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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SIKWA STEEL, : No. 3273 EDA 2014
:
Appellant :
Appeal from the Judgment Entered October 17, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012442-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL RUDD, : No. 1812 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 27, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012443-2012
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 23, 2016
Michael Rudd and Sikwa Steel appeal from the March 27, 2014
judgments of sentence following their convictions of third-degree murder,
* Retired Senior Judge assigned to the Superior Court.
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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
- 19 -
J. A33004/15 & J. A33005/15
the statement.” Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super.
2006), appeal denied, 940 A.2d 363 (Pa. 2007), citing Commonwealth v.
Hudson, 820 A.2d 720, 727 (Pa.Super. 2003), appeal denied, 844 A.2d
551 (Pa. 2004).
In the instant case, the Commonwealth objected to Steel’s lack of a
Rule 2119(f) statement:
Rather, Steel was required to provide a statement
demonstrating a substantial basis [for] appellate
review. Pa.R.A.P. 2119(f). His failure to do so is a
fatal defect that renders his claim non-cognizable.
Commonwealth’s brief at 21 (citations omitted). Because the
Commonwealth has objected to Steel’s failure to include a Rule 2119(f)
statement in his brief, we cannot consider the merits of appellant’s claim, as
we are precluded from doing so.
Judgments of sentence as to both appellants are affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2016
- 20 -
l Circulated 01/29/2016 04:28 PM
JN THE COURT OF COMMON PLEAS OF PHDJAD~LPHl1\
CRIMINAL TRIAL DIVJSJON
COMMONWEALTH. OF PENNSYLVANIA CP-51-CR-OOl 2,UJ-2012
MICHAEL HUDl>
FILED
OPfNION NOV 1 3 2014
Dcfino-Na~tasi. 1. Criminal Appeals Unit
First Judicial District of PA
PROCEDllRAL HISTORY
On Junuary 21. 2014. Michael Rudd (hereafter referred lo as the .. Appellant"). ,, ..as found guilty
by a jury. presided over hy the Honorable Ruse Mari? De Fino-Nastasi, of 3"1 Degree Murder. Conspiracy
to CnmmitJ'.i Degree Murder, V10httinn of the Uniform Firearms .\d Section 611111 (\'UFA 6106),
Violauon of the Uniform Firearms Act Section 6108 (Vt !FA 61 US J and I'osscssron of an Instrument of
Crime (PlC)
On March 2 ,, 20 I I Appellam was sentenced to kn ( IO) to twcnt)- ( 20) ve.irs state confinement
for the 3111 Degree Murder conviction, ten r I 0) to twenty t20) year, state confinement, to run concurrently.
for the Conspiracy fl, Commit 3':i Degree t-. lurder com iction, and five l5 l years reporting probation. co run
consecutively, on the \'UFA 6 I 06 conviction. There was no further sentence for the count of VUF A
6108 and PIC.
On I\ larch ~S . .:!IJ 14, Appellant tibJ post-sentence motions th.it were denied after ·1 he,mng un
June 18. 2014.
Oil J1111c It), ~1) I-~. Appelknu Ii led the Instant Appeal.
On September IS, ::'.014, Appellnnt tiled a 19:Sthl Sratcmeut of Muuers l"<•mplaim·d 1.1fu11
Appeal
.41
T
f'ACTS
In the! early rnormng hours of Julv 22, 2007, Charles Iunstall (hereafter referred to as the
"decedent"), suffered a fatal gunshot wound to the head on 54111 and Arlington Street in Philadelphia.
(Notes of'Testirnony, Volume I, Jan. 14, 20 I 4, Page J 11 ). Upon investigation of the crime scene, CiH!
fired cartridge cases from a caliber .JSO semi-automatic pistol were recovered (N. L, Yul. J, Jun. 16.
2014, ·P-52).
Dr. Marlon Osbourne, assrstant medical exanuner, tesufied that the decedent suffered .1 gunshot
wound to the cop of his forehead that was two inches below the lop of his head. in the center of his
forehead. I le also staled that there was no evidence of close-range firing on the skin around the entrance
wound. Dr. Osbourne testified that a deformed bullet was recovered from inside the brain itself and sent
to ballistics (N.T.. Vol. I. Jan. I!, 2111.t, 92-107).
