J-S14025-20
J-S14026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 DEFOREST JOHNSON                         :
                                          :
                    Appellant             :       No. 1990 EDA 2019

       Appeal from the Judgment of Sentence Entered May 14, 2018
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0007419-2016


 COMMONWEALTH OF PENNSYLVANIA             : IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 DEFOREST JOHNSON                         :
                                          :
                    Appellant             :      No. 1991 EDA 2019

       Appeal from the Judgment of Sentence Entered May 14, 2018
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0007423-2016


BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KING, J.:                                 FILED JUNE 9, 2020

      Appellant, Deforest Johnson, appeals nunc pro tunc from the judgments

of sentence entered in the Philadelphia County Court of Common Pleas,

following his consolidated jury trial convictions for second-degree murder, two
J-S14025-20
J-S14026-20

counts each of kidnapping and robbery, and related offenses.1 We affirm.

        The relevant facts and procedural history of these appeals are as follows.

           Ken Thomas, a cooperating codefendant, testified that he
           lives in North Philadelphia and was friends with all of the
           codefendants in this case. Thomas knew Brandon McKelvey
           as “SK” since they were children. They grew up together in
           the Strawberry Mansion neighborhood of Philadelphia.
           Thomas knew Christopher Corley as “C” since approximately
           2008-2009. They lived in the same neighborhood. Thomas
           knew Nysare Alston as “NA” since 2014. Thomas knew
           [Appellant] as “Big Huss.” Thomas testified that Nysare
           Alston was the only codefendant, out of the group, who
           knew the decedent.

           Thomas admitted that he was involved in the kidnapping,
           robbery, and murder of the decedent and the attempted
           murder of Ryan Hardy on April 17, 2014, along with his
           codefendants.

           Thomas testified that it was Alston’s idea to kidnap and rob
           the decedent for money and drugs and that all five of them
           agreed that it was a great idea. The group also planned to
           get the decedent’s “connect.”10 Thomas testified that:

              [T]he plan was if we got an abandoned house, we was
              going to take them to the abandoned house. We was
              going to interrogate them, get information out of
              them, see if we can get his connect. And if we can
              get his connect, bring his connect there and do
              whatever we got to do to get whatever we need from
              his connect.

           The group planned to torture the decedent, to get
           information about his “connect,” once they had him in the
           abandoned house. Ultimately, it was decided that the
           decedent would have to be killed so he wouldn’t retaliate.

              10“Connect” referred to the person that supplied the
              decedent, a cocaine dealer, with cocaine. The five of
____________________________________________


1   18 Pa.C.S.A. §§ 2502(b), 2901(a)(1), 3701(a)(1)(i), respectively.

                                           -2-
J-S14025-20
J-S14026-20

           them wanted to get the decedent to call his supplier
           so that they could rob the supplier of drugs and money
           as well.

        Thomas testified that he met up with McKelvey, Corley, and
        [Appellant] at a hardware store at 29th and Dauphin Streets
        in Strawberry Mansion on the morning of the incident. The
        four men purchased duct tape and saran wrap for the
        purpose of tying up the decedent. The four then went to
        Alston’s house. Thomas was driving his Grand Prix followed
        by McKelvey, Corley, and [Appellant] in a big, green van
        owned by [Appellant].

        Alston met the others at the van, and the group discussed
        their plan, outside of Alston’s house on Queen Lane. Alston
        planned to invite the decedent over to his house under the
        guise of purchasing drugs from him. He would ask the
        decedent to park his vehicle in the rear driveway. Thomas
        would block the decedent’s vehicle in the driveway with his
        Grand Prix. The other men would grab the decedent from
        his car and place him into [Appellant’s] van.

        The group initiated the plan, but as they were waiting for
        the decedent to arrive, Alston’s stepfather told Alston that
        his friends had to remove the van from the driveway. The
        van exited the driveway and began circling the block. The
        decedent arrived, and instead of pulling into the driveway,
        parked his Camaro on Knox Street, which was on the side
        of Alston’s house. Thomas saw the decedent standing on
        the corner talking on the phone.

