J-S49044-19
2019 PA Super 363
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAKREE S. BENNETT :
:
Appellant : No. 2310 EDA 2018
Appeal from the Judgment of Sentence Entered February 9, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003953-2016
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 23, 2019
Appellant, Shakree S. Bennett, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia after a jury found him
guilty on charges of involuntary deviate sexual intercourse (“IDSI”), robbery,
and possessing instruments of crime (“PIC”). Sentenced to an aggregate
sentence of 22 ½ to 45 years’ incarceration, Appellant contends the trial court
violated his right to confront the witnesses against him and erroneously denied
his motion for mistrial. We affirm.
The trial court opinion sets forth the pertinent facts, as follows:
On September 28, 2015, at about 11:30 p.m., Philadelphia Police
Officer Gerard Brennan was on patrol training another officer in
the area of Temple University, when he received a radio call
directing him to go to the 1400 block of Carlisle Street to
investigate reports of a woman screaming and a rape. The officer
immediately proceeded to that location and encountered S.D., the
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* Former Justice specially assigned to the Superior Court.
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complainant herein, who was in an ambulance being treated by
emergency medical personnel.
Officer Brennan received information from the complainant
concerning what the alleged assailant was wearing and that he
was armed with a silver gun, which the officer put out over police
radio. The complainant described the assailant as being a black
male, in his twenties, about six feet tall and wearing a green jacket
or vest, blue jeans, and a long black t-shirt. She further related
that the assault occurred about thirty yards from where the officer
encountered her. The officer then had the complainant exit the
ambulance and took her to the headquarters of the Police
Department’s Special Victim’s Unit (hereinafter SVU). Officer
Brennan left the Unit after the complainant’s parent arrived.
S.D., a student at Temple University, had spent the night of the
incident studying at the library, which she left at about 11:00
p.m., with members of her study group. After stopping to buy a
cookie, she left her friends at Broad and Cecil B. Avenue and then
walked alone a half block north to Carlisle Street where her
apartment was located.
When S.D. reached Jefferson Street and was crossing it, she heard
the sound of footsteps on Jefferson Street going west from Broad
Street. She turned around at which time a black male grabbed
her and hit her on the arm with a small silver hand gun. The male
then [directed] her to a desolate area. She screamed, but the
male, who still was brandishing the gun told her to be quiet.
The male then rifled through her backpack and wallet, and after
taking some items from it including her cell phone, he told S.D. to
take off her clothes. She did as ordered and the male put on a
condom and anally raped her.fn
Fn. Video surveillance cameras at various locations
recorded S.D. as she proceeded toward her
apartment.
S.D. cried while this was occurring and the male ordered [her] to
stop and moan. After about seven or eight minutes, the assailant
stopped anally raping S.D. and pulled up his pants. After S.D. put
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her clothes back on, the assailant ordered her to go in a direction
toward her apartment and he went down Jefferson Street. S.D.
indicated that the male was wearing jeans, a hat and a “greyishgreen jacket-vest thing.” S.D. entered her apartment and
directed one of her roommates to call the police. Officer Brennan
arrived shortly thereafter and took her to the S.V.U.
Once at the S.V.U., S.D. was examined by a nurse and a Rape Kit
was prepared after which she gave Detective Kimberly Organ a
statement. Detective Organ then drove S.D. back to Temple
University and had her repeat the route she walked home from
the library and the location where the rape occurred. Two days
thereafter, detectives came to her apartment and showed her still
photographs produced from video recordings taken the night of
the incident for the purpose of ascertaining whether she could
identify [her assailant from the video and photographs]. Upon
viewing the videos, S.D. positively identified a male depicted in
them as the person who sexually assaulted her. S.D. identified
him by his physical features and the clothing he was wearing.fn
Fn. After identifying Appellant in the photograph, S.D.
told her mother that she was positive that Appellant
was the person who assaulted her.
On October 9, 2015, S.D. took part in a photographic identification
session. Upon reviewing the photographs, she selected a
photograph of Appellant because the photograph of him that she
saw most resembled her assailant because the facial hair and
complexion was right. When she selected the photograph she said
that she was not one hundred percent sure and wanted to look at
additional photographs. She did not change her mind or select
another photograph upon reviewing additional photos, and
thereafter positively and with certainty identified Appellant at his
preliminary hearing and during trial before [the trial] court as the
person who raped her.
