Lead Opinion
OPINION
In Bruton v. United States,
Garcia stopped at a Hess Gas Station located around the corner from Cheatham’s house and purchased gasoline. Garcia then drove about half a block when appellee asked him to stop the car. Appellee exited the car and Garcia followed. Cheatham remained in the back seat and heard a gunshot, which sounded like it was fired nearby. Appellee returned to the car, followed by Garcia. Appellee had a gun in his hand and Garcia asked him, “what the f[ — ] did you just do?” Appellee responded, “Shut up and drive the f[ — ]ing car.” Cheatham told Garcia that he wanted to be dropped off immediately. Garcia drove around for about five minutes before stopping to let Cheatham out of the car. Cheatham went to a friend’s house where he went to sleep. Id. at 104-06.
At approximately 8:00 p.m. the same evening, Philadelphia Police Officers Robert Livewell and Carolyn Campbell responded to a radio call that there was an unconscious female at a nearby Hess Station. At the station, the officers found Mary Edmund laying face up near a gasoline pump, where Fire Department paramedics were attempting to resuscitate her. Ms. Edmund was taken to the hospital where she was pronounced dead at approximately 9:40 p.m. The victim died from a single bullet which had caused multiple injuries, as it entered Ms. Edmund’s right upper breast, exited the lower breast, entered the abdomen, and then became lodged behind her left hip. Id. at 47-52, 68-69.
Garcia and appellee were each charged with murder,
At trial, Cheatham testified for the Commonwealth, outlining the circumstances of the murder as summarized above. In addition, Garcia’s statement to police was entered into evidence, but only after the trial court cautioned the jury that it could be considered only against Garcia and not as evidence against appellee. The statement provided as follows:
Question: “Tell us what happened.”
Answer: “It was me and another guy. We were driving around and we picked up a third guy. We copped a dime of weed off of him. One of the guys said want [sic] to go down to 7th and Pike to get some Xanies. We was going down north to get some Xanies, but I went to the Hess station at 15th and Cheltenham first. When we pulled out of the Hess station I was driving down 15th Street. There was a lady walking up 15th Street. It was dark. One of [sic] guys said stop, I know her, y’all. I stopped and ... both of the other guys got out and went up to the lady. That’s when I saw a tussle. The lady was backing up holding her purse. She yanked back, she resisted and I heard a gunshot. Then both guys ran to the car. We was high, we needed a little change. I didn’t know that was going to go down.”
Question: “What happened next?”
Answer: “They got in the car and I said what the f[ — ] happened. One of the guys said I banged the b[-], I ain’t playing, I’m showing these niggers out here I’m not playing. She wouldn’t give up her pocketbook or nothing, so I banged her. The other guy said I just ran. I told the first guy what the f[ — ], you didn’t tell me you had a burner.”
Question: “What is a burner?”
Answer: “A gun.”
Question: “What kind of gun did the first guy have?”
Answer: “A .38. He showed it to me in my house after he shot the lady. After he shot the lady we went to my house and we went inside. He pulled it out in the kitchen. I told*385 him to put it away because my peoples was [sic] there. My mom told me to get the guy out of her house. We left my house and drove down North Philly.”
Question: “Tell us how you and the other guys came to be arrested.”
Answer: “I don’t know exactly where we were at, but the cops stopped us and I pulled over first, but one of the guys said Pm not trying to get locked up, man, so I took off and the cops chased us. We crashed at 3rd and Cayuga and we all ran. One of the guys threw the burner at me and ran. I picked up the burner and ran for a block and just threw it.” Question: “Do you remember anything specific about the lady who was robbed and shot?”
Answer: “I remember she had a beige pocketbook. That’s it.”
Question: “Detective Mangioni is showing you a gun. Do you recognize it?”
Answer: “That’s the gun.”
Question: “Did the guy with the gun say anything to you when the police stopped you?”
Answer: “He told me to take the heater and run.”
Question: “Did the three of you discuss anything after you were arrested?”
Answer: “We were downstairs and one of the guys said don’t snitch because I ain’t saying nothing.”
