J-S78024-18 (Pa. Super. Ct. Apr. 22, 2019)

J-S78024-18 No. 3480 EDA 2017




Appeal from the Judgment of Sentence Entered September 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012767-2015 BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E. MEMORANDUM BY McLAUGHLIN, J.:

Former Justice specially assigned to the Superior Court.

Dimitrius Brown appeals from the judgment of sentence entered following his conviction for third-degree murder and related firearms offenses. Brown argues that the court erred in overruling his objection to a remark the prosecutor made during her closing argument, the evidence was insufficient to support the verdict, the verdict was against the weight of the evidence, and the court failed to give adequate consideration to mitigating factors during sentencing. After careful review, we affirm.

18 Pa.C.S.A. § 2502(c).

Brown was convicted of persons not to possess firearms, firearms not to be carried without a license, and carrying a firearm in public in Philadelphia. See 18 Pa.C.S.A. §§ 6105(c)(8), 6106(a)(1), and 6108, respectively.

The trial court recounted the facts of the crime as evidence presented at Brown's jury trial, and we need not restate them at length here. See Trial Court Opinion, filed December 21, 2017, at 2-4. In sum, two eyewitnesses testified that they saw 19-year-old Brown shoot Duval DeShields, Jr., a 14-year-old, in the head, causing his death.

A third witness, O.B., testified that he had not seen the shooting. However, the Commonwealth introduced as substantive evidence a sworn, written statement O.B. had made to police detectives after the shooting, in which O.B. stated he had witnessed the shooting and identified Brown as the shooter. In response, O.B. protested that the statement was forged, he never went to the police station, does not know Brown, and was only testifying at trial due to a subpoena. Detective William Sierra testified that he took O.B.'s statement, a week after the shooting, at the police station. The Commonwealth also introduced the sign-in records from the police station, showing an entry for O.B. on the date of the statement.

Aside from other law enforcement and medical testimony, the Commonwealth entered into evidence recordings of multiple phone calls Brown made from prison. These exhibits were not transmitted to this Court as part of the certified record, and the phone calls were not transcribed in the trial transcript.

Photocopies of the covers of the CDs containing the recordings were included in the record.

In Brown's defense, Brown's father testified that he was with Brown in another part of the city on the night of the murder. However, his testimony contradicted the statement he had previously given defense counsel regarding the places and times he was with Brown on the night of the shooting. In addition, he testified that he had not contacted anyone to disclose the alibi until he contacted defense counsel ten days before the trial.

After the close of evidence, the court instructed the jury that closing arguments are not evidence and that the jury is not bound by counsel's recollection of the evidence or counsel's perspective. During his closing argument, Brown's attorney emphasized that O.B. had recanted the statement he gave to the detectives identifying Brown as the shooter. Specifically, Brown's attorney argued to the jury, "[O.B.] got on the witness stand. He said that statement, forget about it, never happened, nothing." N.T., 7/12/17, at 99.

During the Commonwealth's closing argument, the prosecutor argued that it is common for witnesses to recant statements. The prosecutor stated,

You heard from [O.B.] on the first day of trial, and I said he is what we call, "south." What do I mean by that? He recanted or tried to take back what he told the detectives. He made an inconsistent statement. When I say, "south," that is actually a common phrase we use. Because it is that common for witnesses to recant.
Id. at 119.

Brown objected. The court overruled the objection, but instructed the prosecutor to explain her comment to the jury. The prosecutor argued to the jury that prior inconsistent statements are admissible as evidence of the truth if written and signed. She then set forth facts supporting why the jury should not find O.B.'s trial testimony credible, including that he had admitted that he was testifying reluctantly, under subpoena, and that he claimed never to have made a statement to the police, or even gone to the police station, which was contradicted by the testimony of the detective who took his statement at the police station and the sign-in book. The prosecutor also argued that O.B.'s written statement was credible, noting that the content of his statement corroborated the testimony of the two other eyewitnesses, and that immediately after the shooting, 14-year-old O.B. would not have been thinking about the repercussions of making a truthful statement to the police.

The prosecutor also re-played one of the phone calls Brown made from prison. The prosecutor described the content of the call as an attempt by Brown to instruct O.B. to recant his statement:

They're talking about [O.B.]. . . . [Brown] says: "Either you can give him [Brown's attorney's] number so that when [O.B.] goes down to his office and, like, fill out paperwork, like a statement, like it was a lie, like the mother fucking homicide detectives, like, made him do that."
Id. at 126. Brown did not object to this characterization of the recording, or the prosecutor's explanation for why the jury should credit the contents of O.B.'s statement.

