[Cite as State v. Chatmon,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99508

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

PIERRE CHATMON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555805

BEFORE: Stewart, A.J., Boyle, J., and McCormack, J.

RELEASED AND JOURNALIZED: November 27, 2013 ATTORNEY FOR APPELLANT

Joseph V. Pagano P.O. Box 16869 Rocky River, OH 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Denise J. Salerno Mahmoud Awadallah Assistant County Prosecutors The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, A.J.:

{¶1} A jury found defendant-appellant Pierre Chatmon guilty of murder, felonious

assault, and improperly discharging a firearm into a habitation, with associated firearm

specifications for all counts. The charges stemmed from an interfamily dispute that

escalated to riot and murder. Guns were fired at a house, and a bullet struck and killed a

16-year-old who was hiding behind the front door of the house. The state argued

Chatmon was either the primary shooter or complicit with codefendant Ramon Torres in

the shooting. In this appeal, Chatmon argues that there was no evidence to establish the

primary element of each offense — that he actually fired a gun — or that he acted in

complicity with Torres. He also argues, among other things, that the court erred by

refusing to instruct the jury on the offense of reckless homicide, that the state engaged in

misconduct during closing argument, and that the court abused its discretion by allowing

the jury to view autopsy photographs. We find no reversible error and affirm.

I

{¶2} Chatmon first argues that his convictions for murder, felonious assault, and

improperly discharging a firearm into a habitation were unsupported by sufficient

evidence to prove that he was complicit with those offenses. Although he conceded that

he was armed with a 9 mm gun when the shooting occurred, he argues that the state failed

to offer any proof that he discharged that gun. He notes that the police never found the

gun nor did they recover any 9 mm bullet casings on the scene. In addition, he notes that the bullet recovered from the victim was a .38 caliber, so it was different from the gun he

possessed. He also argues that the state failed to offer evidence to show that he was

complicit with codefendant Ramon Torres.

A

{¶3} We decide whether the evidence is sufficient to sustain a verdict by

examining the evidence in the light most favorable to the prosecution and determining

whether any rational trier of fact could have found that the prosecution proved the

essential elements of the crime beyond a reasonable doubt. State v. Yarbrough,

,

,

, quoting Jackson v. Virginia,

,

,

(1979).

{¶4} Viewing the evidence most favorably to the state shows that the 16-year-old

victim arrived home from school to discover that his family’s house had been ransacked

and their possessions stolen. The victim called his mother to report what he found, and

she in turn called her other children. They met at the house and learned from friends of

the victim that “word on the street” had it that one of the perpetrators was a member of a

family who lived nearby. A few of the victim’s family members drove to that home to

confront the alleged perpetrator; the remaining family members walked to the home.

{¶5} The victim’s mother testified that she told the alleged perpetrator’s mother

that her son broke into the house. Angry words were exchanged, and the alleged

perpetrator’s mother telephoned her son. At the same time, some of the alleged

perpetrator’s adult siblings appeared. When the alleged perpetrator arrived home, a fight broke out among all those present, including the mothers. An older male who was

present at the home separated the mothers. This intervention caused everyone to stop

fighting. Some of the victim’s family ran back to their house, but the victim’s mother

and a few others remained on the scene.

{¶6} As the victim’s mother remained at the alleged perpetrator’s house, she saw a

red car occupied by Chatmon and Torres drive up. Chatmon was related to the alleged

perpetrator’s family. Chatmon and Torres exited the car and ran toward those members

of the victim’s family who were walking home. Words were exchanged and according to

the victim’s mother, Torres “made a gesture like he had a gun.” The victim’s brother

exchanged words with Chatmon, and he, too, believed that Chatmon had a gun. As the

family members retreated to their house, the victim’s brother said that he heard gunshots.

