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* Retired Senior Judge assigned to the Superior Court. 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 Judgme nt 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 STRASSBUR GER,* 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,

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- 2 -

conspiracy to commit third
- degree murder, various violations of the Unif orm 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 woun d to the head on 54 th 

### 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. Osbourn e 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 54 th 

### 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 Ph iladelphia 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.

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- 3 - deceden t 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. Michae l 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 coerce d 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 threateni ng 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.

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- 4 - 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 defenda nts 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 Montalmon t 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. Offi cer 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 Commonwealt h 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 54 th 

### 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 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. He also stated to detectives that he saw Mu (Michael Rudd) fire a revolver and Seek (Sikwa Ste el) fire a semi
- automatic.

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- 5 - 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 answe rs 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 Com monwealth 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 custo dy 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 war rant 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 pro bable 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.

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- 6 - 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 b ullet 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 scientifical ly. 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. De tective 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

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- 7 -

of 1 0 - 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 ord ered 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 Octobe r 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’] m otion 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 t he 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
-

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- 8 - 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 Com monwealth 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 prosecut or 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 eyew itnesses] 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.

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- 9 - 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. Commo nwealth 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.

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- 10 - Our standard of review in assessing a trial court’s jury instruction s 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 ma xim 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. 20 07) (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 di scretion 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.”

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Commonwealth v. Collins , 810 A.2d 698, 701 (Pa.Super. 2002) (citation omitted). The trial c ourt 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 clea rly 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

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- 12 - the truth of anything that the witness said in the earlier statement. The way that I say it to bring it down to ev eryday 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 the y 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 c redibility 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 closel y 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 rec eive 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 e rred 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 supre me 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 appe al 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 appellant s’ 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 prose cutorial 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 de fendant 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). W hen 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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- 15 - [Mr. Montal mont] 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? Becaus e 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 pr ison 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 t hat 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
- bein g 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 als o 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 Montal mont’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 is sue 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 se veral 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 as surances 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 state d that,

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- 17 - 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 re spond 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. Her e, 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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- 18 - 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 witness es’ 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, d uring 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 i ndicate 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 v ouching. 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

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commented on their credibility. Therefore, appellants’ fifth issue is wi thout 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 review able 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 includin g 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 wh en the Commonwealth lodges an objection to the omission of

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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 fai lure 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 merit s 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

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. On I\ l arch ~S
. .:!IJ 14 , Appellant tib J p os t -sente n ce moti o n s th .i t w e r e de ni e d a fte r · 1 h e, m ng un 6 1 0 8 a nd P I C. co n se c u tive l y , o n the \'UFA 6 I 06 co n vic tio n . T h e r e was n o fu rth er se nt e n c e for th e c o unt o f V U F A fo r th e Conspiracy fl, Comm it 3 ':i D eg r ee t-. lu r der com ic ti o n , and fi v e l5 l ye ar s rep o rtin g pr ob atio n . co run fo r th e 3 111 D eg re e M u rder co n v i c ti o n, t en r I 0) t o twen ty t20) y ear , s t at e co n fi n em e n t, t o run co n currentl y. O n Mar c h 2 ,, 2 0 I I Appel l am was s en t en c ed to kn ( I O ) t o t wcnt)- ( 2 0) ve. ir s s tat e co nfin e m ent C rim e ( P l C) V i o l au o n o f the Unifo rm F irearm s Act Secti o n 6 10 8 (V t !F A 6 1 U S J and I' os s css r o n of an In s trumen t of to Cn mm itJ'.i D e g r ee M u rde r , V1 0 httinn of the Unifo rm Fi re arm s .\d S e c tio n 6 1 1111 (\'UFA 6 1 06), by a j u ry. pr e s ided o v e r hy the H o n o rab l e Ruse M ari? De F i n o-Nastasi , of 3" 1 De g r ee Mu r de r . Cons p iracy O n J u nu ary 21. 2014
. M ichae l Rudd ( h e r ea ft er referred l o a s th e .. A pp e ll a nt " )
. ,, .. as f o u nd g u i l ty PROC ED llRAL H I STORY D c fi n o -Na ~ t asi
. 1. 

## N O V 

## 1 3 2014 

## Crim i nal Appeals Unit First Judicial District of PA OP f N IO N 

# FILED MI C H AEL H U Dl> C P-5 1

- C R-OO l 2 ,U J-20 1 2 C OM M ON W EALT H. OF P EN NSYLVAN I A C R I M I NAL TR I AL DI V J S J ON JN T H E C OURT OF C OMMON P LEA S OF PH D JA D ~L PHl 1 \ 

# l Circulated 01/29/2016 04:28 PMMi c h a el Burt o n \\.ls c al led h y th e C o rnmonweal th J S no e yew i tne ss at tri al
. Pri o r t o trial, Mr ,

Burt o n t; J\. C a s t atem e nt t o h o mi ci de d ete c ti ves th at h e v.. a s pres e nt wh e n the rlccedcnt w a s -;h1 1 t and k i ll ed

. Il e star e d t o d e t ec nves in s ummary th at he s U\\ 'Se ek" and " Mu". iden uf ied as ni c kuurn es f

o r th e def e ndants S ikw a S t e c! ( Se ek ) and ~ f kh J cl Rudd ( MuJ
. s h ,,,1 1 at the de c edent a11d llee th e sc e ne. I I i:

s tated t o d e t ecti ves th at h e "s aw S e e k r . u se a g un and sh o ot [th e dec e d e n t] on e ti me in the h e ad
. " I le th en The de c edent 's mother
. Kare n Tun s tall , te s tified th at s he knew Mi c hae l Burton and that he
ar ab bed her t o pre, ent her fr o m s e e in g the d ec edent 's dead b o dy out o n Arlingto n Street I i g h t after th e murder. (N .T
.. 

