Commonwealth v. Hitcho

• Decision Date: 29 September 2015
• Citation: 123 A.3d 731
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. George HITCHO Jr., Appellant.
• Court: Pennsylvania Supreme Court

123 A.3d 731

COMMONWEALTH of Pennsylvania, Appellee, v. George HITCHO Jr., Appellant.

Supreme Court of Pennsylvania.

Submitted Sept. 22, 2014.

Decided Sept. 29, 2015.

Michael Patrick Corcoran, Esq., Northampton County Public Defender's Office, Michael F. Corriere, Esq., Bethlehem, Dwight L. Danser, Esq., Easton, for George Hitcho, Jr.

John Michael Morganelli, Esq., Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.

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

OPINION

Justice STEVENS.¹

This is a direct appeal from a death sentence imposed after a jury convicted George Hitcho, Jr. (“Appellant”) of first degree murder.² At the penalty phase, the jury found one aggravating circumstance and three mitigating circumstances, unanimously determined the aggravating circumstance outweighed the mitigating circumstances, and sentenced Appellant to death. For reasons that follow, we affirm Appellant's conviction and judgment of sentence.³

The record indicates that, on August 11, 2011, at approximately 5:00 p.m., William M. Clancy, whose backyard was approximately seventy-five yards from Appellant's residence, observed Appellant driving his speeding pickup truck on an alley in front of Mr. Clancy's home. After Appellant parked his pickup truck alongside his backyard, which abutted the alley, Mr. Clancy yelled, “Slow the fuck down, asshole.” N.T. 5/14/12, jury trial, at 77. Mr. Clancy and Appellant began arguing, and after Appellant “pulled his pants down and mooned” Mr. Clancy, he went inside his residence and called 911. Id. at 79. Mr. Clancy went back outside and observed Appellant holding a two-by-four piece of lumber. With Mr. Clancy still communicating with the 911 operator, Mr. Clancy and Appellant continued to argue and Appellant again “mooned” Mr. Clancy. As Appellant angrily stalked back to his residence, he passed Robert Henninger and Todd Schaedel, who were standing in the alley.

As a result of the 911 call, Freemansburg Police Officer Robert Lasso, who was on duty and dressed in full uniform with the word “POLICE” emblazoned on the back, was dispatched to Mr. Clancy's residence, where he arrived in his marked police vehicle approximately two minutes after the neighbor dispute had ended. Officer Lasso asked Mr. Clancy for Appellant's whereabouts, and Mr. Clancy pointed up the alley in the direction of Appellant's residence. Officer Lasso drove his police vehicle to the rear of Appellant's residence, and when he disembarked, he asked Mr. Henninger for Appellant's location. Mr. Henninger responded Appellant was in his backyard, and as Officer Lasso walked toward the gate to Appellant's backyard, Mr. Henninger heard Officer Lasso call out to Appellant, “George, please talk to me, come out to talk to me.” Id. at 167. Mr. Henninger and Mr. Schaedel both heard Appellant's dogs barking, and Mr. Schaedel heard Officer Lasso instruct Appellant, “[C]ontrol your dogs.” Id. at 125, 132. Mr. Schaedel additionally heard some muffled conversation between Appellant and Officer Lasso.

Meanwhile, at some point, Officer Lasso called for back-up, and Police Chief George S. Bruneio, who was one quarter of a mile away at the police station, responded to the request. Chief Bruneio arrived at Mr. Clancy's residence within two or three minutes after receiving Officer Lasso's request for back-up, and he observed Officer Lasso's police vehicle parked near Appellant's backyard. Chief Bruneio parked his police vehicle behind Officer Lasso's police vehicle, disembarked, and as he asked Mr. Henninger and Mr. Schaedel, who were still at the scene, where Officer Lasso was located, he heard a “commotion” in Appellant's backyard. Accordingly, Chief Bruneio went over to the backyard gate.

Upon approaching the gate, Chief Bruneio noticed Officer Lasso positioned by Appellant's patio, approximately five feet from the rear door of the residence and with his back to the door. Chief Bruneio saw Officer Lasso attempting to fend off two large snarling dogs who were threatening Officer Lasso. Specifically, Chief Bruneio observed Officer Lasso, who had a taser⁴ in his left hand pointed toward the sky, kicking at the dogs. Officer Lasso's sidearm, a .40 caliber Glock, was in his holster.

Chief Bruneio drew his own sidearm, which was also a .40 caliber Glock, and entered the backyard. Intending for Officer Lasso to use his drawn taser on one of the dogs, while he was going to shoot the other dog, Chief Bruneio yelled out to Officer Lasso, “[S]hoot 'em.” Id. at 208. Immediately, before either officer took any action towards the dogs, and with Officer Lasso still pointing his taser towards the sky, “a loud shot rang out,” and Officer Lasso fell facedown to the ground, lying motionless by the patio. Id. at 210, 242. The dogs became startled and ran past Chief Bruneio, who went down on one knee and searched for the direction from which the gunshot originated. From his vantage point, Chief Bruneio was unable to see inside the house and, thus, he was unaware that Appellant was standing at the residence's rear door. Approximately twenty to thirty seconds elapsed from the time Chief Bruneio first observed Officer Lasso until the moment when Officer Lasso was shot.