{¶7} When the victim’s family returned to their house, they called the police to

report the break-in. After the police left, the victim’s family congregated on the front

porch. They received a visit from an aunt of the alleged perpetrator who was upset that

“everyone was fighting.” Having obtained no satisfaction, the aunt broke off the

discussion and drove away. As the aunt’s vehicle turned a corner, the victim’s mother

saw “all these guys coming” on foot. One of the victim’s family members said

something that caused all ten of those on the porch to retreat into the house and call the

police. The males outside the house gestured to those inside to come out, but the

victim’s family members remained inside for their protection. At the same time,

Chatmon and Torres drove up, but they were now driving a silver car obtained in a drug deal. Guns were fired in two volleys, separated by only moments. A bullet went

through the front door of the house and struck the victim in the head, leading to his death.

The bullet retrieved from the victim was .38 caliber. However, a police expert testified

that two different kinds of bullets were recovered from the scene, proving that two

different guns were used.

{¶8} Some of those hiding in the house saw Torres fire a gun, but none saw

Chatmon fire a gun. There was, however, an eyewitness to the shooting who testified

that he saw a person wearing black and green clothing firing a gun. The eyewitness

testified that he had been driving down the street where the shooting occurred, close to a

local bar. He saw “someone approaching the car and just started shooting across the car,

to the house across the street from the bar.” Surveillance video from the bar verified that

Chatmon was wearing a black and green shirt and that he carried a gun.

{¶9} The same eyewitness testified that he heard two volleys of gunfire that had

distinctive sounds. The eyewitness believed the different sounds indicated two different

types of guns were fired.

{¶10} When the police questioned Chatmon about the murder, he said that he was

present at the scene, but took off running as soon as he heard gunshots. He said that he

received a call from his cousin and learned that his family members were involved in a

fight with the victim’s family. He and Torres then drove to the scene, but Chatmon

denied being in possession of a gun at any time when the shooting occurred. {¶11} Unbeknownst to Chatmon, the surveillance video from the bar near the

scene of the shooting proved his statement to be false. The video showed Chatmon

taking a gun from the waistband of his trousers and checking it for ammunition. He then

proceeded to the street where he joined his compatriot in calling the victim’s family out of

their house. The video then showed Chatmon saying something to another person and

walking out of view of the camera. Moments later, the video showed the men apparently

reacting to gunshots because they covered for safety and then scattered. The video

showed that Chatmon was among the last to leave the scene and was carrying a gun in his

hand.

{¶12} When shown the video, Chatmon conceded that the video showed him

wearing a black and green shirt. He denied, however, that the gun he carried was

operable. At first he claimed that the gun did not have an ammunition clip, but that

explanation evaporated because the video showed him cocking the gun. Chatmon then

explained that he was only checking to see if there were bullets in the ammunition clip.

At that point, he told the police that the gun was inoperable because it lacked a firing pin,

although he admitted he did not discover this fact until after the shooting and further

provided no explanation for how he could discover the gun was inoperable but for firing

it. He claimed that Torres was the shooter, stating that Torres saw a car parked in front

of the victim’s house and, thinking it belonged to someone in the victim’s family, said

“I’m going to lite [sic] this bitch up.” He claimed that he was among the last to leave the

scene because the gun fell out of his trousers and he stopped to pick it up. B

{¶13} The jury found Chatmon guilty of two counts of felony murder (one count

relating to felonious assault; the other relating to improperly discharging a firearm into a

habitation); ten counts of felonious assault (there were ten people in the house); and one

count of improperly discharging a firearm into a habitation. In terms of being a principal

offender, all of the counts depended on a finding that Chatmon fired the gun. But in

terms of complicity, the jury could find him guilty if he, “acting with the kind of

culpability required for the commission of an offense,” aided or abetted Torres in the

commission of the offense. See R.C. 2923.03(A)(2). So Chatmon could be found guilty

for his complicity in the charged offenses regardless of whether he fired a gun, as long as

he assisted or facilitated the commission of a crime, or promoted its accomplishment.

See State v. Johnson,

,

(2001). Even if we were

to assume that the evidence did not show that Chatmon acted as a principal offender, we

find sufficient evidence to show that he aided and abetted Torres such that his conviction

was proper.

