J. A33004/15 & J. A33005/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
SIKWA STEEL,                           :         No. 3273 EDA 2014
                                       :
                       Appellant       :


           Appeal from the Judgment Entered October 17, 2014,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0012442-2012



COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
MICHAEL RUDD,                          :         No. 1812 EDA 2014
                                       :
                       Appellant       :


          Appeal from the Judgment of Sentence, March 27, 2014,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0012443-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED FEBRUARY 23, 2016

     Michael Rudd and Sikwa Steel appeal from the March 27, 2014

judgments of sentence following their convictions of third-degree murder,




* Retired Senior Judge assigned to the Superior Court.
J. A33004/15 & J. A33005/15


conspiracy to commit third-degree murder, various violations of the Uniform

Firearms Act, and possession of an instrument of crime.1 We affirm.2

      The trial court provided the following facts:

                   In the early morning hours of July 22, 2007,
            Charles Tunstall (hereafter referred to as the
            “decedent”), suffered a fatal gunshot wound to the
            head on 54th and Arlington Street in Philadelphia.
            Upon investigation of the crime scene, five fired
            cartridge cases from a caliber .380 semi-automatic
            pistol were recovered.

                   Dr. Marlon Osbourne, assistant medical
            examiner, testified that the decedent suffered a
            gunshot wound to the top of his forehead that was
            two inches below the top of his head, in the center of
            his forehead. He also stated that there was no
            evidence of close-range firing on the skin around the
            entrance wound.        Dr. Osbourne testified that a
            deformed bullet was recovered from inside the brain
            itself and sent to ballistics.

                   Officer Ian Nance testified that he received a
            radio call of a person screaming on July 22, 2007.
            The officer arrived at 54th and Arlington Street and
            found the decedent suffering from a gunshot wound
            to the forehead. The officer also stated that, after
            arriving on the scene, he came into contact with
            someone claiming to be the decedent’s brother who
            told him that someone started shooting at the


1
  18 Pa.C.S.A. §§ 2502(c), 903(a)(1), 6106(a)(1), 6108, and 907(a),
respectively.
2
  Appellants were tried in a joint trial before the Philadelphia County Court of
Common Pleas. The first five issues raised by both appellants are identical,
while Steel raises an independent sentencing issue; and we address both
appellants’ issues in this memorandum.            Steel’s brief incorporates by
reference the argument section of Rudd’s brief. We call counsel’s attention
to Pa.R.A.P. 2137, and note that such practice is discouraged without
previously notifying this court.


                                     -2-
J. A33004/15 & J. A33005/15


          decedent and the decedent tried to pull out his
          weapon.

                 The decedent’s mother, Karen Tunstall,
          testified she knew Michael Burton and that he
          grabbed her to prevent her from seeing the
          decedent’s dead body out on Arlington Street right
          after the murder.

                 Michael   Burton    was    called   by     the
          Commonwealth as an eyewitness at trial. Prior to
          trial, Mr. Burton gave a statement to homicide
          detectives that he was present when the decedent
          was shot and killed. He stated to detectives in
          summary that he saw “Seek” and “Mu”, identified as
          nicknames for the defendants Sikwa Steel (Seek)
          and Michael Rudd (Mu), shoot at the decedent and
          flee the scene. He stated to detectives that he “saw
          Seek raise a gun and shoot [the decedent] one time
          in the head.” He then stated that he “saw [the
          decedent] drop to the ground . . . and saw Mu point
          a gun in [the decedent’s] direction and Mu fired his
          gun four or five times. After Mu fired his gun, both
          [Mu] and Seek ran toward the alley in the back of
          the Chinese store.” Mr. Burton also identified both
          defendants as the shooters from a photo array. In
          his statement, he also told the detectives that he
          grabbed the decedent’s mother to keep her from
          seeing the decedent’s body on the street.

                At trial, Mr. Burton stated that he was coerced
          into giving the answers in his statement.          On
          cross-examination, he stated that he gave the
          statement to homicide detectives after being
          arrested for possessing drugs and a firearm.
          Mr. Burton stated that the homicide detectives
          coerced him by threatening to charge his mother
          with conspiracy on his drug charge and then he
          proceeded to make up the answers in his statement.
          He further stated that the homicide detectives are
          the ones who gave him the names of Sikwa Steel
          and Michael Rudd.




                                  -3-
J. A33004/15 & J. A33005/15


                 Detective John Cahill testified that he was the
          detective that interviewed Michael Burton and took
          his statement back in 2007. The detective further
          testified that Mr. Burton reviewed and signed the
          statement while also signing the identifications he
          made of the defendants on the photo arrays.
          Detective Cahill stated that he was not aware of any
          of the details surrounding Mr. Burton’s arrest on a
          separate narcotics case.

          ....

                Officer Kevin Palmer testified to coming into
          contact with a person named Jimmy Montalmont on
          December 19, 2007. The officer stated that he
          placed Mr. Montalmont into police custody for
          possession of marijuana and submitted the
          marijuana for investigation rather than arresting him
          because Mr. Montalmont had indicated he had
          information. Officer Palmer testified that he took
          Mr. Montalmont to homicide and Mr. Montalmont
          volunteered information about the murder of the
          decedent in this case. Officer Palmer had no prior
          knowledge of this incident.

                 Jimmy Montalmont was called by the
          Commonwealth as an eyewitness at trial. Prior to
          trial, Mr. Montalmont gave two statements to
          homicide detectives indicating that he was present
          when the decedent was shot and killed. In 2007, he
          stated to detectives, “When I got to 54th and
          Arlington, I seen a boy named Seek (Sikwa Steel)
          come out of the Chinese store and fire two shots at
          [the decedent], then I seen a boy named Mu
          (Michael Rudd) come out of the pizza shop in the
          middle of the block and he shot at [the decedent]
          one time and [the decedent] went down.        [The
          decedent] went down on the sidewalk across from
          the Chinese store.” Mr. Montalmont also identified
          both defendants as the shooters from a photo array.
          He also stated to detectives that he saw Mu
          (Michael Rudd)     fire   a   revolver  and   Seek
          (Sikwa Steel) fire a semi-automatic.



                                  -4-
J. A33004/15 & J. A33005/15


                In 2012, Mr. Montalmont stated to detectives
          that Seek (Sikwa Steel) was the person who shot the
          decedent. He stated to detectives that Seek fired his
          gun once at the decedent up close and four times
          total. He further stated that Mu (Michael Rudd) was
          shooting at the decedent also but he did not know
          whether or not he actually hit the decedent because
          Mu (Michael Rudd) was not as close as Seek
          (Sikwa Steel) when he was firing.

