J-S01038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARQUIS JACKSON
Appellant No. 3175 EDA 2014
Appeal from the Judgment of Sentence August 11, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005965-2013
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 17, 2016
Appellant, Marquis Jackson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for two (2) counts of robbery and one (1) count each of
conspiracy and possessing instruments of crime (“PIC”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
On March 25, 2013, Appellant’s brother (Andre Jackson) and the two
victims, Eric Iezzi and Kristian Gilkin, were in the living room of Appellant’s
father’s house watching television. Appellant, codefendant Charles
McMichael, and a woman entered the house. Appellant told his brother to go
upstairs. Codefendant approached Mr. Gilkin and pointed a gun at his head
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1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 907(a), respectively.
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while ordering him to empty his pockets. Mr. Gilkin complied and placed a
pack of cigarettes along with a cell phone or iPod on a table. Codefendant
knocked the items off the table and then walked over to Mr. Iezzi.
Codefendant pointed his gun at Mr. Iezzi and asked him what he had in his
pockets. Mr. Iezzi said he had nothing. Appellant was standing right next to
codefendant. Codefendant then placed the gun against Mr. Iezzi’s neck and
either Appellant or codefendant patted him down. At that point, Mr. Gilkin
ran out of the house. Codefendant became angry and struck Mr. Iezzi with
the gun. Appellant and codefendant then exited the house together. Before
leaving, Appellant told Mr. Iezzi, “Don’t go to the cops. I know where you
live. I know which school you go to. I will find you.” After Appellant and
codefendant left, Andre Jackson returned downstairs; and he and Mr. Iezzi
went outside to find Mr. Gilkin. Andre Jackson and the two victims told
Appellant’s father about the robbery, and he took the three of them to a
police station.
Following a joint trial with codefendant, a jury convicted Appellant on
May 13, 2014, of two counts of robbery and one count each of conspiracy
and PIC. On August 11, 2014, the court sentenced Appellant to concurrent
terms of ten (10) to twenty (20) years’ incarceration for the robbery and
conspiracy convictions, and a concurrent term of two-and-a-half (2½) to five
(5) years’ incarceration for PIC. On August 13, 2014, Appellant timely filed
a post-sentence motion, which the court denied on November 4, 2014.
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Appellant filed a timely notice of appeal on November 10, 2014. The court
ordered Appellant to file a concise statement of errors complained of on
appeal per Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
WAS THE VERDICT BASED ON INSUFFICIENT EVIDENCE?
WAS THE VERDICT CONTRARY TO THE WEIGHT OF THE
EVIDENCE?
IN CLOSING ARGUMENT, DID THE PROSECUTOR COMMIT
A BRUTON[2] VIOLATION, BY SUGGESTING THAT THE
JURY COMPARE THE STATEMENTS MADE BY [APPELLANT
AND CODEFENDANT]?
(Appellant’s Brief at 4).3
In his first issue, Appellant argues the Commonwealth produced
insufficient evidence of his intent to commit robbery. Appellant asserts he
did not use a weapon, he had no knowledge codefendant was bringing a gun
to the house, and none of the victims’ property was actually taken.
Appellant contends his and codefendant’s conduct was consistent with their
intent simply to “prank” or “scare” Appellant’s brother, who had allegedly
stolen money or items from Appellant. Appellant concludes the evidence
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2
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968).
3
Contrary to the order of issues in the statement of questions involved, the
argument section of Appellant’s brief presents his sufficiency challenge
before his weight claim. Therefore, we will address the sufficiency challenge
first.
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was so weak and inconclusive that, as a matter of law, the jury could not
have found that Appellant intended to rob the victims. We disagree.
A challenge to the sufficiency of the evidence implicates the following
legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Crimes Code defines robbery in relevant part as follows:
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of
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committing a theft, he:
* * *
(ii) threatens another with or intentionally puts him in
fear of immediate serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii). See also Commonwealth v. Robinson,
936 A.2d 107 (Pa.Super. 2007), appeal denied, 597 Pa. 705, 948 A.2d 804
(2008) (stating crime of robbery does not require completion of predicate
offense of theft); Commonwealth v. Everett, 443 A.2d 1142 (Pa.Super.
