Commonwealth v. Montgomery

Decision Date25 June 2021
Docket NumberJ-S29028-20,No. 1287 EDA 2019,1287 EDA 2019
PartiesCOMMONWEALTH OF PENNSYLVANIA v. JAMEL MONTGOMERY Appellant
CourtSuperior Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA
v.
JAMEL MONTGOMERY Appellant

J-S29028-20
No. 1287 EDA 2019

SUPERIOR COURT OF PENNSYLVANIA

JUNE 25, 2021


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered April 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005837-2008

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:

Appellant Jamel Montgomery appeals from the order denying his timely first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition without a hearing. Appellant contends that the PCRA court erred in rejecting his numerous claims of ineffective assistance of counsel based on the suppression of his confession, as well as his trial counsel's failure to (1) request or object to jury instructions, (2) challenge the weight of the evidence, (3) object to the closure of the courtroom during voir dire, and (4) consult with him before trial. This panel granted reconsideration based on Appellant's application for reargument concerning his ineffectiveness claim related to the suppression of his confession. Following reconsideration, we affirm.

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This Court previously summarized the facts of Appellant's convictions as follows:

The [decedent], Derrell Windley, was pronounced dead on February 5, 2006, and the cause of death was multiple gunshot wounds as a result of a homicide. The decedent was shot in the left wrist, left hip, left lower back, left lower buttocks and left leg. [S]everal bullets were recovered from the body of [the decedent].

Janell Windley, the decedent's wife, stated that [the decedent] had dropped her off at work at the airport at 5:00 a.m. on February 5, 2006. Around 1:30 p.m. that same day, Mrs. Windley spoke with the decedent who stated that he was at the Dollar Store purchasing dish detergent. . . .

Officer John Taggart of the Crime Scene Unit testified on behalf of the Commonwealth. He documented the crime scene at 6362 Kingsessing Avenue on February 5, 2006 at 5:34 p.m. On the sidewalk in front of the residence, there were two red stained t-shirts and a black baseball cap. On the steps leading up to the residence there were small Ziploc red plastic bags with a white substance inside of them. Fire Cartridge casings, bullets, and bullet fragments were found on the porch of the residence. All items were placed under property receipt.

Lenea Burnett testified on behalf of the Commonwealth under a plea agreement. She was present when . . . Appellant shot the decedent and she identified the Appellant in court as the perpetrator of the crime. Ms. Burnett had known the Appellant whom she referred to as "Cheese Ball" for a few years prior to the incident.

On February 5, 2006, she was standing outside a store at the corner of 64th and Kingsessing Streets and took a piece of paper from the decedent that contained his name, phone number, and indicated that he sold marijuana. Ms. Burnett then went back to her house on Kingsessing between 63rd and & 64th streets where the Appellant was present along with "Lester, Shannon, Selena and someone named April." She showed the piece of paper to the other individuals and they began a plan to rob the decedent. Ms. Burnett stated that "Shannon said that I will buy the weed . . . Cheese Ball would get the money back and weed from him and he would rob him afterwards." The plan was then that the marijuana would be split between everybody in the house and the money

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was going to be split between Shannon and the Appellant. The money was going to be used to pay for an abortion.

Selena Baldwin then contacted the decedent on her cell phone and Ms. Burnett arranged to meet the decedent at the corner. The decedent informed Ms. Burnett that he would not sell her drugs outside during the daytime. Ms. Burnett then went back to her house and saw Appellant on the porch and explained to him that the decedent would not sell her drugs. Shannon then told Ms. Burnett that she should meet the decedent across the street at 6326 Kingsessing. Ms. Burnett then went back to the corner and told the decedent to come with her inside of 6326 Kingsessing. After she asked the decedent if he had the marijuana, he began to talk to her for approximately a minute before Appellant came out of the dining room area and stated that he had a gun. Appellant then shot at the decedent and Ms. Burnett ran up the stairs and then ran back down the stairs and out the back door as she heard the second shot from Appellant's firearm. She never saw a firearm on the decedent.

Ms. Burnett kicked the back door into her home and looked out of the front door along with Shannon, Selena, April and Lester. A few minutes later, Ms. Burnett saw the Appellant and asked him why he shot the decedent. Appellant responded that the decedent had a gun. Ms. Burnett responded that decedent did not have a firearm. Appellant then indicated that he had hid[den] his gun by the train tracks in the back of 6362 Kingsessing Street. [Ms. Burnett] came in contact with the police on November 8, 2007 at her new residence on Sheldon Street and gave a signed and sworn statement to the homicide detectives.

