Com. v. Gentilquore, D. ( 2014 )

J-S48012-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee, :
:
v. :
:
DARREN RICHARD GENTILQUORE, :
:
Appellant : No. 1860 MDA 2013
Appeal from the Judgment of Sentence December 21, 2006,
Court of Common Pleas, Susquehanna County,
Criminal Division at No. CP-58-CR-0000183-2006
BEFORE: DONOHUE, JENKINS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 09, 2014
Appellant, Darren Richard Gentilquore
the judgment of sentence of the Court of Common Pleas, Susquehanna
County, following a conviction on the following charges: two counts of
criminal attempt to commit homicide, 18 Pa.C.S.A. §§ 2501(a), 901(a), two
counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), and two counts of
aggravated assault, 18 Pa.C.S.A. § 2702(a)(4). For the reasons that follow,
we affirm.
A summary of the relevant facts and procedural history is as follows.
, a resident of New Jersey, purchased
property. Shaun and Gentilquore became friends. On May 26, 2006, Shaun
long
*Retired Senior Judge assigned to the Superior Court.
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Memorial Day Weekend.
invited the Bigelows to come to his property to sit around the fire. N.T.,
11/13/06, at 208. A
Id. Gentilquore
began to follow the Bigelows on his ATV. Id. at 209-10. While on the trail
uore ran his ATV
Id. at 210-11. Gentilquore
agreed to pay for the damage, resolving the situation without any incident.
Id. at 211-12.
The Bigelows, Gentilquore, McCormick, Jim Velcheck, and two of
McCormick
Id. at 213-14. Later in the evening, Gentilquore started a fight with
-
property and Gentilquore obliged. Id. at 255. Shortly after Gentilquore left,
gunshots were fired. Id. at 256-
an
stop shooting because it was scaring the kids. Id. at 217. There was a
pause in the shooting, but shortly thereafter, gunshots began again. Id. at
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218-19. Ryan decided he was g
him to stop. Id. at 219-20.
Id. at 220. Gentilquore did not
respond to Ryan. Ryan told Gentilquore to co
Id. at 224. Gentilquore did not respond so
to get Shaun. Id. at 232. Ryan believed that Shaun would be able to get
Gentilquore to stop shooting the gun since they were friends. Id.
property. Shaun arrived first and quietly knocked on the door.
Id.
because he was angry and as retaliation for Gentilquore hitting his ATV
earlier in the evening. Id. at 236. Ryan p
front door to his house and bang on the door. N.T., 11/15/06, at 62-63.
Gentilquore came to the front door with a gun. Id. at 63-64; N.T.,
Id. at 237. Ryan approached the door, at
which time, Gentilquore told him to get off his property or else he was going
Id. at 239. Ryan told Gentilquore if he did not come
outside and face him wit
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threatened to burn his house down. N.T., 11/13/06, at 224; N.T., 11/15/06,
at 64-65.
Gentilquore proceeded to stick the barrel of the gun out of the storm
door and poked Ryan with the gun. Id. at 240. Ryan then called
Id. at 241. Gentilquore pulled the trigger, shooting Ryan
in the abdomen at point blank range. Shaun began screaming at
Id. at 92. Gentilquore turned towards Shaun and shot
him in the abdomen. Id.
Gentilquore was charged with two counts of criminal attempt to
commit homicide and four counts of aggravated assault. A jury convicted
Gentilquore on all charges on November 15, 2006. On December 21, 2006,
the trial court sentenced Gentilquore to 20-40 years of incarceration on
count one of criminal attempt to commit homicide and 20-40 years of
incarceration on the second count of criminal attempt to commit homicide,
to run consecutive to the first count. N.T., 12/21/06, at 38-39. The four
counts of aggravated assault merged with counts one and two and therefore,
Gentilquore was not sentenced on those charges. Id. at 3, 40.
On January 2, 2007, Gentilquore filed a petition for reconsideration of
sentence, which the trial court denied on January 10, 2007. Gentilquore
filed a direct appeal to this Court challenging the discretionary aspects of his
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sentenc
the discretionary aspects of his sentence waived and affirmed his judgment
of sentence.
While Gentilquore waited for disposition of his direct appeal, he filed a
pro se PCRA petition. This pro se PCRA petition was held in abeyance
disposition, affirming his judgment of sentence, Gentilquore filed a series of
amended PCRA petitions, asserting ineffective assistance of counsel by both
the PCRA court on July 12, 2010. Gentilquore appealed.