### V u l. I , Jan
. I 4, 20 I 

### t , 89- 9 1 ). Officer Ian N ance tesufied that h e receiv ed a radi o call o f a p e r s o n s creami ng on July 2 2 , 2 00 7
. The o fficer arnved at 5 -l 'h and Ar l mgt o n s treet and found the decedent s uffering fr o m a g un s h o t wo u n d t o th e fo r e head. T he offi c er also s tated th at , aft e r arriv i n g o n thc sce ne, h e cam e int o contact with so me o ne cl ai min g t o be the de c eden t 's b ro ther who t o ld him that s o meone s tarted sho o u n g at th e dec e den t and the de c e<lenttri e dlopull o uth isweap o n . ( N
. T. Vol. ! , Jan. 14 , 2014 , 108

- 130)
. Dr
. Marl o n Os b o urne , a ss rstan t medi c al e x an uner, t e sufie d that th e decedent s uffered .1 g unsh o t wound t o the c o p of h i s f o rehead that wa s tw o inche s bel o w the l o p o f hi s head. i n the c enter of hi s for e head
. I le al so s taled that the r e wa s n o eviden c e o f clo s e - ran ge fi ri ng on the skin around the entran c e
w o und
. Dr
. O s bourne testified that a deformed bullet was re co vered fro m i ns i de the brain it se l f and se nt t o b a lli s ti cs (N .T
.. V o l. I. Jan
. I! , 2111.t , 9 2

- 10 7)
. f ' ACTS In the! earl y rn o rmn g hour s o f J ulv 2 2, 2 007 , C harles Iu n s t a ll ( h e reafter referred t o a s th e

" de c edent ") , s uff

e r e d a fatal gun s h o t w o und to the head on 5 4 111 and Arlington S treet in Philadelphia. (No tes o f'Testi rn o n y, V olume I, Jan
. 14 , 2 0 I 4 , Pa g e J 1 1 )
. Upon investi g ati o n o f th e c rime sc ene , Ci H! fired cartrid ge c a ses fr o m a c alib e r .J S O se mi

- automatic pi s t o l wer e recovered (N
. L , Y u l. J , J u n . 16. 20 14 , ·P

- 52)
. 

# TO ffi c er Kc, in P a lmer te s tified t o c o min g in to co nta c t w ith a p e r so n named Jimmy M o ntalm o ru

o n D ece mber 19 , 2 0 07
. ' lhe o fficer s tat e d that he pla ce d Mr
. M o ntalm o nt in t o polr c c cu s tody for po ss e s sion ~i f murijuan a und s ubmitt e d the m ariju ana fo r invL· ~ 1 , g a1i1in rather th an arrestin g h i m be c au se M r , r-.1 111 11
. ilrn 11 nt ha d i n dicat ed h t: h ad in fo rru atr o n Offi ce r P almer t e),lificd th ,1t he to o k i\ 11 M o nt al in o nt Offi c er C l y de Fras i er te s tifi e d th at he arrived at the c rime scene un 3 ·J 7 a.rn. on Ju l y '.! 2, '.!00 7
. O ff i c e r Fra sie r s t ated that he rec o vered fi v e .1 8 0 aut o mati c cal iber fi r e c artrid g e cases from the l oc atio n
o f th e c rim e s ce n e . 1N.T.. Vul. 2 , Jan
. 1 5, ~ O J.ct , 55 -8 7) , Det ec ti v e John C ahill te s tified that he was the dete c tive th at mterv iewed Mic h ael Burt o n and too k hi s s tate ment ba c k i n 2 007
. The detective furthe r testi fied that Mr
. Burt o n re-viewed a n d signed the st atc rn e nt w hrle al so sig nin g the idenri fi c ati o ns he made of th e defendant s o n th e p h o t o arr ay s . Detccu ve C ah i ll s lat ed that h e was 11 0 1 aware o f an y of the detai l s s u rr o unding Mr. Burton' s arre s t o n a s ep ar at e
nar co tics c a s e . ( N .T., V o l. 2
. Jan. 1 5. 2014
. Jl-54 )
. At trial. Mr
. Burt o n stated that he wa s c oe r c ed int o givi n g. the answers in hi s s tatement. On c r ossexamin ati o n, h e s tat e d th at he gave the stat ement to h o n nctde de t ectives afte r bei n g arrest e d for p oss c ss m g drug s and a firearm
. Mr. Burton s l ated th at th e homi cide detecti ve s c oe r ced h im by threat enin g t o charge hi s mother with conspirac y on hi s drug charge and then h e proceeded t o make up th e an s w e rs i n hi s s tat ement. li e further s tale d that the h o mi c ide detecti v es are the o n e s who gav e h i m the

names t I S ikw a S t e el a nd M i c ha e l Rudd
. ( N. T. , V o l. 2, Jan
. 1 5, 2014, 1

