Com. v. Bennett, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN BENNETT
Appellant No. 1486 EDA 2013
Appeal from the Judgment of Sentence April 24, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003607-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30, 2015
Kevin Bennett appeals from the judgment of sentence, imposed by the
Court of Common Pleas of Philadelphia County, after a jury convicted him of
first-degree murder1 and related offenses. Upon careful review, we affirm.
The trial court summarized the facts of the case as follows:
At trial, eyewitnesses Caleb Jackson and Jerry Holloman, the
medical examiner and numerous police officers testified for the
Commonwealth. Kim Fries testified for the defense.
Caleb Jackson testified that he was living at 2115 Gould Street in
Southwest Philadelphia in October of 2010. The block on which
Jackson lived had numerous abandoned properties and crack
houses. Jackson, who was a self-professed drug addict at the
time, stated that he routinely rented rooms in his house to
persons who wanted to either use drugs or engage in
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
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prostitution. These persons gave Jackson money or drugs for
the use of his home.
In the early morning hours of October 4, 2010, Jackson came
out of his home and motioned to [Bennett] and Christopher
Lewis, who were standing across the street. According to
Jackson, [Bennett] and Lewis sold drugs. Jackson was
attempting to buy drugs from them on behalf of a person or
persons inside his home. Jackson went back inside to wait for
the drugs to be delivered. Several minutes later, Jackson went
outside to see where [Bennett] and Lewis were. He noticed that
they had moved further down the street. Jackson again
motioned to [Bennett] and Lewis, but they did not respond.
At that point, Jackson saw the decedent, Dominic Young, walking
down Gould Street. Young lived on Gould Street and often sold
drugs to others on the block. Young asked Jackson what he
needed, and Jackson told him he wanted to buy crack. Jackson
then went inside while Young went to retrieve the drugs. When
Jackson emerged from his house moments later, he saw Young
standing outside. According to Jackson, [Bennett] walked up
behind Young, pulled out what he believed to be a gun, and shot
Young point blank in the back of the head. Young immediately
fell to the ground, mortally wounded.
Jerry Holloman, who lived in the area and sold marijuana on
Gould Street, was also present when the shooting occurred.
Holloman testified that [Bennett] and Lewis were selling drugs
on Gould Street on the night of the shooting, and that [Bennett]
and the decedent had a brief argument. According to Holloman,
[Bennett] pulled out a gun, pointed at the back of decedent’s
head and fired a single shot. Holloman ran away after the
shooting occurred, but returned moments later. He was initially
reluctant to speak with police, but eventually gave homicide
detectives a statement in which he positively identified [Bennett]
as the shooter.
[Bennett] immediately fled the area after the shooting. On
December 9, 2010, detectives from the Philadelphia Fugitive
Task Force, U.S. Marshals and local police apprehended
[Bennett] in Smyrna, Delaware. [Bennett] gave police a false
name when he was arrested.
The defense argued that someone other than [Bennett] was the
shooter. In support of this claim, the defense called Kim Fries.
Fries testified that she had lived on the 2100 block of Gould
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Street, and had known [Bennett] for several months when the
shooting occurred. Fries stated that shortly after midnight on
October 4, 2010 she heard a single gunshot. When she looked
outside, she saw an unknown person wearing a black hoodie run
past her home. Fries could not tell whether the person was male
or female or what their race was. Nevertheless, Fries testified
that she was certain that the identified person was not
[Bennett].
Trial Court Opinion, 1/6/14, at 2-4.
On April 23, 2012, a jury convicted Bennett of first-degree murder,
possessing an instrument of crime (PIC),2 and violating the Uniform
Firearms Act (VUFA).3 The following day, the court sentenced Bennett to life
imprisonment for first-degree murder and concurrent sentences of 2½ to 5
years for the additional offenses.
Bennett filed post-sentence motions, which the court denied by order
dated May 7, 2012. However, because the order was not served upon
Bennett or his counsel, Bennett did not file a timely appeal from his
judgment of sentence. On September 19, 2012, he filed a PCRA petition
requesting reinstatement of his appellate rights nunc pro tunc. The trial
court granted relief on May 14, 2013, and this timely appeal followed, in
which Bennett raises one issue for our review:
Did not the trial court abused its discretion and err by prohibiting
[Bennett] from cross-examining Commonwealth witness Jerry
Holloman in regard to his involvement in a murder and his role
as an immunized Commonwealth witness in the murder case for
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2
18 Pa.C.S. § 907.
3
18 Pa.C.S. § 6108.
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the purpose of eliciting testimony showing that Holloman was in
a position that inclined him to want to curry favor with the
prosecution or avoid displeasing the prosecution as a result of
his concerns about his involvement in the other murder case,
and therefore had a strong motive to testify falsely in the
present case?