This Court vacated the PCRA c
proceedings after concluding that the PCRA court violated Pa.R.Crim.P. 907
a hearing. On March 21, 2012, the PCRA court provided notice to
Gentilquore of its intention to dismiss his PCRA petition pursuant to
Pa.R.Crim.P. 907. Gentilquore filed another amended PCRA petition on May
2, 2012. The PCRA court entered an order on July 9, 2012, dismissing the
May 2, 2012 PCRA petition. Gentilqu
this Court.
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appeal nunc pro tunc include a Pa.R.A.P.
Commonwealth v. Gentilquore, 1461 MDA 2012, at 7 (Pa. Super.
September 12, 2013) (unpublished memorandum). On September 18,
2013, the Susquehanna County Court of Common Pleas issued an order
nunc pro tunc.
Gentilquore timely filed a notice of appeal to this Court. On direct appeal,
Gentilquore raises the following issues for our review1:
1. Did the [t]rial [c]ourt err in, over the objection of
counsel, allowing the admission of prior wrongs to
prove the state of mind of [Gentilquore] about his
property and identity w[h]ere the admission did not
fit within an exception to Pa.R.E. 404(b) and, even if
it had, the probative value did not outweigh the
unfair prejudice?
2. Did the [t]rial [c]ourt err, over the objection of [t]rial
[c]ounsel, allowing the cumulative testimony from
witnesses unconnected with the victims to testify
that [Gentilquore] would shoot on his property lat[e]
at night which was not only irrelevant to the present
right to a fair trial?
3. Did the [t]rial [c]ourt err in, over the objection of
[t]rial [c]ounsel, allow the admission and publication
of color photographs of the Bigelows to the jury
thereby inflaming the passions of the jury and
depriving [Gentilquore] of a fair trial?
1
Gentilquore was not ordered to file a 1925(b) statement. The trial court
did not file a 1925(a) opinion in this matter. However, the
addresses all of the issues that Gentilquore raises in his appeal. We further
disposition.
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4. Should [Gentilquore] be granted a new trial as a
result of the amendment to 18 Pa.C.S.A. section
505(2.1) better known as the Castle Doctrine?
For his first issue on appeal, Gentilquore claims that the trial court
-35, 38-40. At trial,
after Gentilquore objected to the admission of their testimony to establish
prior bad acts, such as shooting firearms on his property and making
terroristic threats, the trial court made a ruling that the evidence was
admissible to prove motive, intent, state of mind, and identity as to the
shooter. N.T., 11/13/06, at 4.
We begin with our well-settled standard of review:
The admission of evidence is a matter vested within
the sound discretion of the trial court, and such a
decision shall be reversed only upon a showing that
the trial court abused its discretion. In determining
whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the
evidence against the prejudicial impact of that
evidence. Evidence is relevant if it logically tends to
establish a material fact in the case or tends to
support a reasonable inference regarding a material
fact. Although a court may find that evidence is
relevant, the court may nevertheless conclude that
such evidence is inadmissible on account of its
prejudicial impact.
Commonwealth v. Page, 965 A.2d 1212, 1219 (Pa. Super. 2009).
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Rule 404(b)(1) of the Pennsylvania Rules of Evidence provides that
of other crimes, wrongs, or acts is not admissible to prove the
for other limited purposes, including, but not limited to, establishing motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident, common scheme or design, modus operandi, and the
Commonwealth v.
Kinard, __ A.3d __, 2014 WL 848273, at *3 (Pa. Super. 2014) (citing
Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010),
appeal denied, 22 A.3d 1033 (Pa. 2011)). The trial court may admit the
evidence for these limited purposes if the probative value of the evidence
outweighs its potential prejudicial effect. Pa.R.E. 404(b)(2).
Gentilquore threatened the lives of her and her dogs if they ever entered his
-62.
ructions to the
relate to the identity, state of mind, and motive and/or intent of Gentilquore.
Id. at 176.
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Gentilquore argues that the trial court erred under Rule 404(b)(1) in
fear and did not want to kill the Bigelows, but felt it was necessary to protect
himself and his family, as he was afraid that Ryan would burn his house
down and kill him. N.T., 11/13/06, at 68. He further testified that he shot
from the hip and shot low because he did not want to kill Ryan. Id. at 69-
Id. at 71. Shaun then appeared, however, and knocked out the
was about to lift his leg to walk through the door. Id. at 71. Gentilquore
and that he was terrified at that moment. Id. at 72. In sum, Gentilquore
simply entering onto his property, but, rather shot them at his front door
after the Bigelows had been acting in a threatening manner which is
Id. at 33.
court indicated that it permitted the introduction of the Vis testimony based
upon its relevance to show motive, intent, state of mind, and identity under
order for evidence of prior bad acts to be admissible as evidence of motive,
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the prior bad acts must give sufficient ground to believe that the crime
currently being considered grew out of or was in any way caused by the
Commonwealth v. Jackson, 900
A.2d 936, 940 (Pa. Super. 2006) (citing Commonwealth v. Melendez-
Rodriguez, 856 A.2d 1278, 1283 (Pa. Super. 2004)). In this case, there is
reat directed at Vis.
