Com. v. Bennett, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTOINE BENNETT,
Appellant No. 1387 WDA 2014
Appeal from the Order Entered July 28, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009820-2008
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 20, 2015
Appellant Antoine Bennett appeals from the July 28, 2014 order
denying his first petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.
The trial court summarized the facts of the crime as follows:
The case involved a robbery at knifepoint which occurred
in the Friendship area of the city of Pittsburgh on February 8,
2008, at approximately 9:30 p.m. At trial, the Commonwealth
presented evidence through the victim, investigating police
officer, and detectives. The case involved the robbery at
knifepoint of a pizza delivery driver. The victim testified that
after making a delivery he was getting back into his automobile,
at which time he was grabbed by the neck and threatened with a
serrated knife blade. The perpetrator demanded all of his
money. The victim was extremely afraid of being seriously hurt
during this encounter. The perpetrator had a hood and ski mask
on. Despite this, the victim was able to see his eyes, cheeks,
eyebrows, the bridge of his nose, and the makeup of his face.
At a later date, the victim identified the defendant from a photo
array assembled by the robbery squad detectives. The victim
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identified the defendant at trial as the person who had robbed
him.
Trial Court Opinion, 4/20/11, at 2.
Following a trial on December 14–15, 2009, a jury found Appellant
guilty of a single count of robbery on December 15, 2009. On March 15,
2010, the trial court sentenced Appellant to five and one-half to eleven years
of incarceration. Appellant filed a timely notice of appeal to this Court, and
we affirmed the judgment of sentence on March 23, 2012. Commonwealth
v. Bennett, 617 WDA 2010, 47 A.3d 1255 (Pa. Super. filed March 23, 2012)
(unpublished memorandum). Our Supreme Court denied Appellant’s petition
for allowance of appeal on November 8, 2012. Commonwealth v.
Bennett, 181 WAL (2012), 56 A.3d 396 (Pa. filed November 8, 2012).
Appellant filed a timely pro se PCRA petition on July 29, 2013, and on
August 6, 2013, the PCRA court appointed counsel, who filed an amended
petition on January 10, 2014. The PCRA court1 filed a notice of intent to
dismiss the PCRA petition without a hearing on February 25, 2014, and
dismissed the petition on July 28, 2014. Appellant filed a timely notice of
appeal, and the PCRA court directed compliance with Pa.R.A.P. 1925.
Appellant filed a timely Rule 1925(b) statement. The PCRA court filed a two-
paragraph “opinion” referencing its February 25, 2014 order, which
____________________________________________
1
The PCRA court was not the trial court; the trial judge, the Honorable John
K. Reilly, Jr., passed away September 12, 2011. Commonwealth’s Brief at 6
n.4.
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explained why it intended to dismiss Appellant’s PCRA petition without a
hearing. PCRA Opinion, 10/20/14, at 1. The PCRA court found that
Appellant was unable “to make a colorable claim of prejudice. The evidence
that was received by the jury does not cause this [c]ourt to have any
reservations that the jury verdict would have been different had this
material been excluded.” Order, 2/25/14. We agree.
Appellant raises the following issues in his appellate brief to this Court:
I. Did the PCRA Court err or abuse its discretion in failing to
grant Appellant a new trial based on a properly pled, preserved
and supported IAC claim involving trial counsel’s failure to either
object, request a mistrial or request a curative instruction
regarding opinion evidence improperly solicited by the
Commonwealth from Mr. Francioni, said trial counsel failure
being prejudicial to Appellant entitling him to relief?
II. Did the PCRA Court err or abuse its discretion in dismissing
Appellant’s Petition without an evidentiary hearing where
Appellant’s claim that trial counsel was ineffective for failing to
either object, request a mistrial or request a curative instruction
regarding the opinion evidence presented by Mr. Francioni, was
not patently frivolous, is supported by evidence of record, and
where a genuine issue of material fact existed which, if proven,
would entitle Appellant to relief?
