Com. v. Bell, M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MONTANA BELL, :
:
Appellant : No. 2836 EDA 2013
Appeal from the Judgment of Sentence Entered August 15, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0012776-2011.
BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 26, 2014
Appellant, Montana Bell, appeals from the judgment of sentence
entered following his conviction of one count of third degree murder, one
count of Violating the Uniform Firearms Act (“VUFA”), and one count of
possession of an instrument of crime (“PIC”). We affirm.
The trial court summarized the facts of this case as follows:
These charges arose out of an incident that occurred on
July 11, 2011, at approximately 11:45 p.m. Appellant and the
decedent, Kim Davis (“Davis”), were engaged in an ongoing
argument over prescription pills and money. Davis and
Appellant met up that night and continued their argument at the
corner of Patton and Allegheny Streets, outside Davis’s home.
During the argument, Appellant hit Davis, knocking her to the
ground. Davis got back up to her feet and reached for the
hammer she carried around the neighborhood for protection but
before she could get the hammer out, Appellant shot her. Davis
______________________________
*Retired Senior Judge assigned to the Superior Court.
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was shot twice in the head and neck area but suffered three (3)
gunshot wounds. Davis was shot in her right cheek and the
bullet exited her left cheek, hitting the left upper cervical spine
causing a spinal cord injury. Davis was shot in her neck, behind
her right ear, causing injury to her right temporal lobe. Davis’s
third gunshot wound was to her left forearm and appeared to be
a reentry from having her forearm near either her cheek or her
neck at the time she was shot.
Officer James Russell (“Officer Russell”) and his partner,
James Somerville (“Officer Somerville”) noticed a job pending at
Patton & Allegheny Streets and responded over police radio that
they would handle the job. Upon arrival, they were flagged
down by a woman on the street who stated that there was a
woman, later identified as Davis, lying on the ground. Both
Officers Russell and Somerville got out of the patrol car and
approached Davis, who was laying on her stomach. The officers
rolled Davis over on her back and noticed a large amount of
blood coming from her head. When asked if she knew who shot
her, Davis was unresponsive. Davis was breathing but was
having difficulty speaking because blood was coming from her
mouth. Other officers arrived shortly after and helped Officers
Russell and Somerville carry Davis to Russell and Somerville’s
patrol car. Officers Russell and Somerville rushed Davis to
Temple University Hospital and remained at the hospital with
Davis. Davis was pronounced dead at 12:01 a.m. on July 12,
2011. Davis was transported to the Medical Examiner’s Office
where an autopsy was performed which determined that the
cause of death was two (2) gunshot wounds to the face and neck
and the manner of death was homicide.
Trial Court Opinion, 3/4/14, at 2-3.
The trial court provided the following procedural history of this case:
On June 21, 2013, Appellant, Montana Bell, was found
guilty, [by a jury], of one (1) count of third degree murder, a
felony of the first degree; one (1) count of Violating the Uniform
Firearms Act (“VUFA”) § 6108, a misdemeanor of the first
degree; and, one (1) count of Possession of an Instrument of
Crime (“PIC”), a misdemeanor of the first degree. On August
15, 2013, [the trial court] sentenced Appellant to twenty to forty
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(20-40) years for the 3rd degree murder conviction, two and
one-half to five (21/2 - 5) years incarceration for the VUFA
conviction, and two and one-half to five (21/2 - 5) years
incarceration for PIC. All convictions are to run consecutively,
for a cumulative sentence of twenty-five to fifty (25-50) years
incarceration.
On September 11, 2013, Appellant filed a timely Notice of
Appeal. On November 12, 2013, after ascertaining that all notes
of testimony were available, [the trial court] pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), ordered
Appellant to file a self-contained and intelligible statement of
matters complained of on appeal. On December 2, counsel filed
a 1925(b) statement of matters complained of on appeal to [the
trial court].
Trial Court Opinion, 3/4/14, at 1-2. The trial court prepared an opinion
pursuant to Pa.R.A.P. 1925(a) based on the issues outlined in Appellant’s
Pa.R.A.P. 1925(b) statement. Id. at 1-9.
Appellant presents the following issues for our review in his appellate
brief:
I. Is [Appellant] entitled to an arrest of judgment on all
charges, including Murder in the Third Degree and Related
Weapons Offenses, where the evidence was insufficient to
sustain the verdict?
