J-S19034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ISSA BENOIT                                :
                                               :
                       Appellant               :       No. 48 EDA 2017


           Appeal from the Judgment of Sentence January 16, 2009
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0012147-2007


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                   FILED JULY 2, 2018

       Appellant, Issa Benoit, appeals from the judgment of sentence imposed

on January 16, 2009, following his jury conviction of attempted murder,

aggravated assault, firearms not to be carried without a license, carrying

firearms on the public streets of Philadelphia, and possession of an instrument

of crime. After remand, sentence was finalized on December 8, 2016, when

the trial court denied Appellant’s motion in limine to admit expert testimony

on the unreliability of eyewitness identification.1 Appellant also challenges the

discretionary aspects of the sentence. We affirm on the basis of the trial court

opinion.

____________________________________________


1As counsel properly appealed from the judgment of sentence, this is a direct
appeal, not an appeal from a PCRA order, and we have amended the caption
accordingly.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S19034-18


       This case returns to us after a preceding panel affirmed the judgment

of sentence, rejecting a challenge to the sufficiency of the evidence. (See

Commonwealth v. Benoit, No. 692 EDA 2015, 2016 WL 783865, at *5 (Pa.

Super. filed February 29, 2016) (unpublished memorandum)). However, the

panel remanded the case to the trial court for consideration of Appellant’s

challenge to eyewitness identification, pursuant to Commonwealth v.

Walker, 92 A.3d 766, 769 (Pa. 2014).             (See id.).   The Walker Court

abolished Pennsylvania’s per se prohibition against the admission of expert

testimony regarding eyewitness identifications in criminal cases, leaving the

admissibility of such expert testimony to the discretion of the trial court. Here,

prior to our Supreme Court’s decision in Walker, the trial court had denied

Appellant’s proffer of expert testimony on eyewitness identification, under

then-controlling authority.2

       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. (See Trial Court Opinion, 8/17/17,

at 3-5).    Therefore, we need not restate them at length here.          For the

convenience of the reader, we note briefly that Appellant’s jury conviction

arose, among other things, out of Appellant’s firing his handgun point blank

at one of two Philadelphia police officers on the Narcotics Strike Force who


____________________________________________


2 See e.g., Commonwealth v. Spence, 627 A.2d 1176, 1182 (Pa. 1993)
(holding expert opinion not allowed to intrude on jury’s basic function of
deciding credibility).


                                           -2-
J-S19034-18


had put Appellant under surveillance from a minivan for about fifteen minutes

while he engaged in the apparent sale of narcotics.

       On January 16, 2009, the trial court sentenced Appellant to an

aggregate term of not less than seventeen nor more than thirty-four years of

incarceration, to be followed by three years of probation.3 Following the trial

court’s denial of Appellant’s motion for a new trial and to admit expert

testimony on eyewitness identification, Appellant timely appealed. He filed a

court-ordered statement of errors on April 6, 2017. The trial court filed an

opinion on August 17, 2017.

       Appellant raises three questions for our review:

             [1.] Is the Appellant is [sic] entitled to a new sentence
       hearing when the trial court imposed a sentence which was
       outside the sentence guidelines and the trial court in its statement
       of the reasons for the sentence showed partiality toward the
       complainant and trial court also considered arrests that did not
       result in convictions, the climate in the city and what was
       happening to police officers which were matters that the
       defendant [sic] was not responsible for or could control?

             [2.] Did the trial court err in denying [A]ppellant a new trial
       where [A]ppellant could present expert witness testimony
       regarding the unreliability of eye-witness identification in the
       circumstances of this case when the Commonwealth’s entire case
       rested solely on the eyewitness testimony?

             [3.] Did the trial court err in asserting that because of the
       delay from the trial to a retrial the Commonwealth would not be
       able to get a fair trial if the [c]ourt allowed expert witness
____________________________________________


3Appellant filed a timely post-sentence motion, which was denied. His direct
appeal rights were reinstated after his then-counsel failed to file a brief.