Appellant’s Brief at 5. We address the issues, which are intertwined,
together.
When reviewing the propriety of an order granting or denying PCRA
relief, this Court is limited to determining whether the evidence of record
supports the conclusions of the PCRA court and whether the ruling is free of
legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super.
2012). We grant great deference to the PCRA court’s findings that are
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supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
In order to obtain collateral relief, a PCRA petitioner must establish by
a preponderance of the evidence that his conviction or sentence resulted
from one or more of the circumstances enumerated in 42 Pa.C.S. §
9543(a)(2). Instantly, Appellant asserted in his PCRA petition the existence
of ineffective assistance of counsel pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).
To plead and prove ineffective assistance of counsel, a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual prejudice
resulted from counsel’s act or failure to act. Rykard, 55 A.3d 1177, 1189–
1190 (Pa. Super. 2012). A claim of ineffectiveness will be denied if the
petitioner’s evidence fails to meet any one of these prongs.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). We reiterate that
counsel’s representation is presumed to have been effective, unless the
petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,
1177 (Pa. 1999). Further, we have explained that trial counsel cannot be
deemed ineffective for failing to pursue a meritless claim. Commonwealth
v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
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The underlying basis for the allegation of ineffective assistance of
counsel was explained in this Court’s memorandum opinion on direct appeal,
as follows:
Bennett argues that the trial court erred by allowing testimony
from a victim, Louis Francioni, about Bennett’s conduct at a
preliminary hearing. Specifically, Bennett complains that
Francioni was allowed to testify that Bennett had engaged in a
staring match with Francioni, suggesting to the jury that Bennett
was trying to intimidate Francioni.
* * *
Prior to the relevant testimony, Bennett’s counsel objected,
arguing that the testimony was unfairly prejudicial, as Bennett was
never charged with witness intimidation. The trial court ruled that
Francioni could testify to the incident, but could not proffer any opinion
regarding the incident. See N.T., 12/14/2008, at 37. The following
testimony then occurred:
Q. Mr. Francioni, we left off where you were in this
crowded Magistrate’s office.
A. Okay.
Q. And I asked you, something happened there?
A. Yes.
Q. Can you tell the ladies and gentlemen of the jury when
you were sitting up front then what happened?
A. Okay, and one of the detectives said he obviously would
be eventually coming in; and the defendants would keep
coming into the courtroom from I guess the courthouse—I
mean, the jail house; and then once he eventually came
in, after me sitting there for a good bit of time—
Q. Did you recognize him?
A. Right away. Like I just felt like—felt it I [sic] was him,
like, that’s him.
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Q. Okay.
A. And as he proceeded to sit down, with me sitting up
there, and the other preliminary hearings going on, I guess
he must have recognized me.
Q. What did you observe to make you think that?
A. He started to, like lean into me and like staring me
down, started to put paper over his face; and it made me
extremely uncomfortable, constantly covering his face with
paper, to the point where I started to—I informed the
detectives after a good 20 minutes of this happening, he
was told to sit back [sic] would not listen. Then he kept
doing it. He then was asked about 30 minutes after doing
it to leave the courtroom.
Id. at 37-38.
Bennett first contends that the trial court’s ruling was itself an
error, as it permitted presentation of unfairly prejudicial evidence that
was merely cumulative. Bennett argues that once Francioni testified
that he had identified Bennett, evidence of the staring match added no
probative value, while creating unfair prejudice. However, we
conclude that the testimony was not merely cumulative; Bennett’s
actions in staring at Francioni at the preliminary hearing allowed for an
inference that Bennett recognized Francioni as well. Furthermore, it
was evidence of Bennett’s consciousness of guilt, which was relevant.
See Commonwealth v. Johnson, 576 Pa. 23, 51, 838 A.2d 663, 680
(2003).
