COM. v. FLOR

jury's finding of no mitigating circumstances. Appellant's contentions that the evidence of mitigation was unrebutted and that the jury improperly ignored the unrebutted evidence are belied by the record, as shown by our extensive summary of the evidence, supra. The jury did not accept the defense expert's opinions, but instead, after considering the testimony of numerous witnesses at the scene of the murder as to Appellant's actions on the night of the crime and Appellant's later admissions, "concluded that [A]ppellant's mental state was not such as would qualify as a mitigating circumstance." See Henry, supra at 939. In making this assessment, the jury acted well within its prerogative. See Walter, supra at 568; Treiber, supra at 30-31. Based on our careful review of the record, we conclude that the trial court did not abuse its discretion in denying Appellant's challenge to the weight accorded his mitigation evidence and accordingly denying his motion for a new trial.

Appellant makes several other arguments under issues six and seven that are also lacking in merit.
He insists that because the Commonwealth conceded his diagnosis of depression, the diagnosis was equivalent to a stipulation, and hence the jury erred by not finding Appellant's depression to be a mitigating circumstance. Appellant's Brief at 40-41. To support this contention, Appellant cites the following statement which the Commonwealth made regarding Appellant's depressed state at closing argument:

One [defense expert witness] said depression. No kidding. Because the other [defense expert witness] admits, of course, [that Appellant is] going to be depressed. He's in prison. Looking at a life or death sentence. Of course, he's depressed. He's not free. He can't drink or do whatever else he wants to do. He's depressed. Absolutely. The Commonwealth concedes that.

N.T., 11/16/05, at 85 (closing argument).
It is clear from the Commonwealth's statement that the Commonwealth conceded the fact that Appellant was depressed. However, the Commonwealth did not concede that Appellant's depressed state constituted a mitigation factor. Appellant has improperly conflated two distinct facts and two very different concessions.
For his argument to the contrary. Appellant relies on Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069, 1089 (2001), another direct capital appeal, in which this Court considered the implications of a stipulation that the defendant had no significant history of prior criminal convictions. Pursuant to 42 Pa.C.S. § 9711(e)(1), "mitigating circumstances shall include the following: (I)[t]he defendant has no significant history of prior criminal convictions." Rizzuto, supra (quoting 42 Pa.C.S. § 9711(e)(1) (emphasis added)). Accordingly, we concluded that "where the absence of a prior record is not in dispute, . . . the sentencing jury has no discretion whether or not to find the existence of this fact as a mitigating factor." Id.
In contrast to "no significant history of prior criminal convictions," depression is not an expressly specified mitigating circumstance. Appellant cites no authority for his inference that depression should be considered a mitigating circumstance per se, and we decline to set forth any such rule. We also note defense expert Dr. Voskanian's acknowledgment that Appellant's depression did not cause him to lose control of his behavior, such that he could not stop himself from firing the gun and killing Officer Gregg. N.T., 11/14/06, at 130. There is absolutely no merit to Appellant's contention that the jury acted in an arbitrary and capricious manner by declining to find that the stipulated fact of Appellant's depressed state constituted a mitigating factor.
Appellant advances a similar argument with regard to his guilty plea to first-degree murder, which, in Appellant's view, "is clearly a mitigating factor to be considered by the sentencer." Appellant's Brief at 40. Appellant provides no citation for this assertion, and we decline to promulgate such a rule. Whether a defendant's guilty plea constitutes a mitigating circumstance is a finding of fact, appropriately left to the jury.
Finally, Appellant cites Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), as authority for "the United States Supreme Court's assumption that a finder of fact would find mitigating circumstances as it is required by law to do, in a case where substantial, often uncontested evidence of mitigation is presented. The United States Supreme Court [in Parker] held that the trial court found mitigation because under the facts of that case, it would have been required by the law to do so." Appellant's Brief at 43. Appellant has misinterpreted and misstated Parker's holding, which, contrary to Appellant's inference, did not circumscribe — or even consider — the jury's responsibility to assess credibility of the witnesses and weigh the evidence presented as to mitigation. The holding in Parker does not address the question as to when evidence of mitigation is sufficient or given proper weight. Contrary to Appellant's contentions, Parker affords him no relief.

