COMMONWEALTH OF PENNSYLVANIA v. STEPHON BENNETT
No. 225 EDA 2016
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED FEBRUARY 01, 2017
Appeal from the PCRA Order December 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010928-2008, CP-51-CR-0010987-2008
BEFORE: SHOGAN, OTT and STEVENS, P.J.E.*
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MEMORANDUM BY STEVENS, P.J.E.:
Appellant, Stephon Bennett (“Bennett“), appeals pro se from the December 17, 2015, order entered in the Court of Common Pleas of Philadelphia County denying his first petition filed under the Post Conviction Relief Act (“PCRA“),
Bennett and his two co-defendants, Kenny R.R. Shields (“Shields“)1 and Maurice Lewis (“Lewis“), were tried jointly before a jury in connection
On December 6, 2005, Sabrina Clyburn [(“Clyburn“)] overheard Shields, Lewis, and Bennett discussing robbing [the victim]. Clyburn saw the three [men] outside of the victim‘s house wearing masks and gloves. Lewis entered the house alone; sounds of an argument and a gunshot were heard; Shields and then Bennett ran into the house; and a second gunshot went off.
Lewis, who had been shot, was taken by Shields to a nearby apartment building where Shields’ cousin lived. Following an emergency call, Lewis was taken to the hospital, claiming that he had been shot getting off of a bus.
A neighbor found the victim dead in his home amidst the scene of a struggle. The Assistant Medical Examiner testified that the victim sustained one gunshot wound to the chest and one to his hand, that death was caused by the gunshot wound to the chest, and that the manner of death was homicide.
In the following days, Shields and Lewis relayed to various people the story of how Shields saved Lewis’ life after Lewis was shot struggling with the victim. Rasheda DeShields, Shields’ sister, gave a statement in which she reported that Shields made statements to her, inter alia, that Lewis shot the victim in the hand and that Shields’ [sic] took Lewis’ weapon to hide it at Lewis’ grandmother‘s home before the police arrived in response to the 911 call that led to Lewis’ being taken to the hospital. Arlo Spruell gave a statement that Shields told him that Shields and Lewis went to the victim‘s house to rob the victim because the victim was selling cocaine for someone named Mike, whom Shields and Lewis did not like, and they wanted to get Mike‘s money and cocaine.
Bennett apparently was more tight-lipped about the events of the evening. Angered that Clyburn was including his name in her statement to police, Bennett asked his brother to instruct Clyburn “to keep [Bennett‘s] name out of her mouth because she don‘t know what she‘s talking about if she is saying [Bennett] killed [the victim].” N.T., 1/6/2010, at 115.
While the statements to the police were offered into evidence, Shields, Lewis, and Bennett exercised their rights not to testify at trial. On January 12, 2010, the jury found [all three men] guilty of [ ] various crimes.
Specifically, with regard to Bennett, the jury convicted him of second-degree murder, robbery, witness intimidation, criminal solicitation, conspiracy, and possession of an instrument of crime.2 He was sentenced to an aggregate of life in prison, and following the denial of his post-sentence motion, Bennett appealed to this Court.
On direct appeal, Bennett claimed (1) the evidence was insufficient to support his convictions, (2) the jury‘s verdicts were against the weight of the evidence, (3) the trial court erred in permitting the testimony of Anthony Sharpe,3 (4) the prosecutor committed misconduct during closing argument, and (5) the trial court erred in charging the jury with regard to second-degree murder. See id. at 5. Finding the claims to be meritless and/or waived, we rejected Bennett‘s claims and affirmed his judgment of sentence. See Bennett, supra. Bennett filed a petition for allowance of appeal, which
On or about March 21, 2013, Bennett filed a timely, pro se PCRA petition, and Barnaby C. Wittels, Esquire, was appointed to represent him. On October 20, 2015, Attorney Wittels filed a Turner/Finley4 “no-merit” letter and petition seeking to withdraw his representation. On November 10, 2015, Bennett filed a response, and on November 17, 2015, the PCRA court provided Bennett with notice of its intent to dismiss his PCRA petition without an evidentiary hearing. By order entered on December 17, 2015, the PCRA court denied Bennett‘s petition,5 and this timely appeal followed.6
Initially, we note that our standard of review from the denial of post-conviction relief “is limited to examining whether the PCRA court‘s determination is supported by the evidence of record and whether it is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). This Court “will not disturb findings that are supported by the record.” Id.