1982) (holding defendant’s robbery conviction was supported by sufficient
evidence where defendant aided and abetted cohort in robbery, even though
defendant himself did not carry weapon, employ threats, or cause personal
injury). “A person commits a misdemeanor of the first degree if he
possesses any instrument of crime with intent to employ it criminally.” 18
Pa.C.S.A. § 907(a).
A conviction for conspiracy requires proof that:
(1) the defendant intended to commit or aid in the
commission of the criminal act; (2) the defendant entered
into an agreement with another (a “co-conspirator”) to
engage in the crime; and (3) the defendant or one or more
of the other co-conspirators committed an overt act in
furtherance of the agreed upon crime.
Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa.Super. 2005). See
also 18 Pa.C.S.A. § 903(a).
While the Commonwealth is not required to prove a written
or express agreement, a tacit agreement must be
established by reasonable inferences arising from the facts
and circumstances and not by mere suspicion or
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conjecture. Circumstances like an association between
alleged conspirators, knowledge of the commission of the
crime, presence at the scene of the crime, and/or
participation in the object of the conspiracy, are relevant
when taken together in context, but individually each is
insufficient to prove a conspiracy.
Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007) (internal
citations omitted). “[E]ach conspirator is criminally responsible for the
actions of his co-conspirator, provided that the actions are accomplished in
the furtherance of a common design.” Commonwealth v. Baskerville,
681 A.2d 195, 201 (Pa.Super. 1996), appeal denied, 547 Pa. 723, 689 A.2d
230 (1997).
Instantly, viewed in the light most favorable to the Commonwealth as
verdict winner, the evidence established the following. Appellant and
codefendant entered Appellant’s father’s house together, where codefendant
pointed a gun at each of the two victims and ordered them to empty their
pockets. Appellant ordered his brother to leave the room during the
incident. Appellant told one of the victims, “Don’t go to the cops. I know
where you live. I know which school you go to. I will find you.” Appellant
and codefendant then fled together. The evidence showed Appellant directly
participated in the robbery. The Commonwealth was not required to prove
that Appellant or codefendant took any of the victims’ items. See
Robinson, supra. Additionally, Appellant’s motive to rob the victims was
irrelevant. Thus, the evidence was sufficient to convict Appellant of robbery
and conspiracy. See Perez, supra; Jones, supra; Everett, supra.
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Moreover, Appellant was liable for all acts taken by codefendant in
furtherance of the conspiracy, including codefendant’s use of a firearm
during the robbery. See Baskerville, supra. Therefore, Appellant’s PIC
conviction also was supported by sufficient evidence. See 18 Pa.C.S.A. §
907(a).
In his second issue, Appellant argues the testimony of his brother and
the victims was reluctant and inconsistent, and another witness testified to
the “bad character” of Appellant’s brother. Appellant asserts he did not hold
a gun or know that codefendant was going to bring a gun to the house.
Appellant claims codefendant had a license for the gun. Appellant reiterates
that neither he nor codefendant actually took any of the victims’ property.
Appellant contends he and codefendant described the incident as a prank
intended to scare his brother. Appellant concludes the court should have set
aside the verdict as against the weight of the evidence. We disagree.
Our standard of review for a challenge to the weight of the evidence is
as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the lower
court’s verdict if it is so contrary to the evidence as to
shock one’s sense of justice. Moreover, where the trial
court has ruled on the weight claim below, an appellate
court’s role is not to consider the underlying question of
whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight
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claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted).
