March 7, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
MILTON C. BROWN Appellant
Appeal from the Judgment of Sentence of May 31, 2013 In the Court of Common Pleas of Blair County Criminal Division at No.: CP-07-CR-0001211-2012
BEFORE: PANELLA, J., OLSON, J., and WECHT, J.
Milton Brown appeals from his May 31, 2013 judgment of sentence. We affirm.
On March 26, 2012, Corporal Christopher Moser and Sergeant Troy Johannides of the Altoona Police Department set up a controlled drug buy using a confidential informant, Frank Lang. The initial target was James Garman, but the buy also targeted Garman's supplier, in this case, Brown. Prior to the buy, Corporal Moser conducted a search of Lang's car and Sergeant Johannides searched Lang. Corporal Moser followed Lang to the area near James Garman's residence. Garman entered Lang's vehicle and they drove a short distance to a Sheetz convenience store. Lang parked a couple of blocks away. Garman walked toward the Sheetz while Lang remained in the car. A few minutes later, Brown arrived, and he and Garman entered the Sheetz. Brown and Garman stayed in the store a few minutes, then left separately.
Garman returned to Lang's vehicle. Lang and Garman returned to Garman's residence. They walked in between two houses, and then, approximately eight minutes later, Lang returned to his car. Lang met with the police officers and turned over nine packets of heroin. The packets had a red Coca-Cola mark.
Garman testified that he was a set-up man for drug transactions. He would receive a portion of the drugs in exchange for brokering the deals. Notes of Testimony ("N.T."), 3/25-26/2013, at 86-87. Lang asked Garman to get heroin for Lang. Garman told Lang he could get ten bags of heroin for two hundred dollars. Id. at 88. Garman called Brown to arrange to purchase the heroin, and Brown told Garman to meet him at the Sheetz. Id. at 92. Garman and Brown exchanged the money for the drugs in the Sheetz and Garman left. Id. at 94. Garman was uncertain if he received one or two bags of heroin as his finder's fee. Id. at 95-96. Brown testified that he happened to meet Garman at the Sheetz, but denied that any drug transaction occurred. Id. at 362-63.
Brown was charged with conspiracy, possession with intent to distribute ("PWID"), and possession. Following a jury trial on March 25 and 26, 2013, Brown was convicted only of conspiracy. On May 31, 2013, Brown was sentenced to three to six years' incarceration.
On June 20, 2013, Brown filed a notice of appeal. On June 24, 2013, the trial court ordered Brown to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Brown timely complied and the trial court filed its Rule 1925(a) opinion.
Brown presents three issues for our review:
I. Whether there was insufficient evidence to support the jury's guilty verdict on the charge of criminal conspiracy when the jury found [Brown] not guilty on the charges of possession with intent to deliver and possession of [a] controlled substance.
II. Whether the jury returned inconsistent verdicts by finding [Brown guilty] of criminal conspiracy and not guilty of possession with intent to deliver and possession of a controlled substance.
III. Whether the Assistant District Attorney committed prosecutorial misconduct by personally vouching for the credibility of the Commonwealth witnesses and by incorrectly stating [Brown's] testimony.
Brown's Brief at 14.
The trial court thoroughly recounts the evidence presented at the trial and provides an accurate analysis demonstrating that the evidence was sufficient for the jury to find Brown guilty of conspiracy. Keeping in mind our standard of review in a sufficiency challenge,  we adopt the trial court's discussion of this issue. See T.C.O. at 2-5. A copy of that opinion is attached hereto for reference.
As to Brown's second issue, the trial court accurately recites the law on inconsistent criminal verdicts and resolves Brown's claim. Therefore, we adopt the trial court's opinion on that issue as well. See T.C.O. at 5-6.
Brown's final issue relates to comments made in the Commonwealth's closing argument. Brown objects to two statements. Brown claims that the first comment demonstrated the Assistant District Attorney's ("ADA") personal opinion regarding the truthfulness of a Commonwealth's witness. Brown argues that the second comment misstated Brown's testimony. Brown contends that these statements prejudiced him to the extent that he was denied a fair trial. Brown's Brief at 25.
With specific reference to a claim of prosecutorial misconduct in a closing statement, it is well settled that "[i]n reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made."Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006) (citation omitted). Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial. Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998).
In addition, we note the following:
It is well settled that a prosecutor has considerable latitude during closing arguments and his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict. Prosecutorial misconduct is evaluated under a harmless error standard.
Commonwealth v. Holley, 945 A.2d 241, 250 (Pa.Super. 2008) (internal citations and quotations omitted). We are further mindful of the following:
In determining whether the prosecutor engaged in misconduct, we must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.
