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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEFOREST JOHNSON :
:
Appellant : No. 1990 EDA 2019
Appeal from the Judgment of Sentence Entered May 14, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007419-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEFOREST JOHNSON :
:
Appellant : No. 1991 EDA 2019
Appeal from the Judgment of Sentence Entered May 14, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007423-2016
BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KING, J.: FILED JUNE 9, 2020
Appellant, Deforest Johnson, appeals nunc pro tunc from the judgments
of sentence entered in the Philadelphia County Court of Common Pleas,
following his consolidated jury trial convictions for second-degree murder, two
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counts each of kidnapping and robbery, and related offenses.1 We affirm.
The relevant facts and procedural history of these appeals are as follows.
Ken Thomas, a cooperating codefendant, testified that he
lives in North Philadelphia and was friends with all of the
codefendants in this case. Thomas knew Brandon McKelvey
as “SK” since they were children. They grew up together in
the Strawberry Mansion neighborhood of Philadelphia.
Thomas knew Christopher Corley as “C” since approximately
2008-2009. They lived in the same neighborhood. Thomas
knew Nysare Alston as “NA” since 2014. Thomas knew
[Appellant] as “Big Huss.” Thomas testified that Nysare
Alston was the only codefendant, out of the group, who
knew the decedent.
Thomas admitted that he was involved in the kidnapping,
robbery, and murder of the decedent and the attempted
murder of Ryan Hardy on April 17, 2014, along with his
codefendants.
Thomas testified that it was Alston’s idea to kidnap and rob
the decedent for money and drugs and that all five of them
agreed that it was a great idea. The group also planned to
get the decedent’s “connect.”10 Thomas testified that:
[T]he plan was if we got an abandoned house, we was
going to take them to the abandoned house. We was
going to interrogate them, get information out of
them, see if we can get his connect. And if we can
get his connect, bring his connect there and do
whatever we got to do to get whatever we need from
his connect.
The group planned to torture the decedent, to get
information about his “connect,” once they had him in the
abandoned house. Ultimately, it was decided that the
decedent would have to be killed so he wouldn’t retaliate.
10“Connect” referred to the person that supplied the
decedent, a cocaine dealer, with cocaine. The five of
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1 18 Pa.C.S.A. §§ 2502(b), 2901(a)(1), 3701(a)(1)(i), respectively.
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them wanted to get the decedent to call his supplier
so that they could rob the supplier of drugs and money
as well.
Thomas testified that he met up with McKelvey, Corley, and
[Appellant] at a hardware store at 29th and Dauphin Streets
in Strawberry Mansion on the morning of the incident. The
four men purchased duct tape and saran wrap for the
purpose of tying up the decedent. The four then went to
Alston’s house. Thomas was driving his Grand Prix followed
by McKelvey, Corley, and [Appellant] in a big, green van
owned by [Appellant].
Alston met the others at the van, and the group discussed
their plan, outside of Alston’s house on Queen Lane. Alston
planned to invite the decedent over to his house under the
guise of purchasing drugs from him. He would ask the
decedent to park his vehicle in the rear driveway. Thomas
would block the decedent’s vehicle in the driveway with his
Grand Prix. The other men would grab the decedent from
his car and place him into [Appellant’s] van.
The group initiated the plan, but as they were waiting for
the decedent to arrive, Alston’s stepfather told Alston that
his friends had to remove the van from the driveway. The
van exited the driveway and began circling the block. The
decedent arrived, and instead of pulling into the driveway,
parked his Camaro on Knox Street, which was on the side
of Alston’s house. Thomas saw the decedent standing on
the corner talking on the phone.
The van pulled next to the decedent’s vehicle and Thomas’
Grand Prix pulled behind it. McKelvey, Thomas, Corley, and
[Appellant] exited their respective vehicles. Thomas and
[Appellant], at point of gun, grabbed the decedent and
shoved him into the van. Unbeknownst to the group,
another male, Ryan Hardy, had accompanied the decedent
and was seated in the decedent’s vehicle. Thomas and
McKelvey, at point of gun, grabbed Hardy out the decedent’s
vehicle and shoved him into the van as well.
(Trial Court Opinion, filed September 16, 2019, at 3-4) (internal citations
omitted) (emphasis added).
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Mr. Thomas and Mr. Alston stole drugs and jewelry from the decedent’s
vehicle. Mr. Thomas and Mr. Alston also took the decedent’s keys, went to
the decedent’s home, and stole cocaine and a television set. Meanwhile, the
kidnappers drove around in the van with the decedent and Mr. Hardy. During
that time, the kidnappers took the victims’ cell phones and wallets and
tortured them, cutting their wrists and necks. After a few hours, the
kidnappers threw the decedent and Mr. Hardy out of the van and shot them.