                                           -3-
J-S19034-18


       testimony as to the eyewitness identification in this case when
       prejudice to the Commonwealth’s case is not one of the factors
       that a court is allowed to consider in deciding if this testimony is
       admissible?

(Appellant’s Brief, at 2).4

       The trial court properly identifies the applicable standards of review

including review of challenges to the admission of expert testimony. We add

the following observations from controlling authority only for further clarity.

             The admission of expert testimony is a matter committed to
       the discretion of the trial court and will not be disturbed absent an
       abuse of that discretion. An abuse of discretion is not merely an
       error of judgment, but if in reaching a conclusion the law is
       overridden or misapplied, or the judgment exercised is manifestly
       unreasonable, or the result of partiality, prejudice, bias or ill-will,
       as shown by the evidence or the record, discretion is abused.

Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citations and

internal quotation marks omitted). Pennsylvania Rule of Evidence 702 permits

expert testimony on subjects concerning knowledge beyond that possessed

by a layperson. See Pa.R.E. 702(a). “[I]t is the job of the trial court to ‘assess

the expert’s testimony to determine whether the expert’s testimony reflects

the application of expertise or strays into matters of common knowledge.’ ”



____________________________________________


4 We note, as aptly observed by the Commonwealth, that Appellant’s brief
does not comply with this Court’s font requirements. (See Commonwealth’s
Brief, at 5 n.3); see also Pa.R.A.P. 124(a)(4) (Lettering shall be no smaller
than 14 point in the text and 12 point in footnotes). Counsel for Appellant
also fails to provide any standard of review, confuses scope of review with
standard of review, and mis-cites the scopes of review he does provide. (See
Appellant’s Brief, at 1).


                                           -4-
J-S19034-18


Snizavich v. Rohm & Haas Co., 83 A.3d 191, 194 (Pa. Super. 2013), appeal

denied, 96 A.3d 1029 (Pa. 2014) (citations omitted).

             Trial courts will exercise their traditional role in using their
      discretion to weigh the admissibility of such expert testimony on
      a case-by-case basis. It will be up to the trial court to
      determine when such expert testimony is appropriate. . . .
      The admission must be properly tailored to whether the testimony
      will focus on particular characteristics of the identification at issue
      and explain how those characteristics call into question the
      reliability of the identification. We find the defendant must make
      an on-the-record detailed proffer to the court, including an
      explanation of precisely how the expert’s testimony is relevant to
      the eyewitness identifications under consideration and how it will
      assist the jury in its evaluation.

Walker, supra at 792 (emphasis added).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court we conclude

that there is no merit to any of the issues Appellant has raised on appeal. The

trial court opinion properly disposes of the questions presented. (See Trial

Ct. Op., 8/17/17, at 5-14, concluding: (1) trial court, which had benefit of

presentence   investigation   report,   properly   exercised    its   discretion   in

sentencing Appellant in aggravated range for attempted murder of police

officer and related offenses; (2) trial court properly exercised its discretion,

after hearing, in deciding that impact of expert’s testimony on various Walker

factors would not be sufficiently relevant or significant enough to justify new

trial, where trained, experienced police officers who specialized in surveillance

had extended opportunities to observe Appellant for fifteen minutes, before

he approached their van and began shooting; speaking to them before

                                        -5-
J-S19034-18


opening fire; and (3) incidental comments of trial court judge confirming

credibility of testifying officer with casual reference to personal experience do

not establish partiality, prejudice, bias or ill will, and fail to establish manifest

abuse of discretion, where trial court expressly based its rulings on objective

principles of applicable law).

      Accordingly, we affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/18




                                        -6-
                                                                                                     Circulated 06/07/21   Mgl   PM

                                                                                                                   AUG 1 7 2017

                                                                                                             Office of Judicial Record
            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTXppeals/Post Trial
                         FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

 COMMONWEALTH OF PF,NNQVI V A MI AComm                          v Benoit, Issa
                                                                                 TRIAL DIVISION
                                     CP-51-CR-0012147-2007
                                                      Opinion



 V.                                                                              CP-51-CR-0012147-2007
                                               14941111111111

 ISSA BENOIT, APPELLANT                                                          48 EDA 2017


                                                       OPINION

        This opinion addresses Appellant Issa Benoit's appeal of this Court's denial of his

Motion for a New Trial. This Court finds that the issues raised in the Appellant's Appeal lack

merit for the reasons set forth in this opinion.