Passion, Prejudice, or other Arbitrary Factor

In Appellant's eighth issue, he contends that his sentence of death was the result of passion, prejudice, or other arbitrary factor and must therefore be vacated. Appellant suggests that the following specific occurrences at trial support his general claim of the influence of passion or prejudice or other arbitrary factor: (1) allegedly improper victim impact testimony; (2) allegedly improper statements in the Commonwealth's closing argument; (3) religious references by the prosecutor during the closing argument; (4) alleged juror misconduct; (5) testimony of Trooper Carcaci speculating that Appellant was going to kill his girlfriend; (6) allegedly improper testimony of Ms. Kairis, Appellant's then-girlfriend.

If, based on the trial record, this Court determines that a sentence of death was the product of passion, prejudice, or any other arbitrary factor, we must vacate the sentence. Commonwealth v. Reyes, 600 Pa. 45, 963 A.2d 436, 441 (2009) (citing 42 Pa.C.S. 9711(h)(3)). We address each of Appellant's assertions of passion, prejudice, or arbitrariness in turn.

Appellant first asserts that the victim impact testimony presented at his penalty hearing was improper. The United States Supreme Court has held that the Eighth Amendment to the United States Constitution does not present a bar to the admission of victim impact evidence. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). As the Court explained, victim impact evidence is "designed to show [] each victim's uniqueness as a human being." Id. at 823, 111 S.Ct. 2597 (citation omitted); see also Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143, 150 (2001) (Opinion Announcing the Judgment of the Court) (discussing Payne in the context of capital sentencing, where victim impact testimony "conveys to the jury that the decedent was a unique individual whose loss affects society"). As such, "[v]ictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question." Payne, supra at 825, 111 S.Ct. 2597. Under Payne, a state may determine that a jury should have the opportunity to consider the evidence of specific harm encompassed by victim impact testimony in order to assess fully the defendant's moral culpability and blameworthiness. Id.

In 1995, our General Assembly amended the Sentencing Code to allow the admission of victim impact evidence in the penalty phase of a capital trial:

In the sentencing hearing, evidence concerning the victim and the impact that the death of the victim has had on the family of the victim is admissible. Additionally, evidence may be presented as to any other matter that the court deems relevant and admissible on the question of the sentence to be imposed. Evidence shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e), and information concerning the victim and the impact that the death of the victim had on the family of the victim. . . .

42 Pa.C.S. § 9711(a)(2) (emphasis added).

As amended, 1995, October 11, P.L. 1064, No. 22 (Special Session No. 1).

In Means, this Court upheld the constitutionality of Section 9711(a)(2) against challenges based on the United States and Pennsylvania Constitutions. We also determined that victim impact testimony would be admissible only when "the Commonwealth establishes that the victim's death did in fact have an impact on the victim's family." Means, supra at 158; see Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 93 (2008) (reiterating the test of Means); Williams, 854 A.2d at 446 (same, citing Means). Once the Commonwealth has met this threshold, the trial court has discretion over the testimony admitted under Section 9711(a)(2). Baumhammers, supra; Williams, supra; Means, supra. "Testimony 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." Baumhammers, supra at 93 (internal quotation marks and citation omitted); see also Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1023 (2007) (affirming, under Section 9711(a)(2), a trial court's admission of victim impact testimony by the decedent's brother because it had been "offered to impress upon the jury the human effects of [the a]ppellant's crimes").

Absent an abuse of discretion, this Court will not disturb a trial court's admission of testimony under Section 9711(a)(2). Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1140 (2007). An abuse of discretion "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." Id.

Although the evidence that is the subject of Section 9711(a)(2) has been generally labeled "victim impact" evidence, it is important to note that the text of the statute explicitly refers twice to two types of evidence or information: "concerning [1] the victim and the impact that the death of the victim has had on the family of the victim." (emphasis added). In Commonwealth v. Singley, 582 Pa. 5, 868 A.2d 403 (2005), this Court affirmed the trial court's admission of a victim impact statement that included information as to the good qualities of the victim, particularly as they related to his job. Specifically, the victim's fiancee testified that the victim's employer had shut down its plant for some days following the victim's death, and then had asked her to participate in an award ceremony that was to recognize the characteristics exemplified by the victim. Id. at 415. In affirming the admissibility of this testimony, we recognized that the information was not relayed in a vacuum, but rather was presented in the context of the fiancee's involvement in the award ceremony and her family relationships after the victim's death. Id.

