Commonwealth Of Pa. v. Flor

Decision Date22 July 2010
Citation998 A.2d 606
PartiesCOMMONWEALTH of Pennsylvania, Appelleev.Robert Anthony FLOR, Appellant.
CourtPennsylvania Supreme Court






Ann P. Russavage-Faust, Bucks County Defender's Office, Christa Schott, Doylestown, for Robert Anthony Flor.

Michelle Ann Henry, Bucks County District Attorney's Office, Amy Zapp, Harrisburg, Holly Elizabeth Smith, Stephen B. Harris, Warrington, for Commonwealth of Pennsylvania.



Justice McCAFFERY.

Robert Anthony Flor (Appellant) challenges on direct appeal his judgment of sentence of death for the first-degree murder of a police officer in a hospital emergency room. Appellant also challenges the legality of his sentence for ten counts of recklessly endangering another person, which arose from the same criminal episode. We affirm Appellant's judgment of sentence of death, but vacate his sentence for the counts of recklessly endangering another person, and remand for resentencing on those counts.

The relevant facts of this case are as follows. On September 29, 2005, Appellant and his then-girlfriend, Patricia Kairis, had an argument at his grandmother's home, to which police responded following a 911 call. Both Appellant and Ms. Kairis had been drinking alcohol, and their argument stemmed at least partially from their recent loss of custody of their young daughter. Prior to the arrival of police, Appellant got into his vehicle and drove away with Ms. Kairis in the passenger seat. As Appellant was driving, he repeatedly struck Ms. Kairis, who unsuccessfully attempted to escape from the vehicle.

Joseph Carcaci, an off-duty state trooper, stopped Appellant's car after he observed Appellant driving erratically, recklessly, and at high speed while repeatedly assaulting his female passenger. Officer Brian Gregg, of the Newtown Borough Police Department, arrived on the scene to assist Trooper Carcaci shortly after the vehicle stop. The officers arrested Appellant, handcuffed him, placed him in the back of a patrol car, and drove him to the police station. By this time, Officer James Joseph Warunek, also of the Newtown Borough Police Department, had arrived at the station to assist Officer Gregg.

Detecting an odor of alcohol on Appellant's breath and believing that Appellant had been driving under the influence of alcohol, Officers Gregg and Warunek transported Appellant to St. Mary Medical Center in Langhorne for collection of blood and urine samples for testing. Appellant was calm and cooperative, conversing with the officers and with the emergency room personnel. Officer Warunek then accompanied Appellant to a lavatory in the emergency room in order to obtain his urine sample. After Appellant gave Officer Warunek the urine sample, the officer started to re-handcuff Appellant, at which time Appellant suddenly grabbed the officer's gun out of its holster and immediately shot Officer Warunek in the chest at close range. When Officer Gregg ran to assist, Appellant shot him in the abdomen. Appellant also shot Joseph Epp, an emergency medical technician on duty at the medical center. At some point during this initial gunfire, one of the bullets also struck Appellant's own hand. Appellant then walked to the spot where Officer Gregg was lying wounded on the floor, and fired the gun twice at close range into the officer's head. Finally, Appellant returned to Officer Warunek, who was also lying on the floor, pointed the gun at the officer and pulled the trigger; however, by this time there were no more bullets in the gun.

Appellant ran from the scene, leaving a trail of blood, but shortly thereafter police found him lying in a vehicle parked in the hospital garage. They re-apprehended him and returned him to the emergency room for treatment of his hand injury. During his re-apprehension and medical treatment, Appellant acted in a threatening, hostile, and verbally abusive manner toward hospital and law enforcement personnel, and he stated that he shot the officers, who, he said, “got what they fucking deserved.” Notes of Testimony (“N.T.”),1 11/9/06, at 182, 189.

Officer Gregg died almost immediately from massive brain injury caused by the gunshots to his head. Officer Warunek remained in the hospital for two days and subsequently underwent surgery to remove the bullet from his chest. Mr. Epp was unconscious for approximately two days, spent a total of six days in the hospital, experienced excruciating pain, and underwent five surgeries to repair extensive damage to his shoulder and collarbone.