                                             I. CASE HISTORY

        On March 1, 2007, the police arrested the Appellant, and the next day the

Commonwealth filed a complaint charging the Appellant with Attempted Murder (F1),

Aggravated Assault (Fl), Possession of a Firearm Prohibited (VUFA                       §   6105)(F2), Firearms Not

to be Carried Without a License (VUFA            §   6106)(F3), Terroristic Threats (Ml), Criminal

Mischief (M1), Carrying Firearms in Public in Philadelphia (VUFA                    §   6108)(M1), Possession of

an Instrument of Crime (PIC)(M1), Simple Assault (M2), and Reckless Endangerment of

Another Person (REAP)(M2).1 On October 5, 2007, the Honorable David C. Shuter held all

charges for court.

        On October 21, 2008, a jury found the Appellant guilty of Attempted Murder (F1),

Aggravated Assault (F1), VUFA         §   6105 (F2), VUFA        §   6106 (F3), VUFA          §   6108 (Ml), and PIC




 The Appellant was charged with two counts of Attempted Murder and Aggravated Assault against police officers
Sean Devlin and Joseph Domico.
(M1).2 On January 16, 2009, the court sentenced the Appellant to 10 to 20 years incarceration

for Attempted Murder,       5   to 10 years consecutive incarceration for VUFA           §   6105, 2 to 4 years

consecutive incarceration for VUFA           §   6106, and   3   years consecutive probation for PIC.3 On

January 23, 2009, the Appellant filed a Post -Sentence Motion which the court denied on

February 5, 2009.

         On February 25, 2009, the Appellant filed a Notice of Appeal to the Superior Court.4 On

April 16, 2010, the appeal was dismissed for failure to file a brief. On February 14, 2011, the

Appellant filed a Motion to Reinstate Appeal, and the Superior Court denied the motion without

prejudice on March 7, 2011.5 On April 28, 2011, the Appellant filed a pro se Post Conviction

Relief Act (PCRA) Petition. On December 9, 2013, the Appellant filed an Amended PCRA

Petition. On February 18, 2015, the court granted PCRA relief and reinstated the Appellant's

direct appellate rights. On March 3, 2015, the Appellant filed a second Notice of Appeal to the

Superior Court.6 On February 29, 2016, the Superior Court affirmed the judgment in part, and

remanded the case for the trial court to hold a hearing to determine whether expert testimony

concerning eyewitness identification would be admissible in this case.

         On April 13, 2016, the Appellant filed a Motion for Frye Hearing and a Motion for Funds

for an Expert. On April 27, 2016, the court granted the Motion for Funds, and on June 2, 2016,

the defense submitted the report of eyewitness identification expert Dr Suzanne Mannes. On

June 29, 2016, the Commonwealth filed a Motion in Limine to Preclude Identification Expert

Testimony, and the Appellant filed a reply to the Motion on August 6, 2016. On November 3,


2 The jury found the Appellant guilty of Attempted Murder and Aggravated Assault only against Officer Sean
Devlin, and the Commonwealth nolle prossed the remaining charges
3 There was no further penalty imposed on the Aggravated Assault or VUFA § 6108 charges

  1658 EDA 2009.
5 The Superior Court stated that the Appellant could seek relief pursuant to the Post Convction Relief Act, 42

Pa C S §§ 9541 et seq. (14 EDM 2011).
6 692 EDA 2015



                                                         2
2016, after considering Dr. Mannes' report, the court held the hearing to determine if expert

testimony would be admissible. On December 8, 2016, the court determined that identification

expert testimony would not be admissible in this case and denied the Motion for a New Trial.