Dr. Ralph Riviello, a professor of emergency medicine at Drexel
University, and an affiliate of Philadelphia Sexual Assault
Response Center, reviewed medical records pertaining to the
examination of S.D. the night of the incident that was performed
by Nurse Jenika Miles. The examination of S.D. consisted of an
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interview concerning the incident, a physical examination, and the
collection of biological materials from her body, which are then
turned over to the police for further examination and testing. The
physical examination of S.D. revealed that she suffered redness
on her right buttock, a bruise to her left upper arm, and
tenderness to the touch in the area of her anus.
Mr. John Haggerty, a Temple student at the time of the incident
herein, was walking down Carlisle Street at about the time of the
incident when he saw a man and a woman next to a dumpster
against the wall. Both persons were facing the wall. At the time,
he thought that the persons were engaged in a consensual act.
The next day, upon learning of the incident herein, Mr. Haggerty
spoke to the police and said he got a side view of the male. He
described the male he had seen the previous evening by the
dumpster as African American, with a goatee who was wearing a
hat or had close cropped hair, and a big jacket. A couple days
later Mr. Haggerty also looked at photographs developed from a
video recording and identified a person depicted therein, who was
Appellant, as the male he saw by the dumpster based on the
jacket that the person was wearing and the person’s face.
Mr. Benjamin Mallow, a parole officer with the Commonwealth of
Pennsylvania who, as a parole officer, supervised Appellant, saw
one of the video[] recordings taken by security cameras in the
area where the incident herein occurred. Upon watching the
video, which was broadcast on local television stations following
the rape of S.D., Mr. Mallow identified Appellant, who he saw once
a month over an eight month period when he was supervising him.
Mr. Mallow contacted the police and gave them a statement. The
police also had him review photographs depicting Appellant
developed from one of the video recordings recovered by police
taken on the night of the incident and told the police that they
depicted Appellant.
United States Marshall Pedro Alvarez, who supervised and
oversaw fugitive and criminal investigations in New Jersey,
commenced an investigation involving Appellant after being
requested to do so by the Philadelphia S.V.U. and because of a
parole violation. On October 7, 2015, Marshall Alvarez and
members of his team went to a residence in Newark, New Jersey,
where they encountered Shaheed Bennett, Appellant’s brother,
who appear[ed] to hesitate when asked if he knew where
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Appellant might be located. While knocking on the front door the
authorities heard someone stumbling and the sound of footsteps
inside the residence. As a result thereof, they asked Mr. Bennett
if they could search the residence for Appellant and he consented.
On the third floor of the residence police found Appellant hiding
under a bed. He refused to come out from under the bed and
although he began kicking and punching, he was eventually
apprehended. Incident to his apprehension, police seized a cell
phone, a puffy purple jacket, a blue hooded sweatshirt, and a
black hat. These items were turned over to the Philadelphia Police
Department.
Philadelphia Police Detective Edward Enriquez of the SVU was
assigned to investigate the rape of S.D. Upon being assigned, he
collected video recordings made by various surveillance cameras
situated on Temple University’s campus and the route S.D. took
to her residence. One of the recordings depicted S.D. running into
her apartment at about 11:43 p.m., and a male fitting the flash
information broadcast by Officer Brennan on other videos
recorded at various locations on the campus and near the scene
of the rape. The last time that individual is depicted on a video is
11:43, at 15th and Jefferson Streets, a location a half block from
Carlisle Street.
These videos showed S.D. on the campus proceeding down
Carlisle Street from Cecil B. Moore Avenue. He then walked South
on Broad Street to Jefferson Street where he went westbound. He
is next seen on a video at 11:43 p.m., at 15th and Jefferson
Streets. Police developed still photographs depicting Appellant
from these videos, which Detective Enriquez released for public
broadcast. [As noted, supra, Parole Officer Mallow] thereafter
informed police that he could identify the person in the
photographs after which S.D. was asked to participate in a photo
identification session. In another video taken on September 21,
2015, Appellant was observed purchasing the jacket he was
wearing in the other videos recorded the night of the incident.