                At trial, Mr. Montalmont denied giving the
          answers in either of the statements and stated that
          he never spoke to homicide detectives about this
          case. In order to show Mr. Montalmont’s state of
          mind during the time of the statement and why he
          denied making the contents of the statement at trial,
          the    Commonwealth        offered    into    evidence
          Mr. Montalmont’s comment at the time the
          statement was given that “these guys will have me
          killed and I will be labeled a snitch.”            On
          cross-examination,      the     defense    questioned
          Mr. Montalmont about him already being in custody
          on an open case at the time he gave the statement
          in 2007 and whether police told him he would
          receive a lesser sentence on a parole violation if he
          gave the statement in 2012. Mr. Montalmont denied
          talking to police and giving either of the statements
          but stated it was true that he was offered lesser of a
          sentence on the parole violation if he gave a
          statement in 2012.

                 Detective John Verrecchio testified that he was
          the assigned detective in this case. He stated that
          he had applied for an arrest warrant for the
          defendants in 2007 which was denied. He then
          indicated that he applied for an arrest warrant for
          the defendants after receiving the second interview
          of Jimmy Montalmont in 2012 and it was approved.
          The detective reviewed the affidavit of probable
          cause which stated Sikwa Steel shot at the decedent
          using a revolver and Michael Rudd shot at the
          decedent using an automatic. Detective Verrecchio
          testified that he may have mistakenly reversed the
          type of weapon fired by each defendant.


                                  -5-
J. A33004/15 & J. A33005/15



                   Sergeant Daniel Ayres testified that he
            responded to the crime scene on July 22, 2007 and
            searched the area for any weapons. Sergeant Ayres
            stated that he came into contact with the decedent’s
            brother, Brian Tunstall, who said he watched the
            decedent get shot and that the decedent had a gun
            in his possession at the time. Detective Frank Mullen
            testified that he visited the hospital when the
            decedent was in critical condition. He stated that the
            decedent’s brother denied any conversation with
            Sergeant Ayres about the shooting.

                  Kenneth Lay testified as an expert in firearms
            and ballistic evidence. Mr. Lay indicated he was
            given five fired cartridge cases and one bullet
            specimen. He stated that the five fired cartridge
            cases were caliber .380 automatic and the bullet
            specimen taken from the medical examiner’s office
            was a caliber .38/9 millimeter. He testified that the
            bullet specimen recovered from the body of the
            decedent was most likely a .380 caliber automatic
            even though he could not prove that scientifically.

                 Special Agent Patrick Mangold testified that he
            conducted an interview with Jimmy Montalmont on
            December 18, 2007 in the homicide unit. Special
            Agent Mangold testified that he did not make any
            promises to Mr. Montalmont nor did he threaten him.

                  Detective Thomas Gaul was re-called to testify.
            He stated that he interviewed Jimmy Montalmont in
            2012 and did not make any promises to him.
            Detective Gaul testified that he did not threaten
            Mr. Montalmont and that Mr. Montalmont was very
            forthcoming with the information he gave in the
            statement in 2012.

Trial court opinion, 11/13/14 at 2-6 (citations to record omitted).

      Appellants   were   convicted   of    the   aforementioned   charges   on

January 21, 2014. On March 27, 2014, Rudd was sentenced to an aggregate



                                      -6-
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of 10-20 years’ imprisonment, to be followed by 5 years’ probation. Rudd

filed a post-sentence motion on March 28, 2014.        The trial court denied

Rudd’s post-sentence motion on June 18, 2014.        On June 19, 2014, Rudd

filed notice of appeal.   The trial court ordered Rudd to produce a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)

on September 10, 2014. Rudd complied with the trial court’s order, and the

trial court has filed an opinion pursuant to Pa.R.A.P. 1925(a).

      On October 17, 2014, the trial court sentenced Steel to an aggregate

15-30 years’ imprisonment.       Steel filed a timely notice of appeal on

November 14, 2014. On December 15, 2014, the trial court ordered Steel to

produce a concise statement of matters complained of on appeal pursuant to

Rule 1925(b). Steel complied with the trial court’s order, and the trial court

issued an opinion pursuant to Rule 1925(a).

      Appellants raise the following issues for our review:

            I.    Did the trial court err when it denied
                  [Appellants’] motion for a judgment of
                  acquittal, where [Appellants’] conviction was
                  supported     solely   by    the    out-of-court
                  statements of witnesses who recanted their
                  accusations at trial, in violation of the due
                  process guarantees provided by the Fourteenth
                  Amendment to the United States Constitution
                  and by Article I, Section 1 of the Pennsylvania
                  Constitution?

            II.   Did the trial court err when it failed to
                  supplement the standard jury instructions with
                  the special instructions proposed by the
                  defense, in a case where the only evidence
                  against [Appellants] consisted of the out-of-


                                     -7-
J. A33004/15 & J. A33005/15


                     court statements of alleged eyewitnesses who
                     recanted their prior accusations under oath at
                     trial?

              III.   Did the trial court err when it denied
                     [Appellants’] request to redact that portion of a
                     Commonwealth           witness’       out-of-court
                     statement, wherein the witness stated that, “if
                     this [the witness cooperation] gets out, I will
                     be killed,” where no evidence suggested that
                     anyone had ever attempted to intimidate the
                     witness and where the admission of this
                     portion of his statement unfairly suggested to
                     the jury that the witness had recanted his
                     accusation, at trial, due to intimidation?

              IV.    Did the trial court err when it overruled
                     [Appellants’] objection to the Commonwealth’s
                     summation, where the prosecutor told the jury
                     that a Commonwealth witness changed his
                     story because he was afraid that it would “get
                     out in state prison that he was a witness,”
                     where no evidence indicated that the witness
                     harbored    such     fears   and  where    the
                     prosecutor’s argument was not a fair response
                     to anything argued by the defense?

              V.     Did the trial court err when it overruled
                     [Appellants’] objection to the Commonwealth’s
                     improper vouching, when the prosecutor
                     repeatedly told the jury that “the statements
                     that they [the alleged eyewitnesses] gave to
                     the homicide detectives are the truth”?

              VI.    Did [the] trial court abuse its discretion when it
                     gave a appellate [sic] a much harsher sentence
                     than his co-defendant without consistent and
                     conclusive evidence as to who fired the shot
                     that caused the death of the victim?[3]

Rudd’s brief at 5-6; Steel’s brief at 7 (Issue VI).


3
    Issue VI is exclusive to appellant Steel.


                                        -8-
J. A33004/15 & J. A33005/15


                                        I.

      In the first issue raised for our review, appellants call into question our

supreme court’s decision in Commonwealth v. Brown, 52 A.3d 1139 (Pa.