In Commonwealth v. Natividad, 565 Pa. 348, 773 A.2d 167 (2001), we affirmed the admissibility of victim impact testimony from the victim's widow. She testified as to the victim's military service, honorable discharge, 24-year career as an ironworker, subsequent work as a security guard, and community involvement. Id. at 179. She also testified that her late husband was a loving husband, father, grandfather, and son, who came to the aid of anyone who needed help, and who loved and respected life. Id. The appellant in Natividad did not challenge the content of the victim impact statement, but rather focused on the allegedly late notification he had received concerning the prosecution's intent to call the victim's widow. Id.

Here, Appellant takes issue with the victim impact testimony of several individuals, starting with Officer Gregg's brother, John Gregg, Jr., who, on behalf of his family, read into the record a statement, a copy of which had been previously provided to defense counsel. N.T., 11/10/06, at 158, 160. Mr. Gregg read his statement, see id. at 160-63, and then, at the end of his testimony, stated that he was going to deviate from the written statement to demonstrate how the outpouring and sorrow of the community had been a source of comfort for his family. Appellant challenges only the following portion of Mr. Gregg's testimony, which constituted his spontaneous deviation in its entirety:

[O]n the day of the funeral, as the procession went through town from the church building to the cemetery, the number of people in the community that stood along the streets was unbelievable. It was as if there was a parade taking place, except, so many people were crying in the town.

In the day when too often what we hear in the news is bad, it's good to be reminded that there are men and women like Brian who served well, and they are a credit to the uniform which they wear.

Brian was the kind of man who was an asset to any home, family, community or people. He is missed and his loss will be felt by us all.

Id. at 163; see Appellant's Brief at 74.

Appellant asserts that Mr. Gregg's deviation from his prepared statement was improper because it "went beyond the impact Officer Gregg's death had on his family and instead implanted the vision of an entire community weeping and bereft over the officer's death." Appellant's Brief at 74.

Our review of the record reveals that, at trial, Appellant did not object to any portion of Mr. Gregg's testimony. Accordingly, Appellant has waived this issue pursuant to Pennsylvania Rule of Appellate Procedure 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal"). See Commonwealth v. May, 584 Pa. 640, 887 A.2d 750, 761 (2005) (in a direct capital appeal, denying the appellant's challenge to the admission of certain evidence in the penalty phase because defense counsel had not objected to the evidence during the trial); Commonwealth v. McCrae, 574 Pa. 594, 832 A.2d 1026, 1037 (2003) (explaining that in Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003), this Court adopted a new general rule providing that claims not properly preserved and raised in the trial court are waived and unreviewable in capital direct appeals).

Although we deny this claim based on waiver, we must point out that the challenged portion of Mr. Gregg's testimony was merely a few sentences describing how his grieving family was comforted by the knowledge that Officer Gregg had performed his professional duties well and was recognized in the community for his service. The brief statement of Officer Gregg's admirable characteristics was not "improper testimony [that] shifted the focus of the proceeding away from victim impact." Appellant's Brief at 75. Rather, it was testimony that rested well within the parameters explicitly set forth in Section 9711(a)(2). See Singley, supra at 415. Appellant fails to mention Singley, and indeed provides absolutely no convincing argument that the trial court abused its discretion in admitting Mr. Gregg's testimony in its entirety.

Appellant next challenges the testimony of Anthony Wojciechowski, the chief of the Newtown Borough Police Department, who had hired and supervised Officer Gregg, and the testimony of Mr. Epp, the emergency medical technician whom Appellant shot. N.T., 11/6/06, at 56-59, 61-63, 65, 67; and N.T., 11/8/06, at 15-16, 32. Appellant did not object to any of this testimony at trial, and hence his claims are waved pursuant to Pennsylvania Rule of Appellate Procedure 302.

Appellant specifically challenges, as "improper victim impact testimony," see Appellant's Brief at 75-76, the following portions of Chief Wojciechowski's testimony, which are excerpted in context:

Prosecutor: And how would you describe Officer Gregg as a police officer?

Chief Wojciechowski: Excellent police officer. He was loved by both his colleagues and the community, absolutely loved. He was a real asset to the community, and anyone here will tell you that.

Prosecutor: And how would you describe Officer Gregg as a person?

Chief Wojciechowski: One of the finest human beings I ever met.

N.T., 11/6/06, at 59; see Appellant's Brief at 75.

