### J. S33003/15

NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : KELVIN MONTERO, : No. 452 EDA 2014 : Appellant : Appeal from the Judg ment of Sentence, September 10, 2013, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP - 51 - CR - 0000977 - 2012 BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2015 Kelvin Montero appeal s from the judgment of sentence entered on September 10, 2013 in the Court of Common Pleas of Philadelphia County. The sole claim presented on appeal concerns whether the prosecutor committed misconduct during the Commonwealth’s closing argument. No reli ef is due. Saul Rodriguez and his companion stopped appellant from physically abusing his girlfriend at the Puerto Rican Day Parade at 5th and Cambria Streets. Appellant and his cohort, John Perez, fought with Rodriguez and then left the area, returning several hours later with a loaded semi - automatic weapon. After failing to find Rodriguez, appellant opened fire into the street in several directions; approximately 30 shots were fired. Jesus Rivera, a 16 - year - old bystander, was struck by two errant bul lets and

### J. S33003/15

- 2 -

died of gunshot wounds. The defense presented alibi testimony averring that appellant was at his girlfriend’s home at the time of the shooting. Following a jury trial, appellant was convicted of conspiracy to commit murder. 1 

### Appellant was sente nced to a period of incarceration of 18 to 40 years. Appellant filed a timely post - sentence motion, which was denied on January 14, 2014. On February 8, 2014 this appeal was filed. Again, appellant argues that the trial court erred by denying his reque st for a mistrial based on prosecutorial misconduct. (Appellant’s brief at 4.) He claims that the prosecution’s repeated comments during closing argument that the alibi witnesses were lying created a fixed bias with the jury. In its Rule 1925(a) opinio n, the trial court finds appellant’s claim concerning the use of the term “lying” to be waived for failing to specify this ground as a basis of his motion for a mistrial. The trial court explains that the defense request for a mistrial identified the basi s for the motion as the prosecutor’s alleged expression of “personal opinion.” ( See notes of testimony, 7/19/13 at 105.) During the motion for the mistrial, defense counsel subsequently referenced the “objections that you sustained”; but

1 

### The jury failed to reach verdicts as to the charges of first degree murder, carrying a firearm without a license, and possessing an instrument of crime; thus, the Honor able M. Teresa Sarmina declared a mistrial as to those charges. A second trial resulted in convictions as to all three crimes. Appellant’s separate appeal from those judgments of sentence are pending before this court at No. 1452 EDA 2014.

### J. S33003/15

- 3 -

again, did not specifically identify “lying” as an additional ground for the motion. As the Commonwealth notes, “[i]t was instead [The Honorable M. Teresa Sarmina] who referred to ‘lying’ when differentiating the ‘sustained’ objections from the remarks supposedly based on ‘personal opinion’ that were advanced as the ground for the motion.” (Commonwealth’s brief at 9, citing notes of testimony, 7/19/13 at 89, 91, 95, 106.) We agree that this issue could be found waived for failing to explicitly identify lying as a basis for the mistrial motion. In any event, if we were to address appellant's challenge, he would not be entitled to relief. After a thorough review of the record, the briefs of the parties, the applicable law, and the well - reasoned opinion of the trial cou rt, it is our determination that there is no merit to the question raised on appeal. We determine that Judge Sarmina ably and comprehensively disposes of appellant’s claims in her Rule 1925(a) opinion; thus, we will adopt it as our own and affirm on that basis. ( See trial court opinion, 5/7/14 at 5 - 11.) Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 7/8/20152 The figh1 had occurred o n S eptemb er 25, 2 0 11 at the Pu ert o Rican Day Parade. N .T. 7 /16/20 1 3 at 200

- 201. TI1e

festivities had carried on past midnight, into the 26 1 h , when this shooting too k p l ace . 

