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Commonwealth v. Cascardo

September 2, 2009


Appeal from the Judgment of Sentence January 23, 2008 In the Court of Common Pleas of Lebanon County Criminal Division at No. CP-38-CR-0000439-2007.

The opinion of the court was delivered by: Cleland, J.



¶ 1 Appellant, Vincent Andrew Cascardo (Cascardo), appeals the judgment of sentence entered on January 23, 2008 by the Court of Common Pleas of Lebanon County following his conviction for first-degree murder, criminal conspiracy to commit first-degree murder and other related offenses. Cascardo challenges several of the trial court's evidentiary rulings and alleges a Brady*fn1 violation. Because we conclude the claims are without merit, we affirm.

¶ 2 At trial the Commonwealth argued Cascardo and Rodney Gerber (Gerber) conspired and murdered Daniel Hoffner (Hoffner). According to the Commonwealth, Cascardo was involved in loan sharking activities. Gerber and Hoffner were involved with Cascardo in these activities, although they played different roles. Hoffner "invested" approximately $50,000.00 with Cascardo, who in turn loaned this money to other people at usurious interest rates. Among others, Cascardo loaned money to Gerber. When Hoffner asked Cascardo to return his money, Cascardo conspired with Gerber to kill Hoffner. SeeTrial Court Opinion, 9/14/07, at 1-2, 10.

¶ 3 On September 25, 2007, after a six-day trial, a jury found Cascardo guilty of first-degree murder, criminal conspiracy to commit first-degree murder, third-degree murder, criminal conspiracy to commit third-degree murder, two counts of aggravated assault, and two counts of criminal conspiracy to commit aggravated assault in connection with the killing of Hoffner.*fn2 On January 23, 2008, the trial court imposed concurrent sentences of life imprisonment for first-degree murder and conspiracy to commit first-degree murder. All other convictions merged for sentencing purposes.

¶ 4 Cascardo filed a post-sentence motion for a new trial claiming the Commonwealth failed to disclose exculpatory grand jury evidence. The trial court set a hearing on the motion and granted Cascardo's request for leave to file supplemental post-sentence motions. After a hearing, the trial court granted another defense request for leave to file additional supplemental post-sentence motions. After reviewing all Cascardo's post-sentence motions, the trial court denied them all on May 9, 2008.

¶ 5 This appeal followed. Both the trial court and Cascardo complied with Pa.R.A.P. 1925.

¶ 6 On appeal, Cascardo raises the following issues for our review:

A. Whether the lower court erred when it overruled [Cascardo]'s motion in limine, sustained the Commonwealth's motion in limine and allowed the Commonwealth to introduce evidence from David Nicodem, Lance Kase, Sandra Latcheram, Rodney Gerber, Ronald Light and Douglas Emswiler, Sr. to the effect that [Cascardo] had engaged in loan-sharking when said evidence of prior bad acts was irrelevant and highly prejudicial to the charges pending against [Cascardo]?

B. Whether the lower court erred when it ruled that if [Cascardo] testified at trial the Commonwealth could impeach his credibility with his stale federal convictions for collection of extensions of credit by extortionate means in violation of 18 U.S.C. [§ 894] and tampering with a witness in violation of 18 U.S.C. [§ 1512]?

C. Whether the lower court erred in overruling [Cascardo]'s motion in limine and permitting the Commonwealth to introduce hearsay statements by David Hoffner to the effect that he removed unreported income from the family business without disclosing it in bankruptcy court, placed it with a "guy" knowing that his actions were unlawful and planned to confront the "guy" in order to obtain the return of the money that he had given to him plus high interest?

D. Whether the lower court erred in denying [Cascardo]'s motion for a new trial when the district attorney failed to provide defense counsel with transcripts of the grand jury testimony of the police prosecutor when the transcripts contained exculpatory evidence which was favorable to [Cascardo] on the issue of guilt?

Appellant's Brief at 4.

¶ 7 In addressing Cascardo's claims relating to the alleged evidentiary ruling errors, we are guided by the following principles:

When reviewing questions regarding the admissibility of evidence, our standard of review maintains the "admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion." Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003). "[A]n abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record." Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001).

Commonwealth v. Seilhamer, 862 A.2d 1263, 1270 (Pa. Super. 2004).

A. Prior bad acts

¶ 8 Cascardo argues the trial court erred in permitting the Commonwealth to introduce evidence Cascardo had engaged in loan-sharking activities because the evidence (i) was irrelevant and (ii) even if tangentially relevant, its relevance was outweighed by the unfair prejudice. Appellant's Brief at 18-22.

¶ 9 In Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988), our Supreme Court summarized the law regarding the admission of prior bad acts as follows:

Evidence of distinct crimes [is] not admissible against a defendant being prosecuted for another crime solely to show his bad character and his propensity for committing criminal acts. Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1 (1987); Commonwealth v. Morris, [493 Pa. 164, 174, 425 A.2d, 715, 720 (1981)]. However, evidence of other crimes and/or violent acts may be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to prejudice the defendant by showing him to be a person of bad character. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). As we recently stated in Banks:

[T]he general rule prohibiting the admission of evidence of prior crimes nevertheless allows evidence of other crimes to be introduced to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. [Morris, 493 Pa. at 175, 425 A.2d at 715]. This list of "special circumstances" is not exclusive, and this Court has demonstrated it will recognize additional exceptions to the general rule where the probative value of the evidence outweighs the tendency to prejudice the jury. [Claypool,] supra (evidence of defendant's prior criminal activity is admissible where defendant makes statement about such activity in order to threaten and intimidate victim and where force or threat of force is element of crime for which defendant is being prosecuted). [Banks,] 513 Pa. at 350, 521 A.2d at 17. Another "special circumstance" where evidence of other crimes may be relevant and admissible is where such evidence was part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts. Commonwealth v. Murphy, [499 A.2d 1080, 1082 (Pa. Super. 1985)], quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932). This special circumstance, sometimes referred to as the "res gestae" exception to the general proscription against evidence of other crimes, is also known as the "complete story" rationale, i.e., evidence of other criminal acts is admissible "to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." McCormick, Evidence, § 190 (1972 2d ed.); Carter v. United States, 549 F.2d 77 (8th Cir. 1977); United States v. Weeks, 716 F.2d 830 (11th Cir. 1983); see also Commonwealth v. Coyle, 415 Pa. 379, 389-91, 203 A.2d 782, 787 (1964) (evidence of other crimes admissible as these crimes were interwoven with crimes for which defendant was being prosecuted).