- 18)
. s tated that he "s aw [th e dec e dent] drop t o th e ground
. and s a w M u po in t a gu n i n ( th e decede n t' s ! dir ec ti o n and Mu tir e d hi s gun fou r o r five time s After Mu fired hi s g u n. bo th [M u ] an d S eek ran t o w ard
th e alle y in th e ba c k of the C hinese st o re . " ~ Ir . Burt o n al st, i dentified b o th dc l ends nt s as the s h oot er s fr o m a ph o t o arr ay . 

### In hi s s tatement he al so t o ld th e detec tive s that he g r abbed th e d ecede n t' s m o ther t o k ec ph t.· rfru m see in g thc~kc e Jcnt 1 . -. b \. 1Jy o nlhes l ree 1 (NT. , Vol. 1 ,Ju n . 1 4,20 1 ,l, 14 8- l <>-I)J\l tria l. l\ lr
. M o n t al m o nt d e nied g i vi n g th e an s wer s in e i ther o f the s tatem e nt s and s t at ed that he

n eve r s p oke I ll h o mi ci d e de te c tiv e s abo ut ttu s case . ( N
. T • • Vo l. 2, I an . I 5 ~O 1 -t , 1 7 4-190 ) In or d er to
s h ov, Mr
. M o n t a lm ont's st ate of min d d urin~ th e time 11 f th c s tat e men t and why he d e ni e d rnaki n g th e conte nt s of th e s t at emen t n t tri al , th e Com m o n we ah h o ff e r e d i111, 1 e v i dc n ce M r I\ t o nralm o nt ' ~ co m m en t at the ti m e the s t ate m e nt w a s g i ve n that " the se g u ys w il l h a , c me kill e d an d I w ill be l ab e l e d a s ni t c h ." (N 

## r . \\1 1. 2. Ja n . 1 5
. ~0 1 , i , 1 20

- 1701
. l in cross-ex a mine r io n , th e d e f e n se qu es t i o n e d M r M o n t alm o nt ab out h i m a l rea d y be i ng i n c u s t o d y on an ope n cas e :11 th e tim e h e gave th e s t atem e nt i 11 ~ 007 an d w h e th e r potice tu ld h i m he \\ o u l d receive a le s s e r eru c ncc u n 3 par o l e vio lati o n , f h e g ave th e s tat e m e n t i n 2 tJ I ~. In 20 I :2
. vlr , t\ 1 o nt al m o nt s t a t ed t o de te c tiv e s that S eek ( S i kwa S teel ) w a s the pe r so n wh o s h o t th e: d ece d e nt . H 1- s t at ed t o detec ti ves th at See k fi r ed h i s g u n o n c e a l th e de ce d e nt u p c l o se an d fou r ti m e s to rnl
. I le fu rth er s tat e d that Mu ( Mi c h a el Rud d) \, J. S s h o oting at th e dec e den t al so h u t h e di d n ot kn ow wh e the r u r n u t h e u c tu a ll y h it the d ec ed e nt b ec au se M u (M i c h a e l Ru dd ), \ as n o r as c l os e a s See k (S i kwa S t een \\ h e n h e was firi n g . (N T
. • V o l 2, Jan I 5
. 20 I · l. 18 6- 1 IJO )
. Jimmy 

### M o nt al m o n t w as c all ed by 

### the C omm o n weal th a s an eyewi tne ss o t trial. Pri o r 

### t o trial. 

### Mr
. Mon tah n o nt ga ve tw o s t ate m e n t s t o h o mr c ide d e te c ti v e s in d i c atin g th at h e wa s p r e s e n t w h e n th e d eced ent
was s h o t an J ki ll e d
. I n 2 0 07. h e s t ate d t o d et e c tiv e s, " W h e n I g ot t o 5, ttf , an d A rl in g t o n . l see n a boy
n am e d "ie d , ( '> i~
. wa S t eel ) co m e o ut o f th e C h i ne s e sto re and fire t w o s h o ts at [ th e de c ed e nt], th e n I see n a b o) n ame d l\ l u ( M ic h a e l Rudd ) come o u t of th e pi z za s h o p i n th e mi d d le o f th e hl oc k an d h e s h o t at 

### f th e de ce d e n t ] o n e ti me and 

## l t h e d ece dent] w ent do w n [ T he de c ede nt ] w e nt d o wn o n th e s i dewal k across fr o m the C h i n e se s t o r e. " 

### Mr , M o n tal m o nt als o i d e n tified b o th d e f endan ts a s th e s h o o te r s from a ph o t o
arr ay. I le al so s t at e d to detc c ti v c s th at h e saw M u (M ic hael Rudd ) lire a r ev o l ve r and Seek ( S i k wa S te e l J fir e a semi