N.T., 6/5/02, at 71, 81-84.
Garcia’s defense at trial was mere presence, i.e., he argued that he had no knowledge that a crime would occur and did not participate in the crime that unfolded. In the portion of her summation arguing Garcia’s guilt, the prosecutor attempted to rebut Garcia’s defense by suggesting that, if Garcia truly had nothing to do with the murder, he would have abandoned the killer after the commission of the murder. During this argument concerning Garcia, the prosecutor made reference to information in Garcia’s police statement, a reference the Superior Court found implicated Bruton because the prosecutor referred to appellee by name in one instance, rather than
Cheatham says take me home, so they drop him off at his friend’s house and he doesn’t know from anything what they do after that. If Garcia had not been part of what happened, how easy would it have been for him to drop Lambert off, go home, tell his mother what happened, pick up the phone and call the police and say I was just with a guy who shot and killed somebody? He doesn’t do that. What does he do is this, he takes Lambert to his house. They’re at his house and he says the guy I’m with brings the gun into my house and I tell him put it away because my people are there.
[DEFENSE COUNSEL]: May we see the Court?
THE COURT: I’m going to permit argument. Go ahead.
[THE PROSECUTOR]: He takes him home and he says that the guy he’s with had the gun in his house and he told him to put the gun away because my people were there. My mom told me to get the guy out of her house. We left my house and drove to North Philly.
He’s still with the guy that did the shooting. He’s not concerned about it. He’s not afraid of him. What does he do? He drives around with him for a few more hours. They pick up Donovan Weary after they drop off Mr. Cheatham and now they’re out of that area, they stay far away from where they know that they’re wanted, where they know that the car may have been spotted and they head over to the eastern part of Philadelphia. Now, they’re at 3rd and Hunting Park, 5th and Hunting Park, and its 3:20 in the morning. The homicide occurs before 8 o’clock p.m. It’s now some seven hours later and they’re still together. Garcia is not afraid of him, he’s up there having fun with him still and Weary is in the car.
N.T., 6/7/02, at 103 (emphasis added).
At the close of the prosecutor’s argument, defense counsel moved for a mistrial, articulating his objection as follows:
*387 The reason for the mistrial is Your Honor will recall that the Court and counsel went through painstaking efforts to properly redact Mr. Garcia’s statement and one of the first things [the prosecutor] did is whip it out and read from it and tell the jury that Mr. Garcia took Mr. Lambert back to his house with the gun and read the entire portion of that statement implicating Mr. Lambert as the other guy. In fact, told the jury that Mr. Lambert was the other guy.
Maybe she thought that before this case started she was going to have other evidence [] from someone else indicating that Mr. Lambert was in fact at Mr. Garcia’s house, but there was no other evidence whatsoever, so I would suggest that [the prosecutor] blatantly disregarded the Court’s order with respect to redaction and for that violation I would move for a mistrial.
N.T., 6/7/02, at 128. When the trial resumed following a weekend recess, the court denied appellee’s mistrial motion, but offered to issue the following cautionary instruction:
Ladies and Gentlemen, in her closing argument [the prosecutor] told you that defendant Miguel Garcia drove defendant Antonio Lambert to his home. That is to Garcia’s home. I instruct you that you may not — I’m sorry, I instruct you that you may not use the statement of Mr. Garcia as evidence that he drove Mr. Lambert anywhere or even that Mr. Lambert was in Garcia’s automobile. As I told you before, you must not use the statement of Mr. Garcia in any way as evidence against Mr. Lambert.
N.T., 6/10/02, at 3. Counsel declined the instruction, expressing a belief that it would merely highlight the issue for the jury. The court then proceeded to issue its final charge to the jury, a charge which included a general instruction that the jury was to consider the evidence separately as to each defendant, and was not to consider evidence admitted against only one defendant as evidence against the other. Id. at 17, 20. In addition, with respect to Garcia’s statement, the court cautioned the jury as follows:
Ladies and gentlemen, there is a rule which restricts use by you of the evidence offered to show that defendant Miguel*388 Garcia made a statement concerning the crime charged. A statement made before trial may be considered as evidence only against the defendant who made that statement. Thus, you may consider the statement as evidence against defendant Miguel Garcia if you believe that he made the statement voluntarily. You must not, however, consider the statement as evidence against defendant Antonio Lambert. You must not use the statement in any way against Mr. Lambert.