           On December 19, 2016, the Appellant filed a third Notice of Appeal to the Superior

Court. On March 27, 2017, the court ordered counsel to file a Statement of Errors Complained of

on Appeal pursuant to Pa.R.A.P. 1925(b). On April 6, 2017, the Appellant filed his Statement

raising the following issues on appeal:7

                1. The trial court erred in denying the defendant a new trial where the defendant
           could present an expert witness regarding the unreliability of eye witness of [sic]
           identification in regards to cross -racial identification, the identification of an individual at
           night, where the witness did not [sic] prior contact with the individual identified, and the
           contact was brief and in a stressful situation See Commonwealth v. Walker, 92 A3d 776
           (2014).
               2. The trial court erred in holding that the Commonwealth could not get a fair trial, if
           the Court ordered a new trial in the case and allowed expert witness testimony as to eye-
           witness identification in the case under Commonwealth v. Walker, 92 A3d 776 (2014).
               3. The Court abused its discretion in imposing a sentence of 17 to 34 years in prison
           followed by 3 years probation because the sentence was above the aggravated range of
           the sentence guidelines and the Court ran the sentences consecutive. The Commonwealth
           also argued that the Court should bas [sic] the defendant [sic] sentence on not only
           convictions but also arrests. The Commonwealth also argued the sentence should be
           based on the "climate in the city" NT 1-6-09 @ 25-26. Also the Court based its sentence
           on an incident that happened to the Court that made the court sympathetic to the victim in
           this case. See NT 1-16-09 @32. The sentence in this case was unreasonable and based on
           factors not permitted to be considered and therefore the defendant is entitled to a new
           sentence hearing.

                                                    II. FACTS

           On February 22, 2007 at approximately 9:00 p.m., Police Officers Sean Devlin and

Joseph Domico set up surveillance to monitor illegal narcotics sales at 151 W. Apsley Street.8

Both plain clothes officers were part of the Narcotics Strike Force at the time and monitored the




' Copied   verbatim from the appellant's Statement of Matters Complained on Appeal pursuant to Pa.R A   P   1925(b)
 Notes   of Testimony, 10/14/2008, p. 9-11,   13.

                                                         3
location from an unmarked blue Dodge Caravan minivan.9 The minivan was parked across the

street, approximately 50 feet away from 151 W. Apsley Street.I° Additionally, Officer Devlin

used binoculars to observe the transactions across the street)' There were three rows of seats in

the van, and the second row passenger side seat had been removed to make room for an officer to

hide on the      floor.' Officer Devlin hid in the van directly behind the front passenger seat while
Officer Domico hid in the back of the van.13

            From their vantage point, the officers observed the Appellant engage in two drug

sales.I4 They watched as several unidentified people handed the Appellant money             15   After

receiving the money, the Appellant went inside of        151    West Apsley Street, exited several

minutes later, and gave the unidentified people small objects.I6 Based on these observations,

Devlin contacted the backup officers and gave them a description of the Appellant.I7 The

police did not arrest these individuals.I8

            After approximately fifteen minutes, the Appellant walked across the street toward the

van.19 He put his face to the glass and looked into the        driver's side front window.2° He said to the

officers, "I see you hiding in there pussy. Oh, you want to bang."21 The Appellant then pulled out

a handgun from his right waistband and fired a bullet into the van at Officer Domico.22 The

officers saw the gun's muzzle flash, heard the deafening sound of the gun, heard the sound of the


9 Id at 10-12, 20, 62.
1° Id. at 16
H Id at 18.
12 Id at 14

13 Id at 13, 63.

'4 Id at 14-15
15 Id at 15, 64

16 Id. at 64.

17 Id at 16

18 Id at 92

19 Id at 16, 18, 28, 68

20   Id at 55
21   Id at 16-17
     Id at 17, 20, 68

                                                     4
 front driver's side window blowing out, and heard the glass fall to the ground.23 Officer Devlin

then pulled out his weapon and returned fire.24 The Appellant fled the scene but was

apprehended approximately one week later. Officer Domico later picked out the Appellant

from a photo array, and Officer Devlin identified the Appellant at a lineup and the

preliminary hearing as the perpetrator.25

                                             III. DISCUSSION

I. The      Court Did Not Err When It Denied the Appellant's Motion for a New Trial.

             The Appellant first argues that the court should have granted a new trial to afford him an

opportunity to present expert witness testimony concerning the reliability of identifications. This

argument lacks merit.

