J-S02038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ROGER I. SUERO
Appellant No. 1025 EDA 2014
Appeal from the Judgment of Sentence of December 5, 2013 In the Court of Common Pleas of Northampton County Criminal Division at No.: CP-48-CR-0001552-2013
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 23, 2015
Roger I. Suero appeals his December 5, 2013 judgment of sentence,
which was imposed following convictions by jury of one count each of
second-degree murder, robbery, aggravated assault, burglary, criminal
trespass, theft by unlawful taking, terroristic threats, recklessly endangering
another person, and possessing an instrument of crime, and two counts of
conspiracy.1 We affirm.
On January 15, 2012, Suero, his co-defendant Rebecca Johnson, and
two other individuals conspired to rob Johnson’s grandmother, Carrie Smith.
Ms. Smith suffered from preexisting medical conditions of the heart and
____________________________________________
1 See 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(ii), 2702(a)(1), 3502(a), 3503(a)(1)(ii), 3921(a), 2706(a)(1), 2705, 907(a), and 903, respectively. J-S02038-15
lungs, including coronary artery disease, atrial fibrillation, and interstitial
lung disease. Notes of Testimony (“N.T.”), 10/2/2013, at 107. In the early
morning hours of January 15, 2012, Suero and an unknown individual
entered Ms. Smith’s residence. Ms. Smith called 911 and told the police
officers who responded that she was awoken by two males entering her
bedroom. N.T., 10/1/2013, at 11. Ms. Smith stated that one man wore a
dark, hooded sweatshirt and that the other had blue surgical gloves on his
hands. Id. at 12. The man wearing the sweatshirt told her to remain quiet,
and he placed a pillow over her face. When he removed the pillow, he told
Ms. Smith that she would not be harmed if she cooperated.
Ms. Smith reported that the man in the sweatshirt demanded to know
the location of her safe, and that the other man searched through her
dressers while she led the first man to her safe. Id. at 13. When she
struggled to remember the safe’s combination, the man threatened her, and
Ms. Smith felt a cold, hard object against the back of her head, which she
believed to be a firearm. Id. at 14. After she opened the safe, Ms. Smith
remembered seeing the individual wearing the blue surgical gloves reaching
into the safe and removing her belongings. The men took approximately
$35,000.00 cash from the safe. After removing the contents of the safe, the
men took Ms. Smith back to her bedroom, then fled from the residence.
Ms. Smith suffered a heart attack during or shortly after the robbery,
and she was hospitalized several times over the subsequent weeks. On
March 16, 2012, Ms. Smith died of exacerbation of congestive heart failure
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as a result of the heart attack suffered on January 15, 2012. N.T.,
10/2/2013, at 131.
The Commonwealth’s theory of the case was that Suero and Rebecca
Johnson conspired to commit the robbery because they planned to travel to
Colorado to purchase a large amount of marijuana, and that they needed a
substantial sum of money to accomplish that goal. Brief for Commonwealth
at 25. At trial, the Commonwealth called Steven Wilson as a witness, who
testified that Suero and Johnson had attempted to solicit his aid in a
marijuana distribution scheme. N.T., 10/1/2013, at 204. Mr. Wilson
testified that the quantity of marijuana that Suero and Johnson sought to
acquire would have a value of approximately $400,000.00. Id. at 210. The
Commonwealth introduced this evidence to demonstrate the defendants’
motive for the robbery, as it was “evidence tending to show that [Suero] and
his co-defendant were in need of obtaining a substantial sum of money to
make their marijuana purchase.” Brief for Commonwealth at 25.
Prior to trial, Suero moved to exclude Mr. Wilson’s testimony as
inadmissible evidence of prior bad acts pursuant to Pa.R.E. 404(b)(1). The
trial court denied Suero’s motion, finding that the evidence was relevant to
motive and that the probative value of Wilson’s testimony outweighed any
prejudice to Suero. Suero also moved to exclude evidence of certain prison
phone calls, during which Rebecca Johnson implicated Suero in the crimes.
