J-S41008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID ISAIAH JETT,

                            Appellant                No. 14 MDA 2015


      Appeal from the Judgment of Sentence entered September 11, 2014,
               in the Court of Common Pleas of Lycoming County,
              Criminal Division, at No(s): CP-41-CR-0000036-2014


BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                              FILED JUNE 26, 2015

        David Isaiah Jett (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of robbery, simple assault, theft by

unlawful taking, and receiving stolen property.1

        The facts adduced at trial are as follows: Desaree Wykoff was working

at the Quick Mart on Northway Road in Williamsport on the evening of

December 15, 2012, when “a masked man with a gun” entered the store.

N.T. (Jury Trial), 6/16/14, at 11. The man, who was wearing black pants, a

blue hoodie and a black jacket, demanded money.          Id. at 12-15.    Ms.

Wykoff gave the man “around $600” from a cash register and the man put

the money in what looked like a black pillow case and left. Id. at 13. Ms.

____________________________________________


1
    18 Pa.C.S. §§ 3701(a), 2701(a), 3921(a), and 3925(a), respectively.



*Retired Senior Judge assigned to Superior Court.
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Wykoff testified that she was scared, and although the robbery lasted

“maybe 45 seconds to a minute”, it “felt like it took forever.” Id. at 14.

      Jamison Markham testified to being friends with Appellant. Id. at 21-

22. Mr. Markham was with Appellant during the afternoon and evening on

December 15, 2012, the day the Quick Mart was robbed.           Id. at 22-23.

Appellant left Mr. Markham’s home that day but returned around 8:30 p.m.

Id. at 23. He was wearing black jeans and a blue hoodie. Id. Appellant

told Mr. Markham that “he robbed the uni-mart, and showed [Mr. Markham]

a wad full of cash, maybe about $500.” Id. The day prior, Appellant had

told Mr. Markham that he was going to commit the robbery but Mr. Markham

“thought he was joking.”    Id. at 24.   When Appellant stated that he had

committed the robbery, another individual, Nicole Baney, was present. Id.

at 24-25.   When Appellant left Mr. Markham’s residence, he had changed

from his blue hoodie to a black puffy jacket, and took with him his black gym

bag. Id. at 25.

      Christine Marie Fye testified to being employed as a forensics services

member of the Pennsylvania State Police. Ms. Fye was called to recover a

firearm discovered behind Mr. Markham’s house by his neighbors. Id. at 37.

Ms. Fye processed the firearm to maintain its integrity as evidence. Id. at

38-39.

      Nicole Baney testified to being acquainted with Appellant through Mr.

Markham. Id. at 41-42. Ms. Baney was “hanging out” with Mr. Markham at

his home on the evening of the robbery when Appellant arrived. Id. at 43.

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Ms. Baney denied that Appellant made any statements to her about his

whereabouts that evening; however, Ms. Baney testified that Appellant

changed clothes, and put his blue hoodie in a black drawstring bag. Id. at

44. She also saw Appellant with “a roll of money” in his hand. Id. at 45.

        Leroy Starr testified to being friendly with Appellant. Id. at 50. Mr.

Starr stated that Appellant told him about his plan to rob a uni-mart

approximately “three months before he did it.” Id. Mr. Starr testified that

Appellant asked him to find him a gun, asked Mr. Starr’s girlfriend to find

him a gun, and asked Mr. Starr to be his getaway driver. Id. at 51. Mr.

Starr testified that he never participated in the robbery, even though he

knew about it.    Id. at 52.   He also testified that his “really good friend”,

Maurice Williams, was originally arrested for the robbery, but Mr. Starr did

not come forward to disclose what he knew about Appellant until Appellant

“got out of jail and … called [Mr. Starr] and said that he was going to shoot

[Mr. Starr and his girlfriend] at the time if [Mr. Starr] didn’t keep his .. name

out.”     Id.    After Appellant threatened Mr. Starr, Mr. Starr called

Pennsylvania State Trooper Havens. Id. at 52, 55. Mr. Starr testified that

even though he was good friends with Maurice Williams and knew he was

wrongfully arrested for the robbery, he did not come forward with

information about Appellant at first because Mr. Starr “did not want to be

involved in this case.   Because [Mr. Starr] had [his] own problems at the

time … [and] just wanted to worry about [himself].” Id. at 58.




