Commonwealth v. Cain

29 A.3d 3, 2011 Pa. Super. 171, 2011 Pa. Super. LEXIS 2228
CourtSuperior Court of Pennsylvania
DecidedAugust 12, 2011
StatusPublished
Cited by40 cases

This text of 29 A.3d 3 (Commonwealth v. Cain) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Cain, 29 A.3d 3, 2011 Pa. Super. 171, 2011 Pa. Super. LEXIS 2228 (Pa. Ct. App. 2011).

Opinion

OPINION BY

STRASSBURGER, J.:

Martin Cain (Appellant) appeals from the judgment of sentence of ten to twenty years’ incarceration entered on June 25, 2009 following his conviction after a jury trial of robbery, theft by unlawful taking, receiving stolen property, and terroristic threats.1 We remand for proceedings consistent with this opinion.

The trial court summarized the facts as follows:

On December 26, 2007 at 9:20 P.M., [Derrick McGill (McGill) ] left his brother’s ... house in Philadelphia located at 1320 West Somerset Street and walked west toward Broad Street with five-hundred [and] fifty dollars in cash he was taking to the bank. At the corner of Somerset and Broad[, McGill] saw Appellant and two other men. Appellant approached [McGill] and said the other men were trying to rob him and asked to borrow [McGill’s] phone, to which [McGill] obliged. Appellant used the phone, but would not return it, while he questioned [McGill] about how much money he was carrying. Appellant, still holding the phone hostage, told [McGill] to follow him. [McGill] did not resist because Appellant was holding his hand in his pocket “like he had a gun.” Appellant never mentioned a gun and [McGill] never saw a gun during the altercation.
The two men walked a few blocks to Cambria Street and argued about their current predicament. Eventually, and with reluctance, [McGill] conceded to Appellant’s demands and gave up the five hundred [and] fifty dollars he was carrying because he was nervous and “did not know if [Appellant] had a gun or not.” Appellant eventually walked away with the phone and the money and [McGill] flagged down a police car a few minutes later. [McGill] rode with the police and circled the block a few times, but could not find Appellant [and] was instructed to call the police if he saw the man again.

Trial Court Opinion (TCO), 9/30/2010, at 1-2 (pages unnumbered) (citations omitted).2

A jury trial presided over by Judge Willis W. Berry, Jr. resulted in Appellant’s convictions on April 29, 2009. Judge Berry sentenced Appellant on June 25, 2009, the same day on which the Court of Judicial Discipline filed its opinion and order suspending Judge Berry from his office based upon finding, inter alia, that Judge Berry violated 18 Pa.C.S. § 3926(b).3 See In re Berry, 979 A.2d 991, 1003 (Pa.Ct.Jud.Disc.2009).

[6]*6On July 6, 2009, Appellant filed a post-sentence motion raising, among other issues, that Judge Berry had a conflict of interest in having presided over Appellant’s trial while possibly facing investigation and indictment by the same office that prosecuted Appellant. The post-sentence motion was denied by operation of law on November 5, 2009.4 Appellant filed a timely notice of appeal. On January 20, 2010, the trial court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 14 days. Appellant filed his concise statement on February 9, 2010,5 raising, inter alia, the issues of Judge Berry’s conflict of interest and an eviden-tiary error.

Judge Berry filed his opinion on July 30, 2010. Apparently there was some confusion, as the court states that Appellant failed to file his 1925(b) statement. Judge Berry proceeded to address some of the issues raised by Appellant in his post-sentence motion, but did not acknowledge or address the question of whether he should have recused himself.

In his brief on appeal, Appellant asks this Court to review two issues:

1. Did the Honorable] Willis W. Berry, Jr. err by presiding over this trial and sentencing when Judge Berry was facing possible criminal prosecution by the same office?
2. [Did the trial court err in allowing the jury to hear] evidence of a different alleged robbery?

Appellant’s Brief at 2.

We begin with Appellant’s second issue.

Our standard of review for considering whether a ruling on the admissibility of evidence was proper is well settled:

Admission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court clearly abused its discretion. Not merely an error in judgment, an abuse of discretion occurs when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence on record.

Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 94 (2009) (internal quotations and citations omitted).

At trial, the trial judge allowed the Commonwealth to call Paul Bowell to testify about his dealings with Appellant on December 10, 2007, which was approximately two weeks before the incident at issue in this case. The trial court summarized Bowell’s testimony as follows:

[Bowell] was at work painting the inside of the PNC Bank at 3200 North Broad Street. Around 6:45 P.M. Bowell was on a cigarette break sitting in his van directly outside when Appellant jumped in the van with him. Appellant asked to borrow Bowell’s cell phone while he patted Bowell’s pockets and asked if he had any money. Bowell gave Appellant his work phone but when he refused to give him his personal phone, Appellant said “I just want to let you know I have a [7]*7gun on me.” Bowell exited the van when Appellant was distracted, ran into the bank, and called the police. Bowell’s friend called the work cell phone [that] Appellant was still carrying to try and lure Appellant back. Appellant returned to exchange the phone for money, spotted the cops, and stated on the phone “them cops better not be for me because my friends are around here and we’ll shoot this place up.”

TCO, 9/80/2010, at 4 (pages unnumbered) (citations omitted).

While “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” Pa.R.E. 404(b)(1), “[e]vidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Pa.R.E. 404(b)(2). “Factors to be considered to establish similarity are the elapsed time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed.” Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super.2010) (quoting Commonwealth v. Taylor, 448 Pa.Super. 238, 671 A.2d 235, 240 (1996)).

Appellant argues that the robberies lacked sufficient similarity because “the only thing both robberies had in common was that a cell phone might have been taken.” Appellant’s brief at 6. We disagree. As the trial court explained:

The evidence of prior bad acts was correctly admitted because of the similarity in time and place of the two robberies.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Bigelow, M.
Superior Court of Pennsylvania, 2025
Com v. Williams, O.
Superior Court of Pennsylvania, 2025
Com. v. Carter, P.
2024 Pa. Super. 157 (Superior Court of Pennsylvania, 2024)
Com. v. Graham, T.
Superior Court of Pennsylvania, 2021
Com. v. Pierce, R.
Superior Court of Pennsylvania, 2020
E.G.G., Jr. v. Pennsylvania State Police
2019 Pa. Super. 284 (Superior Court of Pennsylvania, 2019)
Com. v. Smarr, C.
Superior Court of Pennsylvania, 2019
Com. v. Guerra, J.
Superior Court of Pennsylvania, 2019
Com. v. Riggan, S.
Superior Court of Pennsylvania, 2018
Com. v. Flabbi, A., Jr.
Superior Court of Pennsylvania, 2018
Com. v. Bologna, M.
Superior Court of Pennsylvania, 2018
In the Interest of: D.C., a Minor
Superior Court of Pennsylvania, 2018
Com. v. Perry, M.
Superior Court of Pennsylvania, 2018
Com. v. Palen, R.
Superior Court of Pennsylvania, 2018
Com. v. Clemmer, B.
Superior Court of Pennsylvania, 2018
Com. v. Riley, L.
Superior Court of Pennsylvania, 2018
Com. v. Harding, J.
Superior Court of Pennsylvania, 2018
Com. v. Olivo, J.
Superior Court of Pennsylvania, 2018
Com. v. Martin, K.
Superior Court of Pennsylvania, 2018
Com. v. Galvin, K., Jr.
Superior Court of Pennsylvania, 2018

Cite This Page — Counsel Stack

Bluebook (online)
29 A.3d 3, 2011 Pa. Super. 171, 2011 Pa. Super. LEXIS 2228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-cain-pasuperct-2011.