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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHANTI MONTGOMERY :
:
Appellant : No. 1373 WDA 2018
Appeal from the PCRA Order Entered September 13, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003231-2015
*****
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHANTI MONTGOMERY :
:
Appellant : No. 1376 WDA 2018
Appeal from the PCRA Order Entered September 13, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003483-2013
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 25, 2019
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Ashanti Montgomery appeals from the September 13, 2018 order1,
entered in the Court of Common Pleas of Allegheny County, denying his
petition under the Post Conviction Relief Act2 (PCRA). Upon careful review,
we affirm.
The facts of this case are as follows:
[O]n January 10, 2013, [Montgomery] was hanging out with his
cousin, Marshall Addison[,] when the two decided to go buy
marijuana from Addison’s dealer. While Addison parked the car,
[Montgomery] walked ahead and Addison lost sight of him. When
he finally caught up to [Montgomery] at the intersection of
Beltzhoover Avenue and Climax Street, [Montgomery] had a gun
pointed at Deondre Pace. Pace’s companion, Johavian Everett,
was urging [Montgomery] to calm down, but [Montgomery] fired
a shot. When Pace fell to the ground, [Montgomery] moved over
him and fired additional shots. Pace suffered a total of three (3)
gunshot wounds to his upper chest, his abdomen and arm and
was later pronounced dead at Mercy Hospital. It was later
discovered that [Montgomery] and Pace had an ongoing dispute
over a gun exchange that occurred the previous year. The two
had made an agreement to trade a shotgun and a pistol, but Pace
had given [Montgomery] a starter gun instead.[3]
Three (3) days later, on January 13, 2013, [Montgomery] was
with his friends J.R. and “Rell” at his apartment building on North
Negley Avenue in the East Liberty section of the City of Pittsburgh,
when he encountered another building resident, Lou Auer, who
was selling pills. J.R. left and returned with some crack, which
they gave Auer in exchange for his pills. Later that evening
____________________________________________
1Montgomery filed separate notices of appeal, pursuant to Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018). We consolidated his appeal sua sponte
by per curiam order dated October 9, 2018. Order, 10/9/18, at 1.
2 42 Pa.C.S.A. §§ 9541-9546.
3 See N.T. Trial, Vol. 4, at 182 (Addison stating, “[Montgomery] discovered
that it wasn’t a real firearm. He [called] me and told me that it wasn’t a real
firearm.”).
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[Montgomery]’s girlfriend called him to say that a man was
banging on the apartment door screaming “you burned me.”
[Montgomery] returned to the apartment with his friends, got the
gun he used to kill Deondre Pace from the closet and then began
to walk around the apartment complex looking for the man.
Eventually they encountered Auer in the courtyard of the complex.
Auer pulled out a knife and lunged at J.R. [Montgomery] pulled
his gun and told Auer to drop the knife. When Auer swung again
at J.R., [Montgomery] shot him in the chest. [Montgomery] was
observed holding a gun and then fleeing by a resident of the
building. K9 Officer [Glen] Bogert was called to the scene and led
officers to the gun, which was hidden nearby in a pile of leaves.
Its serial numbers had been obliterated. Forensic testing
determined that the gun found by K9 Officer Bogert fired the fatal
shots in both killings. Shortly after the shooting, [Montgomery]
called Addison and told him he had “just caught another body,”
meaning that he had killed another person, and detailed the
circumstances which led to the killing.
[Montgomery] was subsequently arrested and gave a recorded
statement confessing to both killings.
Trial Court Opinion, 11/09/16, at 1–4.