The trial court permitted the introduction of the calls, provided that the
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transcripts of the calls be redacted in a manner that would remove any
reference to Suero.
On September 30, 2013, Suero and Johnson proceeded to a joint trial,
which lasted for six days. During closing arguments, the attorney for the
Commonwealth made several statements that Suero alleged to be
inflammatory. After closing arguments were completed, Suero objected to
the statements and moved for a mistrial, arguing that the assistant district
attorney, inter alia, misrepresented testimony, stated her personal beliefs
about the credibility of witnesses, and improperly commented upon Suero’s
demeanor during the trial. The parties agreed on a number of curative
instructions, and the trial court proceeded to instruct the jury accordingly.
The jury returned a verdict that same day, finding Suero guilty of the above-
listed charges.2 On December 5, 2013, the trial court sentenced Suero to,
inter alia, life imprisonment without the possibility of parole. On December
16, 2013, Suero filed post-sentence motions, which the trial court denied on
March 24, 2014.
Suero timely filed a notice of appeal on April 2, 2014. On April 3,
2014, the trial court directed Suero to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Suero timely filed a
2 Suero’s co-defendant, Rebecca Johnson, was also convicted of numerous offenses in connection with the incident, and was sentenced to a term of life imprisonment.
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concise statement on April 15, 2014. On April 22, 2014, the trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a), which incorporated its
March 24, 2014 opinion in support of the order denying Suero’s post-
sentence motions.
Suero raises the following issues for our review:
1. Whether the trial court erred in refusing to grant a mistrial, or a new trial, by reason of the fact that, during closing arguments by the Commonwealth, counsel for the Commonwealth made multiple inappropriate comments, the effect of which was to inflame the passions, fears or prejudices of the jury?
2. Whether the trial court erred in not declaring a [m]istrial, sua sponte, given the gross prosecutorial misconduct displayed during the closing?
3. Whether the trial court erred in denying [Suero’s] pretrial motion to preclude evidence of other criminal conduct by [Suero]?
4. Whether the trial court erred in denying [Suero’s] pretrial motion to preclude evidence of prison phone calls made by the codefendant implicating [Suero]?
Brief for Suero at 2.
Suero argues that the trial court erred in denying his motion for a
mistrial, which was based upon the alleged misconduct of the assistant
district attorney during her closing argument. Specifically, Suero argues
that the assistant district attorney mischaracterized portions of testimony,
stated her own opinion about the credibility of Suero’s testimony, allegedly
displayed inadmissible evidence on a projector screen, and instructed the
jury to consider Suero’s demeanor in the courtroom.
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“In reviewing a trial court’s denial of a motion for a mistrial, our
standard is abuse of discretion.” Commonwealth v. Bryant, 67 A.3d 716,
728 (Pa. 2013). “An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, . . . discretion is abused.” Commonwealth v.
Stollar, 84 A.3d 635, 650 (Pa. 2014) (citation omitted). “A mistrial is an
extreme remedy that is required only where the challenged event deprived
the accused of a fair and impartial trial.” Commonwealth v. Travaglia, 28
A.3d 868, 879 (Pa. 2011). Furthermore, “[a] mistrial is not necessary where
cautionary instructions are adequate to overcome prejudice.”
Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011).
In his first issue, Suero argues that the trial court erred by not
granting his motion for a mistrial due to the alleged prosecutorial misconduct
displayed during the Commonwealth’s closing argument. We disagree.
Preliminarily, the trial court and the Commonwealth assert that the
motion for a mistrial was not denied, but rather that counsel for Suero
withdrew the motion after an in camera conference during which the parties
discussed the potential efficacy of curative instructions in lieu of a mistrial.
Suero asserts that the motion for a mistrial “was not formally withdrawn, but
was essentially denied” by the trial court’s suggested curative instructions.
Brief for Suero at 13. Suero argues that “the instructions given did not, and
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could not, ameliorate the improper effects of the prosecution [sic]
arguments.” Id.
