J-S78024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

BREON DAVONNE JUDON

                            Appellant                         No. 213 MDA 2014


           Appeal from the Judgment of Sentence December 9, 2013
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003670-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                              FILED DECEMBER 24, 2014

       A   jury   found     Breon   Judon      guilty   of   second   degree   murder1,

kidnapping2, robbery3 and three counts of criminal conspiracy4.                The trial

court sentenced Judon to life imprisonment for second degree murder plus a

consecutive term of 6-12 years’ imprisonment5.                 Judon filed this timely

direct appeal6, and both Judon and the trial court complied with Pa.R.A.P.

1925. We affirm.

____________________________________________


1
  18 Pa.C.S. § 2502.
2
  18 Pa.C.S. § 2901.
3
  18 Pa.C.S. § 3701.
4
  18 Pa.C.S. § 903.
5
  The consecutive sentence of 6-12 years’ imprisonment consisted of 2-4
years’ imprisonment for conspiracy to commit a kidnapping in the course of
a felony and 4-8 years’ imprisonment for robbery.
6
  In addition to the present timely appeal at the above caption number,
there was another timely appeal filed on Judon’s behalf at 23 MDA 2014. On
(Footnote Continued Next Page)
J-S78024-14



      The evidence adduced during trial demonstrates that on August 3-4,

2012, Judon and a co-conspirator, Mitchell Dedes, robbed Aaron Reznick of

his i-Phone and vehicle at gunpoint in Hazleton, Pennsylvania, ordered him

to remove his clothes, and forced him into the trunk of his car. Reznick

escaped from the trunk.          Judon and Dedes assaulted Reznick and inflicted

severe injuries to his brain, leaving him semi-comatose.          Police officers

transported Reznick to the hospital, but he died on August 13, 2012. Dedes

ultimately pled guilty to third degree murder.

      Multiple witnesses testified that Judon admitted participating in

Reznick’s robbery, kidnapping and/or beating. Shawn Jackson testified that

within several days after the incident, Judon admitted beating and robbing

Reznick.   N.T. 608-610.         Tanya Stimpson testified that after Reznick was

found, Judon and Dedes told her that they “did something bad and that they

had to get out of town quickly.” N.T. 551. Judon and Dedes explained to

Stimpson that

                       _______________________
(Footnote Continued)

February 26, 2014, this Court dismissed the appeal at 23 MDA 2014 due to
the lack of a docketing statement.

The filing of the other appeal at 23 MDA 2014 does not affect our jurisdiction
over the present appeal. Had Judon prosecuted both appeals, we could have
consolidated these appeals sua sponte. See Pa.R.A.P. 513 (“where there is
more than one appeal from the same order,. . .the appellate court may, in
its discretion, order them to be argued together in all particulars as if but a
single appeal”). Our dismissal of the appeal at 23 MDA 2014 eliminates any
need for consolidation and leaves the present appeal as the sole appeal
within our purview.



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            they had beat a man up, that they had put him in
            the trunk of a car, they had made him take his
            clothes off, that somehow he had gotten out of the
            trunk, and that they had beat him some more, and
            that – something about they had stomped on the
            head. And one of them – I don’t know which, but
            they had said that he was out cold.

N.T. 549-552.    Lastly, Shaun Butler, Judon’s cellmate in jail, testified that

Judon told him that he had robbed and kidnapped Reznick. N.T. 766-768.

      Judon raises three issues in this appeal:

            Did the trial court err by admitting a recorded phone
            conversation between Appellant and his father that
            was irrelevant and prejudicial?

            Did the lower court err by not declaring a mistrial or
            issuing a cautionary instruction after the prosecutor
            impermissibly    stated    in   closing    that   the
            Commonwealth did not present evidence of
            Appellant’s bad character because it was not
            permitted to do so, creating in the mind of the jury
            an impression that such evidence existed?

            Did the prosecutor commit misconduct in closing
            argument by referencing the lack of eyewitness
            testimony at trial, where Appellant's alleged
            coconspirator, an eyewitness to the events in
            question, had exercised his right to remain silent
            when called by the defense, and the trial court
            ordered   all  counsel  to   not   reference   the
            coconspirator?

Brief for Appellant, p. 5.