Instantly, the court reasoned as follows:
[T]he three witnesses’ testimony was, in a legal sense,
absolutely consistent on all of the major elements of the
crimes. The only real inconsistencies were in minor petty
details, such as whether it was an iPod or a cell phone, or
did one defendant arrive first or did they arrive at the
same time. Each of [the victim’s] descriptions of the
perpetrators and their actions clearly showed that they
were put in fear of immediate serious injury and that it
was [Appellant and codefendant] who did it in an attempt
to commit a theft upon the two [victims] and were acting
as cohorts. [Appellant and codefendant] themselves
confirmed that they agreed to do something to scare
[Appellant’s brother] and, since they did not state in their
confessions exactly what they intended that something to
be, the fact finder was perfectly entitled to logically
conclude that that something obviously turned out to be to
rob [Appellant’s brother’s] friends in front of his face. If,
as [Appellant] seemed to claim, the reason for all of this
was because [Appellant’s brother] took [Appellant’s]
money or clothes, why not scare him by robbing him as
opposed to two innocent bystanders[?]
* * *
In none of the convictions was the [Commonwealth]
required to prove that [Appellant] actually used a weapon,
…took anything, or that…he specifically told [codefendant]
to bring or…use a weapon. The evidence clearly
demonstrated that a gun was used and that [Appellant]
participated in its use during a robbery which he conspired
with [codefendant] to perpetrate. The fact that
[codefendant] had a license to carry the gun, irrespective
of whether…his Arizona license did permit him to legally
carry one in Pennsylvania, did not give him legal
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permission to use it in the commission of a crime or
alleviate [Appellant] from the joint responsibility for its
possession and that use, even if [codefendant] took it
upon himself to employ the weapon in their agreed joint
endeavor without [Appellant’s] knowledge, particularly
where [Appellant] willingly participated in its use after that
knowledge was acquired.
* * *
Nor does it matter that neither [Appellant nor
codefendant] took anything. … The fact that [Appellant
and codefendant] apparently did not find whatever it was
they were hoping to find does not disprove or contradict
the evidence which clearly showed that they acted in a
manner that gave every indication of an intention to find
and to take something. … The court fails to see how
[codefendant’s] good character, …the bad character of one
of the witnesses, or that…[Appellant] only wanted to scare
his brother and…the incident was simply a prank gone bad
in [any way] precluded a reasonable fact finder, even if all
of those allegations were true and believed, from finding
that [Appellant] willingly participated in the criminal acts of
which he was accused irrespective of his motives.
[Appellant] is simply asking the court to reassess the
evidence, ignore all of the probative evidence, and
substitute his selective and self-serving interpretation of it
for that of the jury, an endeavor in which the court is
prohibited from engaging.
(Trial Court Opinion, filed January 15, 2015, at 17-23). The record supports
the court’s analysis. Appellant repeats some of his sufficiency arguments,
which we have determined are meritless. The evidence supported the jury’s
finding that Appellant conspired with codefendant and intentionally put the
victims in fear of immediate serious bodily injury in the course of committing
a theft. See 18 Pa.C.S.A. § 3701(a)(1)(ii). That finding was not precluded
by Appellant’s purported ignorance that codefendant was going to bring a
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gun to the robbery, Appellant’s alleged motive to scare his brother, or the
fact that Appellant and codefendant did not take the items they forced the
victims to remove from their pockets. The jury was free to reject Appellant’s
claims and version of events in his statement to the police, and
determinations of witness credibility were within the jury’s province. See
Champney, supra. Appellant fails to show how the court abused its
discretion when it rejected his weight claim. Therefore, Appellant’s weight
claim merits no relief. See id.
In his third issue, Appellant argues the prosecutor improperly told the
jury during closing argument to compare Appellant’s and codefendant’s
statements to the police. Appellant claims the prosecutor used
codefendant’s statement to suggest Appellant had lied when he denied any
intent to commit a crime. Appellant concedes he did not seek a redaction of
the police statements or otherwise challenge their admissibility. Appellant
asserts the parties stipulated that the prosecutor was nevertheless
prohibited under Bruton from using codefendant’s statement against
Appellant in closing argument. Appellant concludes the trial court should
have granted his request for a mistrial based on the prosecutor’s allegedly
improper remarks. We disagree.
