Com. v. Bennett, V.

J-S19040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VERNON BENNETT, :
:
Appellant : No. 1133 EDA 2019
Appeal from the Judgment of Sentence Entered January 7, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003503-2013
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 12, 2020
Vernon Bennett (“Bennett”) appeals from the judgment of sentence
imposed following his convictions of theft by unlawful taking and robbery.1
We affirm.
The trial court summarized the relevant factual and procedural history
as follows:
On February 25, 2013, at approximately 8:30 p[.]m[.], Tara
Whitaker (“Whitaker”) was working as a bartender at the
Commodore Lounge[,] located at 5507 Baltimore Avenue,
Philadelphia, PA. [Bennett] entered the lounge at approximately
8:30 p[.]m[.,] and sat near the cash register close to the entrance
to the bar where the bartenders come in and out of their service
area. Whitaker testified that after sitting down at the bar,
[Bennett] gestured [for] her to come to him. Whitaker went over
to [Bennett] and asked if she could get him something. [Bennett]
then slightly moved his hand out of his pant pocket and showed
Whitaker the handle of a black gun, then put it back in his pocket.
Next, [Bennett] ordered Whitaker to get a brown paper bag,
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1 18 Pa.C.S.A. §§ 3921(a), 3701(a)(1).
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empty out the cash register[,] and put the money in the bag.
Whitaker retrieved a brown paper bag and filled it with money
from the cash register and gave it to [Bennett].
[Bennett] then demanded Whitaker hand over another bag
of money. Whitaker placed a purple Crown Royal whiskey bag
containing one dollar bills and quarters into the brown paper bag.
[Bennett] then calmly walked out of the bar. Whitaker whispered
to a patron that [Bennett] just robbed her. One of the patrons
left the bar to find [Bennett]. At approximately 9:35 p[.]m[.],
[Philadelphia Police] Officers [Patrick] Thompson [(“Officer
Thompson”)] and [Paul] Buzzone [(“Officer Buzzone”)] were
patrolling the area of 55th and Baltimore Avenue, in close
proximity to the bar, when they were flagged down by three
bystanders. After receiving information from the bystanders,
Officer[] Thompson and [Officer] Buzzone drove down Angora
Terrace.
The [o]fficers noticed a male chasing [Bennett] down the
sidewalk. The male chasing [Bennett] informed [the o]fficers that
[Bennett] just robbed him. Officers then placed [Bennett] in
custody. Officer Buzzone found a purple Crown Royal bag with
money near the street next to a parked vehicle on the path
[Bennett] took from the bar to the location of being apprehended.
On September 12, 2018, [Bennett] was found guilty by a
jury of [t]heft by [u]nlawful [t]aking of [m]ovable [p]roperty and
[r]obbery. On January 7, 2019, [the trial court] sentenced
[Bennett] to twenty-five (25) years to life imprisonment for the
charge of [r]obbery[,] pursuant to [the “three strikes law,” 18
Pa.C.S.A. § 9714(a)(2),] and [r]obbery. [Bennett filed a post-
sentence Motion, which the trial court denied on January 25,
2019.] No direct appeal was taken. On March 7, 2019,
[Bennett’s] trial counsel filed a [Post Conviction Relief Act
(“PCRA”)2 P]etition raising his own ineffective assistance due to
his failure to file a direct appeal. On March 25, 2019, th[e trial
c]ourt granted [Bennett’s] PCRA [P]etition[,] and restored
[Bennett’s] direct appeal rights[,] nunc pro tunc. The [c]ourt
appointed new counsel, and allowed new counsel to file a notice
of appeal within thirty (30) days. Pursuant to t[he trial c]ourt’s
March 25, 2019 Order, [Bennett] filed a timely counseled Notice
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2 See 42 Pa.C.S.A. §§ 9541-9546.
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of Appeal on April 9, 2019. On April 22, 2019, th[e trial c]ourt
ordered [Bennett] to file a [s]tatement of [m]atters [c]omplained
of on [a]ppeal pursuant to Pa.R.[A.]P. 1925(b) (“1925(b)
Statement”). [Bennett], through counsel, filed a timely 1925(b)
Statement on May 13, 2019.
Trial Court Opinion, 6/25/19, at 1-3 (footnote added; footnotes omitted).
Bennett raises the following issues for our review on appeal:
1. Whether the verdict was against the weight of the evidence[?]
2. Whether the verdict was contrary to law[?]
3. Whether the [trial] court was in error in denying the
[Pa.R.Crim.P.] 600 Motion[?]