- au t o m a tic. (N
. T ., Vol. 2, Jan . 1 5
. 20 I 4 , 1 2 0 -1 70 )
. t o h o m ic i d e and Mr
. M o ntal m o nt vo l un tee r e d i nf o rm ati o n abo u t th e murd e r o f th e de c e d e nt inth i s c a s e O ffi c er Pal m e r h ad n o pri o r kn o w l ed ge of thi s inc i de nt ( N 

## r .. V o l. :! , Jan
. 1 5
. :2014 , 8 8

- 1 04)

# As Kenn e th La ) t e stifi e d a s an e xp e rt i n fi r e arm s an d ball is tic evid e n c e M r L .1 ) indi c ated h e wa s give n fi , e fi r e d c artridge cas e s a n d o n e bu il d s p ec uncn H e stu ted that the fi v e fired cartridge c a s e s we r e
ca lib e r .3 8 1) aut o m ati c and the bull e t sp e cim en taken fr o m the m e d ic al ex amine rs office wa s a c alib e r

. 3 '6/ 9 m il l i met er . H e tes ti fi e d that th e h ull e r s p ec unen re co v er e d fr o m th e b11J } o f th e de c ed e nt w a s m os t lik e l y a . .lS O cal iber auto m ati c e v en th o u g h h e co uld n o r rr\ 1vc th at sc i e nttfic a ll y (N
. - 1 , V o l J. Jan
. 1 6 , ~0 1 · 1
. JG-5~)

. Se r gea n t Dani e l r\ ) r es te stifi e d that h e re s p o nd e d t o th e c nrne sc ene o n Jul y ~2. 200 7 an d

sear c h e d th e ar ea fo r a n y w eap o n s Se r gea n t Ayr es st ate d th at he ca m e 'i nt o co nt a ct with th e d e c e d e nt s b r o the r. B ri an T u nstal l
. wh o s aid he w atched th e de c ed e nt ge t ~ h u t and that the d e cedent h a d a g un in h is possess i o n at th e time
. D e tccti v e Fr a nk Mull e n t es tified th at h t: v i s ited the hospual wh e n the dec e de n t

w a s in c ritic al conditio n . He stc.1l ed that th e decedent 's bro th e r denied an ) co nver s atio n w ith S er g eant Ay r es abo ut th e s b oo ti u g, { N .T. , Vo l.:!
. J an . 1 5. ~0 14. ~l6- 2 32). De t ec tive J 1..1 hn V e rr ecc hi o te s tifi e d that he w as the ,1 s : , 1 g ned d e t ec tiv e in tlu s ca s e He s t at ed th at h e had appli e d fo 1 an arr es t warrant fo r the defendant s in :! ll 07 w hich wa s den ie d
. I le then indicat e d th at h e ap pl ie d f or a n arr es t w arr ant fo r the def e ndant s aft e r r cce n in g the s e c ond in terv i e w o f J irnrny M o nt a lrn o nt i n 21 )12 a nd i t wa s ap pr ov ed , Th e dete c tiv e rev ie wed the affidavit of probable cau s e wlu c h
s t ated S ikw a S led s h ot at th e de ce dent u s in g a r e v o lver and Mi c h a el Rudd s h o t at the d e cedent u s in g an
au t o m atic
. D e te ctive Ve rr ecc hi o tes tified th at h e may ha ve mi s taken l y r e ver se d the type o f weap o n tire d b y e a c h d e fend a nt . (N.T .• v o t . z. Jan
. l 5,20 1 - t 194

- 214 ). 1 5 , 2 01 4. 1 70- 1 80}. Mr
. M o ntu lm o nt d e n i ed talking t o p o li c e and gi v ing e ith e r o f the s t at e ments but s tated it was true lhat he
was o ff ered l esse r o f a se ntenc e o n the parol e v i o l ati o n 1f h e g .tv c a s tat e ment rn 2U 12
. (N 

## r.. Vo l 2. Jan
.The trial court did not err when 

### it failed to supplement the standard j ury instruction s with

the s pecial instructi o n proposed h) the defense because the trial judge ha s the di s cretion t o accept o r reject supplemental mstrucuons proposed by coun se l Where the basic charge: properly

cover s the reque s ted p o int, it is n o t error for trial judge 

# i,, refuse to give additional in s truction s . Pa
. R
. C rim
. P 6 4 7
. 

### Com
. , . . Gardner, 371 A
. 2d 9S6 ( 1Y77) The trial co urt 

### i s n o t required t o
a c c e pt the lan g ua g e uf po i nt submitted 

### by counsel , but rather is fr e e l o select i ts own fo rm o f

e xpres s u .rn 

### in jury instru c ti o n s . a nd th e only i ss ue i s whether the area c over e d 

## tn th e c har ge is adequat e l y, 

### a cc ur at el y n nd 

### de arl y p r e s ented to the jur1 for c on s id e rution
. P:1. R C ri m . P t, ..f 7. 

### C nrn . v . Bryant. -4 62 A
. 2 d 7 8 5 ( 1 9 8 3 ) 1 he propo s ed jury in s truction i !- atta c hed a s C o urt Exhib i t A , ANA L\ S J S I. In hi s first claim, Appellant argues that th e trial court erred when it fai led to s upplement the
s tand ard j u ry in struction s w ith the s pe c ial rnstructi o n pr o posed by the defen se . i n a e as e w here the
o nl) ev idcnce a gainst Appellant consisted of the o ut- o f-c o urt s tatement s o f alle g ed eyewitne ss e s wh o 1 ecanted their prior a c cu s ati on s under oath at trial. Detecti ve T h o mas Gaul wa s re - called to tc s ti ( ) '
. He s tared that he int e rview ed Jimm y M o ntalmont i n '20 I 2 and did n ot make any promi s es to him
. Derecnv e Gaul te s uficd that he did not threaten I\ Ir
. M o ntalrnont an d that Mr , I\ l o ntalm o nt was , cry forthcom i n g with the information he ga n · in the statemen t in 2012
. (N
. T ., 