Officer Ian Nance tesufied that he receiv ed a radio call of a person screaming on July 22, 2007.
The officer arnved at 5-l'h and Arlmgton street and found the decedent suffering from a gunshot wound to
the forehead. The officer also stated that, after arriving on thc scene, he came into contact with someone
claiming to be the decedent's brother who told him that someone started shooung at the decedent and the
dece-I)
At trial. Mr. Burton stated that he was coerced into giving. the answers in his statement. On cross-
examination, he stated that he gave the statement to honnctde detectives after being arrested for
posscssmg drugs and a firearm. Mr. Burton slated that the homicide detectives coerced him by
threatening to charge his mother with conspiracy on his drug charge and then he proceeded to make up
the answers in his statement. lie further staled that the homicide detectives are the ones who gave him the
names t I Sikwa Steel and Michael Rudd. (N.T., Vol. 2, Jan. 15, 2014, 1-18).
Detective John Cahill testified that he was the detective that mterv iewed Michael Burton and took
his statement back in 2007. The detective further testified that Mr. Burton re-viewed and signed the
statcrnent w hrle also signing the idenrifications he made of the defendants on the photo arrays. Detccuve
Cahill slated that he was 1101 aware of any of the details surrounding Mr. Burton's arrest on a separate
narcotics case. (N.T., Vol. 2. Jan. 15. 2014. Jl-54).
Officer Clyde Frasier testified that he arrived at the crime scene un 3·J 7 a.rn. on July '.!2, '.!007.
Officer Frasier stated that he recovered five .180 automatic caliber fire cartridge cases from the location
of the crime scene. 1N.T.. Vul. 2, Jan. 15, ~OJ.ct, 55-87),
Officer Kc, in Palmer testified to coming into contact with a person named Jimmy Montalmoru
on December 19, 2007. 'lhe officer stated that he placed Mr. Montalmont into polrcc custody for
possession ~if murijuana und submitted the marijuana for invL·~1,ga1i1in rather than arresting him because
Mr, r-.111111.ilrn11nt had indicated ht: had inforruatron Officer Palmer te),lificd th,1t he took i\11 Montalinont
to homicide and Mr. Montalmont volunteered information about the murder of the decedent inthis case
Officer Palmer had no prior knowledge of this incident (N r.. Vol.:!, Jan. 15. :2014, 88-104)
Jimmy Montalmont was called by the Commonwealth as an eyewitness ot trial. Prior to trial. Mr.
Montahnont gave two statements to homrcide detectives indicating that he was present when the decedent
was shot anJ killed. In 2007. he stated to detectives, "When I got to 5,ttf, and Arlington. l seen a boy
named "ied, ('>i~. wa Steel) come out of the Chinese store and fire two shots at [the decedent], then I seen a
bo) named l\lu (Michael Rudd) come out of the pizza shop in the middle of the hlock and he shot at f the
decedent] one time and lthe decedent] went dow n [The decedent] went down on the sidewalk across
from the Chinese store." Mr, Montalmont also identified both defendants as the shooters from a photo
array. I le also stated to detcctiv cs that he saw Mu (Michael Rudd) lire a revolver and Seek (Sikwa Steel J
fire a semi-automatic. (N .T., Vol. 2, Jan. 15. 20 I 4, 120-170 ).
In 20 I :2. vlr, t\1ontalmont stated to detectives that Seek (Sikwa Steel) was the person who shot the:
decedent. H1- stated to detectives that Seek fired his gun once al the decedent up close and four times
tornl. I le further stated that Mu (Michael Rudd) \, J.S shooting at the decedent also hut he did not know
whether ur nut he uctually hit the decedent because Mu (Michael Rudd),\ as nor as close as Seek (Sikwa
Steen \\ hen he was firing. (N T .• Vol 2, Jan I 5. 20 I ·l. 186-1 IJO ).
J\l trial. l\lr. Montalmont denied giving the answers in either of the statements and stated that he
never spoke Ill homicide detectives about ttus case. ( N.T •• Vol. 2, Ian. I 5 ~O 1-t, 174-190) In order to
shov, Mr. Montalmont's state of mind durin~ the time 11fthc statement and why he denied rnaking the
contents of the statement nt trial, the Commonweahh offered i111, 1 ev idcnce Mr I\ tonralmont ' ~ comment at
the time the statement was given that "these guys will ha, c me killed and I will be labeled a snitch."