### li at 1 50

- 152. 1 18 Pa .C.S. § 9 0 3 . The defendant had been charged with four crimes : murder, co n sp iracy ro commit murder, firearms n o t to be carried withou t a li cense, and poss e ssing instruments o f crime (PIC) . No te s of Testimony (N . T . ) 7/22/2013 at 5 2 . The j ury c o uld n o t reach a verdic t with respect to thre e o f the four charg e s - murder, firearms not to be carried without a license and PI C - and a mis trial was declared as to th ose. W,. The d efe n d ant was re - tri e d fo r those thre e crimes in December 2 0 13, and was convicted o f all three . N.T . 12/20/2013 at 43

- 44 . Post sentence motions were denied as to th os e c harges o n April 23, 2 0 14. from the gun s hot wounds . Id. at 154; N . T. 7 / 1 7 /2013 at 23 . 152. A 16-year

- old boy, J esus Rivera Qcs u s), was stru c k by two o f d e fen dant's err an t s h ots and died s h ooting approximately 30 s h ots dow n the street N o te s of Testimo n y (N.T.) 7 / 1 6/2013 at 150 - him, o n Sep te mber: 26, 20 1 1) the de fen d an t o p en ed fire at the corner o f 5th and C ambri a Stree t s, After searc hing for a m an with whom h e ha d fo ug ht earli er in the day 2 an d f ailin g to find 

### FACTS this Court on January 14, 20 1 4. On Feb ru ary 8, 2 014, a timely n otic e o f appeal w as file d. impriso nment. On Sep tember 17, 2 013, po st-s entence m oti o ns were fil e d , w hich were denied by date this Co urt se n te n ce d th e defe nd ant to a term of not less th an 1 8 y ears n o r mo re than 4 0 years c o nsp ir acy to c o mmit murd er (F -1 ) . 1 S en te ncin g wa s deferre d until Septe mber 10 , 2013, o n whi ch On July 22, 2013, fo llo w in g a jury trial, Kel vin M on tero (the defend an t) was fo u n d 

### guilty of 

### PROCEDURAL HISTO R Y OPINION Sarmina,J . May 7, 2014 

### Superi o r Court N o . 452 EDA 2 014 v . 

## M AY O 

## '1 2 0\4:

C ri m i n al Appeal s U nit KELVIN MONTERO 

## Fi rst Judic\a\ O i s t nct 

## ot PA CP

- 51-CR

- 0000977

- 2012



# FILED COMMONWEALTH

PHILADELPHIA COURT OF COMMON PLEAS 

### CRI M INAL TRIAL DMSION .,

. I • ' t. 

# • • Circulated 06/26/2015 02:14 PM

### 2 i Perez wa s initi ally charged a s a co - defen d anr. Price to j ury se le c ti on , o n .Jul y 1 5 , 20 13 , Perez entere d a n egotiated guilty plea to murder of the third deg ree (F-1) , criminal cons pir acy (F- 1 ) , an d pers ons no t to p osses s fire arms (F

- 2) . 1 8 Pa . C.S . §§ 2502(c) , 903, and 6 l OS( a )(l), res p ecti vel y; N .T . 7/ 1 5/2 01 3 at 2 6. P er the n eg otiati ons, thi s Co urt s e nte n ced Perez to an a ggregate term o f no t l ess th an 22-an d

- a - hal f years n or more th an 4 5 year s i mprisonme n t. N. T . 7/ 1 5/2 013 at 30 . 4 Rodriguez pr o vi ded a st ate m ent abo u t th is enco unter t o De tec tive J o seph B amb erski. When R odrigu ez w a s c all ed to testify , he recan ted hrs p rio r stateme nt . N.T. 7 /17 /2013 at 122 -1 2 5 . Ro drigu e z c on firme d that b e si gn ed an d adopte d his prio r statem ent . Id. Acco rdin g l y , R odrigu e z' s ac c o un t o f the eve n ts of Septe mber 25 , 20 1 1 was admi tte d fo r it s truth pursua.at to 

### C ommo n w ealth y . 

### B rady , 71 A. 2 d 34, 36 (Pa.S up er . 19 8 7 ) ~ ; Co mm o nw e alth v . 

### Li vely, 7 03 A. 2 d 467 (Pa . Super , 1 997) ~), and their p r og e ny. l Ang e l Ducvo's nickname is " Abo." N.T . 7 /16/2 013 at 203. 7 /17 /20 1 3 at 142. One o f the people with whom the defendant sp o ke, Angel Figu er o a, te s tifi e d S treets w earin g b lack ho o die s, lo okin g for Rodriguez and hi s friends . N . T. 7 /16/2 013 at 2 07; N.T. Later that night, around 12: 00 AM , the defendant and Perez re turned to 5th and C ambri a exi ted th e v ehi cle, and confro n ted Rodriguez , who ab and o ned his p ur suit . Id. pursued the defendant During the chase , John Perez (P erez)' arrived on the scene in a red truck, Id. at 1 34-135 . The defendant then ran away, mounted a bike, and rode off . Id. at 136. Rodriguez speaking with the 

### girls, the defendant became angry , return e d to the car, and punche d Rodrigu e z . Rodrigu ez approached the car and s poke with the girls therein . Id. at 134 . Upon seeing Rodriguez At s o m e p oint thereafter , the defendant exited the car . As the defendant walked away, 7 / 1 7 /201 3 at 13 3. polic e b ro ke up th e .fi g ht, and the defe n dant and V asquez retreated to Vasquez's mother ' s car. N . T . 13 3. 