## v ul. 3. fan
. 16
. 20 l 4. 59

- 111 )
. Special Agent Patrick Man g old testified th at he conduc t ed an interview wi th Jimmy M o ntarn o nt on December 18. 2007 in the homic ide unit Special Agent Mango l d testified that he did n o t make an) promise s to Mr. Montalm o nr n o r did he threat en him
.

# A1 Ihe credibility and w e ig ht of the evi d e n c e 

### is for th e j ury to d e t e rmin e as th e I ac r-find cr J nJ th e jury wa s c h ar ged o n th at iss u e . T h e trial c ou rt gave th e s tandard ju ry in stru c ti o n on prior incon s is t ent s tateme n t s a nd 

### th e j u ry wa s t o ld th e ) c ould c on s ider the s t atem e n ts as s u bst an tive eviden c e, 

## r h e u ial c o urt al so g a ve an i n stru c tio n t o th e jury th at th ey s hould cx amm e c l ose l y

an d carefu ll y and r eceive w ith caution th e stat e m en t 

### 11f J i mmy Mo ntulrn o nt i f 

### th e y f o un d th at h e 

### be l ieved h e wo u l d rece i vc a be n efit o n his ,1p 1!11 

### 1.. a -.e in exc h an ge f or hr s 

### s t at e ment A l so, th e H erc, th e trial co urt was not r e quir e d to s uppl e m e nt th e st andard Jury in s tru c ti o n s with th e s p eci al 

### i n s truc ti o n s prop ose d by the d e fen se Th e r e is n u requirement 

### for a s p ec i al
s u p pl eme n t al ins tru c ti o n th at th e o nl y evid enc e co n s i s ted 

### o t the out
- of-court s t at e me nts of ey e w i tn e ss e s who re ca nt e d th ei r p ri or st at e ment s at trial. A lth o ugh M r, M o nt a lm ont ' s two stat ements differ regard i n g whi c h d efe nd a nt' s bu ll et was th e one th at kill e d the de ce d e nt , th e)
ar c fundam e nt a ll y c o n s i s tent with e ac h oth e r . an d w i th M r. Burt o n · s s tatement, in th at th ey a ll i ncl ude the fad th at they saw both de fend an ts s h oo ti ng at the d ece dent and that S ikw a S l ed was
c l o ses t t o the decedent, 

### st andi ng appr oxi rn at e l y w here the
. 3 80 c alib e r fired 

### cartri d g e casings
were locate d
. Thus
. the s t atement s ar e n o t p at e ntl y unreli abl e and the d e fen s e h ad th e op p o rtunity 10 

### fu ll y cr oss-e xamin e th e w itn esses al trial. Wi tness' o ut-of- co urt s t at ement s, \.\ hich w e re re c anted at tri a l. furni s h e d l eg all y s uffi c i e n t evide n ce t o sustai n A p p e llan t's c o n v i c u o n s for fir s t d eg r e e murder and r e l ated c h ar ges, and thu s th e co n v ic tio n s di d n ot vio l at e d ue p roc e ss : s tate m e nt s we r e reduc e d t o w ritin g, e a c h 

### w i tne ss sig n ed every p age or h is s t atem e n t anJ att es t atio n s t at e ment d ec larin g that inlormunnn 

### i n
s t ate m e nt was ac curate , ea ch w i tness was cr oss e xamined a l 

### trial. and s tat e ments w ere fundame nt ally co n sis tent w ith o ne an o th e r s uch that s t at e m e nt s w e re nut p at e ntl y u nrel i ab le
. Com
. v. 

### B rown. 6 1 7 P a . !07 , 52 

### A.3 d 11 3 9 ( 2 01 2.).



# ~ ---------- ----------111111• zrsmma TI ll In hn th i rJ c laim , Appell ant argue s that the trial c o urt erred whe n it 

### de ni ed A p pe ll a nt ' s reques t 

### t o red a ct that p o rti o n o f the o ut- n t
- c o urt s tateme n t (If l o mm o nw ea Ith ,, itn cs s t,. I o ntalm o nt , where i n he s tated that , "if rh ls [M o utulm o nt 's i.:0 11pcrati,, 11J g et s o ut I wi l l he kill ed." Appe ll ant ar g ue , th.it th e tri al C\.1 111 t erred be c au se ther e wa s n u ev i den c e ,, hi c h s ugge s ted tli;j l an yone had ever
attempted t o in ti mi d ate (\ INll.1lm,1111 and th e a drn issio u 1) f thi s port ion of' hi s s tatement unfai rl y $ U gg c..· 11.:J 111 the j u ry thut , \t , ,nralmont had re i.: J111eJ h is a c cusauon , at tria l. due: t• l intimidati o n A s n o t e d i n h is 1 92 5 ( b ) S t atement o f Matter s t. o m p l aincd o n Ap p eal , Appe l lant acknowledg es that
. a , a matter o f s l at e c o n ... titutio nal l a w , th e P e nn s) lv arua Supreme C o urt has decided that s uch
C\: iden c e can b e su ffi c ient 