It is settled that it is improper for a prosecutor to express a personal belief as to the credibility of the defendant or other witnesses. However, the prosecutor may comment on the credibility of witnesses. Further, a prosecutor is allowed to respond to defense arguments with logical force and vigor. If defense counsel has attacked the credibility of witnesses in closing, the prosecutor may present argument addressing the witnesses' credibility.
Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa. 2005) (internal citations and quotations omitted).
Commonwealth v. Judy, 978 A.2d 1015, 1019-20 (Pa.Super. 2009) (some citations modified).
The ADA's first comment was spoken in the course of recounting the sequence of events that occurred on March 26, 2012. After describing the events as they were testified to and noting that there was evidence supporting Garman's testimony that he obtained the heroin from Brown, the ADA stated:
[Garman] went back there, met the person he was supposed to meet and got the drugs he was supposed to get from the person. He went back up to Mr. Lang's car as the photos and the video show you and as Mr. Lang's testimony corroborates and the officer's testimony corroborates that. The next information that we have is that Mr. Lang went into Mr. Garman's house and that Mr. Garman used a packet of heroin. And I submit to you, ladies and gentleman, that I believe that that happened, you know, one hundred percent. There's no doubt from the evidence since we only have nine bags and not ten that that's the way it happened.
N.T. at 405.
In his closing, Brown had specifically attacked Lang's and Garman's credibility, stating:
I think it's clear this case rides on the testimony of James Garman and Frank Lang. They're, like I told you in my opening, rats/snitches and I submit use your common sense, you can't trust a rat and you can't trust a snitch and you have to rely on their testimony here to find my client guilty of this charge. . . .
So, really the case rides on the testimony of Garman and Lang and you can't trust them, I submit, because – you can't trust Garman because he's so involved in this.
Can you trust the testimony of Frank Lang either? I submit no. N.T. at 383-86. The defense outlined all the reasons that Lang and Garman had to cooperate with the Commonwealth and the benefits that they would receive in sentencing due to that cooperation. Id. at 384-87.
Viewed in the context of Brown's closing, which forcefully attacked the credibility of Lang and Garman, a forceful response by the Commonwealth was permissible. Initially, however, we observe that the ADA's statement that "I believe that that happened, you know, one hundred percent, " expressed the ADA's personal belief about Garman's and Lang's credibility. That is not permitted. See Judy, supra. Nonetheless, prosecutorial misconduct is subject to a harmless error standard. "[W]here the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict, then the error is harmless beyond a reasonable doubt." Commonwealth v. Miles, 681 A.2d 1295, 1302 (Pa. 1996) (internal citation omitted) (discussing prosecutorial misconduct in closing argument). Here, the evidence of Brown's guilt was overwhelming, especially in comparison to the minimal prejudice of one statement by the ADA. Further, Brown has only made a bald allegation of prejudice. The error was harmless.
The second comment to which Brown objects occurred while the ADA was commenting on Brown's credibility. The attorney said:
I would submit to you, ladies and gentleman, that what [Brown] said was a self[-]serving statement and that, you know, it's your job to evaluate whether or not you think he was just there for a cheese danish, that he came from his house across town to that Sheetz at the very time and the very place that these people said he was going to be there to sell them drugs and it's up to you as to whether or not you think he went in there and James Garman just by coincidence follows him and left a minute later and had a bundle and didn't get it from [Brown].
N.T. at 410.
Brown argues that this statement mischaracterizes his testimony that he was at that Sheetz because it was near the apartment of a friend who he was visiting on March 26. Brown's Brief at 25. The Commonwealth asserts that the statements in closing were drawn from Brown's testimony. Commonwealth's Brief at 15.
Brown testified that he did not live near the Sheetz in question, but that it was located near the apartment of his friend, Troy Jukes. Brown stated that he was regularly at that friend's apartment because he would watch his children. However, Brown also admitted that he was not with Jukes on that day:
[Commonwealth]: So you're telling the jury here today that you were just going to get a cheese danish from Sheetz and nothing else?
[Brown]: Yes, I am.
[Commonwealth]: So, you went across town to get the Sheetz danish or just the danish from Sheetz?
[Brown]: I happened to be on that side of town that day.
[Commonwealth]: Okay. With Troy Jukes?
[Brown]: No, I wasn't.
N.T. at 367-68.
The ADA was referring to this testimony in the closing argument. While the ADA did not quote Brown's testimony, the comments fairly were based upon the evidence and reasonable inferences derived therefrom. Because they were a fair characterization of the testimony, there was no misconduct. Further, even assuming, arguendo, that the statements mischaracterized Brown's testimony, Brown has not demonstrated how these comments prejudiced the jury, beyond a bald assertion of prejudice.
Because Brown's claims on appeal fail, we affirm his judgment of sentence.
Judgment of sentence affirmed.