### A fi ght bro ke o ut b etwee n th e defendan t and Ducvo. N . T. 7 /16/2 013 at . 2 04. Ev entuall y, th e th e d e fend an t s trike V a s quez and came t o h er defen s e . " N .T . 7 / 1 6/201 3 at 2 0 2 ; N . T. 7 / 1 7 /2 013 at 201-202; N.T . 7 /17 /201 3 at 13 2

- 1 33 . A n g el Duc vo (Ducv o)3 an d S aul R odri g uez (Rodriguez ) s aw h er do wn th e s tre e t , pu s hed her hea d in to a g ate , and s lapped her 

### .in th e fac e . N .T . 7/ 1 6/2013 at 200

- 201; N.T. 7 /17 /2013 at 13 2. The d efendant forc ib l y re move d Va s qu e z fro m the c ar , w alke d Vasquez (Vasquez) , seate d in a car at the c . o rn er of 5th and Camb ria Stre ets . N .T. 7 / 16/2 01 3 at At app roximately 8:30 P M the p rev i ous eve nin g, th e d efe nd an t fou n d hi s g irl fri end, Cy n thia 

# • •• Circulated 06/26/2015 02:14 PM3 9 For ease of disposition, this Court has rephrased the issues raised in the defendant's S la ternent of Matters C o mplained of on Appeal pursuant to Pa.R.A . P . 192S(b ) ( l 92S(b) Starcmcnt). • Associate Medical Examiner, Dr . Aaron Rosen, testified that one of the bullets penetrated the right side of Jesus ' s b o dy below his armpi t, This bullet passed through the thoracic cavity and 

### J esus's rig ht rung, causing internal bleeding. Dr. Rosen stared that the other bullet was retrieved in the upper right arm and fractured Jesus's humerus . N . T. 7/ 17 /?JJ13 ar 25-27. The cause o f death was determined to be the gunshot wounds . l.ri . at 24. · 7 At the: crime scene, 30 fired cartridge casings (FCCs) were found. At 12:40 AM Officer Brian Waters responded to a call on 5th and Cambria Streets to look for a burgundy Ford P-150 pickup truck. N , T. 7 /16/2013 at 110 . Officer Waters stopped the truck, which was being driven by Perez . ld· at 112-116 . The Ford pick

- up was taken in to the polic e station as evidence . N . T . 7/ 17 /2013 at 71. A later search of the truck revealed a Glock 9lv1M handgun on the right side of the: front dashboard . Id. at 79 . TI1e search also uncovered court documents with Perez's and the defendant's names . Additionally, tw o handgun magazines were found : one empty 30-round magazine and another full 15-round magazine . 

### hi. at 80; N .T . 7 / 18 /2 0 13 at 115

- 116. Officer Lawrence Flagler, a ballistics expert, determined that all 30 FCC's were fired from the 9mm handgun found in that truck. N.T . 7/17 /2013 at 242 . 6 Keyshla Rivera, Jesus's sister, identified the defendant as the shooter. N.T. 7/16/2013 at 168 . Ducvo identified the defendant as the shooter pursuant to a photo array compiled by the police. N.T. 7 /17 /2013 at 196-97. During the shooting, Ducvo did not actually sec the shooter's face, but he was able to recognize the defendant as the shooter based on their earlier encounter, wherein the two had engaged in the fistfight. N.T. 7/16/20 ' 13 at 204; N.T . 7 /17 /2013 at 195- 197 . Ducvo's prior statement was also admitted for its truth pursuant to~/~. 1. The verdict was against the weight of the evidence. The defendant raises the following issues on appeal:" LEGAL ANALYSIS 

### 103-04. defendant on the second floor of a home 

### in the Hunting Park neighborhood of Philadelphia. Id. at had been issued N.T. 7 / 17 /2013 at 95-97. On November 1, 2011, Detective Burke found the The search for the defendant commenced on September 28, 2011, after an arrest warrant to 