The jury convicted Brown of the offenses listed above. At the sentencing hearing, both Brown and the Commonwealth presented evidence, and the court reviewed the contents of a presentence investigation report and mental health report. The court sentenced Brown to serve a term of 20 to 40 years' imprisonment for third-degree murder and lesser sentences on the other charges, for an aggregate of 22½ to 45 years' imprisonment. Brown filed a post-sentence motion, which the court denied.

The court sentenced Brown to serve a consecutive term of two and one-half to five years' imprisonment for persons not to possess a firearm and concurrent terms of two and one-half to five years' and one to two years' imprisonment for firearms not to be carried without a license and carrying a firearm in public in Philadelphia, respectively. --------

Brown appealed, and presents the following issues:

A. Whether the trial court erred in overruling defense counsel's objection to the prosecutor's closing argument that it was common for witnesses to recant, thereby causing significant prejudice to [Brown]?
B. Whether the trial court erred in sentencing [Brown] to 25 to 50 years of confinement despite his mitigation presented at the sentencing hearing.
C. Whether the evidence was sufficient under the appropriate standards of review to prove the charges beyond a reasonable doubt.
D. Whether the verdict was against the weight of the evidence.
Brown's Br. at 5.

I. The Prosecutor's Closing Remarks

In his first issue, Brown argues that the prosecutor improperly remarked during her closing argument that it was common for witnesses to recant prior statements. Brown contends that the prosecutor's comment did not "relate back to the evidence of record." Brown's Br. at 10. Brown also argues the comment constituted "improper vouching for the prior statement and the police testimony about it," and "prejudiced the jury to think they need not consider the direct testimony of O.B." Id.

Initially, we note that it would be within our purview to find this claim waived, as Brown did not request a mistrial or curative instruction either during trial or in his post-sentence motion, in which Brown did not raise the issue of the prosecutor's closing remarks. See Commonwealth v. Sandusky , 77 A.3d 663, 670 (Pa.Super. 2013). In any event, we find the claim to be without merit.

We will not grant a new trial based on statements made by the prosecutor during closing argument unless "the unavoidable effect of the challenged comments would prejudice the jurors and form in their minds a fixed bias and hostility toward the defendant such that the jurors could not weigh the evidence and render a true verdict." Commonwealth v. Burno , 94 A.3d 956, 974 (Pa. 2014) (quoting Commonwealth v. Spotz , 47 A.3d 63, 98 (Pa. 2012)). Both the prosecution and defense are "accorded reasonable latitude and may employ oratorical flair in arguing" to the jury. Commonwealth v. Williams , 896 A.2d 523, 542 (Pa .2006).

Moreover, we evaluate the prosecutor's remarks not in a vaccum, but in context. Commonwealth v. Rolan , 964 A.2d 398, 410 (Pa.Super. 2008). A remark will not be found inappropriate if based on the evidence presented at trial. Williams , 896 A.2d at 542. And, while the prosecutor should not offer a personal opinion as to the credibility of a witness, the prosecutor is permitted to respond to defense arguments. Burno , 94 A.3d at 974. A prosecutor only improperly "bolsters" a witness by personally assuring the jury of the witness's truthfulness or suggesting extrinsic information confirms the witness's testimony. Commonwealth v. Reid , 99 A.3d 427, 447-48 (Pa. 2014).

We find no impropriety in the prosecutor's remarks that O.B. went "south" and that this is a common occurrence for trial witnesses. The law allows for the introduction of prior statements made under reliable circumstances because inconsistency in witness testimony is not uncommon. See Pa.R.E. 803.1(1) (providing prior inconsistent statement by trial witness admissible as substantive evidence of truth if signed and adopted by the witness). Such a statement may possess "superior indicia of reliability as it was rendered at a point in time closer to the event described . . . when memory will presumably be fresher and opportunity for fabrication lessened." Commonwealth v. Wilson , 707 A.2d 1114, 1119 (Pa. 1998) (quoting Commonwealth v. Brady , 507 A.2d 66, 69 (Pa. 1986)).