      Judon’s first argument is a challenge to the admission of a tape

recorded telephone conversation between Judon and his father while Judon

was in jail after his arrest. The admission of evidence




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          is a matter vested within the sound discretion of the
          trial court, and such a decision shall be reversed only
          upon a showing that the trial court abused its
          discretion. In determining whether evidence should
          be admitted, the trial court must weigh the relevant
          and probative value of the evidence against the
          prejudicial impact of the evidence. Evidence is
          relevant if it logically tends to establish a material
          fact in the case or tends to support a reasonable
          inference regarding a material fact. Although a court
          may find that evidence is relevant, the court may
          nevertheless conclude that such evidence is
          inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super.2014).

     The phone call proceeded as follows:

          JUDON: That's all.
          FATHER: Yeah, yeah, yeah. Because I think what's
          going to happen is -- they don't have nothing.
          JUDON: Um-hum.
          FATHER: That's why there's a deal.
          JUDON: Yeah.
          FATHER: Now, is that worth it?
          JUDON: Yeah, it depends what they tell me.
          FATHER: You know because when you say deal,
          you're admitting.
          JUDON: Yeah. But see, the deal--the deal has to be a
          deal. It has--because a 20 to 40 is not a deal to me.
          It's not a deal because I'm young right now, even
          though I'm still going to be young when I get out, I
          don't want to hear that.
          FATHER: Right.
          JUDON: There's a lot of people that might not be
          around by the time I get out. I don't want to hear
          that. I don't want to hear that. So 20 to 40 is not a
          deal to me. 15 to 30 is not a deal to me.
          FATHER: Right.
          JUDON: 10 to 20 is barely a deal.
          FATHER: Yeah.
          JUDON: I'll take anything under 10, nothing more,
          nothing more.


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              FATHER: Well, you're also gonna have the time
              served, too.
              JUDON: Yeah, but nothing more, nothing more than
              ten, nothing more. That's it.
              FATHER: Well, that's what I'm thinking –

N.T. 837-839.

       Judon contends that this conversation is irrelevant7.   We disagree.

Pa.R.E. 401 defines relevant evidence as “evidence having any tendency to

make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the

evidence.”      Pa.R.E. 402 provides in turn: “All relevant evidence is

admissible, except as otherwise provided by law. Evidence that is not

relevant is not admissible.” “Evidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable, or supports a reasonable inference or presumption regarding

____________________________________________


7
  Judon does not argue that his statements during this conversation are
hearsay. Nor would this argument have been successful, for as the trial
court observed, Judon’s statements fit within Pa.R.E. 803(25), the exception
to the hearsay rule permitting statements by a party opponent. Pa.R.A.P.
1925(b) Opinion, p. 8.

The trial court also reasoned that admission of Judon’s statements did not
violate Pa.R.E. 410. Pa.R.A.P. 1925(b) Opinion, pp. 6-8. In pertinent part,
this rule prohibits introduction of statements by the defendant “made during
plea discussions with an attorney for the prosecuting authority if the
discussions did not result in a guilty plea or they resulted in a later
withdrawn guilty plea.” Pa.R.E. 410(a)(4). Judon does not challenge the
trial court’s analysis of Rule 410. Indeed, he admits that the recorded
statements “were not withdrawn pleas or statements made directly in the
course of plea negotiations. . .” Brief For Appellant, p. 18.



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the existence of a material fact.” Antidormi, supra, 84 A.3d at 750. We

agree with the trial court that the phone conversation between Judon and his

father was relevant as Judon’s admission of guilt.                 The subject of the

conversation was a potential guilty plea “deal”. Judon’s father stated: “You

know. . .when you say deal, you’re admitting.” Judon answered: “Yeah.” In

this context, the jury could reasonably construe Judon’s answer “yeah” as an

admission that he was guilty of the charges against him. Stated in terms of

the foregoing definitions of relevance, Judon’s answer “tends to make a fact

at issue”, i.e., Judon’s commission of the alleged crimes, “more probable.”

Antidormi, supra.

         Judon insists that his statement did not indicate consciousness of guilt,

but that he “was merely, at his father’s behest, considering his options.”