2012).4 Appellants aver that Brown was wrongly decided “as a matter of

federal constitutional law.”      (Appellants’ brief at 17.)5        Under the

Pennsylvania constitution, the Brown decision, like any decision from the

Pennsylvania Supreme Court, is binding on this court. Commonwealth v.

Prout, 814 A.2d 693, 695 n.2 (Pa.Super. 2002), citing Pa. Const. Art. V,

§ 1; Commonwealth v. Chimenti, 507 A.2d 79 (Pa. 1986).                Appellants

concede that their argument is contrary to the Brown court’s holding;

however, we note that, pursuant to Pa.R.A.P. 302(a), appellants have

adequately preserved the issue for potential reconsideration by our supreme

court or federal review. (See appellants’ brief at 17-18.)

                                        II.

      In their second issue, appellants aver that the trial court erred when it

refused to provide the jury with special instructions provided by the defense

relating to out-of-court statements of witnesses, which were recanted during

trial. (See appellants’ brief at 27.)


4
  In Brown, our supreme court held that a defendant’s due process rights
are not violated if out-of-court statements, which are later recanted at trial
by the declarant, furnish legally sufficient evidence to sustain the
defendant’s conviction. Id. at 1171.
5
 For the purposes of this memorandum, “appellants’ brief” shall refer to
Rudd’s brief.


                                        -9-
J. A33004/15 & J. A33005/15


                   Our standard of review in assessing a trial
             court’s jury instructions is as follows:

                  [W]hen evaluating the propriety of jury
                  instructions, this Court will look to the
                  instructions as a whole, and not simply
                  isolated portions, to determine if the
                  instructions were improper. We further
                  note that, it is an unquestionable maxim
                  of law in this Commonwealth that a trial
                  court has broad discretion in phrasing its
                  instructions, and may choose its own
                  wording so long as the law is clearly,
                  adequately, and accurately presented to
                  the jury for its consideration.      Only
                  where there is an abuse of discretion or
                  an inaccurate statement of the law is
                  there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014), quoting Commonwealth v.

Trippett, 932 A.2d 188, 200 (Pa.Super. 2007) (citation omitted). Abuse of

discretion is defined as “not merely an error of judgment; rather discretion is

abused when the law is overridden or misapplied, or the judgment exercised

is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill

will, as shown by the evidence or the record[.]” Antidormi, 84 A.3d at 745,

citing Commonwealth v. Boxley, 948 A.2d 742, 746 (Pa. 2008),

cert. denied, 555 U.S. 1003 (2008) (citation omitted).

      We have typically “granted trial courts broad discretion in phrasing a

jury charge. Our main concern is that the charge clearly, adequately, and

accurately   presents   the   law   to   the   jury   for   its   consideration.”




                                     - 10 -
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Commonwealth v. Collins, 810 A.2d 698, 701 (Pa.Super. 2002) (citation

omitted).

            The trial court is not required to accept the language
            of the point submitted by counsel but rather is free
            to select its own form of expression. The only issue
            is whether the area [covered by the point for charge]
            is adequately, accurately and clearly presented to
            the jury for consideration.

Commonwealth v. Bryant, 462 A.2d 785, 789 n.2 (Pa.Super. 1983),

quoting Commonwealth v. Boone, 429 A.2d 689, 694 (Pa.Super. 1981)

(citation omitted).

      The trial court stated that it was “not required to supplement the

standard jury instructions with the special instructions proposed by

[appellants.] There is no requirement for a special supplemental instruction

that the only evidence consisted of the out-of-court statements of

eyewitnesses who recanted their prior statements at trial.”           (Trial court

opinion, 11/13/14 at 7.)        After a careful review of the trial court’s

instructions to the jury in their entirety, we find that the point of charge

relating to determining credibility was covered adequately and accurately

and was clearly presented to the jury pursuant to Bryant.

      The trial court’s jury instructions relating to credibility were as follows:

                   You     have     heard      evidence     that
            Jimmy Montalmont and Michael Burton made
            statements to homicide detectives on an earlier
            occasion that were inconsistent with their present
            testimony in this courtroom. You may, under the
            law, if you choose, regard this evidence as proof of



                                      - 11 -
J. A33004/15 & J. A33005/15


           the truth of anything that the witness said in the
           earlier statement.

                   The way that I say it to bring it down to
           everyday terms is they gave a statement that is
           outside the courtroom that the detectives testified to
           and the witnesses were cross-examined about. You
           could take that statement as substantive evidence,
           as if it were said in the courtroom just like what they
           said in the courtroom. So you have what they said
           on the stand and the statement and you have to
           decide but that is just as powerful evidence, the
           statement, as the testimony in the courtroom. You
           may also consider this evidence to help you judge
           the credibility and weight of the testimony given by
           the witness at this trial.       When you judge the
           credibility and weight of testimony, you are deciding
           whether you believe the testimony and how
           important you think the testimony is.

                 You should examine closely and carefully and
           receive    with    caution    the    statement     of
           Jimmy Montalmont that he gave to homicide
           detectives if you find that he believed he would
           receive a benefit on his open case or on his parole
           because he gave two statements. At one point he
           had an open case. At a second point, he was in
           state custody and he had a minimum and maximum
           sentence -- in exchange, if he believed, in his mind,
           that he would receive a benefit in exchange for his
           statement.

                 You should examine closely and carefully and
           receive with caution the statement of Michael Burton
           to homicide detectives if you find that he believed he
           would receive a benefit on his open cases in
           exchange for his statement.

Notes of testimony, 1/17/14 at 42-44.

     Appellants have failed to establish an abuse of discretion in the trial

court’s refusal to provide a supplemental instruction relating to the



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eyewitnesses’ testimony. As the trial court noted, “it was up to the jury as

fact-finder to weigh the credibility of the witness’ statements and their

testimony at trial. Therefore, it was not error for the trial court to refuse to

give the proposed supplemental instruction to the jury.” (Trial court opinion,

11/13/14 at 8.)

                                     III.

      In appellants’ third issue on appeal, they aver that the trial court erred

when it denied appellants’ request to redact a portion of Montalmont’s

statement that was read in court, in which Montalmont stated that “if his

cooperation ‘gets out, [he] will be killed.’”   (Appellants’ brief at 37.)   The

trial court cited our supreme court’s decision in Commonwealth v. Ragan,

645 A.2d 811, 818 (Pa. 1994), which stated that a witness’ state of mind

when making a statement that is later recanted to the police is relevant. We

agree with the trial court’s analysis that the instant appeal is similar to

Ragan, and we accordingly affirm based on the trial court’s opinion for this

issue. (See trial court opinion, 11/13/14 at 9.)

                                      IV.