4. Whether the Commonwealth committed a Brady [v.
Maryland, 373 U.S. 83 (1963),] violation when it failed to
produce the police file[?]
Brief for Appellant at 8.
We will address Bennett’s first two issues together. First, Bennett claims
that the jury’s guilty verdict was against the weight of the evidence. Brief for
Appellant at 13. Bennett argues that Whitaker’s testimony that Bennett
possessed a gun during the robbery was “so unreliable and contradictory that
any verdict of guilt could only have been arrive[d] at through speculation and
conjecture.” Id. at 14. Specifically, Bennett points to the jury’s acquittal of
the charges related to Bennett’s possession of the firearm as evidence that
Whitaker’s testimony was unreliable. Id. at 13. Bennett claims that no video
or physical evidence exists to demonstrate that he possessed a firearm, and
that no firearm was recovered after the incident. Id. at 14. Though Bennett
concedes that a felony robbery can be committed by placing the victim in fear
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that the actor was concealing a firearm, Bennett argues that Whitaker’s
testimony that she saw a firearm on Bennett’s person is contradicted by other
evidence. Id. at 14-15. Second, Bennett challenges the sufficiency of the
evidence based upon the credibility of the witness. Id. at 15. Bennett argues
that “[a]s indicated [] in the weight of the evidence argument, the
contradictory and unreliable testimony of []Whitaker established that the
verdict was contrary to law on the robbery and theft charges.” Id. at 16.3
Our standard of review over challenges to the weight of the evidence is
clear:
[a]ppellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)
(citation omitted). With regards to a weight challenge based on witness
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3 Though Bennett characterizes this argument as a challenge to the sufficiency
of the evidence, challenges to the credibility of witness testimony is a
challenge to the weight of the evidence, not its sufficiency. See
Commonwealth v. Price, 616 A.2d 681, 683 (Pa. Super. 1992) (explaining
that, while a sufficiency challenge asks whether the evidence exists on the
record to sustain the conviction, an argument that the witness’s account is not
credible goes to the weight of the evidence).
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credibility, “our review of the trial court’s decision is extremely limited.
Generally, unless the evidence is so unreliable and/or contradictory as to make
any verdict based thereon pure conjecture, these types of claims are not
cognizable on appellate review.” Commonwealth v. Rossetti, 863 A.2d
1185, 1191 (Pa. Super. 2004) (citation omitted). In order for an appellant to
prevail on a challenge to the weight of the evidence, “the evidence must be
so tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).
In its Opinion, the trial court addressed Bennett’s challenge to the
weight of the evidence presented against him as follows:4
[Bennett] claims that the verdict was contrary to law
because the testimony presented was so contradictory and
unreliable that the verdict of guilty cannot stand. This argument
also fails because the testimony in this case was supported by
video evidence of the robbery, and statements that [Bennett]
made on his recorded prison phone calls. At trial, the jury
observed a video of [Bennett] committing the robbery, listened to
a prison phone call made by [Bennett,] and heard testimony from
[Whitaker] and police officers.
Based on the cumulative evidence, the jury determined that
[Bennett] was guilty of [t]heft by [u]nlawful [t]aking of [m]ovable
[p]roperty and [r]obbery. The video, supplemented by the
testimony of [Whitaker], clearly shows [Bennett] is guilty of
[r]obbery, as in the course of committing theft he[,] inter alia,
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4 We note that the trial court, prior to addressing Bennett’s challenge to the
weight of the evidence on its merits, concluded that the issue was waived on
the basis that Bennett had failed to raise the issue in a post-sentence motion.
Trial Court Opinion, 6/26/19, at 4. Our review of the record discloses that
Bennett did, in fact, argue that his verdict was against the weight of the
evidence in his post-sentence Motion. See Post Sentence Motion, 1/16/19, at
¶ 16.
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threatened [Whitaker] with or intentionally put her in fear of
immediate serious bodily injury. Moreover, in the course of
committing the theft, [Bennett] physically took or removed
property from [Whitaker] by force, however slight.
[Bennett’s] assertion that [Whitaker] did not see a gun is
incorrect. Whitaker testified that she saw the handle of the gun.
Whitaker also testified that she was nervous and afraid for her life
during the robbery.
Additionally, [Bennett] was apprehended a very short time
after the robbery by police officers in the vicinity of the robbery.