The decedent died as a result of his injuries, but Mr. Hardy survived.
At docket no. CP-51-CR-0007419-2016 (“docket 7419-2016”), the
Commonwealth charged Appellant with offenses related to the decedent. At
docket no. CP-51-CR-0007423-2016 (“docket 7423-2016”), the
Commonwealth charged Appellant with offenses related to Mr. Hardy,
including attempted murder and aggravated assault.2 On September 2, 2016,
the Commonwealth provided notice of joint trial, notifying Appellant of its
intention to try him together with Mr. Alston, Mr. McKelvey, and Mr. Corley.3
Appellant responded by filing a motion for separate trial, which the court
granted on November 1, 2017.
Appellant’s consolidated jury trial for both bills of information
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2 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), respectively.
3 On January 11, 2016, Mr. Thomas entered an open guilty plea to murder,
conspiracy to commit murder, conspiracy to commit robbery, attempted
murder, kidnapping, robbery, and violations of the Uniform Firearms Act. See
N.T. Trial, 5/9/18, at 159-62.
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commenced on May 7, 2018. On May 10, 2018, the Commonwealth rested
and Appellant called his first witness, Aaron Smith.
[Mr. Smith was] a jailhouse informant, who previously
testified on behalf of the Commonwealth against the
codefendants in a separate trial. During Smith’s prior
testimony, he stated that McKelvey had confessed
committing the murder and named his codefendants. Smith
did not mention [Appellant]. At [Appellant’s] trial, the
Commonwealth did not call Smith but was aware that the
defense intended to call him as [a] witness. [Appellant]
called Smith at trial and elicited the same testimony as his
prior testimony. However, the following exchange occurred
during the Commonwealth’s cross-examination of Smith:
ADA [BOYLE4]: Did Brandon McKelvey tell you
about an individual that did do the murder with him
that owned a van?
SMITH: Yes.
ADA [BOYLE]: Tell us about that.
SMITH: He said it was a green van and—
and, basically, it was this individual’s van.
ADA [BOYLE]: He said that the green van belonged
to who?
SMITH: One of the guys. He said Big Homie
or something.
ADA [BOYLE]: He called him “Big Homie”?
SMITH: Yeah.
ADA [BOYLE]: Do you remember him saying “Big
Huss”?
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4At trial, Assistant District Attorney (“ADA”) Boyle and ADA Krouse appeared
on behalf of the Commonwealth.
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SMITH: Yes.
ADA [BOYLE]: Is that what he said?
SMITH: Yes.
ADA [BOYLE]: So did Brandon McKelvey tell you
that Big Huss, the owner of the van, was somebody
who did the murder with him?
SMITH: Yes.
The defense thereafter impeached Smith with his [pretrial]
statement, which had no mention of “Big Homie” or “Big
Huss.” Afterward, the following exchange occurred:
COUNSEL: Have you spoken to the DA since the last
time you testified?
SMITH: Since when?
COUNSEL: Since the last time you testified.
SMITH: Yes.
COUNSEL: When did you speak to the DA after you
testified?
SMITH: After I testified?
COUNSEL: Yeah. You testified in this matter back on
November 13, 2017. Did you speak to the DA after
that?
SMITH: Yes.
COUNSEL: And did you tell them what you’ve told—
did you tell the DA what you’ve told the jury here?
Did you tell them that, that Big Homie was involved?
Did you tell the DA that when you spoke to them?
SMITH: Yes. I told them before.
COUNSEL: When did you tell them?
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SMITH: I don’t know the date.
COUNSEL: But it was after you testified; you’re sure
about that?
SMITH: No. No. It wasn’t after I testified.
COUNSEL: Okay. But you remember telling the DA
about Big Homie. That was your testimony, correct?
SMITH: Yes.
During a sidebar, the defense moved for a mistrial claiming
that the Commonwealth knew the defense was going to call
Smith as a witness and did not disclose this newfound
inculpatory evidence against [Appellant]. [ADA] Boyle
confirmed that she had talked to Smith since he last
testified. ADA Boyle informed the [c]ourt that Smith had
never told her about “Big Homie” and she was confused as
to whether he mentioned “Big Huss.” However, ADA Krouse
informed the [c]ourt that he had been present every time
ADA Boyle had spoken to Smith, and ADA Krouse had no
recollection of Smith ever mentioning “Big Homie” or “Big
Huss.”
(Trial Court Opinion at 15-16).
