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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

1

18 Pa.C.S. § 2502.

2

18 Pa.C.S. § 2901.

3

18 Pa.C.S. § 3701.

4

18 Pa.C.S. § 903.

5

The consecutive sentence of 6-12 years’ imprisonment consisted of 2-4

years’ imprisonment for conspiracy to commit a kidnapping in the course of

a felony and 4-8 years’ imprisonment for robbery.

6

In addition to the present timely appeal at the above caption number,

there was another timely appeal filed on Judon’s behalf at 23 MDA 2014. On

(Footnote Continued Next Page)

J-S78024-14

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

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

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

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

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

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

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

ultimately pled guilty to third degree murder.

Multiple witnesses testified that Judon admitted participating in

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

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

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

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

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

Stimpson that

_______________________

(Footnote Continued)

February 26, 2014, this Court dismissed the appeal at 23 MDA 2014 due to

the lack of a docketing statement.

The filing of the other appeal at 23 MDA 2014 does not affect our jurisdiction

over the present appeal. Had Judon prosecuted both appeals, we could have

consolidated these appeals sua sponte. See Pa.R.A.P. 513 (“where there is

more than one appeal from the same order,. . .the appellate court may, in

its discretion, order them to be argued together in all particulars as if but a

single appeal”). Our dismissal of the appeal at 23 MDA 2014 eliminates any

need for consolidation and leaves the present appeal as the sole appeal

within our purview.

-2-

J-S78024-14

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

-3-

J-S78024-14

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.

-4-

J-S78024-14

FATHER: Well, you're also gonna have the time

served, too.

JUDON: Yeah, but nothing more, nothing more than

ten, nothing more. That's it.

FATHER: Well, that's what I'm thinking –

N.T. 837-839.

Judon contends that this conversation is irrelevant7. We disagree.

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

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

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

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

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

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

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

less probable, or supports a reasonable inference or presumption regarding

____________________________________________

7

Judon does not argue that his statements during this conversation are

hearsay. Nor would this argument have been successful, for as the trial

court observed, Judon’s statements fit within Pa.R.E. 803(25), the exception

to the hearsay rule permitting statements by a party opponent. Pa.R.A.P.

1925(b) Opinion, p. 8.

The trial court also reasoned that admission of Judon’s statements did not

violate Pa.R.E. 410. Pa.R.A.P. 1925(b) Opinion, pp. 6-8. In pertinent part,

this rule prohibits introduction of statements by the defendant “made during

plea discussions with an attorney for the prosecuting authority if the

discussions did not result in a guilty plea or they resulted in a later

withdrawn guilty plea.” Pa.R.E. 410(a)(4). Judon does not challenge the

trial court’s analysis of Rule 410. Indeed, he admits that the recorded

statements “were not withdrawn pleas or statements made directly in the

course of plea negotiations. . .” Brief For Appellant, p. 18.

-5-

J-S78024-14

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

-6-

J-S78024-14

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

-7-

J-S78024-14

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.’

-8-

J-S78024-14

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,

-9-

J-S78024-14

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

- 10 -

J-S78024-14

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.

- 11 -

J-S78024-14

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

- 12 -

J-S78024-14

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

- 13 -

J-S78024-14

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

- 14 -

J-S78024-14

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

- 15 -

J-S78024-14

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

- 16 -

J-S78024-14

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

- 17 -