Appellant’s Brief, at 2.
“The scope of cross-examination is within the discretion of the trial
judge, and absent an abuse of that discretion an appellate court will not
disturb the trial judge’s rulings.” Commonwealth v. Pagan, 950 A.2d 270,
285 (Pa. 2008) (citing Commonwealth v. Auker, 681 A.2d 1305, 1317
(Pa. 1996). “An abuse of discretion will not be found based on a mere error
of judgment, but rather exists where the court has reached a conclusion
[that] overrides or misapplies the law, or where the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013) (quoting
Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007)).
Consistent with the statement he made to police the day after the
murder, Holloman testified at trial that he saw Bennett shoot the victim. He
acknowledged that he was testifying under a grant of immunity, and he
“understood that to mean that as long as [he] testified in a way [the
Commonwealth] agreed with, [he] would never be charged with any crimes
or none of the things that [he] might say would ever be used against [him]
in a criminal prosecution.” N.T. Trial, 4/18/12, at 195. Holloman admitted
that he sold marijuana, id. at 150, and that he had an open pending theft
charge against him for which he had failed to appear, leading to the issuance
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of a bench warrant. Id. at 144. He also testified that, due to his
cooperation with the government in another case, his family had received
$16,000 in benefits. Id. at 226.
Holloman also testified that at the beginning of the investigation into
Young’s murder, he maintained that he knew nothing. However, after being
detained by the police for thirty-eight hours, he began to talk. Id. at 188.
He agreed with defense counsel that he had concluded by that point that he
was “not going anywhere” until he told the police “what they wanted to
hear.” Id. at 228. He further admitted that if he had not accused someone
else, he believed he was going to be arrested for Young’s murder. Id. at
249-51.
As the above-referenced testimony indicates, the trial court permitted
defense counsel several opportunities to challenge Holloman’s motives and
credibility. However, the trial court refused to allow defense counsel to
cross-examine Holloman about a second case in which he testified under a
grant of immunity, the murder of Danny Williams by Clarence Burbage,
which took place seven months after the murder of Young. On appeal,
Bennett argues that the trial court’s refusal to allow him to ask “Holloman
any questions pertaining to the Williams murder case and his role in the
murder and his role as a Commonwealth witness,” Appellant’s Brief, at 18,
was an abuse of discretion and a violation of his right to confrontation under
the federal and state Constitutions.
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The exposure of a witness’s motivation in testifying is a proper
and important function of the constitutionally protected right of
cross-examination. It does not follow, of course, that the
Confrontation Clause of the Sixth Amendment prevents a trial
judge from imposing any limits on defense counsel’s inquiry into
the potential bias of a prosecution witness. On the contrary, trial
judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-
examination, based on concerns about, among other things . . .
confusion of the issues . . . or interrogation that is repetitive or
only marginally relevant. The Confrontation Clause guarantees
and opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever
extent, the defense might wish.
Commonwealth v. Bozyk, 987 A.2d 753 (Pa. Super. 2009) (citations and
quotations omitted).
Significantly, Holloman was never charged with any offense related to
the Williams homicide. Accordingly, the trial court’s determination not to
permit cross-examination on this issue is consistent with Commonwealth
v. Patterson, 91 A.3d 55 (Pa. 2014), where our Supreme Court upheld a
trial court’s ruling that where no criminal charges were ever filed against a
witness, he could not be impeached with evidence that he had solicited a
murder in order to test his motivation to cooperate with the Commonwealth
because of his own vulnerability to prosecution.
Bennett relies on Davis v. Alaska, 415 U.S. 308 (1974), for the
general proposition that the Confrontation Clause “mandates that the fact
finder see and evaluate a witness’s demeanor under cross-examination.”
Appellant’s Brief, at 19. However, an important factual difference exists
between Davis and the present case. In Davis, the trial court erred by
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prohibiting impeachment with the fact that the witness who testified that
Davis committed a burglary, had himself previously been adjudicated
delinquent for burglary and was on probation for that offense. In contrast,
the Commonwealth never charged Holloman with any offense related to
Williams’ death. Accordingly, Davis does not compel an opposite result.
In light of the fact that the trial court permitted Bennett to impeach
Holloman for bias in connection with the grant of immunity in this case, his
open theft charge, the government payments his family received for his
cooperation, his insistence he knew nothing about Young’s murder until he
was detained by police for thirty-eight hours, and his admission that he
accused Bennett out of fear he was going to be arrested, the court did not
abuse its discretion in prohibiting Bennett from cross-examining Holloman
about a homicide that occurred seven months after Bennett’s death, and for
which Holloman was never charged.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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