At trial, Montgomery’s counsel, Owen M. Seman, Esquire, called forensic
psychologist, Alice Applegate, Ph.D., who diagnosed Montgomery with, among
other things, schizophrenia, autism spectrum disorders, developmental
trauma disorders, adjustment disorders with anxiety, and unspecified
neurocognitive disorders. N.T. Trial, Vol. 4, at 114. Attorney Seman offered
Doctor Applegate’s testimony to undermine the Commonwealth’s assertion
that Montgomery voluntarily confessed to both killings. Following Attorney
Seman’s direct examination of Doctor Applegate, Assistant District Attorney
Christopher Stone, Esquire, moved to strike the entirety of Doctor Applegate’s
testimony, arguing she had not opined as to the voluntariness of
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Montgomery’s confession. The court denied Attorney Stone’s motion. See
id. at 124, 127.
Attorney Stone renewed his motion to strike after the following
exchange with Doctor Applegate:
[Attorney Stone]: Okay. Now ma’am, I take it that straight-
forwardly speaking you are saying that these police officers got a
statement from [Montgomery], and they obtained it in a condition
where it was involuntary; is that right? Are you saying that they
involuntarily obtained his statement?
[Doctor Applegate]: I am saying that [Montgomery’s]
voluntary statements are not always reliable statements. In other
words –
[Attorney Stone]: That’s not responsive to my question,
ma’am.
[Doctor Applegate]: Okay.
[Attorney Stone]: Did these police officers obtain the
statement from [Montgomery] voluntarily?
[Doctor Applegate]: Yes.
N.T. Trial, Vol. 4, at 126. Following this exchange, Attorney Stone, Attorney
Seman, and the Honorable Donna Jo McDaniel had a sidebar conversation to
discuss the motion, during which Attorney Seman voiced his opposition and
arguments against striking the entire testimony. Ultimately, Judge McDaniel
granted the Commonwealth’s motion.
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On November 10, 2015, a jury convicted Montgomery of two counts of
murder in the first degree,4 one count of criminal conspiracy,5 two counts of
possession of a firearm without a license,6 and one count of possession of a
firearm with manufacturer number altered.7 On February 3, 2016, the court
sentenced Montgomery to two concurrent life terms of imprisonment.
Following sentencing, Montgomery’s counsel moved to withdraw. The court
granted counsel’s motion the same day, and appointed Todd Mosser, Esquire,
to represent Montgomery on post-sentence motions and direct appeal.
On May 8, 2017, Montgomery voluntarily discontinued his direct appeal
to pursue the instant PCRA petition through Attorney Mosser.8 On May 3,
2018, Montgomery filed a timely petition for relief under the PCRA. On August
13, 2018, the PCRA court issued a notice of intent to dismiss Montgomery’s
petition pursuant to Pa.R.Crim.P. 907. On September 13, 2018, the PCRA
court dismissed Montgomery’s petition without a hearing. This timely appeal
followed.
____________________________________________
4 18 Pa.C.S.A. § 2501(a).
5 18 Pa.C.S.A. § 903(a)(1).
6 18 Pa.C.S.A. § 6106.
7 18 Pa.C.S.A. § 6110.2.
8 Ineffectiveness claims, except under limited circumstances not at issue, are
deferred to PCRA review. Commonwealth v. Holmes, 79 A.3d 562, 563-64
(Pa. 2013).
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Montgomery raises the following claims:
1. The PCRA Court erred when it dismissed [Montgomery’s] claim
that prior counsel was ineffective for failing to properly object
to the trial court’s decision to strike Doctor Applegate’s
testimony without an opportunity to clear up her confusion on
re-direct.
2. The PCRA Court abused its discretion [by] dismissing
[Montgomery’s] petition without an evidentiary hearing where
prior counsel was ineffective for failing to pursue a diminished
capacity defense.
Brief of Appellant, at 2.
Our standard of review is well-settled:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s rulings if it is
supported by evidence of record and is free of legal error. This
court may affirm a PCRA court’s decision on any grounds if the
record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (citations
omitted). The PCRA court may choose to dismiss a petition without a hearing
“if it has thoroughly reviewed the claims presented and determined that they
are utterly without support in the record.” Commonwealth v. Gaskins, 692
A.2d 224, 226 (Pa. Super 1997); see Pa.R.Crim.P. 907.