{¶14} Chatmon’s involvement with the murder began after the victim’s family

went to the home of the alleged perpetrator of the burglary. In a statement to the police,

he said he received a telephone call from a cousin describing the brawl at the alleged

perpetrator’s house and that he went to his aunt’s house “to fight.” Witnesses said that

both Chatmon and Torres either carried guns or made motions indicating that they were

armed. {¶15} When the events of the shooting occurred several hours later, there is no

question that both Chatmon and Torres were armed. Chatmon told the police that as he

and Torres exited their car and prepared to join others in retaliating against the victim’s

family, Torres asked about a car parked in front of the victim’s house and said that he was

going to “lite [sic] this bitch up.” Chatmon was seen in a surveillance video cocking his

gun, an act he conceded was to see if there were bullets in the clip.

{¶16} This evidence was sufficient to show that Chatmon assisted or facilitated

Torres in shooting the victim. Although one’s mere presence or proximity to an offense

is not enough to establish complicity, State v. Brewster,

,

,

(1st Dist.), Chatmon’s participation went beyond

mere presence. He and Torres were on the scene and armed for a fight. And with

Torres stating that he was going to “lite [sic] this bitch up,” the clear implication was that

he was going to shoot. Chatmon could not complain that he was unaware that Torres

would actually fire the gun. In addition, Chatmon himself was armed and shown

checking his ammunition before the shooting and then fleeing the scene with the gun in

his hand. This evidence was consistent with his assisting and aiding Torres in the

shooting.

C

{¶17} The court instructed the jury on complicity, but did not ask the jury to make

a specific finding on that point of law. It did tell the jury, in response to a question

during deliberations, that “aiding and abetting” did not apply to the firearm specification. It is unclear why the court answered as it did — the Ohio Supreme Court has held that a

defendant is subject to a sentencing enhancement on a firearm specification regardless of

whether he was the principal or an unarmed accomplice. State v. Chapman,

,

(1986). See also State v. Howard, 8th Dist. Cuyahoga

No. 97695,

(“It is well settled that an unarmed accomplice can be

convicted of an underlying felony, together with a firearm specification, based on an aider

and abettor status.”).

{¶18} Regardless of whether the court erred by telling the jury that a firearm

specification did not apply to Chatmon if the jury found he was an accomplice, there was

enough evidence to prove that the weapon he used was operable for purposes of proving

the firearm specification.

{¶19} In State v. Thompkins,

,

(1997), paragraph

one of the syllabus states:

A firearm enhancement specification can be proven beyond a reasonable doubt by circumstantial evidence. In determining whether an individual was in possession of a firearm and whether the firearm was operable or capable of being readily rendered operable at the time of the offense, the trier of fact may consider all relevant facts and circumstances surrounding the crime, which include any implicit threat made by the individual in control of the firearm. (State v. Murphy [1990],

,

, State v. Jenks [1991],

,

, and State v. Dixon [1995],

,

,

, followed; R.C. 2923.11[B][1] and [2], construed and applied.)

{¶20} The police did not recover the handgun that Chatmon used, so the state had

to resort to circumstantial evidence to prove that the handgun was operable. In State v.

Hills, 8th Dist. Cuyahoga No. 98848,

, we stated that “[c]ircumstantial evidence of a firearm’s operability includes the representations and actions of the

individual exercising control over the weapon.” Id. at ¶ 15.

{¶21} The video surveillance footage showed Chatmon cocking his gun. That act

alone tended to show the operability of the gun because it would have been pointless for

Chatmon to do so with an inoperable gun. In addition, the state’s ballistics expert gave

his opinion that one bullet recovered from the scene was not fired from the same gun as

the bullet that killed the victim. Although the police could not match this bullet to the

handgun carried by Chatmon because the handgun was not recovered, this evidence was

consistent with that of the eyewitness who said that the two volleys of gunshots he heard

sounded different. This indicated to the expert that two different guns were fired.

Consistent with this evidence, a rational trier of fact could have found that Chatmon fired

his gun, proving that it was operable.

D

{¶22} Chatmon also argues that the state failed to offer evidence sufficient to

establish that he had knowledge that Torres would shoot into the house.

