[J-25-2014][M.O. – Stevens, J.] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellee**

**v. RICHARD ANDREW POPLAWSKI,** 

**Appellant :**  **: :**  **: :**  **: :**  **: :**  **: No. 654 CAP**  **Appeal from the Judgment of Sentence entered on 9/6/11 in the Court of**  **Common Pleas, Criminal Division of Allegheny County at No. CP-02-CR**  **0005652-2009**

**ARGUED: April 9, 2014**

CONCURRING OPINION

MR. CHIEF JUSTICE SAYLOR DECIDED: December 29, 2015

**I join Parts I and II of the majority opinion and con cur in the result relative to the** 

**balance. With regard to the treatment in Part III of Appell**  **ant’s claim of trial court error related to the admission of his statements containing raci**  **al epithets, I have difficulty with the majority’s abbreviated disposition of the claim base**  **d on harmlessness, particularly as it relates to the penalty phase of trial.**  See **Majority Opinion,** slip op. **at 27-28. In this regard, the epithets certainly bolstered the prosecuto**  **r’s inciting remarks during the penalty phase denominating Appellant as within a class o**  **f “haters and bigots and racists[.]”**  Id. **at 48 (quoting N.T., June 28, 2011, at 328). Since a broader assessment**  **of the impact of the overall evidence along these lines will likely be required on post**  **conviction review, I would refrain at this juncture fro m wider pronouncements, pertaining**  **to the penalty phase, as to harmlessness. [J-25-2014][M.O. – Stevens, J.] - 2** 

**Concerning Part V’s treatment of the admission of evid ence that Appellant visited**  **a controversial website, I would not deem Appellant’s c hallenge to have been waived as**  **does the majority.** See id. **at 48. The material aspect of the salient objection, it would**  **seem to me, is invocation of the requirement of Rule of Evidence 403 that evidence**  **should be excluded where its probative value is outweig hed by the danger of unfair**  **prejudice.** See **Pa.R.E. 403. While certainly inartful, Appellant’ s trial counsel appears**  **to have been attempting to advance just such an argumen t, when she was interrupted**  **by the trial judge’s ruling.** See **N.T., June 23, 2011, at 871-72 (“[B]ecause he’s on the Penguin website, that doesn’t make him a hockey player.**  **Because he was on StormFront –“). As I would treat this claim as preserve**  **d, at least as pertaining to the guilt phase of trial, I would simply deem the evidence**  **harmless in such regard. As to the potential spillover effect into the penalt**  **y phase, however, I believe that this matter is best left for post-conviction review. In**  **this regard, I note that penalty counsel did not object when the Commonwealth moved f**  **or incorporation of the guilt phase evidence into the penalty phase, although the**  **very limited purpose for which**

**some of that evidence had been admitted was unrelated to penalty. Moreover, penalty**  **counsel also failed to object to the prosecutor’s specific allusions to the evidence, which**  **clearly transcended the basis for its admission at the gu ilt phase.**  See **N.T., June 28, 2011, at 328 (“Nazism, StormFront, haters, ladies and**  **gentlemen . . .[;] what he learned on those websites, chatting with those people, those li**  **ke-minded haters and bigots and racists, we’ll never know.”). From my point of view, i**  **n the absence of critical objections to a pattern of conduct on the part of the prosecutor**  **– encompassing statements deemed by the majority to be “highly irregular and**  **improper,” Majority Opinion,** slip op. **at 53 n.17, and by the trial judge to be “way over the line” and “just pandering to the** **[J-25-2014][M.O. – Stevens, J.] - 3**

**emotions of the jury,” N.T., June 27, 2011, at 95-96 – I believe that a probing judicial**  **assessment is properly reserved to post-conviction. Regarding the issue of future dangerousness (Part VI)**  **, the Court recently related that “a prosecutor is permitted to discuss a defendant’s f**  **uture dangerousness during rebuttal, after a defendant**  places his future conduct at issue **.”** Commonwealth v. Eichinger

**, ___ Pa. ___, ___, 108 A.3d 821, 835 (2014) (empha sis added). The majority**  **appears to appropriately determine that mitigation e vidence centered on a defendant’s**  **positive influence on peers as recently as high school,** see **Majority Opinion,** slip op. **at 60-61), is not of a type placing future conduct in issue,**  **but it proceeds nevertheless to deny relief based on harmless error.**  See id. **at 58-59. Again, viewing this claim in isolation, I do not regard the difficulty with the pr**  **osecutor’s remarks implicating future dangerousness as sufficient, in and of itself, to warrant**  **a new penalty hearing, but I would reserve an assessment of the aggregation of the pr**  **osecutorial overreaching for the post-conviction stage, where the broader range of**  **it may be appropriately**

**considered. Finally, I am concerned with the apparent abuse of th**  **e latitude afforded to the prosecution to introduce victim-impact evidence,**  see **Majority Opinion, slip op. at 59-60, and I would suggest that this case may present an apt v**  **ehicle, on post-conviction review, for imposing some rational limits as a superviso**  **ry matter.**