      In the fourth issue for our review, appellants aver that the trial court

erred when it overruled appellants’ objection to the Commonwealth’s

repeating to the jury that Montalmont was “afraid that it would ‘get out in

state prison that he was a witness.’” (Appellants’ brief at 39, citing notes of




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testimony 1/16/14 at 201-202.) When reviewing a claim for prosecutorial

misconduct, we use the following standard of review:

            Our standard of review for a claim of prosecutorial
            misconduct is limited to whether the trial court
            abused its discretion. In considering this claim, our
            attention is focused on whether the defendant was
            deprived of a fair trial, not a perfect one. Not every
            inappropriate remark by a prosecutor constitutes
            reversible error. A prosecutor’s statements to a jury
            do not occur in a vacuum, and we must view them in
            context. Even if the prosecutor’s arguments are
            improper, they generally will not form the basis for a
            new trial unless the comments unavoidably
            prejudiced the jury and prevented a true verdict.

Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012)

(en banc); appeal denied, 57 A.3d 65 (Pa. 2012) (citations omitted). See

also Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005)

(prosecutorial misconduct does not occur unless the jurors form a fixed bias

and hostility toward the defendant based on the prosecutor’s comments).

When specifically considering a prosecutor’s comments to a jury during

closing arguments, this court has stated, “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.”     Commonwealth v. Caldwell,

117 A.3d 763, 774 (Pa.Super. 2015) (en banc) (citations omitted).

      Appellants objected to the following from the Commonwealth’s

summation:




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            [Mr. Montalmont] wanted nothing to do with this.
            He denied everything. He denied being arrested for
            marijuana.     Everything about him was a denial.
            Everything about him was to distance himself from
            the identifications that he made of these two people.
            Why? Because he has to go back to state prison for
            a long time and if it gets out in state prison that he
            was a witness--

            ....

            He has to worry about his own life for the next 6 to
            16 years. He has to worry about his own protection
            and if it gets out in state prison that he was a
            witness in a homicide, that he was a Commonwealth
            witness in a homicide, that he identified two people
            and said I saw them commit a homicide, he is going
            to have a lot of problems in his life.

Notes of testimony, 1/16/14 at 201-202.      We agree with the trial court’s

analysis both during trial and in its opinion that the assistant district

attorney’s comment was “in response to some things that were said by the

defense.” Specifically, Rudd’s counsel indicated during his closing argument

that Montalmont’s own criminal issues might have motivated Montalmont’s

statement to the police. (See notes of testimony, 1/16/14 at 150-154.)

      Moreover, as the Commonwealth noted, Montalmont voiced his

concerns to the police about the safety and well-being of both himself and

his family in light of his providing information to the police. Montalmont was

concerned that if knowledge of his providing information to the police got

out, he would be killed. (Notes of testimony, 1/15/14 at 168.) Montalmont

also requested that he and his family be moved because Montalmont was

afraid of being labeled as a “snitch” and killed. (Id. at 169.) Based on this


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testimony, which was admitted by the trial court, the assistant district

attorney’s comments regarding Montalmont’s fear for his and his family’s

safety were supported by the evidence. (See id. at 139.) Therefore, the

prosecutor’s comments during the Commonwealth’s summation were not

improper, and this issue has no merit.

                                      V.

      In their fifth and final shared issue on appeal, appellants aver that the

trial court erred by overruling appellants’ objection to improper vouching by

the Commonwealth during closing arguments. Specifically, appellants allege

that the Commonwealth assured the jury that statements from several of

the Commonwealth’s witnesses were truthful. (See appellants’ brief at 41.)

      It is well settled that vouching is a form of prosecutorial misconduct,

occurring when a prosecutor “places the government’s prestige behind a

witness through personal assurances as to the witness’s truthfulness, and

when it suggests that information not before the jury supports the witness’s

testimony.” Commonwealth v. Reid, 99 A.3d 427, 447 (Pa. 2014), citing

Commonwealth v. Williams, 896 A.2d 523, 541 (Pa. 2006), cert. denied,

549 U.S. 1213 (2007).

      In determining whether the Commonwealth improperly vouched for

the credibility of two of its witnesses in this case, we find Commonwealth

v. Judy, 978 A.2d 1015 (Pa.Super. 2009), to be instructive. In Judy, this

court stated that,



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                   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, 585 Pa. 547, 889 A.2d
             501, 544 (2005) (internal citations and quotations
             omitted).

             Thus, proper examination of the comments of the
             assistant district attorney in closing requires review
             of the arguments advanced by the defense in
             defense summation.

Judy, 978 A.2d at 1020.

     Here,    appellants   claim   that   the   following   statements   by   the

Commonwealth during its closing statement to the jury were improper

vouching:

                   [T]hey are going to tell the truth because
                   the last thing anyone wants to do when
                   they are already in hot water is lie to a
                   homicide detective. If you think you are
                   in trouble now, what do you think is
                   going to happen if a homicide detective
                   finds out you are lying?

             (Notes of testimony, 1/16/14 at 204.)

                   ....

                   Who signs their name in the presence of
                   the police that many times unless what


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J. A33004/15 & J. A33005/15


                     they are saying is true, unless they are
                     ready to stand by what they are saying
                     at that time?

               [(Id.)]

Appellants’ brief at 41.

         During the closing statement for the defense, counsel for both

appellants called the Commonwealth’s witnesses’ credibility into question

several times. At one point, Rudd’s counsel said, “There is one fact that is

100 percent clear in this case; the District Attorney’s supposed eyewitnesses

are liars.” (Notes of testimony, 1/16/14 at 140.) Steel’s counsel, during his

closing argument, referenced Mr. Burton’s statement:

               You know that Mr. Burton then is not reinterviewed
               at any point in time in five years. Mr. Burton comes
               into court because he is subpoenaed. He tells the
               DA out in the hallway, that statement, I lied. It is
               bogus, in his words, and he gets on the stand and he
               has never testified under oath in this case before,
               and what does he tell you? It is all a bunch of lies.

Id. at 178-179.

         These excerpts from the defense’s closing arguments clearly indicate

that the Commonwealth’s witnesses’ credibility has been called into

question. Pursuant to Judy, the Commonwealth has the ability, during its

closing statement, to make commentary regarding the credibility of its own

witnesses, without improperly vouching.           Taken within the context of his

entire closing statement, the Commonwealth’s attorney did not personally

attest    to   the   truthfulness   of   the   witnesses’   statements--but   rather



                                         - 18 -
J. A33004/15 & J. A33005/15


commented on their credibility. Therefore, appellants’ fifth issue is without

merit.

                                       VI.

        In his sixth and final issue, Steel avers that the trial court abused its

discretion by sentencing him to a longer prison term than his co-defendant,

Rudd.