### t o c o nv 1 1 .:t . C Dm
. \'
. Brov
.. 'n, 6 1 7 

### Pa
. 10 7 , 52 

### A.3 J I 119 ( 20 

### I ::::! )
. 

### Appell ant b elieve s Br 0 \\11 

### t o have be e n wron g ly 

### de c ided an d raises thi s 

### i ss u e h e r e 

### to p r eserve i t for futu r e s tat e and federal re v kw . Thus
. the trial co urt did n o t err when it de ni ed Appe ll ant' s mo tion for a judgment o f acqu i ttal because the ruling" a s c o n s ist e nt v. ith Penn s y l v a ni a l aw a s state d s u pra . JI. I n hi s se c ond clai m , Appellant ar g ue s that th e 

### tn:i l c ourt 

### err ed when it 

### de n ie d Appe l lant' s 

### m o ti o n for ajud g ment '- 'f ac quittal be c au s e hi::. convicu o n v r e l ated the due pro c ess g u aran t ee s provided by the F o urteenth Amendment tu the Un it ed States C o ns tituti on and by Article I , § 8 o f the P enn s ) lvan i a C o nstitu tion , where hi s conviction wa s su pp orte d so l ely by the o u t
- of-court

s tat ement s o f witne ss e s v. h o recanted their accu s ati o n s at trial. 

### jury w as c harged 

### th at the y s h o u l d exa m ine 

### closely an d carefu ll y an d rece i ve with cauti o n the
s tatement of M i chae l Burton 

### if they fou n d th at he bel i eved h e wo uld rece i ve a be n efit on hi s op e n c a s e s in e x change 

### for hi s s tateme n t. Th u s. 

### i t was u p to th e J u ry as fact

- ti n der t o weig h the credibility 

### of th e witn ess ' st at e men t s 

### and their te s ti mon y 

### at trial. 1 h cr c fo r e . it wa s not error fo r 

### the trial court tu refu s e l o 

### give the 

### prop os ed s upplemental i nstruction 

### t o th e j u ry . 

# 1[ \'
. In h i s fou rth cl a im , A p pel l an t ar gue s th at th e tri. 11 court err e d w h e n 11 ove rrul e d de f en s e co un se l ' s
o bjec ti o n t o the C o mm o nw e al th 's s ummn tio n , whe r e th e prosecutor t o ld th e 1u1 ) that" u nes s M o nt alrnont chan ge d hi s . ...tory bec au s e he w a s a fr 11i d th at i t \\1 ) 1J! d · · g et nut in s tat e p ri s on th at he

wa ;i ,

...· i tn c!> s " whe n nu evid e n c e i n di c at e d th at 1\1 , mt a lr, ,u n t harbo r e d su c h t ears a n d th e pr o s ecut o r 's ar g u ment \\ 3\ n o t a lair r e x po nse r o an) th i n g arg u e d by th e d e f e n s e, 

### H erc, the trial co urt p r op erl y a dmitted the p o rti o n of th e s t at e m en t by th e witn ess M o n tal mont to a ho mi c id e det ec ti v e in w h ic h h e s t at ed th at. " I f thi s [M o nralm o nts coo per ati o n ] g et s o u t , 

### l wi ll be killed." O n the r eco r d. th e tri a l co urt s t ated 

### that th e s t at em en t wa s 

### a dmi ss i ble b e cause , " That's h i s s tate o f min d as t o wh y h e i s go i ng sou th
. . . H e is n ut say in g th at 

### th ey did


### an y thin g . 

### rt i s j u st what h e think s w ill happ e n . that ' s all ." (N 1
.. Vo l. 2. 

### J an . 1 5, 

### 2 0 H , 13 

### 7- 138 ). Th is si tuati o n i s si mil ar lo 

### Rag ~ m be c au s e th e e v ide n ce i s a dmi ssib l e t o s h o w the s tate o f rrun d 

### of the witn ess at the time o r th e d is cu ss i o n w ith the de t e cti ve .md r s r e le v ant 

### t o s h ow 

### a m o ti ve a s t o wh v 

### th e witne ss m ay 

### have re c a nt ed h is st atement at tri a l. T h us a d mittin g th e s t at em e nt docs n o t

cons titu t e t ill ab u s e 

### of di s cr e tion 

### b y the trial 

### co urt . T h e trial co u rt d id no t e rr w h en i t deni e d 

### A pp e ll a nt 's r e qu es t to r e da c t part 

### o f th e
s t atement by th e wi tness be c ause th e s tatem e nt was rel e van t t o s h ow w h y th e w itn ess m ay h ave
r ecanted his s tat eme nt at tri a l. Th e det e rmi n atio n of whether s u c h s tat e ment s are admi ss ibl e i s wi thin th e s o und disc reti o n o f the trial c ourt and w ill b e rever s ed onl y up o n an abu s e of th at d isc r e tio n . Co rn .\'

. Ra g an . 