During the in camera conference, the trial court suggested instructing
the jury to disregard any speculation about what a potential witness would
have said if he had testified, and to remind the jury that the defendants
were under no obligation to assert their innocence. N.T., 10/7/2013, at 140.
The trial court and counsel for Suero engaged in the following exchange:
The Court: . . . I know you’re not going to tell me that you’re satisfied with that because you’re asking for a mistrial, but I’m going to ask you anyway: Would that be satisfactory to the defense if I were to give those two statements? Would you still want to redo this entire trial again?
[Counsel for Suero]: The answer to that is a resounding no, Your Honor. If the jury is instructed in a way that indicates that the comment about what Gavin Holihan might have said is to be utterly disregarded, and comments about who is or isn’t believable, if you comment on that in a way that indicates that that’s for them and not for us, I think as to those two issues, I’m fine.
Id. Counsel for Suero requested that a number of other details be included
in the curative instructions, but made no further demands for a mistrial. Id.
at 143. After the trial court prepared the jury instructions, the parties
reviewed the instructions in another in camera conference. Id. at 145-53.
While counsel for Suero did suggest an additional instruction, a request that
the trial court denied, no parties objected to the curative instructions as
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formulated by the trial court.3 Furthermore, the trial court asked defense
counsel:
The Court: Okay. Under the circumstances now, does that change [Suero’s] position as to whether they contend a mistrial needs to be granted?
[Counsel for Suero]: I’ll speak for Mr. Suero, yes, it does.
Id. at 149. After reading the entire jury charge, the trial court asked the
attorneys if there were “any objections, corrections, [or] additions” to be
made, and all of the attorneys responded in the negative. Id. at 208.
In Commonwealth v. Brooks, 508 A.2d 316 (Pa. Super. 1986), a
case similarly arising from the robbery and assault of an elderly couple in
their home, the defendant’s counsel moved for a mistrial due to a prejudicial
occurrence during trial. However, the defendant’s counsel “initially objected
but then withdrew that objection when the court gave a curative instruction,
stating that his concerns had been satisfied.” Id. at 322. As a result, this
Court concluded that the withdrawal of counsel’s objection precluded the
defendant from pursuing the issue on appeal. Id.
The trial court directly asked counsel for Suero if he believed that a
mistrial would still be necessary if the court gave curative instructions to the
3 On appeal, Suero does not challenge the court’s refusal to give the suggested instruction.
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jury. Although Suero now argues that “the instructions given did not, and
could not, ameliorate the improper effects of the prosecution [sic]
arguments,” Brief for Suero at 13, counsel clearly indicated to the trial court
that the curative instructions obviated the perceived need for a mistrial.
Thus, as in Brooks, counsel for Suero withdrew the objection by stating that
the curative instructions adequately addressed his concerns.
The result of the withdrawal of this objection is effectively the same as
having never raised or preserved the issue in the first instance. That is, on
the record before us, this issue has not been preserved for purposes of this
appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”);
Commonwealth v. Houck, 102 A.3d 443, 451 (Pa. Super. 2014) (“[T]he
failure to make a timely and specific objection before the trial court at the
appropriate stage of the proceedings will result in waiver of the issue.”)
(citations omitted). Accordingly, Suero’s first issue is waived.
In his second issue, Suero contends that, although counsel moved for
a mistrial and subsequently withdrew the motion, the trial court nonetheless
should have declared a mistrial sua sponte. Brief for Suero at 14. We
disagree.
Pennsylvania Rule of Criminal Procedure 605(B)4 provides as follows:
4 In his brief, Suero cites a previous version of this rule, Pa.R.Crim.P. 1118(b). The current rule is Pa.R.Crim.P. 605(B).
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When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.
Pa.R.Crim.P. 605(B). We review a trial court’s decision on this matter for an
abuse of discretion. See Commonwealth v. Orie, 88 A.3d 983, 995 (Pa.