{¶23} To support a conviction for complicity by aiding and abetting, the evidence

must show that the defendant supported, assisted, encouraged, cooperated with, advised,

or incited the principal in the commission of the crime, and that the defendant shared the

criminal intent of the principal. Johnson,

,

,

, syllabus. One’s presence at the scene of a crime is not enough alone to prove complicity, but complicity can be inferred from “presence, companionship and

conduct before and after the offense is committed.”

.

{¶24} The facts showing that Torres and Chatmon arrived on the scene armed and

ready to fight were enough to prove Chatmon’s complicity. In addition, a rational trier of

fact could have found Torres’s statement, that he was going to “lite [sic] this bitch up,”

was a direct and present indication to Chatmon of his intent to shoot. For his part,

Chatmon carried a loaded gun and specifically checked his ammunition. He may not

have known that Torres would fire into the house, but the circumstantial evidence was

strong enough to show that Torres’s act of firing into the house was such a distinct

possibility that Chatmon could have expected it to occur under the circumstances.

II

{¶25} Chatmon also argues that his convictions were against the manifest weight

of the evidence because the state failed to present evidence from many of the felonious

assault victims who were inside the house at the time of the shooting and because his

conduct was essentially similar to that of the others who did nothing more than fight.

{¶26} The manifest weight of the evidence standard of review requires us to

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. State v. Otten,

,

(9th Dist. 1986). {¶27} The jury’s verdict was not a miscarriage of justice. The state had no

obligation to present testimony of every person present inside the house at the time of the

shooting. Persons with knowledge of the facts could competently establish who was

present in the house at the time.

{¶28} We likewise reject Chatmon’s argument that his conduct was essentially

similar to that of those persons related to the victim, who were charged with aggravated

riot. The differentiating fact is that Chatmon carried a gun and manifested the intent to

use it. Not only did the testimony from the victim’s family members uniformly show that

none of them had firearms, they ran to safety when they discovered that Chatmon carried

a handgun. Chatmon’s conduct was distinctly different from that of the other persons on

the scene at the time of the shooting and warranted that he be charged with different

offenses.

III

{¶29} At the close of evidence, Chatmon asked the court to instruct the jury on the

lesser included offense of reckless homicide. He theorized that whether acting as a

principal or in complicity with Torres, he only intended to shoot the car parked in the

front of the victim’s house, but missed the target and hit the house instead. The state

opposed the proposed instruction on grounds that Chatmon engaged in a purposeful act in

shooting. The court refused to give the instruction, finding no basis for concluding that

Chatmon, as either a principal offender or acting in complicity with Torres, was reckless

in discharging a firearm. {¶30} There is a two-tiered analysis for determining whether a particular offense

should be submitted to the trier of fact as a lesser included offense: (1) is the offense a

lesser included offense of the charged offense, and (2) could the trier of fact reasonably

find the defendant not guilty of the charged offense, but convict the defendant of the

lesser included offense. State v. Deanda,

,

,

.

{¶31} Reckless homicide is a lesser included offense of murder, State v. Benson,

8th Dist. Cuyahoga No. 87655,

, so the only question is whether the

facts presented at trial could reasonably support an acquittal on murder and a conviction

for reckless homicide. Because the decision of whether to give a lesser included offense

instruction requires the court to consider the facts, the court has discretion when

determining whether the record contains sufficient evidence to support the requested

instruction. State v. Henderson, 8th Dist. Cuyahoga No. 89377,

,

citing State v. Wright, 4th Dist. Scioto No. 01 CA2781,

.

{¶32} Reckless homicide as defined in R.C. 2903.041 differs from murder only

with respect to the culpable mental state: murder in violation of R.C. 2903.02 requires

that the offender act “purposely” to cause the death of another; reckless homicide requires

proof that the accused acted “recklessly.” “A person acts recklessly when, with heedless

indifference to the consequences, he perversely disregards a known risk that his conduct

is likely to cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C). {¶33} The court gave the following reasons as to why it would not give a reckless

homicide instruction:

If [Chatmon and Torres] went down there to feloniously assault these people, if they went down there to shoot up the house, shoot up the car, I mean, those are acts that are intended. And when they result in death, I don’t believe the proper charge down [sic] is reckless homicide.