With respect to intent or state of mind, the Commonwealth did not
elicit any testimony regarding when the Vis threat occurred. Moreover, the
incidents with Vis and the Bigelows share no factually similarities
whatsoever. Vis testified that Gentilquore threatened her after he had a
near collision with a friend of hers on the road, N.T., 11/13/06, at 162, while
property, outside of his front door, with Ryan banging on the door and
between the two incidents that would enable the jury to determine
was acting in self-defense when he shot the Bigelows.
demonstrated that Gentilquore was an aggressive landowner, and therefore
had a propensity to engage in aggressive or violent behavior towards
trespass
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that on a particular occasion the person acted in accordance with the
Supreme Court has succinctly stated that
(t)he purpose of this rule is to prevent the conviction
of an accused for one crime by the use of evidence
that he has committed other unrelated crimes, and
to preclude the inference that because he has
committed other crimes he was more likely to
commit that crime for which he is being tried.
The presumed effect of such evidence is to
predispose the minds of the jurors to believe the
accused guilty, and thus effectually to strip him of
the presumption of innocence.
Kinard, 2014 WL 848273, at *3 (emphasis added) (quoting
Commonwealth v. Spruill, 391 A.2d 1048, 1049 (Pa. 1978)). Accordingly,
aggressive landowner, we conclude that the trial court erred in admitting
2
Nevertheless, in Commonwealth v. Stafford, 749 A.2d 489 (Pa.
Super. 2000), this Court held:
Not all improper references to prior bad acts will
e passing
2
Gentilquore cites to Commonwealth v. Seiders, 614 A.2d 689 (Pa.
Seiders reveals that our Supreme Court held that prior crimes may not be
introduced as evidence of intent in cases where intent is not at issue.
Seiders, 614 A.2d at 691. Unlike Seiders, the ultimate issue presented to
the jury in this case was whether Gentilquore shot the Bigelows in self-
defense. Thus, Seiders is inapplicable to this case.
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references to criminal activity will not require
reversal unless the record indicates that prejudice
present when the properly admitted evidence of guilt
is so overwhelming and the prejudicial effect of the
error is so insignificant by comparison that it is clear
beyond a reasonable doubt that the error could not
Id. at 496-
adopted in Pennsylvania, reflects the reality that the accused is entitled to a
Commonwealth v. Hetzel, 822 A.2d 747,
759 (Pa. Super. 2003) (citing Commonwealth v. Drummond, 775 A.2d
849, 853 (Pa. Super. 2001)). After our review of the record, we conclude
to the verdict in light of the overwhelming evidence properly admitted at
trial, and therefore, constitutes harmless error.
In this case, the ultimate issue presented to the jury was whether
Gentilquore shot the Bigelows in self-defense. Self-defense rights are
governed by 18 Pa.C.S.A. § 505. Section 505 provides, in relevant part:
(a) Use of force justifiable for protection of the
person. The use of force upon or toward another
person is justifiable when the actor believes that
such force is immediately necessary for the purpose
of protecting himself against the use of unlawful
force by such other person on the present occasion.
(b) Limitations on justifying necessity for use
of force.
***
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(2) The use of deadly force is not justifiable
under this section unless the actor believes
that such force is necessary to protect himself
against death, serious bodily injury, kidnapping
or sexual intercourse compelled by force or
threat; nor is it justifiable if:
(i) the actor, with the intent of causing
death or serious bodily injury, provoked
the use of force against himself in the
same encounter; or
(ii) the actor knows that he can avoid the
necessity of using such force with
complete safety by retreating, except the
actor is not obliged to retreat from his
dwelling or place of work, unless he was
the initial aggressor or is assailed in his
place of work by another person whose
place of work the actor knows it to be.