Moreover, to the extent Bennett challenges the effectiveness of counsel, we note that when analyzing ineffectiveness claims, we begin with the presumption that counsel was effective. Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259-60 (2011). “[T]he [petitioner] bears the burden of proving ineffectiveness.” Commonwealth v. Ligons, 601 Pa. 103, 124, 971 A.2d 1125, 1137 (2009) (citation omitted). To overcome the presumption of effectiveness, a PCRA petitioner must demonstrate that: “(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel‘s deficient performance.” Id. (citation omitted). A claim of ineffectiveness will be denied if the petitioner‘s evidence fails to meet any of these prongs. See id.
Bennett first contends trial counsel was ineffective in failing to object properly to the Commonwealth‘s use of Clyburn‘s preliminary hearing testimony at trial.7 Specifically, he argues that, prior to the preliminary
Under both the Pennsylvania and United States Constitutions, a criminal defendant has a right to confront and cross-examine the witnesses against him. Commonwealth v. McCrae, 574 Pa. 594, 832 A.2d 1026 (2003). Our rules provide, however, that an unavailable witness’9 prior recorded testimony from a preliminary hearing is admissible at trial and will not offend the right of confrontation, provided the defendant had counsel and a full opportunity to cross-examine the witness at the prior proceeding. See
At the time of the preliminary hearing, defense counsel was not aware that [the witness] had given a prior inconsistent statement to the police nor was she made aware that the Commonwealth was contemplating the filing of criminal homicide, conspiracy and aggravated assault charges against [the witness], which charges arose out of the same incident giving rise to the charges at issue in the hearing. In addition, counsel was unaware of [the witness‘] prior criminal record.
Id. (emphasis omitted).
Accordingly, our Supreme Court determined that the appellant in Bazemore was not given a “full and fair opportunity” to cross-examine the witness at the preliminary hearing due to the Commonwealth‘s failure to disclose the relevant impeachment evidence prior to the witness’ initial testimony. Thus, the Supreme Court held that “no indicia of reliability” could be attributed to the defense‘s cross-examination of the witness at the preliminary hearing such that the testimony of the witness, who had become unavailable, could not be used as substantive evidence against the appellant at trial. Id. at 587, 614 A.2d at 687. See Commonwealth v. Cruz-Centeno, 668 A.2d 536, 542-43 (Pa.Super. 1995) (“[W]here the defense, at the time of the preliminary hearing, was denied access to vital impeachment evidence, such as prior inconsistent statements of the witness. . .a full and
This Court has clarified that “[m]ere dissimilarities or omissions in prior statements. . .do not suffice as impeaching evidence; the dissimilarities or omissions must be substantial enough to cast doubt on a witness’ testimony to be admissible as prior inconsistent statements.” Commonwealth v. Luster, 71 A.3d 1029, 1043 (Pa.Super. 2013) (en banc) (internal quotation marks and quotations omitted).
