Com. v. Judon, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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