The Commonwealth filed a criminal complaint and then an amended complaint, charging Appellant with murder in the first-degree as well as numerous other offenses, including two counts of attempted murder, multiple counts of aggravated assault and robbery, two counts of terroristic threats, ten counts of recklessly endangering another person, escape, former convict not to possess a firearm, simple assault, unlawful restraint, driving under the influence of alcohol, resisting arrest, and disarming a law enforcement officer. On December 1, 2005, the Commonwealth filed notice of intent to seek the death penalty, and the following day, Appellant entered a plea of not guilty to all charges.

On September 15, 2006, Appellant filed a petition for evaluation of competency, alleging that he was suffering from a mental illness that rendered him unable to assist in his own defense. After a competency hearing on October 13, 2006, at which three expert witnesses testified for the defense and one expert witness testified for the Commonwealth, the court found Appellant competent to stand trial, outlining in detail its reasons for the decision. N.T. Competency Hearing, 10/13/06, at 147-55.

On October 23, 2006, Appellant withdrew his previously entered pleas of not guilty to all the charges and entered pleas of guilty to first-degree murder and of nolo contendre to thirty other counts. The court then conducted a lengthy penalty phase hearing before a jury on the murder conviction, following which, on November 17, 2006, the jury found four aggravating circumstances and no mitigating circumstances and accordingly returned a sentence of death. See 42 Pa.C.S. § 9711(c)(1)(iv). The aggravating circumstances that the jury found applicable were the following: the victim was a peace officer; the defendant committed the murder during the perpetration of a felony; while committing the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim; and the defendant had a significant history of violent felony convictions.2 The court imposed the death sentence, as well as a consecutive aggregate term of imprisonment of not less than sixty-five years nor more than one hundred and thirty years for the non-capital offenses. Appellant filed post-sentence motions, which were denied by the trial court on December 1, 2006. Appellant then filed the instant direct appeal to this Court, raising eleven issues for our review. 3

Sufficiency Review

Pursuant to 42 Pa.C.S. § 9711(h)(1), a sentence of death is subject to automatic review by this Court. We must affirm the sentence of death unless we determine that (1) it was “the product of passion, prejudice or any other arbitrary factor,” or (2) “the evidence fails to support the finding of at least one aggravating circumstance specified in [42 Pa.C.S. § 9711(d) ].” 42 Pa.C.S. § 9711(h)(3). Furthermore, in all capital cases, we have self-imposed a duty to conduct an independent review of the sufficiency of the evidence to sustain a conviction for first-degree murder. See, e.g., Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307, 313 n. 4 (2008). These safeguards are not abandoned when a defendant has pled guilty to first-degree murder. See Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52, 62 (2003) (noting that the safeguards discussed supra “act to prevent the imposition of a death sentence based solely upon a defendant's proclamation of guilt”); see also Commonwealth v. Singley, 582 Pa. 5, 868 A.2d 403, 408 (2005) (in a multiple murder case where the appellant pled guilty to one count of first-degree murder, relying on the evidence presented at the guilty plea and degree of guilt and penalty phase hearings to conclude that the evidence was sufficient to establish that the appellant had intentionally stabbed his victim to death).

In order to sustain Appellant's first-degree murder plea, we must conclude that the evidence proved beyond a reasonable doubt the following three elements: (1) that Officer Gregg was unlawfully killed; (2) that Appellant is responsible for the killing; and (3) that Appellant acted with a specific intent to kill i.e., in a willful, deliberate, premeditated way. See Pruitt, supra at 313, 951 A.2d 307.

We have reviewed in detail the notes of testimony from Appellant's penalty phase hearing in order to determine if the evidence was sufficient to establish these elements. The penalty phase hearing, which was conducted before a jury, was remarkably thorough. The Commonwealth presented more than forty witnesses, including Officer Warunek; Mr. Epp; numerous patients, and their family members, who were seeking treatment at the emergency room when the shooting took place; many medical center employees who were on duty in the emergency room during the shootings; and several police officers who assisted in re-apprehending and detaining Appellant after the shootings. As summarized in the following paragraphs, the evidence in support of Appellant's guilt of the first-degree murder of Officer Gregg was not merely sufficient, but compelling.

Officer Warunek testified that, as he was attempting to re-handcuff Appellant in the emergency room after getting his urine sample, Appellant successfully...

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