Prosecutor: Did you see [Officer Gregg] that day [the day of the shootings]?

Chief Wojciechowski: I did. I saw [him] at about 8 o'clock that morning when he came in for court.

Prosecutor: And can you describe that contact?

Chief Wojciechowski: [Officer Gregg] was in. He went to court. He and I spoke. It was not uncommon for [him] to stop in to my office and we would talk about things that were going on. He was a very helpful human being. He was always trying to help me complete something. And he left, I recollect, somewhere around 11:30 or 12 o'clock. He was done court, and the last things I said to him, or he said to me, I'll see you at 3:00, and I never did see him that day because I left at 2:00.

N.T., 11/6/06, at 61 (emphasis applied to portion challenged by Appellant); see Appellant's Brief at 75.

Prosecutor: Chief, when did you learn that there was a problem at the hospital?

Chief Wojciechowski: At around 6:20 to 6:25. I was at home and I had made a phone call on my cell phone, and the phone was laying [sic] on the table, and I was in the shower, and I heard my wife come to just outside the shower door and [she] said to me, take this phone. Now, I cracked [the] door open because I was covered in soap and shampoo, and said to my wife — and when I opened the door, I looked at my wife. She was the color of my shirt, pure white.

N.T., 11/6/06, at 62-63 (emphasis applied to portion challenged by Appellant); see Appellant's Brief at 75.
In addition, Appellant challenges those portions of Chief Wojciechowski's testimony in which he described delivering the news of Officer Gregg's death to his wife and to Officer Warunek:

Chief Wojciechowski: In all the years I've been in law enforcement, I've never had to deal with anything like that.

And Mrs. Gregg opens the door, and I looked at her, and I said, [Officer Gregg's] been shot. And I believe she said, how is he? And I had to tell this woman I don't know, because I did not know.

N.T., 11/6/06, at 65; see Appellant's Brief at 75.

Prosecutor: Did you — were you able to see Officer Warunek at some point?

Chief Wojciechowski: At some point that night after a briefing and a press conference I asked Dr. Blackstone, my officers indicated to me that Officer Warunek was not aware that [Officer Gregg] was dead, and I asked Dr. Blackstone if it was okay for me to go tell him. And he said, you have to. In his head and in his heart he knows, but you have to go tell him.

Well, fortunately or unfortunately for me, as I was getting to where [Officer Warnuek] was being treated, apparently, [he] saw it on the news, and I went in and it was just him and I. I remember leaning over and kind of hugging him. I really wasn't sure what the nature of his injuries were. I remember holding his head, and we talked, and all he kept saying was, why not me? And we talked about [Officer Gregg] briefly, and I said [he] died doing what he loved and we have to let that be.

N.T., 11/6/06, at 67; see Appellant's Brief at 75.
Appellant also specifically challenges, as "improper victim impact testimony," the following portions of Mr. Epp's testimony, which are excerpted in context:

Prosecutor: Is it also correct to say that [the medication for pain caused by the shooting injuries] does not affect your ability to recall the events of September 29th, 2005?

Mr. Epp: I've been, unfortunately, every night I have some sort of nightmare. I wake up screaming and crying and —

Prosecutor: Joe, I understand. You can only answer the question that I ask.

Mr. Epp: Okay.

N.T., 11/8/06, at 16; see Appellant's Brief at 75-76.

Prosecutor: Mr. Epp, when you first saw Officer Gregg and Officer Warunek [on the day of the shooting], can you describe their demeanor for the jury?

Mr. Epp: When they were walking in from triage they were calm. Everybody was calm. All three were calm. No one was violent, or outraged, or had shown any kind of anger.

Prosecutor: And during your conversation with Officer Gregg while Officer Warunek and [Appellant] were in the bathroom, what was his demeanor during that conversation?

Mr. Epp: Officer Gregg was always, always smiling. I mean, he was always in a great mood. Even if I was having a really bad day and he had come in, he would always — he always made everybody feel like they're having the best day of their life, and that was repeatedly over [sic]. I mean, I've never seen him in any other way other than happy.

Prosecutor: Was that what he was like that night?

Mr. Epp: I'm sorry?

Prosecutor: Was that what he was like that night?

Mr. Epp: Yes.