Alternatively, Bennett argues that the trial court erred in not
enforcing its ruling prohibiting Francioni from offering opinion
testimony. However, Bennett did not object to the alleged opinion
testimony when it was given; accordingly, this issue is waived. See
Pa.R.A.P., Rule 302(a), 42 PA. CONS. STAT. ANN. “Even where a
defendant objects to specific conduct, the failure to request a remedy
such as a mistrial or curative instruction is sufficient to constitute
waiver.” Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super.
2008).
Bennett, 617 WDA 2010 (unpublished memorandum at 2–4).
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In the direct appeal, this Court clearly determined sub silencio that the
incident described by the victim was relevant to the central issue at trial,
which was Mr. Francioni’s identification of Appellant as the person who
robbed him. Prior to trial, Appellant had filed two Notices of Alibi, one on
November 16, 2009, and one on March 15, 2010. At trial, Appellant
attempted to show that this was a case of mistaken identity. N.T.,
12/15/09, at 119. In that Appellant entered a crowded courtroom and
without any information regarding the victim’s identity and location in the
room, engaged in an intense staring episode, the testimony was relevant to
prove that Appellant recognized Mr. Francioni as the man he had robbed.
Appellant now asserts that trial counsel was ineffective because she
failed to object to what Appellant characterizes as “opinion testimony,”
assumably referencing the victim’s single statement, “I guess he must have
recognized me.” Appellant’s Brief at 14. Like the PCRA court, we need not
analyze whether counsel’s failure to object to Mr. Francioni’s statement has
arguable merit or counsel’s actions lacked an objective reasonable basis
because prejudice could not have resulted from counsel’s failure to act.
Rykard, 55 A.3d at 1190. As noted, a claim of ineffectiveness will be
denied if the petitioner’s evidence fails to meet any one of the prongs.
Martin, 5 A.3d at 183.
“In order to demonstrate a defendant was prejudiced by counsel’s
deficient performance, the defendant must ‘show that there is a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.’” Commonwealth v. Burno, 94
A.3d 956, 976 (Pa. 2014), cert. denied sub nom. Burno v. Pennsylvania,
135 S.Ct. 1493 (2015) (quoting Hinton v. Alabama, 134 S.Ct. 1081, 1089
(2014)); see also Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa.
2014) (to establish prejudice, PCRA petitioner must show that there is a
reasonable probability that the outcome of the proceeding would have been
different but for counsel’s deficient performance). Moreover:
The PCRA court has discretion to dismiss a petition without a
hearing when the court is satisfied “‘that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings.’” Commonwealth v.
Roney, 622 Pa. 1, 79 A.3d 595, 604 (2013) (quoting
Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442
(2011), quoting Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of
a PCRA court’s decision to dismiss a petition without a hearing,
an appellant must show that he raised a genuine issue of fact
which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a
hearing.” Roney, 79 A.3d at 604–05.
Blakeney, 108 A.3d at 749–750.
As the Commonwealth points out, even if Mr. Francioni’s
characterization of Appellant’s actions was excised from the victim’s
testimony, the facts upon which that conclusion were based undoubtedly
were sufficient for the jurors to have inferred it on their own.
Commonwealth’s Brief at 19. Furthermore, the victim’s testimony
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concerning his identification of Appellant was clear, detailed, descriptive, and
unwavering. That testimony is as follows:
[By the Commonwealth]:
Q. And with respect to that, the night of February 8, something
unusual happened to you?
A. Yes, sir.
Q. And start with the time. What time and where were you
delivering pizza? Tell the ladies and gentlemen of the jury.
A. It was about 9:30ish, at night. I was delivering to Friendship.
The address was 435 South Graham Street; and as I pulled my
car up, it was a two-lane street, I parked my car, double parked.
