Commonwealth v. Frein, E., Aplt.

                                  [J-37-2018]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    COMMONWEALTH OF PENNSYLVANIA,               :   No. 745 CAP
                                                :
                      Appellee                  :   Appeal from the Judgment of
                                                :   Sentence entered on April 27, 2017 in
                                                :   the Court of Common Pleas, Pike
               v.                               :   County, Criminal Division at No. CP-
                                                :   52-CR-0000019-2015
                                                :
    ERIC MATTHEW FREIN,                         :   ARGUED: May 17, 2018
                                                :
                      Appellant                 :


                                         OPINION


JUSTICE TODD                                                   DECIDED: April 26, 2019
        Eric Matthew Frein appeals the judgment of sentence of death imposed by the

Pike County Court of Common Pleas following his convictions by a jury of first-degree

murder,1 first-degree criminal homicide of a law enforcement officer,2 criminal attempt to

commit first-degree murder and criminal homicide of a law enforcement officer,3 assault

of a law enforcement officer in the first degree,4 terrorism,5 weapons of mass destruction,6

discharge of a firearm into an occupied structure,7 possessing instruments of crime,8 and


1 18 Pa.C.S. § 2502(a).
2 Id. § 2507(a).
3 Id. § 901(a).
4 Id. § 2702.1(a).
5 Id. § 2717.
6 Id. § 2716(a).
7 Id. § 2707.1(a).
8 Id. § 907(a).
recklessly endangering another person.9        For the reasons that follow, we affirm

Appellant’s judgment of sentence.

         At approximately 10:45 p.m. on Friday, September 12, 2014, shortly before

completing his 3:00 p.m. to 11:00 p.m. shift, Pennsylvania State Police Corporal Bryon K.

Dickson, II entered the Blooming Grove police barracks in Pike County through the public

lobby and went into his office. After several minutes, he left his office and entered the

communications room located near the front of the barracks and wished Nicole Palmer,

a police communications operator who was just beginning her shift, a good night.

Corporal Dickson then exited the communications room and walked through the lobby on

his way out of the barracks. Palmer, who had answered a telephone call, heard a gunshot

and looked out the communications room window, where she observed Corporal Dickson

lying motionless on the concrete just outside the lobby doors. Palmer immediately

entered the lobby, at which time she heard another gunshot. She opened the lobby doors

and asked Corporal Dickson what had happened, and he mouthed the words “help me.”

N.T. Trial, 4/4/17, at 119. Palmer retreated into the lobby and attempted to call 911. She

opened the lobby doors and again asked Corporal Dickson what had happened, and he

stated, “I’ve been shot.    Drag me inside.”     Id. at 121.   Palmer then saw Police

Communications Operator Christine Donahue in the communications room and instructed

her to call 911.

         Around that same time, Trooper Alex Douglass, who was scheduled to work the

11:00 p.m. to 7:00 a.m. shift beginning that night, arrived at the Blooming Grove police

barracks in a marked police vehicle along with three other state troopers. While the other

troopers entered the barracks, Trooper Douglass took a gym bag to his personal vehicle

in the parking lot. As he placed the bag in his car, he heard a loud noise. He looked


9   Id. § 2705.

                                     [J-37-2018] - 2
towards the front of the barracks and observed Corporal Dickson lying on the ground. He

drew his weapon and approached Corporal Dickson.             As Trooper Douglass reached

Trooper Dickson, Trooper Douglass was shot in the hip. Trooper Douglass successfully

pushed his way into the barracks, where he attempted to crawl out of view. Eventually,

two other troopers dragged Trooper Douglass from the lobby to the interior of the

barracks. Trooper Douglass subsequently was transported to a nearby school, where a

helicopter was waiting to take him to the hospital; he survived.10

       In order to reach Corporal Dickson, other officers who were present in the barracks

drove a patrol vehicle from the back of the barracks to the front. Utilizing ballistic shields,

officers were able to drag Corporal Dickson into the barracks, where they began CPR

and attempted to use an AED. Upon their arrival, EMS workers attended to Corporal

Dickson for a short time, but their efforts were unsuccessful and he was pronounced dead.

The autopsy of Corporal Dickson indicated that he suffered two gunshot wounds, one in

his upper right chest, and a second in his shoulder. Each of the wounds was fatal.

       With the identity and the whereabouts of the shooter still unknown, members of

the Forensic Services Unit (“FSU”) of the Pennsylvania State Police arrived at the

Blooming Grove police barracks at approximately 2:00 a.m. on Saturday, September 13,

2014 to process the crime scene. They recovered, inter alia, three projectiles from the

front of the barracks, including the two bullets that killed Corporal Dickson and the one

that severely injured Trooper Douglass.       In a wooded area across the street from the

police barracks, the FSU recovered four empty .308 caliber rifle casings with the head


10  As a result of his injuries, Trooper Douglass underwent numerous surgeries. He
testified at trial that he undergoes physical and aqua-therapy for 3½ hours a day, four
days each week; he can no longer run; he experiences a tingling and/or burning sensation
whenever he goes to the bathroom, as well as nausea-inducing pain; he treats with seven
different doctors; and there is a possibility that he may need to have his lower leg
amputated. N.T. Trial, 4/20/17, at 131-33.



                                       [J-37-2018] - 3
stamp “AFF 88.”11 In this same wooded area, the FSU observed one tree that appeared

to have been hit by a bullet, and another tree in which a bullet was lodged. Using a laser,

the FSU determined that the projectiles found at the barracks and removed from the tree

were fired from the area in the woods where the casings were found. N.T. Trial, 4/5/17,

at 175-78.

          On Sunday, September 14, 2014, a man walking his dog in the area discovered a

green Jeep Cherokee Sport vehicle stuck in a retaining pond off Route 402, approximately

2 to 3 miles from the Blooming Grove police barracks. When he looked inside the Jeep,

he observed an open gun case and various military supplies, and he notified the state

police.     During a search of the vehicle, the police recovered the following items: a

registration card identifying the owners as E. Michael and Deborah L. Frein, Appellant’s

father and mother; an invoice and receipt for classes at Northampton County Community

College with Appellant’s name and home address; an expired Pennsylvania driver’s

license issued to Appellant; a tube of camouflage paint; a pack of Drina brand cigarettes;

a small “mini mag” flashlight; a brown paper bag containing 5 packs of cigarettes; an

empty water bottle; two cigarette butts, one of which later was determined to contain

Appellant’s DNA; and a wallet with a chain attached to a key ring. The wallet contained,

inter alia, a current Pennsylvania driver’s license issued to Appellant; Northampton

Community College and East Stroudsburg University photo I.D. cards issued to Appellant;

and a credit card and social security card with Appellant’s name. On the floor in the back

of the vehicle where the vehicle jack is located, police discovered two empty rifle casings

with the head stamp “AFF 88.”      Police also recovered from the vehicle a faded black

hooded sweatshirt; a shooting range permit issued to Appellant; a black rifle case; and a


11 “AFF” stands for Ammunition Factory Footscray, Footscray being a suburb of
Melbourne, Australia, and “88” referring to the year in which the ammunition was
produced, i.e., 1988. N.T. Trial, 4/13/17, at 136.

                                      [J-37-2018] - 4
green military satchel with handwriting on the outside. Additionally, a search of the area

around the retaining pond revealed an AK-47 rifle, which contained a magazine with 27

live rounds and one round in the chamber, partially hidden under a pile of leaves, in close

proximity to a camouflage backpack. On top of the backpack were two magazines of

ammunition.

      On September 15, 2014, police conducted a search of the residence in which

Appellant lived with his parents. In the garage, police discovered in a workbench drawer

expended rounds of ammunition with the head stamp AFF 88. From Appellant’s second

floor bedroom, police recovered, inter alia, a variety of guns; magazines of ammunition;

ammunition boxes; binoculars; a radio; a box and receipt for night vision goggles; a book

titled Sniper Training and Employment; an IBM Think Pad; a pack of Drina brand

cigarettes; a plastic bag containing lead piping and caps, materials used in making

bombs; a yellow notepad with a handwritten list of survival supplies and types of

ammunition; and a handwritten list of “Things to Do.”12 A massive manhunt for Appellant

ensued.

      On September 29, 2014, FBI Special Agent Matthew Fontaine, who was assisting

in the search for Appellant, was advised there had been a cell phone “ping” in an area

near Canadensis, Pennsylvania, that had not yet been cleared by members of the FBI

Swat Team. Agent Fontaine ultimately discovered a campsite where there were various

items covered in camouflage, including: clothing; a checkbook with Appellant’s name;

size 13 hiking boots (Appellant’s size); .308 caliber ammunition stamped “AFF 88”; and

two improvised explosive devices (“IEDs”).13 Near the campsite, in an area described as


12 The “Things to Do” list included, inter alia, the following tasks: “Clean Jeep; Inspect
Cache; Repack, Re-assess equipment; Clean guns; Re-sight, affirm zero; Re-assess
outfit (Green); Clean Room.” Commonwealth Exhibit 187. It also contained a list of
additional survival items and weaponry.
13 The IEDs were the basis for the charge of possessing instruments of mass destruction.



                                     [J-37-2018] - 5
a bear cave, agents located a white trash bag containing, inter alia, empty water bottles.

An agent removed one of the empty water bottles, labeled Nestle Pure Life, from the bag,

but left the remainder of the bag intact in an effort to have the area appear undisturbed in

case Appellant returned.

       The following day, another agent returned to the same area and collected, inter

alia, various food items; toiletries; clothing; camping gear; and a folding shovel. He also

collected the aforementioned white trash bag, which contained three crumpled pages torn

from a small spiral notebook. Those pages read as follows:14

              Made it to camp tues.
              Sept 16th

              Fri Sept 12th
              Got a shot around 11 pm and took it. He dropped and yelled.
              I was surprised at how quick I took a follow up shot on his
              head/neck area. He was still and quiet after. A lady was in
              the door way on her cell phone looking at him. Another cop
              approached the one I just shot. As he went to kneel I took a
              shot at him and jumped in the door. His legs were visible and
              still.
              ________________________________________________

              I ran back to the jeep. lots of cops were driving up and down
              402. No attention was given to the woods.

