J-S47017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 ANTON SCOTT LOCKHART                     :
                                          :
                    Appellant             :   No. 1610 WDA 2017

          Appeal from the Judgment of Sentence October 2, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0000964-2017


BEFORE:      OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED SEPTEMBER 12, 2018

      Anton Scott Lockhart appeals from his October 2, 2017 judgment of

sentence. Lockhart argues the trial court abused its discretion by denying his

request for a cautionary instruction following allegedly improper argument

from the Commonwealth, overruling his objection to the Commonwealth’s

cross-examination of Lockhart, and sustaining the Commonwealth’s objection

to counsel’s question to Lockhart regarding the identity of a person in a video.

We affirm.

      On October 5, 2016, Ronald Stahon left his car running while he entered

the Sacred Heart Ushers’ Club in Erie, PA. N.T., 8/15/17, at 31-32. When he

returned a couple minutes later, his car was gone. Id. at 33. He located the




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S47017-18



car the following morning near West 20th Street.1 Id. at 120. There was a

video of the theft, but, due to the video’s quality, police were unable to

determine the perpetrator’s facial features. Id. at 108.

       The police obtained evidence from the car including a handwritten

“contract” between Gina Desko and Lockhart; partial fingerprints from the

front driver’s side door handle and driver’s side rear window; a compact disc

(“CD”), which also had a fingerprint; a notebook containing names, including

Lockhart’s name; a receipt from Liberty Iron Metal with Lockhart’s name; and

a purse. Id. at 67-79, 112-14. The Pennsylvania State Police Crime Lab found

Lockhart’s thumb print on the CD and two of Lockhart’s fingerprints on the

driver’s side rear window. Id. at 76, 98-99, 101.

       At trial, Detective Jacob Letkiewicz testified that he had been with the

Erie Police Department for 20 years and in the Property Division for 9 years.

Id. at 106. He stated that he spoke with Lockhart, who was at the Erie County

Prison. Id. at 114. Detective Letkiewicz asked Lockhart where Desko lived,

but did not mention where the car was located or who found it. Id. at 119-

20, 124, 128. In a transcript of a phone call Lockhart made from prison,

Lockhart mentioned that the victim located the car and where he found it. Id.

at 123.




____________________________________________


1When asked where he located the car, Stahon stated “I think it was 21st.”
N.T., 8/15/17, at 38. However, the police department had the car towed from
West 20th Street. Id. at 120.

                                           -2-
J-S47017-18



      Gina Desko testified that she had an ex-boyfriend, who she described

as 6’ to 6’1” and of medium build. N.T., 8/16/17, at 13-15. She testified that

the ex-boyfriend had been friends with Lockhart, but that the relationship

became awkward after Lockhart and Desko began dating. Id. at 15. She

stated that the ex-boyfriend developed an animosity toward Lockhart. Id. at

15-16. She further testified that she moved from her house on West 20th

Street in August 2016, but that she then began staying with a friend, who also

lived on West 20th Street. Id. at 20-21.

      Lockhart also testified at trial. He stated that Detective Letkiewicz kept

referring to West 20th Street and, therefore, Lockhart concluded that the car

had been found on West 20th Street. Id. at 26. His counsel asked him if he

was the individual in the video, to which he responded “no.” Id. at 32. Counsel

then asked “Do you have any idea who it might have been after watching the

video?” Id. at 32-33. The Commonwealth objected because it called for

speculation, and the trial court sustained the objection. Id. at 33.

      During cross-examination of Lockhart, the Commonwealth asked about

Detective Letkiewicz:

         Q: Now, Detective Letkiewicz came to speak to you about
         this?

         A: Yes.

         Q: You heard his testimony. You heard it yesterday, right?

         A: Yes.

         Q: And he testified that the interaction took place and he
         asked you about Gina Desko. Do you remember that?


                                     -3-
J-S47017-18


       A: Yeah. It did take place. He did ask me about Gina.

       Q: And he said it involved a stolen car?

       A: Yes.

       Q: Okay. Now, you heard his testimony that he never told
       you where the car was recovered. You heard that testimony
       first of all, right?

       A: Yes.

       Q: You testified that Detective Letkiewicz is just straight-up
       lying?

       A: Yeah, he kept saying that, West 20th, West 20th. He kept
       bringing that up and telling me about the car. Told me about
       the notebook. I said, yeah, that was my notebook. And I
       made an assumption on the phone calls to my son’s mother
       that that’s where that car was, you know – they found it.

       Q: Okay. And he also testified that you somehow knew on
       the prison tapes that the victim had located the car; do you
       remember that testimony?

       A: Yes.