(N r. \\11. 2. Jan. 15. ~01,i, 120-1701. l in cross-examinerion, the defense questioned Mr Montalmont
about him already being in custody on an open case :11 the time he gave the statement i11 ~007 and whether
potice tuld him he \\ ould receive a lesser erucncc un 3 parole violation , f he gave the statement in 2tJ I~.
Mr. Montulmont denied talking to police and giving either of the statements but stated it was true lhat he
was offered lesser of a sentence on the parole violation 1f he g.tvc a statement rn 2U 12. (N r.. Vol 2. Jan.
15,2014. 170-180}.
Detective J1..1hn Verrecchio testified that he was the ,1s:,1gned detective in tlus case He stated that
he had applied fo1 an arrest warrant for the defendants in :!ll07 which was denied. I le then indicated that
he applied for an arrest warrant for the defendants after rccen ing the second in terv iew of J irnrny
Montalrnont in 21)12 and it was approved, The detective reviewed the affidavit of probable cause wluch
stated Sikwa Sled shot at the decedent using a revolver and Michael Rudd shot at the decedent using an
automatic. Detective Verrecchio testified that he may have mistakenly reversed the type of weapon tired
by each defendant. (N.T .• vot.z.Jan. l5,201-t 194-214).
Sergeant Daniel r\)res testified that he responded to the cnrne scene on July ~2. 2007 and
searched the area for any weapons Sergeant Ayres stated that he came 'into contact with the decedent s
brother. Brian Tunstall. who said he watched the decedent get ~hut and that the decedent had a gun in his
possession at the time. Detcctiv e Frank Mullen testified that ht: visited the hospual when the decedent
was in critical condition. He stc.1led that the decedent's brother denied an) conversation w ith Sergeant
Ayres about the sbootiug, {N.T., Vol.:!. Jan. 15. ~014. ~l6-232).
Kenneth La) testified as an expert in firearms and ballistic evidence Mr L.1) indicated he was
given fi, e fired cartridge cases and one build specuncn He stuted that the five fired cartridge cases were
caliber .381) automatic and the bullet specimen taken from the medical examiners office was a caliber
.3'6/9 millimeter. He testified that the huller specunen recov ered from the b11J} of the decedent was most
likely a . .lSO caliber automatic even though he could nor rr\1vc that scienttfically (N.-1 , Vol J. Jan. 16,
~01·1. JG-5~).
As
Special Agent Patrick Mangold testified that he conducted an interview with Jimmy Montarnont
on December 18. 2007 in the homic ide unit Special Agent Mangold testified that he did not make an)
promises to Mr. Montalmonr nor did he threaten him.
Detective Thomas Gaul was re-called to tcsti ()'. He stared that he interview ed Jimmy
Montalmont in '20 I 2 and did not make any promises to him. Derecnv e Gaul tesuficd that he did not
threaten I\ Ir. Montalrnont and that Mr, I\ lontalmont was , cry forthcom ing with the information he gan· in
the statement in 2012. (N .T., v ul. 3. fan. 16. 20 l 4. 59-111 ).
ANAL\SJS
I. In his first claim, Appellant argues that the trial court erred when it failed to supplement the
standard jury instructions with the special rnstruction proposed by the defense. in a ease w here the
onl) ev idcnce against Appellant consisted of the out-of-court statements of alleged eyewitnesses
who 1 ecanted their prior accusations under oath at trial.
1 he proposed jury instruction i!- attached as Court Exhibit A,
The trial court did not err when it failed to supplement the standard jury instructions with
the special instruction proposed h) the defense because the trial judge has the discretion to
accept or reject supplemental mstrucuons proposed by counsel Where the basic charge: properly
covers the requested point, it is not error for trial judge i,, refuse to give additional instructions.
Pa. R. Crim. P 647. Com., .. Gardner, 371 A.2d 9S6 ( 1Y77) The trial court is not required to
accept the language uf point submitted by counsel, but rather is free lo select its own form of
expressu .rn in jury instructions. and the only issue is whether the area covered tn the charge is
adequately, accurately nnd dearly presented to the jur1 for considerution. P:1. R Crim. P t,..f 7.
