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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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 Section 5511, governing animal cruelty, was repealed and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.
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      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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J-S55021-18


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


____________________________________________


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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J-S55021-18


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


____________________________________________


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




____________________________________________


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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