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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                    v.

IMERE STINSON

                         Appellant                No. 3273 EDA 2015


           Appeal from the Judgment of Sentence May 15, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004941-2014


BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                       FILED JANUARY 09, 2017

     Imere Stinson appeals from the judgment of sentence of five to ten

years imprisonment that the court imposed after a jury convicted Appellant

of robbery, intimidation of a victim, and possession of an instrument of

crime. We affirm.

     The following facts gave rise to the convictions in question.      At

approximately 11:30 a.m. on February 20, 2014, victim Gary Johnson was in

a public housing apartment complex in Philadelphia seeking to purchase

crack cocaine.   As Mr. Johnson was riding the elevator, it stopped and

Appellant entered it. Mr. Johnson recognized Appellant as a resident of the

building. Appellant then displayed a large stick with what appeared to have
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a hook attached to it. Appellant showed the weapon to the victim and told

him, "You know what it is.” N.T. Trial, 3/31/15 at 55 -56.

      Fearful of being struck with the stick, Mr. Johnson stood still as

Appellant rummaged through his pockets and stole fifteen dollars and a cell

phone. Appellant exited the elevator and went to his apartment while Mr.

Johnson immediately reported the incident to Philadelphia Housing Authority

Police Sergeant Carlo McKinnie, who was on duty in the apartment complex.

Police were summoned, and they went to Appellant’s apartment. After the

door was opened by a woman, Mr. Johnson became frightened and said

Appellant had not committed the robbery.

      Mr. Johnson, the police, and Appellant took an elevator to the ground

floor, where police were interviewing people about the incident. The victim,

outside of police hearing, asked Appellant to return his phone and money

and, in exchange, the victim promised that he would not press charges.

Appellant replied, "You ain't getting sh   because you brought the cops to my

house." N.T. Trial, 3/31/15, at 58.        Appellant was approached by two

friends, and he told them, “If I get locked up, drop him,” referring to Mr.

Johnson.    Id.   When Mr. Johnson asked if he was being threatened,

Appellant replied, “Yeah.” Id. Mr. Johnson understood “drop him” meant to

shoot him or kill him.   Id. at 59.    The victim asked the police for a ride

home, and, in the patrol car, identified Appellant as his assailant.   Police




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detained Appellant inside the apartment complex, Mr. Johnson returned, and

he positively identified Appellant as the perpetrator of the robbery.

      Appellant was arrested and incarcerated. During a recorded telephone

call with his fiancé, Appellant made the following incriminating remarks,

“[Y]ou told me Imere don't go out there, don't go do that, no stay in the

house. But nah, I was you know what I mean. You know. [A] dumbass.

Babe I know you don't want to hear this at the end of the day but you just

got to accept this for what it is, I messed up, everybody makes mistakes."

Commonwealth Exhibits C-12, C -13.       The Commonwealth also introduced

evidence that Appellant’s brother warned Mr. Johnson not to testify against

Appellant.

      Based upon this evidence, Appellant was convicted of the enumerated

crimes.      This appeal followed imposition of the judgment of sentence.

Appellant raises these issues for our review:

      A. Were intimidating statements allegedly made to the
      complainant by the Appellant's brother improperly admitted into
      evidence?

      B. Did the prosecutor's remarks during his closing statement
      constitute prosecutorial misconduct where the remarks were
      inflammatory, improperly bolstered the complainant’s testimony,
      shifted the burden of proof, and commented on facts not in
      evidence?

Appellant’s brief at 2.




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      Appellant’s first complaint is that the trial court incorrectly allowed into

evidence statements that Appellant’s brother made to Mr. Johnson warning

Mr. Johnson not to come to the courthouse to testify.

      It is well-established that the admissibility of evidence is within
      the discretion of the trial court, and such rulings will not form
      the basis for appellate relief absent an abuse of discretion.
      Thus, the Superior Court may reverse an evidentiary ruling only
      upon a showing that the trial court abused that discretion. A
      determination that a trial court abused its discretion in making
      an evidentiary ruling may not be made merely because an
      appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous. Further, discretion is abused when the law is
      either overridden or misapplied.

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (citations and

quotation marks omitted).

      Our Supreme Court has noted that, “Threats by third persons against

public officers or witnesses are not relevant unless it is shown that the

defendant   is   linked   in   some   way   to   the   making   of   the   threats.”

