Com. v. Montgomery, S.

• Court: Superior Court of Pennsylvania
• Decided: November 6, 2023
• Docket: 990 WDA 2022
• Status: Unpublished

Opinion

J-S28004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEPHEN MONTGOMERY : : Appellant : No. 990 WDA 2022

Appeal from the PCRA Order Entered August 16, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0017226-2000

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: November 6, 2023

Stephen Montgomery presents this pro se appeal from the order denying

his untimely serial petition filed under the Post Conviction Relief Act (“PCRA”).

42 Pa.C.S.A. §§ 9541-9546. We affirm.

Montgomery’s convictions stem from the shooting death of George

Maxwell that occurred on November 4, 2000, in the city of McKeesport.

Witnesses observed Montgomery pistol-whip and then shoot the victim in the

head outside of an after-hours club located on Walnut Street in McKeesport.

On October 24, 2002, a jury convicted Montgomery of first-degree murder

and related offenses. On January 28, 2003, the trial court sentenced

Montgomery to serve a mandatory sentence of life imprisonment.

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* Former Justice specially assigned to the Superior Court. J-S28004-23

On direct appeal, this Court affirmed Montgomery’s judgment of

sentence on January 19, 2005, and on October 4, 2005, our Supreme Court

denied his petition for allowance of appeal. Commonwealth v.

Montgomery, 373 WDA 2003, 872 A.2d 1273 (Pa. Super. 2005), appeal

denied, 57 WAL 2005, 885 A.2d 532 (Pa. 2005). Suffice it to say that, in the

more than fifteen years that followed, Montgomery filed numerous petitions

seeking post-conviction relief, and none were successful.

On November 16, 2021, Montgomery filed, pro se, the instant PCRA

petition. The PCRA court issued notice of its intent to dismiss pursuant to

Pa.R.Crim.P. 907, and Montgomery filed objections. On August 16, 2022, the

PCRA court entered an order dismissing the PCRA petition. This timely pro se

appeal followed. Montgomery submits several claims of PCRA court error,

particularly his contention that he has satisfied an exception to the PCRA

timeliness requirement.

Our standard of review for an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. See id.

A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A

judgment of sentence “becomes final at the conclusion of direct review,

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including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S.A. § 9545(b)(3). This time requirement is mandatory

and jurisdictional in nature and goes to a court’s right or competency to

adjudicate a controversy. See Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003) (citations omitted).

Our review of the record reflects that Montgomery’s judgment of

sentence became final on January 3, 2006,1 ninety days after the Pennsylvania

Supreme Court denied his petition for allowance of appeal and the time for

filing a petition for review with the United States Supreme Court expired. See

42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. Montgomery did not file this

PCRA petition until November 16, 2021. Accordingly, the PCRA petition is

patently untimely, and we lack jurisdiction to consider its merits unless he

pleaded and proved a timeliness exception.

Section 9545 of the PCRA provides three exceptions that allow for review

of an untimely PCRA petition: (1) the petitioner’s inability to raise a claim

because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly recognized

1 We observe that Montgomery needed to file his petition for writ of certiorari

on or before Tuesday, January 3, 2006, because Monday, January 2, 2006, was the New Year’s Day holiday. See U.S.Sup.Ct.R. 30 (explaining that, for computations of time, whenever the last day of any such period falls on Saturday or Sunday, or a legal holiday, such day is omitted from the computation).

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constitutional right. See id. A PCRA petition invoking one of these statutory

exceptions must be filed within the time constraints set forth at 42 Pa.C.S.A.

§ 9545(b)(2). “The PCRA petitioner bears the burden of proving the

applicability of one of the exceptions.” Commonwealth v. Spotz, 171 A.3d

675, 678 (Pa. 2017) (citation omitted).

The record reflects Montgomery attempted to raise, in the instant PCRA

petition, the exception that the facts upon which his claim is predicated were

unknown to him, 42 Pa.C.S.A. § 9545(b)(1)(ii). This exception required

Montgomery to plead: (1) the existence of facts that were previously unknown

to him, (2) that he could not have discovered earlier through due diligence,

(3) the relevance of those facts to his conviction, if not obvious, and (4) that

he filed his PCRA petition within one year of discovering the facts. See

Commonwealth v. Robinson, 185 A.3d 1055, 1061-62 (Pa. Super. 2018)

(en banc); see also 42 Pa.C.S.A. § 9545(b)(2).

Instantly, in his first and second issues, Montgomery claims he is

entitled to PCRA relief on the basis of newly-discovered evidence consisting of

the racial bias of former Court of Common Pleas Judge Mark Tranquilli, who

had served as the prosecutor at Montgomery’s 2002 jury trial. See Appellant’s

Brief at 8-11. First, Montgomery makes the bald allegation that from

inappropriate comments made by Tranquilli when he was serving as a judge,

“one can easily infer that as ADA[,] Tranquilli … would use his preemptory

strikes against young African American jurors.” Appellant’s Brief at 9.

