and sentences of death.20

Mr. Justice Eakin, former Chief Justice Castille and former Justice McCaffery did
not participate in the decision of this case.

Mr. Justice Baer and Madame Justice Todd join the opinion.

Mr. Chief Justice Saylor files a concurring opinion.

20
The Prothonotary of the Supreme Court is directed to transmit the complete record of
this case to the Governor of Pennsylvania. See 42 Pa.C.S. § 9711(i).

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