Officer John Cannon of the Firearms Identification Unit testified that all the bullet and bullet fragments found at the scene were fired from the same gun. Furthermore, the four bullets found within the decedent were also fired from that same gun.

Detective Grady Patterson testified that on February 5, 2006, he examined a cell phone recovered at the scene from the decedent. The last phone call made at 3:02 p.m. was to [a telephone belonging to Selena Baldwin]. . . . [B]ased on . . . information obtained from [Selena Baldwin's cousin, Charmaine Baldwin], the police began to look for individuals identified as "Nene" and "Ball." After several unsuccessful months attempting to identify and locate these individuals, the case was transferred to the Special Investigation Unit.

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Detective Brian Peters testified that he began investigating the case as part of the "cold case" squad and was able to locate "Nene" who was identified as Lenea Burnett, . . . through a welfare application. After interviewing Ms. Burnett, Detective Peters prepared an arrest warrant for Appellant. Detective Peters also testified that Selena Baldwin was arrested and [was] awaiting trial in this matter.

On November 12, 2007, Detective Peters interviewed the Appellant in police custody. Appellant corroborated Ms. Burnett's testimony but stated that he saw a gun on the decedent and got scared and shot the decedent. Appellant then stated that one of the decedent's friends came and grabbed the gun from the decedent after he was murdered. Appellant stated that he gave his gun to Ms. Burnett after the shooting and she returned it to him and he gave it to a "hustler" on 61st and Upland Streets.

Commonwealth v. Montgomery, 3210 EDA 2011, 2013 WL 11267070, at *1-2 (Pa. Super. filed Apr. 10, 2013) (unpublished mem.) (citation omitted).

A jury found Appellant guilty of second-degree murder, robbery, and possessing an instrument of crime. On October 20, 2009, the trial court sentenced Appellant to an aggregate term of life imprisonment.

Following the reinstatement of Appellant's direct appeal rights in a prior PCRA proceeding, this Court affirmed the judgment of sentence. See id. Our Supreme Court denied Appellant's petition for allowance of appeal on November 6, 2013. Commonwealth v. Montgomery, 220 EAL 2013 (Pa. filed Nov. 6, 2013).

Appellant timely filed a pro se PCRA petition received on August 19, 2014. Appointed PCRA counsel filed an amended petition on September 22, 2017. The Commonwealth filed a motion to dismiss on October 5, 2018. The

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PCRA court issued a Pa.R.Crim.P. 907 notice on March 7, 2019, and dismissed Appellant's PCRA petition April 26, 2019.

Appellant timely filed a notice of appeal. Appellant's appointed PCRA counsel filed a Pa.R.A.P. 1925(b) statement one day late, which the PCRA regarded as timely filed. The PCRA court filed a Rule 1925(a) opinion. This Court issued a memorandum decision affirming the PCRA court's ruling. Appellant timely filed an application for reargument, and this panel granted reconsideration on March 22, 2021. Order, 3/22/21.

Appellant presents the following issues, which we have reordered for review:

[1.] Whether the [PCRA] court erred in denying Appellant's amended [PCRA] petition without an evidentiary hearing where trial counsel failed to move to suppress Appellant's inculpatory statement under Missouri v. Seibert, 542 U.S. 600, 604 (2004) [(plurality)] after the evidence showed that police first interrogated Appellant without Miranda1 warnings, thereby tainting the statement that police obtained after providing Miranda warnings.2

[2]. Whether the [PCRA] court erred in denying Appellant's amended [PCRA] petition without an evidentiary hearing where trial counsel was ineffective in failing to object to the trial court's jury instruction as it related to the voluntariness of Appellant's confession.

[3]. Whether the [PCRA] court erred in denying Appellant's amended [PCRA] petition without an evidentiary hearing where

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trial counsel was ineffective in failing to request a cautionary instruction regarding Appellant's pre-trial arrest and incarceration.

[4]. Whether the [PCRA] court erred in denying Appellant's amended [PCRA] petition without an evidentiary hearing where trial counsel was ineffective in failing to raise the defenses of justification and voluntary manslaughter given that those defenses were supported by the record.

[5]. Whether the [PCRA] court erred in denying Appellant's amended [PCRA] petition without an evidentiary hearing where trial counsel was ineffective in failing to file a post-sentence motion for a new trial based on the weight of the evidence.

[6]. Whether the [PCRA] court erred in denying Appellant's amended [PCRA] petition without an evidentiary hearing where trial counsel was ineffective in failing to
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