Brief For Appellant, p. 16. While it is possible to interpret the conversation

in this manner, it also is reasonable to interpret “yeah” as an admission of

guilt.      Since    the   conversation     was   susceptible   of    more   than    one

interpretation, it was within the trial court’s discretion to admit the

conversation        into   evidence   and    permit   the   jury     to   decide    which

interpretation to believe.       Moreover, it was within the jury’s province to

interpret this evidence in a light favorable to the Commonwealth, i.e., as an

admission of guilt.        Commonwealth v. Charleton, 902 A.2d 554, 562

(Pa.Super.2006) (“It was within the province of the jury as fact-finder to

resolve all issues of credibility, resolve conflicts in evidence, make


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reasonable inferences from the evidence, believe all, none, or some of the

evidence, and ultimately adjudge appellant guilty”).

      Judon also argues that this conversation was unduly prejudicial.

Again, we disagree.      “The court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

However, courts should not prohibit probative evidence as unduly prejudicial

merely because it is harmful to the defendant; the only evidence subject to

exclusion is “evidence so prejudicial that it would inflame the jury to make a

decision based upon something other than the legal propositions relevant to

the case.” Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa.Super.2012).

As explained above, it is possible to interpret Judon’s conversation with his

father as Judon’s admission of guilt.   Nothing about this conversation was

inflammatory.   Nor did it lead the jury to base its decision on something

other than the legal propositions relevant to the case.       It was entirely

permissible for the jury to use this evidence to decide whether Judon was

guilty of the alleged crimes.

      Furthermore, assuming arguendo that this evidence was irrelevant, its

admission was at most harmless error. Harmless error exists where, inter

alia, the erroneously admitted evidence is merely cumulative of other

untainted evidence which is substantially similar to the erroneously admitted


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evidence.   Commonwealth v. Ballard, 80 A.3d 380, 398 (Pa.2013).              In

this case, three other witnesses -- Shawn Jackson, Tanya Stimpson, and

Shaun Butler -- testified that Judon admitted robbing, kidnapping and/or

beating Reznick.    Even Judon’s brief admits: “[N]o party to this appeal

disputes [that Judon] was present in the vehicle [in which Reznick was

kidnapped and locked in the trunk].” Brief For Appellant, p. 8. Therefore,

we reject Judon’s challenge to the admission of his telephone conversation

with his father.

      In his second argument on appeal, Judon contends that the trial court

erred in refusing to grant a mistrial or issue a cautionary instruction after the

prosecutor stated during closing argument that it could not offer evidence of

Judon’s bad character because it was not permitted to do so. According to

Judon, the prosecutor’s comment created the misleading impression that

bad character evidence existed that the Commonwealth could not introduce

into evidence. We conclude that Judon is not entitled to relief.

      In reviewing a question of whether a trial court erred in denying a

motion for a mistrial, an appellate court considers whether the lower court

abused its discretion. Commonwealth v. Young, 849 A.2d 1152, 1154 n.1

(Pa.Super.2004). The remedy of a mistrial

            is an extreme remedy required ‘only when an
            incident is of such a nature that its unavoidable
            effect is to deprive the appellant of a fair and
            impartial tribunal.’




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            With specific reference to a claim of prosecutorial
            misconduct in a closing statement, it is well settled
            that [i]n reviewing prosecutorial remarks to
            determine their prejudicial quality, comments cannot
            be viewed in isolation but, rather, must be
            considered in the context in which they were made.
            Our review of prosecutorial remarks and an
            allegation of prosecutorial misconduct requires us to
            evaluate whether a defendant received a fair trial,
            not a perfect trial. . .

            It is well settled that a prosecutor has considerable
            latitude during closing arguments and his arguments
            are fair if they are supported by the evidence or use
            inferences that can reasonably be derived from the
            evidence. Further, prosecutorial misconduct does not
            take place unless the unavoidable effect of the
            comments at issue was to prejudice the jurors by
            forming in their minds a fixed bias and hostility
            toward the defendant, thus impeding their ability to
            weigh the evidence objectively and render a true
            verdict. Prosecutorial misconduct is evaluated under
            a harmless error standard.

            We are further mindful of the following:

            In determining whether the prosecutor engaged in
            misconduct, we must keep in mind that comments
            made by a prosecutor must be examined within the
            context of defense counsel's conduct. It is well
            settled that the prosecutor may fairly respond to
            points made in the defense closing. Moreover,
            prosecutorial misconduct will not be found where
            comments were based on the evidence or proper
            inferences therefrom or were only oratorical flair.

Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa.Super.2012)

(internal citations omitted).

      In lieu of a mistrial, the trial court may issue a cautionary jury

instruction to disregard an improper closing argument. The court, however,


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may decline to give a cautionary instruction when the prosecutor makes a de

minimis comment during closing argument, and a cautionary instruction

would draw unnecessary attention to the remark.                Commonwealth v.

Bracey, 831 A.2d 678, 683 (Pa.Super.2003).

      In this case, the following facts are pertinent. Neither the defense nor

the prosecution offered evidence of Judon’s character, good or bad, during

their respective cases. During closing argument, defense counsel made the

following   assertion   with   regard   to   a   prosecution   witness’   testimony

concerning co-conspirator Mitchell Dedes: “We heard Mr. Wing describe Mr.

Dedes, white, tattoos on the neck, face teardrops.         And he said it’s not a

person you mess with. That’s not who you mess with. You don’t go against

him. I mean, you saw his reaction. You saw how he described him. We

didn’t hear anything like that about Mr. Judon.”        N.T. 1028.    In response,

during his own closing argument, the prosecutor stated:

             I have a prepared closing. But I have to address a
             few things before I get into what I prepared.
             [Defense counsel] stood up here, and she said to all
             of you about Tony Wing and how he described
             Mitchell Dedes. And she said, yeah, he said he's a
             bad guy; you don't want to mess with him. And she
             said you didn't hear him say anything about my
             client being like that. And you know why you didn't
             hear it? Because we're not allowed to tell you about
             those things.

N.T. 1041. Defense counsel promptly moved for a mistrial but did not seek

a cautionary instruction. N.T. 1041-1042. The trial court denied counsel’s

motion for a mistrial, stating that defense counsel “opened the door when

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you. . .described the witness [as] not saying anything about [Judon].” N.T.

1042-1043.

      The trial court’s discussion of this issue in its Rule 1925(b) opinion

deserves recitation:

             The Court, in its discretion, denied the request for
             mistrial because the Prosecution's reference, while
             improper, responded to an equally improper
             reference from the Defense.          Defense Counsel
             essentially testified to the Appellant's good character
             during closing argument. By pointing to a lack of
             testimony regarding Mr. Judon's bad character,
             Defense Counsel attempted to highlight the
             Appellant's good character, which potentially planted
             the seed in the jury's mind that the Appellant was a
             good man or that the Prosecution had no evidence to
             suggest his bad character.         Such a misleading
             inference opened the door to the Prosecution to offer
             rebuttal. . . The Court cannot in good conscience
             allow the Defense to remain silent on the issue of
             good character throughout trial, then reference a
             lack of bad character evidence offered against the
             Appellant in closing argument to bolster the
             Appellant’s case without allowing the Prosecution to
             cure the misleading argument.

             The scenario played out as follows: (1) Defense
             counsel made an inappropriate reference to the
             Appellant’s good character in closing argument
             where neither litigant argued character evidence
             during their respective case-in-chief; (2) as a way to
             correct the Defense's misleading statement, the
             Prosecution responded with an equally inappropriate
             reference to Pennsylvania Law's prohibition on the
             use of bad character evidence. The Prosecution
             made no reference to specific instances of prior bad
             acts. Nor did the Prosecution make any specific
             reference to the Appellant having a bad reputation in
             the community.




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           The Court, in its discretion to determine the effect of
           and remedy for improper comments during closing
           arguments, determined that the Prosecution's
           comments, although improper, (1) were brief and
           non-descript, and (2) served to correct the Defense's
           potentially prejudicial comment regarding the
           Appellant's good character. Considering the minor
           nature of the prosecution's comment, and the
           improper manner in which the Defense elicited that
           comment, the Court found that very little if any
           prejudice to the jury resulted. In any event, the
           Appellant's closing argument improperly opened the
           door to addressing the Appellant's character, thereby
           lessening any modicum of prejudice resulting from
           the Prosecution's comment. For these reasons the
           court denied the Appellant's request for mistrial.