The court denied Appellant’s mistrial motion. Thereafter, the parties
entered into the following stipulation:
Ladies and gentlemen, Aaron Smith just testified that he
had told the district attorney that Big Homie or Big Huss was
involved in this incident. There’s been a stipulation by and
between the defense and the District Attorney’s Office that
at no time did Aaron Smith ever tell the District Attorney’s
Office or any police official that a Big Homie or a Big Huss
was involved in this incident.
(N.T. Trial, 5/10/18, at 243).
On May 14, 2018, the jury found Appellant guilty of second degree
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murder, two counts each of kidnapping and robbery, and related offenses.
That same day, the court imposed a sentence of life imprisonment without
parole for the murder conviction. Appellant did not file post-sentence motions
or notices of appeal. Appellant subsequently sought reinstatement of his
direct appeal rights nunc pro tunc at both Court of Common Pleas docket
numbers, which the court granted on June 27, 2019.
On July 1, 2019, Appellant timely filed separate notices of appeal nunc
pro tunc at dockets 7419-2016 and 7423-2016. This Court docketed each
appeal separately. On September 25, 2019, Appellant filed an application
requesting permission to file a single appellate brief. Appellant explained “the
issues to be raised under both … Docket Numbers [are] identical, can be
addressed in a single brief, and that permitting Appellant to include both …
Docket Numbers in the caption of the cover sheet of Appellant’s brief would
serve the interests of judicial economy and the parties herein.” (Application
for Relief, filed 9/25/19, at 1-2). This Court granted Appellant’s application
on October 15, 2019.
Appellant now raises one issue for our review:
DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION
BY DENYING APPELLANT’S MOTION FOR A MISTRIAL?
(Appellant’s Brief at 3).
Appellant argues the Commonwealth conducted a pretrial interview with
the defense witness, Mr. Smith, at which time Mr. Smith indicated he could
implicate Appellant in the crimes at issue. Appellant asserts the
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Commonwealth’s deliberate failure to disclose Mr. Smith’s inculpatory
statements constituted a discovery violation, resulted in a trial by ambush,
and deprived Appellant of his due process rights.5 Appellant insists the court
should have granted a mistrial on this basis. Further, Appellant maintains the
court’s denial of his motion for mistrial cannot be deemed harmless error, and
“no cautionary instruction could have cured the harm caused by the
prosecutor’s underhanded tactic of withholding the inculpatory information
Smith gave her about Appellant.” (Appellant’s Brief at 47). Appellant
concludes the court abused its discretion by denying his motion for mistrial,
and he is entitled to a new trial. We disagree.
Our standard of review of a court’s denial of a motion for mistrial is as
follows:
In criminal trials, declaration of a mistrial serves to eliminate
the negative effect wrought upon a defendant when
prejudicial elements are injected into the case or otherwise
discovered at trial. By nullifying the tainted process of the
former trial and allowing a new trial to convene, declaration
of a mistrial serves not only the defendant’s interest but,
equally important, the public’s interest in fair trials designed
to end in just judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial whenever the
alleged prejudicial event may reasonably be said to deprive
the defendant of a fair and impartial trial. In making its
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5 To support his assertion that the Commonwealth knew of Mr. Smith’s
inculpatory statements prior to trial, Appellant relies on the fact that ADA
Boyle “immediately zeroed in” on Mr. Smith with a line of questions about
Appellant. (Appellant’s Brief at 30). ADA Boyle also “corrected” Mr. Smith
when he said “Big Homie” instead of “Big Huss.” (Id.). Finally, Appellant
emphasizes the following statement from ADA Boyle at sidebar: “He told me
Big Huss last time before the judge even asked—.” (Id.)
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determination, the court must discern whether
misconduct or prejudicial error actually occurred, and
if so, ... assess the degree of any resulting prejudice. Our
review of the resulting order is constrained to determining
whether the court abused its discretion. Judicial discretion
requires action in conformity with the law on facts and
circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion
if, in resolving the issue for decision, it misapplies the law
or exercises its discretion in a manner lacking reason.
Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (emphasis added).
Pennsylvania Rule of Criminal Procedure 573 provides in pertinent part:
Rule 573. Pretrial Discovery and Inspection
* * *
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant’s attorney all
of the following requested items or information, provided
they are material to the instant case. The Commonwealth
shall, when applicable, permit the defendant’s attorney to
inspect and copy or photograph such items.
* * *
(b) any written confession or inculpatory statement,
or the substance of any oral confession or inculpatory
statement, and the identity of the person to whom the
confession or inculpatory statement was made that is
in the possession or control of the attorney for
the Commonwealth;
Pa.R.Crim.P. 573(B)(1)(b) (emphasis added). “The purpose of the discovery
rules is to permit the parties in a criminal matter to be prepared for trial. Trial
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by ambush is contrary to the spirit and letter of those rules and cannot be
condoned.” Commonwealth v. Manchas, 633 A.2d 618, 625 (Pa.Super.