              I made maybe half a mile from the GL road and hit a road
              block. I didn’t expect one so soon. It was only 15-20 min. I
              did a K turn ¼ mile from them and pulled into a development
              I knew had unfinished acess road. no one gave chase.
              ________________________________________________

              Hearing helos I just used my marker lights missed the trail
              around a run off pool and drove strait into it.
              Disaster!
              Made half attemp to stash AK and ran. Spent all night tracking
              SW towards a stream that went under 84.

14 We have quoted these handwritten notes, which are at times difficult to read and
contain some grammatical and spelling errors, to the best of our ability and exactly as
they appear in the record.

                                      [J-37-2018] - 6
Commonwealth Exhibit Nos. 227-229.

       Despite the involvement of the Pennsylvania, New York, New Jersey, Virginia,

Maryland, and Connecticut State Police Departments, as well as local police

departments, the FBI, the Bureau of Alcohol Tobacco and Firearms, Homeland Security,

and the United States Marshals, Appellant remained at large until October 30, 2014, when

a team of United States Marshals located him approximately 30 miles from his home, on

abandoned resort property on which sat an old airplane hangar, and took him into

custody. Shortly after being captured, Appellant asked one of the marshals, “Can I tell

you where the guns are located inside the hangar?” N.T. Trial, 4/10/17, at 79. The

marshal answered in the affirmative, and Appellant described the location of two rifles

and one loaded pistol inside the hangar. Appellant also told the marshals that there was

ammunition in the hangar. Id. at 84-85.

       During a subsequent search of the airplane hangar, state police discovered the

rifles, one of which was a Norinco semiautomatic rifle, and a pistol, as well as the following

items: a scope; a notebook; a bayonet; a compass; camouflage mesh; a camouflage tarp;

a radio receiver; pencils; a map of Route 402; notes; a miner’s light; a brown sheet; green

material; a gun cleaning kit; binoculars; a laptop computer; computer thumb drives; a solar

panel power charging kit; maps; a magazine clip and bullets; ammunition; pipe; a

flashlight; gloves; scissors; batteries; food; water; and toiletries. They also discovered

several papers with handwritten sighting distances, calculations for different range

settings based on distance, wind, bullet weight, and other conditions, and a hand-drawn

map of the area of Route 402 in relation to the Blooming Grove barracks. Finally, the

police recovered a small memo pad with a black cover allegedly detailing Appellant’s

activities following the shootings, which read as follows:

              Had to run. Jeep got stuck. ditched the Kalashnikov and went
              on foot.


                                       [J-37-2018] - 7
-tracked SW to stream that looked to go under 84.
+ Sept 13 Sat day 2
-Made the stream  Sun up. Got H2O, C1 worked.
-Rained all day and cold.
-Made bridge on Egypt Rd. tried to wait for sundown but too
cold.
-Got lost in development. kept moving S. crossed deep
stream.
-took PL trail up to 84.
-too much activity to cross.
Could not find stream access.
+ Sept 14 Sun. day 3
-Slept all day in abandoned camper. Mattress and 2 blankets
-Crossed 84
-No activity so track to PL trail
-Got to high knob before too cold. Made small fire to dry
things.
+ Sept 15 Mon. day 4
-tracked around high Knob.
-crossed Bushkill. camp fire again.
+ Sept 16 tues day 5
-stash was unmolested. Ate for first time in 3 days. Slept
well.
+ Sept 17 Weds 6 days
-Moved deeper in. Built shelter, got cleaned up.
+ Sept 18 thurs 7 days
-turned cell on for 10-15 sec. Rang home twice to let them
know I’m still alive. Got a text indicating I am suspect.
-Helos & planes around that evening.
+ Sept 19 Fri. 8
-Patrol went by  100 m, was not spotted. they seem stuck
to trails.
+ 20 Sept Sat 9
-Found a news radio station finally. They called me a
survivalist… HA! Catchy phrase I guess.
-200 police shelter in place for Pike and Barrett… shelter in
place for protection from spooked cops.
+ Sept 21 Sun 10
-Shelter in place lifted.
-they found the kalashnikov.
+ Sept 

-Made it across Broadhead right under helos. Went in over
my head test water. Could only move till 10ish before I had
to stop and change out of wet clothes b/c it was 38f.
+ Sept 23 tues 12
-Waited all day for clothes & boots to dry.


                       [J-37-2018] - 8
-First part went well. Second not so much, but I made it.
+ Sept 24 Weds 13
-Got a bath!
+Sept 25 thurs 14
-Slept like a human first time in 2 weeks
-Got buckets to catch rain.
-Spent hour listening to music on laptop. Classical made me
cry. Mr. Prime (?) made me laugh both much needed.
-Police activity still in canadensis
+ Sept 26 Fri - 15
-Shaved & did laundry.
+ Sept 27 Sat. 16
-they searched Buckhill Inn.
-Some noisy kids came by at 5pm. Were only in front room
for few min then left.
+ Sept 28 Sun. 17
-Nothing
+ Sept 29 Mon 18
-Still 5 mile zone  Snowhill
-took a bath
-Gave rifle & pistol good cleaning
-No idea if scope is still zeroed after all this time.
+ 30 Sept tues 19
-Fasted all day except pipe tobacco & coffee.
-the found the stash.
-they think there are pipe bomb around…that is not the case
but it should slow them down.
+ Oct 1 Weds 20
-1060 AM Phili claims there are 1000 searchers.
-A snooper came by  3 pm just taking pictures in front part
-Helos close after dark. traveling not searching.
+ Oct 2 thurs 21
-Hunting closed in Barrett & Pike.
-2 cops fell from tree stand.
-Had to flown to hospital.
That is what the helos last night must have been for.
-About to head out on recon. nervous.
+ Oct 4 Sat 23
-Heading back. Heart broken. No respit. Recon went well
but bad news… still too much activity. this massive search
cannot last forever.
-Made it back in good time
+ Oct 5 Sun 24
-Slept through morning
-found a spigot & a cozy place to plug in laptop.
+ Oct 

                      [J-37-2018] - 9
-Search in 1 mile zone of Mill creek. Recon passed through
there, dog might have caught my scent.
-they are bugging Justin now.
+ Oct 7 tues 26
-Got a bath
-Going to try fasting today.
-Only lasted till 9 pm too cold had to eat something hot.
+ Oct 8 weds 27
-Did laundry
+ Oct 9 thurs. 28
-Found case of chocolate finally! Hid it too well. Should add
calories to my diet.
+ Oct 10 Fri 29
-No mention of me on morning news. No news is good news
I hope.
+ Oct 11 Sat. 30
-30 days. A lot longer than I expected to last.
-lord Jesus Christ Son of God have mercy on me a sinner-
[Indecipherable sentences]
I have never been camping for more than 3 days
+ Oct 12 Sun 31
-Got a bath. & shaved
+ Oct 13 Mon 32 Columbus day I think
-No news
+ Oct 14 tues 33
-No news
-Weekend house who spigot I have been using must have
shut it off for winter. Now getting H2O will be far more
risky… or I could place trust in rain water.
+ Oct 15 Weds 34
-trick or treating and halloween parade cancelled in Barrett.
It is surprising what the people are letting them get away
with.
+ Oct 16 thurs 35
-A state senator is coming to review the investigating and
manhunt. They are probably struggling to show examples of
progress with so much tax payer $ spent.
+ Oct 17 Fri 36
-Got a bath & did laundry.
+ Oct 18 Sat 37
-Got on the internet. No luck yet contacting help. Read
some articles, most of it bullshit. Cops seem to be chasing
bears that house wives think are me.
-there is a coyote around here, or might be a coy-dog. I only
see him out night.
He calls out most nights  11 pm.



                      [J-37-2018] - 10
             + Oct 19 Sun 38
             -Gonna try to get food tomorrow night… Good chance I’ll get
             caught doing so.
             + Oct 

             Going for food tonight. I only have beans left. Shop lifting is
             probably less risky than breaking in some place. Wish I had
             stashed a pair of jeans. I could keep waiting to contact help,
             but there is little guarantee there.
             -Its suppose to rain tonight into Fri. Found a case of canned
             hot chocolate with that & the beans I should hold till Fri.
             Cops are searching around Swiftwater anyway.
             + 21 Oct Tues 40
             -Another false sighting near Swiftwater
             + 22 Oct Weds 41
             -Nothing
             + 23 Oct thurs 42
             -Nothing
             + 24 Oct. Fri. 43
             -Nothing
             + 25 Oct Sat. 44
             -Found 2 packages of crackers
             now I have something to add to the beans again
             + 26 Oct Sun 45
             -OJ--- I broke into a place
             was careful not to damage anything.
             Just took some rice, ramen, oil & a bottle of Korean spirits.
             lord have mercy, Christ have mercy.
             + Oct 

             -Nothing.
             +Oct 28 tues 47
             -Nothing
             + Oct. 29 Weds 48
             -took a 10 mile hike. Very little was accomplished. All wifi
             needs a code. And I don’t have the tools to break into places
             without smashing glass.
Commonwealth Exhibits 328-344.

      After being taken into custody on October 30th, Appellant was transported to the

Blooming Grove police barracks, where he was placed in an interrogation room at

approximately 8:23 p.m. A medic was brought in to attend to a cut on Appellant’s face.

Shortly thereafter, Pennsylvania Police Corporal Benjamin Clark and Trooper Michael

Mulvey entered the interrogation room. Corporal Clark removed Appellant’s handcuffs,



                                    [J-37-2018] - 11
offered him coffee and cigarettes, and made small talk with Appellant before reading him

his Miranda15 rights at approximately 8:36 p.m. When Corporal Clark asked Appellant if

he wanted to waive those rights, Appellant asked if he could read the written waiver form.