### his right arm, and fell to the ground. 8 Id. at 154; N.T. 7 /17 /2013 at 25-27. Jesus could get to safety, he was struck by two bullets, one to the right side of 

### his torso and another 150. Keyshla and her 16-year-old brothcr,Jesus, tried to run for cover . gl at 155-56. But before that the defendant was "shooting all crazy like everywhere and bullets was going everywhere . " Id. at opened fire , shooting 30 times in all directions, " Id . at 

### 95, l 50. Keyshla Rivera (Keyshla) testified that he possessed a gun. N.T. 7 / 16/2013 at 208 . After speaking with Figueroa, the defendant " that while the defendant was searching for Rodriguez, he was reaching to his waist as 

### if to indicate 

# ., 

# . Circulated 06/26/2015 02:14 PM4 1 0 I n his t 925(b) St ate men t, the d efen dant claims th ar thi s Co urr erre d b y re fu s ing to grant the d efe ndant 's m o ti o n for arrest of j udgme n t, as th e verdi c t w as th e res ult o f pros ec utorial misc o ndu c t, " wh erein th e pr o s ec ut o r sai d , in spi te of the Cou rt s u st ainin g d efen s e o b j e cti o n , at leas t s e v e n (7) rime s th at the alibi witn e ss e s wh ere [si c ] lyin g. · (See 7- 1 9

- 13 N.T . , p . 77, 8 8, 93, 95 ). " 1 92 5(b.) S taternem , 3/ 4/2014, at 1- 2 . There are tw o issu es with this cl aim of erro r. Fir s t , d efe n se co uns el made a m otio n for a mistrial, n o t ll moti o n for arre st of j udgment. N . T. 7 / 1 9 /2013 at 1 05 . In fact, a m otio n for arres t o f j udgm e nt w o uld be an imp ro p er v ehicl e to rais e a claim o f prose c uro ri al mi sc o ndu c t . No j u d gme n t h ad y et been enrcred s o no n e co ul d be arre s ted . Th e ap p r o pri ate m ec hanism to c hall e n ge. prosec uro rial misco ndu ct is thr o ug h a m otion fo r mistrial . ~ Pa . R.C rim .P 605(B) ("Wh e n an eve nt pre j u di ci al to the d efe ndan t occ ur s during tn al only th e defe n dan t m ay m ove fo r a mistrial ") . Seco nd, de fen se counsel's m o tion fo r a mis trial wa s n o t b a sed o n the pr osec u tor ' s repeated co n tentio n that alibi wrtnesses were lying " in s pite of th e Co urt s u s t ai nin g d efe n se ob j ection . " Defense coun s el speci fi ed th at h e m oved for a mi s tri al bec au s e of"re pe ate d e xpressio n s of p er so nal - the pr osecuto r 's per sonal op ini on" . N.T. 7 / 1 9 /2013 at 105 . The d e fendant' s c laim th at th e pro sec ut or i gno re d s u s tain e d objectio n s h a s been w aived 5" C o mmo n w e alth y. Duffy , 832 A. 2d 1132 , 1 13 6 (Pa.S up er . 2003 )(" [ A ]n App e ll ant may n ot r aise a new theory fo r an objectio n m ade at trial o n hi s app eal. "). T hi s Co urt will address the claim of pr o s ec u to rial mis co ndu ct that was pre serve d at tri al: th at the prosec uto r impro p erly ins erte d h er p ers o nal opinion 

### into b e t cl osing argument. p ermit re vie w ," hi s claim has been waived . again st the wei g ht o f th e evidence. A s the defendan t' s weight o f the evidenc e claim is "too va gu e to here, th e defendan t pro v ides this C ourt with no justification a s to w h y or how the verdict was weight o f th e e vi dence as to the charge of criminal conspirac y to commit murder. " A s in S i eber!, I n the c as e su b

J udic e, the defendant ' s 1 925(b ) Statement reads, " The v erdict was against the . . " Id 6" penmt revie w . _ . at ~- T h e Superi o r C ourt found that th e defendant's weight of the evidence claim was " to o vague to " The verdic t o f the j ury was again st the weight o f the credibl e e vidence as to 