Commonwealth v. Ragan, 645 A.2d 811, 824 (Pa. 1994). In the present

case, the trial court outlined that it admitted the evidence since

      there was a compelling circumstantial link between defendant
      and his brother's threats. On the day of the robbery, defendant
      personally threatened Johnson by stating to defendant's friends,
      in the presence of Johnson, "If I get locked up, drop him."
      Nevertheless, Johnson identified defendant as the robber and
      defendant was "locked up."       When defendant's brother, a
      member of defendant's immediate family, subsequently warned
      Johnson not to come to court, one could certainly infer that the
      message was a follow-up to defendant's original threat, and was
      done at least with the acquiescence of defendant.

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Trial Court Opinion, 12/22/15, at 13.

      As evidenced by its correct articulation of the law and application of

the pertinent facts to that precedent, the trial court did not abuse its

discretion in permitting introduction of the warning made to Mr. Johnson not

to prosecute the matter by appearing to testify against Appellant.

      Appellant’s second position is that the prosecutor impermissibly

bolstered Mr. Johnson’s testimony when he indicated that he was placing his

life at risk by testifying against Appellant at trial. Our standard of review in

this context follows:

      [A]ny challenged prosecutorial comment must not be viewed in
      isolation, but rather must be considered in the context in which
      it was offered. . . . [I]t is well settled that statements made by
      the prosecutor to the jury during closing argument will not form
      the basis for granting a new trial “unless the unavoidable effect
      of such comments would be to prejudice the jury, forming in
      their minds fixed bias and hostility toward the defendant so they
      could not weigh the evidence objectively and render a true
      verdict.” Commonwealth v. Fletcher, 580 Pa. 403, 434–35,
      861 A.2d 898, 916 (2004) (quotation and quotation marks
      omitted). . . . Additionally, like the defense, the prosecution is
      accorded reasonable latitude, may employ oratorical flair in
      arguing its version of the case to the jury, and may advance
      arguments supported by the evidence or use inferences that can
      reasonably be derived therefrom. Commonwealth v. Carson,
      590 Pa. 501, 913 A.2d 220 (2006); Commonwealth v. Holley,
      945 A.2d 241 (Pa.Super. 2008). Moreover, the prosecutor is
      permitted to fairly respond to points made in the defense's
      closing, and therefore, a proper examination of a prosecutor's
      comments in closing requires review of the arguments advanced
      by the defense in summation. Commonwealth v. Chmiel, 585
      Pa. 547, 889 A.2d 501 (2005).

Commonwealth v. Scott, 146 A.3d 775, 778–79 (Pa.Super. 2016),

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       The relevant facts are as follows.     During closing remarks, Appellant

maintained that Mr. Johnson's testimony was incredible since Mr. Johnson

conceded that his story was such that his own sister would not have believed

him.    N.T. Trial, 3/31/15, at 128-29. The assistant district attorney

responded

              [Assistant District Attorney]: [Defense counsel] has
       brought up, and as he should, [Mr. Johnson] testified, well, his
       own sister wouldn't believe him. Let me explain something. I've
       got a brother who is kind of a dope and if he came to me and
       was like, oh, this happened, an unbelievable story, or I got
       robbed of the cell phone that you lent me, I would go, you know
       what, he's probably not telling me the truth. But when he put
       his life on the line, when he suffered through people telling him
       I'm going to kill you -

             [Defense Counsel]: Objection.

             The Court: What's the objection?

              [Defense Counsel]: Put his life on the line by coming into
       this courtroom, which is sheriffs and police officers.

             The Court: All right.

             [Assistant District Attorney] I can rephrase.

            The Court: It's a little bit of hyperbole. Why don't you
       rephrase your example a little bit.

             [Assistant District Attorney]: When he subjected himself to
       further threats on his life, when he took on that risk again and
       again and again, it dramatically changes the equation.

Id. at 160-61.

       Thus, in this portion of its closing remarks, the Commonwealth was

countering    Appellant’s   position   that    Mr.   Johnson   was   incredible.

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Additionally, the assistant district attorney’s comments were supported by

the evidence that Appellant told his friends to kill Mr. Johnson if he

prosecuted the robbery and that Mr. Johnson was warned against testifying

by Appellant’s brother. As the remarks were fair response and supported

by the evidence, no relief is due.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




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