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The PCRA court found no merit to Montgomery’s assertion, and

addressed his claim as follows:

Upon review of [Montgomery’s] PCRA Petition, this [c]ourt concluded [Montgomery] failed to plead and prove by a preponderance of the evidence that any alleged racial bias on the part of former ADA Tranquilli constituted exculpatory evidence that would have changed the outcome of the trial, particularly in light of the fact that [Montgomery] was convicted by a jury. As such, this [c]ourt determined that no genuine issues of material fact existed, and that [Montgomery] was not entitled to a hearing. Therefore, this issue is without merit and should be dismissed.

PCRA Court Opinion, 1/10/23, at 6.

Initially, we note that the PCRA court’s analysis is not explicitly an

analysis of the newly-discovered evidence exception to the PCRA’s time bar.

See Robinson, 185 A.3d at 1061 (noting that “a merits analysis is permissible

only upon a finding of jurisdiction”). Rather, the PCRA court explicitly denied

Montgomery’s petition based on the lack of any merit in his underlying claim

of after-discovered evidence. In this regard, we note that

there is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.

Commonwealth v. McCready, 295 A.3d 292, 298 (Pa. Super. 2023)

(citation and brackets omitted).

Because the PCRA court engaged in a merits analysis, it is obvious the

PCRA court found that Montgomery had established jurisdiction pursuant to

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the newly-discovered evidence exception to the PCRA’s time bar.2 Therefore,

Montgomery still had to plead sufficient facts to establish a prima facie case

that he was entitled to a new trial. To do that, he was required to demonstrate

that the evidence: (1) could not have been obtained previously through the

exercise of due diligence; (2) is not cumulative or simply corroborative; (3) is

not purely impeachment evidence; and (4) creates a likelihood of a different

verdict if a new trial is granted. See Commonwealth v. Small, 189 A.3d

961, 972 (Pa. 2018) (citation omitted). A failure to establish any of these

circumstances is grounds for denying relief on the claim. See id.

Under this substantive analysis, we agree with the PCRA court’s analysis

that Montgomery failed to establish that his proffered evidence would likely

lead to a different result if a new trial were granted. It is undisputed that

Tranquilli was the Assistant District Attorney at Montgomery’s trial in 2002.

Further, there is no question that Tranquilli resigned his judicial office on

November 19, 2020, based upon the filing of six counts of judicial misconduct

presented by the Pennsylvania Judicial Conduct Board. See PCRA Petition,

2 Although the PCRA court did not explicitly state that Montgomery met the

timeliness exception under Subsection 9545(b)(1)(ii), we observe that the court engaged in a merits analysis. It is undisputed that we could remand this matter to the PCRA court with a directive to explicitly state its implicit finding that Montgomery met the PCRA timeliness exception requirements. Upon thorough review of the record, however, we are persuaded that Montgomery satisfied the requirements to meet the timeliness exception, and the PCRA court, in addressing the merits of Montgomery’s claim, agreed. Having discerned no error in the PCRA court’s acceptance of jurisdiction, we will likewise address the merits of the issues presented.

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11/16/21, at 4. However, our review of the record reflects Montgomery

offered no meaningful support to establish that instances of Tranquilli’s alleged

racial bias as a judge had any impact or effect upon Montgomery’s trial, where

Tranquilli served as the prosecutor nearly two decades before his judicial

resignation.

Put simply, the link between Tranquilli’s comments in 2015, 2018, and

2020 and his actions as the prosecutor in Montgomery’s 2002 trial is not self-

evident. While those comments may raise questions as to Tranquilli’s

character, they do not allow for more than mere supposition as to any concrete

actions he may have taken in 2002. And Montgomery’s petition provides no

other reason to draw such a connection, other than boilerplate accusations

that Tranquilli inappropriately used peremptory strikes against African

Americans during jury selection.3 As such, Montgomery did not show that the

evidence of Tranquilli’s judicial misconduct years after Montgomery’s jury trial

and conviction is of such a nature and character that a different verdict will

likely result if a new trial is granted. Consequently, Montgomery was not

entitled to a hearing on the merits of his after-discovered evidence claim.

Second, Montgomery argues that the PCRA court erred in questioning

whether facts of Tranquilli’s racial bias were unknown and could not have been

known through the exercise of due diligence was irrelevant. See Appellant’s

3Montgomery did not identify any witnesses he would present if a hearing would have been granted. See PCRA petition, 11/10/2021, at 7.

