J-S21008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

TYRON DIXON-TILDON,

                          Appellant                  No. 3438 EDA 2013


            Appeal from the Judgment of Sentence August 5, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR0008638-2012


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED JUNE 16, 2015

       Tyron Dixon-Tildon appeals from the judgment of sentence of life

imprisonment that the court imposed after a jury found him guilty of first-

degree murder, carrying an unlicensed firearm, and recklessly endangering

another person (“REAP”). After careful review, we affirm.

       The trial court outlined the Commonwealth’s evidence:

             On the evening of October 6, 2006, Denise Chandler drove
       to the intersection of N. Cleveland Street and W. Cumberland
       Street, intending to purchase a bag of heroin from Mark Jordan.
       Chandler arrived at the intersection and found Jordan standing
       outside of a bar. Chandler drove to Jordan, asked if he was
       carrying heroin, and invited him to the car. Once Jordan entered
       the car, Chandler parked on the corner of Cleveland and
       Cumberland Streets.

             As Chandler gave Jordan money for the drugs, gunshots
       rang out. Chandler attempted to pull out from her parking spot,
       but the defendant crossed in front of her car on foot with a black
       revolver in his hand, forcing Chandler to wait until he entered


*
    Retired Senior Judge assigned to the Superior Court.
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        the car in front of her. Jordan looked down Cleveland Street and
        saw “a lot of people running, but [the defendant] was the only
        one coming down Cleveland. They was all running away from
        where Bilal[1] was. He ran right past the car and he looked right
        at me when I was in the car.”

               After the defendant stepped into that car, Chandler forced
        her way in front of the defendant, honking her horn and
        speeding out of her parking spot onto York Street. Suddenly,
        Jordan exclaimed, “Stop, stop, that’s my boy.”            Chandler
        stopped the car; Donnell Goulbourne ran up to Chandler’s car
        yelling, “Let me get in, let me get in, they shootin!” Chandler let
        Goulbourne into her car. Upon entering, Goulbourne said, “I
        been hit [sic].” “He was asking how long to the hospital and he
        was saying he was short of breath and that he was going to die.
        He kept saying that. I didn’t know he was shot until he said Bilal
        shot him when he was chasing us in the car.”

               Goulbourne then suddenly exclaimed, “There he is!”
        Chandler turned towards the driver’s side window, through which
        she saw the defendant point a gun in her direction from his
        position inside of the car. Goulbourne exclaimed, “Pull out,
        that’s who shot me.” Chandler sped off; a car chase ensued,
        during which Chandler ran at least two red lights and nearly
        collided with a van. Prior to getting to the hospital, Chandler
        spotted two police cars and pulled up to them. Jordan exited the
        car and helped to move Goulbourne into the back of one of the
        police cars.    Goulbourne was taken to Temple University
        Hospital, where he was pronounced dead at 11:40 p.m.

Trial Court Opinion, 6/3/2014, at 1-3.             Five days after the shooting,

Appellant traveled to the Middle East, where he remained for five and one-

half years.     N.T., 7/31/13, at 225.         Appellant was arrested in Amman,




____________________________________________


1
    Witnesses referred to Appellant as both Bilal and Tyron at trial.



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Jordan and brought back to the United States by United States Marshals on

April 29, 2012.

      The jury found Appellant guilty of the aforementioned crimes, and he

was sentenced on August 5, 2013. The following day, Appellant filed a post-

sentence motion, which was denied by the trial court.     This timely appeal

followed.   The trial court directed Appellant to file a concise statement of

matters complained of on appeal, and Appellant complied.       The trial court

authored its Rule 1925(a) opinion on June 3, 2014, and this matter is now

ready for our review. Appellant raises four questions on appeal.

      1. Did the lower court err by overruling Appellant’s objection
         and/or motions for a mistrial during and after the prosecutor’s
         closing, in which the prosecutor improperly commented on
         Appellant’s silence both pre- and post-arrest?

      2. Did the lower court err by permitting the Commonwealth to
         introduce evidence indicating that when the Appellant
         travelled to the Middle East, he was facing felony criminal
         charges in Pennsylvania?

      3. Did the lower court err by admitting the decedent’s purported
         statements tending to inculpate Appellant as an excited
         utterance, a dying declaration, and/or another exception to
         the hearsay rule?

      4. Did the lower court err by permitting the Commonwealth to
         introduce evidence that Denise Chandler knew Appellant
         because she had previously purchased narcotics from him
         where such evidence was irrelevant and violated Pa.R.E.
         404(b)?