### all th e charges ." Id. v . Seibert , 7 9 9 A.2 d 54 , 62 (Pa.Super 200 2 ) . 

### In Seibert , the defendant ' s 1 9 2 5(b ) Stateme nt s tate d, th e b urden to s p ecify w h y or how th e v erdi c t is again s t the weight of th e e vidence. C omm on wealth Wh e n rais ing a claim th at the v erdi c t is ag ainst the w eight of the evi dence, a defendan t bear s waived. murd er was against the weig ht of th e ev i de nc e. For the reas o n s set forth bel o w , thi s claim ha s b ee n Th e de fe ndant's first cl aim is that t.he verdi ct a s to th e charge of con s p iracy to commit 

### Weight of the 

### Eviden c e 2 The ev iden ce wa s in suffic i ent co sustain a co nv ictio n for crimin al consp iracy t o co mmi t murder . 3. Th e trial court erre d by re fus ing to gr an t the d efe nd an t's m o ti o n for a mis trial. " ~ 

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### 5

S u .iiciency of the Eviden c e The defendant 's s econd c laim is th at the evidence was not su f ficient to sustain a verdic t for co n s p ir acy to c o mmi t murder . Thi s cl aim ha s al so been waived. 

### When reviewing 

### a s ufficiency claim , the court must "examine whether the e vidence admi tte d at trial, and 

### all reasonable inference s drawn therefrom, viewed in a lig ht m o s t favorab l e to the Co mmonwealth a s v erdic t winner , support the jury's finding of all elements of the offense beyond a reasonable do ubt." Commonwealth v. Mo n tal vo , 598 A.2d 926, 932 (Pa.Super . 2008). However, a sufficienc y of the evidence 

### claim is waived if the 

### 1925 (b ) S t atement fails " to specify the element or elements up o n which the e vid e nc e was insufficient" Co mm o n we alth v . W illiam s, 958 A.2d 1252, 

### 1257 (Pa . Super . 2008). In the present case, the defen d ant state d o nl y that "th e evid enc e was ins uffi cie nt to s upp o rt the verdict of 

### guilty as to th e c h arge of criminal c o nspir ac y to co mmi t murder . " Th e de fen d ant makes no assertions a s to why th e evidence was insufficient, no r do es he poin t to an y eleme n t that the prosecution failed to prove. Therefore , due to lack 

## of specifi c i ty in his 192 5 (b) Statement, the defe n dan t' s sufficienc y claim is waived . 

### Prosec u toriel Misconduct The defendant's final claim is that this Court erred by de n y in g defense counsel's motion for mi s trial on the groun d s that the prosecutor committed p r osecutorial misconduct. After the prosecut o r ' s closing argument, defense counsel moved for a mistrial because of "repeated expressi ons o f personal - the prosecutor ' s personal opinion ." N . T. 7 / 19 /2013 at 105-06 . This C ourt c orrectl y denied defen s e c o unsel' s motion, as th e prosecutor did n o t proffer an imp ro p er per so nal o pinion and , furthermore , the pro s ecuto r 's comments did not dep rive the defendant o f a fair and impartial trial. ~ 

# . . • Circulated 06/26/2015 02:14 PM

### 6

s tate d th e evidenc e intr o duced at trial. 407 A . 2d 8 7 0 , 873 (Pa.Super, 1 979) . In cl o sing, the prosecutor had o f "I think," and fou n d that preface to b e permissibl e where the subsequent inferenc e was bas e d o n o n Co mmonwealth v . Gunderman, in which the Superior Court similarl y analyzed a prosecutor's use Id. at 499, q uoting Commonwealth v. Martin, 416 A.2d 1102, 1104 (P a. Super. 1 9 79) . Stafford relied but rather was intending to "' urge th e jury to make a fair infere n ce from the facts a d duced at trial . " : improper, a s th e pros e cutor was " not attempting to express 

### his personal belief as to the ev i dence ," Th e Staffqrd Court held that the p r osecutor ' s use of 

### " I think " an d "We think" was not Id . at 498 n .8. " I don ' t think that the fact that we di dn 't fin d g reenho us es s up p ort s the p roposi ti on th at Mr. Walburn was try in g to set anyo n e up and I think th e e vide n c e s u ggests - [ O bj ection ] . " At another po in t, he arg u e d "I don't think th ere' s an y evid e nce that makes an y p aint cans or odor of paint or anything signifi cant he re ... [O b jection ] ." At a third point, the prose c uto r argued "we think th at he po s sessed that c ontro ll ed s ubstance there with in tent to manufacture, based - [O bj ection]." there made the following remarks : statements about the e vide n ce introduced at trial with, "I think" ot "We think." I d. The prosec u tor S tafford, 749 A.2d 489, 4 98