N.T., 11/8/06, at 32 (emphasis applied to portion cited by Appellant); see Appellant's Brief at 76.
Although, as discussed in the text, supra, Appellant's challenges to this testimony are waived, we must note that even if the issue were not waived, we would not grant Appellant any relief. The challenged testimony describes Chief Wojciechowski's and Mr. Epp's actions prior to and shortly after the shootings, including their interactions with Officer Gregg and their relationship with him. Included in the testimony are some brief references to Officer Gregg's good qualities as a police officer and a person. We would not conclude that such brief testimony, in the context of a penalty phase hearing of nearly two weeks' duration and involving more than forty witnesses, so inflamed the passions and prejudice of the jury that the verdict should be discarded.

Finally, Appellant challenges, as "improper victim impact testimony," the testimony of two witnesses who had been at the scene of the shootings: Kimberly Fetteroff, a nurse who briefly described comforting a very fearful young patient in the emergency room after the shootings, N.T., 11/9/06, at 52; and Barbara Townsend, whose child was in the emergency room for treatment when the shootings occurred and who testified that she hugged a woman who was cleaning up blood drops on the floor after the shootings because she "ached" for the woman and "ached for anybody who might have seen what had taken place." N.T., 11/8/06, at 128. See Appellant's Brief at 76. Appellant did not object to any of this testimony at trial, and hence his claims are waved pursuant to Pennsylvania Rule of Appellate Procedure 302.

We also must point out that the testimony of Ms. Fetteroff and Ms. Townsend is not improper victim impact testimony — it is not victim impact testimony at all. The challenged testimony concerns neither the victim, nor the impact that the death of the victim has had on his family. See 42 Pa.C.S. § 9711(a)(2).

In Appellant's next allegation of passion and prejudice directing the jury's verdict, he cites several comments made by the prosecutor in her closing argument. Specifically, Appellant contends that the prosecutor "improperly minimized the jury's sense of responsibility for its verdict" and "mocked Appellant's mitigation case by pretending to speak for him." Appellant's Brief at 76-77. There is no indication from the record that Appellant objected to the prosecutor's closing argument during the proceedings, and hence these issues are waived pursuant to Pennsylvania Rule of Appellate Procedure 302(a). See McCrae, 832 A.2d at 1037 (in the context of a challenge to the prosecutor's closing argument, stating that failure to raise the issue before the trial court would render the issue waived pursuant to Rule 302).

Appellant takes issue with the following specific comments by the prosecutor:

You do not — do not hold the power of life and death in your hands.

You do not. The law decides when that sentence is to be imposed.

The law sets the factors out. You cannot and will not come back into this courtroom and decide the issue of life and death.

N.T., 11/16/06, at 79 (Prosecutor's Closing Argument); see Appellant's Brief at 76.

I want you to take my criminal conduct and then use that to justify my murderous conduct in the hospital. Use that to lessen how serious and horrible it was. Use that to mitigate it. I'm a drug addict. I violated the law every day since I was 12 years old.

N.T., 11/16/06, at 88; see Appellant's Brief at 77-78.

That list of [Appellant's] victims doesn't include everybody in New-town Borough that became close to him.

N.T., 11/16/06, at 82; see Appellant's Brief at 78.

Next, Appellant cites several other portions of the prosecutor's closing argument, which, he contends, included religious references. In addition, Appellant cites testimony by two witnesses that they prayed at the scene after the shootings were over and by an emergency room technician that he administered "last rites" to Officer Gregg at the scene. See Appellant's Brief at 79. As discussed immediately above, these issues are also waived pursuant to Pennsylvania Rule of Appellate Procedure 302(a). See McCrae, 832 A.2d at 1037.

Appellant specifically cites the following as examples of the prosecutor's allegedly improper religious references:

As you get older and you go through life and you realize life can be hell. Life could be tough.

N.T., 11/16/06, at 78; see Appellant's Brief at 78.

[Appellant] brought hell to earth on September 29, 2005.

N.T., 11/16/06, at 80; see Appellant's Brief at 78.

There was hell in that emergency room and so many people paid the price for it.

N.T., 11/16/06, at 81; see Appellant's Brief at 78.

[Appellant] shot Officer Jim Warunek in the chest. It is by the grace of God that he sits here today.