Appellant’s brief at 9.




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     Appellant’s first issue relates to the denial of a mistrial due to improper

argument by the Commonwealth.        We review the trial court's decision to

deny a mistrial for an abuse of discretion. Commonwealth v. Boone, 862

A.2d 639, 646 (Pa.Super. 2004).      “A mistrial is necessary only when ‘the

incident upon which the motion is based is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial by preventing

the jury from weighing and rendering a true verdict.’” Commonwealth v.

Lopez, 47 A.3d 74, 83 (Pa.Super. 2012) (citing Commonwealth v. Parker,

957 A.2d 311, 319 (Pa.Super. 2008)).

     In evaluating specific comments made by a party, we note that “a

comment is constitutionally and statutorily forbidden if ‘the language used

by the prosecutor is intended to create for the jury an adverse inference

from the failure of the defendant to testify.’” Commonwealth v. Trivigno,

750 A.2d 243, 248 (Pa. 2000) (citations omitted).          This rule does not

expressly prohibit all comments by a prosecutor regarding a defendant’s

silence. Instead, such a remark “may be appropriate if it is in fair response

to the argument and comment of defense counsel.”            United States v.

Robinson, 485 U.S. 25, 31 (1988).

     Appellant first argues that the Commonwealth improperly commented

on his post-arrest silence and decision not to testify at his criminal

proceeding.   The Commonwealth counters that its argument was fair




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response to the following remarks made by Appellant’s counsel in his own

summation:

     Defense:          Now, what is this evidence? Well, first of all,
                       let’s look the way we look at any other case at
                       what sort of evidence there is that exist. Are
                       there statements by the defendant? Well, the
                       answer to that I think is yes and no. There is
                       no confession of any sort by the defendant.
                       There is no statement from the marshal he told
                       me on the plane or he did this or did that,
                       there’s nothing like that.       We do have
                       information that there was a written document
                       that he executed that was provided to the
                       marshal. What we don’t know –

     Commonwealth: Objection, Your Honor.

     The Court:        Sustained.

N.T., 8/2/13, at 198-199. The document referenced by Appellant’s counsel

was one allegedly signed by Appellant in the presence of United States State

Department officials in Yemen. N.T., 8/1/13, at 36; Appellant’s brief at 15-

16. The document was not presented to the jury. Id.

     Appellant’s allegation relates to the following closing argument offered

by the Commonwealth:


     Commonwealth: You can lay a lot at the Commonwealth’s feet
                   that we’re responsible for, for presenting the
                   reasonable doubt. One thing I want to say to
                   you right now that I cannot understand or
                   accept and I will not accept the burden of is
                   not presenting to you a statement from the
                   defendant which counsel has mentioned


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                        several times you do not have. One man,
                        thanks to the protection of the Constitution,
                        and I’m not saying to make any conclusions
                        about it because the Constitution protects it,
                        but counsel cannot get up here and say, well,
                        you haven’t heard any statements from the
                        defendant. Well, this defendant at any time
                        could have come back to the Commonwealth
                        and said I want to make a statement –

      Defense:          Objection.

      The Court:        Overruled.

      Commonwealth: – I want to tell you why I fled to Yemen, I
                    want to tell you what happened there, and he
                    has failed to do so. The Constitution says you
                    can’t hold that against him, but counsel cannot
                    argue to you that the Commonwealth has not
                    presented a statement from the defendant
                    when the defendant has not chosen to make
                    one to you and tell you what he wants to say
                    about that.

N.T., 8/2/13, at 232-233.

      Appellant argues that the district attorney improperly referred to

Appellant’s post-arrest silence in her summation in a way that violated his

constitutionally protected right against self-incrimination. Indeed, reference

at trial to an accused’s silence while in police custody is a violation of the

constitutional privilege against self-incrimination.    Commonwealth v.

Molina, 104 A.3d 430, 446 (Pa. 2014) (citations omitted).

      As well-founded and valued as the privilege against self-incrimination

may be, it is not without exception.       Pertinent here is the exception



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recognized when counsel responds to a claim made by a criminal defendant

or defendant’s counsel at trial, commonly known as the exception for fair

response.      Our   Supreme      Court    has      acknowledged    that,      “where    a

prosecutor's reference to a defendant's silence is a fair response to a claim

made by defendant or his counsel at trial, there is no violation of the Fifth

Amendment privilege against self-incrimination.”                Commonwealth v.