To succeed on his ineffective assistance of counsel claim, an appellant
must prove: (1) the underlying claim has arguable merit; (2) the counsel had
no reasonable basis for his act or omission; and (3) the appellant suffered
prejudice as a result of counsel’s error. Commonwealth v. Montalvo, 114
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A.3d 401, 409-19 (Pa. 2015). “Prejudice in the context of ineffective
assistance of counsel means demonstrating that there is a reasonable
probability that, but for counsel’s error, the outcome of the proceeding would
have been different.” Commonwealth v. Pierce, 567 Pa. 186, 203. Failure
to prove any prong will defeat an ineffectiveness claim. Commonwealth v.
Koehler, 36 A.3d 121, 132 (Pa. 2012). Trial counsel is presumed to be
effective, and the burden of proving ineffectiveness of counsel rests on the
appellant. Commonwealth v. Wilson, 672 A.2d 293, 298 (Pa. 1996).
Montgomery first claims that Attorney Seman provided ineffective
assistance by failing to object to the trial court’s decision to strike the entirety
of Doctor Applegate’s testimony. The PCRA court rejected this claim, finding
the record clearly indicated that Attorney Seman raised his timely objection.
Pa.R.A.P 1925(a) opinion, 1/15/19, at 3. We agree.
Here, Attorney Seman did, in fact, protest Judge McDaniel’s ruling to
strike Doctor Applegate’s testimony. On direct-examination, Attorney Stone
initially moved to strike Doctor Applegate’s testimony, stating, “[s]he never
clearly expressed an opinion on voluntariness, which would be the only issue
for which this testimony would be relevant.” N.T. Trial, Vol. 4, at 124.
Attorney Seman disputed this motion, arguing that she in fact did express her
opinion. Id. at 125. Judge McDaniel agreed with Attorney Seman, and stated
that she will allow the jury to decide. Id.
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On cross-examination, Doctor Applegate stated that Montgomery gave
his statement to the police voluntarily. Attorney Stone then renewed his
objection to strike her testimony, after which the following sidebar
conversation occurred:
[Attorney Stone]: She can’t – there is no relevant reason for her
to have testimony –
[The Court]: This is all about voluntariness of the statement . . .
No. She can’t—she can't recant, she is classified as an expert.
Okay.
...
[The Court]: . . . I can’t let it slide, if she says that his statement
was voluntary or not involuntary. It was actually what she said.
[Attorney Seman]: I am not sure she is really comprehending the
aspect of it I mean, the voluntariness is, you know – the question
that I asked was did he understand what he was doing.
[The Court]: She said –
[Attorney Seman]: She said no.
...
[Attorney Seman]: . . . [H]is psychological make[-]up is one of
the aspects a jury is supposed to consider in voluntariness. I am
not going to argue to the jury that they did something and that it
was coercive in nature just because of his psychological makeup.
...
[Attorney Seman]: Look at the second alternative there, it goes
over everything that she is talking about there . . . Judge, looking
at the instructions I still think his psychological make[-]up comes
into play. Obviously Mr. Stone can argue to the jury that hey, she
answered it in the affirmative.
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[The Court]: . . . I know you are in a bad spot, I don't know what
to say except I do agree that it needs to be stricken.
N.T. Trial, Vol. 4, at 127–31. This conversation clearly shows Attorney Seman
opposing the motion. Attorney Seman argued, “his psychological make[-]up
is one of the aspects a jury is supposed to consider in voluntariness [.]” Id.
at 127–28. In addition, Attorney Seman firmly stated to the judge, “she said
no” when Doctor Applegate was asked if Montgomery “understood what he
was doing” when giving the statements to police. Id. at 127. Though Attorney
Seman did not expressly say “I object” or “objection,” he timely opposed both
of Attorney Stone’s motions to strike. See Commonwealth v. Turner, 450
A.2d 9, 11 (Pa. Super. 1982) (stating appellant’s attorney sufficiently
challenged admissibility of expert testimony though he did not “utter the
magic words, ‘I object.’”).