* * * *
And remember you may consider the statement as evidence against defendant Miguel Garcia only. You must not use the statement in any way against defendant Antonio Lambert.
Id. at 29-30, 33.
Following deliberation, the jury convicted appellee of first-degree murder, robbery, criminal conspiracy, and possession of an instrument of a crime. The trial court sentenced appellee to a mandatory life sentence for murder and lesser concurrent terms of imprisonment on the remaining convictions.
Appellee appealed to the Superior Court, claiming error in the trial court’s ruling on his objection to the prosecutor’s summation, and error in denying his pre-trial motion for severance. In a published opinion, a Superior Court panel found merit in both of appellee’s claims, vacated the judgment of sentence, and remanded for a new trial. Commonwealth v. Brown,
The Commonwealth then petitioned this Court for allowance of appeal, which we granted with regard to the following issues:
1) Whether the rule set forth in Bruton v. United States,391 U.S. 123 ,88 S.Ct. 1620 ,20 L.Ed.2d 476 (1968) and its progeny dictates that in a joint trial, the proper redaction of a non-testifying co-defendant’s out-of-court statement is negated in whole or in part by a prosecutor’s improper reference to the statement in closing argument;
2) “Whether, in such instance, cautionary/curative instructions to the jury may ever be adequate to remove the potential for prejudice from the prosecutor’s reference; and
3) “Whether the Superior Court erred in holding that the trial court abused its discretion in denying severance of the trials in this case?
Commonwealth v. Brown,
A.
The first two issues are inter-related and thus we will consider them together. Ordinarily, the question of the proper judicial response to the myriad of objections arising at trial, whether the objection involves the order or admissibility of evidence, or misstatements or “misconduct” on the part of counsel, etc., is a matter within the trial judge’s discretion, and an appellate court will reverse the judge’s decision only for an abuse of discretion. E.g., Commonwealth v. Spotz,
The Commonwealth argues that Bruton, Richardson v. Marsh,
Finally, the Commonwealth argues that, when the prosecutor’s statement is viewed in context, it is clear that a cautionary charge would have been adequate to address any possible prejudice. The Commonwealth notes that the challenged comment occurred during the prosecutor’s argument concerning Garcia’s guilt and her general point was consistent with other testimony respecting Garcia. Specifically, the Commonwealth notes that Cheatham testified that appellee was still in the car with Garcia along with the murder weapon when he exited the vehicle, and the police officers testified that Garcia and appellee were together seven hours later. From these facts, the Commonwealth argues, the prosecutor properly inferred and argued that the two men remained together until they were arrested. The point the prosecutor was making in the challenged portion of her closing — that Garcia had the opportunity to part ways with appellee and likely would have had they not been conspirators — therefore was proper. The Commonwealth concedes that the prosecutor’s reference to
Appellee responds first by disputing the Commonwealth’s claim that Bruton does not apply at all. Appellee cites Commonwealth v. Miles,
Appellee further disputes the Commonwealth’s claim that the prosecutor’s remarks merely implied what role appellee
Finally, appellee argues that a mistrial was the only appropriate remedy because the primary evidence against him was the testimony of Cheatham, a possible accomplice in the crime, with a motive to lie and avoid prosecution. Appellee further argues that the prosecutor’s comment was not harmless and was not curable by a jury instruction because the comment opened the door to the jury considering another source of incriminating information, which corroborated Cheatham’s testimony in part. Because the evidence was not overwhelming, appellee claims, the instructions (both the charge offered and declined and the general instructions that were issued) were inadequate, as a matter of law, to dissipate the harm arising from the prosecutor’s statement.
Bruton, however, is not the last word from the Court concerning how to treat co-defendant statements in joint trials. In Richardson v. Marsh, the Supreme Court held that the Confrontation Clause is not violated by the “admission of a non-testifying co-defendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.”