       Q: And that detail would not be, in any way, relevant to an
       investigation as to who did it, fair to say?

       A: Yeah.

       Q: But you still somehow knew that the next day?

       A: He told me that. He told me the vehicle – Mr. Stahon had
       located the vehicle, he had told me this in the
       attorney/client privilege room that wasn’t recorded. And,
       you know, the second time he didn’t – he came in with a
       recording device that he said he didn’t have. I don’t
       understand why none of this wasn’t recorded, so.

       Q: So when Detective Letkiewicz summarized – Detective
       Letkiewicz has been a police officer for 20 years and a
       detective for – I think he said seven, but that’s a guess. He
       just – and he referenced his report, multiple times, that he
       produced right after that, he’s just making that up?

       A: Making? What is he making up?


                                   -4-
J-S47017-18


        Q: When he says that I didn’t tell him these things, he’s just
        outright lying?

        A: Yes, sir. Yes.

        Q: And he was under oath yesterday?

        A: Yes.

        [Defense Counsel]: Objection, Your Honor. He’s badgering
        the witness.

        THE COURT: Overruled. Go ahead.

        BY [ASSISTANT DISTRICT ATTORNEY]:

        Q: He was under oath yesterday?

        A: Yes.

        Q: Okay. And he’s not currently charged with the crime is
        he, regarding this incident?

        [Defense Counsel]: Objection. Vouching for the credibility of
        one witness over the other.

        A: Is he what? I don’t understand that.

        Q: He is not currently charged with car theft of receiving
        stolen property, is he?

        A: Not that I know of.

        Q: And you are for this vehicle?

        A: Yes.

Id. at 41-44.

     During the Commonwealth’s closing argument, the assistant district

attorney (“ADA”) stated:

        Now, you may ask, with all this evidence, why am I here?
        You’re here because you have a duty. And every individual
        has a right to a trial. They have a right to hear the evidence,
        to make the Commonwealth call all the witnesses, to show
        all the evidence. They have a right to an attorney to argue
        for them vehemently. They have a right to be heard by a

                                     -5-
J-S47017-18


         jury of their peers. And then the jury has a duty to listen to
         the evidence and give it a fair shake, a fair shake that leads
         to one conclusion. And as you think about that, I want you
         to remember your duty, you’re not here just for the
         defendant, you’re here for the community.

Id. at 78. Lockhart objected, and the trial court sustained the objection. Id.

      The trial court instructed the jury, including the following:

         Now, as the fact finders in this case, you heard the evidence.
         It’s your duty to make the findings of fact as you find them
         to be. In this trial, as in almost all trials, there’s conflicting
         evidence and so we ask you, as jurors, to resolve those
         conflicts. The way you do that is by making credibility
         determinations. And for every witness that you heard in this
         case, you’re free to accept everything, some or none of what
         the witness testified to.

                                        ...

         In arriving at a verdict, you should not concern yourself with
         any possible future consequences of your verdict including
         what the penalty might be and I stress that because you are
         the fact finders. You have to listen to the evidence,
         determine the facts, apply the law as I’ve given it to you
         and arrive at a verdict and that is without concern for the
         consequences or sympathy of the victim or concern for a
         penalty including what the penalty might be.

         I often say to jurors, you’re like the umpire in a baseball
         game. The umpire in the baseball game has to call a pitch,
         it’s either a strike or a foul. . . . A runner is either out or
         safe. Now, in the back of the umpire’s mind, he or she knows
         that there is a consequence to the call the umpire has to
         make. It’s going to help one side and hurt the other side,
         but the umpire cannot allow that consequence to enter into
         the – a verdict or the call you have to make.

         You, as the fact finders in this case and as the jurors, you
         are like the umpire. You have to make the call as to what
         the evidence is, apply the law whether the Commonwealth
         has met its burden of proof without regard to the
         consequences of that decision. So, it has to be a clinical
         analysis in that sense. And if you stray beyond that, then


                                       -6-
J-S47017-18


         you are violating, really, your oath as jurors. If that occurs,
         then I will remind the other jurors that we can’t go there.
         We can’t talk about the consequences of the verdicts,
         because that’s not our job.

Id. at 83- 89. Lockhart requested that the court issue an instruction to address

the Commonwealth’s suggestion that the jury consider the community. Id. at

91. The trial court declined to issue a cautionary instruction, noting that the

instruction to determine the facts and apply the law and to make a clinical

judgment covered the concern. Id. at 91.

      On August 16, 2017, a jury found Lockhart guilty of receiving stolen

property, 18 Pa.C.S.A. § 3925(a), and theft by unlawful taking, 18 Pa.C.S.A.