Cnrn. v. Bryant. -462 A.2d 785 (1983)
~--------------------111111•zrsmma
T
Witness' out-of-court statements, \.\ hich were recanted at trial. furnished legally sufficient
evidence to sustain Appellant's convicuons for first degree murder and related charges, and thus
the convictions did not violate due process: statements were reduced to writing, each witness
signed every page or his statement anJ attestation statement declaring that inlormunnn in
statement was accurate, each witness was cross examined al trial. and statements were
fundamentally consistent with one another such that statements were nut patently unreliable.
Com. v. Brown. 617 Pa. !07, 52 A.3d 1139 (2012.).
Herc, the trial court was not required to supplement the standard Jury instructions with
the special instructions proposed by the defense There is nu requirement for a special
supplemental instruction that the only evidence consisted ot the out-of-court statements of
eyewitnesses who recanted their prior statements at trial. Although Mr, Montalmont's two
statements differ regarding which defendant's bullet was the one that killed the decedent, the)
arc fundamentally consistent with each other. and with Mr. Burton· s statement, in that they all
include the fad that they saw both defendants shooting at the decedent and that Sikwa Sled was
closest to the decedent, standing approxirnately w here the .380 caliber fired cartridge casings
were located. Thus. the statements are not patently unreliable and the defense had the
opportunity 10 fully cross-examine the witnesses al trial.
Ihe credibility and weight of the evidence is for the jury to determine as the Iacr-findcr
JnJ the jury was charged on that issue. The trial court gave the standard jury instruction on prior
inconsistent statements and the jury was told the) could consider the statements as substantive
evidence, r he uial court also gave an instruction to the jury that they should cxamme closely
and carefully and receive with caution the statement 11f Jimmy Montulrnont if they found that he
believed he would recei vc a benefit on his ,1p1!11 1..a-.e in exchange for hrs statement Also, the
A1
1
jury was charged that they should examine closely and carefully and receive with caution the
statement of Michael Burton if they found that he believed he would receive a benefit on his
open cases in exchange for his statement. Thus. it was up to the Jury as fact-tinder to weigh the
credibility of the witness' statements and their testimony at trial. 1 hcrcfore. it was not error for
the trial court tu refuse lo give the proposed supplemental instruction to the jury.
JI. In his second claim, Appellant argues that the tn:il court erred when it denied Appellant's motion
for ajudgment '-'f acquittal because hi::. convicuon v related the due process guarantees provided
by the Fourteenth Amendment tu the United States Constitution and by Article I,§ 8 of the
Penns) lvania Constitution, where his conviction was supported solely by the out-of-court
statements of witnesses v. ho recanted their accusations at trial.
As noted in his 1925( b) Statement of Matters t.omplaincd on Appeal, Appellant acknowledges
that. a, a matter of slate con ... titutional law, the Penns) lvarua Supreme Court has decided that such
C\: idence can be sufficient to conv 11.:t. CDm. \'. Brov..'n, 617 Pa. 107, 52 A.3 J I 119 ( 20 I ::::! ) .
Appellant believes Br0\\11 to have been wrongly decided and raises this issue here to preserve it for
future state and federal rev kw. Thus. the trial court did not err when it denied Appellant's motion for a
judgment of acquittal because the ruling" as consistent v. ith Pennsylvania law as stated supra.
Ill In hn thirJ claim, Appellant argues that the trial court erred when it denied Appellant's request to
redact that portion of the out-nt-court statement (If l ommonw ea Ith ,, itncss t,. Iontalmont, wherein
he stated that, "if rhls [Moutulmont's i.:011pcrati,,11J gets out I will he killed." Appellant argue,
th.it the trial C\.1111 t erred because there was nu evidence ,, hich suggested tli;jl anyone had ever
attempted to intimidate (\ INll.1lm,1111 and the adrnissiou 1)f this port ion of' his statement unfairly
$Uggc..· 11.:J 111 the jury thut ,\t,,nralmont had rei.:J111eJ his accusauon, at trial. due: t•l intimidation
~-------------- ................ £111
l
The trial court did not err when it denied Appellant's request to redact part of the
statement by the witness because the statement was relevant to show why the witness may have
recanted his statement at trial. The determination of whether such statements are admissible is
within the sound discretion of the trial court and will be reversed only upon an abuse of that
discretion. Corn.\'. Ragan. 538 Pa. 2, lh. 645 A.2LI 811, 818 ( l lJCJ.+). In Ragnn, the Supreme
Court l,r Pennsylvania held that the fact that the witness was considering the idea of nut
testifying against the defendant would seem to discredit his subsequent testimony in which he
renounced his identification ol the defendant and was admissible to show the state of mind of the
witness at the time of the discussion with the detective. Id. at 8 I 9.