The case sub judice does not pose a classic Bruton circumstance — ie., the issue is not an evidentiary one involving the
The Supreme Court, per Justice Thurgood Marshall, held that this instruction was sufficient to protect the appellant’s confrontation rights. Id. at 733-36,
Frazier is not an anomaly. In United States v. Sandini,
More recently, in Commonwealth v. McCrae,
only in the context that gave rise to the decision, i.e., the introduction of a powerfully incriminating statement made by a non-testifying co-defendant at a joint trial. Bruton is*397 inapplicable to statements made by an individual other than a non-testifying co-defendant at a joint trial of co-defendants.
McCrae,
Here, as in Frazier, Sandini, and McCrae, the objectionable event involves non-evidentiary commentary by counsel, and not the co-defendant/introduction of evidence paradigm at issue in Bruton. The U.S. Supreme Court, which fashioned the per se Bruion rule, has not extended its reach to comments by counsel; indeed, the Frazier Court at least suggested that commentary from counsel was not on a par with the co-defendant/evidentiary paradigm. This Court’s jurisprudential task is to attempt to predict whether and when the High Court might extend the constitutional rule to commentary from counsel. We have little doubt that there could be a circumstance, more egregious than Frazier, where the Court would find that a prosecutor’s commentary respecting Bruton-redacted and-limited evidence might raise the prospect that “the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton,
There is no point in redacting and sanitizing otherwise inculpatory statements of a non-testifying co-defendant, to facilitate a joint trial, if that protective measure approved by the High Court to comport with the Confrontation Clause could be deliberately and directly undone by lawyer commentary. Consider, for example, if the redacted evidence would be powerfully incriminating if tied to the defendant, and the prosecutor were to say something along the lines of: “You heard the co-defendant’s confession, which also described the actions of someone he identified only as ‘the other guy;’ well, I’m here to tell you that ‘the other guy’ he was speaking of was the defendant and we just changed the wording of the statement.” The Frazier case, of course, did not involve a deliberate attempt to undo a proper redaction, and thus it did not involve the prospect of prosecutorial conduct which would affect the use the jury could make of evidence from a nontestifying co-defendant’s statement which was actually introduced against the co-defendant at trial. We have no doubt that, in an appropriate case, the High Court would approve application of the per se Bruton rule to an instance where the objection is to argument by counsel concerning Bruton-redacted evidence. Indeed, the government obviously has a difficult task in arguing that a jury in a joint trial may easily perform the “mental gymnastics” required by Bruton if the trial prosecutor, learned in the law, intentionally betrays difficulty in keeping the evidence separate.
Here, we do not condone the prosecutor’s misstatement (and neither did the trial judge, as he offered a curative charge) and we stress the special obligation upon the prosecution when trying defendants jointly in a circumstance where Bruton redaction is implicated. Nevertheless, we conclude that the circumstances were not so egregious that Bruton’s per se rule is implicated, so as to displace the traditional, discretionary role of the trial court in fashioning an appropriate response. The prosecutor’s statement, though plainly
B.
We turn now to the related but distinct question of whether the Superior Court properly found that the trial court abused its discretion in denying appellee’s pre-trial motion for severance. If the Superior Court was correct, the severance ruling would be an independent basis for ordering a new trial. However, we conclude that the panel erred.
Appellee responds that severance was required because Garcia’s statement could not be sufficiently redacted to remove all references to appellee. Citing Commonwealth v. Marsh,
The trial court did not abuse its discretion in denying severance. Conspiracy was charged against both defendants, the other crimes charged were essentially the same, the circumstances giving rise to the murder were the same, and Cheatham’s testimony was the key evidence against both defendants. See King, supra. Moreover, as the court noted, the defenses were not in irreconcilable conflict, particularly since Garcia’s statement, as redacted, did not refer to appellee by name or other indication. In addition, the primary challenge for both defendants was the same: to convince the jury not to credit Cheatham’s testimony. The jury did not have to disregard the defense of appellee in order to accept the defense of Garcia. Thus, the defenses were not so antagonistic as to require severance.