Detective Enriquez received the items recovered by Marshall
Alvarez and placed them on a property receipt. He also obtained
a search warrant for Appellant’s cell phone but it could not be
accessed because police did not have its password.[]
Natisha Bush, a witness for the defense, testified that she resided
in the 1400 block of North 15th Street and that Appellant was her
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fiance’. She stated she gave Appellant money from the jacket he
was observed purchasing in the [above-referenced] video. She
added that the jacket was missing its lining and that Appellant left
the residence they shared in the morning wearing the clothes he
had on in the videos. Further, she remarked that he did not take
a change of clothing with him when he left in the morning of the
day the incident occurred. Finally, she indicated that he usually
returned home from work between 9:00 p.m. and 12:00 a.m.
Trial Court Opinion, 10/29/18, at 1-7.
Appellant presents the following questions for our consideration:
1. Did the lower court violate Appellant’s rights to confront the
witnesses against him when it allowed the Commonwealth to
substitute Dr. Riviello for Jenika Miles at the last minute and
allowed Dr. Riviello to introduce testimonial evidence against
Appellant of which the doctor had no personal knowledge?
2. Did the lower court err in denying Appellant’s request for a
mistrial when the jury indicated that it had reached a verdict
on one charge, but the lower court did not take the verdict or
in any way preserve it?
Appellant’s brief, at 4.
In Appellant’s first issue, he claims that the trial court violated his
constitutional right to confront the witnesses against him when it allowed a
doctor to relate to the jury a written report prepared by a nurse who, alone,
conducted a post-assault interview and examination of S.D. and recorded
S.D.’s description of her rapist. We disagree.
Initially, we set forth our standard of review:
An appellate court's standard of review of a trial court's
evidentiary rulings which include rulings on the admission of
hearsay is abuse of discretion. [ ] Walter, ...93 A.3d [at] 449 ...
citing Commonwealth v. Delbridge, 578 Pa. 641, 653 n.8,
855
A.2d 27, 34 n.8 (2003). However, whether a defendant has been
denied his right to confront a witness under the Confrontation
Clause of the Sixth Amendment to the United States Constitution,
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made applicable to the States via the Fourteenth Amendment,
Pointer v. Texas, 380 U.S. 400, 403,
85 S.Ct. 1065, 1067,
13
L.Ed.2d 923 (1965), is a question of law, for which our standard
of review is de novo and our scope of review is plenary.
Commonwealth v. Yohe, 621 Pa. 527, 542–45,
79 A.3d 520,
530–531 (2013) citing Commonwealth v. Cannon, 610 Pa. 494,
22 A.3d 210 (2011).
In re N.C.,
105 A.3d 1199, 1210 (Pa. 2014).
In a trial that hinged solely upon identification, Appellant maintains, it
was reversible error to allow the doctor to read into the record S.D.’s
description of her assailant because it deprived Appellant the opportunity to
ask the nurse whether S.D. displayed any equivocation or uncertainty when
offering her description. The Commonwealth counters that it was S.D., and
not the nurse, who made the statements at issue, and S.D. testified under
both direct examination and cross-examination at trial. Therefore, Appellant
had the opportunity to confront his accuser about not only her certitude in the
description she gave to the nurse but also moments of indecision she
experienced while identifying Appellant from the photo array.
Notably, Appellant relies on decisional law pertaining to a defendant’s
Confrontation Clause rights against testimonial hearsay arising from the
reading of an expert forensic report prepared by an out-of-court declarant.
See Appellant’s brief, at 12-14 (discussing, e.g., Williams v. Illinois, 567
U.S. ----, 132 S.Ct. 2221 (2012), Bullcoming v. New Mexico,
564 U.S. 647
(2011), Melendez-Diaz v. Massachusetts,
557 US 305 (2009)). We find
such jurisprudence, however, inapposite to the specific argument he has
developed, which focuses not on the physical examination or any medical
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opinion deriving therefrom, but on only the description S.D. gave of her
assailant during the interview. 1
Indeed, Appellant points to no aspect of the doctor’s testimony where
he attempted to stand in the nurse’s stead and frame, or provide a broader
medical context to, S.D.’s description of her assailant. Nor does Appellant
maintain that the doctor read the nurse’s impressions or professional
assessment of S.D.’s statement. Appellant’s argument posits only that the
court should not have permitted the doctor to read to the jury the report’s
recordation of S.D.’s description of her assailant.