When reviewing a claim of prosecutorial misconduct, “our attention is
focused on whether the defendant was deprived of a fair trial not a perfect
one.” Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005),
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appeal denied, 593 Pa. 726, 928 A.2d 1289 (2007). “Prosecutorial
misconduct…will not be found where comments were based on evidence or
proper inferences therefrom or were only oratorical flair. In order to
evaluate whether comments were improper, we must look to the context in
which they were made.” Id. “[A] prosecutor is allowed to respond to
defense arguments with logical force and vigor.” Commonwealth v.
Chmiel, 585 Pa. 547, 620, 889 A.2d 501, 544 (2005), cert. denied, 549
U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006). The “determination
whether the prosecutor’s remarks were unfairly prejudicial rests within the
sound discretion of the trial court and our inquiry of necessity must turn to
whether an abuse of discretion was committed.” Commonwealth v.
Correa, 664 A.2d 607, 609 (Pa.Super. 1995), appeal denied, 544 Pa. 673,
678 A.2d 364 (1996).
“Under the Confrontation Clause of the Sixth Amendment, a criminal
defendant has a right to confront witnesses against him.” Commonwealth
v. Rivera, 565 Pa. 289, 299, 773 A.2d 131, 137 (2001), cert. denied, 535
U.S. 955, 122 S.Ct. 1360, 152 L.Ed.2d 355 (2002). In Bruton, the United
States Supreme Court held that admission of a facially incriminating
confession by a non-testifying co-defendant introduced at the defendant and
co-defendant’s joint trial, deprives a defendant of his Sixth Amendment right
to confrontation, even where the court instructs the jury to consider the
confession only against the co-defendant. Id. at 135-37; 88 S.Ct. at 1627-
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28; 20 L.Ed.2d at ____. Nevertheless, “[i]f a confession can be edited so
that it retains its narrative integrity and yet in no way refers to [the non-
confessing] defendant, then use of it does not violate the principles of
Bruton.” Commonwealth v. Travers, 564 Pa. 362, 368, 768 A.2d 845,
848 (2001). Although Bruton announced an evidentiary rule, our Supreme
Court has recognized its potential applicability to prosecutorial remarks.
See Commonwealth v. Cannon, 610 Pa. 494, 22 A.3d 210 (2011) (stating
Bruton violation may arise when prosecutor discloses to jury that co-
defendant’s statement has been redacted and unequivocally identifies
defendant as individual whose name was removed). The applicability of the
Bruton rule to prosecutorial remarks is a question of law. Id. Our scope of
review is plenary and our standard of review is de novo. Id.
Instantly, the prosecutor made the following remarks during closing
argument:
[W]hen I first wondered, you know, what this really was
about, I felt like it was just beyond me, that an individual
could set up his little brothers, or little brother and his
friend to be held up at gunpoint, but then I read
[Appellant’s] words. It reminded me that, you know,
counsel said that those kids had an opportunity to
concoct[] a story during that time they walked from the
house where something happened to the father’s house
down in deep South Philly, but then I thought even more
about human nature. I wonder who else had an
opportunity to concoct a story to sit down and decide, well,
what are we going to say happened just in case we get in
trouble, but, see, a jury of 14 people, 13, inside
[Appellant’s] head had already made up its mind. The jury
of 13 people inside of [codefendant’s] mind had already
deliberated and came back guilty. So instead of going with
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what they, you know, the agreement that they had, they
both come in and admit and try to distance themselves as
far away from the incident as possible. They don’t come in
and tell the same story. They come in and leave their
portions of what they did out. [reading from Appellant’s
police interview] “What happened on March 25, 2013,
[Appellant]? What happened?” “I came back with a bag
to get the rest of my belongings. I had clothing inside of
my house. I can’t find myself. Andre, my brother, was
there with two other people I never seen before.” We
know that that is true. Sounds a lot of like what they said.
“I’m looking for my [stuff]. I call Andre to the basement.