            In Corn. v. Walker, the Superior Court of Pennsylvania held that "expert testimony on the

limited issue of eyewitness identification... may be admissible, at the discretion of the trial court,

and assuming the expert is qualified, the proffered testimony relevant, and will assist the trier of

fact." 92 A.3d 766, 792 (Pa. 2014). The expert testimony is only admissible where "the

Commonwealth's case is solely or primarily dependent upon eyewitness testimony." Id. at 787.

            Furthermore, the testimony must not only assist the trier of fact, but it must also be

beyond the knowledge of a layperson and it must pass the Frye "general acceptance" test. Id. at

789. To satisfy Frye, the party offering the evidence must show that the methodology is

generally accepted by scientists in the relevant field, but need not prove the conclusions are

generally accepted. Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1045 (Pa. 2003). The Court

determined that after a trial court finds that the expert testimony satisfies Frye, "the admission



23   Id. at 17, 66
24   Id.
25   Id. at 35, 76

                                                     5
must be properly tailored to whether the testimony will focus on particular characteristics of the

identification at issue and explain how those characteristics call into question the reliability of

the identification." Walker, 92 A.3d at 792.

       To show that the expert testimony should be admitted, the defendant must make an on -

the -record detailed proffer to the court which includes: (1) an explanation of precisely how the

expert's testimony is relevant to the eyewitnesses' identifications and (2) how it will assist the

jury in its evaluation. Walker, 92 A.3d at 792 The proof should establish the presence of factors

which may be shown to impair the accuracy of eyewitness identification in aspects which are

beyond the common understanding of laypersons such as: (1) the impact on accuracy of

identification due to weapon focus during crime; (2) the reduced reliability of identification in

cross-racial identification cases; (3) decreased accuracy in eyewitness identification in high-

stress/traumatic situations; (4) the risk of mistaken identification when police investigators do

not warn witness, prior to viewing photo array or lineup, that the perpetrator may or may not be

in the display; and (5) the lack   of correlation between witness statements of confidence and

witness accuracy. Id.

       In this case, although the Commonwealth's case primarily depended on the

identifications of the Appellant by Officers Domico and Devlin, the impact of an expert's

testimony would not be relevant or significant enough to justify a new trial. Most of the Walker

factors that arguably impair eyewitness identification accuracy do not apply in this case. The

Walker factors are negated by the extended opportunities the officers had to observe the

Appellant from their tactical vantage point before the shooting took place. As previously

mentioned, the officers had an opportunity to observe the Appellant from fifty feet away for




                                                   6
 at least fifteen minutes before he approached their vehicle. Just as importantly, Officer

 Devlin observed the Appellant using binoculars to enhance his view.

            For the sake of thoroughness, let us examine whether any of the Walker factors exists to

 warrant identification expert testimony in this case. The first factor (weapon focus), for the most

part, does not apply because the officers did not see the Appellant's weapon until after he

approached their vehicle. The officers observed the Appellant as he conducted narcotics sales

across the street from where they were parked. They then watched the Appellant approach and

 stand approximately three feet from them while he looked into their van.26 The Appellant did not

even raise his weapon until after the officers had a chance to observe him up close.27 Therefore,

expert testimony on how weapon focus impairs accuracy of identification would not be as

relevant or helpful to a factfinder when one considers the facts of this case.

           The second factor (cross -racial identification) does apply, but it is mitigated by the extent

of the officers' protracted observations and the totality of the circumstances. The Appellant       is

African American and the officers are white. However, the officers watched the Appellant over

an extended period of time and saw him up close when he approached them. Officer Devlin was

also using binoculars to observe the Appellant during an official and protracted investigation.

