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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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

____________________________________________


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
____________________________________________


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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