Appellant next contends that the misconduct of several members of the jury following the completion of sentencing revealed that the jury was "anything but fair and impartial." Appellant's Brief at 81. Following the jury verdict and the court's imposition of the death penalty, the court thanked and excused the jury. However, the court also invited the jury to return to the courtroom for the afternoon session, at which time the court imposed sentence on Appellant's remaining, non-capital counts. Appellant alleges that after the completion of sentencing, one of the jurors yelled "How do you like us now?" to him, and other jurors cheered. This event is not of record, but Appellant has supplied supporting affidavits by two public defenders who represented Appellant and were in the courtroom for sentencing.

The affidavits were signed by Peter Charles Hall, Chief Deputy Public Defender of Bucks County, and C.B. Kirschner, Deputy Public Defender, and were dated, respectively, March 5, 2008, and January 18, 2008.

The right to be judged by a fair and impartial jury of one's peers is, of course, firm and well-established. Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931, 937 (1992). However, the inalterable fact of human frailty requires us to recognize that not every act of juror misconduct warrants the declaration of a mistrial. Only when there has been prejudice to the accused does an act of juror misconduct require the granting of a new trial. Id.

Here, the alleged juror misconduct did not occur until after the court had finished sentencing Appellant, which was hours after the jury's deliberations had been completed. The comment of one juror and the cheers of some undetermined number of jurors, once the jury deliberations and the proceedings were entirely completed, were inappropriate and may have momentarily disrupted the decorum of the court room. However, they do not demonstrate that the jury's sentence was the product of passion and/or prejudice. Appellant's mere assertion that the comment and cheers were indicative of the unfairness and partiality of the jury finds no support in the record, and this claim accordingly lacks merit.

Next, Appellant contends that the trial court erred in admitting the following testimony of Trooper Carcaci, the off-duty state trooper who initially stopped Appellant's car on the day of Officer Gregg's murder.

Trooper Carcaci: I was following [Appellant's] vehicle up Chancellor, and as we were approaching, I think it was Jefferson, there's a ball field right there, and there was a car stopped at the intersection, and [Appellant] had come flying down the street and just slammed the brakes on. He came right up the back of the car. I thought, oh, man, he is going to slam the back of the car. He just stopped in time, I thought, and he was just pummeling her, beating her and pummeling. I thought, well, if this guy gets out of the way, I am going to be able to block him in. I can't wait any longer because he can potentially kill this girl.

Defense Counsel: I'm going to object, Your Honor.

Court: We will let it stand. Overruled.

Trooper Carcaci: The car —

Court: It's not admitted for the truth of the matter asserted, just his mental image. You may continue.

Trooper Carcaci: The car then that was stop[p]ed at the stop sign that had held [Appellant] up, that car left its position [at] the stop sign. That's when I drove around right in front of [Appellant] and stopped and got out.

N.T., 11/6/06, at 146-47.

Appellant contends that this testimony had no probative value and was extremely prejudicial and inflammatory because Appellant "was being accused by implication of trying to kill another victim for whom he had only been charged with simple assault." Appellant's Brief at 82.

We review a trial court's decision to admit testimonial evidence for abuse of discretion. Dillon, 925 A.2d at 141. Evidence of other crimes is admissible when it is relevant to furnish the context or the complete story of the events surrounding a crime. Commonwealth v. Williams, 594 Pa. 366, 936 A.2d 12, 30-31 (2007); see also Bernstein, 2007 Pa. Rules of Evidence, Comment 13a to Pa.R.E. 404 (Gann).

Here, we cannot conclude that the trial court abused its discretion in admitting Trooper Carcaci's testimony. Trooper Carcaci's testimony was probative because it explained why the off-duty state trooper believed it was necessary to stop Appellant's car — an act that initiated the entire sequence of events that resulted in Officer Gregg's murder. We cannot conclude that the trial court abused its discretion by finding Trooper Carcaci's testimony more probative than prejudicial, and hence admitting it.

Finally, in the last sub-issue of issue eight, Appellant contends that the testimony of Ms. Kairis, Appellant's then-girlfriend, was "replete with hearsay and [with] highly inflammatory and prejudicial information." Appellant's Brief at 82. Specifically, Appellant challenges Ms. Kairis's testimony that Appellant had physically assaulted her several times over the past three years, and that, on the day of Officer Gregg's murder, Appellant had threatened to kill several individuals and had physically shaken his elderly grandmother. Appellant did not object to Ms. Kairis's testimony at trial, and hence his claims are waived pursuant to Pennsylvania Rule of Appellate Procedure 302.