Copenhefer, 719 A.2d 242, 251 (Pa. 1998) (citing United States v.

Robinson, 485 U.S. 25, 32 (1988)).              “The protective shield of the Fifth

Amendment may not be converted into a sword that cuts back on an area of

legitimate inquiry and comment by the prosecutor on the relevant aspects of

the defense case.”      Id.    (citing United States v. Hasting, 461 U.S. 499

(1983)).

      Appellant urges that argument made by counsel for the Appellee was

not   fair   response    and    constituted     harmful   error.     In     reply,      the

Commonwealth posits that the comments were fair response to Appellant’s

counsel’s reference to the absence of any statement from Appellant and also

that any resulting prejudice was negated by the court’s curative instructions

to the jury. We agree with the Commonwealth.

      This   Court   recently     examined      a   similar   question    of    error    in

Commonwealth v. Adams, 39 A.3d 310 (Pa.Super. 2012) aff'd, 104 A.3d

511 (Pa. 2014). Therein, we evaluated defense counsel’s statements, which



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discussed his client’s silence, in closing argument.         Specifically, counsel

sought to excuse his client’s silence by explaining that speaking or testifying

“isn't the code there. You don't talk. You don't say anything. That's what

everybody does. They don't like talking to the police for a reason.”       Id. at

32. Counsel then went on to discuss the implications of being known as a

“snitch.”   Id.   In response, the Commonwealth noted in part that the

defendant “says I don't have anything to say to you.          He chooses not to

speak and he chose to say that. He didn't choose to say, whoa, I got an

alibi. No prison for me. You're not catching me on a murder rap. He says I

have nothing to say to you.” Id. at 315.

      The Adams Court labeled the appellant’s counsel’s comments about

his client’s silence a “tactical decision.”    Id. at 320.    In making such a

decision, counsel “opened the door to the [Commonwealth] making

responsive closing remarks about Appellant’s silence.”          Id.   This Court

ultimately affirmed the trial court’s decision to deny a new trial based upon

the Commonwealth’s fair response argument but vacated the judgment of

sentence on unrelated grounds.

      In    Appellant’s   argument   herein,    counsel   indicated     that   the

Commonwealth had not produced or pointed to any “confession of any sort

by the defendant” before noting that there existed a written statement by

his client that the Commonwealth failed to produce. N.T., 8/2/13, at 198-



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199. The Commonwealth properly responded to Appellant’s counsel’s use of

his   client’s   Fifth   Amendment    privilege    as   a    sword   to   attack   the

comprehensiveness and credibility of its case.              The Commonwealth was

certainly responsible for proving its case beyond a reasonable doubt, but it is

not required to produce any statement or confession from Appellant

regarding his own conduct. As argued by counsel for the Commonwealth in

her closing argument, “counsel cannot argue to you that the Commonwealth

has not presented a statement from the defendant[.]” N.T., 8/2/13, at 233.

        As in Adams, supra, counsel for Appellant made a tactical decision to

attempt to exploit a perceived weakness in the Commonwealth’s case; in

doing    so,     he   opened   the   door   to    responsive    comments     by    the

Commonwealth’s counsel. We find that the closing argument advanced by

the Commonwealth was a fair response to her counterpart’s own.                 Unlike

Adams, however, the Commonwealth’s comments herein did not use

Appellant’s silence to indicate guilt. Instead, his comments were offered to

address or refute Appellant’s implication that the Commonwealth had

withheld certain evidence from the jury.             Hence, the Commonwealth’s

comments in closing argument were not improper, and we affirm the trial

court’s decision to overrule Appellant’s objection to the Commonwealth’s fair

response argument and motion for a mistrial.




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     Appellant’s remaining issues relate to the admissibility of evidence and

whether the trial court properly permitted the Commonwealth to offer each

of the several statements. Generally, the admission of evidence “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.” Commonwealth v. Gonzalez, 109 A.3d 711, 726 (Pa.Super.

2015), reargument denied (Mar. 24, 2015). A trial court must “weigh the

relevance and probative value of the evidence against the prejudicial impact

of that evidence.” Id. “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. Reid, 811 A.2d 530,

550 (Pa. 2002).