Super. 2014) (“It is within a trial judge’s discretion to declare a mistrial sua
sponte upon the showing of manifest necessity, and absent an abuse of that
discretion, we will not disturb his or her decision.”). Further, the United
States Supreme Court has disapproved of the “application of any mechanical
formula by which to judge the propriety of declaring a mistrial in the varying
and often unique situations arising during the course of a criminal trial.”
Illinois v. Somerville, 410 U.S. 458, 462 (1973). “The broad discretion
reserved to the trial judge in such circumstances has been consistently
reiterated . . . .” Id.
Suero’s argument that the trial court erred in not sua sponte declaring
a mistrial is unconnvincing, particularly in light of the fact that, having
initially sought a mistrial, counsel shortly thereafter stated that a mistrial
would not be necessary. Suero suggests that, after confirming that the
proposed curative instructions were sufficient to address Suero’s concerns
and that a mistrial would not be necessary, the court nevertheless should
have declared a mistrial. Brief for Suero at 16. In his brief, Suero seems to
acknowledge the peculiarity of this argument, observing that it “seems
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paradoxical” to assert that the trial court should have declared a mistrial sua
sponte under these circumstances. Id. at 14.
Citing United States v. Dinitz, 424 U.S. 600, 609 (1976), Suero
argues that “[o]f paramount concern is the defendant’s right to retain
primary control over the course to be followed in the event of prosecutorial
or judicial error in order to protect his valued right to have his trial
completed in a particular tribunal.” Brief for Suero at 16. However, Suero
argues, “[a]ny perceived right [Suero] has in having the matter heard by the
first jury empanelled is no longer an issue when [Suero] in fact made a
motion for [a] mistrial.” Id. Thus, presumably, the trial court needed not
consider Suero’s interest in completing the trial and should have declared a
mistrial sua sponte in response to the “gross prosecutorial misconduct.” Id.
at 14. This argument ignores a defendant’s role in determining the best
course of action in response to an allegedly prejudicial event. In Dinitz, the
United States Supreme Court, when considering the interaction between
mistrials and the Double Jeopardy Clause, distinguished between sua sponte
declarations of a mistrial and those granted upon the defendant’s motion, as
follows:
The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant’s request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant’s prospects of securing an acquittal, he may nonetheless desire “to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” United States v. Jorn, 400 U.S. 470, 484 (1971). Our prior decisions recognize the defendant’s right to pursue this course in the
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absence of circumstances of manifest necessity requiring a sua sponte judicial declaration of mistrial. But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution.
Dinitz, 424 U.S. at 608 (citation modified).
This language does suggest that there can be circumstances where
the necessity for a mistrial is so great that a defendant’s tactical decision to
continue with the trial would be inappropriate. However, in the instant case,
we cannot interpret the trial court’s power to declare a mistrial sua sponte as
a license to hedge one’s bets by withdrawing a motion for a mistrial, then
alleging that it was error for the court to allow the trial to continue after
receiving an unfavorable verdict. After all, it is the defendant’s right “to
retain primary control over the course to be followed” in response to a
prejudicial occurrence. Brief for Suero at 16; see Dinitz, 424 U.S. at 609.
Suero exercised this right by moving for a mistrial, then withdrawing the
motion and allowing the case to reach the jury.
Moreover, the trial court did not abuse its discretion in declining to
declare a mistrial sua sponte as a result of the comments made by the
Commonwealth. See Orie, 88 A.3d at 995.