Sentence for Recklessly Endangering Another Person

In issue nine, Appellant challenges the legality of his sentence for ten counts of recklessly endangering another person ("REAP"). For these ten counts, the trial court sentenced Appellant to an aggregate term of imprisonment of not less than twenty nor more than forty years. N.T., 11/17/06, at 75-76.

18 Pa.C.S. § 2705.

Appellant contends, and the Commonwealth agrees, that the sentence imposed exceeded the statutory maximum. REAP, as a misdemeanor of the second degree, is subject to a two-year statutory maximum. See 18 Pa.C.S. § 2705 (characterizing REAP as a misdemeanor of the second degree) and § 1104 (establishing a maximum imprisonment term of two years for a person convicted of a misdemeanor of the second degree). The trial court exceeded the statutory maximum term of imprisonment for ten counts of REAP when it imposed a sentence of not more than forty years. Hence, we must vacate Appellant's sentence for REAP, and remand to the trial court for re-sentencing.

Recusal

In issue ten, Appellant contends that the trial judge erred by not recusing himself from deciding post-sentence motions in light of his allegedly "biased" comments before and after sentencing. Appellant's Brief at 86. Appellant suggests that the following four short excerpts demonstrate the trial judge's bias.

First, Appellant cites the judge's closing remarks after Appellant's competency hearing in October 2006, in which the judge refuted the notion that a defendant who proclaims that he wishes to die must be incompetent.

Now, I think the defense would have us accept [that,] as a bright line test, a statement of a defendant that he wishes to die must, therefore, indicate that he is incompetent, and nothing could be further from the truth. Given the circumstances and the theory known only to [Appellant], that may be the most rational response. That's all.

N.T., 10/13/06, at 154-55.

Second, Appellant cites the judge's comments to the jury as to the appropriateness of the verdict, which comments were made after the judge imposed the death sentence and after he thanked the jury members for their service.

It is my practice not to comment upon a verdict rendered. The jury speaks and I accept it. But I will say to you, as a whole, and to each and every one of you, that this verdict is certainly, without any doubt, supported strongly by the evidence you've heard. There is great support in the record for that decision. I want you to know that.

I sat here as well as you did, and it is an appropriate verdict. It is a just verdict. And it is the right verdict, in my view, under the facts and the law.

N.T., 11/17/06, at 64.

Third, Appellant cites the judge's comments at sentencing regarding the victim impact statement read by Officer Gregg's brother, in which comments the judge suggested that he would have understood a cry for vengeance.

I heard the victim impact statement from John Gregg, speaking on behalf of his family. I was taken with the fact that he was so composed, and I was grateful for the fact that although we would understand a cry for vengeance, he did not ask for that, although, certainly that might have been an appropriate response. Instead he tried to share with us the measure of [Officer] Gregg.

N.T., 11/17/06, at 72-73.

Fourth, Appellant cites the judge's comments to Appellant after the judge completed the imposition of sentence.

We stand for something here in Bucks County.

Now, Mr. Flor, there are certain indelible memories in my mind from this hearing. I was stunned with your statements after the shootings. Cruel. Cold. Heartless. But one statement will stick in my mind as long as I live. And that statement was: "The punk got what he deserved." Mr. Flor, I want to remind you of an old Biblical prophecy from the book of Exodus, and it states: "The words you use to condemn will in the end condemn you." And I am sure that, perhaps hundreds of thousands of people, when they read or hear this sentence, will use your words and say, " that punk got what he deserved." That's all.

N.T., 11/17/06, at 77-78 (emphasis added by Appellant, see Appellant's Brief at 86).

Appellant also implies that the trial judge exhibited bias by declining to vacate his Pennsylvania Rule of Appellate Procedure 1925(b) order until after full trial transcripts were received. Appellant's Brief at 87. Instead, the trial court suggested that Appellant file an amended statement upon his receipt of full transcripts. Id. Contrary to the implication in Appellant's brief, Appellant did indeed file an amended Rule 1925(b) statement on January 18, 2008. It is not clear what, if anything, Appellant is arguing in this portion of issue ten.

The standards applicable to a motion to recuse are well-established.

It is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially. As a general rule, a motion for recusal is initially directed to and decided by the jurist whose impartiality is being challenged. In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair and competent.

Commonwealth v. Abw-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998) (internal citations omitted).