### 538 P a. 2, l h
. 6 4 5 

### A
. 2 LI 811 , 81 8 ( l lJCJ.+)
. 

### In R a gnn , the S upr e m e 

### Court 

## l,r P e nn s y l v ania h e ld th at the fac t that th e w i tn ess w as co n s id eri ng th e idea o f n ut t es tify i ng agains t the de fendant wo uld s e em t o 

### disc r e di t hi s 

### s u bs equent t e s tim o n y in w h ic h h e


### renou nce d h is i d enti ficati on o l the defend ant and wa s a dm iss ibl e t o s how 

### th e stat e of mind of th e
w i tn ess at th e ti m e of the discu ss i on 

### with th e d e t ecti ve . Id
. at 8 I 9
.



# ~---- ---------- ............ .... £111 

# l

# A 10



### the wi tnesses w ere l v i ng i n th e i r s tat e m e nt s fo r th ei r ow n p e r so nal g ain. the pr osec u tor w as r espo n s e t o so me 

### thing s that we r e s aid b y th e d e fen s e . . , IJ
. 

### at 2 01
. Sin ce th e d efe n se ar g ued th at rl! L M J
. th e tri al c o u rt ove rrul e d th e def e n se's o bj ec ti o n t o th is c omment b ecau se · 'i t i s fair goi n g. t o ha v e a l ot of prob l e m s in h is li fe" , 

### ( N
. l'
. , V , , 1. 

### J. Jan. t o. 2 1Jl , 1
. ~0 1- 2 11 ::? )
. • \.~ 

### s t ar e d 1 1n th e priso n for a l u n g ti m e an d if it ge t s out 

### in sta l l! pri so n 

### that h e wa s , 1 wrtn css 

### in a h o mi cide
. .. h e i ~ 

### id e ntifi catio n s that h e made o f th ese: t wo 

### peopl e. Wh y? Be c au se he ha s t o go had. to s tate Here , the pr osecu t o r ' s co mment th at, " [The witne ss 

### 1 distanced 

### him s el f fro m the 

### e v a lu at ed under a harml ess err o r s tandard
. Id
. at I 

### O:!O. tu weig h th e e vi dence ob j c ci i v 

### e l y and render a true ver d ict 

### Pr os ccut o ri al mi sco ndu c t i s formin g in 

### their mind s a fi xe d b i as a nd ho s tility t o w ar d the 

### def e ndant , thu s 

### impedin g th e ir ab il i ty 

### place unle ss th e unavo i dab le effec t 

### o f th e c omment s at i ssue wa s t o pr e judi ce the [ur o r s b y 

### c an rea so nabl y be dcnved 

### from th e e vid e n c e . Further , pro se cutonal mi sco nduct d o e s n ot t ake ar g u me nt s and h is ar g um e n ts are fair il th ey 

### are s u p p o rt e d by 

### th e e v id e n c e o r u se inferen ces that ( Pc1 .S up t: r. 2 0 UO)
. 1l i s w ell settle d th at a pro s e c ut o r 

### ha s co nsiderable latitud e duri n g d osi n g . 

### w h e th e r a d e f

e nd a n t r ec e i v ed c1 fa i r 

### tri al , not a 

### perfect trial. Co m. v. 

### Jud y . 9 78 A .2 d IO 1 5 , l lJ l 9 

### pr osec ut o rial r e m ark s and an a lle g ati o n o f pro s ecut o rial mi s conduct r e quir es 

### an e v a luati o n JS 

### t o th ey wer e mad e. C om . v. S a mp so n . 9 0 0 A.2J 88 7 890 (PJ .S up c r. 2 00 6 ). Our 

### r e view o f 

### c o mment s c ann o t be v i e w e d in i so latio n but. rather. mu s t be c onsider e d in the c on text in w h ic h it i s w e ll s ettled th at i n r ev iewin g 

### nr os e c ut o rial remarks t o d e termin e their prejudi c i al quality. e v id e n c e . W ith 

### spec ifi c refer e n ce tu a c laun o f pr os ccutorial mi sc onduct in J c l os in g 

### s tatem e nt, ar g um e nt s and th e s t atement w as an inferen c e which co uld b e reasonabl y dcnvcd 

### from th e C omm o nwealth 's su mmation b ecau se a pro s ecuto r ha s con s iderable l atitude durin g cl os in g The trial c o urt did not err when 

### it o verrul e d d e fen s e counsel's obje c tion 

### t o the

# An

Fu rther. a p r osecu t or i s al low e d t o respo nd 

### t , , d efe n se ar g um e nt s w ith l og i cal fo rce and v i go r . 

### Corn
.. v . Chmiel, 585 Pa
. 5 4 7. h20, 

### 889 A.2d 50 1 , 544 ( 2 00 5 )
. I f d e f e n se 

### cou n se l h as attacked [h e trial co urt did 

### n o t e rr \\ h e n i t overrul e d 

### d e fen se co un s el ' s 

### o bj e c ti on to th e Commonwealth ' s s tat e ment i n c l osing ar gu m e nt because the p ros ecut o r i s al l o w e d L o 