In addition to the testimony by [Whitaker] the jury heard
testimony from several police officers, including Officer Paul
Buzzone, who helped detain [Bennett] and recover the proceeds
of the robbery. Officer Buzzone recovered the Crown Royal bag
filled with money, which is the same bag that Whitaker testified
was taken by [Bennett] during the robbery. Officer Buzzone
testified that the bag was found near the street next to a parked
vehicle on the path [Bennett] took from the bar to being
apprehended.
[Bennett] made statements during prison phone calls, which
were played at trial, which corroborated the testimony of
[Whitaker] and Officer Buzzone. [Bennett] claims that he was
trying to “get the bread[.]”[] He also states the only reason he
got caught. [Bennett] claimed that he had a good shot of beating
this case and stated[,] “they got me on camera, you know[.]”[]
Moreover, he stated, “I’ma [sic] have to get convicted for theft,
because that’s really all it was.” Based on the witness testimony,
prison calls and video of the robbery, the jury determined that
[Bennett] was guilty of robbery. The weight of the evidence
clearly supported the verdict.
Trial Court Opinion, 6/25/19, at 5-7 (citations omitted). We agree with the
sound analysis of the trial court, and conclude that it did not abuse its
discretion in ruling that the weight of the evidence supported Bennett’s
convictions. See id.; see also Commonwealth v. Talbert, 129 A.3d 536,
545 (Pa. Super. 2015) (stating that “it is well-settled that inconsistent verdicts
are permissible in Pennsylvania,” and “[w]hen an acquittal on one count [] is
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inconsistent with a conviction on a second count, the court looks upon the
acquittal as no more than the jury’s assumption of power which they had no
right to exercise, but to which they were disposed through lenity.”) (citations
and quotations omitted).
A challenge to witness credibility can be reviewed as a sufficiency
challenge “in those extreme situations where witness testimony is so
inherently unreliable and contradictory that it makes the jury’s choice to
believe that evidence an exercise of pure conjecture.” Commonwealth v.
Brown, 52 A.3d 1139, 1156 n.18 (Pa. 2012). To the extent that Bennett
raises a challenge to the sufficiency of the evidence, we agree with the trial
court’s conclusion that the Commonwealth proved each material element
underlying his convictions for theft by unlawful taking and robbery. See Trial
Court Opinion, 6/25/19, at 5-6. We also conclude that Whitaker’s testimony—
which, as the trial court indicated, was supported by contemporaneous
evidence—was not so inherently unreliable and contradictory that it made the
jury’s choice to believe her testimony an exercise of pure conjecture. See
Brown, supra. Accordingly, we grant Bennett no relief on these claims.
Next, Bennett argues that the trial court abused its discretion when it
denied his Motion under Pa.R.Crim.P. 600. Brief for Appellant at 16.
Specifically, Bennett claims that the trial court had ordered the
Commonwealth to produce the full police file for Bennett’s review, and that
the Commonwealth failed to do so. Id. at 16-17. Because of this failure,
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according to Bennett, the Commonwealth failed to exercise due diligence in
timely prosecuting the case against him. Id. Accordingly, Bennett argues
that the entire time period between October 12, 2016, when the trial court
purportedly ordered that the file be produced, and September 10, 2018, when
the trial commenced, should have counted towards the statutory time period
in Rule 600. Id. at 17.
Under Rule 600, the Commonwealth must bring a case to
trial within 365 days of the criminal complaint’s filing.
Pa.R.Crim.P. 600(A)(2)(a). Our standard of review relating to the
application of Rule 600 is whether the trial court abused its
discretion. Our scope of review is limited to the evidence on the
record of the Rule 600 evidentiary hearing and the findings of the
trial court. We must view the facts in the light most favorable to
the prevailing party.
Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006) (citation
omitted); see also Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa.
2015)(explaining that “[a]n abuse of discretion will not be found based on a
mere error of judgment, but rather occurs 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.”). While delays in bringing the case to trial that are attributable to
the Commonwealth are included in the 365 day time period, delays that are
attributable to the defendant or the trial court are not included. Pa.R.Crim.P.
600(C); see also Commonwealth v. McCarthy, 180 A.3d 368, 376 (Pa.
Super. 2018) (recognizing that a delay that resulted from the unavailability of
time on trial court’s calendar was excludable from the Rule 600 calculation);
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Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006) (stating that,
“[i]n conducting the due diligence inquiry, our jurisprudence has excused such
delay resulting from court congestion.”).