{¶34} We take the court’s reasoning to be that both Chatmon and Torres were on

the scene committed to harming the victim’s family, so their intentional act of shooting a

gun made them responsible for the natural and probable consequences of that act.

Viewed in that manner, we agree that the court did not abuse its discretion by refusing the

instruction.

{¶35} The court had uncontested evidence that Chatmon and Torres were twice on

the scene, and convincing evidence to show that on both occasions they were armed with

handguns. As Chatmon conceded to the police, he and Torres went to the scene a second

time with the intent to fight. When the victim’s family retreated into their house,

Chatmon and his compatriots were seen beckoning the victim’s family out of the house.

The family refused to exit the house and shots were fired just seconds later.

{¶36} Four shots struck the house: two in the front door, one on the second floor

porch, and one on the third floor of the house. The shooters plainly knew the house was

occupied, so the act of shooting the occupied house made them responsible for the natural

and probable consequences of doing so.

{¶37} Chatmon argued that Torres was only aiming for the car that sat between

them and the house. It was not entirely clear whether the car was parked in a direct path between the shooter and the house (a police detective said, in reference to the position of

the car, “I can’t really say the path, but it’s in front of the house). There was some

evidence to support this argument — several months after the shooting, the police learned

for the first time that the car had a bullet hole in the driver’s door. The police were

unable to recover the bullet to match it against those bullets recovered from the scene, so

the bullet hole neither proved nor disproved Chatmon’s theory that Torres was merely

shooting at the car.

{¶38} Other evidence tended to contradict the theory that Torres was only shooting

at the car. There was evidence that shots were fired by two different guns and more

bullets struck the house than the car: bullets struck the upper levels of the house, making

it highly improbable that the shooters could have missed their target so badly. With this

evidence, the court could reasonably find that Chatmon and Torres purposely shot at the

house knowing that it was occupied. So the facts did not reasonably support an acquittal

on the murder charge and a conviction for reckless homicide.

IV

{¶39} Chatmon next argues that the court abused its discretion by allowing the

state to display gruesome autopsy photographs of the victim. He maintains that the cause

of death was uncontested so the state’s sole purpose for using the photographs was to

inflame the passions of the jury.

{¶40} At trial, Chatmon did not object to the admission of the photographs on the

basis that they were gruesome — defense counsel told the court that “[p]hotographs depicting the wound, we do not object to.” Having waived any objection to the

admission of photographs of the wound, Chatmon cannot complain on appeal that those

photographs were gruesome. Indeed, he invited the claimed error. State v. Smith,

,

,

(8th Dist.).

{¶41} Apart from Chatmon waiving any error relating to the gruesomeness of the

photographs, the state is entitled to offer evidence showing the cause of death, even if the

cause of death is uncontested, to give the jury an “appreciation of the nature and

circumstances of the crimes.” State v. Evans,

,

(1992). Nevertheless, the admission of autopsy photographs, like all other evidence,

must pass the initial test of relevancy, and their probative value must outweigh the danger

of material prejudice to the defendant. State v. Maurer,

,

(1984), paragraph seven of the syllabus.

{¶42} The five, full-body autopsy photographs of the victim were irrelevant.

They did not depict the gunshot wound so they did not serve to give the jury an

appreciation of the nature and circumstances of the crime. The court likewise should not

have admitted a close-up photograph of the victim’s face that did not show the gunshot

wound — that photograph had no evidentiary value of any kind. Finally, two

photographs showing the victim’s right and left hands, respectively, contained no

probative evidence of the crime and thus had no evidentiary value. There being no

evidentiary value whatsoever to these photographs, we can only conclude that the state

offered these photographs into evidence for the sole purpose of appealing to the jurors’ passions. On that basis, they were materially prejudicial to the defense and should not

have been admitted into evidence.