              A challenge to the discretionary aspects of
              sentencing is not automatically reviewable as a
              matter of right. Commonwealth v. Hunter, 768
              A.2d 1136 (Pa.Super. 2001)[,] appeal denied, 796
              A.2d 979 (Pa. 2001).         When challenging the
              discretionary aspects of a sentence, an appellant
              must invoke the appellate court’s jurisdiction by
              including in his brief a separate concise statement
              demonstrating that there is a substantial question as
              to the appropriateness of the sentence under the
              Sentencing Code. Commonwealth v. Mouzon, 812
              A.2d    617    (Pa.   2002);    Commonwealth v.
              Tuladziecki, 522 A.2d 17 (Pa. 1987); 42 Pa.C.S.A.
              § 9781(b); Pa.R.A.P. 2119(f). “The requirement that
              an appellant separately set forth the reasons relied
              upon for allowance of appeal ‘furthers the purpose
              evident in the Sentencing Code as a whole of limiting
              any challenges to the trial court’s evaluation of the
              multitude of factors impinging on the sentencing
              decision to exceptional cases.’” Commonwealth v.
              Williams, 562 A.2d 1385, 1387 (Pa.Super. 1987)
              (en banc) (emphasis in original).

Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).

        Steel failed to include a Rule 2119(f) statement in his brief. “A failure

to include the Rule 2119(f) statement does not automatically waive an

appellant’s argument; however, we are precluded from reaching the merits

of the claim when the Commonwealth lodges an objection to the omission of


                                      - 19 -
J. A33004/15 & J. A33005/15


the statement.” Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super.

2006), appeal denied, 940 A.2d 363 (Pa. 2007), citing Commonwealth v.

Hudson, 820 A.2d 720, 727 (Pa.Super. 2003), appeal denied, 844 A.2d

551 (Pa. 2004).

     In the instant case, the Commonwealth objected to Steel’s lack of a

Rule 2119(f) statement:

           Rather, Steel was required to provide a statement
           demonstrating a substantial basis [for] appellate
           review. Pa.R.A.P. 2119(f). His failure to do so is a
           fatal defect that renders his claim non-cognizable.

Commonwealth’s      brief   at   21   (citations   omitted).   Because    the

Commonwealth has objected to Steel’s failure to include a Rule 2119(f)

statement in his brief, we cannot consider the merits of appellant’s claim, as

we are precluded from doing so.

     Judgments of sentence as to both appellants are affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2016




                                      - 20 -
l                                                                                                Circulated 01/29/2016 04:28 PM




                               JN THE COURT OF COMMON PLEAS OF PHDJAD~LPHl1\

                                                   CRIMINAL TRIAL DIVJSJON

    COMMONWEALTH.                     OF PENNSYLVANIA                           CP-51-CR-OOl   2,UJ-2012



    MICHAEL HUDl>

                                                                                                FILED
                                                               OPfNION                           NOV 1 3 2014
    Dcfino-Na~tasi.       1.                                                                Criminal Appeals Unit
                                                                                          First Judicial District of PA
                                                     PROCEDllRAL HISTORY

             On Junuary 21. 2014. Michael Rudd (hereafter referred lo as the .. Appellant").         ,, ..as found guilty

    by a jury. presided over hy the Honorable Ruse Mari? De Fino-Nastasi, of 3"1 Degree Murder. Conspiracy

    to CnmmitJ'.i Degree Murder, V10httinn of the Uniform Firearms .\d Section 611111 (\'UFA 6106),

    Violauon of the Uniform Firearms Act Section 6108 (Vt !FA 61 US J and I'osscssron of an Instrument of

    Crime (PlC)


             On March 2 ,, 20 I I Appellam was sentenced to kn ( IO) to twcnt)- ( 20) ve.irs state confinement

    for the 3111 Degree Murder conviction, ten r I 0) to twenty t20) year, state confinement, to run concurrently.

    for the Conspiracy fl, Commit 3':i Degree t-. lurder com iction, and five l5 l years reporting probation. co run

    consecutively, on the \'UFA 6 I 06 conviction.            There was no further sentence for the count of VUF A

    6108 and PIC.


             On I\ larch ~S . .:!IJ 14, Appellant tibJ post-sentence motions th.it were denied after    ·1   he,mng un

    June 18. 2014.


             Oil J1111c   It), ~1)   I-~. Appelknu Ii led the Instant Appeal.


             On September IS, ::'.014, Appellnnt tiled a 19:Sthl Sratcmeut of Muuers l"<•mplaim·d             1.1fu11

    Appeal



                                                              .41
T
                                                                f'ACTS

               In the! early rnormng hours of Julv 22, 2007, Charles Iunstall (hereafter referred to as the

     "decedent"), suffered a fatal gunshot wound to the head on 54111 and Arlington Street                 in   Philadelphia.

     (Notes of'Testirnony, Volume I, Jan. 14, 20 I 4, Page J 11 ). Upon investigation of the crime scene,                     CiH!


     fired cartridge cases from a caliber .JSO semi-automatic pistol were recovered                (N. L, Yul. J, Jun. 16.

     2014, ·P-52).


               Dr. Marlon Osbourne, assrstant medical exanuner, tesufied that the decedent suffered                    .1   gunshot

    wound to the cop of his forehead that was two inches below the lop of his head. in the center of his

    forehead. I le also staled that there was no evidence of close-range firing on the skin around the entrance

    wound. Dr. Osbourne testified that a deformed bullet was recovered from inside the brain itself and sent

    to ballistics (N.T.. Vol. I. Jan. I!, 2111.t, 92-107).


               Officer Ian Nance tesufied that he receiv ed a radio call of a person screaming on July 22, 2007.

    The officer arnved at 5-l'h and Arlmgton street and found the decedent suffering from a gunshot wound to

    the forehead. The officer also stated that, after arriving on thc scene, he came into contact with someone

    claiming to be the decedent's brother who told him that someone started shooung at the decedent and the

    dece<lenttriedlopullouthisweapon.              (N.T. Vol. !,Jan.     14,2014, 108-130).


              The decedent's mother. Karen Tunstall, testified that she knew Michael Burton and that he

    arabbed her to pre, ent her from seeing the decedent's dead body out on Arlington Street I ight after the

    murder. (N.T .. Vul. I, Jan. I 4, 20 I t, 89-91 ).