“To constitute a due process violation, the prosecutorial misconduct
must be of sufficient significance to result in the denial of the defendant’s
right to a fair trial.” Commonwealth v. Spotz, 47 A.3d 63, 97 (Pa. 2012)
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(citation omitted). “The touchstone is the fairness of the trial, not the
culpability of the prosecutor.” Id. The Court in Spotz also explained that,
“[a] prosecutor may make fair comment on the admitted evidence and may
provide fair rebuttal to defense arguments.” Id. In reviewing a claim of
misconduct, “[a]ny challenge to a prosecutor’s comment must be evaluated
in the context in which the comment was made.” Id. Furthermore, “[n]ot
every unwise, intemperate, or improper remark made by a prosecutor
mandates the grant of a new trial.” Id. at 98. Rather, “[c]omments by a
prosecutor constitute reversible error only where their unavoidable effect is
to prejudice the jury, forming in [the jurors’] minds a fixed bias and hostility
toward the defendant such that they could not weigh the evidence
objectively and render a fair verdict.” Commonwealth v. Bryant, 67 A.3d
716, 727 (Pa. 2013) (citation omitted).
First, Suero argues that the Commonwealth mischaracterized the
victim’s statements about the skin color of one of the perpetrators, stating
that Ms. Smith “thought she saw white on the person’s arm as the arm was
going into the safe.” N.T., 10/7/2013, at 109. Because Ms. Smith was
deceased, her description of the perpetrators was relayed to the jury by an
investigating police officer, who testified that Ms. Smith had identified one of
the men as having a white arm. The officer’s testimony at one point
indicated that it was the man with the blue gloves that had the white arm,
but at another point indicated that it may have been the other man. In
discussing Suero’s objection, the trial court even indicated that it found the
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testimony about the color of the arm to be confusing. See N.T., 10/7/2013,
at 150.
Although the Commonwealth’s characterization of Ms. Smith’s
statements may not have been exact, the context of the comment suggests
that this description, even if factually questionable, was not designed to
deprive Suero of a fair trial. It certainly did not have the “unavoidable
effect” of prejudicing the jury or establishing a fixed bias or hostility in the
juror’s perceptions of Suero. See Bryant, 67 A.3d at 727. Moreover, the
trial court specifically instructed the jurors that they were “to be guided
solely by [their] collective recollection of the facts,” and not by the
attorneys’ recounting of those facts. N.T., 10/7/2013, at 176. Because the
assistant district attorney’s comment about the color of a perpetrator’s arm
did not deprive Suero of a fair trial and, if at all problematic, was addressed
by the jury instructions, the comment was not reversible error.
Second, Suero argues that the assistant district attorney stated her
personal opinion about the credibility of Suero’s testimony. Brief for Suero
at 9, 12. These statements were made regarding Suero’s testimony about
his consultation with an immigration attorney. The assistant district
attorney characterized Suero’s testimony as “absolutely ridiculous” and “not
believable.” N.T., 10/7/2013, at 111, 112. Regarding prosecutorial
comments about the credibility of witnesses, our Supreme Court has held
that “as long as a prosecutor does not assert his personal opinions, he or
she may, within reasonable limits, comment on the credibility of a defense
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witness.” Commonwealth v. Jones, 668 A.2d 491, 515 (Pa. 1995)
(citations omitted). Furthermore:
While it is improper for a prosecutor to offer any personal opinion as to the guilt of the defendant or the credibility of the witnesses, it is entirely proper for the prosecutor to summarize the evidence presented, to offer reasonable deductions and inferences from the evidence, and to argue that the evidence establishes the defendant’s guilt . . . . [The] prosecutor must be free to present his or her arguments with logical force and vigor, and comments representing mere oratorical flair are not objectionable.
Commonwealth v. Burno, 94 A.3d 956, 974 (Pa. 2014) (citation omitted).
The assistant district attorney’s characterization of Suero’s testimony
as “absolutely ridiculous” and “not believable” certainly were comments on
Suero’s credibility as a witness. The question becomes whether these
comments lie outside of the “reasonable limits” within which a prosecutor’s
commentary must remain. See Jones, 668 A.2d at 515.