Suddenly, Appellant emerged from the back door, holding a 12–gauge shotgun with the barrel pointed skywards. Appellant had his left hand on the pump of the shotgun and his other hand on the trigger. With his sidearm trained on Appellant, Chief Bruneio ordered Appellant to drop the shotgun, and Appellant replied, “[H]e's trying to get in my house.” Id. at 214. Chief Bruneio again ordered Appellant to drop the shotgun, and Appellant replied, “[H]e tried to break in my house.” Id. Chief Bruneio became “very stern,” and ordered Appellant to “drop it now.” Id. As Chief Bruneio made these commandments, he realized Appellant's shotgun had jammed after Appellant shot Officer Lasso, thus rendering the shotgun temporarily inoperable.

After the third commandment, Appellant complied and placed the shotgun on nearby steps. Chief Bruneio handcuffed Appellant and placed him in his police vehicle. Chief Bruneio then ran back to where Officer Lasso was lying motionless surrounded by a pool of blood emanating from a large shotgun wound to the base of his skull. Chief Bruneio could not detect a pulse.

Meanwhile, uniformed Bethlehem Township Police Sergeant Gregory Gotschall and Officer Robert Stametz, who had heard Officer Lasso's initial request for back-up, arrived at the scene, and Chief Bruneio told them, “It's too late. He shot Robert. Robert's dead.” Id. at 260. Sergeant Gotschall observed Officer Lasso's body on the ground, unsuccessfully attempted to find a pulse, and then asked Chief Bruneio where the shooter was located. Chief Bruneio informed the officers the shooter was in custody in the rear of his police vehicle.

Sergeant Gotschall instructed Officer Stametz to “pat-down” Appellant for weapons, and as he was preparing to do so, Officer Stametz noticed there was blood on Appellant's hands and the handcuffs. Because he did not have gloves with him, Officer Stametz asked another responding officer, Lower Saucon Township Police Officer Robert Winters, to pat-down Appellant, and Officer Stametz left to assist Sergeant Gotschall with securing Appellant's residence. As Officer Winters patted down Appellant, Bethlehem Police Officer Richard Hoffman held Appellant. The pat-down did not reveal any contraband; however, after it was completed, and as Officer Hoffman was placing Appellant into the police vehicle, Appellant spontaneously stated, “I'm tired of that son of a bitch always coming on my property and trespassing. I know my rights. I was defending my property. He was trying to come in my back door.” Id. at 298–99. Officer Hoffman said nothing in response, closed the police vehicle door, and ran to attempt to render aid to Officer Lasso.

After Officer Lasso was removed from the scene by ambulance personnel, the responding officers were huddled around the scene looking at each other in disbelief. Realizing no one was guarding Appellant, Officer Hoffman sprinted to the vehicle and when he looked through the window, Appellant gave him “a thousand yard stare” indicative of someone who is very agitated. Id. at 301.

Subsequently, at approximately 5:27 p.m., Pennsylvania State Police troopers, including Troopers Seth J. Kelly and Dennis Sims, Jr. arrived on the scene. At approximately 6:32 p.m., the troopers removed Appellant from Chief Bruneio's police vehicle and placed him in the rear seat of a Pennsylvania State Police cruiser for purposes of transporting him to the police station. As Trooper Kelly sat beside Appellant in the rear seat, Trooper Sims advised Appellant he was being subjected to audio and video recording, and he turned the camera so that it would face Appellant. Appellant spontaneously stated, “Hey, I'm on candid camera.” Id. at 314; N.T. 5/15/12, jury trial, at 125. The troopers then transported Appellant to the police barracks.

Troopers subsequently collected the clothes, which Appellant was wearing, and after securing a search warrant, at 10:39 p.m., troopers searched Appellant's residence, taking photographs and seizing various items, including ballistic vests, numerous firearms, ammunition, marijuana plants, and drug paraphernalia.

Appellant was charged with first degree murder, and the Commonwealth provided notice of its intention to seek imposition of the death penalty. Appellant filed pre-trial motions, including motions for a change of venue and/or venire, to suppress evidence seized by the police, and to suppress statements Appellant made to the police. On January 27, 2012, the trial court held a hearing, at which the Commonwealth presented the testimony of seven police officers, and in an opinion and order filed on April 20, 2012, the trial court substantially denied Appellant's motions.⁵ Moreover, Appellant filed several motions in limine challenging Pennsylvania's capital...