### re s p o n d t o d efense argume n ts with l og i cal fo r c e and vigo r. Imp rop e r b o l s t e rin g o r v ouc hin g fo r a gov ernm en t w itn ess 

### oc cur s w h ere th e p rosecu t o r ass ur es the 

### ju ry that the witne ss 

### i s c re di b l e a nd 

### such assuran ce is based o n e ith e r 

### th e prosec ut o r' s 

### pe r sonal know l e dg e or o th er in fo rmati o n not contai n ed in the r eco rd
. Co m . ,• . C'1 )u s;ir, 593 Pa. 2 04 212. 92 8 1 \ .2d 

### I 025 

### I 0 4 1 (2007)

. 

### I Ioweve r the prosecu t o r m ay co m ment o n th e c r e di b il ity o f witn esses. 

### Co m \ '. Jo n es. 57 1 P a. 11 ~. 8 1 1 A2J 994. I 006 ( 2002) Cum
. v Si mm o n s, 54 1 P..i
. 2 1 1. 662 A. 2 d ,, 2 1 639 ( I Q9"). V
. ln hi s fifth cl a im , 

### App e ll ant argue s 

### that the 

### trial c o urt e rr e d when it 

### ov errul e d defen se 

### co u n se l s objectio n 

### to th e Co rnm o nw e a 

### Ith 's im p r o p e r vo u c h i n g, 

### w h e n the pro sec ut o r rep e atedly 

### t o ld th e ju ry th at " the stat em ents that th e) {th e a ll eged e y ewi tne ss e s ] g ave t o th e h o mi c ide detec tiv es are U1 e truth
. " 

### all owed t o re s p o nd to thi s ar g ument b y offerin g a re aso n supported by the eviden c e as t o wh y th e
w itne ss m ay h ave r ec anted h is s tatem e nt at trial
. H e rc , 

### th e pr os e c ut o ri al c omment s we re a proper int e r e n c e 

### taken fr o m evid en c e in the r eco rd. s peci fical l y Mr. M o ntal m o nt 's s tat e m e n t th at h e wus i n fe ar u f b e in g labeled a s nit c h
. F u rtherm or e , it c annot he found th at th e un avo i dabl e eff e c t of th e co mm e nt s at issue was t o prejudi ce 

### th e jur ors b y termi n g in their mmd s a fixed bi as


### and h ostil ity tow ard s th e d e fe nd a n ts, 

### thu s i mp endin g their abi l ity to w e i g h 

### th ee , id e n ce objec u vely and r e n d e r a tru e verd i ct. Thu s , the 

### tri al co urt 

### did n o t err 

### when it o verruled <le fense


### counse l 's objec ti o n t o thi s r em ark m a d e durin g th e p rose cut o r 's d o sing ar g ument . - - -- - 4, ' 

# 1

# A 12 

### By th e Co urt : cou rt sho ul d b e a ffi rmed
. B a se d o n th e fo re goi n g , A p pe ll a nt 's m o ti o n s hould be d e ni e d and th e rulin gs 

### of the rn al C ON C LV S ION 

### pr osecutor' s cl osi n g ar g um e nt . cou rt 

### d id no r err w he n 1 t ove rrul ed d efen s e co un s e l's o bjecti o n to th e r e m ark s mad e du rin g th e d e f e n se 

### cou n sel' s ar gument a s t o the i r inc red ib ility w i th l og i ca l force 

### an J , i gor . T hu s. the tn al wen: tru e. II e re , th e prosecu t o r c o m ment e d on th e c redi b ility of th e witn ess e s in re s p o n se to T h e pr os e cuto r was a ll owe d to 

### r es pond m hi s cl osi n g argum e nt that the witnes ses' s tatem e nt s T he argu m e n t o f d efe n s e co un s el wa s th at the s t at e m e nt s g iv e n by the w i tnes s e s we re 

### n o t tru e . t es ti fi ed u n J cr oath be fo rt : 

### and wh at does h e t e ll yo u '? It i s aJI a hun c h of li es . " I d. at 1 78 -1 79
. con t i nu e d
. " [Th e s t atem ent ] i s bog u s . i n hi s w o rd s and he ge t s o n the s t and and h e h as n eve r t~, o g u ys as 

### b ei n g i nv n l v c d m thi s." ( N. T
.. Vo l. J, J a n . 1 6, 2 014. I 74 ). 

### D efe n se c oun s el c o u rt ro( )JTI an d n o body , n obo dy walk e d 

### m at an y p o int i n ti m e and i d e ntifie s e ither on e o f th ese H erc. d e f e n s e c o un sel s tat e d i n hi s d os in g ar g um e nt that. " Y o u ha v e a w itn ess 

### s t an d i n a w i tn esses ' c r e d i b i li ty . Id
. th e cre d i bil i ty of witne sses i n clo s ing , th e pro se cut o r may pre s ent ar g um e nt a ddr ess ing th e