After reading the waiver form, Appellant refused to sign it, and told the officers that he

was not willing to answer questions; however, he told them he would tell them the location

of a rifle he had buried on wooded game lands near Route 447 because he did not want

any children to find it.16 The officers questioned Appellant about the buried rifle, and then

asked if there was anything else that might cause harm to law enforcement or citizens if

it was discovered. Appellant repeatedly assured the officers there was not. As we

discuss in more detail below, the officers then began to question Appellant about his

activities over the last several weeks, about the publicity surrounding the crimes, and,

most significantly, his motives for the crime.      Although Appellant never offered any

explanation for his actions, he made several statements during which he implicitly, if not

expressly, admitted his guilt, including that he regretted his actions; that he acted alone;

and that he didn’t know why he did what he did. The entire interview, beginning from the

time Appellant entered the interrogation room, lasted approximately four hours and was

recorded on videotape.17

       At approximately 8:48 p.m., while Appellant was in the process of being

interviewed, Attorney James Swetz called the Blooming Grove barracks and advised the

dispatcher that he had been retained by Appellant’s family and that he was coming to the

barracks to see Appellant. The dispatch provided Attorney Swetz with an alternate phone


15 Miranda v. Arizona, 

 (1966).
16 At trial, Corporal Clark testified that, despite the use of metal detectors and dogs, police
were unable to locate a buried rifle in the area identified by Appellant. N.T. Trial, 4/11/17,
at 26.
17 The videotape is 4½ hours long, and includes the search of Appellant’s person and the

inventory of his clothing after the interview was completed. There is no written transcript
of the interview.

                                      [J-37-2018] - 12
number, and, upon calling that number, Attorney Swetz was told that he would not be

permitted to enter the barracks to see Appellant because Appellant had not requested

counsel. N.T. Suppression Hearing, 4/3/17, at 41. Despite this information, Attorney

Swetz went to the barracks, but was denied entry. He made another call to the barracks,

and, shortly thereafter, two plainclothes troopers came out of the barracks and advised

Attorney Swetz that the District Attorney, Ray Tonkin, would get back to him. Attorney

Swetz eventually left the police barracks without seeing Appellant.             Attorney Swetz

subsequently received a call from District Attorney Tonkin at 1:13 a.m. the following

morning.18 At approximately 1:30 a.m. on the morning of October 31, 2014, Trooper Sean

Doran was called to the Blooming Grove police barracks to collect a DNA sample from

Appellant pursuant to a warrant.

         On January 29, 2015, Attorneys Michael Weinstein and William Ruzzo were

appointed to represent Appellant. On February 16, 2016, counsel filed a motion to

suppress the statements Appellant made during his interview with Corporal Clark and

Trooper Mulvey on October 30, 2014, on the basis that they were obtained in violation of

his right to remain silent under Miranda, and in violation of his right to counsel under the

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I,

Section 9 of the Pennsylvania Constitution. Following a hearing, the trial court denied the

motion. A jury trial commenced on April 5, 2017. Among the various witnesses presented

by the Commonwealth, Corporal Joseph M. Gober, a member of the Pennsylvania State

Police Firearms and Toolmarks Unit at the Bureau of Forensic Services, testified that he

examined the four empty shell casings found in the woods across from the Blooming

Grove barracks, the bullets found inside the barracks, and the bullet recovered from the

tree in the woods across from the barracks, and determined that they were fired from the


18   Neither the briefs, nor the trial transcripts, reveal the substance of this phone call.

                                         [J-37-2018] - 13
Norinco rifle that was recovered from inside the airplane hangar. N.T. Trial, 4/13/17, at

158-81. Corporal Gober further testified that the empty shell casings stamped “AFF 88”

which were recovered from Appellant’s jeep also were discharged from the Norinco rifle.

Id. at 180.

         Lauren Force, an expert in DNA analysis, testified that she examined DNA

evidence obtained from several items collected during the search for, and capture of,

Appellant, including the Nestle Pure Life water bottle discovered in the trash bag near the

campsite; a cigarette butt and the black hooded sweatshirt found in the Jeep; and the

Norinco rifle and the ammunition magazine recovered from the airplane hangar. She

determined that the major component of DNA samples obtained from the aforementioned

items matched the DNA of Appellant. Id. at 96-100.

         Corporal Mark Gardner, an expert in document examination, testified that he

compared known handwriting samples of Appellant with the handwriting on the three

crumpled notebook pages that were found inside the white trash bag discovered by police

in the bear cave near the campsite on September 30, 2014. Corporal Garner stated that,

based on his analysis, he “could come to no other conclusion than the authorship was the

same and that [Appellant] did write these questioned papers.” N.T. Trial, 4/13/17, at 27.

Additionally, Julia Barker, an expert in the chemical analysis of documents, testified that

the three notebook pages found in the trash bag were “chemically indistinguishable” from

the pages of the small memo pad with the black cover found in the airplane hangar. Id.

at 46.

         The Commonwealth also presented the testimony of retired Pennsylvania State

Police Corporal Derek Fozard, who examined the laptop computer recovered from the

airplane hangar. Corporal Fozard testified that forensic analysis of the laptop computer,

the registered owner of which was Appellant, revealed internet searches for police




                                     [J-37-2018] - 14
departments in areas surrounding the state police barracks at Blooming Grove,

conducted on September 9, 2014, three days before the shooting, N.T. Trial, 4/17/17, at

17, and internet searches concerning “officer down” calls that were conducted on

September 12, 2014, prior to the time Corporal Dickson and Trooper Douglass were shot.

Id. at 20-23. The forensic analysis also revealed internet searches for “Blooming Grove”

on October 19, 2014; instructions on how to delete a Facebook page on October 27,

2014; and numerous searches for “Eric Frein” on October 28 and 29, 2014. Id. at 24.

There was also evidence of an internet search for the name “Bryon Dickson” on October

29, 2014, as well as searches for “wanted poster Eric Frein” and “Eric Frein support” on

the same day. Id. at 26-27. Finally, Corporal Fozard testified that, on September 12,

2014, there was a search of coordinates which corresponded to the location of the

Blooming Grove barracks, and he found a document file dated October 6, 2014 that

contained a letter written by Appellant to his parents.19 Id. at 32-34, 61-62, 77.

       In addition to the above evidence, the entire post-arrest videotaped interview of

Appellant by police was played for the jury and entered into evidence, over defense




19 The letter read, in part:
Dear Mom and Dad,
       Our nation is far from what it was and what it should be. I have seen so many
depressing changes made in my time that I cannot image what it must be like for you.
There is so much wrong and on so many levels only passing through the crucible of
another revolution can get us back the liberties we once had. I do not pretend to know
what that revolution will look like or even if it would be successful.
       Tension is high at the moment and the time seems right for a spark to ignite a fire
in the hearts of men. What I have done has not been done before and it felt like it was
worth a try.
         …
       I do not have a death wish but I know the odds. I tried my best to do this thing
without getting identified, but if you are reading this then I was not successful. If I am still
alive and free know that I will do my best to remain as such. And as time goes by, if
circumstances change, if my spark hit good tinder, then I may be able to return one day.
Commonwealth Exhibit 505.

                                       [J-37-2018] - 15
counsel’s objection. On April 19, 2017, Appellant was convicted of the aforementioned

charges.

       At the penalty phase of Appellant’s trial, the Commonwealth presented, inter alia,

the testimony of 10 victim impact witnesses, including Corporal Dickson’s wife, sister,

mother, and father, and Trooper Douglass; 32 photographs of Corporal Dickson and his

family; a video of Corporal Dickson and his family; and a video of Corporal Dickson’s

graduation from the Pennsylvania State Police Academy.             The jury found several

aggravating circumstances, including (1) the victim was a police officer killed in the

performance of his duty, 42 Pa.C.S. § 9711(d)(1); (2) the offense was committed during

the perpetration of other felonies, id. § 9711(d)(6); (3) Appellant knowingly created a

grave risk of danger to other persons, id. § 9711(d)(7); and (4) Appellant “has been

convicted of another Federal or State offense, committed either before or at the time of

the offense at issue, for which a sentence of life imprisonment or death was imposable,”

id. § 9711(d)(10). The jury found no mitigating circumstances, and returned a sentence

of death.

       In accordance with 42 Pa.C.S. § 9711(c)(1)(iv), which requires that a trial court

impose a sentence of death where the jury finds aggravating, but no mitigating

circumstances, on April 27, 2017, the trial court imposed, inter alia, two death sentences,

one for first-degree murder, and one for first-degree murder of a law enforcement officer.

Following the denial of his post-sentence motion, Appellant filed a notice of appeal, and

the matter is now before this Court.

                             I. Sufficiency of the Evidence

       Although Appellant has not raised a claim regarding the sufficiency of the

evidence, in all capital direct appeals, this Court reviews the evidence to ensure that it is




                                       [J-37-2018] - 16
sufficient to support a first-degree murder conviction. Commonwealth v. Poplawski, 

 (Pa. 2015).

       First-degree murder is an 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. Poplawski, 

.

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

conviction, we must evaluate the entire trial record and consider all of the evidence. 

Further, we must 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.” 

 (citation omitted). Finally, the evidence must be viewed in the light most

favorable to Commonwealth as the verdict winner. 

.

       As detailed above, the Commonwealth presented at trial expert testimony that the

bullets that fatally wounded Corporal Dickson were fired from a Norinco rifle which

belonged to Appellant, and which was later recovered from the airplane hangar where

Appellant had been hiding following the shooting; indeed, upon his capture, Appellant

directed police to the location of the rifle. The expert testimony also established that

Appellant’s DNA was on the Norinco rifle.         The Commonwealth further introduced

evidence that Appellant had conducted internet searches for possible targets, including

the Blooming Grove police barracks, and response procedures for when officers are shot,

in the days leading up to the shootings of Corporal Dickson and Trooper Douglass.