        The van pulled next to the decedent’s vehicle and Thomas’
        Grand Prix pulled behind it. McKelvey, Thomas, Corley, and
        [Appellant] exited their respective vehicles. Thomas and
        [Appellant], at point of gun, grabbed the decedent and
        shoved him into the van. Unbeknownst to the group,
        another male, Ryan Hardy, had accompanied the decedent
        and was seated in the decedent’s vehicle. Thomas and
        McKelvey, at point of gun, grabbed Hardy out the decedent’s
        vehicle and shoved him into the van as well.

(Trial Court Opinion, filed September 16, 2019, at 3-4) (internal citations

omitted) (emphasis added).

                                   -3-
J-S14025-20
J-S14026-20

        Mr. Thomas and Mr. Alston stole drugs and jewelry from the decedent’s

vehicle. Mr. Thomas and Mr. Alston also took the decedent’s keys, went to

the decedent’s home, and stole cocaine and a television set. Meanwhile, the

kidnappers drove around in the van with the decedent and Mr. Hardy. During

that time, the kidnappers took the victims’ cell phones and wallets and

tortured them, cutting their wrists and necks.             After a few hours, the

kidnappers threw the decedent and Mr. Hardy out of the van and shot them.

The decedent died as a result of his injuries, but Mr. Hardy survived.

        At docket no. CP-51-CR-0007419-2016 (“docket 7419-2016”), the

Commonwealth charged Appellant with offenses related to the decedent. At

docket      no.    CP-51-CR-0007423-2016            (“docket   7423-2016”),    the

Commonwealth charged Appellant with offenses related to Mr. Hardy,

including attempted murder and aggravated assault.2 On September 2, 2016,

the Commonwealth provided notice of joint trial, notifying Appellant of its

intention to try him together with Mr. Alston, Mr. McKelvey, and Mr. Corley.3

Appellant responded by filing a motion for separate trial, which the court

granted on November 1, 2017.

        Appellant’s consolidated jury          trial for both bills of information


____________________________________________


2   18 Pa.C.S.A. §§ 901(a), 2702(a)(1), respectively.

3 On January 11, 2016, Mr. Thomas entered an open guilty plea to murder,
conspiracy to commit murder, conspiracy to commit robbery, attempted
murder, kidnapping, robbery, and violations of the Uniform Firearms Act. See
N.T. Trial, 5/9/18, at 159-62.

                                           -4-
J-S14025-20
J-S14026-20

commenced on May 7, 2018. On May 10, 2018, the Commonwealth rested

and Appellant called his first witness, Aaron Smith.

          [Mr. Smith was] a jailhouse informant, who previously
          testified on behalf of the Commonwealth against the
          codefendants in a separate trial. During Smith’s prior
          testimony, he stated that McKelvey had confessed
          committing the murder and named his codefendants. Smith
          did not mention [Appellant]. At [Appellant’s] trial, the
          Commonwealth did not call Smith but was aware that the
          defense intended to call him as [a] witness. [Appellant]
          called Smith at trial and elicited the same testimony as his
          prior testimony. However, the following exchange occurred
          during the Commonwealth’s cross-examination of Smith:

              ADA [BOYLE4]: Did Brandon McKelvey tell you
              about an individual that did do the murder with him
              that owned a van?

              SMITH:               Yes.

              ADA [BOYLE]:         Tell us about that.

              SMITH:              He said it was a green van and—
              and, basically, it was this individual’s van.

              ADA [BOYLE]:         He said that the green van belonged
              to who?

              SMITH:               One of the guys. He said Big Homie
              or something.

              ADA [BOYLE]:         He called him “Big Homie”?

              SMITH:               Yeah.

              ADA [BOYLE]:         Do you remember him saying “Big
              Huss”?


____________________________________________


4At trial, Assistant District Attorney (“ADA”) Boyle and ADA Krouse appeared
on behalf of the Commonwealth.

                                           -5-
J-S14025-20
J-S14026-20

          SMITH:            Yes.

          ADA [BOYLE]:      Is that what he said?

          SMITH:            Yes.

          ADA [BOYLE]:     So did Brandon McKelvey tell you
          that Big Huss, the owner of the van, was somebody
          who did the murder with him?

          SMITH:            Yes.