- 99 (Pa.Super , 2000 ) . In Stafford, the p r osecutor prefaced a nu mber o f based on the facts introduced at trial and the "legitimate inferences" therefrom. Commonwealth v. mi s conduc t 

## .J.illh, 978 A.2d at 1 020 . It i s well settled that a prosecutor's closing argum e nt must b e A pros e cut o r ' s expressi o n of his o r her perso n al opinion during s ummation constitutes d e gree o f res ultin g prejudice . I d . gran ted, a tri al c o urt must ( a ) analyz e w h ether mi s conduc t actually occurred , and (b) ass e ss the Judy , 978 A.2 d 10 1 5, 101 9 (P a . S uper. 2009). Wh e n determining wheth er a mistrial sh o uld be " may b e reas o nabl y s aid to deprive the def e ndant of a 

### fair and impartial trial." Co mmonw e alth v . A trial c o urt i s v e sted with discretion to grant a mistrial when 

### an allegedly pre judicial even t 

## · ~ 

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### 7

s uch a nature that 

### its unavo i dable effect is to deprive the appellant of a 

### fair and impartial tribunal. " (Pa .S uper, 2 0 09 ) . A mist.ri al is an e x treme remedy that will onl y be granted "when an inciden t i s o f ev id e nce o bj ec ti v el y and reachin g a true v erdic t. C ommonwealth v . Harri s, 979 A.2d 3 8 7 , 3 9 8-9 9 

### will n ot warran t a mistrial unles s i ts unav oidable eff e ct 

### is to tender the jury incapable of we i ghing the s tand ard s" an d "o verstep [s] the accep t abl e balan c e of the principles o f summation ," that s t atement be viewe d 

### in a vac uum ; even where a prosecut o r ' s statement "excecd[s] th e acceptable b o unds and C ommonwealth v . Ragland , 991 A.2d 336 , 341 (Pa.Super . 201 0). Each isolated commen t sh o uld n ot A sse s sing the degre e of prejudi ce require s evaluating a prosecutor 's statements in con tex t. still e v aluate the prejudice ex acted b y the misconduc t in order to decide whether to grant a mistrial. In situations where a prosecutor has, in fact, made an imp roper statement, a tri al court must e vi dence . This type o f argumen t is p ermissible . " 

### hi. prosecutor belie v ed appellant to be guilty; rather , the prosecutor argued an inference based upon the "The p rosecutor did not argue that the jury should find appellan t 

### guilty simply b e c aus e the Gunderman's wi f

e had realized s h e sounded incredible, and tailore d h er testimony accordingly. was not with her husband ' twe n ty-four hours a d ay.' Based on th at, the p r osec u tor arg u ed that Mt . were together fo r a s i gnifican t period of time ; she later re treated fr o m th at statement, noting that she out that 

### Mr . Gunderman ' s w i fe originally made a statement suggesti n g that she and her husband credibility wa s a proper inferen c e based on the evidence before the jury. The pro se cutor pointed The Gunderman C ourt found that the prosecutor's statemen t about Mr. Gunderman's wif e' s Id. ( emphasis added ). Wh o ha s a greater intere st, other than 

### Mr. Gunderman, in the re sult s o f thi s c a s e? I s ubmit to yo u that 

### it is hi s wi f

e . S he als o tells us that he was with h er fro m tw o o'clo c k in th e m orning o r tw o o' cl oc k in the aftern o on until m o rning . 

### I think she began to 

### s ee ju s t h ow 

### di ffic ult that mi g ht be to beli e v e w h e n sh e said 'I 

### don't me an twe nty - four h o ur s a day, th o ug h.' Again , doe s she mean fro m th e first day of her pregnancy o r that sh e kne w s he w a s p re gnan t? Did he become such a concerned father -t o - b e that at that point, h e began s p e ndin g ev ery s o li d day with her ? Test her interest. Test her testimony and her deme an o r o n the stand. Circulated 06/26/2015 02:14 PM