The Commonwealth relies upon Commonwealth v. Rose, 960 A.2d
149, 155 (Pa. Super. 2008), for the proposition that the assistant district
attorney’s statements about Suero’s credibility were not expressions of
personal opinion, but rather were arguments for the Commonwealth’s
position. Brief for Commonwealth at 16. In Rose, this Court held that a
prosecutor’s repeated invocation during argument of the “Commonwealth’s
opinion” or “Commonwealth’s belief” about the credibility of witnesses “were
not improper personal statements of credibility or guilt; rather, they set
forth the Commonwealth’s position.” Rose, 960 A.2d at 155 (emphasis in
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original). While we express no opinion about the viability of such a
distinction, in the instant case, it is apparent that the assistant district
attorney did not shield her comments by using the term “Commonwealth’s
opinion.” Id. Although she did not state expressly that she, personally, did
not believe the testimony, that conclusion easily can be drawn from her
commentary. Thus, the characterization of Suero’s testimony as “absolutely
ridiculous” and “not believable” rises beyond the level of “mere oratorical
flair.” Burno, 94 A.3d at 974. Rose does not apply.
However, even if the jurors understood the assistant district attorney’s
comments to be an expression of her personal beliefs, the trial court
mitigated the influence of such beliefs in the jury instructions, instructing the
jurors that they were the “sole judges of credibility” and that “[i]t is
immaterial whether one of the attorneys believes a witness was not
credible.” N.T., 10/7/2013, at 163. Suero has not developed an explanation
of why these jury instructions were an inadequate remedy, rather stating
generally concerning all of the allegations of prosecutorial misconduct that
“the instructions given did not, and could not, ameliorate the improper
effects of the prosecution [sic] arguments.” Brief for Suero at 13. However,
the court’s instructions on the issue of personal belief were clear and direct,
and “[t]he law presumes that the jury will follow the instructions of the
court.” Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011). Given
the particularity of the jury instruction, of which counsel for Suero approved,
we conclude that the instructions cured any potential harm created by the
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assistant district attorney’s comments, and that, therefore, the comments
did not deprive Suero of a fair trial. We discern no reversible error.
Third, Suero argues that the assistant district attorney misrepresented
Steven Wilson’s testimony. Brief for Suero at 10. At trial, Wilson testified
that Suero sought his assistance in selling the marijuana that he planned to
purchase, and he assumed that Suero sought his assistance “because
Rebecca told him that I smoked weed.” N.T., 10/1/2013, at 209. In its
closing argument, the Commonwealth summarized Wilson’s testimony,
stating that Wilson “sold drugs.” N.T., 10/7/2013, at 106. Referring again
to his testimony, she stated that Wilson had admitted to having “done drugs
or sold drugs.” Id. Suero suggests that the misstatement increases the
credibility of the Commonwealth’s theory that Suero attempted to enlist
Wilson’s aid in selling marijuana. Brief for Suero at 11. We disagree with
Suero’s assertion that whether Steven Wilson used or sold drugs is a “critical
fact,” Brief for Suero at 11, particularly where the account of the marijuana
distribution plot was presented properly to the jury. The fact in question
was mere speculation on Wilson’s part as to why Suero would attempt to
enlist his aid. At best, this statement that Wilson sold drugs undermined the
credibility of Wilson’s testimony, which was a critical part of the
Commonwealth’s case. Especially given the gravity of the crimes with which
Suero was charged, it is immaterial whether an associate of his sold
marijuana or used marijuana. Thus, the comment about Steven Wilson’s
sale or use of marijuana did not deprive Suero of a fair trial.
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Fourth, Suero argues that the Commonwealth showed the jury a
transcription of Rebecca Johnson’s phone calls without the required
redaction during closing arguments. Brief for Suero at 11. There is no
evidence of record to this effect. It is the responsibility of an appellant “to
ensure that the record certified on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.” Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super.
2006) (en banc). Therefore, we are not able to conduct a meaningful review
of this claim of prosecutorial misconduct.