Here, even if defense counsel had utilized Officers Sprague‘s and Pollack‘s written investigation interview records during the cross-examination of Clyburn, the records “would not have casted substantial doubt on the veracity of [Clyburn‘s] [ ] testimony” as it relates to Bennett‘s guilt. Id. In the investigation interview records, the officers’ reports of the statements made to them by Clyburn are substantially similar to Clyburn‘s preliminary hearing testimony. In both circumstances, Clyburn provided similar detailed facts surrounding her observations. As it relates specifically to Bennett‘s participation in the murder, the officers’ interview records
Bennett admits these facts; however, he notes that the officers’ reports indicate Clyburn initially named “Dion” as one of Bennett‘s cohorts but then later named “Lewis” as one of Bennett‘s cohorts during her preliminary hearing testimony. We disagree with Bennett that this dissimilarity in identification as to one of Bennett‘s co-defendants sufficed as vital impeachment evidence “substantial enough to cast doubt on [Clyburn‘s] testimony.” See id. This is particularly true given the fact Bennett insists on appeal that he is not alleging Clyburn did not observe both of his co-
Moreover, we note that, in Luster, supra, we explained:
[A] summary of a witness’ statement cannot be used for impeachment purposes absent adoption of the statement by the witness as his/her own. The rationale for this rule is: [I]t would be unfair to allow a witness to be impeached on a police officer‘s interpretation of what was said rather than the witness’ verbatim words.
Id. at 1044 (internal quotation marks and quotations omitted).
In the case sub judice, the officers’ written investigation interview records contained summaries of the officers’ recollections of what Clyburn had told them about the instant murder. There is no indication that Clyburn herself had signed, adopted, or reviewed the officers’ written investigation interview records in any manner. Given the foregoing, we find no merit to Bennett‘s claim that, under the dictates of Bazemore, defense counsel did not have a “full and fair opportunity” to cross-examine Clyburn during the preliminary hearing such that her testimony should have been excluded when she became unavailable for trial. Accordingly, trial counsel cannot be ineffective in failing to object to the introduction of the testimony on this basis.
In his next issue, Bennett argues that trial counsel rendered ineffective assistance of counsel by failing to object to an instance of prosecutorial misconduct at trial. Specifically, Bennett contends that Clyburn offered false testimony during her preliminary hearing testimony, and the prosecutor committed misconduct by knowingly permitting the false testimony to be presented at the jury trial when Clyburn became unavailable as a witness. Bennett contends trial counsel should have objected to the instance of prosecutorial misconduct, and his failure to do so constitutes ineffectiveness.
In support of his claim, Bennett cites to the following portion of Clyburn‘s preliminary hearing testimony, which was admitted at trial:
Q: You told us that you gave an interview to the detectives on June 11th, and that document is there in front of you, marked C-2.13 Do you see that?
A: Yes.
Q: It says the interview is dated June 11th, do you see that?
A: Yes.
Q: Prior to June 11th, did you talk to the police at all concerning what happened that night?
A: Yes.
Q: When was that?
A: Say it again.
Q: When was it before June 11th that you spoke to the police about what happened that night?
A: I didn‘t.
Q: Just so I‘m clear then, between December 5, 2005 when these things happened until June 11th, 2006 when you were interviewed, you had no contact with the police; is that correct?
A: Correct.
N.T., 1/5/10, at 154-55 (footnote added) (quotation marks omitted). See Bennett‘s Brief at 19-20.
Bennett claims that Clyburn testified falsely since, prior to speaking to the detectives during the early morning hours of June 11, 2006, she had contact with Officers Sprague and Pollack during the late evening hours of June 10, 2006, when she was assaulted. He continues that the prosecutor knowingly permitted this “false” testimony to be presented to the jury, and trial counsel was ineffective in failing to object on this basis.
The prosecution may not knowingly and deliberately misrepresent the evidence in order to gain a conviction. Nevertheless, a claim of purposeful prosecutorial misrepresentation will not stand if examination of the record fails to reveal any indication of deceptive tactics on the part of the prosecution.
Commonwealth v. Ali, 608 Pa. 71, 91, 10 A.3d 282, 294 (2010) (citations omitted). “Moreover, when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure [on the part of the Commonwealth] of evidence affecting credibility violates due process.” Cruz-Centeno, 668 A.2d at 543 (quotations marks and quotation omitted).