       The defense thereafter impeached Smith with his [pretrial]
       statement, which had no mention of “Big Homie” or “Big
       Huss.” Afterward, the following exchange occurred:

          COUNSEL: Have you spoken to the DA since the last
          time you testified?

          SMITH:     Since when?

          COUNSEL: Since the last time you testified.

          SMITH:     Yes.

          COUNSEL: When did you speak to the DA after you
          testified?

          SMITH:     After I testified?

          COUNSEL: Yeah. You testified in this matter back on
          November 13, 2017. Did you speak to the DA after
          that?

          SMITH:     Yes.

          COUNSEL: And did you tell them what you’ve told—
          did you tell the DA what you’ve told the jury here?
          Did you tell them that, that Big Homie was involved?
          Did you tell the DA that when you spoke to them?

          SMITH:     Yes. I told them before.

          COUNSEL: When did you tell them?

                                   -6-
J-S14025-20
J-S14026-20


            SMITH:      I don’t know the date.

            COUNSEL: But it was after you testified; you’re sure
            about that?

            SMITH:      No. No. It wasn’t after I testified.

            COUNSEL: Okay. But you remember telling the DA
            about Big Homie. That was your testimony, correct?

            SMITH:      Yes.

         During a sidebar, the defense moved for a mistrial claiming
         that the Commonwealth knew the defense was going to call
         Smith as a witness and did not disclose this newfound
         inculpatory evidence against [Appellant].    [ADA] Boyle
         confirmed that she had talked to Smith since he last
         testified. ADA Boyle informed the [c]ourt that Smith had
         never told her about “Big Homie” and she was confused as
         to whether he mentioned “Big Huss.” However, ADA Krouse
         informed the [c]ourt that he had been present every time
         ADA Boyle had spoken to Smith, and ADA Krouse had no
         recollection of Smith ever mentioning “Big Homie” or “Big
         Huss.”

(Trial Court Opinion at 15-16).

      The court denied Appellant’s mistrial motion.    Thereafter, the parties

entered into the following stipulation:

         Ladies and gentlemen, Aaron Smith just testified that he
         had told the district attorney that Big Homie or Big Huss was
         involved in this incident. There’s been a stipulation by and
         between the defense and the District Attorney’s Office that
         at no time did Aaron Smith ever tell the District Attorney’s
         Office or any police official that a Big Homie or a Big Huss
         was involved in this incident.

(N.T. Trial, 5/10/18, at 243).

      On May 14, 2018, the jury found Appellant guilty of second degree


                                     -7-
J-S14025-20
J-S14026-20

murder, two counts each of kidnapping and robbery, and related offenses.

That same day, the court imposed a sentence of life imprisonment without

parole for the murder conviction. Appellant did not file post-sentence motions

or notices of appeal.       Appellant subsequently sought reinstatement of his

direct appeal rights nunc pro tunc at both Court of Common Pleas docket

numbers, which the court granted on June 27, 2019.

      On July 1, 2019, Appellant timely filed separate notices of appeal nunc

pro tunc at dockets 7419-2016 and 7423-2016. This Court docketed each

appeal separately.      On September 25, 2019, Appellant filed an application

requesting permission to file a single appellate brief. Appellant explained “the

issues to be raised under both … Docket Numbers [are] identical, can be

addressed in a single brief, and that permitting Appellant to include both …

Docket Numbers in the caption of the cover sheet of Appellant’s brief would

serve the interests of judicial economy and the parties herein.” (Application

for Relief, filed 9/25/19, at 1-2). This Court granted Appellant’s application

on October 15, 2019.

      Appellant now raises one issue for our review:

         DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION
         BY DENYING APPELLANT’S MOTION FOR A MISTRIAL?

(Appellant’s Brief at 3).

      Appellant argues the Commonwealth conducted a pretrial interview with

the defense witness, Mr. Smith, at which time Mr. Smith indicated he could

implicate   Appellant    in   the   crimes   at   issue.   Appellant   asserts   the

                                        -8-
J-S14025-20
J-S14026-20

Commonwealth’s deliberate failure to disclose Mr. Smith’s inculpatory

statements constituted a discovery violation, resulted in a trial by ambush,

and deprived Appellant of his due process rights.5 Appellant insists the court

should have granted a mistrial on this basis. Further, Appellant maintains the

court’s denial of his motion for mistrial cannot be deemed harmless error, and

“no cautionary instruction could have cured the harm caused by the

prosecutor’s underhanded tactic of withholding the inculpatory information

Smith gave her about Appellant.”               (Appellant’s Brief at 47).   Appellant

concludes the court abused its discretion by denying his motion for mistrial,

and he is entitled to a new trial. We disagree.