     Appellant’s second argument specifically pertains to his decision to

travel from Philadelphia to Egypt and Amman, Jordan in October 2006, just

five days after the instant murder.   He offered the testimony of Khayyan

Dixon-Tildon, Appellant’s brother, and Tammy Cox, Appellant’s sister-in-law,

to support his contention that he did, in fact, leave the country five days

after the shooting for which he was convicted in order to study Islam. N.T.,

8/2/13, at 111-14, 132-34.     In response, the Commonwealth presented

evidence that there were pending felony charges to rebut the inference that

Appellant’s purpose for traveling to the Middle East was for religious or



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personal reasons. Testimony included verification that Appellant had been

present for each of his multiple pre-trial listings but failed to appear for his

scheduled three-day trial.    Appellant argues that reference to his pending

charges was improper prior bad acts evidence or, at the very least, that the

acknowledgement that his charges were felonies was unduly prejudicial.

However, because the Commonwealth’s evidence directly challenged the

inference that Appellant advocated and was therefore proper rebuttal

evidence, the trial court did not err in admitting it.

      Rebuttal evidence is proper where it is offered to discredit or weaken

testimony of an opponent’s witness. Commonwealth v. Smith, 694 A.2d

1086 (Pa. 1997).      Our standard for reviewing the admission of rebuttal

evidence is a deferential one, as “it is well settled that the admission or

rejection of rebuttal evidence is within the sound discretion of the trial

court.”   Commonwealth v. Bond, 985 A.2d 810, 829 (Pa. 2009).               “An

abuse of discretion will not be found based on a mere error of judgment, but

rather exists where the court has reached a conclusion [that] overrides or

misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013) (quoting

Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007)). Herein,

we find no such abuse.



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      Mindful that we must affirm the trial court’s decision absent a finding

of abuse of discretion, we now turn to whether the trial court erred in

specifically allowing evidence that Appellant was subject to felony charges.

In its 1925(a) opinion, the trial court explains that the reference was

necessary to explain “why the defendant had to appear at multiple pre-trial

listings, and why the defendant’s bail was $25,000.”       Trial Court Opinion,

6/3/2014, at 9, fn 10.     The additional fact that Appellant left the country

with knowledge of these pending charges, as well as the seriousness thereof,

and the substantial sum of money involved undermined Appellant’s

contention that he left solely for his educational and religious development.

Further, the trial court instructed the jury that it may only find the Appellant

guilty if it was “convinced by the evidence that he committed the crime here

and not because of that other matter.” Id.

      Evidence of the prior bad acts was properly admitted as rebuttal

evidence relating to Appellant’s motive for leaving the country. We find that

specific acknowledgment that Appellant was subject to felony charges was

not so prejudicial that the curative instructions offered by the court were

ineffective.   The instruction mitigated any possible prejudicial effect of the

severity of the charges. Accordingly, we affirm the trial court’s decision in

this matter.



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      Appellant’s third contention is that the trial court erred in admitting the

decedent’s statements that 1) “Bilal did it” and 2) “it was over drugs.” In

support of his argument regarding the first statement, Appellant avers that

the decedent’s statement to Chandler that “Bilal did it” should have been

excluded because it was contradicted by the decedent’s statement to the

police after the victim was transferred to the police car that he did not know

who shot him.

      Appellant does not contest that the decedent’s statement to Chandler

that “Bilal did it” was, in fact, a dying declaration for the purposes of Pa.R.E.

404(b)(2), which excepts from the general hearsay prohibition a “statement

that the declarant, while believing the declarant’s death to be imminent,

made about its cause or circumstances.”        Instead, Appellant argues that

Detective Steven Mostovyk’s testimony that “on the way [to the hospital],

[the decedent] said that he didn’t know who shot him” rendered Chandler’s

earlier statement inadmissible as inconsistent.

      Again recalling our abuse of discretion standard and after review of the

relevant testimony, we reject Appellant’s argument.          In support of his

position, Appellant points solely to Commonwealth v. Frederick, 498 A.2d

1322, 1324 (Pa. 1985), which examined various dying declarations by a

victim.   Statements relating to the identification of the accused were

consistent to all witnesses; statements relating to ancillary matters were



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inconsistent among the witnesses.     The trial court, which was affirmed on

appeal, ruled that the jury was responsible for evaluating the credibility of

each witness and that the admission of all statements was proper, noting

specifically that “inconsistency is not a proper basis for excluding dying

declarations.”     While Appellant’s observation that the Frederick Court

acknowledged that the decedent’s inconsistencies related to secondary

matters rather than identification, there is no indication that the holding

would be confined to such a limited circumstance. Further, as our Supreme

Court held in Frederick, any possible inconsistency is best left for the jury

to decide, as “the determination of the credibility of a witness is within the

exclusive province of the jury.”   Commonwealth v. Crawford, 718 A.2d

768, 772 (Pa. 1998). “[T]he fact-finder is free to believe all, part, or none of

the evidence[.]”     Commonwealth v. Diamond, 83 A.3d 119, 134 (Pa.