Fifth, Suero argues that it was erroneous for the Commonwealth to
suggest that the jurors consider Suero’s demeanor while Ms. Smith’s 911
call was played for the jury. Brief for Suero at 12. The Commonwealth
commented that Suero showed “no reaction” to the recording. N.T.,
10/7/2013, at 126. Suero argues that this statement suggested “that the
jury should engage in an entirely improper evaluation of [Suero’s] emotional
condition and character without any factual basis with which to do so.” Brief
for Suero at 12. In Commonwealth v. Hernandez, 590 A.2d 325, 331
(Pa. Super. 1991), this Court held that a prosecutor’s comments about the
demeanor of the defendant did not constitute reversible error, and stated
that an “appellant’s demeanor as observed by the jury is a proper
consideration.” Hernandez, 590 A.2d at 331. Nonetheless, in Hernandez,
the trial court gave an instruction that the jurors were to disregard the
comments of the prosecutor and to consider only their own observations of
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the defendant on the witness stand. Id. Further, this Court held that “the
remarks were not prejudicial but merely were arguments based on the
evidence.” Id.
In the instant case, when discussing the issue in camera, the trial
court suggested that any error would be cured by the instruction to the
jurors to use their common sense in evaluating the facts. See N.T.,
10/7/2013, at 136. While defense counsel did not consider this instruction
to be fully adequate, he did not request any further or additional instruction
on the matter, either in camera or after the trial court asked for “any
objections, corrections, [or] additions” to the jury instructions. Id. at 136,
208.
While the Commonwealth’s comment about Suero’s demeanor while
listening to the 911 call may not have been entirely appropriate, the
comment was brief and did not rise to the level of infringing Suero’s Fifth
Amendment rights to silence and to be free from self-incrimination.5 The
assistant district attorney did not state that Suero’s demeanor reflected a
lack of remorse, but rather that he was not “really interested in listening to
that tape.” N.T., 10/7/2013, at 126. As the trial court noted, the jurors
were free to observe Suero and to formulate their own judgments, and were
instructed to use their common sense in doing so. See Hernandez, 590
5 U.S. Const. amend. V; Pa. Const. art. I, § 9.
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A.2d at 331. Under these circumstances, we hold that the Commonwealth’s
comment about Suero’s demeanor was not so prejudicial as to deprive Suero
of a fair trial, and any error in this regard was harmless. Accordingly, after
careful review, we conclude that the Commonwealth did not commit
prosecutorial misconduct, and thus, even if Suero had not withdrawn his
motion for a mistrial, the trial court did not err or abuse its discretion in
declining to declare a mistrial sua sponte. Therefore, Suero’s second issue
does not merit relief.
In his third issue, Suero argues that the trial court erred in admitting
evidence of Suero’s involvement in the scheme to purchase a large quantity
of marijuana in Colorado. Brief for Suero at 17. Suero asserts that the
prejudicial effect of this evidence outweighed any probative value. Id. at
19. We disagree.
The admission of evidence of prior criminal acts is governed by Rule
404(b) of the Pennsylvania Rules of Evidence, which provides, in pertinent
part:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
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Pa.R.E. 404(b).
“The admission of evidence of prior bad acts is solely within the
discretion of the trial court, and the court’s decision will not be disturbed
absent an abuse of discretion.” Commonwealth v. Patterson, 91 A.3d 55,
68 (Pa. 2014) (citation omitted). “An abuse of discretion is not merely an
error of judgment, but is rather the overriding or misapplication of the law,
the exercise of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill will or partiality, as shown by the evidence of record.”
Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014) (citation
omitted).
Here, the trial court permitted the Commonwealth to introduce
evidence of the criminal plot for the purpose of proving the defendants’
motive to commit the robbery—an enumerated exception to the rule
prohibiting evidence of prior criminal acts. See Pa.R.E. 404(b)(2). The
Commonwealth’s theory was that Suero and his co-defendant, Rebecca
Johnson, required a very large sum of money in order to complete the
purchase and transportation of the marijuana, and that they intended to
acquire the funds, in part, by robbing Carrie Smith.