Therefore, we find Appellant’s Confrontation Clause concerns to be
without merit, as it is axiomatic that the Confrontation Clause does not apply
____________________________________________
1 Indeed, following Appellant’s review of cases concerning the application of
Confrontation Clause rights to testimony regarding forensic examinations, he
admits the defense theory turned not on the forensic examination but, instead,
on identification evidence offered at trial:
The trial was over identification, not the crime itself; no one
attempted to cast doubt on S.D.’s claim that she was sexually
assaulted. The defense was simply that Appellant was not the
culprit. . . . Just as the Commonwealth had to call as a witness
Detective Kimberly Boston to testify regarding the identification
procedure she did with S.D. . . . likewise the Commonwealth
needed to call Ms. Miles to give Appellant the opportunity to cross-examine regarding S.D.’s description.
Appellant’s brief, at 16-17. Nowhere in Appellant’s argument does he
maintain that the nurse’s expert or forensic assessment of S.D.’s statement
was read into the record in contravention of his right to cross-examine the
nurse on such impressions and conclusions.
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where the out-of-court declarant is available for cross-examination in court.
Commonwealth v. Barnett, 50 A.3d 176, 189 n.6 (Pa.Super. 2012). S.D.
was the declarant in question, and she was available for cross-examination at
trial.
In Appellant’s remaining issue, he argues that the trial court erred when
it denied his request for a mistrial after a juror, whom the court excused during
deliberations, and the court crier noted that the jury had reached a verdict on
one charge but not on the others. By neither recording the partial verdict nor
making any inquiry into it prior to empaneling an alternate juror and starting
deliberations anew, Appellant submits, the court subjected him to double
jeopardy and denied him his right to a trial by jury.
The record shows, however, that prior to the dismissal of the original
juror and the seating of the alternate juror, the remaining members of the
jury had notified the court, through the court crier, that they no longer agreed
on a verdict to any charge. N.T. at 11/17/17, at 30. As such, the court
excused the original juror, assigned the alternate juror, and instructed the
jury to recommence its deliberations. N.T. at 33-35.
The trial court summarizes the relevant events, as follows:
This claim stems from events after the jury commenced
deliberations. One of the jurors had been advised when she was
first selected as a juror that the trial would end and her jury
service would be finished in time for her to take her vacation.
However, because of delays beyond the control of the court, the
trial went longer than anticipated, thereby jeopardizing the juror’s
vacation and, therefore, the juror had to be released and an
alternate seated in her place. N.T. at 15-16.
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To compound matters, before the juror could be relieved and
replaced, the court crier advised that the jury, as originally
constituted, had reached a verdict on one of the charges. N.T. at
18. A discussion then ensued involving the court and the
attorneys concerning a possible solution to the problem including,
taking the partial verdict from the original jury and then direct the
reconstituted jury deliberate on the remaining charges, seal the
partial verdict and announce it after the reconstituted jury reached
a verdict on the remaining two charges, or have the reconstituted
jury start deliberations anew on all three charges. N.T. at 18-29.
Before adopting one of these options, the court crier indicated that
the original jury had not, in fact, reached a verdict on one of the
charges and that the original jury was again deliberating. N.T. at
30. Upon being so informed, this court excused the original juror,
replaced her with the alternate, and directed the reconstituted
jury to continue deliberations after giving it instructions. N.T. at
30-35. After all of this occurred, defense counsel lodged a general
objection, which this court denied altogether with an earlier
motion for a mistrial. N.T. at 32-33.
Trial Court Opinion, at 14-15.
Our standard of review of a court's denial of a motion for mistrial is as
follows:
A motion for a mistrial is within the discretion of the trial court. A
mistrial upon motion of one of the parties is required only when
an incident is of such a nature that its unavoidable effect is to
deprive the appellant of a fair and impartial trial. It is within the
trial court's discretion to determine whether a defendant was
prejudiced by the incident that is the basis of a motion for a
mistrial. On appeal, our standard of review is whether the trial
court abused that discretion.
Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa.Super. 2015)(quoting
Commonwealth v. Akbar,
91 A.3d 227, 236 (Pa.Super. 2014)).
Appellant fails to make the requisite demonstration of prejudice from
the record, as it is clear that the jury informed the court that it had not reached
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a verdict as to any charge prior to the release of the original juror and seating
of the alternate juror. With its factual predicate thus belied, we deem
Appellant’s claim meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/19
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