For the foregoing reasons, we reverse the order of the Superior Court granting a new trial and we reinstate the judgment of sentence. Jurisdiction is relinquished.
Notes
. 18 Pa.C.S. § 2502.
. 18 Pa.C.S. § 3701.
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 907(b).
. The Commonwealth also argues that Garcia's statement was not the only evidence that appellee had the gun and remained in the car with Garcia after the crime because Cheatham had independently testified to similar facts. The Commonwealth thus contends that, if the jury concluded from Cheatham's direct testimony that the unidentified person in Garcia’s statement was appellee, this is an incident of contextual implication, which is permissible. Commonwealth's Brief at 22 (citing Richardson,
. Appellee did not invoke the Miles case in forwarding his objection to the trial court.
. Appellee also asserts that the prosecutor had Garcia’s statement in her hand when she referred to appellee by name, and suggests that this fact demonstrates that the prosecutor acted with "malicious intent.” Citing a fifteen year-old Superior Court decision, appellee extrapolates from the inference of "malice” he detects a general charge against the Philadelphia District Attorney’s Office, saying that the conduct here was both deliberate and typical, and argues that the new trial award should stand to "send a message” to that office. Appellee's Brief at 18. Appellee did not forward this broad-based accusation below, and the trial court made no finding of a "malicious” motivation or pattern of conduct. Accordingly, we will not pass upon appellee's belated and unsupported accusation here.
. Commonwealth v. Miles,
Miles is distinguishable from this case. First, the prosecutor in Miles actually read from the co-defendant’s statement while inserting the appellant’s nickname; here, in contrast, the prosecutor’s reference was not so directly tied to the statement. Second, in Miles, there was no objection, and no curative charge proffered. Third, the Miles Court did not consider the impact of the U.S. Supreme Court's decision in Frazier, and the distinction between Bruton error arising from the introduction of the co-defendant’s statement and error premised upon counsel's
. Although review of the trial court decision is deferential since discretion is involved, our review of the Superior Court’s finding of legal error in the trial court’s exercise of its discretion is plenary and non-deferential.
Dissenting Opinion
Dissenting.
I fully join the Majority in finding improper the prosecutor’s closing argument revealing defendant, Terry Brown (“Appellee”), as the “guy” in the previously redacted statement of Miguel Garcia, his non-testifying co-defendant. Maj. Op. at 398-99,
A defendant “is deprived of his rights under the Confrontation Clause when his non-testifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant.” Richardson v. Marsh,
[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.
For the same reasons, I believe that a defendant is equally deprived of his rights under the Confrontation Clause if an otherwise effective redaction is corrupted by a prosecutor’s comment. The jury is no less aware of the import of the co-defendant’s implication of the defendant, and the defendant is no more able to cross-examine the co-defendant than in a more conventional Bruton scenario. As with the typical Bruton violation, we cannot assume that a jury will be able to perform the necessary “mental gymnastics” of limiting its consideration of an incriminating statement as against the confessing co-defendant and not against the defendant following the improper revelation of his previously redacted identity. Frazier v. Cupp,
The Majority reaches a different conclusion, based in part on the decision in Commonwealth v. McCrae,
Appellant’s claim ... pivots on the faulty presumption that the Bruton rule applies to [the witness’s] testimony. It does not. The statement here was not made by [a co-defendant]. Moreover, [the witness] was never charged in relation to the criminal incident, let alone tried jointly with appellant. It is the particularly “devastating” prejudicial effect and inherent “unreliability” of a directly incriminating statement made by a non-testifying co-defendant that powered Bruton’s exception to the general rule that cautionary charges are enough to avoid spillover prejudice in joint trials. [Bruton,391 U.S. at 136 ,88 S.Ct. 1620 .] These concerns are simply not present in the instant context involving the statement of a non-party eyewitness to the crime.
Id. at 1038 (emphasis in original). The Court therefore concluded, “Bruton is inapplicable to statements made by an individual other than a non-testifying co-defendant at a joint trial of co-defendants.” Id.