I asked him for the bag. I head downstairs. I asked him
for my sneakers. He walked off. My brother is a thief. He
has a problem with this. I wanted to scare Andre.” So
sneakers and a bag with clothes led you to call
[codefendant] over with a gun? Isn’t that just typical little
brother behavior[?] Don’t little brothers always try to
wear their big brother’s clothes? [Codefendant] came
over. We know [codefendant] came over. “[Codefendant]
I heard come in the front door. I was in the basement. So
was Andre. Andre was acting like he was trying to help
find my stuff. I heard a commotion so I went upstairs. I
see[] [codefendant] with a gun at his side. I made Andre
go upstairs.” So wait, that sounds a lot like the story that
all three children said on the day of the incident except for
[Appellant]—since he’s already made up in his mind that
he’s guilty, he is divorcing himself from it. You weren’t
there when [codefendant] came in now, huh? You came
upstairs and the gun was already out. “I talked to
[codefendant] and told him to go home. I talked to the
white boy. [Codefendant] had a gun permit. I leave out.
I went to 24th and Tasker. He took my money, prior to
this.” So I guess he’s referring to his little brother. “This
is how it all got started. My dad threw me out. I never
had [a] gun. [Codefendant] also had his girlfriend with
him. I talked to the two boys.” [Appellant] knew what
was up. He was caught, and his first inclination was to do
what every guilty person does. It was him. But this still
doesn’t sound right. Something is missing here, because
sneakers, clothes, [codefendant] just walking into the
house and started to rob two kids when the joke is—the
joke is to rob Andre. So then why do you come in without
announcing yourself to the person that invited you over
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and just randomly rob two white boys? That doesn’t make
sense.
So then you go to the next statement. You see,
[codefendant] knew he was in trouble. A jury of 13 people
inside of his mind had already found him guilty. So what
does he do? He goes, “It was him.” So, [codefendant],
what is your version of the story? How do you try and get
yourself out of this? [reading from codefendant’s police
interview] “Do you know [Appellant]?” “Yes.” “How long
have you known [Appellant]?” He says, “About ten years.”
“Did [Appellant] contact you on March 25, 2013?” “Yes.”
“How many times did [Appellant] contact you?” “I will go
once.” “About what time did [Appellant] contact you on
March 25th?” “Approximately, 1:00 p.m.” “What did
[Appellant] say to you on 3/25/13?” “Just stop pass, Bro.
We’re going to scare Ang.” …
“Do you remember how [Appellant] wanted to scare Andre
Jackson?” “Yes.” “What happened?” “Basically, we came
in the door. It was unlocked.” “[Appellant] told me to
come there. My girlfriend was there with me. I showed
the gun. Asked Andre, Where is the other gun? Andre
was not saying anything. He was more surprised about
what was going on.” … “We asked the other where the
gun was.” Assuming, we asked the other kids, those white
kids. [“]Where is the other gun? Where is the gun? I was
standing in front of Andre most of the time. I turned
around. [Appellant] was letting one of the kids out of the
door. I asked [Appellant] why he let him out of the door.”
You think about what [Mr. Iezzi] testified to. Remember,
[Mr. Iezzi]—this was in nobody’s statement. Remember
[Mr. Iezzi] said [Appellant and codefendant] started
arguing with each other when [Mr. Gilkin] ran out? The
thing about it is…we’re reading these statements, and if
you think about it in a vacuum, well, [Appellant and
codefendant] know what happened. Crazy thing about it
is, they don’t know what those kids have said. They don’t
know that. They have not had the opportunity to read
statements of the three children. They have not had that
opportunity, so they are trying to tell their story to the
best of their ability so that it’s self-serving to them, but
they don’t have the benefit of the knowledge that the
detectives have. They don’t have the benefit of the
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knowledge that the officers who are investigating the case
have, Detective Tocco, Quinn, Powell, they already have
interviewed these witnesses. They already know what
questions to ask to make sure that these guys literally tie[]
themsel[ves] up in their lies and they can’t get out of
them.