§ 3921(a). On October 2, 2017, the trial court sentenced Lockhart to 33 to 66

months’ incarceration and one year of probation for the theft by unlawful

taking conviction, and found the conviction for receiving stolen property

merged for sentencing purposes. Lockhart filed a post-sentence motion, which

the trial court denied. Lockhart filed a timely notice of appeal.

      Lockhart raises the following issues on appeal:

         1. Did the trial court commit an abuse of discretion or error
         of law when it declined to provide a cautionary jury
         instruction in response to the Commonwealth’s argument
         that the jury should convict because of the need to protect
         the community?

         2. Did the trial court commit an abuse of discretion or error
         of law when the court overruled the defense objection to the
         Commonwealth’s attempt to impermissibly vouch for the
         credibility of one witness over others?

         3. Did the trial court commit an abuse of discretion or error
         of law when the court sustained the Commonwealth’s
         objection to defense elicited testimony from [Lockhart] as


                                      -7-
J-S47017-18


         to the identity of the perpetrator of the theft seen in the
         Commonwealth’s video?

Lockhart’s Br. at 9 (unnecessary capitalization and suggested answers

omitted).

      Lockhart first argues that in its closing argument the Commonwealth

impermissibly urged the jury to send a message to the community and asked

the jury to respond to an attack on the community. He further maintains that,

although the trial court properly sustained Lockhart’s objection, the trial court

erred when it denied his request for a cautionary instruction. He maintains

that the instructions the trial court provided did not cure the allegedly

prejudicial remark, as it did not inform the jury to not consider the impact of

its verdict on the community.

      “Our standard of review when considering the denial of jury instructions

is one of deference—an appellate court will reverse a court’s decision only

when it abused its discretion or committed an error of law.” Commonwealth

v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011).

      A prosecutor may not “urg[e] a criminal jury to ‘send a message’ to the

community or the criminal justice system,” or portray the community as under

attack, and then “ask the jury to respond to the attack with its verdict.”

Commonwealth v. Patton, 985 A.2d 1283, 1287 (Pa. 2009). The

Pennsylvania Supreme Court has explained:

         A jury is sworn to render a verdict based solely on the
         evidence presented; arguing extraneous reasons for a
         verdict misdirects the jury from that purpose. Such
         arguments inject irrelevant matters into the deliberation;
         they invite the jury to focus on matters beyond its ken.

                                      -8-
J-S47017-18



Id. “[A] prosecutor’s comments must be examined within the context in which

they were made.” Commonwealth v. Hall, 701 A.2d 190, 202 (Pa. 1997).

Further, an improper statement by a prosecutor “will warrant a new trial only

when the unavoidable effect of the statement is to prejudice the jury against

the defendant, or prevent it from weighing the evidence objectively and

rendering a true verdict.” Patton, 985 A.2d at 1287.

     Here, during closing arguments, the ADA said:

        Now, you may ask, with all this evidence, why am I here?
        You’re here because you have a duty. And every individual
        has a right to a trial. They have a right to hear the evidence,
        to make the Commonwealth call all the witnesses, to show
        all the evidence. They have a right to an attorney to argue
        for them vehemently. They have a right to be heard by a
        jury of their peers. And then the jury has a duty to listen to
        the evidence and give it a fair shake, a fair shake that leads
        to one conclusion. And as you think about that, I want to
        you to remember your duty, you’re not here just for the
        defendant, you’re here for the community.

N.T., 8/16/17, at 78.

     The trial court sustained Lockhart’s objection to the ADA’s statement

that the jury was “here for the community,” but denied his request for a

cautionary instruction. The court determined that no cautionary instruction

was needed because the court had instructed the jury that its duty was to

determine the facts and apply the law, and that it was not to consider the

consequences of the verdict. Trial Court Opinion, filed Feb. 13, 2018, at 2

(“TCO”). We agree.




                                     -9-
J-S47017-18



      When read in context, the ADA’s reference to a duty to the community

did not prejudice the jury against Lockhart or prevent the jury from weighing

the evidence and rendering a true verdict. The comment came after reminding

the jury that it must review the evidence and provide Lockhart a “fair shake.”

The ADA did not request that the jury “send a message” for the community,

suggest that the community was under attack, or suggest that the jury should

base its verdict on anything other than the evidence presented at trial.

Further, the trial court instructed the jury that it may base the verdict on only

the facts, that it had to make a “clinical analysis,” and that it could not consider

any consequences of its verdict. These instructions ensured that the jury

would not base its decision on any extraneous consideration, including the

“community.” Accordingly, we conclude the trial court’s denial of the request

for a cautionary instruction was not an abuse of discretion.