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     Mary Catherine Fitzpatrick testified to being Mr. Starr’s girlfriend at the

time of the robbery and knowing Appellant. Id. at 60. Ms. Fitzpatrick said

that Appellant “was talking about robbing a store” and told her “he needed a

gun.” Id. She confirmed that Appellant asked Mr. Starr for a ride after the

robbery, but that “the night it went down [Mr. Starr] called [me] and I just

told him not to go pick [Appellant] up and [Mr. Starr] didn’t.” Id. at 60-61.

Ms. Fitzpatrick testified that after the robbery, she saw Appellant, who gave

her “a dirty look”, and called Mr. Starr and “was making all these threats,

saying if we talked to the cops saying that he robbed the uni-mart he was

going to shoot up our house.” Id. at 62. Ms. Fitzpatrick said she heard the

threats on Mr. Starr’s speakerphone. Id. at 63.

     Pennsylvania State Trooper Tyson Havens testified to investigating the

December 15, 2012 robbery of the Quick Mart. Trooper Havens explained

that he initially and wrongly arrested Maurice Williams for the robbery based

on the eyewitness account of a Quick Mart customer who was the last

customer in the Quick Mart, approximately eight minutes prior to the

robbery. Id. at 67. Upon further investigation, Trooper Havens concluded

that the eyewitness was not credible, that Maurice Williams had not

committed the robbery, and asked the district attorney to dismiss the

charges against Mr. Williams. Id. at 70.

     Trooper Havens testified that the day he arrested Maurice Williams,

Ms. Fye told him about the gun found behind Mr. Markham’s house. Id. at




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91.   Trooper Havens went to Mr. Markham’s house the next day, and

related:

            His mom said I was going to railroad him. He just didn’t –
      he’s typical of the kids in that community. They’re – they’re
      street kids and they don’t like police and they don’t want their
      friends seeing them talking to police so they put up a fight every
      time we come around to talk.

Id. at 92. Trooper Havens explained that he “kept getting interrupted” by

Mr. Markham’s mother, so he and Mr. Markham continued the interview at

the police station, where Mr. Markham told Trooper Havens he “wrongly

arrested his best friend [Maurice Williams]” and “didn’t call [Trooper Havens]

to know his best friend was sitting in jail.” Id. at 92-93.

      Trooper Havens also interviewed Nicole Baney, who indicated that she

saw Appellant the night of the robbery and he was wearing black pants and

a hoodie. Id. at 98-99.

      After   Appellant   was   identified   as   the   robber,   Trooper   Havens

interviewed Appellant and apprised him of his Miranda rights.           Id. at 78.

He also obtained Appellant’s permission to record the interview.               Id.

Appellant admitted to knowing about the robbery because he frequented the

Quick Mart and had family that lived nearby. Id. at 79. When asked about

his relationship with Mr. Markham, Appellant stated that they did not “have a

good history” because Appellant had picked on Mr. Markham in school and

had “had sex with one or two” of Mr. Markham’s girlfriends.            Id. at 80.

Nonetheless, Appellant admitted being at Mr. Markham’s home on the night



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of the robbery, but then recanted and said he was there only in “the

morning or during the daytime.” Id. at 81. Upon telling Appellant that “all

his pals” were saying Appellant robbed the Quick Mart, Trooper Havens

testified:

            I fully expected him to be upset and angry that the people
      are assuming he [did] it. I expected him to be angry that people
      are accusing him of committing a robbery. He wasn’t angry at
      all. He was indifferent. He didn’t – he didn’t seem to care …
      One of the things he said was, that’s the way the cookie
      crumbles.

             I went and interviewed him after we had … the piece of the
      firearm. …. After we recovered that piece of the firearm I sent
      that piece of that firearm to our DNA lab to be tested for DNA. . .
      . I told [Appellant] that I wanted to get a sample of his DNA and
      I said, this will clear you if you didn’t do it. He said he didn’t do
      it. [I said,] if you didn’t commit this robbery and your DNA is
      not going to be on the gun, give me your DNA, I’ll send it to the
      lab, they’ll compare it against the DNA on the gun and it’ll clear
      you. And he told me no.