Trial Court Opinion, pp. 12-13.   The trial court perceptively held that the

prosecutor’s comment was permissible under the doctrine of “fair response”

(sometimes referred to as the “invited response” doctrine).          The fair

response doctrine requires courts to consider whether the prosecutor’s

remarks during closing argument “were invited, and did no more than

respond substantially in order to right the scale, in which event such

comments would not warrant reversing a conviction.”        United States v.

Young, 470 U.S. 1, 12-13 (1985) (internal citations omitted); accord

Commonwealth v. Brown, 417 A.2d 181, 184 (1980) (“we may thus

determine if the comments were made in fair response to defense

argument” since “a prosecutor may be justified in making a reply to an

argument by defense counsel which may not have been proper if made

without provocation”).    As the trial court reasoned, the prosecutor’s

comment might not have been permissible in a vacuum, but it was

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permissible as a fair reply to defense counsel’s improper suggestion during

closing argument that Judon had good character.         Commonwealth v.

Manley, 985 A.2d 256, 268-69 (Pa.Super.2009) (defendant was not entitled

to mistrial due to prosecutor's reference to defendant smoking marijuana

with cellmate while they were in federal custody; statement was rebuttal to

defense counsel's assertion that defendant had been drinking at party,

prosecutor was attempting to offer alternate reason why defendant's

demeanor was as officer described, and remarks were not of nature or kind

as to have unavoidable effect of prejudicing jurors by forming in their minds

fixed bias and hostility toward defendant); Commonwealth v. Chimenti,

524 A.2d 913, 927 & n.11 (Pa.Super.1987) (where defense counsel attacked

prosecutor’s integrity by saying “they send him in because he screams and

he yells and he prejudices and he puts in inadmissible things,” prosecutor’s

remark that he would “love to put in some things” was a fair response).

     Judon also argues that the trial court erred by failing to issue a

cautionary instruction to the jury concerning the prosecutor’s remark. Judon

only requested a mistrial at the time of the prosecutor’s remark; he did not

request a cautionary instruction. Therefore, he has waived this argument.

Commonwealth v. Russell, 938 A.2d 1082, 1093 (Pa.Super.2007)

(defendant waived challenge to court’s failure to provide jury instruction on

corruption of minors statute by failing to make specific objection to the




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absence of the instruction).      Even if Judon preserved this objection, we

agree with the trial court’s discussion of this subject:

            The Court, in its discretion, also found that offering a
            cautionary instruction to the jury would have
            unnecessarily drawn attention to the minor reference
            made during the Prosecution's closing argument.
            See Bracey, 831 A.2d at 683. Once again, the
            Appellant essentially elicited the Prosecution's
            remarks on the prohibition of character evidence by
            underhandedly testifying to the Appellant's good
            character during closing argument. In order to rebut
            what amounted to Defense Counsel testifying to the
            Appellant's    good    character,     the   Prosecution
            responded with a one sentence comment on the
            law's general prohibition on bad character evidence
            without mentioning specifics. These circumstances
            did not warrant a cautionary instruction. In fact, a
            cautionary instruction may well have drawn
            unnecessary attention to both Appellant and
            Prosecution's inappropriate remarks. See id.

Trial Court Opinion, pp. 13-14.

      In his third and final argument on appeal, Judon contends that the

prosecutor committed misconduct during closing argument by violating the

trial court’s order not to mention Mitchell Dedes’ absence from trial. Prior to

closing argument, the trial court instructed counsel not to mention that

Dedes had refused to testify by invoking the Fifth Amendment.          The trial

court stated that “there should be no comment concerning why Mitchell

Dedes is not here.” N.T. 1009. The court elaborated:

            I think the issue is this: Clearly, there has to be a
            discussion in closing arguments concerning Mitchell
            Dedes because of the fact there's a conspiracy
            charge here. He’s a named co-conspirator in the
            criminal information. The only issue that's being

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             raised is whether or not it can be argued where is he
             because he didn't — he failed to testify, and that
             cannot be.

N.T. 1010.