      Lockhart next argues that the trial court erred when it overruled an

objection during the Commonwealth’s cross-examination of Lockhart. He

argues that the Commonwealth, through its questions, impermissibly vouched

for the credibility of Detective Letkiewicz. He alleges the Commonwealth did

this by re-iterating in the question the number of years Detective Letkiewicz

had served as a police officer and the number of years he served as a

detective, which suggested to the jury “that the prosecutor placed veracity in

the officer’s testimony because he was an officer/detective and because of his

years of experience.” Lockhart’s Br. at 25. He also claims on appeal that the

Commonwealth placed information not on record before the jury, as Detective

                                      - 10 -
J-S47017-18



Letkiewicz had not testified that he had seven years of experience as a

detective. Lockhart’s Br. at 25.

      “Cross-examination may be employed to test a witness’ story, to

impeach credibility, and to establish a witness’s motive for testifying.”

Commonwealth v. Ballard, 80 A.3d 380, 394 (Pa. 2013) (quoting

Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005)). “The scope of

cross-examination is a matter within the discretion of the trial court” and we

will not reverse absent an abuse of that discretion. Id. (quoting Chmiel, 889

A.2d at 527).

      A prosecutor may not “express a personal opinion as to . . . the

credibility of a defendant or other witnesses.” Commonwealth v. Koehler,

737 A.2d 225, 240 (Pa. 1999). However, “the prosecutor may comment on

the credibility of witnesses [and] is allowed to respond to defense arguments

with logical force and vigor.” Commonwealth v. Lawrence, 165 A.3d 34, 43

(Pa.Super. 2017) (quoting Commonwealth v. Judy, 978 A.2d 1015, 1020

(Pa.Super. 2009)). Improper bolstering occurs where: (1) the prosecutor

“assure[s] the jury the testimony of the government witness is credible,” and

(2) this assurance is “based on either the prosecutor’s personal knowledge or

other information not contained in the record.” Commonwealth v. Williams,

896 A.2d 523, 541 (Pa. 2006) (citing United States v. Walker, 155 F.3d

180, 187 (3d Cir.1998)).

      Here, the trial court found that the ADA was arguing in favor of the

credibility of its witness over Lockhart. TCO at 4. It noted that the ADA did not

                                     - 11 -
J-S47017-18



express a personal opinion about a witness’s credibility. Id. at 5. Rather, in

response    to   Lockhart’s   testimony   contradicting   Detective   Letkiewicz’s

testimony, the ADA asked questions to establish reasons the jury should credit

Detective Letkiewicz, not Lockhart. Id. The trial court noted the questions

were designed to show Lockhart had a motive to lie, and Detective Letkiewicz

did not.

      Further, the ADA did not reference his personal knowledge of

information not in the record. In his question, the ADA said Detective

Letkiewicz had been an officer for 20 years “and a detective for – I think he

said seven, but that’s a guess.” The ADA, therefore, acknowledged he did not

specifically recall the Detective’s testimony as to his experience. During his

testimony, Detective Letkiewicz did not say when he became a detective. He

did, however, state his full name, which included that he was a detective, and

he testified that he had been in the Property Division for nine years. Any

discrepancy between the question and the testimony was not assurance of

credibility “based on either the prosecutor’s personal knowledge or other

information not contained in the record,” and does not constitute improper

vouching.

      We conclude the trial court did not abuse its discretion in permitting the

Commonwealth to question Lockhart as it did. The questions were not

impermissible bolstering of the witness, as they did not assure, based on the

prosecutor’s knowledge or information not in the record, that Detective




                                     - 12 -
J-S47017-18



Letkiewicz was credible. Rather, the line of questioning attempted to establish

that Lockhart had a motive to lie, and Detective Letkiewicz did not.

      In his last issue, Lockhart argues that his defense at trial was that

another individual, with a motive to implicate Lockhart, committed the theft

and that the trial court abused its discretion when it sustained the

Commonwealth’s objection and prevented Lockhart from identifying the

perpetrator in the video. He maintains a foundation had been laid as to

Lockhart’s personal knowledge and Lockhart should have been permitted to

testify as to the person’s identity.

      During direct examination, Lockhart was asked: “Do you have any idea

who it might have been after watching the video?” N.T., 8/16/17, at 32-33.

The Commonwealth objected stating that the question called for speculation,

and the trial court sustained the objection. This was not an abuse of discretion.

The trial court noted the question, which asked whether Lockhart had “any

idea” who was in the video, was a “matter of pure speculation fueled by a

desire to pin the crime on a third party.” TCO at 6. The court noted that

Lockhart could have laid a better foundation, but did not do so. Id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2018

                                       - 13 -