The record clearly demonstrates Attorney Seman’s timely opposition of,
and arguments against, the motion to strike Doctor Applegate’s testimony.
Rykard, supra at 1183. Accordingly, the PCRA court properly denied this
claim as lacking arguable merit. Montalvo, supra at 409.
Montgomery next claims that trial counsel was ineffective for failing to
present a diminished capacity defense through Doctor Applegate. The PCRA
Court denied this claim, reasoning that counsel’s strategic decision, although
unsuccessful, does not constitute ineffective assistance of counsel. Pa.R.A.P.
1925(a) Opinion, 1/15/19, at 3. The PCRA court further stated that the pursuit
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of a diminished capacity defense would have been improper given the lack of
expert opinion. Id.
As support for Montgomery’s conviction of first-degree murder of Pace,
the Commonwealth presented testimony from two witnesses who were
present for the shooting, as well as Montgomery’s statement to the police.
N.T. Trial, Vol. 3, at 121-39, 147-75. In Montgomery’s statement, he
admitted to shooting Pace. Id. at 204. He also stated that Pace’s companion
at the time, Everett, had pulled out a gun first, at which point Montgomery
pulled out his own gun and started firing. N.T. Trial, Vol. 4, at 204, 216.
In light of these facts, Attorney Seman chose to pursue a theory of self-
defense. Id. at 328-39, 333. An attorney’s strategic decision to pursue
acquittal rather than a diminished capacity defense does not constitute
ineffective assistance of counsel if there is a reasonable basis for the strategy.
Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa. 2006). Further, it is
well-settled that a strategy proven unsuccessful does not necessarily render
it unreasonable. Id. at 1235. Here, Attorney Seman had a reasonable basis
to pursue a self-defense theory. Montgomery stated to the police that Addison
pulled out a gun first, and it was at that point that Montgomery pulled out his
own gun to start firing. Given this statement, it was not unreasonable for
Attorney Seman to pursue such a defense. Though Attorney Seman’s self-
defense theory was unsuccessful, he was not ineffective for pursuing it. Id.
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Moreover, a diminished capacity defense requires extensive psychiatric
testimony “establishing a defendant suffered from one or more mental
disorders which prevented him from formulating the specific intent to kill.”
Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003). The defense is
extremely limited, and courts only admit evidence if it tends to prove that the
appellant did not premeditate or deliberate in committing the murder.
Commonwealth v. Cain, 503 A.2d 959, 962 (Pa. Super. 1986). The
evidence “must provide insight as to the defendant’s mental state at the time
of the offense,” which is the only relevant time for a diminished capacity
defense. Commonwealth v. Mason, 130 A.3d 601, 631 (Pa. 2015).
Evidence that the defendant “lacked the ability to control his or her actions or
acted impulsively is irrelevant to the specific intent to kill, and is thus not
admissible to support a diminished capacity defense.” Id. Further, “diagnosis
with a personality disorder does not suffice to establish diminished capacity.”
Id.
Doctor Applegate’s psychiatric report does not indicate that Montgomery
suffered a mental disorder that prevented him from formulating the specific
intent to kill at the time of the murders. Forensic Psychology Evaluation,
2/14/14, at 34–35. In fact, Doctor Applegate’s report stated Montgomery did
not remember anything about the shooting as he ran away from the scene.
Id. at 35. This evidence does not speak to Montgomery’s mental state at the
time of the crime. See Mason, 130 A.3d at 631. There is no testimony or
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evidence in the report to demonstrate that Montgomery did not premeditate
or deliberate in committing these murders. See Cain, 503 A.2d at 962. Thus,
counsel properly chose to pursue self-defense over a diminished capacity
defense.
Consequently, we find the PCRA court’s determinations are supported
by the evidence of the record, and affirm the PCRA court’s finding that
Montgomery failed to prove counsel’s ineffectiveness. Montalvo, supra at
409.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2019
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