Finally, the Commonwealth presented three notebook pages written by Appellant




                                      [J-37-2018] - 17
describing the shooting of Corporal Dickson, as well as a notepad detailing Appellant’s

six-week effort to avoid capture. In the case sub judice, the evidence presented by the

Commonwealth, and the reasonable inferences deduced therefrom, clearly demonstrate

that Appellant, acting with malice and the specific intent to kill, caused the death of

Corporal Dickson, thus supporting the jury’s verdict of first-degree murder.

       In conjunction with the undisputed evidence that Corporal Dickson was a

Pennsylvania State Police Officer, this same evidence also supports the jury’s verdict of

first-degree criminal homicide of a law enforcement officer.

                     II. Denial of Appellant’s Motion to Suppress

       In his first briefed issues, Appellant challenges the trial court’s denial of his motion

to suppress the statements made during his post-arrest videotaped interview with police

on two separate grounds − a violation of his right to remain silent and a violation of his

right to counsel. When reviewing the denial of a suppression motion, this Court reviews

only the suppression hearing record, and not the evidence elicited at trial. In the Interest

of L.J., 

 (Pa. 2013). Where the record supports the suppression

court’s factual findings, we are bound by those findings and may reverse only if the court’s

legal conclusions are erroneous. Poplawski, 

.

       To protect an individual's Fifth Amendment20 privilege against self-incrimination,

the United States Supreme Court has held that, before an individual in police custody

may be interrogated, he must first be informed, in clear and unequivocal terms, that he

has the right to remain silent, that anything he says can and will be used against him in

court, and that he has the right to consult with counsel and to have counsel present during

interrogation, and, if he is indigent, counsel will be appointed for him. Miranda, 384 U.S.

at 467–69. If an individual “indicates in any manner, at any time prior to or during

20The Fifth Amendment provides, in relevant part: “No person shall . . . be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V.

                                      [J-37-2018] - 18
questioning, that he wishes to remain silent, the interrogation must cease,” and any

statement taken after the person invokes his privilege “cannot be other than the product

of compulsion, subtle or otherwise.” Id. at 473-74. Further, “if the individual states that

he wants an attorney, the interrogation must cease until an attorney is present. At that

time, the individual must have an opportunity to confer with the attorney and to have him

present during any subsequent questioning.” Id. at 474. If the individual is unable to

obtain an attorney, but indicates that he wants one before speaking to police, the police

must respect the individual’s decision to remain silent. Id.

       In Michigan v. Mosley, 

 (1975), the high Court explained that it is

“[t]hrough the exercise of his option to terminate questioning” that an accused “can control

the time at which questioning occurs, the subjects discussed, and the duration of the

interrogation. The requirement that law enforcement authorities must respect a person’s

exercise of that option counteracts the coercive pressures of the custodial setting.” 

. Accordingly, the Court held that “the admissibility of statements obtained after

the person in custody has decided to remain silent depends under Miranda on whether

his ‘right to cut off questioning’ was ‘scrupulously honored.’” 

.

       In Davis v. United States, 

 (1994), the United States Supreme Court

explained that, when invoking a right to counsel under Miranda, a suspect must do so

unambiguously. 

. If a suspect makes a statement regarding the right to counsel

that is ambiguous or equivocal, the police are not required to end the interrogation, nor

are they required to ask questions designed to clarify whether the suspect is invoking his

Miranda rights. 

. In Davis, the Court concluded that the suspect’s statement,

“Maybe I should talk to a lawyer,” was not a request for counsel, and, therefore, law

enforcement agents were not required to cease questioning. 

.




                                      [J-37-2018] - 19
       Subsequently, in Berghuis v. Thompkins, 

 (2010), the Supreme Court

held that “there is no principled reason to adopt different standards for determining when

an accused has invoked the Miranda right to remain silent and the Miranda right to

counsel at issue in Davis,” as both protect the privilege against compulsory self-

incrimination by requiring an interrogation to cease when either right is invoked. 

. In Berghuis, the suspect sat silent for the first two hours and 45 minutes of a 3-hour

interrogation before he answered “yes” to a police officer’s question as to whether the

suspect prayed for God to forgive him for the shooting. The high Court held that, because

the suspect did not state that he wanted to remain silent or that he did not want to talk

with the police, he did not unambiguously invoke his right to remain silent. 

.

       Of course, an accused may waive his Miranda rights. In Edwards v. Arizona, the

high Court recognized that, “after initially being advised of his Miranda rights, the accused

may himself validly waive his rights and respond to interrogation.” 

(1981) (citing, inter alia, North Carolina v. Butler, 

 (1979)). The

Court cautioned, however, that “waivers of counsel must not only be voluntary, but must

also constitute a knowing and intelligent relinquishment or abandonment of a known right

or privilege, a matter which depends in each case ‘upon the particular facts and

circumstances surrounding that case, including the background, experience, and conduct

of the accused.’” Edwards, 

.

       The Edwards Court further reiterated:

              [this] Court has strongly indicated that additional safeguards
              are necessary when the accused asks for counsel; and we
              now hold that when an accused has invoked his right to have
              counsel present during custodial interrogation, a valid waiver
              of that right cannot be established by showing only that he
              responded to further police-initiated custodial interrogation
              even if he has been advised of his rights. We further hold that
              an accused . . . having expressed his desire to deal with the
              police only through counsel, is not subject to further


                                      [J-37-2018] - 20
               interrogation by the authorities until counsel has been made
               available to him, unless the accused himself initiates further
               communication, exchanges, or conversations with the police.

 (emphasis added, footnote omitted); see also Commonwealth v. Keaton, 

 (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). This same standard applies to an accused’s invocation of the

right to remain silent. See 

       With this background in mind, we address Appellant’s claim that Corporal Clark

and Trooper Mulvey failed to “scrupulously honor” his right to remain silent. Appellant’s

Brief at 18.    Appellant emphasizes that, after being read his Miranda rights, and

requesting permission to read the Miranda waiver form himself, he refused to sign the

form waiving his rights. Appellant then told the officers that he did not wish to talk about

any crimes, but that he would tell him where a rifle was buried in the woods, a statement

that Corporal Clark acknowledged and repeated back to Appellant. Appellant contends

that, once he invoked his right to remain silent, the officers were required to cease

questioning him about matters beyond the location of the rifle in the woods, and that the

additional questioning by the officers, which was designed to elicit information which

Appellant had already indicated he did not wish to disclose, resulted in answers obtained

by compulsion.

       In response, the Commonwealth contends that the “facts here demonstrate

Appellant did not assert his desire to refrain from speaking to the police. As such

[Appellant] did not unambiguously assert his right to silence and chose to speak with

police.” Commonwealth’s Brief at 33. The Commonwealth further argues that, “[e]ven if

[Appellant] did initially invoke his right to silence on the criminal events he committed, it

was [Appellant] who initiated conversation about Corporal Bryon Dickson, and thus the

statements are admissible.” Id. at 34.


                                      [J-37-2018] - 21
       Following our careful review of Appellant’s post-arrest videotaped interview,21 we

have little difficulty in concluding that Appellant unambiguously asserted his right to

remain silent, and, in fact, did so multiple times. The videotape began running at 8:15

p.m. At 8:35 p.m., almost immediately after Appellant was brought into the interview

room, Corporal Clark asked him if there was “anything dangerous out in the world.”

Videotaped Interview, at 19 minutes. Appellant indicated that there were items in the

airplane hangar and that there was a rifle in a gun case that was buried in the woods, and

that he would show them the location of the buried rifle on a map. Corporal Clark then

read Appellant his Miranda rights, and asked Appellant whether he wished to waive those

rights. Appellant asked if he could read the waiver form himself, and, after doing so,

refused to sign it. Appellant also told Corporal Clark that he was “not willing to answer

questions,” but that he would tell them about the rifle buried in the woods. Id. at 22

minutes (emphasis added). Corporal Clark repeated Appellant’s assertion: “You don’t

want to answer questions about any crime, but you’re willing to tell us where a rifle is

buried,” and Appellant responded “Yes.” Id.

       After discussing the location of the rifle, Corporal Clark and Trooper Mulvey asked

Appellant if he had seen any newspapers or heard news reports, telling him that he was

a “national figure” and “famous.” Id. at 33 minutes. Appellant then inquired where he

would be going, and Corporal Clark explained that he would be taken to the Pike County

jail. At approximately 8:50 p.m., Appellant asked the officers “You’re both fathers, right?”

When Corporal Clark and Trooper Mulvey responded affirmatively, Appellant

commented, “There was a father that didn’t come home.” Id. at 35 minutes. The officers


21As noted above, the interview was not transcribed. In addition, the videotape contains
a military time stamp at the top the frame, which is often difficult to read. Accordingly,
when quoting a statement from the interview, we will refer to its location on the tape by
referencing the elapsed time from the beginning of the tape, i.e., Videotaped Interview, at
20 minutes.

                                     [J-37-2018] - 22
asked Appellant if he knew how many children Corporal Dickson had, and Appellant

asked how old the children were. Corporal Clark then asked Appellant “Did you not think

about [Dickson’s children] beforehand?” and Appellant said something inaudible. Id. at

38 minutes. Corporal Clark asked Appellant, “What’s that?” and Appellant made another

statement that is mostly inaudible, but for the clear articulation of the word “lawyer.” Id.

Appellant then stated: “I don’t want to get too far into it. We’re gonna be going at it in

court at some point.” Id. (emphasis added). Corporal Clark responded, “Well, yeah, it is

what it is.” Id. Corporal Clark then stated that he wants to know “what happened out

there and why,” and remarked that “nobody’s threatening you . . . we’re just having a

conversation.” Id. at 39 minutes. The officers told Appellant that he had the opportunity

to “set [the record] straight,” and encouraged him to not let the media “define” him. Id.