              Michael Burton    \\.ls   called hy the Cornmonwealth       JS   no eyewitness at trial. Prior to trial, Mr,

    Burton t;J\.C a statement to homicide detectives that he v.. as present when the rlccedcnt was -;h11t and

    killed.   Ile stared to detecnves    in   summary that he   sU\\   'Seek" and "Mu". idenufied as nickuurnes for the

    defendants Sikwa Stec! (Seek) and ~fkhJcl Rudd (MuJ. sh,,,11 at the decedent a11d llee the scene. I Ii:

    stated to detectives that he "saw Seek r.use a gun and shoot [the decedent] one time              in   the head." I le then
 stated that he "saw [the decedent] drop to the ground               .and saw Mu point a gun in (the decedent's!

direction and Mu tired his gun four or five times               After Mu fired his gun. both [Mu] and Seek ran toward

the alley in the back of the Chinese store."            ~Ir. Burton al st, identified   both dclendsnts as the shooters

 from a photo array.         In his statement he also told the detectives that he grabbed the decedent's mother to

kecpht.·rfrumseeingthc~kceJcnt1.-.b\.1Jyonlheslree1                    (NT., Vol.1,Jun.14,201,l,       148-l<>-I)


               At trial. Mr. Burton stated that he was coerced into giving. the answers in his statement. On cross-

examination, he stated that he gave the statement to honnctde detectives after being arrested for

posscssmg drugs and a firearm. Mr. Burton slated that the homicide detectives coerced him by

threatening to charge his mother with conspiracy on his drug charge and then he proceeded to make up

the answers in his statement. lie further staled that the homicide detectives are the ones who gave him the

names      t   I Sikwa Steel and Michael Rudd. (N.T., Vol. 2, Jan. 15, 2014, 1-18).


               Detective John Cahill testified that he was the detective that mterv iewed Michael Burton and took

his statement back in 2007. The detective further testified that Mr. Burton re-viewed and signed the

statcrnent w hrle also signing the idenrifications he made of the defendants on the photo arrays. Detccuve

Cahill slated that he was         1101   aware of any of the details surrounding Mr. Burton's arrest on a separate

narcotics case. (N.T., Vol. 2. Jan. 15. 2014. Jl-54).


               Officer Clyde Frasier testified that he arrived at the crime scene un 3·J 7 a.rn. on July '.!2, '.!007.

Officer Frasier stated that he recovered five .180 automatic caliber fire cartridge cases from the location

of the crime scene. 1N.T.. Vul. 2, Jan. 15, ~OJ.ct, 55-87),


               Officer Kc, in Palmer testified to coming into contact with a person named Jimmy Montalmoru

on December 19, 2007. 'lhe officer stated that he placed Mr. Montalmont into polrcc custody for

possession ~if murijuana und submitted the marijuana for invL·~1,ga1i1in rather than arresting him because

Mr, r-.111111.ilrn11nt   had indicated ht: had inforruatron      Officer Palmer te),lificd th,1t he took i\11 Montalinont
to homicide and Mr. Montalmont             volunteered     information about the murder of the decedent inthis case

Officer Palmer had no prior knowledge of this incident                (N     r.. Vol.:!,   Jan. 15. :2014, 88-104)


            Jimmy Montalmont was called by the Commonwealth as an eyewitness ot trial. Prior to trial. Mr.

Montahnont gave two statements to homrcide detectives indicating that he was present when the decedent

was shot anJ killed.        In 2007. he stated to detectives, "When I got to 5,ttf, and Arlington. l seen a boy

named "ied, ('>i~. wa Steel) come out of the Chinese store and fire two shots at [the decedent], then I seen a

bo) named l\lu (Michael Rudd) come out of the pizza shop in the middle of the hlock and he shot at f the

decedent] one time and lthe decedent] went dow n [The decedent] went down on the sidewalk across

from the Chinese store." Mr, Montalmont also identified both defendants as the shooters from a photo

array. I le also stated to detcctiv cs that he saw Mu (Michael Rudd) lire a revolver and Seek (Sikwa Steel J

fire a semi-automatic.        (N .T., Vol. 2, Jan. 15. 20 I 4, 120-170 ).


            In 20 I :2. vlr, t\1ontalmont stated to detectives that Seek (Sikwa Steel) was the person who shot the:

decedent. H1- stated to detectives that Seek fired his gun once al the decedent up close and four times

tornl.    I le further stated that Mu (Michael Rudd) \, J.S shooting at the decedent also hut he did not know

whether ur nut he uctually hit the decedent because Mu (Michael Rudd),\ as nor as close as Seek (Sikwa

Steen \\ hen he was firing.          (N T .• Vol 2, Jan I 5. 20 I ·l. 186-1 IJO ).


           J\l trial. l\lr. Montalmont denied giving the answers in either of the statements and stated that he

never spoke     Ill   homicide detectives about ttus case. ( N.T •• Vol. 2, Ian. I 5 ~O 1-t, 174-190)                In order to

shov, Mr. Montalmont's          state of mind durin~ the time 11fthc statement and why he denied rnaking the

contents of the statement nt trial, the Commonweahh offered i111, 1 ev idcnce Mr I\ tonralmont ' ~ comment at

the time the statement was given that "these guys will ha, c me killed and I will be labeled a snitch."

(N   r.   \\11. 2. Jan. 15. ~01,i, 120-1701.     l   in cross-examinerion,     the defense questioned Mr Montalmont

about him already being in custody on an open case :11 the time he gave the statement i11 ~007 and whether

potice tuld him he \\ ould receive a lesser erucncc un            3 parole    violation , f he gave the statement in 2tJ I~.
 Mr. Montulmont       denied talking to police and giving either of the statements but stated it was true lhat he

 was offered lesser of a sentence on the parole violation 1f he g.tvc a statement rn 2U 12. (N            r.. Vol   2. Jan.

 15,2014.     170-180}.


            Detective J1..1hn Verrecchio testified that he was the ,1s:,1gned    detective in tlus case   He stated that

 he had applied fo1 an arrest warrant for the defendants in :!ll07 which was denied. I le then indicated that

 he applied for an arrest warrant for the defendants after rccen ing the second in terv iew of J irnrny

 Montalrnont in 21)12 and it was approved, The detective reviewed the affidavit of probable cause wluch

stated Sikwa Sled shot at the decedent using a revolver and Michael Rudd shot at the decedent using an

automatic. Detective Verrecchio testified that he may have mistakenly reversed the type of weapon tired

by each defendant.        (N.T .• vot.z.Jan.      l5,201-t   194-214).


            Sergeant Daniel r\)res testified that he responded to the cnrne scene on July ~2. 2007 and

searched the area for any weapons              Sergeant Ayres stated that he came 'into contact with the decedent s

brother. Brian Tunstall. who said he watched the decedent get ~hut and that the decedent had a gun in his

possession at the time. Detcctiv e Frank Mullen testified that ht: visited the hospual when the decedent

was in critical condition. He stc.1led that the decedent's brother denied an) conversation w ith Sergeant

Ayres about the sbootiug, {N.T., Vol.:!. Jan. 15. ~014. ~l6-232).