Here, Bennett’s Rule 600 claim is premised solely on a purported delay
in the Commonwealth’s production of discovery materials. Specifically,
Bennett directs our attention to the time period between October 12, 2016,
the date he alleges the Commonwealth began its failure to act with due
diligence, and September 10, 2018, the date his trial began. The
Commonwealth filed its Criminal Complaint against Bennett on February 26,
2013. Thus, the mechanical run date for Rule 600 purposes was February 26,
2014. Bennett’s trial commenced on September 10, 2018, 1,657 days beyond
the mechanical run date.
Our review of the record discloses that in this case, Bennett was
“instrumental in causing the delay.” Pa.R.Crim.P. 600, Cmt. Indeed, either
Bennett or the judiciary caused the following periods of delay: April 24, 2013,
to May 3, 2013 (Bennett’s Motion to continue); May 3, 2013, to October 7,
2013 (Bennett’s Motion to suppress evidence); October 7, 2013, to May 19,
2014 (Bennett’s Motion to continue); May 19, 2014, to June 2, 2014
(Bennett’s omnibus pretrial Motion); June 2, 2014, to August 27, 2014
(Bennett’s Motion to continue); August 28, 2014, to September 2, 2014
(Bennett’s Motion to continue); September 2, 2014, to September 9, 2014
(scheduling conflicts with Bennett’s counsel); September 9, 2014, to March 9,
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2015 (Bennett’s Motion to continue); March 9, 2015, to March 24, 2015
(Bennett’s Motion to continue); March 24, 2015, to December 7, 2015 (trial
court scheduling trial); December 7, 2015, to December 17, 2015 (Bennett’s
counsel was unavailable for trial); December 17, 2015, to January 27, 2016
(trial court continuance to locate notes of testimony); October 21, 2016, to
January 12, 2017 (Bennett’s Motion to continue); January 12, 2017, to
October 16, 2017 (trial court scheduling new trial); October 16, 2017, to
November 2, 2017 (Bennett’s request for new counsel); November 2, 2017,
to November 9, 2017 (Bennett’s counsel was unavailable); November 9, 2017,
to May 21, 2018 (Bennett’s motion to continue); May 21, 2018, to September
10, 2018 (Bennett’s motion to proceed pro se, and then to proceed with
counsel). See Trial Court Opinion, 6/26/19, at 7 (wherein the trial court,
referencing the docket, states that all of the requests for continuances from
October 2016 to September 2018 “were either joint requests or time
requested by the defense.”).
In total, 1,696 days are attributable to Bennett and the trial court;
hence, this time is excludable for purposes of Rule 600. Adding the excludable
time to the mechanical run date, we calculate the adjusted run date to be
October 19, 2018, 39 days after the date Bennett’s trial began. Because
Bennett’s trial commenced within the adjusted run date, we discern no abuse
of discretion by the trial court in rejecting Bennett’s Rule 600 claim.
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Moreover, Bennett’s argument that the Commonwealth failed to
prosecute his case with due diligence is also without merit. When evaluating
a claim that the Commonwealth failed to act with due diligence in prosecuting
an appellant’s case under Rule 600, we emphasize that “[d]ue diligence is a
fact-specific concept that must be determined on a case-by-case basis. Due
diligence does not require perfect vigilance and punctilious care, but rather a
showing by the Commonwealth that a reasonable effort has been put forth.”
Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. 2007)
(emphasis in original).
In its Opinion, the trial court addressed this issue as follows:
[Bennett] claims that the Commonwealth violated [the trial
court’s] Order to produce a police file, thereby causing a period of
delay between October 12, 2016[,] and September 10, 2018. This
argument fails because, as the docket reflects, there was no Order
for the Commonwealth to turn over a police file. While [the trial
court] inquired about the police file, there was no order to turn
the police file over to [Bennett] or his counsel. N.T.[,] 10/12/[]16,
at [13, 77]. The docket entry of October 12, 2016[,] reflects that
the matter was continued to October 13, 2016[,] for the police file
to be produced, but there is no Order that the police file be
produced. Docket, page 21, #5.
***
No Protective Order was sought by the Commonwealth
[pursuant to Pa.R.Crim.P. 573,] and [Bennett] has received the
material items that the Commonwealth is required to disclose
from the Commonwealth through reciprocal discovery. The items
mandated by discovery rules in the police file were tendered by
the Commonwealth[,] and produced at trial without objection.