Appellant then stated, “All I can say is I’m sorry.” Id. at 40 minutes.

        The conversation then turned to Appellant’s political leanings, his parents, and

his dog. The officers questioned Appellant as to how he had survived while he was on

the run from police.    The officers then asked if Appellant regretted his actions, and

Appellant replied “yes.” Id. at 1:04 minutes. As the officers pressed Appellant regarding

his reasons for choosing the Blooming Grove barracks, Trooper Mulvey indicated that he

was concerned for his own (Trooper Mulvey’s) safety, and that is why it was so important

for him to know the reasons behind Appellant’s actions. Appellant was noncommittal,

and tried to avoid answering, and then once again commented that he’s going to be in

court. Id. at 1:20 minutes. The officers responded that “It’s your story to tell,” and then

told Appellant that his father was upset because Appellant’s brother and half-sister had

been questioned. Id. at 1:20-1:21 minutes. The officers continued to question Appellant,

repeatedly asking him to confirm that he acted alone. Appellant repeatedly assured them

that he did act alone, and then invoked his right not to speak to the officers without an




                                      [J-37-2018] - 23
attorney present, by stating, “I don’t want to give you all too much information until I talk

to a lawyer.” Id. at 1:25 minutes (emphasis added). However, the officers continued to

question Appellant, telling him that, if he talked about the crime, it would be a weight off

of him and that he owed Corporal Dickson’s family an explanation. Id. at 2:42 minutes.

       In our view, Appellant’s statement that he was not willing to answer questions, but

would tell the officers where a rifle was buried in the woods constituted a clear and

unambiguous invocation of his right to remain silent. Moreover, the fact that Corporal

Clark repeated Appellant’s statement back to him, stating “you don’t want to answer

questions about any crime, but you’re willing to tell us where a rifle is buried,”

demonstrates that the officers clearly understood Appellant’s statement as an invocation

of his right to remain silent. Indeed, in Commonwealth v. Lukach, __ A.3d __, 

 (Pa. filed Oct. 17, 2018), this Court held, inter alia, that the suspect

unambiguously invoked his right to remain silent when stating: “I don’t know just, I’m done

talking. I don’t have nothing to talk about,” and that the interrogating officer clearly

understood that the suspect was invoking his right to remain silent, as evidenced by the

officer’s reply: “You don’t have to say anything, I told you that you could stop.” 

 at *10

(quoting transcript).

       In suggesting, however, that the statements Appellant made during the videotaped

interview were admissible at trial because, even if Appellant invoked his right to remain

silent by initially stating he did not want to talk about any crimes, he subsequently initiated

a conversation with the officers by asking them if they were fathers, and commenting that

a father − Corporal Dickson − would not be going home, the Commonwealth relies on the

United Supreme Court’s decision in Oregon v. Bradshaw, 

 (1983), and this

Court’s decision in Commonwealth v. Hubble, 

 (Pa. 1986) (plurality). See

Commonwealth’s Brief at 34-35. In Bradshaw, the police were investigating the death of




                                      [J-37-2018] - 24
a minor found in a wrecked vehicle. The defendant was taken to the police station for

questioning and given his Miranda warnings. He admitted to providing the deceased with

alcohol, but denied involvement in the traffic accident. He was placed under arrest and

re-read his Miranda rights. When an officer subsequently suggested that the defendant

was involved in the accident, the defendant denied his involvement and stated: “I do want

an attorney before it goes very much further.”        

.     The officer

immediately terminated the conversation. Later, as the defendant was being transferred

to the county jail, he asked a police officer what would happen to him. The officer

reminded the defendant that he had requested an attorney, and advised him that, if he

wanted to speak, it needed to be at his “own free will.” 

. The defendant said

that he understood, and the officer suggested the defendant could help himself by taking

a polygraph examination. The defendant took the test the following day, first signing a

written waiver of his Miranda rights. When the examiner told the defendant he believed

the defendant was not telling the truth, the defendant recanted his earlier story and

admitted to being the driver of the vehicle at the time of the accident.

        On appeal from his conviction of, inter alia, first-degree manslaughter, the

defendant argued that his statement was obtained in violation of his Fifth Amendment

rights. The high Court determined there was no violation of the Edwards rule because

the defendant’s question to the police officer as to what would happen to him “was not

merely a necessary inquiry arising out of the incidents of the custodial relationship,” but

“could reasonably have been interpreted by the officer as relating generally to the

investigation. That the police officer so understood is apparent from the fact that he

immediately reminded the accused that ‘you do not have to talk to me,’ and only after the

accused told him that he ‘understood’ did they have a generalized conversation.” 

.




                                      [J-37-2018] - 25
        In Hubble, the accused was interviewed by police on several occasions regarding

a triple homicide.      During one such occasion, Hubble and his wife voluntarily

accompanied police to the police station and Hubble signed a written waiver form and

agreed to give a tape-recorded statement. His wife suggested he should first get a lawyer,

and Hubble then stated that he wanted a lawyer. Hubble asked for permission to call

Jack Felix, an attorney.    A detective looked up the attorney’s telephone number and

permitted Hubble to dial the number. Upon learning Felix was not available, Hubble asked

to call his probation officer. Hubble told his probation officer that he was being questioned

and wanted an attorney, and asked whether the Public Defender’s office would represent

him. The probation officer told Hubble he was not sure whether the Public Defender

would represent him because he had not yet been arrested, but suggested that he call

the Public Defender’s office. After ending the phone call with his probation officer, Hubble

spoke for a short time with his wife, and again agreed to give a taped statement. The

taped statement was not self-incriminating, but incriminated his brother. As the accused

and his wife were leaving the police station, they asked to speak to each other privately.

After doing so, the accused gave a second taped statement, this time incriminating

himself.   The following day, the accused telephoned the police and told them that

everything he had said the previous day was a lie. However, upon returning to the police

station, the accused admitted that his confession had been truthful and reiterated the

same.

        Prior to trial, the accused sought suppression of his statements, but the trial court

denied his motion, and he was convicted of, inter alia, three counts of second-degree

murder. On appeal, the Superior Court reversed, holding the accused “clearly and

unequivocally invoked his right to counsel and after he had attempted, unsuccessfully, to

reach counsel by telephone, he was questioned further” by the police. Commonwealth v.




                                      [J-37-2018] - 26
Hubble, 

 (Pa. Super. 1983). The Superior Court determined that the

fact that Hubble responded to police-initiated questioning after he was unable to reach an

attorney did not establish a waiver of the right to counsel previously invoked, as it was not

Hubble that initiated the further conversation. The Commonwealth appealed, and this

Court reversed in a fractured opinion. Several Justices concluded that Hubble had not

unambiguously invoked his right to counsel, and several further concluded that, even if

Hubble had invoked his right to counsel, he subsequently waived that right by “initiat[ing]

the events which lead [sic] to his inculpatory statement, since the prior interview had

ended and appellee and Mrs. Hubble were in the process of leaving the barracks when

[Hubble] requested to stay and talk with his wife privately.” Commonwealth v. Hubble,

 (Pa. 1986) (emphasis original).

       We reject the Commonwealth’s suggestion that Appellant’s question to Corporal

Clark and Trooper Mulvey as to whether the officers were fathers, and Appellant’s

subsequent observation that “[t]here was a father that didn’t come home,” amounted to

an initiation of further conversation with police as contemplated by Edwards. First, we

note that, unlike Bradshaw and Hubble, in the instant case, there was no break in

questioning once Appellant stated that he did not want to talk about the crimes, or, indeed,

at any time during the interview. Rather, Corporal Clark and Trooper Mulvey continued

their questioning of Appellant for more than three hours, simply redirecting the subject of

the conversation whenever Appellant indicated that he did not want to talk about his

crimes or stated that he did not want to provide the police with additional information

without first speaking with a lawyer. Without a stop or a break in conversation, we fail to

see how there could be a subsequent reinitiation of conversation. Further, unlike the

officer in Bradshaw, Corporal Clark and Trooper Mulvey did not remind Appellant that he

had a right not to speak.




                                      [J-37-2018] - 27
       Moreover, even if we were to agree with the Commonwealth’s assertion that

Appellant’s question regarding whether the officers were both fathers and Appellant’s

comment that there was a father that “didn’t come home” could be interpreted as an

initiation of further conversation, the Commonwealth fails to address the fact that

immediately after making the two statements, Appellant again told the officers that he did

not “want to get too far into it,” because he would be going to trial, thereby reiterating his

desire not to speak with the officers about the crime. Notwithstanding this reiteration by

Appellant that he did not want to discuss the crime, the officers continued to question

Appellant, as detailed above, and eventually, Appellant stated that he did not want to

provide the officers with “too much info until I talk to a lawyer.” 

 at 1:25 minutes.

However, the officers continued to question Appellant.

       Based on our review of the videotaped interview, which clearly demonstrates that

Appellant unambiguously invoked his right to remain silent on multiple occasions, and

that the officers continued to question Appellant notwithstanding those invocations, we

conclude that the trial court erred in denying Appellant’s motion to suppress the

statements he made to police during his post-arrest videotaped interview.

       A suppression court's error in failing to suppress statements by the accused,

however, will not require reversal if the Commonwealth can establish beyond a

reasonable doubt that the error was harmless. Com. v. Baez, 

 (Pa.

1998). Miranda violations are subject to this harmless error rule. Commonwealth v. Diaz,

 (Pa. 1970) (Miranda violations “do not call for automatic reversal,” but

are subject to the harmless error rule). Indeed, in the case sub judice, the Commonwealth

argues that any error by the trial court in failing to suppress Appellant’s statements was

harmless.




                                      [J-37-2018] - 28
       Harmless error exists if the Commonwealth proves that (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. Commonwealth v. Burno, 

 (Pa. 2017).