Herc, the trial court properly admitted the portion of the statement by the witness
Montalmont to a homicide detective in which he stated that. "If this [Monralmonts cooperation]
gets out, l will be killed." On the record. the trial court stated that the statement was admissible
because, "That's his state of mind as to why he is going south ... He is nut saying that they did
anything. rt is just what he thinks will happen. that's all." (N 1 .. Vol. 2. Jan. 15, 20H, 13 7-138).
This situation is similar lo Rag~m because the evidence is admissible to show the state of rrund of
the witness at the time or the discussion with the detective .md rs relevant to show a motive as to
whv the witness may have recanted his statement at trial. Thus admitting the statement docs not
constitute till abuse of discretion by the trial court.
[\'. In his fourth claim, Appellant argues that the tri.11 court erred when 11 overruled defense counsel's
objection to the Commonwealth's summntion, where the prosecutor told the 1u1) that" uness
Montalrnont changed his ....tory because he was afr11id that it \\1)1J!d ··get nut in state prison that he
wa ;i ·itnc!>s" when nu evidence indicated that 1\1,mtalr,,unt harbored such tears and the
, ...
prosecutor's argument \\ 3\ not a lair re x ponse ro an) thing argued by the defense,
The trial court did not err when it overruled defense counsel's objection to the
Commonwealth's summation because a prosecutor has considerable latitude during closing
arguments and the statement was an inference which could be reasonably dcnvcd from the
evidence. With specific reference tu a claun of prosccutorial misconduct in J closing statement,
it is well settled that in reviewing nrosecutorial remarks to determine their prejudicial quality.
comments cannot be viewed in isolation but. rather. must be considered in the context in which
they were made. Com. v. Sampson. 900 A.2J 887 890 (PJ.Supcr.2006 ). Our review of
prosecutorial remarks and an allegation of prosecutorial misconduct requires an evaluation JS to
.
whether a defendant received c1 fair trial, not a perfect trial. Com. v. Judy. 978 A.2d IO 15, l lJl 9
( Pc1.Supt:r.20UO). 1l is well settled that a prosecutor has considerable latitude during dosing
arguments and his arguments are fair il they are supported by the evidence or use inferences that
can reasonably be dcnved from the evidence. Further, prosecutonal misconduct does not take
place unless the unavoidable effect of the comments at issue was to prejudice the [urors by
forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability
tu weigh the evidence objcciiv ely and render a true verdict Prosccutorial misconduct is
evaluated under a harmless error standard. Id. at I O:!O.
Here, the prosecutor' s comment that, "[The witness 1 distanced himself from the
identifications that he made of these: two people. Why? Because he has to go had. to state
prison for a lung time and if it gets out in stall! prison that he was ,1 wrtncss in a homicide ... he i~
going. to have a lot of problems in his life", (N.l'., V,,1. J.Jan. to. 21Jl,1. ~01-211::?) .• \.~ stared 11n the
rl!LMJ. the trial court overruled the defense's objection to this comment because ·'it is fair
response to some things that were said by the defense .. , IJ. at 201. Since the defense argued that
the witnesses were lving in their statements for their own personal gain. the prosecutor was
A 10
1
allowed to respond to this argument by offering a reason supported by the evidence as to why the
witness may have recanted his statement at trial. Herc, the prosecutorial comments were a
proper interence taken from evidence in the record. speci fically Mr. Montalmont's statement that
he wus in fear uf being labeled a snitch. Furthermore, it cannot he found that the unavoidable
effect of the comments at issue was to prejudice the jurors by terming in their mmds a fixed bias
and hostility towards the defendants, thus impending their ability to weigh thee, idence
objecu vely and render a true verdict. Thus, the trial court did not err when it overruled