     The prosecutor stated the following during closing argument:

             During defense's opening statement, I took some
             notes. And during her opening —right at the end of
             her opening, she came up here. And in dramatic
             fashion, she said, the evidence is going to come from
             this witness chair (indicating), right front this witness
             chair, right there (indicating). And then she walked
             back and she said, you're not going to hear from any
             eyewitnesses in this case. And that's the one thing
             that I agree with her on, no eyewitnesses because
             Aaron was the only eyewitness to what these guys
             did to him. And after they stomped and kicked his
             head, the trauma was so bad that he never once
             again was able to speak a coherent word or even
             open his eyes. So I agree with her. You're not going
             to hear from an eyewitness because the eyewitness
             is dead, because the defendant killed him. That's
             why you didn't hear from an eyewitness because he's
             no longer here. He's no longer with us.

N.T. 1074. Defense counsel did not object to this comment during closing

argument.    Instead, after closing argument, counsel requested a missing

witness instruction as to Dedes:

             Your Honor, I didn't object [during closing
             argument]. But prior to closing arguments,
             Commonwealth had specifically indicated for me not
             to reference Mr. Dedes not being here or where he
             was as reflected in my opening. l purposely didn't
             reference the eyewitness because he would have
             been an eyewitness. I didn't say you're not going to
             hear from any eyewitnesses because I didn't want to
             call attention to that. Obviously, Mitchell Dedes is an
             eyewitness, and it would reflect to the jury that,
             well, he wasn't testifying. And I think that now that

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            counsel has raised that they're raising -- they're
            saying the only eyewitness is Mr. Reznick. I think it
            opens to a missing witness instruction now. I didn't
            open the door, and I stayed away as the Court had
            ordered. But there is the eyewitness Mitchell Dedes
            who could have testified.

N.T. 1078-79.

      Judon now contends on appeal that the prosecutor’s comments require

a new trial. The trial court properly held that Judon waived this argument,

and that even if Judon preserved it, it was devoid of merit:

            First, defense counsel at trial did not object to the
            prosecutor's comments regarding a lack of
            eyewitnesses to the murder at trial, but instead
            requested that the Court grant a Missing Witness
            instruction during the Charge to the Jury. . .A
            request for jury instruction does not equate to an
            objection to the prosecution's comments, a claim of
            prosecutorial misconduct, or a claim of violation of a
            Court Order.     Therefore, the Appellant did not
            preserve the issue of any alleged prosecutorial
            misconduct for appeal. . .

            Secondly, even if Appellant had objected to the
            Prosecution's comments in closing, those comments
            did not violate the Court’s ruling prohibiting
            reference to Mitchell Dades’ invocation of the Fifth
            Amendment. . .The Prosecution did not comment on
            the reason for Mitchell Dedes’ lack of appearance or
            his exercise of the right to remain silent. Instead, the
            Prosecution merely pointed out that the Jury heard
            no eyewitness testimony. The Court's ruling did not
            prevent the Prosecution from pointing out to the jury
            that no eyewitnesses testified. In fact, the Defense
            Counsel herself specifically indicated in opening
            statements that the jury would not hear from any
            eyewitnesses. N.T. 202. For the Court to hold that
            the Prosecution could not confirm Defense Counsel's
            own previous averments would produce an absurd
            result. The Appellant appears to argue that the

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            Prosecution, by pointing out that no eyewitnesses
            testified, planted the seed in the minds of the jury
            that the Co-Conspirator in this case, Mitchell Dedes,
            exercised his Fifth Amendment rights and refused to
            testify. This argument does not stand especially in
            light of the Appellant's own assertion in opening
            statements that the jury would not hear from any
            eyewitnesses during trial.

            Ultimately, the Court finds that the defense took
            exception to the Prosecution's characterization that
            the victim in this case was really the only neutral
            eyewitness who could have testified to what
            happened to him. This statement does not represent
            a mischaracterization of the facts, nor would it
            objectively influence the jury to conclude that
            Mitchell Dedes exercised his Fifth Amendment rights
            in violation of the Court's order for Counsel to not
            speak to that issue. Instead, the reference to the
            victim as the only eyewitness to the crime qualifies
            as an oratorical flair to remind the jury that the only
            unbiased, neutral party with knowledge of the events
            that night was dead. The reference served as
            legitimate argument, not an underhanded attempt to
            tell the jury that Mitchell Dedes exercised his Fifth
            Amendment rights and declined to testify.

Trial Court Opinion, pp. 15-17.    We agree with the trial court’s thorough

analysis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014


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