Com. v. Johnson, M. ( 2018 )

J-S55021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MONTEL J. JOHNSON
Appellant No. 3398 EDA 2017
Appeal from the Judgment of Sentence imposed October 16, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0004576-2016
BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 30, 2018
Appellant, Montel J. Johnson, appeals from the October 16, 2017
judgment of sentence imposing an aggregate 15 to 30 years of incarceration
for robbery, burglary, conspiracy, theft by unlawful taking, receiving stolen
property, recklessly endangering another person, and animal cruelty.1 We
affirm.
The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
In April of 2016, Robert Ferry, his girlfriend, Nikki Dixon,
and Ms. Dixon’s seven-year-old daughter resided in a single-
family residence located at 29 Goldengate Road, Levittown, Bristol
Township, Bucks County. On April 18, 2016, at approximately
4:30 a.m., Mr. Ferry was awakened when his dog began to bark.
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1 18 Pa.C.S.A. §§ 3701, 3502, 903, 3921, 3925, 2705, and 5511,
respectively. Section 5511, governing animal cruelty, was repealed and
replaced by 18 Pa.C.S.A. § 5533 effective August 28, 2017.
J-S55021-18
Mr. Ferry went downstairs to investigate and saw his former
neighbor, Brittany Dorio, standing at the carport door, peering
inside the home. Mr. Ferry went outside to speak to Dorio and
discovered that his motorcycle, which had been parked in the
carport, had been moved and was now parked near the end of the
driveway, behind where Ms. Dixon’s SUV was parked. Mr. Ferry
walked down the driveway toward the motorcycle and was
confronted by [Appellant] who appeared from behind the SUV,
brandishing a handgun. [Appellant] pointed the handgun at Mr.
Ferry and walked toward him, forcing Mr. Ferry to retreat toward
the carport. [Appellant] told Mr. Ferry that he ‘was in a bad way.’
Mr. Ferry told [Appellant] there were children in the home. He
also told [Appellant] that he had surveillance cameras and that
Dorio could confirm that fact. Undeterred, [Appellant] demanded
money and stated he knew Mr. Ferry kept money inside of the
home. While the gun was pointed at Mr. Ferry’s face, [Appellant]
‘racked the slide’ of the gun, chambering a round from the clip
into the chamber, making the handgun ready to fire. Mr. Ferry
backed up to the door and took hold of the door handle which fell
loose into his hand. Mr. Ferry’s dog then pushed through the door
into the carport. [Appellant] backed up and fired several shots at
the dog and immediately fled on foot. Mr. Ferry threw the door
handle at [Appellant] and gave chase. He was unable to keep up
but he did hear a car door shut and see a small, four-door Saturn
‘take off,’ and drive up the street with no headlights on. Ms. Dixon
called 911.
Trial Court Opinion, 2/8/18, at 2-3 (record citations omitted).
At trial, Ferry identified Appellant as the perpetrator. Dorio, after
entering a plea agreement, testified and confirmed that Appellant was the
perpetrator. She stated that she and Appellant were at Ferry’s home twice
during the early morning of April 18, 2016. The first time, they removed some
items from a parked car and left. The second time, Dorio served as lookout
while Appellant dragged Ferry’s motorcycle down the driveway. DNA analysis
confirmed that Appellant’s DNA was on the handles of Ferry’s motorcycle.
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Approximately two months after the incident in question, and before
Appellant’s arrest, Ferry’s motorcycle was stolen.
On May 1, 2017, at the conclusion of trial, a jury found Appellant guilty
of the aforementioned offenses. On May 15, 2017, the trial court imposed an
aggregate ten to twenty years of incarceration. On October 16, 2017, after
granting reconsideration, the trial court imposed the sentence presently at
issue in this timely appeal. Appellant raises a single assertion of error:
Whether the trial court erred in denying the defense the
ability to question the Commonwealth witnesses regarding the
later theft of the motorcycle that was the exact property which
related to [Appellant’s] conviction[s?]
Appellant’s Brief at 4.2 The trial court ruled the subsequent theft of the
motorcycle irrelevant.
We review a trial court’s evidentiary ruling for abuse of discretion.
Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011).
“Criminal defendants are entitled to offer evidence that some other person
committed a similar crime at or around the same time they are alleged to have
committed a crime.” Commonwealth v. Palagonia, 868 A.2d 1212, 1216
(Pa. Super. 2005), appeal denied, 880 A.2d 1238 (Pa. 2005); Pa.R.E. 401
and 402. The admissibility of such evidence depends on “1) the time lapse
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2 We note with disapproval that Appellant’s brief omits many items required
under the Rules of Appellate Procedure, including a statement of questions
involved. Pa.R.A.P. 2116; and see generally Pa.R.A.P. 2111-2119. The
assertion of error quoted above is the heading of Appellant’s argument
section.
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between the commission of the two crimes; and 2) the resemblance between
the methodologies of the two crimes.” Id. “[E]ven if the time lapse between
the commission of the crimes is brief … the evidence is not admissible unless
the nature of the crimes is so distinctive or unusual as to be like a signature
or the handiwork of the same individual.” Commonwealth v. Bergen, 142
A.3d 847 (Pa. Super. 2016).
In Palagonia, the victim spotted the defendant on her balcony, which
was attached to her residence and meant to be entered from inside the
residence. Palagonia, 868 A.2d at 1215. A rash of other burglaries occurred
nearby on the same night. Id. In those cases, the burglars used pry tools to
enter the victims’ garages. Id. at 1215-16. This Court held that the garage
burglaries and the crime at issue “were not so distinctive or unusual as to
constitute ‘signature crimes.’” Id. at 1216. Unlike the burglaries, the crime
at issue involved no tools and no forced entry, and none of the victim’s
possessions was found in the cache of items recovered during the burglary
investigations. Id. at 1217.
In Bergen, the defendant, a passenger in a car shortly before he was
arrested, wanted to demonstrate that the involved gun belonged to the driver.
Bergen, 142 A.3d at 851. The driver had a ten-year-old conviction for
unlawful possession of a firearm. Id. This Court upheld the trial court’s
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exclusion of the driver’s prior conviction because it was old and because the
facts leading to the conviction were unclear. Id.3
Instantly, the attempted theft and successful theft of Ferry’s motorcycle
took place only two months apart. However, the record is devoid of any
evidence of the methodologies employed, such that a court could conclude the
two offenses constituted a signature crime. Indeed, Appellant proffered no
evidence of the circumstances of the motorcycle theft, only the fact that it was
stolen. Under these circumstances, the trial court correctly ruled that a
successful theft two months after an attempted theft of the same motorcycle
is not admissible under Palagonia and Bergen because the subsequent theft
was irrelevant.
“Evidence is relevant if […] it has any tendency to make a fact more or
less probable than it would be without the evidence; and […] the fact is of
consequence in determining the action.” Pa.R.E. 401. Here, the consequential
fact in question is Appellant’s identity as the perpetrator, and the evidence on
that fact is overwhelming. Three eyewitnesses implicated Appellant.
Eyewitness Dorio stated that Appellant dragged Ferry’s motorcycle down
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3 We observe that a similar case is presently pending before the Pennsylvania
Supreme Court. Commonwealth v. Gill, 158 A.3d 719 (Pa. Super. 2017),
appeal granted, 176 A.3d 848 (Pa. 2017). In Gill, this Court held that the
trial court erred in admitting evidence of a similar burglary. The defendant
claimed that, in both cases, a similar amount of money was stolen from a
lockbox in the same residence of the same victim; that the victim had a key
to the lockbox; that there were no signs of forced entry in either case; and
that the perpetrator was probably someone the victim knew. Id. at 722-23.
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Ferry’s driveway while she watched. Appellant’s DNA was on the handles of
Ferry’s motorcycle. Therefore, any other evidence on this point cannot make
Appellant’s identity any more or less probable. See Pa.R.E. 401. The trial
court did not err or abuse its discretion in excluding evidence of the
subsequent theft because, on the facts of this case, it had no bearing on the
identity of the instant perpetrator.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/18
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4 Inasmuch as Appellant was still at large, the jury could have viewed the
subsequent theft as incriminating rather than exculpatory.
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