J-S59013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

______________________________

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

MONTANA BELL,

Appellant

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA

:

:

:

:

:

:

: No. 2836 EDA 2013

Appeal from the Judgment of Sentence Entered August 15, 2013,

In the Court of Common Pleas of Philadelphia County, 

Criminal Division, at No. CP-51-CR-0012776-2011.

BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 26, 2014

Appellant, Montana Bell, appeals from the judgment of sentence 

entered following his conviction of one count of third degree murder, one 

count of Violating the Uniform Firearms Act (“VUFA”), and one count of 

possession of an instrument of crime (“PIC”). We affirm. 

The trial court summarized the facts of this case as follows:

These charges arose out of an incident that occurred on 

July 11, 2011, at approximately 11:45 p.m. Appellant and the 

decedent, Kim Davis (“Davis”), were engaged in an ongoing 

argument over prescription pills and money. Davis and 

Appellant met up that night and continued their argument at the 

corner of Patton and Allegheny Streets, outside Davis’s home. 

During the argument, Appellant hit Davis, knocking her to the 

ground. Davis got back up to her feet and reached for the 

hammer she carried around the neighborhood for protection but 

before she could get the hammer out, Appellant shot her. Davis 
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was shot twice in the head and neck area but suffered three (3) 

gunshot wounds. Davis was shot in her right cheek and the 

bullet exited her left cheek, hitting the left upper cervical spine

causing a spinal cord injury. Davis was shot in her neck, behind 

her right ear, causing injury to her right temporal lobe. Davis’s 

third gunshot wound was to her left forearm and appeared to be 

a reentry from having her forearm near either her cheek or her 

neck at the time she was shot.

Officer James Russell (“Officer Russell”) and his partner, 

James Somerville (“Officer Somerville”) noticed a job pending at 

Patton & Allegheny Streets and responded over police radio that 

they would handle the job. Upon arrival, they were flagged 

down by a woman on the street who stated that there was a 

woman, later identified as Davis, lying on the ground. Both 

Officers Russell and Somerville got out of the patrol car and 

approached Davis, who was laying on her stomach. The officers 

rolled Davis over on her back and noticed a large amount of 

blood coming from her head. When asked if she knew who shot 

her, Davis was unresponsive. Davis was breathing but was 

having difficulty speaking because blood was coming from her

mouth. Other officers arrived shortly after and helped Officers 

Russell and Somerville carry Davis to Russell and Somerville’s 

patrol car. Officers Russell and Somerville rushed Davis to 

Temple University Hospital and remained at the hospital with 

Davis. Davis was pronounced dead at 12:01 a.m. on July 12, 

2011. Davis was transported to the Medical Examiner’s Office 

where an autopsy was performed which determined that the 

cause of death was two (2) gunshot wounds to the face and neck 

and the manner of death was homicide.

Trial Court Opinion, 3/4/14, at 2-3. 

The trial court provided the following procedural history of this case:

On June 21, 2013, Appellant, Montana Bell, was found 

guilty, [by a jury], of one (1) count of third degree murder, a 

felony of the first degree; one (1) count of Violating the Uniform 

Firearms Act (“VUFA”) § 6108, a misdemeanor of the first 

degree; and, one (1) count of Possession of an Instrument of 

Crime (“PIC”), a misdemeanor of the first degree. On August 

15, 2013, [the trial court] sentenced Appellant to twenty to forty 
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(20-40) years for the 3rd degree murder conviction, two and 

one-half to five (21/2 - 5) years incarceration for the VUFA 

conviction, and two and one-half to five (21/

2 - 5) years 

incarceration for PIC. All convictions are to run consecutively, 

for a cumulative sentence of twenty-five to fifty (25-50) years 

incarceration.

On September 11, 2013, Appellant filed a timely Notice of 

Appeal. On November 12, 2013, after ascertaining that all notes 

of testimony were available, [the trial court] pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b), ordered 

Appellant to file a self-contained and intelligible statement of 

matters complained of on appeal. On December 2, counsel filed 

a 1925(b) statement of matters complained of on appeal to [the 

trial court].

Trial Court Opinion, 3/4/14, at 1-2. The trial court prepared an opinion 

pursuant to Pa.R.A.P. 1925(a) based on the issues outlined in Appellant’s 

Pa.R.A.P. 1925(b) statement. Id. at 1-9.

Appellant presents the following issues for our review in his appellate 

brief:

I. Is [Appellant] entitled to an arrest of judgment on all 

charges, including Murder in the Third Degree and Related 

Weapons Offenses, where the evidence was insufficient to 

sustain the verdict?