{¶43} Despite the court’s error in admitting these autopsy photographs, we cannot

say that their admission deprived Chatmon of a fair trial. When publishing the

photographs to the jury, the court explained that the photographs “are evidence of what

goes on during an autopsy, the procedure that is used, and the findings of the physician in

question.” Importantly, the court then told the jurors that they “may not find [the

photographs] particularly relevant to the decision that you must make.” Whether the jury

did find the photographs relevant is unknown. But the state did offer substantial,

relevant evidence of Chatmon’s complicity in the shooting; namely, the surveillance

video showing Chatmon holding a gun both before and after the shots were fired. This

evidence was so strong that any prejudicial effect of allowing inadmissible autopsy

photographs into evidence was harmless.

V

{¶44} During the state’s closing argument, it explained certain legal definitions

like the terms “knowingly,” “attempt,” and “impossibility” in paraphrase of the statutory

definition. Chatmon argues that the state got some of these definitions wrong; for

example, telling the jurors that his “intent is to shoot. We all know to shoot is to kill, and

that was the result there.” He argues that the state’s argument misled the jury and that

trial counsel was ineffective for failing to object.

A {¶45} Chatmon concedes that he did not object to the state’s closing argument, so

he has forfeited all but plain error. See Crim.R. 52(B). This means that he can prevail

on this assignment of error only if the error affected Chatmon’s substantial rights and but

for the error, the outcome of the trial would clearly have been different. State v. Long,

,

(1978), paragraph two of the syllabus.

{¶46} Chatmon makes no argument that the instructions given by the court on the

relevant terms defining the charged offenses were incorrect in any way. The court made

it clear to the jury that closing arguments were not evidence and that it would instruct the

jury on the applicable law. When it did give its instructions, it informed the jury that it

had to “decide the case based upon the law that I instruct you on” and that “[y]ou have to

accept the law as it is and you are to apply it throughout your entire deliberations * * *.”

The court also permitted the jury to take its instructions into deliberations. A jury is

presumed to follow the instructions given to it by the judge, State v. Henderson,

,

(1988), and nothing in this case suggests that the jury did

otherwise. Chatmon has failed to show any prejudice, so no plain error exists.

B

{¶47} To succeed on his ineffective assistance of counsel claim, Chatmon must

show that: (1) counsel’s failures fell below an objective standard of reasonableness and

(2) counsel’s deficient performance was prejudicial. See Strickland v. Washington,

,

,

(1984). To show prejudice in an

ineffective assistance of counsel claim, the defendant must demonstrate “a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been

different.” State v. Bradley,

,

(1989), paragraph three

of the syllabus.

{¶48} As previously noted, Chatmon has no complaint with the jury instructions

given by the court. Those instructions clearly told the jury that it must follow the

definitions of statutory elements given by the court, not counsel. The presumption that

the jury follows the court’s instructions holds here. We find no reasonable probability

that anything the state said in closing argument caused the jury to disregard the court’s

instructions to arrive at a verdict of guilty.

VI

{¶49} During sentencing, the court credited Chatmon with jail-time served, but did

not state the number of days credited. Chatmon argues this was error. We find no error.

At the time of his indictment, Chatmon was being held in jail on two separate cases:

CR-555151 and CR-556026. A defendant cannot receive jail-time credit when he serves

time for unrelated offenses while in jail awaiting trial on separate charges. See State v.

Logan,

,

(10th Dist. 1991); State v. Harper, 6th

Dist. Sandusky No. S-10-005,

, ¶ 13. The court’s statement that

Chatmon was entitled to jail-time credit appeared to have been made by rote. The

statement was essentially meaningless because Chatmon was held on other charges and

was not entitled to any credit.

VII {¶50} Finally, Chatmon argues that the court erred by failing to merge the ten

felonious assault counts, conceding that this court has held that felonious assault

convictions resulting from a single course of conduct that results in different named

victims do not merge. See, e.g., State v. Snuffer, 8th Dist. Cuyahoga Nos. 96480, 96481,

96482, and 96483,

(“[w]hen an offense is defined in terms of

conduct towards another, then there is dissimilar import for each person affected by the

conduct”). Given this concession, we overrule the assignment of error.

{¶51} Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case remanded

to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MELODY J. STEWART, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and TIM McCORMACK, J., CONCUR