J. A33004/15 & J. A33005/15

 

* 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 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, 
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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.
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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.
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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.
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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.
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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 
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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-
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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.
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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.
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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.” 
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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 
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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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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 
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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 
J. A33004/15 & J. A33005/15

- 20 -

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
.41 

Appeal 

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

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

June 18. 2014. 

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

6108 and PIC. 

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

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

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

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

Crime (PlC) 

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

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

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

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

PROCEDllRAL HISTORY 

Dcfino-Na~tasi. 1. 

NOV 1 3 2014 

Criminal Appeals Unit 

First Judicial District of PA 

OPfNION 

FILED 

MICHAEL HUDl> 

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

CRIMINAL TRIAL DIVJSJON 

JN THE COURT OF COMMON PLEAS OF PHDJAD~LPHl1\ 

l Circulated 01/29/2016 04:28 PM
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 

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 ). 

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). 

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). 

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). 

T 
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 

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), 

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). 

At trial. Mr. Burton stated that he was coerced into giving. the answers in his statement. On crossexamination, 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). 

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) 
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~. 

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 ). 

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 l 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. 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 ). 

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) 
As 

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~). 

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). 

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). 

15,2014. 170-180}. 

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. 
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) 

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

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. 

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 ). 

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. 
A1 

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 

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. 

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.). 

~111111•zrsmma 

T 
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 

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. 

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. 

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. 

1 
[\'. 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, 

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. 

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. 

 ................ £111 

l 
A 10 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. 

whether a defendant received c1 fair trial, not a perfect trial. Com. v. Judy. 978 A.2d IO 15, l lJl 9 

prosecutorial remarks and an allegation of prosecutorial misconduct requires an evaluation JS to 

they were made. Com. v. Sampson. 900 A.2J 887 890 (PJ.Supcr.2006 ). Our review of 

comments cannot be viewed in isolation but. rather. must be considered in the context in which 

it is well settled that in reviewing nrosecutorial remarks to determine their prejudicial quality. 

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

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

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

The trial court did not err when it overruled defense counsel's objection to the 
An 

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 

[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"). 

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." 

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. 

1 
A 12 

By the Court: 

court should be affirmed. 

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

CONCLVSION 

prosecutor's closing argument. 

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

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

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

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

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

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

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

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

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

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

witnesses' credibility. Id. 

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