Here, the Commonwealth introduced evidence that O.B.'s statement was accurate and his trial testimony fabricated. It did so through evidence that O.B. went to the police station and made a statement that corroborated the testimony of the other two eyewitnesses, despite O.B.'s trial testimony to the contrary, and evidence that Brown suggested during a phone call made from prison that O.B. should recant the statement. Therefore, the prosecutor's remarks indicating that O.B.'s statement was more credible than his testimony was based on trial evidence. Williams , 896 A.2d at 542.

Moreover, the Commonwealth's attempt to emphasize the credibility of O.B.'s statement was a permissible response to the defense's argument that the jury should discredit the statement. Burno , 94 A.3d at 974. And, as the prosecutor did not personally opine that the statement was truthful, or imply that there were extrinsic reasons for the jury to credit the statement, she did not improperly bolster the credibility of the statement to the jury. Reid , 99 A.3d at 447-48. In addition, the court instructed the jury that it was not to construe the arguments of counsel as evidence, and was to weigh the credibility of each witness. See Commonwealth v. Laird , 988 A.2d 618, 629 (Pa. 2010) (stating law presumes jury followed court's instructions).

We therefore conclude the trial court did not abuse its discretion in overruling Brown's objection to the prosecutor's closing remarks under the circumstances present in this case.

II. Weight and Sufficiency of Evidence

Brown argues the evidence was insufficient because there was no physical evidence "linking" him to the homicide and he impeached the testimony of the three eyewitnesses as follows: O.B. recanted his testimony, the second eyewitness gave a description to the police which did not match Brown, and the third eyewitness testified she was not wearing her eyeglasses when she saw the shooting and gave inconsistent testimony. Brown states the verdict was against the weight of the evidence "for the same reasons." Brown's Br. at 11.

We caution that challenges to the weight and sufficiency of the evidence are separate and distinct claims, which are viewed under different standards of review, and, when successful, warrant different remedies. See Commonwealth v. Widmer , 744 A.2d 745, 751-52 (Pa. 2000). Nevertheless, the trial court explained the legal standards for deciding both the sufficiency and weight claims, and decided them accordingly. Upon review of the parties' briefs, the applicable law, and the certified record, we discern no error of law or abuse of discretion in the trial court's analysis. We therefore affirm the trial court's disposition of these issues on the basis of the opinion of the Honorable Barbara A. McDermott, which we adopt and incorporate herein. See Tr. Ct. Op. at 5-8.

III. Sentencing

In his final issue, Brown argues that the court incorrectly "decided [Brown] had no mitigating circumstances, despite the record showing his traumatic family upbringing, his youthful age, family support and lack of direction in life." Brown's Br. at 11. Brown also argues his sentence, while falling within the standard range of the Sentencing Guidelines, was "excessive for satisfying the statutory goal[s] of sentencing." Id.

Before addressing the merits of Brown's claim, we must determine whether: (1) the appeal is timely; (2) the issue was preserved; (3) the brief includes a Pa.R.A.P. 2119(f) statement; and (4) the statement raises a "substantial question that the sentence appealed from is not appropriate under the Sentencing Code." See Commonwealth v. Heaster , 171 A.3d 268, 271-72 (Pa.Super. 2017) (quoting Commonwealth v. Moury , 992 A.2d 162, 170 (Pa.Super. 2010)), appeal denied, 181 A.3d 1078 (Pa. 2018).

The Commonwealth argues that Brown has failed to include a Pa.R.A.P. 2119(f) statement in his brief, and thus his challenge to the discretionary aspects of his sentence is waived. We agree. See Commonwealth v. Kiesel , 854 A.2d 530, 533 (Pa.Super. 2004) (holding appellate court has no discretion to allow appeal when appellee objects to omission of Rule 2119(f) statement). Moreover, a guidelines sentence is presumed appropriate. Commonwealth v. Maneval , 688 A.2d 1198, 1199 (Pa.Super. 1997). Further, where a court had the benefit of a presentence investigation report, as it did here, we presume the court was aware of all relevant information. See Commonwealth v. Bonner , 135 A.3d 592, 605 (Pa.Super. 2016); Tr. Ct. Op. a 9-10 (stating trial court reviewed presentence and mental health reports and considered all relevant sentencing factors). Therefore, were the discretionary sentencing issue not waived by Brown's failure to petition this court for review, we would find the issue lacking in merit.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/22/19

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