18 Pa.C.S.A. § 505.3
-defense, the
Commonwealth bears the burden of disproving the self-defense claim
Commonwealth v. Chine, 40 A.3d 1239,
1243 (Pa. Super. 2012) (citing Commonwealth v. Houser, 18 A.3d 1128,
1135 (Pa. 2011)). This Court has held that
The Commonwealth sustains this burden if it
establishes at least one of the following: 1) the
accused did not reasonably believe that he was in
danger of death or serious bodily injury; or 2) the
accused provoked or continued the use of force; or
3
Section 505 was amended, effective August 29, 2011, adding
-(2.6). As will
be discussed infra, these additions do not apply to this case as the incident
occurred in May 2006.
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3) the accused had a duty to retreat and the retreat
was possible with complete safety.
Commonwealth v. Smith, 2014 WL 3844118, at *3 (Pa. Super. Aug. 6,
2014) (citing Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa.
Super. 2008), appeal denied
Commonwealth can negate a self-defense claim by proving the defendant
Smith, 2014 WL 3844118, at *4 (citing
Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en
banc)).
Although Gentilquore claimed that he acted in self-defense when he
shot the Bigelows, no evidence introduced at trial established that
Gentilquore was justified in using deadly force to protect himself. First, no
testimony established that either of the Bigelows were armed during the
confrontation with Gentilquore. While Gentilquore argued that he feared for
house down, Gentilquore never testified that Ryan had a weapon, a blow
torch, a can of gasoline, a Molotov cocktail, or any fire-starting device on
him. Id. at 127, 162. Gentilquore also admitted that he did not see a gun
the incident, also testified that he did not see any weapons in either of Ryan
11/14/06, at 119.
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In Commonwealth v. Witherspoon, 730 A.2d 496 (Pa. Super.
deadly weapon against a rela not a justifiable
level of force. Id. at 499 (citations omitted). Our Supreme Court echoed
this position in Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009),
Id. at 1221. As a result,
unjustifiable, and the result of this case could not be impacted by the
Moreover, the evidence establishes that Gentilquore was not justified
in using deadly force to protect himself in light of the evidence showing that
the Bigelows
reasonable person would not have believed he was in imminent danger of
death or serious bodily injury. In this case, the Bigelows never entered
at all times. Gentilquore admitted that he remained in his house and
ignored Ryan the first time he came to his property, and that Ryan left a few
minutes later. N.T., 11/15/06, at 54-56. Although Ryan admitted to
banging on Gentilquo
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and Shaun testified that they never attempted to gain entry to the house.
N.T., 11/13/06, at 95-96, 229-30. Furthermore, Gentilquore provided his
version of the events as they unfolded, testifying that as Ryan stood outside
pussy and then I - - -69, 121-24.
Given this evidence, we conclude that there was overwhelming
evidence to negate -defense and to
convict him of criminal attempt to commit homicide and aggravated assault,
cordingly, Gentilquore is
not entitled to relief on this issue on appeal.
With respect to the testimony of Hogle and Beaudry, we conclude that
the trial court did not err or commit abuse of discretion in admitting this
evidence. Hogle testified that Gentilquore often shot firearms on his
property late at night and that he called the police on the night in question
-84.
ening
or early morning hours after Gentilquore moved to the area and that he
heard gunshots and yelling on the night in question. N.T., 11/14/06, at 6-8.
explain why [Gentilquore] shot the Bigelows, and was, in fact, irrelevant to
proving the identity of the shooter, since [Gentilquore] admitted that he shot
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the Bigelow[s] and, also, never denied that he shot his firearm on his
admission that he shot the Bigelows, we agree that identity was not at issue.
However, we fail to see how testimony that Gentilquore shot firearms on his
bad acts
In Commonwealth v. Luster, 71 A.3d 1029 (Pa. Super. 2013), the
appellant was charged with murdering a woman he was romantically
involved with. Id. at 1035-37. At trial, an individual who lived in the same
apartment building as the victim testified that he often heard the appellant
and the victim arguing. Id. at 1049-50. The appellant objected to this
testimony as irrelevant and on appeal, asserted that the testimony was
evidence of prior bad acts and
Id. at 1050.
This Court determined that the testimony could not be characterized as
Id.In this case, Gentilquore asserted that the testimony portrayed him as
depriving [him] of t
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relevant character issue leading to an inference of propensity. Gentilquore
never argued at trial or on appeal that the testimony tended to convey to
the jury that because he shot firearms on his property at night, he
demonstrated a propensity to shoot people. Rule 404(b) only prohibits
order to show that on a particular occasion the person acted in
accordance with the character
this case, if anything, the testimony that Gentilquore shot firearms on his
property was neutral in this aspect as it established that he shot firearms on
his property on a multitude of occasions without harming anyone.
testimony of Hogle and Beaudry.