2009) (citations omitted).

      Appellant’s related contention that the decedent’s statement that the

shooting “was over drugs” was inadmissible is also meritless. Specifically,

Appellant argues that the statement was inadmissible due to vagueness and

indefiniteness, an argument presented for the first time in Appellant’s brief.

Though we note that Appellant did not include this specific allegation in his

1925(b) statement, it is his lack of objection to the testimony at trial that is

fatal to his argument. Accordingly, this issue is waived. Pa.R.A.P. 302(a).



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     Finally, Appellant alleges that the trial court erred in permitting

Chandler’s testimony that she knew Appellant because she had previously

purchased drugs from him. The exchange was as follows:

           Commonwealth: Did you know that young man?

           Chandler:         Yes, I did.

           Commonwealth: And who was that?

           Chandler:         That was Bilal.

           Commonwealth: And how did you know Bilal?

           Chandler:         I knew Bilal through coming up that way
                             because I had, you know, been coming
                             up there at one time on a regular basis.

           Commonwealth: To do what?

           Chandler:         To purchase.

           Commonwealth: If you’d tell the jury, sorry, not me.

           Chandler:         To purchase drugs.

N.T., 7/31/13, at 99-100.      Specifically, Appellant avers that: 1) the

statement was irrelevant to the material facts in the case; and 2) even if

relevant, the statement should have been excluded under Pa.R.E. 404(b)(2)

because its prejudicial effect outweighed the statement’s probative value.

Appellant’s brief at 27.     Rule 404(b)(1) prohibits the admission of

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.” Rule

404(b)(3) holds that such evidence “may be admitted in a criminal case only

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upon a showing that the probative value of the evidence outweighs its

potential for prejudice.”2      Furthermore, “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 a material fact.” Commonwealth v. Drumheller, 808 A.2d 893,

904 (Pa. 2002) (citation omitted).

       Here, Appellant argues that evidence that Chandler knew Appellant

because she bought drugs from him was irrelevant.         We    do   not   agree.

Chandler’s identification of and familiarity with Appellant render the facts

that Appellant was present at the scene and pointed a gun at Chandler’s

vehicle, N.T., 7/31/13, at 102, more probable than they would have been

without testimony.3 For the aforementioned reasons, we therefore find that

the evidence was relevant to a material fact.

       We also disagree with Appellant’s contention that the testimony was

more prejudicial than probative.          As later testimony indicated that drugs

were the likely motive behind the shooting, Chandler’s testimony that she
____________________________________________


2
  Cited language reflects Pa.R.E. 404(b) at the time of Appellant’s trial,
which was prior to the January 2013 revisions.
3
  We also note that, in his post-sentence motion, Appellant specifically
argues that his murder conviction is against the weight of the evidence in
part because Ms. Chandler could not “definitively and credibly tie [Appellant]
to the scene of [decedent’s] shooting and subsequent car chase,” thereby
acknowledging the materiality of Chandler’s identification. Appellant’s Post-
Sentence Motion, 6/6/13, at 3.



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knew Appellant because of their drug-related interactions was abundantly

probative.    Commonwealth v. Johnson, 838 A.2d 663 (Pa. 2003)

(admitting testimony of a witness to a murder regarding the accused’s drug

involvement to establish that defendant-appellant’s motive related to his

drug enterprise). That the court could have required Chandler to sanitize

her testimony by stating that she knew Appellant because he sold “water

ice” outside his residence is of no consequence, as full testimony regarding

Chandler’s familiarity with Appellant was part of the natural development of

the   facts   given    the   circumstances     surrounding     the   shooting.

Commonwealth v. Green, 76 A.3d 575, 583 (Pa.Super 2013) (citations

omitted). For the aforementioned reasons, we reject Appellant’s arguments

relating to Chandler’s testimony and affirm the trial court’s decision to admit

her statements.

      Having found no abuse of discretion in the admission of the challenged

evidence, we affirm.

      Judgement of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2015




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