            Kenneth La) testified as an expert in firearms and ballistic evidence         Mr L.1) indicated he was

given fi, e fired cartridge cases and one build specuncn             He stuted that the five fired cartridge cases were

caliber .381) automatic and the bullet specimen taken from the medical examiners office was a caliber

.3'6/9 millimeter. He testified that the huller specunen recov ered from the b11J} of the decedent was most

likely a . .lSO caliber automatic even though he could nor rr\1vc that scienttfically         (N.-1 , Vol J. Jan. 16,

~01·1.   JG-5~).




                                                             As
         Special Agent Patrick Mangold testified that he conducted an interview            with Jimmy Montarnont

on December    18. 2007 in the homic ide unit       Special Agent Mangold testified that he did not make an)

promises to Mr. Montalmonr nor did he threaten him.


         Detective Thomas Gaul was re-called to tcsti ()'. He stared that he interview ed Jimmy

Montalmont in '20 I 2 and did not make any promises to him. Derecnv e Gaul tesuficd that he did not

threaten I\ Ir. Montalrnont and that Mr, I\ lontalmont was , cry forthcom ing with the information he gan· in

the statement in 2012. (N .T.,   v ul. 3. fan.   16. 20 l 4. 59-111 ).


                                                      ANAL\SJS

    I.   In his first claim, Appellant argues that the trial court erred when it failed to supplement the

         standard jury instructions with the special rnstruction proposed by the defense. in a ease w here the

         onl) ev idcnce against Appellant consisted of the out-of-court statements of alleged eyewitnesses

         who 1 ecanted their prior accusations under oath at trial.


         1 he proposed jury instruction i!- attached as Court Exhibit A,


         The trial court did not err when it failed to supplement the standard jury instructions with

the special instruction proposed h) the defense because the trial judge has the discretion to

accept or reject supplemental mstrucuons proposed by counsel Where the basic charge: properly

covers the requested point, it is not error for trial judge          i,, refuse   to give additional instructions.

Pa. R. Crim. P 647. Com., .. Gardner, 371 A.2d 9S6 ( 1Y77) The trial court is not required to

accept the language uf point submitted by counsel, but rather is free lo select its own form of

expressu .rn in jury instructions. and the only issue is whether the area covered               tn   the charge is

adequately, accurately nnd dearly presented to the jur1 for considerution. P:1. R Crim. P t,..f 7.

Cnrn. v. Bryant. -462 A.2d 785 (1983)
                                            ~--------------------111111•zrsmma
T
            Witness' out-of-court statements, \.\ hich were recanted at trial. furnished legally sufficient

    evidence to sustain Appellant's convicuons for first degree murder and related charges, and thus

    the convictions did not violate due process: statements were reduced to writing, each witness

    signed every page or his statement anJ attestation statement declaring that inlormunnn in

    statement was accurate, each witness was cross examined al trial. and statements were

    fundamentally consistent with one another such that statements were nut patently unreliable.

    Com. v. Brown. 617 Pa. !07, 52 A.3d 1139 (2012.).


            Herc, the trial court was not required to supplement the standard Jury instructions with

    the special instructions proposed by the defense             There is nu requirement for a special

    supplemental instruction that the only evidence consisted ot the out-of-court statements of

    eyewitnesses who recanted their prior statements at trial. Although Mr, Montalmont's two

    statements differ regarding which defendant's bullet was the one that killed the decedent, the)

    arc fundamentally consistent with each other. and with Mr. Burton· s statement, in that they all

    include the fad that they saw both defendants shooting at the decedent and that Sikwa Sled was

    closest to the decedent, standing approxirnately w here the .380 caliber fired cartridge casings

    were located. Thus. the statements are not patently unreliable and the defense had the

    opportunity    10    fully cross-examine the witnesses al trial.


            Ihe credibility and weight of the evidence is for the jury to determine as the Iacr-findcr

    JnJ the jury was charged on that issue. The trial court gave the standard jury instruction on prior

    inconsistent statements and the jury was told the) could consider the statements as substantive

    evidence,     r he   uial court also gave an instruction to the jury that they should cxamme closely

    and carefully and receive with caution the statement            11f Jimmy Montulrnont if they found that he

    believed he would recei vc a benefit on his      ,1p1!11   1..a-.e in exchange for hrs statement   Also, the

                                                       A1
1
    jury was charged that they should examine closely and carefully and receive with caution the

    statement of Michael Burton if they found that he believed he would receive a benefit on his

    open cases in exchange for his statement. Thus. it was up to the Jury as fact-tinder to weigh the

    credibility of the witness' statements and their testimony at trial. 1 hcrcfore. it was not error for

    the trial court tu refuse lo give the proposed supplemental instruction to the jury.


            JI. In his second claim, Appellant argues that the tn:il court erred when it denied Appellant's motion

                  for ajudgment '-'f acquittal because hi::. convicuon v related the due process guarantees provided

                  by the Fourteenth Amendment                     tu the United States Constitution and by Article             I,§     8 of the

                 Penns) lvania Constitution, where his conviction                      was supported solely by the out-of-court

                 statements of witnesses v. ho recanted their accusations at trial.


                 As noted in his 1925( b) Statement of Matters t.omplaincd on Appeal, Appellant acknowledges

    that. a, a matter of slate con ... titutional law, the Penns) lvarua Supreme Court has decided that such

    C\:   idence can be sufficient                  to conv 11.:t. CDm. \'. Brov..'n, 617 Pa. 107, 52 A.3 J I 119 ( 20 I ::::! ) .

    Appellant believes                  Br0\\11      to have been wrongly decided and raises this issue here to preserve it for

    future state and federal rev kw. Thus. the trial court did not err when it denied Appellant's motion for a

    judgment        of acquittal because the ruling" as consistent v. ith Pennsylvania                         law as stated supra.


           Ill   In hn thirJ claim, Appellant argues that the trial court erred when it denied Appellant's                                 request   to

                 redact that portion of the out-nt-court                  statement (If l ommonw ea Ith ,, itncss t,. Iontalmont, wherein

                 he stated that, "if rhls [Moutulmont's i.:011pcrati,,11J gets out I will he killed."                       Appellant argue,

                 th.it the trial        C\.1111 t   erred because there was nu evidence ,, hich suggested tli;jl anyone had ever

                 attempted        to intimidate          (\ INll.1lm,1111 and the adrnissiou   1)f   this port ion of' his statement     unfairly

                 $Uggc..· 11.:J   111   the jury thut ,\t,,nralmont       had rei.:J111eJ his accusauon, at trial. due: t•l intimidation
                                          ~--------------                                             ................ £111
l
             The trial court did not err when it denied Appellant's request to redact part of the

    statement by the witness because the statement was relevant to show why the witness may have

    recanted his statement at trial. The determination of whether such statements are admissible is

    within the sound discretion of the trial court and will be reversed only upon an abuse of that

    discretion. Corn.\'.          Ragan. 538 Pa. 2, lh. 645 A.2LI 811, 818 ( l lJCJ.+). In Ragnn, the Supreme

    Court   l,r Pennsylvania          held that the fact that the witness was considering the idea of nut

    testifying against the defendant would seem to discredit his subsequent testimony in which he

    renounced his identification ol the defendant and was admissible to show the state of mind of the

    witness at the time of the discussion with the detective. Id. at 8 I 9.