Based on our thorough review of the entire record in the instant case, we conclude that Appellant's allegations of judicial bias do not come close to meeting the above standard. Over the course of lengthy proceedings in which numerous witnesses gave testimony as to violent and emotionally-charged events, the judge maintained decorum in the court-room appropriate to the gravity and import of the jury's ultimate determination.

None of the four short passages excerpted by Appellant from the lengthy proceedings constitutes evidence of judicial bias. It is not improper for a trial judge to tell a jury, after the jury has rendered its verdict, that, in the judge's opinion, such verdict was correct and was strongly supported by the evidence of record. Likewise, it is not improper for a judge to address a defendant after sentencing for the purpose of reiterating to the defendant that the punishment just imposed was well-deserved. In this case, the trial judge chose to use Appellant's own words, as revealed during his trial, to make that point. Such choice of words does not show that the judge was biased against Appellant.

It is entirely improper for a judge to express an opinion as to a defendant's guilt or innocence in the charge to the jury, i.e., prior to the announcement of the jury's verdict. See Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977); Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972). The rationale behind this principle is that the judge's expression of opinion leaves an indelible imprint on the minds of the jury and thereby invades the province of the jury to return a verdict. Whitfield, supra at 621; Archambault, supra at 73-75. In the instant case, the judge did not state his opinion until after the jury had rendered its verdict and after the judge had imposed sentence, so the concerns expressed in Whitfield and Archambault are not present.

Regarding the victim impact statement by Mr. Gregg, the judge's statement that he would have understood a call for vengeance — by the murdered officer's brother — does not suggest or imply that the court was in any sense motivated by vengeance or bias. In fact, the judge's statement also made clear that he was grateful for Mr. Gregg's composed demeanor and emphasis on the person of his brother. That the judge would have been able to understand a brother's call for vengeance — had it occurred — against the admitted perpetrator of a police officer's violent murder shows only that the judge had a grasp of human nature, not that he was biased and not that he in any way acted on a non-existent call for vengeance.

Appellant's allegations of bias on the part of the trial judge are entirely without merit, and accordingly he is entitled to no relief on his tenth issue.

Lethal Injection

In Appellant's eleventh and final issue, he contends that lethal injection constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. For his argument, Appellant relies entirely on the United States Supreme Court's grant of certiorari in Baze v. Rees, 551 U.S. 1192, 128 S.Ct. 34, 168 L.Ed.2d 809 (U.S. 2007), where the question presented was whether the lethal injection protocol, as administered in Kentucky, violates the Eighth Amendment. Appellant seeks a stay of execution pending the United States Supreme Court's decision in Baze. See Appellant's Brief at 90.

Although Baze had not been decided when Appellant filed his brief, the United States Supreme Court did decide the case on April 16, 2008, well before argument here. In Baze, the Court held that Kentucky's three-drug protocol of lethal injection was not cruel and unusual punishment under the Eighth Amendment. Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008); see Baumhammers, 960 A.2d at 96 n. 29. Hence, Appellant's entire argument for a stay of execution has been negated by the decision of the United States Supreme Court.

Conclusion

Finally, having concluded that Appellant is entitled to no relief on his claims, except with regard to the sentence imposed for the ten counts of REAP, we must affirm Appellant's sentence of death unless we conclude either that it was a product of passion, prejudice, or any other arbitrary factor, or that the evidence failed to support the finding of at least one aggravating circumstance. 42 Pa.C.S. § 9711(h)(3). Having carefully reviewed the record, we are persuaded that Appellant's sentence of death was not the result of passion, prejudice, or any other arbitrary factor, but rather was grounded in the voluminous evidence properly presented in a lengthy penalty phase hearing. We also conclude that the evidence was sufficient to support each of the four aggravating factors found by the jury. Specifically, the victim was a peace officer; Appellant committed the murder during the perpetration of a felony; Appellant knowingly created a grave risk of death to others in addition to the victim; and Appellant had a significant history of prior violent felonies. 42 Pa.C.S. § 9711(d)(1), (6), (7), and (9).

For the foregoing reasons, we affirm the sentence of death, and we remand for resentencing on the ten counts of REAP.

Former Justice GREENSPAN did not participate in the decision of this case.

Chief Justice CASTILLE, Justices SAYLOR, EAKIN, BAER and TODD join the opinion.