HOLLIDAYSBURG — An attempted homicide charge was dismissed from one of two suspects allegedly involved in a drug-related shooting in which a male victim was shot in the mouth.

James Alvin Cain Jr., 38, also had a misdemeanor count of purchasing a controlled substance amended to a conspiracy charge during a preliminary hearing in Blair County Central Court on Friday. His remaining two felony counts of aggravated assault, one felony count of criminal trespass, three misdemeanor counts of simple assault and one misdemeanor count of loitering and prowling at night time were bound to the court of common pleas.

Cain and Benjamin Merritts, 27, both of Altoona, were charged Aug. 18 after an Aug. 17 shooting at an apartment building on the 1300 block of North Fourth Avenue. Police said the victim was shot in the mouth and had two shots absorbed by his backpack.

He was treated at UPMC Altoona before being transferred to UPMC Pittsburgh for surgery. The 46-year-old victim suffered a dislocated jaw and extensive blood loss as a result of the shooting, the report states.

Merritts told police he went to the residence to get drugs and, when the deal soured, he became upset and shot at the victim about three or four times. He and Cain then fled the area in different directions, with Merritts disposing of the gun near a storage area.

A person formerly employed by the apartment building’s landlord was called as the first witness during the preliminary hearing. He testified to being in the basement of the building when he heard a “ruckus” upstairs, followed by popping sounds like gunshots. When he went to investigate, he saw the victim bleeding from the side of his face, the witness stated.

The witness said the apartment in which the shooting allegedly took place, apartment seven, was being renovated and no one was supposed to be inside. He also clarified he didn’t physically see the victim, Merritts or Cain leave apartment seven but he saw Merritts and Cain fleeing the scene.

Detective Michael Ford with the Altoona Police Department said the scene was “quite hectic” when he arrived and, upon entering apartment seven, he saw a “pool of blood and a spent shell casing.” During the investigation, Ford said he learned the victim had been at the apartment with a backpack, which showed evidence of absorbing two gunshots.

Cain’s attorney Terry Despoy argued there was no evidence showing Cain coming out of the apartment, there was “absolutely nothing tying him to Merritts’ shooting the victim” and there was no evidence that Cain assaulted anyone. He asked Magisterial District Judge Daniel C. DeAntonio to dismiss all charges.

Despoy also petitioned the court for a reduction in his client’s $500,000 bail to 10% of $100,000, saying Cain was a low flight risk and had a job waiting for him.

“His level of involvement was very small, if any,” Despoy said.

While DeAntonio did dismiss the attempted homicide charge and amended another charge, he denied the bail request, citing Cain’s previous bench warrants for parole violations.

“My main concern is that he’s not going to show up,” DeAntonio said.

Merritts’ attorney John Siford asked for the felonies of criminal trespass and firearms not to be carried without a license, as well as the misdemeanors possession of an instrument of crime and purchasing a controlled substance, be dismissed due to lack of evidence. He left the remaining charges to DeAntonio’s discretion.

DeAntonio denied Siford’s request and bound all of Merritts’ charges to court. Merritts is facing a single felony count of criminal attempt – criminal homicide, two felony counts of aggravated assault, felony counts of criminal trespass, receiving stolen property, possession of a firearm prohibited and carrying a firearm without a license, along with three misdemeanor counts of simple assault, possession of an instrument of crime with intent, possession of a weapon and possession of a controlled substance. He was remanded to the Blair County Prison on $750,000 bail.

Others face charges

During the hearings for Cain and Merritts, Blair County District Attorney Pete Weeks asked Ford if any officers had issues with unauthorized individuals entering apartment seven, to which Ford said it had been brought to their attention that people “had entered despite the crime scene tape.”

Ford said police found Tyrone residents Kyle Douglas Brown, 33, William Frederick Fritz III, 36, and Kayla Marie Smith, 32, inside the cordoned-off apartment. They were escorted outside. When Fritz was searched, officers found a glass smoking device, Ford said, and a capped syringe was found on Smith.

“Drug paraphernalia was found on all of them,” Ford said. “And they should not have been in there.”

Ford said Smith told officers she went into the apartment to retrieve a backpack. When the space was searched, an additional backpack was not located, Ford said.

The three were charged with single felony counts of conspiracy – burglary, burglary and criminal trespass, as well as tampering with or fabricating physical evidence and possession of drug paraphernalia. They were then remanded to the Blair County Prison on $15,000 bail each.

Altoona police Detective Adreanna Lucas was also called as a witness and said she helped secure the scene. Inside the apartment’s kitchen, Lucas said a scale with white residue was found, along with an envelope filled with green zip-top bags.

When asked by Fritz’ attorney Scott Pletcher if the scene had been disturbed, Lucas said there were bloody shoe prints and one of the officers had been tasked with looking at all of the other officers’ shoes. Pletcher then asked if having the crime scene tape on the porch, like it was, would be enough of an indication for civilians to not enter the apartment.

“I guess it depends on the person,” Lucas said. “I’ve seen people completely go around police tape.”

Smith’s attorney Kristen Anastasi questioned Lucas on how long Smith was in the apartment and if she had taken anything, to which Lucas said about 30 seconds and officers had only found the syringe when Smith was searched.

During closing arguments, Anastasi said only the drug charge had evidence and asked the others to be dismissed. Pletcher agreed, saying Anastasi’s arguments “almost completely apply to Fritz.”

DeAntonio dismissed the felony conspiracy – burglary and burglary charges against Smith and Fritz. He also granted requests to modify their 10% of $15,000 monetary bail to $15,000 unsecured.

Brown, represented by attorney Robert Donaldson, waived his right to a preliminary hearing, sending the charges against him to the court of common pleas. Unable to post 10% of $15,000 bail, he was remanded to the Blair County Prison.