II. Is [Appellant] entitled to a new trial where the 

verdict was not supported by the greater weight of the evidence, 

and where the verdict was based on speculation, conjecture and 

surmise?

Appellant’s Brief at 3. 

We begin our analysis by considering whether Appellant’s issues raised 

in his appellate brief are waived. As noted, Appellant was directed to file a 
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Pa.R.A.P. 1925(b) statement in this case and he timely complied. In that 

Pa.R.A.P. 1925(b) statement, Appellant outlined the following issues:

1. It was error to admit certain ballistic evidence, to the 

prejudice of the defendant. Notes of Testimony, June 20, 2013, 

pp 59, 15-54.

2. It was error to admit testimony about alleged automobile 

theft, assault, and pills, to the prejudice of the defendant. Notes 

of Testimony, June 17, 2013, pp 13-17, Notes of Testimony, 

June 19, 2013, pp 66-100.

3. It was error to admit hearsay evidence, to the prejudice of the 

defendant, relative to identification of the defendant. Notes of 

Testimony, June 18, 2013, pp 123-124.

4. It was error to disallow cross-examination relative to a “deal” 

made by a witness to testify against the defendant, to the 

prejudice of the defendant. Notes of Testimony, June 18, 2013, 

pp 131-132.

5. It was error to allow testimony, to the prejudice of the 

defendant, that “others” knew that the defendant had been 

arrested. Notes of Testimony, June 18, 2013, p 189.

Appellant’s Statement of Matters Complained of pursuant to Rule of 

Appellate Procedure 1925(b), 12/2/13, at 1-2. Consequently, in its 

Pa.R.A.P. 1925(a) opinion, the trial court addressed the above-referenced 

issues outlined in Appellant’s Pa.R.A.P. 1925(b) statement. 

Issues not included in a Rule 1925(b) statement are deemed waived. 

Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has stated the following 

regarding preservation of issues in a Pa.R.A.P. 1925(b) statement:

Our jurisprudence is clear and well-settled, and firmly 

establishes that: Rule 1925(b) sets out a simple bright-line rule, 
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which obligates an appellant to file and serve a Rule 1925(b) 

statement, when so ordered; any issues not raised in a Rule 

1925(b) statement will be deemed waived; the courts lack the 

authority to countenance deviations from the Rule’s terms; the 

Rule’s provisions are not subject to ad hoc exceptions or 

selective enforcement; appellants and their counsel are 

responsible for complying with the Rule’s requirements; Rule 

1925 violations may be raised by the appellate court sua sponte, 

and the Rule applies notwithstanding an appellee’s request not 

to enforce it; and, if Rule 1925 is not clear as to what is required 

of an appellant, on-the-record actions taken by the appellant 

aimed at compliance may satisfy the Rule. We yet again repeat 

the principle first stated in [Commonwealth v.] Lord[, 719 

A.2d 306 (Pa. 1998)] that must be applied here: “[I]n order to 

preserve their claims for appellate review, [a]ppellants must 

comply whenever the trial court orders them to file a Statement 

of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. 

Any issues not raised in a Pa.R.A.P. 1925(b) statement will be 

deemed waived.”

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (internal footnote and 

citations omitted). “[W]aiver under Rule 1925 is automatic.” 

Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002). Accordingly, 

because Appellant has failed to preserve the issues raised in his appellate 

brief by including them in his Pa.R.A.P. 1925(b) statement, we find these 

issues waived. 

Additionally, to the extent that Appellant claims that the verdict was 

not supported by the weight of the evidence, we conclude that this issue 

also is waived on a second basis. “[A] challenge to the weight of the 

evidence must be raised with the trial judge or it will be waived.” 

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004). In 
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order to preserve a weight of the evidence claim, it must be raised either 

prior to sentencing in front of the trial court or after sentencing in a post 

sentence motion. Pa.R.Crim.P. 607(A). 

Instantly, Appellant failed to raise, prior to sentencing or in a postsentence motion, his claim regarding weight of the evidence. Rather, 

Appellant raised the issue for the first time in his appellate brief. Thus, in 

addition to these claims being waived as a result of not being included in the 

Pa.R.A.P. 1925(b) statement, Appellant’s weight of the evidence claim is also 

waived due to his failure to preserve it by raising it with the trial court. 

Because Appellant has failed to preserve the issues he raised in his 

appellate brief, we conclude that those issues are waived. As such, we are 

precluded from reviewing the merits of those claims and affirm Appellant’s 

judgment of sentence. See In re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 

2007) (stating where issues are waived on appeal, we should affirm rather 

than quash appeal).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/26/2014
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