Suero filed a motion in limine seeking exclusion of evidence of the
plot, which the trial court denied. The trial court determined that the
probative value and the need for the evidence was quite high, as it
established a motive for the robbery of one of the defendants’ grandmother,
which is “an act which, absent a motive, would likely seem incredible.” Post
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Sentence Motion Opinion (“P.S.O.”), 3/24/2014, at 8. The court further held
that the prejudicial effect of the evidence “would only have been slight,
particularly in light of the fact that the crimes for which [Suero] was on trial
were more disturbing than the sale of marijuana.” Id. To further mitigate
any prejudice to Suero from the introduction of this evidence, the trial court
gave a cautionary instruction to the jury, instructing it to consider the
evidence for the purpose of establishing motive only. N.T., 10/1/2013, at
138. The court repeated this instruction during its concluding charge to the
jury. N.T., 10/7/2013, at 167-68.
Under these circumstances, we discern no abuse of discretion. The
trial court considered the appropriate factors in making its evidentiary ruling,
provided reasonable explanations for its determinations of the probative
value and prejudicial effect of the evidence, and gave cautionary instructions
to the jury. Further, while Suero’s brief details the manner in which the
court is required to balance the probative value and prejudicial effect of
evidence, Suero does not point to any specific act or consideration
undertaken by the trial court, and merely asserts that “[t]he prejudicial
effect of the subject testimony far outweighed any probative value . . . .”
Brief for Suero at 19. This argument, therefore, amounts to a bald assertion
that the trial court reached the incorrect result—a conclusion that, even if
accurate, falls far short of an abuse of discretion. See Melvin, 103 A.3d at
35 (“An abuse of discretion is not merely an error of judgment . . . .”).
Accordingly, Suero’s third issue does not merit relief.
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Finally, in his fourth issue, Suero argues that the trial court erred in
admitting evidence of prison phone calls made by Rebecca Johnson which
implicated Suero. The trial court ordered, however, that any statements by
Rebecca Johnson were to be redacted in a manner that removed any
identification of Suero, with any reference to his name being replaced with a
pronoun and any mention of his whereabouts omitted entirely. This issue,
however, is waived.
Preliminarily, although Suero’s argument would appear to be premised
upon the holding of Bruton v. United States, 391 U.S. 123 (1968),6 Suero
cites no legal authority in support of the argument, leaving this Court to
guess about the legal basis for the allegation of error, whether it be hearsay,
Bruton, or otherwise. Because of Suero’s failure to cite a pertinent
authority, Suero has waived this issue. See Pa.R.A.P. 2119(a);
Commonwealth v. Simmons, 56 A.3d 1280, 1286 (Pa. Super. 2012)
(finding that issue of prejudice sustained from detention while awaiting a
probation revocation hearing was waived where appellant failed to cite
authority in support of claim).
6 In Bruton, the United States Supreme Court held that the admission of a co-defendant’s confession that implicated the defendant at a joint trial constituted prejudicial error even though the trial court gave a clear, concise, and understandable cautionary instruction. Bruton, 391 U.S. at 137.
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Moreoever, our Supreme Court has held that “[i]f a confession can be
edited so that it retains its narrative integrity and yet in no way refers to
[the] defendant, then use of it does not violate the principles of Bruton.”
Commonwealth v. Johnson, 378 A.2d 859, 860 (Pa. 1977). Our Supreme
Court has also held that such a statement “will violate the Confrontation
Clause only when the jury can tell from the face of the statement to whom it
is referring; if the jury must refer to other evidence to determine to whom
the statement refers, the Confrontation Clause rights of the defendant are
not violated.” Commonwealth v. Miller, 819 A.2d 504, 512 (Pa. 2002).
While Suero argues that “the redaction was insufficient to prevent the
identification of [Suero] as the person referred to,” Suero does not point to
anything on the face of the statement that would have identified him,
particularly where there were other men involved in the case to which the
pronouns may have referred. Thus, even if Suero had properly developed
this argument, it would not merit relief.
Accordingly, upon review of the certified record, the facts of the case,
and the applicable principles of law, we find no basis to grant relief upon any
of Suero’s claims.
Judgment of sentence affirmed.’
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/23/2015
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