Id. at 83-85.

      Trooper Havens also testified that in a recorded conversation from the

Lycoming     County   Jail,   Appellant’s   grandmother   asked   about   moving

Appellant’s clothing, and Appellant talked about his hats.           Id. at 77;

Commonwealth Exhibit 4. Appellant’s grandmother asked “about the black

hat with the eyes cut out”, after which Appellant “quickly stops her and says

no, not that one, and then moves on.” Id.




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        Pennsylvania State Trooper Kenneth Davis testified to interviewing Mr.

Markham, who indicated that Appellant had told him of his intention to rob

the uni-mart.       Id. at 120.   Mr. Markham also indicated that “Nicole”2 was

present when Appellant said he committed the robbery.             Id. at 121-123.

Mr. Markham provided Trooper Davis with the names of “DJ Starr” and Mary

Fitzpatrick. Id. at 123-124.

        The jury returned its guilty verdicts at the close of trial on June 16,

2014. On September 11, 2014, the trial court sentenced Appellant to 72 to

144 months of incarceration on the robbery charge; the trial court found

that the remaining charges merged for sentencing purposes.

        Appellant filed a motion for post-sentence relief on September 15,

2014, which the trial court denied by opinion and order dated December 19,

2014.        Appellant filed a timely appeal.    Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

        Appellant raises three issues for appellate review:

        I.      WHETHER THE TRIAL COURT ERRED IN ALLOWING THE
                COMMONWEALTH TO PRESENT AN IMPROPER CLOSING
                ARGUMENT, IN THAT THE PROSECUTOR EXPRESSED A
                PERSONAL BELIEF ABOUT THE CREDIBILITY OF HIS NON-
                LAW ENFORCEMENT WITNESSES WHICH PREJUDICED THE
                JURY?

        II.     WHETHER  THE          EVIDENCE      PRESENTED  BY  THE
                COMMONWEALTH         AT TRIAL      WAS INSUFFICIENT TO
____________________________________________


2
 Trooper Davis testified that Mr. Markham refused to disclose Nicole’s last
name to him.



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             ESTABLISH THE ELEMENTS OF EACH OF THE OFFENSES
             CHARGED WHEN THERE WAS NO COMPETENT EVIDENCE
             TO ESTABLISH [APPELLANT] AS THE INDIVIDUAL WHO
             COMMITTED THE ROBBERY?

      III.   WHETHER THE VERDICT OF THE JURY WAS AGAINST THE
             WEIGHT OF THE EVIDENCE WHEN THERE WAS NO
             COMPETENT EVIDENCE TO ESTABLISH THAT [APPELLANT]
             WAS THE INDIVIDUAL WHO COMMITTED THE ROBBERY
             AND THERE WERE MULTIPLE INCONSISTENT STATEMENTS
             BY   ALL  OF   THE   COMMONWEALTH’S     NON-LAW
             ENFORCEMENT WITNESSES?

Appellant’s Brief at 7.

      In his first issue, Appellant asserts that “the prosecutor improperly and

shamelessly vouched for the credibility of its police witness throughout his

summation.”      Appellant’s Brief at 23.     Appellant also contends “the

prosecutor repeatedly and improperly vouched for the credibility of its lay

witness through his summation.”     Id. at 25. Appellant maintains that the

prosecutor’s improper comments prevented him from obtaining a fair trial.

Id. at 26. We disagree.

      We first note that our review of the transcript from the June 16, 2014

closing arguments reveals that Appellant’s counsel never objected to the

prosecutor’s closing statements. See Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on

appeal.”); Commonwealth v. Montalvo, 956 A.2d 926, 936 (Pa. 2008)

(noting the general rule that in order to preserve a claim on appeal, a party

must lodge a timely objection at trial, and quoting Commonwealth v. May,

887 A.2d 750, 758 (Pa. 2005) (“To the extent the claims would sound in trial



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J-S41008-15



court error, they are waived due to the absence of contemporaneous

objections.)).

      Waiver notwithstanding, Appellant’s claim is meritless. Appellant cites

as improper the following portions of the prosecution’s closing remarks:

      [Trooper] Havens . . . had the opportunity to explain why he had
      arrested the wrong person. . . . And you know what? Thank
      goodness we have troopers who are willing to say, I ma[d]e a
      mistake, because otherwise the criminal justice system would be
      a sham and a fraud.