The fact that the Appellant was actually the subject of an official investigation gave the officers a

level of attentiveness that would normally be lacking whenever a victim is accosted by a

perpetrator without warning. Hence, although the identifications were cross -racial, this factor is

reduced by the extent of the officers' observations and other corroborative evidence

           The third factor does not really apply because the officers were only in a high stress

situation for the last few seconds of their interaction with the Appellant. Although the officers


     Notes of Testimony, 10/14/2008, p   18
27   Id at 19-20

                                                     7
 were in a high stress situation after the Appellant fired into their vehicle, they still had the

 opportunity to observe him for an extended period of time without being under any stress before

 he fired. Both officers unequivocally testified that, even as the Appellant approached their

 vehicle, they were not apprehensive because they had been approached many times while on

 surveillance.28 They observed the Appellant from across the street and as he approached their

 vehicle. Their observations were not made under stress or trauma. Therefore, expert testimony on

 how high stress and trauma could cause decreased identification accuracy would not have been

 as helpful or relevant in light of the facts of this case.

           The fourth factor is arguably inapplicable in this case because both of the witnesses are

police officers who are familiar with identification procedures. They had a greater understanding

of police procedures than a layperson and knew that the Appellant might not be in the photo

array or lineup. Moreover, Officer Devlin looked at a photo array a day or two after the shooting

and confirmed that the Appellant was not in the array.29 Officer Devlin would not have had to be

told that the Appellant would not necessarily be in the subsequent lineup that he viewed because

of his knowledge of photo identification procedures. Therefore, it would not have been as

relevant or helpful to a jury in our case for a judge to permit expert testimony about the risk of

mistaken identification when police officers do not warn witnesses that a defendant may not be

in the photo array or lineup.

           Finally, the fifth factor does apply to our case. However, its applicability does not

warrant a new trial under the circumstances. Officer Domico testified that he identified the

Appellant as the perpetrator in a photo array six days after the shooting When signing the photo




28   Id at 21, 77-78
29   Id at 29-30.

                                                     8
array, Domico indicated that he was ninety-five percent sure of his identification.3° Although

Domico indicated his level of confidence in the identification evidence before the jury, it was a

high level of confidence (95%). Although Domico did not testify that he was 100% sure about

his identification, a judge's allowing expert testimony about the lack of correlation between a

witness's confidence and accuracy is not a compelling justification for an entire new trial. This is

because the jury heard Officer Domico's testimony, heard the court's charging instructions, and

was able to make its own assessment about the adequacy of Domico's photo identification.

            In this case, the minimal assistance to a jury that an identification expert's testimony

would provide does not warrant a new trial. Although an expert could testify about the decreased

accuracy of eyewitness identifications in cross -racial identification cases, and about a lack of

correlation between confidence and accuracy, such testimony would not be needed or overly

relevant in this case under the circumstances. As mentioned, the two eyewitnesses in this case

are trained police officers. Moreover, they were observing the Appellant from a close distance,

using binoculars, for approximately fifteen minutes without any stress or trauma. Our case is

distinct from Walker wherein the witnesses only viewed the perpetrators for a brief period of

time while under a great amount of stress because the perpetrators held them at gunpoint.

Granting a new trial ten years after the shooting took place would not serve the interests of

justice and would also place an unnecessary strain on judicial resources. It should be noted that

the court has occasionally allowed an identification expert to testify, but in those cases, the

Walker factors were more prevalent and relevant under the circumstances. However, in this case,

the court did not err when it denied the Appellant's Motion for a New Trial because expert

testimony would not assist the factfinder.



3°   Id at 75-76.

                                                      9
II. The Court Did Not Err When it Commented that the Commonwealth Could Not Get a
     Fair Trial

          The Appellant next argues that the court erred by holding that the Commonwealth could

not get a fair trial if expert witness testimony were admitted. The court's comment was taken out

of context.

          First of all, under Pa.R.A.P. Rule 302(a), "issues not raised in the lower court are waived

and cannot be raised for the first time on appeal." In this case, the Appellant did not make any

objection when the court made its comments, thus this issue is waived and cannot be brought on

appeal.

