J-A11007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES JERALD MONTGOMERY,

                            Appellant                No. 1785 MDA 2016


         Appeal from the Judgment of Sentence September 27, 2016
                In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0008016-2015


BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 18, 2017

       James Jerald Montgomery (“Appellant”) appeals from the judgment of

sentence imposed following his convictions on charges of simple assault and

the summary offense of harassment, 18 Pa.C.S. §§ 2701(a)(1) and

2709(a)(1), respectively. We affirm.

       On October 23, 2015, Appellant did not want his eighteen-year-old

daughter, Misty, to attend a Halloween event with her boyfriend, Trevor

Mong (“Victim”).       When Victim came to pick up Misty that evening, she

sneaked out of the house and entered Victim’s vehicle. Appellant followed

Misty to Victim’s car, in which she was sitting with the door partially open,

and attempted to convince her to return to the house. Victim drove off, with
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*
    Former Justice specially assigned to the Superior Court.
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Misty inside the car and the door partially ajar.     Appellant pursued the

couple in his girlfriend’s vehicle. Victim stopped his vehicle in a cul de sac

and exited it to escape from Misty who was angrily punching him for driving

off while she was still talking with Appellant.   When Appellant arrived, he

revved his car engine and ran into Victim, who landed on the hood.         As

Victim attempted to re-enter his vehicle, Appellant punched him at least

twice in the face while pulling Victim out of the car.      Misty intervened

between Victim and Appellant. She and Victim took refuge in a neighbor’s

house and called the police.    The neighbor described Victim as bleeding

profusely from the area around his eye. Appellant left the scene. Tired of

waiting for the police, Misty and Victim left the neighbor’s house.     Police

officers interviewed the neighbor that evening, and, eventually, interviewed

Misty and Victim.

     Following a two-day trial in July of 2016, a jury convicted Appellant of

simple assault, and the trial court found him guilty of harassment. The trial

court sentenced Appellant on September 27, 2016, to probation for twenty-

three months, plus fines and costs.    At the Commonwealth’s request, the

trial court modified the sentence on October 11, 2016, to include restitution

in the amount of $3,228.50 for Victim’s medical expenses. Appellant did not

seek post-sentence relief.   This appeal followed.    Appellant and the trial

court complied with Pa.R.A.P. 1925.




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      Appellant presents the following questions for our consideration:

      I.    Whether the [trial] court erred in not allowing the
            Appellant to present evidence in his defense regarding the
            victim’s prior violent acts.

      II.   Whether the [trial] court erred in denying Appellant’s
            motion for presentation of a justification defense for (a)
            defense of others and (b) self-defense.

Appellant’s Brief at 4.

      We reiterate that matters not raised in a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal are waived.         Pa.R.A.P. 1925(b)(4)(vii);

see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any

issues not raised in a 1925(b) statement will be deemed waived.”). Here,

Appellant raised, inter alia, the following alleged error by the trial court in his

Rule 1925(b) statement:

      1. The Court erred in not allowing the Defendant to present
         evidence in his defense regarding the prior history between
         Defendant and the victim.

Pa.R.A.P. 1925(b) Statement of Errors, 11/23/16, at 1.            The trial court

disposed of this issue by reviewing the transcript, identifying “three

instances in which the defense sought to introduce evidence of the prior

history between the Defendant and victim during the defense case,” and

addressing each of those exchanges. Trial Court Opinion, 12/19/16, at 4–8.

      On appeal, however, Appellant has raised a different issue regarding

the presentation of evidence, i.e., “Whether the [trial] court erred in not

allowing the Appellant to present evidence . . . regarding the victim’s


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prior violent acts.” Appellant’s Brief at 4 (emphasis supplied).           Because

Appellant did not raise this distinct issue in his Pa.R.A.P. 1925(b) statement,

it is waived. Pa.R.A.P. 1925(b)(4)(vii); Lord, 719 A.2d at 309.

       Appellant’s second issue challenges the trial court’s refusal to provide

jury instructions on two justification defenses: self-defense and defense of

others. Appellant’s Brief at 14 (citing 18 Pa.C.S. § 503). Appellant argues

that he was entitled to his requested justification instructions because he

submitted sufficient proof to meet the four-point test of Commonwealth v.

Capitolo, 498 A.2d 806 (Pa. 1985).1 Appellant’s Brief at 14–17.

       In response, the Commonwealth submits that Appellant waived his

second issue, and, alternatively, that it lacks merit. Commonwealth’s Brief

at   23–28     (citing   Pa.R.Crim.P.     647(C)2   and   Capitolo,   respectively).

Appellant rebuts the waiver argument, stating that defense counsel “had


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1
   In Capitolo, the Pennsylvania Supreme Court articulated a four-point test
for a defendant to be entitled to a jury instruction on justification. The actor
must offer evidence that will show that: (1) the actor was faced with a clear
and imminent harm; (2) the actor could expect his actions to be effective in
avoiding the harm; (3) there was no legal alternative which would be
effective in abating the harm; and (4) the Legislature has not acted to
preclude the defense by a clear and deliberate choice. Additionally, the
defendant must make an offer of proof specifically meeting each of the four
points. Capitolo, 498 A.2d at 808–809.
2
  “No portions of the charge nor omissions from the charge may be assigned
as error, unless specific objections are made thereto before the jury retires
to deliberate. All such objections shall be made beyond the hearing of the
jury.” Pa.R.Crim.P. 647(C).



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extensive discussion with the court regarding the proposed jury instruction”

and “put the court on notice” of his position. Appellant’s Brief at 15–16.

      The Capitolo Court identified our standard of review as follows:

“[T]he trial judge first determine[s] whether the offer satisfied a threshold

requirement and, if not, then den[ies] the shield of the defense. Review of

that ruling is then limited to determining whether the trial court abused its

discretion or committed error of law.” Capitolo, 498 A.2d at 810.

      Applying Capitolo, the trial court found that “defense counsel made

no offer attempting to articulate even a bare-bones fulfillment of the . . .

four-prong test to support his request for the instructions.”      Trial Court

Opinion, 12/19/16, at 11.     Additionally, the trial court found this issue

waived because Appellant did not object to the trial court’s jury charge. Id.

at 12 (citing Pa.R.Crim.P. 647 and N.T., 7/14/16, at 217).

      Upon review, we discern no abuse of the trial court’s discretion or

error of law. The record, Capitolo, and Rule 647 support the trial court’s

merit-based and waiver conclusions.     Thus, Appellant’s second issue does

not warrant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017

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