Similarly, unlike the Majority, I find the decision in Frazier v. Cupp distinguishable. In Frazier, the Court considered whether the rule in Bruton applied to a prosecutor’s opening statements. In that case, an alleged accomplice of the defendant pleaded guilty and was awaiting sentencing at the time of the defendant’s trial. The prosecutor in opening statements in the defendant’s case referred to the expected testimony of the accomplice. At trial, however, the accomplice invoked his privilege against self-incrimination on the witness stand and declined to testify. The defendant claimed that this violated Bruton because the prosecution had the benefit of placing a testimonial-like statement before the jury, without subjecting the speaker to cross-examination. The Court focused on the fact that the case did not involve a statement of a co-defendant in a joint trial, but instead related to a prosecutor’s commentary in an opening statement on what evidence might be introduced later during trial.
It may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable. But here we have no more than an objective summary of evidence which the prosecutor reasonably expected to produce. * * * Even if it is unreasonable to assume that a jury can disregard a coconspirator’s statement when introduced against one of two joint defendants, it does not seem at all remarkable to assume that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial.
Frazier,
Unlike in Frazier, the statement at issue in this case was a statement of a non-testifying co-defendant introduced into evidence at a joint trial of co-defendants.
An error will be deemed harmless if: (1) the error did not prejudice the defendant or the prejudice was de [minimis ]; [or] (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. The Commonwealth bears the burden to prove harmlessness beyond a reasonable doubt.
Commonwealth v. Markman,
In the case at bar, I cannot conclude beyond a reasonable doubt that the Bruton violation did not contribute to the verdict. While the Commonwealth relies on the testimony of the eyewitness, Anthony Cheatham, his testimony is suspect because he is a potential accomplice in the crime. Moreover, his testimony, which implicated Appellee by name, is contradicted by co-defendant Garcia’s statement, which, as redacted, did not implicate Appellee by name. The versions of events offered by Garcia and Cheatham differed as to whether Garcia or Cheatham accompanied the shooter (or Appellee in Cheat-ham’s version) during the murder.
. Notably, the Court was not united in its conclusion that the undoing of a witness’s redacted statement was categorically different from typical Bruton violations.
On the broader legal points involved, while I agree with the Majority that the United States Supreme Court's specific holding in [Bruton] is not controlling here, I would not apply as categorical an approach to the Sixth Amendment principles underlying Bruton as the Majority seems to apply. In particular, I would not exclude the possibility that such principles might render cautionaiy instructions insufficient to prevent the possibility of spillover prejudice in some larger set of circumstances analogous to, but not overlapping with, those before the United States Supreme Court in Bruton.
McCrae,
. Additionally, I find the Majority's reliance on United States v. Sandini,
. Although the discussion in the Majority Opinion and the arguments of the parties focus upon the prosecutor’s reference to Appellee by name in connection with Garcia's statement at page 103 of the Notes of Testimony, minutes later the prosecutor again tied Appellee, by name, to Garcia's statement:
I submit to you that there wouldn’t have been any fingerprints once that gun was in the snow and with all that tape around it, it got wet in the snow, the officers handled it to take it apart, the defendant’s [sic] both handled it, so what fingerprints are you going to get on the tape? It’s an old ugly gun, but it worked. It killed Maty Edmond. It did just what Antonio Lambert [Appellee] wanted it to do. He managed to shoot her. Why? Because she didn’t give up her pocket*410 book. She resisted it. And that’s exactly what Mr. Garcia said in his statement.
N.T., 6/7/02, at 106 (emphasis added). While there is no clear objection by defense counsel to this comment, the trial court had permitted argument to "go ahead” after the first comment without discussion of the objection. Id. at 104. Moreover, I find this second incident relevant to the harmless error analysis as it compounds the original Bruton violation.
. The Majority recites the facts based on Cheatham's testimony without acknowledging the discrepancy between Cheatham and Garcia’s versions of the events as described fully in the Superior Court’s published decision, Commonwealth v. Brown,