       Our standard of review of a court’s denial of a motion for mistrial is as

follows:

           In criminal trials, declaration of a mistrial serves to eliminate
           the negative effect wrought upon a defendant when
           prejudicial elements are injected into the case or otherwise
           discovered at trial. By nullifying the tainted process of the
           former trial and allowing a new trial to convene, declaration
           of a mistrial serves not only the defendant’s interest but,
           equally important, the public’s interest in fair trials designed
           to end in just judgments. Accordingly, the trial court is
           vested with discretion to grant a mistrial whenever the
           alleged prejudicial event may reasonably be said to deprive
           the defendant of a fair and impartial trial. In making its
____________________________________________


5 To support his assertion that the Commonwealth knew of Mr. Smith’s
inculpatory statements prior to trial, Appellant relies on the fact that ADA
Boyle “immediately zeroed in” on Mr. Smith with a line of questions about
Appellant. (Appellant’s Brief at 30). ADA Boyle also “corrected” Mr. Smith
when he said “Big Homie” instead of “Big Huss.” (Id.). Finally, Appellant
emphasizes the following statement from ADA Boyle at sidebar: “He told me
Big Huss last time before the judge even asked—.” (Id.)

                                           -9-
J-S14025-20
J-S14026-20

         determination, the court must discern whether
         misconduct or prejudicial error actually occurred, and
         if so, ... assess the degree of any resulting prejudice. Our
         review of the resulting order is constrained to determining
         whether the court abused its discretion. Judicial discretion
         requires action in conformity with the law on facts and
         circumstances before the trial court after hearing and
         consideration. Consequently, the court abuses its discretion
         if, in resolving the issue for decision, it misapplies the law
         or exercises its discretion in a manner lacking reason.

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016), appeal

denied, 641 Pa. 63, 165 A.3d 895 (2017) (emphasis added).

      Pennsylvania Rule of Criminal Procedure 573 provides in pertinent part:

         Rule 573. Pretrial Discovery and Inspection

                                   *     *      *

         (B) Disclosure by the Commonwealth.

         (1) Mandatory. In all court cases, on request by the
         defendant, and subject to any protective order which the
         Commonwealth might obtain under this rule, the
         Commonwealth shall disclose to the defendant’s attorney all
         of the following requested items or information, provided
         they are material to the instant case. The Commonwealth
         shall, when applicable, permit the defendant’s attorney to
         inspect and copy or photograph such items.

                                   *     *      *

            (b) any written confession or inculpatory statement,
            or the substance of any oral confession or inculpatory
            statement, and the identity of the person to whom the
            confession or inculpatory statement was made that is
            in the possession or control of the attorney for
            the Commonwealth;

Pa.R.Crim.P. 573(B)(1)(b) (emphasis added). “The purpose of the discovery

rules is to permit the parties in a criminal matter to be prepared for trial. Trial

                                       - 10 -
J-S14025-20
J-S14026-20

by ambush is contrary to the spirit and letter of those rules and cannot be

condoned.”     Commonwealth v. Manchas, 633 A.2d 618, 625 (Pa.Super.

1993), appeal denied, 539 Pa. 647, 651 A.2d 535 (1994).

       “[A]n appellant’s due process rights are violated and his right to a fair

trial infringed whenever he is not given all of the discoverable material

evidence in advance of trial[.]” Commonwealth v. Hanford, 937 A.2d 1094,

1101 (Pa.Super. 2007), appeal denied, 598 Pa. 763, 956 A.2d 432 (2008).

“Our cases have made it clear that, as a matter of due process, it is error to

fail to provide evidence that will be used to impeach the credibility of defense

witnesses.” Commonwealth v. Ulen, 539 Pa. 51, 56, 650 A.2d 416, 418

(1994).