(N.T. Trial, 5/12/14, at 95-99). Appellant subsequently moved for a mistrial
on the ground that the prosecutor’s comments were improper under
Bruton. The court reasoned as follows in its Rule 1925(a) opinion:
It should be reiterated that neither [Appellant nor
codefendant] objected to the submission of their own or
the other’s statements to the police into evidence, nor to
the references in them as to what one defendant said the
other defendant said or did or referring to each other by
name in doing so, nor did they request that those
references be redacted. Defense counsel specifically
advised the court that “there was a conscious decision not
to go through a redaction,” and both counsel specifically
advised the court that they did not intend to dispute the
voluntariness or accuracy of the content of them as
described by the police witnesses. It would not be
unreasonable to assume that the reason they did not
request redactions was so they could both argue that
[Appellant and codefendant] only mutually intended to join
in a harmless prank to teach Andre [Jackson] a lesson.
Once they agreed to allow their references to each other in
the statements to be admitted, there was no legal bar to
repeating them in closing, as long as there was no
suggestion that the jury could consider them as evidence
against the other.[4] …
The sole basis for [Appellant’s] claim is a very brief portion
of the state’s closing, but such a conclusion can only be
properly supported by a reading of all of the relevant
portions of that closing which clearly shows that [the
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4
The court stated in its charge to the jury that each statement could be
considered as evidence only against the individual who made it.
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prosecutor] did not argue that [Appellant and codefendant]
did not tell the same story vis-à-vis each other, or that
they were accusing each other of anything. His actual
argument, in its full context, was, while perhaps a little
somewhat inarticulately presented in the one small portion
of it cited, that neither [Appellant nor codefendant] told
the same story as the victims. [The prosecutor] only
pointed out what each of them said about their own
actions and that those actions were based on what they
each heard or saw the other say or do. The prosecutor
never claimed or implied that they were inconsistent with
each other, which, of course would have been inaccurate
since they were virtually identical, nor that either
statement should be considered to be evidence of what the
other defendant said or did. He did not contrast
[Appellant’s and codefendant’s] statements with each
other[,] but the victims, simply noting that [Appellant and
codefendant] did not tell the same story as the victims in
that, while much of what they each said comported with
the witnesses’ accounts, some of the details contained in
the latter were either omitted or denied in the former. …
* * *
The remark about [Appellant and codefendant] blaming
each other was not meant to convey that [they] were
blaming each other for the robbery or to [imply] that the
jury could consider each of their versions to be evidence
against the other, in particular because it was not
necessary since both [Appellant and codefendant] agreed
that each of them did, in fact, do and say what the other
said they did. On the contrary, the prosecutor made clear
that their describing what the other did or said was an
attempt by each of them to try to justify their own actions
in their own minds. The prosecutor did not say that
[Appellant and codefendant] were distancing themselves
from each other; he said that they were trying to distance
themselves from their agreement to scare Andre [Jackson]
by robbing the victims. He was simply noting that each of
them was trying to use what he believed the other did or
said to justify his own individual actions.
(Trial Court Opinion at 24-27). The record supports the court’s analysis.
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Appellant did not object to the admission of codefendant’s statement to the
police, or request a redaction of the statement to remove any references to
Appellant, pursuant to Bruton. Thus, there was no bar to the prosecutor
saying Appellant’s name when reading from codefendant’s statement during
closing argument. See Commonwealth v. Young, 397 A.2d 1234
(Pa.Super. 1979) (holding defendant waived Bruton claim by failing to raise
it before trial court). Moreover, the prosecutor did not attempt to use either
Appellant’s or codefendant’s statement as evidence against the other
defendant. The prosecutor did not point out differences between Appellant’s
and codefendant’s statements. Rather, the prosecutor permissibly
contrasted their statements with the testimony and statements of the
victims, emphasizing that Appellant’s and codefendant’s statements were
largely consistent with the victims’ statements except for certain
incriminating details. Thus, Bruton is not implicated here. See Cannon,
supra. The prosecutor’s remarks referred to evidence of record and were in
fair response to the arguments of defense counsel that Andre Jackson and
the victims had fabricated their accounts of the robbery. See Chmiel,
supra; Harris, supra. Therefore, the trial court acted well within its
discretion when it denied Appellant’s request for a mistrial. See Correa,
supra. Accordingly, we affirm.
Judgment of sentence affirmed.
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J-S01038-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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