I put my blinkers on. I had my car sign on. I walked up to the
building, delivered the pizza, and came back to my car. I was
just coming back to my car. I opened my door. As soon as I
opened my door I heard footprints from around another car; and
as I looked, I saw a hooded figure dressed in all black, white
lettering on the hood; and I tried to pull my door shut. As I did
that a hand reached on top of the door pushed onto my neck. At
that time he demanded all the money. I looked down. I just felt
a thumb on my neck. I saw the serrated knife blade. At that
point I was extremely nervous and—sorry.
Q. Let me stop you right there.
A. Okay.
Q. When you realized it was a serrated knife, can you explain as
best you can remember how long a blade it was? What did it
look like?
A. Okay. It was generally like you would find in your kitchen
maybe, old, rusty, black handled, maybe like a steak knife,
something like that.
Q. When it’s pressed against your neck where on your neck if
you can indicate?
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A. It was sitting right like this. It was pressed up at the top. I
did not receive a cut or anything from the blade, but—
Q. What were you thinking when that was pressed against you?
A. I was thinking if it were to go in me, I’m going to have some
major bleeding problems.
Q. Were you afraid you were going to get seriously hurt?
A. Yeah, if I did not listen to him.
Q. What was it that he said to you—
A. He said—
Q. —when he opened your door and put the rusty blade to your
neck?
A. Give me all your money.
Q. And what did you do?
A. I reach[ed] down to my left pocket, grabbed all the money I
had out, and I handed it to him. He asked me if there was
anymore. I looked up at him, and I dug into my pocket,
shuffled? I had khakis on. I shook my pocket. The change
jingled. I asked him if he wanted that. It was about five
seconds. Like, it was like a five-second time period before
anything was said. Then he said, no. Then he just took off
down the street.
Q. Now, you indicated that he was wearing all black?
A. Yes.
Q. And had a hood on?
A. Yes.
Q. Tell the ladies and gentlemen—explain to the ladies and
gentlemen of the jury what it is that you saw of him. You said it
took five seconds to answer about the change. They weren’t
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there. Run through what you were seeing, what you were
thinking, the look you got of his face.
A. Okay. After I gave him the money I looked up, saw the ski
mask which was tightly fitted, a nice ski mask right on the tip of
his nose, where the hoody would take up, the rest of his face
was shown; and remembering that when I looked at him, I just
froze. Looking back, still looking back, you could still see the
piercing eyes of his face. When I looked back on about that day,
like, engrained into my head, and I remember looking that he
was not an unattractive man. I remember thinking that. Just
that look that he gave me and the way I remembered it the
whole entire ride back to the pizza shop, how I would not forget
it.
Q. Now, you heard defense counsel in their opening mentioning
that all you saw was eyes. That’s not true, is it?
A. No. I saw his cheeks, high eyebrows, the make-up of his
face, the bridge of his nose. I just really remember zoning into
like that point, zoning into this area of his face . . . .
N.T., 12/14/09, at 29-33.
Not only did Mr. Francioni describe Appellant’s features in detail, he
recalled Appellant’s piercing eyes, high eyebrows, indeed, the entire make-
up of Appellant’s face, all attributes that so impressed the victim he
described them as unique characteristics he “would not forget.” Id. at 32.
Mr. Francioni’s detailed and certain identification of Appellant tied Appellant
to the robbery, even without considering the victim’s testimony about the
staring incident. Thus, Appellant cannot carry his burden of showing
prejudice from trial counsel’s alleged ineffectiveness. Accord
Commonwealth v. Wright, 961 A.2d 119, 148 (Pa. 2008) (“When it is
clear the party asserting an ineffectiveness claim has failed to meet the
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prejudice prong of the ineffectiveness test, the claim may be dismissed on
that basis alone, without a determination of whether the first two prongs
have been met.”); see also Burno, 94 A.3d at 977 (claim of ineffectiveness
failed because petitioner did not carry burden demonstrating prejudice).
Thus, we conclude that Appellant has failed to prove ineffectiveness, and the
PCRA court cannot be faulted for dismissing the PCRA petition without a
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2015
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