          Just as importantly, however, the court never held that the Commonwealth could not get a

fair trial. The court made the following remarks:

          I think to bring in an expert at this point, I think two or three years down the line it
          would not be the wisest thing to do, because I think the Commonwealth would be
          at a disadvantage because of the time elapsed. Even if you did bring the expert in,
          so much time has passed from the defendant's trial would -- I don't think you could
          have a fair trial, and I don't think the Commonwealth could properly put on its case.
          But that wasn't my motivation for the decision. It was based on the reasons that I
          gave.

N.T., 12/8/2016, p. 12-13.

          The court merely mentioned that neither side would have a fair trial if a new trial were

granted. Moreover, the court expressly stated that it did not consider any disadvantage the

Commonwealth might face when making its decision to deny the Appellant's motion. Therefore,

the court did not err because it did not hold that only the Commonwealth would not have a fair

trial.

          It should be noted that this particular hearing was conducted by video and audio

recording with the agreement of all the parties, so this court has concerns about whether the

audio transcription accurately depicted what the court actually said word for word at the


                                                    10
proceeding. The court was merely explaining that allowing expert testimony years after the trial

would not further the interest of justice or be appropriate in light of the facts of this case. The

court is well aware of the Walker holding and that our constitution demands that the defendant

have a fair and impartial trial. However, courts should only order that identification experts

testify when Walker factors have relevance and the facts of a particular case require expert

testimony under Pa.R.E. Rule 702. There has to be a fair application of the Walker holding to

both the defense and the Commonwealth. Only through such an application can there be a fair

trial.

III. The Court Did Not Abuse Its Discretion When It Sentenced the Appellant.

         Finally, the Appellant argues that the court abused its discretion when it imposed a

sentence above the aggravated range of the sentencing guidelines. This argument lacks merit

when one considers the circumstances.

         Before examining the Appellant's claim, we should highlight several principles of law

relating to sentencing. First, to challenge the discretionary aspects of a sentence, the Appellant

must show that the trial court sentenced him inappropriately under the Sentencing Code. Corn. v.

Ferguson, 893 A.2d 735, 737 (Pa.Super.2006) (quoting Corn. v McAfee, 849 A.2d 270, 274

(Pa.Super.2004)). To establish this, "the appellant must show actions by the trial court

inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the

sentencing process." Id.

         Second, the trial court has broad discretion when sentencing a defendant and the

"sentence will not be disturbed by an appellate court absent manifest abuse. A sentence must

either exceed the statutory limits or be manifestly excessive to constitute a manifest abuse."

Corn. v. Fries, 362 Pa. Super. 163, 167 (1987) (citing Corn. v. White, 341 Pa. Super. 261, 270



                                                  11
Guidelines. Corn. v Mouzon, 812 A.2d 617, 620 (2002); 204 Pa Code                §   303.1; 42 Pa.C.S.A.      §


9721. However, "[Ole sentencing guidelines are merely advisory and the sentencing court may

sentence a defendant outside of the guidelines so long as it places its reasons for the deviation on

the record." Corn. v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002). In addition, the

sentencing court has discretion to determine whether to make the sentence it is imposing

concurrent with or consecutive to other sentences being imposed or previously imposed. Corn. v.

Graham, 661 A.2d 1367, 1373 (Pa. 1995).

        Third, while the sentencing court has discretion in some respects, it has "no discretion to

refuse to apply the deadly weapons enhancement when it is appropriate." Corn. v. Raybuck, 915

A.2d 125, 129 (Pa.Super. 2006). A defendant "has used a deadly weapon if any of the following

were employed by the [defendant] in a way that threatened or injured another individual: (i) Any

firearm." 204 Pa. Code   §   303.10(a)(2)(i).

        Finally, the trial court must consider the particular circumstances of the offense as well as

the character of the defendant at sentencing. Corn. v. Boyer, 856 A.2d 149, 154 (Pa.Super. 2004).

Here the court should consider the defendant's prior criminal record, age, personal

characteristics, and potential for rehabilitation. Id. Moreover, if the sentencing judge has

reviewed the presentence investigation report, it will be presumed that he considered all of the

relevant circumstances when determining an appropriate sentence. Id.