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Brief at 11. The PCRA is clear that if a petitioner asserts one of the exceptions

under to 42 Pa.C.S.A. § 9545(b)(1), he must also exercise due diligence and

file his petition within one year of the date that the exception could be

asserted. See 42 Pa.C.S.A. § 9545(b)(2).

The PCRA court aptly noted that it “determined the new facts set forth

in [Montgomery’s] PCRA Petition lacked merit. Thus, whether these facts were

unknown to [Montgomery] and could not have been known to him through

due diligence is irrelevant.” PCRA Court Opinion,1/10/23, at 7. We agree

under these circumstances because, as discussed previously, the PCRA court’s

conclusion was not based on a finding that Montgomery had not been diligent,

but rather that he failed to establish a prima facie case for a new trial.4

Accordingly, Montgomery’s second claim on appeal merits no relief.

Third, Montgomery argues that the PCRA court erred in failing to grant

him a new trial based upon alleged ineffective assistance of his trial and PCRA

counsel. See Appellant’s Brief at 12-14. Essentially, Montgomery claims that

prior counsel were ineffective for failing to challenge alleged improper remarks

made by Tranquilli during closing arguments and at various times throughout

the trial. See id. at 12.

4 We do not fault Montgomery for raising this issue on appeal, as neither the

PCRA court’s Rule 907 notice nor its order denying relief identify the grounds for its decision.

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We observe that under limited circumstances, a petitioner may plead

the previously unknown facts exception based upon PCRA counsel’s ineffective

assistance. See Commonwealth v. Peterson, 192 A.3d 1123, 1130 (Pa.

2018) (holding that PCRA counsel’s ineffectiveness may constitute a newly-

discovered fact for purposes of Subsection 9545(b)(1)(ii)’s timeliness

exception “where PCRA counsel’s ineffectiveness per se completely forecloses

review of collateral claims”). Here, Montgomery concedes that his prior PCRA

counsel raised this issue in Montgomery’s first PCRA petition. See PCRA

petition, 11/10/2021, at 4; see also Amended PCRA petition, 9/4/2007, at ¶

10(c). And the record reveals that the PCRA court addressed this issue on the

merits. See PCRA Court Opinion, 9/25/2008, at 4-5. As such, Montgomery

cannot establish that PCRA counsel’s actions completely foreclosed review of

these claims. He is therefore due no relief on his third claim on appeal.

In his fourth issue, Montgomery revisits the newly discovered facts

exception with an allegation that “prosecutorial misconduct [claims] against

[Tranquilli for inappropriate comments made at trial] in [Montgomery’s]

original PCRA [petition] dated September 26, 2006 are synonymous with his

present PCRA.” Appellant’s Brief at 15. Montgomery goes on to assert “that

the facts upon which his claims are predicated did not become available until

[Tranquilli] conceded to the six (6) counts of judicial misconduct.” Id. at 16.

Here, once again, Montgomery has failed to establish any connection

between the newly discovered facts arising from Tranquilli’s conduct in 2015,

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2018, and 2020, and the allegedly improper statements made by Tranquilli

during Montgomery’s trial. Moreover, Montgomery has admitted that claims

of Tranquilli’s prosecutorial misconduct were raised in his first PCRA

proceeding. Under these circumstances, we agree with the PCRA court that

Montgomery has entirely failed to establish his newly-discovered evidence

could afford him any relief. Montgomery’s fourth claim on appeal merits no

relief.

Montgomery next argues that the PCRA court erred in dismissing his

objections to the court’s Pa.R.Crim.P. 907 notice of intent to dismiss without

a hearing. See Appellant’s Brief at 21-23. He baldly claims that his “claims

are of arguable merit and entitle[] him to relief.” Id. at 21.

As noted previously, a PCRA hearing is not a matter of right, and the

PCRA court may decline to hold a hearing if there is no genuine issue

concerning any material fact and the defendant is not entitled to relief as a

matter of law. See Commonwealth v. Morrison, 878 A.2d 102, 109 (Pa.

Super. 2005); Pa.R.Crim.P. 907(2).

Here, we have already determined that the record belies Montgomery’s

claim he is entitled to relief. Consequently, the PCRA court did not commit any

error in denying relief pursuant to Montgomery’s petition.

In his final issue identified in his brief, Montgomery claims the PCRA

court erred in not appointing him counsel to pursue this petition. However,

Montgomery fails to present any argument in support of this issue. He has

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therefore waived this issue. See Commonwealth v. Thoeun Tha, 64 A.3d

704, 713 (Pa. Super. 2013).

Since none of Montgomery’s claims on appeal merit relief, we affirm the

order denying him PCRA relief.

Order affirmed.

President Judge Emeritus Stevens joins the memorandum.

Judge Olson concurs in the result.

DATE: 11/6/2023

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