### 8

At trial , B o b e als o claimed that th e defendant was present inside the A Stteet residenc e on th e ni g h t o f th e murder . Bobe te s tifi e d that sh e slept on the s ofa inside the h o me and w o uld hav e kn o wn i f the defendant ha d l e ft . Id, at 3 09 . On cr o ss-examination , the pros ecutor intro duc e d e vi de n ce o f B o be 's close re lati o nship with th e defendant: Bobe had recei ve d money from th e de f e n d an t in th e pa s t to p ay for ga s; o n Jul y 2 7, 20 1 1 , after his arres t o n an unre lated charge , B o b e p oste d bail fo r th e defendan t - $5 1 0 - to ge t him o ut of jail . Id. at 3 25

- 3 3 . B o b e also p ermitte d th e de fend an t to s l eep o vernight 

### in the s ame roo m with h er u n derage daughter. N.T . 7 /18 /20 13 at 32 5 - 33. 19 7 -2 00. Co mm o nw e al th 

### v . Jo hn so n , 719 A.2d 77 8 , 7 8 7 

### (Pa.Sup er. 1 998); ill 

### ihQ Co mmonwealth v . 

### C hmi el , 8 8 9 A. 2 d 50 1, 5 42 (Pa. 2 0 0 5) (" [P]r osecu to rial misc o nduct d o es no t oc cur unl es s the unavo id able effec t o f th e c o mment s at issu e wa s to p re j udic e th e jur o r s b y fo rming 

### in the ir mi n d s a fixed b i a s an d h os tility to ward the defendan t , thus imp e ding their ability to w ei gh the e vidence o bj e c tive l y and re nder a tru e verdi ct." ) . In th e c as e s u b

J udi ce, defen se c o unse l moved fo r a mi s trial o n th e gr o unds that th e pr o sec u tor impr o perl y ass erted her per so nal o pini o n . As noted below, be c ause the prosecuto r 

### mad e permi ssibl e in ferences r ooted in ev idence , her c o mments did not co n stitute misconduct. A t trial , the defendan t called his former girlfriend, Vasquez, and her mother, J eanette Bob e (B ob e) , as alibi witne ss es . N.T. 7 / 1 8 /2013 at 170, 300. Vasquez , who was o nly 16 y ear s old at the time o f the s h o oting , wa s living with Bobe at 3420 A Stteet 

### in Phila d elphia. Id. at 206. Vasquez testified th at, o n the night o f the shooting, the defendan t s l ept bes id e her in her mother' s house for th e entire night. Id. at 1 77 . The prosecutor imp eac h ed Vasquez with a p ri o r s t ateme n t that she had gi ve n to p o lice o n January 25, 2012 : V asquez had told police that the defendant drove his car fro m h er hous e o n th e nigh t of th e sh o oting and that s h e did n ot see him again until the next day. Id. at 

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### 9

ADA DONNELLY: Ladies and gentlemen, it's the evidence that all points to this defendant from the witnesses who were at that scene. And guess what, 

### if all these witnesses see this defendant come back now all tough because he's got that gun, guess where he can't be? With his girlfriend and her mom back at their house at 3420 A Street, okay . So somebody is lying. Who do you think is lying? These witnesses either the day of within hours or within a couple of days went down and told everything that they knew . And again, Angel Ducvo, you can't get around this, he knows him, it's not a stranger. And even the other people, they recognize ' the defendant from the earlier fight, the whole motive of the incident. So who is lying? Them or the people that have a motive to lie, his girlfriend and the girlfriend's mom who don't want to see him get in trouble, who never gave a statement to the detectives about th.is alleged alibi - MR. TURNER: Objection, Your Honor . THE COURT: Sustained. ADA DONNELLY: - who got on the stand and sound e d scripted. Ladies and gentlemen, human nature has to come into this when you're evaluating these witnesses, human nature and common sense. Cynthia Vasquez when she got up there, she didn't turn to you and say, ladies and gentlemen, listen, I'm telling you, he was with me, he was there. I d o n 't ev e n think she wan ted to be u p there. It was pretty clear who was running the show here, and that was her mom. THE COURT: Don't express your personal opinions, Ms . Donnelly. MR TURNER: Objection. ADA DONNELLY: When you saw het mom testify, can you tell that there's something else going on here? Do y ou think it's unusual that this mom bails out her 16

- year-old daughter's boyfriend from prison? MR. TURNER: Objection , Your Honor. THE COURT: Overruled. ADA DONNELLY: Do you think that it's unusual that two months after she 