II. Is [Appellant] entitled to a new trial where the
verdict was not supported by the greater weight of the evidence,
and where the verdict was based on speculation, conjecture and
surmise?
Appellant’s Brief at 3.
We begin our analysis by considering whether Appellant’s issues raised
in his appellate brief are waived. As noted, Appellant was directed to file a
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Pa.R.A.P. 1925(b) statement in this case and he timely complied. In that
Pa.R.A.P. 1925(b) statement, Appellant outlined the following issues:
1. It was error to admit certain ballistic evidence, to the
prejudice of the defendant. Notes of Testimony, June 20, 2013,
pp 59, 15-54.
2. It was error to admit testimony about alleged automobile
theft, assault, and pills, to the prejudice of the defendant. Notes
of Testimony, June 17, 2013, pp 13-17, Notes of Testimony,
June 19, 2013, pp 66-100.
3. It was error to admit hearsay evidence, to the prejudice of the
defendant, relative to identification of the defendant. Notes of
Testimony, June 18, 2013, pp 123-124.
4. It was error to disallow cross-examination relative to a “deal”
made by a witness to testify against the defendant, to the
prejudice of the defendant. Notes of Testimony, June 18, 2013,
pp 131-132.
5. It was error to allow testimony, to the prejudice of the
defendant, that “others” knew that the defendant had been
arrested. Notes of Testimony, June 18, 2013, p 189.
Appellant’s Statement of Matters Complained of pursuant to Rule of
Appellate Procedure 1925(b), 12/2/13, at 1-2. Consequently, in its
Pa.R.A.P. 1925(a) opinion, the trial court addressed the above-referenced
issues outlined in Appellant’s Pa.R.A.P. 1925(b) statement.
Issues not included in a Rule 1925(b) statement are deemed waived.
Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has stated the following
regarding preservation of issues in a Pa.R.A.P. 1925(b) statement:
Our jurisprudence is clear and well-settled, and firmly
establishes that: Rule 1925(b) sets out a simple bright-line rule,
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which obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered; any issues not raised in a Rule
1925(b) statement will be deemed waived; the courts lack the
authority to countenance deviations from the Rule’s terms; the
Rule’s provisions are not subject to ad hoc exceptions or
selective enforcement; appellants and their counsel are
responsible for complying with the Rule’s requirements; Rule
1925 violations may be raised by the appellate court sua sponte,
and the Rule applies notwithstanding an appellee’s request not
to enforce it; and, if Rule 1925 is not clear as to what is required
of an appellant, on-the-record actions taken by the appellant
aimed at compliance may satisfy the Rule. We yet again repeat
the principle first stated in [Commonwealth v.] Lord[, 719
A.2d 306 (Pa. 1998)] that must be applied here: “[I]n order to
preserve their claims for appellate review, [a]ppellants must
comply whenever the trial court orders them to file a Statement
of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.
Any issues not raised in a Pa.R.A.P. 1925(b) statement will be
deemed waived.”
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (internal footnote and
citations omitted). “[W]aiver under Rule 1925 is automatic.”
Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002). Accordingly,
because Appellant has failed to preserve the issues raised in his appellate
brief by including them in his Pa.R.A.P. 1925(b) statement, we find these
issues waived.
Additionally, to the extent that Appellant claims that the verdict was
not supported by the weight of the evidence, we conclude that this issue
also is waived on a second basis. “[A] challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004). In
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order to preserve a weight of the evidence claim, it must be raised either
prior to sentencing in front of the trial court or after sentencing in a post
sentence motion. Pa.R.Crim.P. 607(A).
Instantly, Appellant failed to raise, prior to sentencing or in a post-
sentence motion, his claim regarding weight of the evidence. Rather,
Appellant raised the issue for the first time in his appellate brief. Thus, in
addition to these claims being waived as a result of not being included in the
Pa.R.A.P. 1925(b) statement, Appellant’s weight of the evidence claim is also
waived due to his failure to preserve it by raising it with the trial court.
Because Appellant has failed to preserve the issues he raised in his
appellate brief, we conclude that those issues are waived. As such, we are
precluded from reviewing the merits of those claims and affirm Appellant’s
judgment of sentence. See In re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa.
2007) (stating where issues are waived on appeal, we should affirm rather
than quash appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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