       Instantly, on cross-examination, Mr. Smith testified that Appellant’s

codefendant, Brandon McKelvey, told him that Big Homie was involved in the

kidnapping and murder. See N.T. Trial, 5/10/18, at 217-18. ADA Boyle asked

whether Mr. McKelvey actually said Big Huss, and Mr. Smith agreed that was

the name he had heard. On redirect, defense counsel confronted Mr. Smith

with his prior statement, which did not mention Big Homie.6 Id. at 221. Mr.

Smith conceded his statement did not mention Big Homie, but he insisted that

he told the Commonwealth about Big Homie’s involvement prior to trial. Id.

at 224-25.


____________________________________________


6On redirect, defense counsel did not use the nickname Big Huss. Rather, he
only referred to Big Homie. See N.T. Trial, 5/10/18, at 221, 224, 225.

                                          - 11 -
J-S14025-20
J-S14026-20

       At that point, defense counsel requested a sidebar and moved for a

mistrial.    During the sidebar, ADA Krouse stated that Mr. Smith never

mentioned Big Homie or Big Huss at any of their meetings.                 Id. at 232.

Although ADA Boyle could not “say 100 percent that [Mr. Smith] didn’t say

Big Huss,” she emphasized that ADA Krouse was with her “every single time

we’ve spoke to Aaron Smith.” Id. at 232, 238. The court denied Appellant’s

motion      for   mistrial,   and   it   specifically   found   the   Commonwealth’s

representations to be credible. See Trial Court Opinion at 17. In light of the

court’s finding, which is supported by the record, we cannot agree with

Appellant’s argument that the Commonwealth actually committed a discovery

violation.7 See Tucker, supra; Pa.R.Crim.P. 573(B)(1)(b).

       Moreover, immediately after its denial of the mistrial motion, the court

provided Appellant with two options going forward. First, the court offered to

provide a cautionary instruction: “I can do a few things.               I can give a

cautionary instruction. You can word it and I will take a look at it ….” N.T.

Trial, 5/10/18, at 234. The court also offered to allow a stipulation: “And so



____________________________________________


7 Regarding ADA Boyle’s statement that Mr. Smith “told me Big Huss last time
before the judge even asked—,” defense counsel interrupted ADA Boyle before
she could complete her sentence or provide additional context. N.T. Trial,
5/10/18, at 226. At the start of the next day’s proceedings, defense counsel
renewed his motion for mistrial and provided additional argument in support
thereof. ADA Boyle responded by clarifying her statement from the previous
day as follows: “So I thought that [Mr. Smith] testified at the [codefendants’]
trial about [Appellant]. And I was wrong because I didn’t read the notes at
the time.” N.T. Trial, 5/11/18, at 18.

                                           - 12 -
J-S14025-20
J-S14026-20

you can do a stipulation where, you know, either you or Ms. Boyle gets up and

says that [Mr. Smith] never said the name Big Homie or Big Huss to the district

attorney.” Id. at 237.

      Ultimately, the court did not provide a cautionary instruction. Rather,

the parties stipulated that Mr. Smith did not inform the Commonwealth that

Big Homie or Big Huss was involved in the underlying crimes. Id. at 243.

Appellant is now bound by his stipulation that the Commonwealth was not in

possession of the inculpatory statements at issue, and he cannot argue

otherwise.    See Tyson v. Commonwealth, 684 A.2d 246, 251 n.11

(Pa.Cmwlth. 1996) (stating: “[A] stipulation of facts is binding on both the

parties and on this court, and facts effectively stipulated are controlling and

conclusive”); McKelvey v. McKelvey, 771 A.2d 63, 63 n.1 (Pa.Super. 2001)

(explaining party normally binds himself when entering into stipulation, except

to matters that affect jurisdiction). See also Commonwealth v. Mathis,

463 A.2d 1167 (Pa.Super. 1983) (supporting stipulations in criminal cases).

Based upon the foregoing, we conclude the trial court did not abuse its

discretion in denying Appellant’s motion for mistrial.   See Tucker, supra.

Accordingly, we affirm.

      Judgments of sentence affirmed.




                                    - 13 -
J-S14025-20
J-S14026-20

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/09/2020




                          - 14 -