      But Havens said, hey, to the District Attorney’s Office, after
      further investigation, after talking to more people, after
      investigating the eyewitness and his credibility, we realize that
      we made a big mistake.

      ...

      [Trooper] Havens through his further investigation decided . . .
      after he looked at the witness statements, the surveillance, and
      realized that [Appellant] was the culprit.

      ...

      [Appellant] also gives away, in the opinion of the Commonwealth
      that his demeanor gives himself away. One would suspect an
      individual who is being accused of a crime who didn’t do it and
      who is being lied about by multipole [sic] different people that he
      thought was his friends, one would suspect that he would be
      outraged, that he would be shocked and that he would be in
      awe. And yet, what does [Trooper] Havens say? He just kind of
      sat there and he said something along the lines of, well, that’s
      the way the cookie crumbles, I guess. It’s not the statement of
      an individual who is wrongly accused. It’s not the statement of
      an individual who is being railroaded by five of his good friends.
      It’s the demeanor and it’s the statement of an individual who’s
      guilty and who knows he’s guilty and knows he has been caught.

      ...

      And last, but not least . . . Trooper Havens, says listen, we have
      technology now. We have DNA. We can have the ability to take
      your DNA and send it to the lab and through touch DNA, if you

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      didn’t touch the gun, if you weren’t involved in this case, then I
      can take your DNA; your DNA is not going to be on it, and you
      will be exonerated, you will be absolved and we will finally show
      that these people are lying. And what’s his answer. . . . No.

      But it would help in the case. Can I have your DNA? No. It
      would prove that everybody’s lying in this case. Can I have your
      DNA? No. . . . And he knew the DNA, at least in his mind, was
      going to tell the truth.

                                       ***

      All of the witnesses that took the stand have something in
      common. And I’m not sure what the defense theory is, but it’s
      got to be that all of the defense witnesses are lying, and I guess
      they would have to be lying for a reason, but what’s the motive?
      What hasn’t really been shown aside from, well, they were all
      connected to the guy who was arrested first and they were
      friends with him, but I submit that it shows that that proves
      their credibility because here’s their friend who is wrongly
      arrested and everybody sort of goes, (whistles), like, hides their
      eyes, goes back into the shadows and says, I don’t want to get
      involved. And people don’t want to get involved in this type of
      case because it’s messy.

      ...

      None of these folks involved had a reason to be making up their
      stories, to come in and purger themselves, be – put themselves
      at a risk of being charged criminally themselves. And I submit
      to you that none of the witnesses of the civilians were that
      smart. They weren’t sophisticated. They just came in and
      answered the questions and told you what happened.

Appellant’s Brief at 23-26, citing N.T. (Jury Charge), 6/16/14, at 19-26.

      In responding to Appellant’s claim, the trial court explained:

      Here, Defense Counsel highlighted the inconsistencies in the
      testimony of the Commonwealth’s witnesses. She asked the
      jury, “Who do you believe? What do you believe?” N.T.,
      6/16/14, at 12 (Closing Arguments).        The prosecutor’s
      comments on the credibility of the Commonwealth’s witnesses
      were responses to Defense Counsel’s arguments. The “telling



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      the truth” comments are oratorical flair, and they do not exceed
      the bounds of a logically forceful and vigorous response.

Trial Court Opinion, 12/19/14, at 11.

      Our Supreme Court has summarized:

      It is, of course, well-settled that the prosecutor may fairly
      respond to points made in the defense closing. See
      Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243, 249
      (2000) (plurality opinion) (“A remark by a prosecutor, otherwise
      improper, may be appropriate if it is in fair response to the
      argument and comment of defense counsel”) (citing United
      States v. Robinson, 485 U.S. 25, 31, 108 S.Ct. 864, 99 L.Ed.2d
      23 (1988)); Commonwealth v. Marrero, 546 Pa. 596, 687 A.2d
      1102, 1109 (1996). Moreover, . . . “prosecutorial misconduct
      will not be found where comments were based on the evidence
      or proper inferences therefrom or were only oratorical flair.”
      Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491, 514
      (1995). We also noted that it is settled that the prosecutor may
      comment on credibility, as long as the comment does not involve
      an assertion of personal opinion. Id. at 515. Finally, we noted
      that, in this case, “the trial court instructed the jury in its
      opening and closing instructions that counsel's statements were
      not evidence” and, of course, “the jury is presumed to follow
      instructions.” Id. at 515 n. 27.