       In the instant case, we have no hesitation in concluding that the trial court’s error

in refusing to suppress the statements made by Appellant in his post-arrest videotaped

interview was harmless because the properly admitted and uncontradicted evidence of

guilt was so overwhelming, and the prejudicial effect of the admission of Appellant’s

videotaped interview so insignificant by comparison, that its admission could not have

contributed to the verdict. As recounted above, it was established at trial that the bullets

that killed Corporal Dickson and wounded Trooper Douglass were fired from a Norinco

rifle which belonged to Appellant, and which was later recovered from the airplane hangar

where Appellant had been hiding following the shooting. Appellant himself directed the

U.S. marshals to the location of the rifle at the time he was captured, and Appellant’s DNA

was on the rifle. The evidence also revealed that Appellant had conducted internet

searches for possible targets, including the Blooming Grove police barracks, and

response procedures for when officers are shot, in the days leading up to the shootings.

Finally, in the days following the shootings, police located a white trash bag at a campsite,

and the trash bag contained an empty water bottle with Appellant’s DNA, and three pages

torn from a small spiral notebook which specifically described the shootings of Corporal

Dickson and Trooper Douglass.        A handwriting expert testified that the pages bore

Appellant’s handwriting, and an expert in document authentication testified that the pages




                                      [J-37-2018] - 29
appeared to come from a notebook found in the airplane hangar, which itself detailed

Appellant’s actions as a fugitive over a period of six weeks following the shootings.

         In light of the substantial physical evidence establishing Appellant as the

perpetrator of these crimes, we conclude that the trial court’s error in denying Appellant’s

motion to suppress the statements he made in his videotaped interview was harmless,

and, thus, that Appellant is not entitled to relief.22

         As noted above, Appellant also maintains that the trial court committed an error of

law and abused its discretion in refusing to suppress his statements to police during the

videotaped interview because he was denied his right to counsel under the Fifth and Sixth

Amendments to the United States Constitution, and was denied due process under the

Fourteenth Amendment to the United States Constitution and Article 1, § 9 of the

Pennsylvania Constitution. Specifically, Appellant avers that, at approximately 8:48 p.m.,

less than 15 minutes after the officers began their interview of Appellant, James Swetz,

Esquire, began telephoning the Pennsylvania State Police to advise them he had been

retained by the Frein family to “advise [Appellant] on his constitutional rights and wished

to speak with [Appellant.].” Appellant’s Brief at 24. Appellant contends that the failure of

the police to inform him that Attorney Swetz was “present, willing and available” deprived

him of his right to counsel. Id. Appellant further asserts that, in light of Attorney Swetz’s

familiar and distinguished reputation in the region, it is obvious that Appellant would have

“at the very least, wanted to briefly consult with Attorney Swetz before continuing the

interrogation if he were only informed that the attorney was present and available.” Id. at

30-31.




22Indeed, in his closing argument, the prosecutor made a single reference to Appellant’s
post-arrest videotaped interview, noting simply that Appellant “state[d] the obvious” about
the recovered Jeep, the campsite, and his involvement. N.T. Trial, 4/19/17, at 55.

                                        [J-37-2018] - 30
       We need not determine whether the trial court erred in refusing to suppress the

statements Appellant made during the videotaped interview on the ground that Appellant

was denied his right to counsel, as we have already determined that the trial court erred

in failing to suppress those same statements because the police failed to honor

Appellant’s invocation of his right to remain silent. Moreover, as we have explained

above, however, any error by the trial court in refusing to suppress Appellant’s statement

was harmless in light of the overwhelming, properly admitted, evidence establishing

Appellant’s guilt.

        III. Challenge to Trial Court’s Admission of Victim Impact Evidence

       Appellant next contends that the trial court erred in allowing the Commonwealth to

introduce at the penalty phase of his trial victim impact evidence that “began [as]

traditional impact [evidence], but . . . crossed the line and developed into emotionally

charged, cumulative, and much more prejudicial than probative” testimony. Appellant’s

Brief at 39. Appellant argues that the evidence admitted by the trial court in the instant

case was so “overpowering, emotional [and] highly prejudicial” that its admission violated

his due process rights under the Fourteenth Amendment, and his Eighth Amendment

right against cruel and unusual punishment. Id. at 42.

       The Pennsylvania Sentencing Code permits the introduction of two types of victim

impact evidence during the penalty phase of a capital trial: (1) evidence about the victim;

and (2) evidence regarding the impact that the death of the victim has had on the victim’s

family. 42 Pa.C.S. § 9711(a)(2); Commonwealth v. Bryant, 

 (Pa. 2013);

see also Commonwealth v. Flor, 

, 634 (Pa. 2010) (“[t]estimony that is a

personal account describing the devastating impact the murders had on the surviving

families is wholly appropriate and admissible at the sentencing phase of a capital case.”).




                                     [J-37-2018] - 31
       The admission of victim impact evidence, like all evidence, is within the sound

discretion of the trial court, “which must balance evidentiary value against the potential

dangers of unfairly prejudicing the accused, inflaming the passions of the jury, or

confusing the jury.” Bryant, 

. This Court will reverse a trial court’s decision

regarding the admissibility of evidence only when the appellant sustains the “heavy

burden” of establishing that the trial court has abused its discretion. 

 An abuse of

discretion “will not be found based on a mere error of judgment, but rather exists where

the court has reached a conclusion which overrides or misapplies the law, or where the

judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill-will.” Commonwealth v. Eichinger, 

, 1140 (Pa. 2007).

       The Commonwealth’s first penalty phase witness in the instant case was Tiffany

Dickson, Corporal Dickson’s widow. During the course of her testimony, the trial court

admitted, without objection from defense counsel, a series of photographs (Exhibits 537

through 545). The photographs depicted Corporal Dickson in his Marine uniform, and

Tiffany Dickson in uniform as a nursing student; Corporal Dickson at his graduation from

the crime law justice program at Penn State; Tiffany Dickson at her graduation from

nursing school; Corporal and Tiffany Dickson on their wedding day; Corporal and Tiffany

Dickson on their honeymoon in Disney World; Corporal Dickson with his nephew; and

Corporal Dickson following his graduation from the Pennsylvania State Police Academy.

N.T. Trial, 4/20/17, at 73-75.

       Thereafter, the Commonwealth sought to introduce a photograph of Corporal and

Tiffany Dickson and their first son at the beach, at which point defense counsel objected

on the ground that the evidence “has now gone far beyond victim impact.” 

. The

trial court overruled the objection, noting that, based on the evidence that had already

been presented, it appeared there was a “chronological nature of what’s being




                                      [J-37-2018] - 32
presented.” 

. The court explained that, while it would not limit the number of

photos introduced by the Commonwealth, the proffered photos should not be repetitive.

 The trial court further advised that it intended to give each party “as much latitude as

I can,” and it advised the Commonwealth that it could proceed. 

. At this time,

defense counsel stated, “Your Honor, as for the admission of these photos, I’m going to

say I have no objection based on the Court’s ruling.” 

 The Commonwealth then

introduced Exhibits 546 through 553, which depicted Corporal and Tiffany Dickson after

the birth of their second son;23 Corporal Dickson and his first son holding Corporal

23 Prior to the admission of the photographs, the prosecutor asked Tiffany Dickson to tell
the jury about the birth of her second child, which she described as follows:
        Adam was due September 2008, but he was late. He was delivered in
        October 2008 and when I was pushing and pushing and everything was
        okay and then at five centimeters the cord prolapsed cut-off and started to
        bleed out, so we had to push the cord back up. Bryon was with me and I
        just said, “Oh, I’ll be okay and I was going to the OR,” and then we went to
        the OR and when they pulled me over from the cart to the table, the epidural
        pulled out, they didn’t know that, so they started -- they gave me a local
        anesthetic and they started to cut and I felt everything.
                So, then they said, “No, let’s just sedate her,” so they sedated me
        with some Diprivan and then intubated me to keep my airway open and then
        pulled him out at 5:15 he was born and at 10 o’clock I woke up and I saw
        the baby next to me and I said, “Oh my gosh thank gosh he made it and I
        said, we have to breast feed him, that’s very important to latch immediately
        so that baby could get all the nutrients from the mom.”
                The nurse goes, “Your husband breast fed him already. I said,
        “What? How he can’t (sic) breastfeed him? He can’t breast feed him.” And
        she said, “No, you were sedated, we propped you up and he held the baby,
        he had him latch, so that was good.”
 N.T. Trial, at 67-68.
        Justice Wecht opines that the above description was “impactful and
powerful,” “unduly prejudicial,” “striking and graphic,” and designed “only to inflame
the passions of those called upon to decide between life and death.” Concurring
and Dissenting Opinion (Wecht, J.) at 20. Though vivid, Tiffany Dickson’s threeparagraph description of the birth of her son, in our view, was neither graphic, nor
offered for the sole purpose of inflaming the passions of the jury. Rather, it was
consistent with the type of thorough recollection of childbirth offered by many
women when asked. Moreover, the testimony was presumptively offered, as
Justice Wecht concedes, see 

, to demonstrate that Corporal Dickson was
a committed and caring father.

                                     [J-37-2018] - 33
Dickson’s second son; Corporal Dickson with both of his sons “showing them how to play

patty cake;” Corporal and Tiffany Dickson’s sons in their homemade Halloween

costumes; Corporal Dickson with his sons at the beach; Tiffany Dickson with her sons;

Corporal Dickson teaching his first son how to use a fishing rod; and Corporal Dickson

and his sons putting together a play set. 

.

       The Commonwealth additionally sought the admission of photographs designated

Exhibits 554 through 563, at which time defense counsel noted his “continuing objection

based on [his] previous argument.” 

. The trial court noted, but overruled, the

objection, and the Commonwealth was permitted to introduce the photographs which

depicted Corporal Dickson and his wife and sons after the ceremony at which he became

Corporal; Corporal Dickson with two fellow troopers; Corporal Dickson with his second

son during a vacation cruise; Corporal Dickson and his first son on that same cruise;

Corporal Dickson’s two sons on the cruise; Corporal Dickson’s two sons dressed in their

father’s police hat and boots; Corporal and Tiffany Dickson at Christmas; Corporal

Dickson with his brother and sister at Christmas; and Corporal and Tiffany Dickson and

their sons at a family gathering on a large farm. 

