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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 singlefamily 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 Section 5511, governing animal cruelty, was repealed and 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. 
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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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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.