### bails out her

. 16-year

- old daughter's boyfriend she's allowing him to come to her house and sleep in her daughter's bed? Someone whose husband got killed nine ' months earlier who is a 

### drug dealer? Someone who she admits that her husband is associates 

### with 

## J oho Perez, the getaway driver in this case? A mother who admits that this defendant gives her money sometimes for gas? Do you see what's going on here? This is about money and tnaybe something else . MR. TURNER: Objection THE C OURT: Overruled ADA DONNELLY: There ' s a weird connection there with mom with th.is defendant. When 

### this defendant is slapping around her daughter at the Puerto Rican Day Parade and her daughter is say ing I don't want to 

### talk to him, why is she getting involved and making her daughter s i t in the back of the car and 

### talk to this defendant? Why are you doing chat, mom? Why ate you involved in what a 16-year-old wants to do with her boyfriend or not? Why did y ou bail him out and is encouraging and enforcing [sic] your daughter to be with him? 

### If y ou gu y s are alibi, why are you lawyering up and not talking to the police? 

### MR. TURNER: Objection . testimony at trial was not believable because of their respective relationships with the defendant. The prosecutor commented on the credibility of both women, suggesting that their 

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tribunal. Stating that a witness appears as though she does not want to be on the witness stand does in her closing argument and did not deprive the defendant of his right to a 

### fair and impartial Furthermore, even if the prosecutor's comment was improper, it was one isolated statement tlus inference with a first-person expression did not render it an improper personal opinion. drawn from the evidence produced at 

### trial. As in Gunderman, the fact that the prosecutor prefaced mutually beneficial relationship with the defendant. This comment about Vasquez's credibility was to tie this evidence together, suggesting that Bobe was controlling Vasquez as a way to continue her Vasquez's demeanor on the witness stand - that she did not want "to be up there" - was an attempt with the teenage Vasquez, as Bobe had granted them permission. The prosecutor's comment about control over Vasquez's relationship with the defendant; the defendant was able to sleep overnight when he needed it. Additionally, the evidence demonstrated that Bobe exerted some degree of money when she needed it, and Bobe provided a service for the defendant - bailing him out of jail - mother, Bobe, had a curious relationship with the defendant. The defendant provi d ed Bobe with not an improper personal opinion . The evidence introduced at 

### trial demonstrated that Vasquez's to the case law discussed supra, her comment, "I don't even think she wanted to be up there," was counsel, and directed the prosecutor not to express her personal opinion. N evertheless, according Out of an abundance of caution, this Court interjected, prior to any objection from defense N.T. 7 /19/2013 at 87

- 91 (emphasis added). THE COURT: Sustained. ADA DONNELLY: If all you ate is alibi, when the police constantly come and want to talk to you, why not just tell them what you know? MR. 11JRNER: Objection. THE COURT: Overruled. ADA DONNELLY: Pretty obvious why. The defendant wasn't there the whole night. It happened the way Cynthia [Vasquez] told Detective Bamberski in her statement. It happened the way she admitted on that stand partially, chat the defendant was angry at her, he got jealous, he got enraged, Cynthia's sister bad to grab the defendant 

### by the arm and pull 

### him aside to calm him down. The defendant gets into a fight with those 

### guys and now Cynthia wants to grab him and calm 

### him down. Circulated 06/26/2015 02:14 PM1 1 II Prio r to the summatio n s, this Co urt in structed the j ur:y that cl os in g arguments were not evidence an d that the jury was not bound by counsel's perspectives on the evidenc e . N . T. 7 /19/2013 at 44-45 . B Y THE COURT : Accordingly, th e j u dgme nt of se nte nce s h ould b e affirme d . Court did not en by d enying the de fe nd ant's motion for a mi s tri al. preju di cing the de fe n d ant . A mis trial i s an e x tre me re me dy w hi c h was n ot re quited h ere . T hi s attack on the defen d ant. Th e pr ose cu tor's commen t di d not hav e th e unavoidabl e e ff ec t of statement only ad dressed the c redib ility of these two alibi w i tn e sses; i t w as not an in flammatory testify because of her mother's influe n ce does not colo r th e d e f en d ant in a negati ve 

### li ght. This not create "fixe d b ias" 

### in the mind s o f a 

### jury . " T h e fac t th at V asqu e z mig ht h av e b ee n reluctant to Circulated 06/26/2015 02:14 PM