. The Commonwealth also

introduced photographs (Exhibits 564 through 566) of Tiffany Dickson and her first son in

front of Corporal Dickson’s casket; Tiffany Dickson in front of the casket; and Tiffany

Dickson and her two children, with Corporal Dickson’s uniform, taken on Mother’s Day

2015. 

.

       Finally, Tiffany Dickson testified that, following the death of Corporal Dickson, their

first son, age 7 when his father was killed, developed behavioral problems which included

difficulty sleeping, bedwetting, self-biting, night terrors, anger issues, bullying at school,

and expressing that he wanted to die.         

.   He required medication and

developed neurological problems. 

. Tiffany Dickson further stated that their




                                      [J-37-2018] - 34
second son, age 5 at the time of the shooting, is defiant and failing school. 

. She

also testified that, since her husband’s death, she feels sad, lonely, without support or

protection, and that she has no identity other than as the widow of a slain officer. 

.

         The Commonwealth then sought to introduce portions of a video from Corporal

Dickson’s graduation from the Pennsylvania State Police Academy. The portions of the

video that were shown to the jury, which totaled approximately 15 minutes, included a

speech by then Allegheny County Deputy District Attorney Mark Tranquilli; Corporal

Dickson taking his oath of office; Corporal Dickson receiving his badge; and the State

Police Call of Honor. 

. Defense counsel objected to the introduction of this

evidence on the basis that it was cumulative of the numerous photographs previously

introduced and was unduly prejudicial. 

. The trial court overruled the defense

objection and admitted the videotape, reiterating that it was “going to try to give each side

as much latitude as possible to present [its] case,” and stating that it “view[ed] what’s

being presented in the category of the victim, victim impact.” 

. The trial court

indicated, however, that it would give the jury an appropriate instruction as to how to treat

victim impact testimony.

         Finally, the Commonwealth presented testimony from several of Corporal

Dickson’s colleagues, who testified regarding Corporal Dickson’s strengths as a police

officer, as well as the testimony of Corporal Dickson’s sister, Stacy Hinkley; his father,

Bryon Dickson; and his mother, Darla Dickson. During the testimony of Darla Dickson,

the Commonwealth introduced a video of Corporal Dickson and his youngest son.

         Without question, the victim impact evidence admitted by the trial court in the

instant case was extensive, arguably unnecessarily so. Moreover, some of the evidence

described above was not victim impact evidence at all. For example, as Justice Wecht




                                      [J-37-2018] - 35
observes, the substance of Attorney Tranquilli’s speech, in which he challenged the new

troopers to emulate the work ethic and bravery of Pennsylvania State Police Corporal

Joseph Pokorny, who was fatally shot in 2005, did not concern Corporal Dickson

personally, nor did it pertain to the impact Corporal Dickson’s death had on his family.

       Nevertheless, we are constrained to agree with the Commonwealth that, because

the jury found several aggravating circumstances, but no mitigating factors, Appellant has

failed to establish that he was prejudiced by the admission of the above-described

testimony. In this regard, subsection 9711(c)(2) provides: “The court shall instruct the

jury that if it finds at least one aggravating circumstance and at least one mitigating

circumstance, it shall consider, in weighing the aggravating and mitigating circumstances,

any evidence presented about the victim and about the impact of the murder on the

victim’s family.”

       Indeed, in accordance with subsection 9711(c)(2), the trial court instructed the jury

as follows:

                      In deciding whether aggravating or mitigating
               circumstances exist and whether aggravating outweigh
               mitigating circumstances, you should consider the evidence
               and arguments offered by both the Commonwealth and the
               Defendant. This includes the evidence that you heard during
               the earlier trial to the extent that it bears upon the issues now
               before you. You have heard evidence about the victim, Bryon
               K. Dickson, II and about the impact of the victim’s murder
               upon his family. I’m talking about the testimony presented by
               Tiffany Dickson, Sergeant Michael Walsh, Lieutenant Sean
               Jennings, Concetta Uckele, Retired Major John Dockerty,
               Sergeant Derek Fellsman, Stacy Hinkley, Bryan Dickson, and
               Darla Dickson.

                      This evidence is subject to two special rules. First, you
               cannot regard it as an aggravating circumstance. Second, if
               you find at least one aggravating circumstance and at least
               one mitigating circumstance, you may then consider the victim
               and family impact evidence when deciding whether
               aggravating outweigh mitigating circumstances. Each of you


                                       [J-37-2018] - 36
              may give the victim and family impact evidence whatever
              weight, favorable or unfavorable to the Defendant, that you
              think it deserves. Your consideration of this evidence,
              however, must be limited to a rational inquiry into the
              culpability of the Defendant, not an emotional response to the
              evidence presented.


N.T. Trial, 4/26/17, at 162-63 (emphasis added).

       A jury is presumed to follow the trial court’s instructions on the law. Commonwealth

v. Harris, 

, 1053 (Pa. 2002). Herein, the trial judge instructed the jury that

it could not consider the victim impact testimony unless it found at least one aggravating

circumstance and at least one mitigating circumstance.           The jury did not find any

mitigating circumstances, and, therefore, it must be presumed that the jury did not

consider the Commonwealth’s victim impact testimony in rendering its verdict. As such,

we hold that Appellant has failed to establish a basis for relief. See 

 (rejecting the

appellant’s challenge to the trial court’s admission of victim impact testimony, inter alia,

on the basis that the jury did not find any of the proffered mitigating circumstances, and,

thus, failed to demonstrate prejudice).

       Notwithstanding the above, Appellant maintains that the victim impact evidence

admitted by the trial court in the instant case “was so overwhelming that it amounted to

an additional super aggravating circumstance,” and was so “overpowering, emotional

[and] highly prejudicial,” that its admission violated his due process rights under the

Fourteenth Amendment, and his Eighth Amendment right against cruel and unusual

punishment.    Appellant’s Brief at 42.     This Court addressed a similar argument in

Commonwealth v. Ballard, 

 (Pa. 2013), wherein the appellant alleged that

the quantity and tenor of the victim impact testimony admitted at his trial violated his right

to due process and his right to be free from cruel and unusual punishment under both the

Pennsylvania and U.S. Constitutions. Ballard pled guilty to four counts of first-degree

murder, and, following a penalty phase hearing, the jury returned a sentence of death on


                                      [J-37-2018] - 37
each of the counts. On Count 1, the jury found two aggravators and one mitigator

(extreme mental or emotional disturbance); on Count 2, the jury found one aggravator

and no mitigators; and on Counts 3 and 4, the jury found two aggravators and no

mitigators.

       Like Appellant herein, Ballard argued, inter alia, that victim impact testimony can

“become[] its own de facto aggravating factor,” particularly because juries are not

provided proper guidance as to how to consider such testimony against the statutory

aggravating and mitigating factors. 

. In      rejecting   Ballard’s   constitutional

arguments, we first observed that, in Payne v. Tennessee, 

 (1991), the

United States Supreme Court declared that “a State may properly conclude that, for the

jury to assess meaningfully the defendant's moral culpability and blameworthiness, it

should have before it at the sentencing phase evidence of the specific harm caused by

the defendant,” especially given the state's interest in rebutting a defendant's mitigation

evidence. 

. In Payne, the high Court overruled its prior decision in Booth v.

Maryland, 

 (1987), which prohibited the introduction of victim impact

testimony at a capital sentencing hearing on the ground that such testimony was

irrelevant to the proceedings and created “a constitutionally unacceptable risk that the

jury may impose the death penalty in an arbitrary and capricious manner.” 

.

       We further noted in Ballard that, subsequent to Payne, and beginning with our

decision in Commonwealth v. Means, 

 (Pa. 2001) (Opinion Announcing

Judgment of Court (“OAJC”)), this Court has ruled that victim impact testimony admitted

under Section 9711(a)(2) is constitutional. See Means, 

; see also 

 (Saylor, J., concurring) (agreeing with conclusion in OAJC that amendment to death

penalty statute allowing victim impact testimony is constitutional). The OAJC in Means

stated:




                                     [J-37-2018] - 38
                      [V]ictim impact testimony is just one of the
                      relevant factors the jury may consider when
                      weighing the aggravating and mitigating
                      circumstances it has found during its
                      deliberations on sentence. The addition of victim
                      impact testimony into the deliberative process is
                      not such an arbitrary factor that its inclusion
                      would preclude meaningful appellate review.
                      We are satisfied that the trial judges of this
                      Commonwealth can adequately prevent unduly
                      prejudicial and inflammatory information from
                      entering into the jury's deliberations in the guise
                      of victim impact testimony.

.