Commonwealth v. Jones, 811 A.2d 994, 1006 (Pa. 2002).

      Here, at the commencement of trial, the trial court advised the jury,

“keep in mind when the attorneys speak in court … they’re not presenting

evidence, they’re not proving anything. It’s through witnesses, testimony,

demonstrative evidence such as photographs, videos, that’s the evidence.

You are the finders of fact.”    N.T. (Jury Trial), 6/16/14, at 5.     At the

conclusion of testimony, in charging the jury, the trial court again advised

the jury, at length, that they were “the sole judges of the credibility of the



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J-S41008-15



witnesses and their testimony.” N.T. (Jury Charge), 6/16/14, at 14-15. The

trial court stated:

      Now, as I indicated to you, the speeches of counsel are not part
      of the evidence and you shouldn’t consider them as such.
      However, in deciding the case you carefully consider the
      evidence in light of the various reasons and arguments which
      each lawyer presented. It is the right and duty of each lawyer to
      discuss the evidence in a manner which is most favorable to the
      side they represent. You should be guided by each lawyer’s
      arguments to the extent that they are supported by the evidence
      and insofar as they aid you in applying your own reason and
      common sense. However, you’re not required to accept the
      arguments of either lawyer. It’s for you, and you alone, to
      decide the case based on the evidence presented from the
      witness stand and in accordance with the instructions that I’m
      now giving to you.

Id. at 18-19.

      Given the foregoing, we reject Appellant’s assertion that he was

deprived of a fair trial due to prosecutorial misconduct.

      In his next issue, Appellant asserts that the evidence was insufficient

to support his convictions “where there was no competent evidence to

establish [Appellant] as the individual who committed the robbery.”

Appellant’s Brief at 27. Appellant does not reference the statutory elements

of robbery or the other offenses of which he was convicted; rather, he claims

that the    evidence   was insufficient   because   of “multiple   inconsistent

statements” between Ms. Wykoff, Mr. Markham, Ms. Baney, Mr. Starr,

Trooper Havens and Trooper Davis.         Id. at 27-31.     Upon review, we

conclude that Appellant’s singular focus on the credibility of witness

testimony constitutes a challenge to the weight of the evidence, not its

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sufficiency.   Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.

Super. 2003) (“A sufficiency of the evidence review . . . does not include an

assessment of the credibility of the testimony offered by the Commonwealth.

Such a claim is more properly characterized as a weight of the evidence of

the challenge.”).     Accordingly, we proceed to Appellant’s third issue

challenging the weight of the evidence.

      In his weight claim, Appellant continues to assail his convictions

because “the verdict was so contrary to the evidence to shock one’s sense of

conscience when there was absolutely no physical evidence tying him to the

robbery. What is more shocking even is that all of the non-law enforcement

witnesses’ accounts of the events were inconsistent…”       Appellant’s Brief at

33.

      We review a weight of the evidence claim according to the following

standard:


      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the [jury] is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the [jury's] verdict is so contrary to the evidence that it shocks
      one's sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge's
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.



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Commonwealth v. Tejada, 103 A.3d 788, 795-796 (Pa. Super. 2015)

(citations omitted).

      With regard to the role of the jury vis-à-vis inconsistent statements of

witnesses:

      It [is] the role of the jury to determine [witness] credibility with
      respect to … identification. The jury's decision to credit [a
      witness’] testimony does not render the verdict contrary to the
      evidence presented. See Commonwealth v. Sanchez, 614 Pa. 1,
      36 A.3d 24, 39 (2011) (“Issues of witness credibility include
      questions of[, inter alia,] inconsistent testimony[.]”).

Tejada, 103 A.3d at 796.

      Given our review of the record and applicable legal authority, we find

no abuse of discretion by the trial court in concluding that “the verdict does

not shock this Court’s sense of justice.” Trial Court Opinion, 12/19/14, at

14. We therefore find Appellant’s weight claim to be without merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




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