             Herc, the trial court properly admitted the portion of the statement by the witness

    Montalmont to a homicide detective in which he stated that. "If this [Monralmonts cooperation]

    gets out, l will be killed." On the record. the trial court stated that the statement was admissible

    because, "That's his state of mind as to why he is going south ... He is nut saying that they did

    anything. rt is just what he thinks will happen. that's all." (N 1 .. Vol. 2. Jan. 15, 20H, 13 7-138).

    This situation is similar lo Rag~m because the evidence is admissible to show the state of rrund of

    the witness at the time or the discussion with the detective .md rs relevant to show a motive as to

    whv   the witness may have recanted his statement at trial. Thus admitting the statement docs not

    constitute   till   abuse of discretion by the trial court.


        [\'. In his fourth claim, Appellant argues that the tri.11 court erred when          11   overruled defense counsel's

            objection to the Commonwealth's summntion, where the prosecutor told the                    1u1)   that" uness

            Montalrnont changed his ....tory because he was afr11id that it      \\1)1J!d   ··get nut in state prison that he

            wa     ;i       ·itnc!>s" when nu evidence indicated that 1\1,mtalr,,unt harbored such tears and the
                        , ...



            prosecutor's argument \\ 3\ not a lair re x ponse ro an) thing argued by the defense,
         The trial court did not err when it overruled defense counsel's objection to the

Commonwealth's summation because a prosecutor has considerable latitude during closing

arguments and the statement was an inference which could be reasonably dcnvcd from the

evidence.    With specific reference tu a claun of prosccutorial misconduct in              J   closing statement,

it is well settled that in reviewing nrosecutorial 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. Com. v. Sampson. 900 A.2J 887 890 (PJ.Supcr.2006 ). Our review of

prosecutorial remarks and an allegation of prosecutorial misconduct requires an evaluation                   JS   to
                                                                   .
whether a defendant received       c1   fair trial, not a perfect trial. Com. v. Judy. 978 A.2d IO 15, l lJl 9

( Pc1.Supt:r.20UO).   1l is well settled that a prosecutor has considerable latitude during dosing

arguments and his arguments are fair il they are supported by the evidence or use inferences that

can reasonably be dcnved from the evidence. Further, prosecutonal misconduct does not take

place unless the unavoidable effect of the comments at issue was to prejudice the [urors by

forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability

tu weigh the evidence objcciiv ely and render a true verdict Prosccutorial misconduct is

evaluated under a harmless error standard. Id. at I O:!O.


         Here, the prosecutor' s comment that, "[The witness 1 distanced himself from the

identifications that he made of these: two people. Why? Because he has to go had. to state

prison for a lung time and if it gets out in stall! prison that he was      ,1   wrtncss   in a homicide ... he i~

going. to have a lot of problems in his life", (N.l'., V,,1. J.Jan. to. 21Jl,1. ~01-211::?) .• \.~ stared 11n the

rl!LMJ. the trial court overruled the defense's objection to this comment because ·'it is fair

response to some things that were said by the defense .. , IJ. at 201.           Since the defense argued that

the witnesses were lving in their statements for their own personal gain. the prosecutor was


                                                   A    10
1
    allowed to respond to this argument by offering a reason supported by the evidence as to why the

    witness may have recanted his statement at trial. Herc, the prosecutorial comments were a

    proper interence taken from evidence in the record. speci fically Mr. Montalmont's statement that

    he wus in fear uf being labeled a snitch. Furthermore, it cannot he found that the unavoidable

    effect of the comments at issue was to prejudice the jurors by terming in their mmds a fixed bias

    and hostility towards the defendants, thus impending their ability to weigh thee, idence

    objecu vely and render a true verdict. Thus, the trial court did not err when it overruled <le fense

    counsel's objection to this remark made during the prosecutor's dosing argument.


        V. ln his fifth claim,   Appellant argues that the trial court erred when it overruled defense counsel s

            objection to the Cornmonw ea Ith 's improper vouching, when the prosecutor repeatedly told the

           jury that "the statements that the) {the alleged eyewitnesses]   gave to the homicide detectives are

            U1e truth."


            [he trial court did not err \\ hen it overruled defense counsel 's objection to the

    Commonwealth's statement in closing argument because the prosecutor is allowed                Lo   respond to

    defense arguments with logical force and vigor. Improper bolstering or vouching for a

    government witness occurs where the prosecutor assures the jury that the witness is credible and

    such assurance is based on either the prosecutor's personal knowledge or other information not

    contained in the record. Com. ,•. C'1)us;ir, 593 Pa. 204 212. 928 1\.2d I 025 I 041 (2007).

    I Iowever the prosecutor may comment on the credibility of witnesses. Com \'. Jones. 571 Pa.

    11 ~. 811 A2J 994. I 006 ( 2002) Cum. v Simmons, 541 P..i. 211. 662 A.2d ,,21 639 ( I Q9").

    Further. a prosecutor is allowed to respond t,, defense arguments with logical force and vigor.

    Corn .. v. Chmiel, 585 Pa. 547. h20, 889 A.2d 501, 544 (2005).          If defense counsel has attacked




                                                      An
the credibility     of witnesses in closing, the prosecutor may present argument addressing the

witnesses' credibility.      Id.


         Herc. defense counsel stated in his dosing argument that. "You have a witness stand in a

court ro()JTI and nobody, nobody walked m at any point in time and identifies either one of these

t~, o guys as     being invnl vcd m this." ( N. T .. Vol. J, Jan. 16, 2014. I 74 ). Defense counsel

continued. "[The statement] is bogus. in his words and he gets on the stand and he has never

testified unJcr oath be fort: and what does he tell you'? It is aJI a hunch of lies." Id. at 178-179.

The argument of defense counsel was that the statements given by the witnesses were not true.

The prosecutor was allowed to respond m his closing argument that the witnesses' statements

wen: true. IIere, the prosecutor commented on the credibility of the witnesses in response to

defense counsel's argument as           to   their incredibility with logical force anJ , igor. Thus. the tnal

court did nor err when       1t   overruled defense counsel's objection to the remarks made during the

prosecutor's closing argument.


                                                    CONCLVSION


        Based on the foregoing, Appellant's             motion should be denied and the rulings of the rnal

court should be affirmed.




                                                        By the Court:




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