       In our case, the Appellant's Prior Record Score was 3, and the Offense Gravity Scores

were as follows: Attempted Murder was 13, VUFA           §   6105 was 10, VUFA          §   6106 was 9, and

PIC was 4. The Sentencing Guidelines recommended a minimum sentencing range for

Attempted Murder of 96       -114 ±   12   months under the Deadly Weapon Enhancement. The

recommended minimum sentencing range for VUFA                §   6105 was 42   - 54 ±   12 months. The



                                                    12
recommended minimum sentencing range for VUFA                  §   6106 was 42   - 54 ± 12 months. Finally,
the recommended minimum sentencing range for PIC was 3                 - 14 ± 3 months.
           The Appellant's sentence does not exceed the statutory limits, nor is it manifestly

excessive. The court sentenced the Appellant to the statutory limit of 10           - 20 years for
Attempted Murder where no serious bodily injury occurred, which is within the aggravated

 sentencing guidelines.31 The court also sentenced the Appellant to the statutory limit of 5         - 10
years for VUFA       §   6105 which is within the aggravated sentencing range.32 The Appellant's

sentences for VUFA           §   6106 and PIC are well below the guideline ranges and statutory limits.

           Moreover, the court considered all relevant circumstances when it sentenced the

Appellant. The court reviewed the presentence investigation report that delineated the

Appellant's personal, mental, and criminal histones. The court also considered the protection of

the public, the impact of the offenses on the lives of the victims and community, and the

rehabilitative needs of the Appellant At the sentencing hearing, Officer Devlin gave a victim

impact statement, testifying that he still saw the muzzle flash from the Appellant's gun when he

closed his eyes. In addition, the court heard testimony from the Appellant's brother, mother, and

grandmother about the Appellant's character. The Appellant was also given an opportunity to

speak, but he expressed no remorse.

          In closing, the Appellant displayed a wanton disregard for human life when he

intentionally shot into a vehicle occupied by two police officers who were conducting a drug

investigation. His reckless and senseless actions showed that he is a danger to the public. The

Appellant also lacked remorse for shooting at the officers. While giving its reasons for the

sentences, the court remarked (as Officer Devlin gave his statement) that it had flashbacks to


31   18 Pa CS A. § 1102(c)
32   18 Pa C S A § 1103(2)

                                                         13
personal experiences that could have been life-threatening.33 However, the court did not base the

Appellant's sentence on its own personal feelings. Rather, the court briefly mentioned the

incident in passing implying that it did not think that that Officer Devlin's statement was out of

the realm of possibility based on what he experienced. When one considers the need to protect

the public, the gravity of the offenses, the rehabilitative needs of the Appellant, and the

circumstances of this case, the court's sentences were not unreasonable. Therefore, this claim

should also be dismissed.




33   NT   ,   1/16/2009, p 32

                                                 14
                                      IV. CONCLUSION

       The court finds no merit in the Appellant's contentions. First, a new trial is inappropriate

because an expert's testimony would not be overly relevant or assist a factfinder based on the

facts of this case. The eyewitnesses were trained police officers who observed the Appellant for

fifteen minutes before the shooting occurred. Second, the court never held that the

Commonwealth would be disadvantaged at trial and explicitly stated that its decision was based

on other factors. Finally, the sentence was not manifestly excessive because of the gravity of the

Appellant's actions and his disregard for human life. For these reasons, the Appellant's claims

should be dismissed.



                                                         By the Court,




                                                                Glynnis. Hill, Judge




                                                15
                                        PROOF OF SERVICE


       I   hereby certify that a true and correct copy of the foregoing has been served upon the
following persons on the   17th   day of August, 2017.



Issa Benoit
HW9901
SCI Houtzdale
P.O. Box 1000
209 Institution Drive
Houtzdale, PA 16698-1000


John Cotter, Esquire
2541 S. Broad St.
Philadelphia, PA 19148-4309


Hugh J. Burns, Esquire
Philadelphia District Attorney's Office
3 South Penn Square
Philadelphia, PA 19107




DATE




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