Com. v. Suero, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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

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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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