For his second issue on appeal, Gentilquore argues that the trial court
the Bigelows, as well as others who had direct contact with [him] that
Id. at 39. Gentilquor
etched into the minds of the jurors the picture of [Gentilquore] disturbing
Id. As a result, Gentilquore argues that the cumulative evidence deprived
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Id. at 40.
As this Court has hel
Commonwealth v. Walsh, 36 A.3d 613, 621 (Pa. Super.
2012) (citing Pa.R.C.P. 223(1); Commonwealth v. Smith, 694 A.2d 1086,
constituted reversible error, such rulings must not only have been erroneous
Collins v.
Cooper, 746 A.2d 615, 619 (Pa. Super. 2000) (citing Romeo v. Manuel,
703 A.2d 530, 532 (Pa. Super 1997) (citations omitted)).
in the following discussion:
guy
fires his gun on his property. He has numerous
witnesses to testify to it.
Attorney Legg: It will take five minutes, Your Honor.
The Court: Is this your last witness as to that issue?
Attorney Legg: As to the unconnected threat,
correct. I mean, I have people from New Jersey that
will testify that Mr. Gentilquore was at their camp,
left their camp, the gun fire started.
The Court: On that night?
Attorney Legg: On that night well, as well as the
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The Court: Well, I think we can offer him.
Overruled.
N.T., 11/14/06, at 3.
The trial court held that although the evidence presented was
cumulative, the cumulative evidence did not prejudice Gentilquore, stating,
mony to the same fact so undermined
the truth determining process that no reliable adjudication of guilt or
cumulative evidence not been presented, the result of the proceeding would
Id. After a review of the record, we agree.
court may exclude relevant evidence if its probative value is outweighed by a
danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly
l evidence of the same character as existing evidence and that
Commonwealth v.
G.D.M., Sr.
Dictionary, Seventh Edition, at 577).
In this case,
property was substantially similar to the testimony provided by ten other
witnesses, including seven who were connected with the events of the
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evening and Gentilquore himself. Beaudry did not offer any additional
evidence to strengthen or bolster the testimony, but simply provided that
testimony was cumulative.
However, Gentilquore failed to establish how the admission of
Be
that
Evidence is not unfairly prejudicial simply because it
prejudicial that it would inflame the jury to make a
decision based upon something other than the legal
propositions relevant to the case
Commonwealth v. Folely, 38 A.3d 882, 891 (Pa. Super. 2012) (citing
Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009)).
We note that Gentilquore specifically challenged the admission of
evening. However, Gentilquore failed to distinguish the testimony of
Beaudry from the testimony of the witnesses connected with the events of
the evening. Thus, although the evidence was cumulative, there is no
to the verdict. As a result, pursuant to our standard of review, we conclude
that the t
For his third issue on appeal, Gentilquore argues that the trial court
erred in allowing the admission and publication of color photographs of the
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Bigelows to the jury thereby inflaming the passions of the jury.
have no other effect but to prejudice the minds of the jury by causing the
members of the jury panel to be improperly and unfairly influenced by
Id. at 37.
The standard of law for admitting photographs is well settled. Our
Supreme Court has held that
[t]he admissibility of photographs falls within the
discretion of the trial court and only an abuse of that
discretion will constitute reversible error. The test
for determining whether photographs are admissible
involves a two-
decide whether a photograph is inflammatory by its
very nature. If the photograph is deemed
inflammatory, the court must determine whether the
essential evidentiary value of the photograph
outweighs the likelihood that the photograph will
improperly inflame the minds and passions of the
Commonwealth v. Lowry, 55 A.3d 743, 753 (Pa. Super. 2012) (internal
citations omitted) (citing Commonwealth v. Malloy, 856 A.2d 767, 776
(Pa. 2004)).
In this case, the photographs of the Bigelows were, by their very
natu
wounds, the wounds as they healed, and Shaun on a ventilator. N.T.,
11/13/06, at 97-98, 249-
inflammatory nature of the photographs, the trial court was required to
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determine whether the essential evidentiary value of the photographs
outweighed the likelihood that the photographs would improperly inflame the
minds and passions of the jury.