       Finally, we held in Ballard that the appellant’s claims failed, as they involved “a full

panoply of arguments we have considered and rejected in prior decisions,” 

, including Means, 

 (rejecting argument that jury is not given proper

direction in how to weigh victim impact testimony); Eichinger, 915 A.2d at 1139 (rejecting

argument that victim impact testimony amounts to impermissible “non-statutory”

aggravating factor); and Commonwealth v. Williams, 

 (Pa. 2004)

(rejecting arguments that testimony unconstitutionally focused jury on victim's life and

amounted to “super aggravating factor”); see also Harris, 817 A.2d at 1053 (rejecting the

appellant’s argument that the admission of victim impact testimony is “violative of the due

process, equal protection, and cruel and unusual punishment clauses” of the

Pennsylvania and Federal Constitutions). Accordingly, we reject Appellant’s claim that

the trial court’s admission of the victim impact evidence in the instant case violated his

constitutional rights under the Eighth and Fourteenth Amendments.24

24In his concurring and dissenting opinion, Justice Wecht credits Appellant’s argument in
part, concluding that the victim impact evidence “was so emotionally overpowering, and
so extensive, that it necessarily inhibited the ability of this jury to fairly assess this case.”
Concurring and Dissenting Opinion (Wecht, J.) at 20. While we believe that reasonable
minds could disagree about the emotional weight of some of the challenged evidence, we
cannot agree that, in the context of this case, the challenged evidence overpowered the



                                       [J-37-2018] - 39
            IV. Challenge to Trial Court’s Jury Instruction on Mitigation

       In his final briefed issue, Appellant asserts that the trial court abused its discretion

in denying his request for the following jury instruction:

              To establish a mitigating circumstance to which you should
              consider and give effect, the Defendant need not establish a
              nexus between the mitigating circumstance and the crime. In
              other words, the mitigating circumstance need not be a
              defense or an excuse for the crime. Tennard v. Dretke, 

 (2004).
Appellant’s Brief at 43.    In Tennard, the high Court explained that a Texas capital

sentencing scheme which required a nexus between a defendant’s proffered mitigation

evidence and the alleged crime was unconstitutional, and that a defendant is entitled to

have the jury consider evidence which might serve as a basis for a sentence less than

death. 

.

       This Court reviews penalty-phase jury instructions in the same manner in which it

reviews challenges to jury charges given during the guilt phase of trial; specifically, we

consider the charge in its entirety, rather than discrete portions of the instruction.

Eichinger, 915 A.2d at 1138.         In addition, trial courts are free to use their own

expressions, so long as the concepts at issue are clearly and accurately presented to the

jury. Id.

       Preliminarily, and as the Commonwealth observes, the constitutionality of

Pennsylvania’s capital sentencing scheme, in contrast to the Texas sentencing scheme


jury’s ability to determine if a death sentence was warranted. The instant case involved
the meticulously-planned and premeditated murder and attempted murder of two police
officers, for which the evidence of Appellant’s guilt was pervasive and largely
unchallenged. The jury was presented with proof of five aggravating factors, including
the death of a police officer. While Justice Wecht opines that “it is impossible not to
conclude that the victim impact evidence took on the predominant evidentiary role for the
Commonwealth”, id. at 21, we conclude that, despite the victim impact evidence
presented, the predominant evidentiary consideration in this case was the murder and
attempted murder of two police officers.

                                      [J-37-2018] - 40
at issue in Tennard, has been upheld by the United States Supreme Court. Indeed, in

Blystone v. Pennsylvania, the high Court stated:


                        We think that the Pennsylvania death penalty statute
                satisfies the requirement that a capital sentencing jury be
                allowed to consider and give effect to all relevant mitigating
                evidence. Section 9711 does not limit the types of mitigating
                evidence which may be considered, and subsection (e)
                provides a jury with a nonexclusive list of mitigating factors
                which may be taken into account − including a “catchall”
                category providing for the consideration of “[a]ny other
                evidence of mitigation concerning the character and record of
                the defendant and the circumstances of his offense.” See 42
                Pa.Cons.Stat. § 9711(e)(8) (1988).

 (1990).

         The trial court in the instant case described for the jury 29 specific “matters,” which,

“if proven to [the jury’s] satisfaction by a preponderance of the evidence can be mitigating

circumstances.” N.T. Trial, 4/26/17, at 159-62.25 The trial court further instructed the jury:

25   The “matters” were described by the trial court as follows:
               1. [Appellant] has no history of violent infractions at the Pike
                    County Correctional Facility;
               2. Eugene Michael Frein had a prior problem with
                    alcoholism;
               3. [Appellant] was raised by a verbally abusive Father;
               4. [Appellant] had a learning disability during his childhood;
               5. [Appellant] could not read on his own until the 6th grade;
               6. [Appellant] stuttered as a child;
               7. [Appellant] was isolated from extended family members;
               8. The parents of [Appellant] had marital problems during
                    the time he lived in their home;
               9. Eugene Michael Frein taught and discussed firearms with
                    [Appellant];
               10. Eugene Michael Frein discussed anti-government and
                    anti-police views with [Appellant];
               11. [Appellant] was proud of and looked up to his Father;
               12. Debbie Frein was more concerned with her appearance
                    than her children;
               13. [Appellant] played video games;



                                        [J-37-2018] - 41
                    In making the decision whether or not to impose the
              death penalty upon Eric Frein it is entirely proper for you to
              consider sympathy or mercy as a reason to impose a life
              sentence subject to the following instructions.

                     This sympathy or mercy which you may wish to show
              Eric Frein must be founded upon any item or items of
              evidence any one or more of you find to be a mitigating
              circumstance. That is worth repeating. The sympathy or
              mercy which you may wish to show Eric Frein must be
              founded upon evidence any one or more of you find to be a
              mitigating circumstance.


               14. Eugene Michael Frein discussed survival tactics with
                   [Appellant];
               15. Eugene Michael Frein was the owner of the sniper
                   handbook located in [Appellant’s] bedroom;
               16. Eugene Michael Frein lied about his military service to
                   [Appellant] and family members;
               17. [Appellant] encouraged Warren Ahner to pursue his
                   career interests;
               18. [Appellant] loves his brother’s children Addison and
                   Timothy;
               19. [Appellant] expressed remorse for his offenses and
                   concern for the victim’s family;
               20. [Appellant] told the state police where an additional rifle
                   could be located;
               21. [Appellant] apologized to his own family in the video
                   interview;
               22. [Appellant] surrendered to the U.S. Marshalls without
                   incident;
               23. [Appellant] cooperated with the state police during the
                   video interview;
               24. [Appellant] worked at Camp Minci at the Firearm
                   Instruction Station;
               25. [Appellant] completed 92 college credits;
               26. [Appellant] made Tiffany Frein feel like someone loved
                   her;
               27. [Appellant] was Tiffany Frein’s protector;
               28. There was little effective communication in the Frein
                   household;
               29. Any other evidence of mitigation concerning the
                   character, background, and record of [Appellant] and
                   circumstances of his offense.
N.T. Trial, 4/26/17, at 160-62.

                                     [J-37-2018] - 42
Id. at 163.

         Nevertheless, noting that, of the 29 mitigating circumstances proffered by the

defense in his case, only two − Number 9 (Appellant’s father taught and discussed

firearms with him) and Number 10 (Appellant’s father discussed anti-government and

anti-police views with him) − “may have explained or could have implied a reason for

causing” his commission of the crime, Appellant contends that the requested instruction

was necessary “to temper an argument from the prosecution that [Appellant’s] love for his

parents and family has no connection to the offense.”            Appellant’s Brief at 44-45.

Appellant suggests that “at least one, and perhaps more than one [mitigating

circumstance], would have been found if the mitigation instruction had been given.” Id.

at 46.

         Initially, we note that Appellant does not support this particular claim with any

citation to the record, and we are unable to locate any place in the record that

corroborates Appellant’s characterization of the Commonwealth’s argument. Regardless,

however, this Court has previously explained that Tennard:

               hold[s] evidence relevant to a defendant’s character must be
               admitted in a capital sentencing if a defendant offers it. In no
               way [does the] case[] say the jury is required to give it any
               weight, or that the Commonwealth is not permitted to argue
               against it or produce contrary evidence. It is well settled “[a]
               prosecutor may rebut mitigation evidence in his arguments
               and may urge the jury to view such evidence with disfavor.”
Commonwealth v. Eichinger, 

 (Pa. 2014).

         The trial court’s instructions in the instant case were consistent with the high

Court’s decisions in Tennard and Blystone, as well as this Court’s decision in Eichinger.

Accordingly, we hold that Appellant is not entitled to relief.

                         V. Statutory Review of Death Sentence




                                      [J-37-2018] - 43
       As a final matter, although Appellant does not raise the issue in his brief, this Court

is required to conduct an independent review to determine (1) whether the sentence of

death was the product of passion, prejudice, or any other arbitrary factor; or (2) if the

evidence fails to support the finding of at least one aggravating circumstance listed in 42

Pa.C.S. § 9711(d). See 42 Pa.C.S. § 9711(h)(3) (requiring affirmance of the sentence of

death unless this Court concludes either of these two factors are present); Ballard, 

.

       Following a thorough review of the entire record in this case, we hold that

Appellant’s sentences of death were not the product of passion, prejudice, or any other

arbitrary factor, but, rather, were supported by the overwhelming evidence that Appellant

fatally shot Corporal Dickson, a law enforcement officer, with malice and the specific

intent to kill. Moreover, the Commonwealth proved the following aggravating factors

beyond a reasonable doubt: (1) the victim was a police officer killed in the performance

of his duty, 42 Pa.C.S. § 9711(d)(1); (2) the offense was committed during the

perpetration of a felony, id. § 9711(d)(6);26 (3) Appellant knowingly creating a grave risk

of danger to other persons, including Trooper Douglass and Nicole Palmer, id. §

9711(d)(7); and (4) Appellant had been convicted of another state offense at the time of

the offense at issue for which a sentence of life imprisonment or death was imposable,

id. § 9711(d)(10). As the jury found no mitigating circumstances, Appellant’s sentences

comply with the statutory mandate for the imposition of a sentence of death where one or

more aggravating circumstances and no mitigating circumstances are found. See id. §

9711(c)(1)(iv). Accordingly, there are no grounds upon which to vacate Appellant’s



26 The felony offenses included criminal attempt to commit first-degree murder; criminal
attempt to commit murder of a law enforcement officer; assault of a law enforcement
officer; terrorism; weapons of mass destruction; and discharge of a firearm into an
occupied structure.

                                      [J-37-2018] - 44
sentences pursuant to 42 Pa.C.S. § 9711(h)(3), and, for all of the above reasons, we

affirm Appellant’s convictions and sentences of death.

      Chief Justice Saylor and Justices Baer, Dougherty and Mundy join the opinion.

      Justice Donohue files a concurring opinion.

      Justice Wecht files a concurring and dissenting opinion.




                                    [J-37-2018] - 45