Lark, 518 Pa. at 302-04, 543 A.2d at 497.

¶ 10 The trial court found the testimony relating to prior bad acts was admissible under the history of the case exception. Specifically, the trial court, in admitting the testimony, reasoned:

In this case, the Commonwealth's theory is that [Cascardo] earned a living through "loan-sharking" in which threats and intimidation were tools of his trade. The Commonwealth will connect both [Hoffner] and [Gerber] to [Cascardo]'s business. Although Gerber was a debtor of [Cascardo] and Hoffner was a creditor, both were essential to [Cascardo]'s loan-sharking business, albeit in different ways. Without the money invested by people like Hoffner, [Cascardo] would not have the funds needed to loan money to others at usurious rates of interest. Without [debtors] like Gerber, [Cascardo] would not earn a profit based upon his excessive interest. As we see it, [Cascardo]'s loan-sharking activities are an integral part of this fact pattern and represent the only way that the Commonwealth can fully explain the connection between Hoffner, Gerber and [Cascardo]. As such, evidence of loan-sharking by [Cascardo] constitutes "the chain or sequence of events which forms the history of the case and [was] part of its natural development."

Trial Court Opinion, 9/14/07, at 13.

¶ 11 The trial court also found these facts could show Cascardo's (and Gerber's) motive to kill Hoffner. "To be admissible to show motive, the evidence must provide a sufficient ground to believe that the crime currently being considered grew out of, or was in some way caused by, the prior set of facts and circumstances." Commonwealth v. Spotz, 562 Pa. 498, 524, 756 A.2d 1139, 1153 (2000).

¶ 12 Regarding the motive exception, the trial court noted:

As we understand it, [Gerber] will testify that he killed Hoffner because he owed money to [Cascardo] and feared what [Cascardo] might do in order to collect that money. Given this testimony, the reasonableness of Gerber's fear of [Cascardo] is certainly an issue. If we were to hide from the jury [Cascardo]'s loan-sharking methods of operation, there would be nothing to corroborate Gerber's bald assertion of fear. . . . [Evidence of Cascardo's loan-sharking activities] is also critical to explain why Hoffner would give money to [Cascardo] and why [Cascardo] would have a motive to avoid repaying that money. Evidence of [Cascardo]'s loan-sharking presents the only plausible explanation for the link between Hoffner, Gerber and [Cascardo]. As such, it constitutes an integral part of the sequence of events that form the history of this case.

Trial Court Opinion, 9/14/07, at 14.

¶ 13 The trial court also considered the potential for prejudice to Cascardo. "The particular prejudice that Rule 404(b)(3) seeks to prevent is the misuse of the other-offense evidence - specifically, that jurors might convict a defendant because they perceive the defendant has a bad character or propensity to commit crimes." Commonwealth v. Hacker, 959 A.2d 380, 392 (Pa. Super. 2008) (citation omitted).

¶ 14 The trial court balanced the Commonwealth's need for the evidence against its potential for prejudice. The trial court wrote "we view evidence of [Cascardo]'s loan-sharking activities as vital to the Commonwealth's case. Such activities provide the only conceivably viable explanation for the Commonwealth's theory of what occurred." Trial Court Opinion,9/14/07, at 15.

¶ 15 Finally, to address the potential prejudice, the trial court gave cautionary and limiting instructions relating to the prior bad act evidence. See, e.g., Commonwealth v. Williams, 586 Pa. 553, 581, 896 A.2d 523, 540 (2006). The trial court properly instructed jurors how they were to consider the prior bad act evidence. Specifically, the trial court cautioned the jury as follows: (i) Cascardo could not be convicted of murder only because he was allegedly involved in loan-sharking activities, and (ii) the evidence of loan sharking could not be used to establish Cascardo was a person of bad character or had criminal tendencies from which guilt could be inferred. See N.T. Trial, 9/18-9/25/07, at 1238-40.

¶ 16 Additionally, the trial court instructed the jury to use the evidence only for two purposes. First, "the evidence provided background information that the Commonwealth asserts can be used to explain why [Cascardo] came into contact with [Gerber] and [Hoffner]." Id. at 1239. Second, "I permitted the Commonwealth to tell you about [Cascardo]'s loan sharking activities . . . because it has relevance to [Cascardo]'s motive." Id.

¶ 17 Upon review, we conclude the trial court did not abuse its discretion in admitting evidence of Cascardo's prior bad acts.

B. Impeachment Evidence

¶ 18 Cascardo argues the trial court erred in ruling the Commonwealth was permitted to impeach him with his federal convictions for collection of extensions of credit by extortionate means (18 U.S.C. § 894) and tampering with a witness (18 U.S.C. § 1512).*fn3 Cascardo argues the federal convictions do not involve crimes of dishonesty or false statement and, in any event, said convictions are stale. Appellant's Brief at 16.

¶ 19 The relevant rule of evidence provides as follows:

Rule 609. Impeachment by Evidence of ...

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