At trial, Gentilquore argued that the colored photographs had no
probative value because the Bigelows could adequately describe their
injuries in detail and their doctors and medical records could detail how the
injuries affected them. Id. at 98. Thus, Gentilquore asserted that the
purpose of the colored photographs was to show blood and to inflame the
jury. Id. at 98-99. Conversely, the Commonwealth argued that they were
offering the photographs to prove serious bodily injury. Id. at 99. The trial
relevant to prove
essential evidentiary value that their need clearly outweighed the likelihood
7/9/12, at 18.
We agree that the photographs possessed evidentiary value to prove
Bigelows sustained serious bodily injury eliminated the probative value of
the photographs. See id. at 251-
inflammatory photograph is merely cumulative of other evidence, it will not
Commonwealth v. Wright, 961 A.2d 119, 138
(Pa. Super. 2009) (citing Commonwealth v. Robinson, 864 A.2d 460 (Pa.
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2004)). Thus, the trial court erred in admitting the color photographs to
prove serious bodily injury.
For the same reasons as set forth hereinabove with respect to the Vis
admitting the color photographs was harmless, as the properly admitted
evidence of guilt was so overwhelming that the error did not prejudice
Gentilquore, or the prejudicial effect of the error was de minimis.
Gentilquore admitted that he shot the Bigelows, and no evidence at trial
established any justification to use deadly force to protect himself or any
basis for a reasonable person to believe he was in imminent danger of death
or serious bodily injury when he did so. In short, Gentilquore shot the
Bigelows, and not in self-defense. As a result, the erroneous admission of
the color photographs was so insignificant by comparison to the properly
admitted evidence of guilt that it is clear beyond a reasonable doubt that the
error could not have contributed to the verdict.
For his fourth issue on appeal, Gentilquore argues that he should be
granted a new trial as a result of the amendments to the self-defense
Brief at 40. The Pennsylvania legislature expanded
self-defense rights by amending section 505 on June 28, 2011, which
became effective on August 29, 2011. Gentilquore asserts that the 2011
amendments should be applied retroactively to this case. Id. at 41.
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Section 505(b)(2.1) provides:
Except as otherwise provided in paragraph (2.2), an
actor is presumed to have a reasonable belief that
deadly force is immediately necessary to protect
himself against death, serious bodily injury,
kidnapping or sexual intercourse compelled by force
or threat if both of the following conditions exist:
(i) The person against whom the force is used
is in the process of unlawfully and forcefully
entered and is present within, a dwelling,
residence or occupied vehicle; or the person
against whom the force is used is or is
attempting to unlawfully and forcefully remove
dwelling, residence or occupied vehicle.
(ii) The actor knows or has reason to believe
that the unlawful and forceful entry or act is
occurring or has occurred.
18 Pa.C.S.A. § 505(b)(2.1).
Commonwealth v.
Thomas, 51 A.3d 255, 260 (Pa. Super. 2012). Section 1926 of the
retroactive unless clearly and manifestly so intended by the General
retroactive effect of statutes. However, as this Court held in
Commonwealth v. Estman
provides [] that legislation concerning purely procedural matters, not
substantive matters, may be applied to litigation existing at the time of
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Id. at 1212.
(citing , 715 A.2d 384procedural laws are those that address methods by which rights are
Estman, 868 A.2d at 1212 (citing Commonwealth v. Morris,
771 A.2d 721, 738 (Pa. 2001)).
In this case, Gentilquore constructed two arguments for retroactive
argument is based upon the
specifically recognized that the amendment to section 505 was derived from
ancient common law doctrine, law that already existed, it manifestly
expressed its intent that the Amendments to section 505 be applied
mere fact that it relates to antecedent events, or draws upon antecedent
provision attaches new legal consequences to events completed before its
Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super.
2010) (citing In the Interest of K.A.P., Jr., 916 A.2d 1152, 1159 (Pa.
Super. 2007) (internal citations omitted)). In this instance, there is no
indication in the statute that the legislature intended section 505(b)(2.1) to
apply retroactively. Accordingly, absent the clear and manifest intention of
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J-S48012-14
retroactively. See 1 Pa.C.S.A. § 1926.
are substantive in nature, and therefore, must be applied retroactively. Id.
at 42. This argument is self-defeating. Estman established that only
legislation concerning purely procedural matters may be applied
retroactively. Estman, 868 A.2d at 1212. As previously stated, the
amendments to section 505(b)(2.1) expanded self-defense rights. Thus, the
amendments to section 505(b)(2.1) necessarily create, define, and regulate
self-defense rights and are thereby substantive in nature. As substantive
hat he should be
granted a new trial as a result of these amendments is denied.
Judgment of sentence affirmed.
Jenkins, J. joins the Memorandum.
Platt, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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