In the case sub judice, assuming, arguendo, Clyburn‘s testimony contained “materially false testimony” regarding her contact with Officers Sprague and Pollack, there is no indication the prosecutor engaged in any deceptive tactics or nondisclosure relevant thereto as asserted by Bennett. The record reveals that, prior to trial, the Commonwealth provided defense counsel with Officers Sprague‘s and Pollack‘s written investigation interview records, wherein the officers set forth the contact and discussion which they had with Clyburn on June 10, 2006. Moreover, the Commonwealth
Further, we conclude that Bennett has failed to demonstrate any prejudice resulting from trial counsel‘s failure to object in this regard. Specifically, at trial, Officer Sprague was called as a defense witness, and he testified in detail to the events surrounding his contact with Clyburn on June 10, 2006. N.T., 1/7/10, at 169-83. In particular, Officer Sprague testified he responded to the assault of Clyburn, and during his discussion with her, she informed him that she had information as to the instant murder. See id. Officer Sprague additionally testified that he made a written investigative interview record memorializing the statements Clyburn made to him, and the document was entered into evidence as a defense exhibit. Id. at 175-82. Accordingly, Bennett has not demonstrated that he suffered prejudice as a result of counsel‘s failure to object. Ligons, supra.
In his next issue, Bennett contends that trial counsel was ineffective in failing to investigate Clyburn‘s mental health history for impeachment purposes. In this regard, Bennett argues that, at his co-defendants’ February 27, 2008, preliminary hearings, Clyburn admitted that she took medication for depression. Accordingly, Bennett argues trial counsel should have investigated Clyburn‘s mental health history, as well as presented her history, so that the jury would be able to assess whether her mental illness affected her ability to accurately observe and recall the events on the day of the murder.
Our Supreme Court has held that:
When a witness suffers from a mental disability relevant to his or her ability to accurately observe, recall or report events, the jury must be informed of the disability in order to assist it in properly assessing the weight and credibility of the witness‘s testimony.
The evidence can be said to affect credibility when it shows that the witness‘s mental disorganization impaired his or her capacity to observe an event at the time of its occurrence, to maintain a clear recollection of it, or to communicate the observation accurately and truthfully at trial.
Commonwealth v. Davido, 630 Pa. 217, 261, 106 A.3d 611, 637 (2014) (citations omitted).
Here, the PCRA court opined:
[T]he record lacks evidence that would demonstrate that [Clyburn‘s] mental health issues adversely affected her credibility by impacting her ability to observe, recall or report what she saw or heard.
Th[e] court [concludes] that the witness’ depression, the evidence of which was adduced at the preliminary hearing, was not the kind of disability which would render [ ] Clyburn unreliable and interfere with her ability to observe, recall or report events.
PCRA Court‘s Opinion, filed 7/15/16, at 18.
The PCRA court‘s determination is supported by the evidence of record and is free of legal error. Ousley, supra. Bennett has made no showing that Clyburn‘s credibility was affected by her depression or negatively impacted her abilities to accurately observe, recall, or communicate the facts to which she testified. Instead, Bennett argues in a cursory and speculative fashion that Clyburn‘s mental health diagnosis had relevant potential impeachment value and trial counsel should have “explored” the issue. See Bennett‘s Brief at 30. Accordingly, we agree with the PCRA court that there
In his next claim, Bennett argues that PCRA counsel was ineffective for failing to raise the previous issue of trial counsel‘s ineffectiveness.16 Initially, we note that Bennett is mistaken in his averment that PCRA counsel did not present this claim in his Turner/Finley no-merit letter. In any event, based upon our conclusion that the PCRA court properly found trial counsel was not ineffective on this basis, we also conclude that PCRA counsel was not ineffective. See Thomas, supra.
Finally, to the extent Bennett contends the PCRA court erred in denying his PCRA petition without an evidentiary hearing, we note that a PCRA petitioner is not automatically entitled to an evidentiary hearing. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012). We review the PCRA court‘s decision to deny a petition without an evidentiary hearing for an abuse of discretion. See Commonwealth v. Reid, 627 Pa. 151, 99 A.3d 470 (2014).
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/2017
Notes
Although the officers’ written investigation interview records were not provided to defense counsel prior to the preliminary hearing, there is no dispute the records were provided to defense counsel prior to trial. PCRA Court‘s Opinion, filed 7/15/16, at 14-15.