1993), appeal denied, 539 Pa. 647, 651 A.2d 535 (1994).
“[A]n appellant’s due process rights are violated and his right to a fair
trial infringed whenever he is not given all of the discoverable material
evidence in advance of trial[.]” Commonwealth v. Hanford, 937 A.2d 1094,
1101 (Pa.Super. 2007), appeal denied, 598 Pa. 763, 956 A.2d 432 (2008).
“Our cases have made it clear that, as a matter of due process, it is error to
fail to provide evidence that will be used to impeach the credibility of defense
witnesses.” Commonwealth v. Ulen, 539 Pa. 51, 56, 650 A.2d 416, 418
(1994).
Instantly, on cross-examination, Mr. Smith testified that Appellant’s
codefendant, Brandon McKelvey, told him that Big Homie was involved in the
kidnapping and murder. See N.T. Trial, 5/10/18, at 217-18. ADA Boyle asked
whether Mr. McKelvey actually said Big Huss, and Mr. Smith agreed that was
the name he had heard. On redirect, defense counsel confronted Mr. Smith
with his prior statement, which did not mention Big Homie.6 Id. at 221. Mr.
Smith conceded his statement did not mention Big Homie, but he insisted that
he told the Commonwealth about Big Homie’s involvement prior to trial. Id.
at 224-25.
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6On redirect, defense counsel did not use the nickname Big Huss. Rather, he
only referred to Big Homie. See N.T. Trial, 5/10/18, at 221, 224, 225.
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At that point, defense counsel requested a sidebar and moved for a
mistrial. During the sidebar, ADA Krouse stated that Mr. Smith never
mentioned Big Homie or Big Huss at any of their meetings. Id. at 232.
Although ADA Boyle could not “say 100 percent that [Mr. Smith] didn’t say
Big Huss,” she emphasized that ADA Krouse was with her “every single time
we’ve spoke to Aaron Smith.” Id. at 232, 238. The court denied Appellant’s
motion for mistrial, and it specifically found the Commonwealth’s
representations to be credible. See Trial Court Opinion at 17. In light of the
court’s finding, which is supported by the record, we cannot agree with
Appellant’s argument that the Commonwealth actually committed a discovery
violation.7 See Tucker, supra; Pa.R.Crim.P. 573(B)(1)(b).
Moreover, immediately after its denial of the mistrial motion, the court
provided Appellant with two options going forward. First, the court offered to
provide a cautionary instruction: “I can do a few things. I can give a
cautionary instruction. You can word it and I will take a look at it ….” N.T.
Trial, 5/10/18, at 234. The court also offered to allow a stipulation: “And so
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7 Regarding ADA Boyle’s statement that Mr. Smith “told me Big Huss last time
before the judge even asked—,” defense counsel interrupted ADA Boyle before
she could complete her sentence or provide additional context. N.T. Trial,
5/10/18, at 226. At the start of the next day’s proceedings, defense counsel
renewed his motion for mistrial and provided additional argument in support
thereof. ADA Boyle responded by clarifying her statement from the previous
day as follows: “So I thought that [Mr. Smith] testified at the [codefendants’]
trial about [Appellant]. And I was wrong because I didn’t read the notes at
the time.” N.T. Trial, 5/11/18, at 18.
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you can do a stipulation where, you know, either you or Ms. Boyle gets up and
says that [Mr. Smith] never said the name Big Homie or Big Huss to the district
attorney.” Id. at 237.
Ultimately, the court did not provide a cautionary instruction. Rather,
the parties stipulated that Mr. Smith did not inform the Commonwealth that
Big Homie or Big Huss was involved in the underlying crimes. Id. at 243.
Appellant is now bound by his stipulation that the Commonwealth was not in
possession of the inculpatory statements at issue, and he cannot argue
otherwise. See Tyson v. Commonwealth, 684 A.2d 246, 251 n.11
(Pa.Cmwlth. 1996) (stating: “[A] stipulation of facts is binding on both the
parties and on this court, and facts effectively stipulated are controlling and
conclusive”); McKelvey v. McKelvey, 771 A.2d 63, 63 n.1 (Pa.Super. 2001)
(explaining party normally binds himself when entering into stipulation, except
to matters that affect jurisdiction). See also Commonwealth v. Mathis,
463 A.2d 1167 (Pa.Super. 1983) (supporting stipulations in criminal cases).
Based upon the foregoing, we conclude the trial court did not abuse its
discretion in denying Appellant’s motion for mistrial. See Tucker, supra.
Accordingly, we affirm.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/09/2020
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