N.T.[,] 9/11/[]18[,] at 139, 18. … Therefore, the Rule 600
[M]otion was properly denied, as there was no delay by the
Commonwealth. N.T.[,] 9/10/[]18, at 29. Furthermore, the
Commonwealth represented, on the record, that the police file was
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reviewed for further discoverable and relevant information to the
case. If anything was found[,] it was made available to the
defense. N.T.[,] 9/10/18[,] at 29, 4. The statement by the
Commonwealth is consistent with the docket of October 13,
2016[,] stating that discovery was still the subject of continuance
requests. However, subsequent to October 20, 2018[,] there
is no further mention of continuance for discovery
pertaining to the police file. Furthermore[,] the court finds
that, if in fact, there was an Order to give [Bennett] access to the
police file, a reasonable interpretation of that Order would be that
the Commonwealth turn over the discoverable information in the
police file. N.T.[,] 9/1[0]/[]18[,] at 24, 8.
Trial Court Opinion, 6/26/19, at 7-9 (emphasis added).
Here, as discussed above, the delays and continuances were not
attributable to the Commonwealth’s inability to try Bennett’s case, nor are the
delays and continuances the result of the Commonwealth’s lack of due
diligence. Rather, the record reveals no indication that the Commonwealth
was out of compliance with a court order or not exercising due diligence with
regard to the October 12, 2016 request by the trial court for the detective to
bring the police file into court for the trial court’s examination. We conclude
that the trial court did not abuse its discretion in denying Bennett’s Rule 600
Motion, and Bennett is entitled no relief on this claim. See McCarthy, supra;
Frye, supra.Fourth, Bennett argues that the trial court abused its discretion when it
denied his Motion for pretrial disclosure, discovery, and inspection. Brief for
Appellant at 18. He claims that because the police file may have contained
exculpatory information, it should have been produced by the Commonwealth.
Id. at 19. Bennett points again to the circumstances underlying his Rule 600
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Motion, and argues that the Commonwealth’s failure to provide him with the
full police file upon request constitutes a Brady violation and warrants that
his convictions be overturned. Id.
As an initial matter, though Bennett characterizes this Motion as a
Brady motion, he actually argues that the Commonwealth failed to comply
with a discovery “order” when it did not provide him with the full police file.
The trial court ably addressed the nature of this “order” in its Opinion, which
we discussed in full above. See Trial Court Opinion, 6/25/19, at 7-9. We
agree with the trial court’s conclusions, and discern no abuse of discretion in
its determination that the Commonwealth complied with all necessary
discovery requests. Accordingly, Bennett is entitled to no relief on this claim.
To the extent that Bennett argues a Brady violation by the
Commonwealth, he would also be entitled to no relief. In order to
demonstrate a Brady violation, a defendant must show that (1) the evidence
was favorable to the accused, either because it was exculpatory or because it
impeaches; (2) the evidence was suppressed by the prosecution, either
willfully or inadvertently; and (3) prejudice ensued. Commonwealth v.
Burke, 781 A.2d 1136, 1141 (Pa. 2001) (citation omitted). However, “[t]he
mere possibility that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the trial, does not establish
materiality in the constitutional sense.” Commonwealth v. Chambers, 807
A.2d 872, 887 (Pa. 2002) (citation omitted). Evidence is material “only if
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there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 887-88 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
Bennett does not specifically allege that exculpatory evidence actually
exists; rather, he argues that “potentially material and exculpatory evidence
was suppressed by the Commonwealth.” Brief for Appellant at 19. While
Bennett points out that due process requires that all discoverable evidence be
provided to a defendant, he presents no evidence that the Commonwealth
failed to provide him with relevant discovery information. Accordingly,
Bennett has failed to meet his Brady burden. See Commonwealth v. Willis,
46 A.3d 648, 670 (Pa. 2012) (stating that “a defendant necessarily must
identify specific evidence or information that would have been uncovered, and
explain how that evidence or information would have changed the result of
the proceeding,” and that mere speculation by a defendant is insufficient)
(internal citation omitted).
Further, as the trial court notes, the evidence introduced at trial against
Bennett was significant. Trial Court Opinion, 6/26/19, at 9-10 (wherein the
trial court states that the jury reviewed video evidence of Bennett committing
the robbery, eyewitness testimony of the robbery, recorded inculpatory
statements made by Bennett while in prison, and physical evidence of the
robbery recovered in proximity to where Bennett was arrested). As a result,
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Bennett’s argument that the evidence, to the extent that it exists, would have
materially changed the outcome of his trial is not supported by the record.
Because Bennett has failed to articulate any of the elements of a successful
Brady challenge, we cannot grant him relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2020
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