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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN BENNETT

                            Appellant                 No. 1486 EDA 2013


             Appeal from the Judgment of Sentence April 24, 2012
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003607-2011


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 30, 2015

        Kevin Bennett appeals from the judgment of sentence, imposed by the

Court of Common Pleas of Philadelphia County, after a jury convicted him of

first-degree murder1 and related offenses. Upon careful review, we affirm.

        The trial court summarized the facts of the case as follows:

        At trial, eyewitnesses Caleb Jackson and Jerry Holloman, the
        medical examiner and numerous police officers testified for the
        Commonwealth. Kim Fries testified for the defense.

        Caleb Jackson testified that he was living at 2115 Gould Street in
        Southwest Philadelphia in October of 2010. The block on which
        Jackson lived had numerous abandoned properties and crack
        houses. Jackson, who was a self-professed drug addict at the
        time, stated that he routinely rented rooms in his house to
        persons who wanted to either use drugs or engage in
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
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     prostitution. These persons gave Jackson money or drugs for
     the use of his home.

     In the early morning hours of October 4, 2010, Jackson came
     out of his home and motioned to [Bennett] and Christopher
     Lewis, who were standing across the street.        According to
     Jackson, [Bennett] and Lewis sold drugs.           Jackson was
     attempting to buy drugs from them on behalf of a person or
     persons inside his home. Jackson went back inside to wait for
     the drugs to be delivered. Several minutes later, Jackson went
     outside to see where [Bennett] and Lewis were. He noticed that
     they had moved further down the street.          Jackson again
     motioned to [Bennett] and Lewis, but they did not respond.

     At that point, Jackson saw the decedent, Dominic Young, walking
     down Gould Street. Young lived on Gould Street and often sold
     drugs to others on the block. Young asked Jackson what he
     needed, and Jackson told him he wanted to buy crack. Jackson
     then went inside while Young went to retrieve the drugs. When
     Jackson emerged from his house moments later, he saw Young
     standing outside. According to Jackson, [Bennett] walked up
     behind Young, pulled out what he believed to be a gun, and shot
     Young point blank in the back of the head. Young immediately
     fell to the ground, mortally wounded.

     Jerry Holloman, who lived in the area and sold marijuana on
     Gould Street, was also present when the shooting occurred.
     Holloman testified that [Bennett] and Lewis were selling drugs
     on Gould Street on the night of the shooting, and that [Bennett]
     and the decedent had a brief argument. According to Holloman,
     [Bennett] pulled out a gun, pointed at the back of decedent’s
     head and fired a single shot. Holloman ran away after the
     shooting occurred, but returned moments later. He was initially
     reluctant to speak with police, but eventually gave homicide
     detectives a statement in which he positively identified [Bennett]
     as the shooter.

     [Bennett] immediately fled the area after the shooting. On
     December 9, 2010, detectives from the Philadelphia Fugitive
     Task Force, U.S. Marshals and local police apprehended
     [Bennett] in Smyrna, Delaware. [Bennett] gave police a false
     name when he was arrested.

     The defense argued that someone other than [Bennett] was the
     shooter. In support of this claim, the defense called Kim Fries.
     Fries testified that she had lived on the 2100 block of Gould

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        Street, and had known [Bennett] for several months when the
        shooting occurred. Fries stated that shortly after midnight on
        October 4, 2010 she heard a single gunshot. When she looked
        outside, she saw an unknown person wearing a black hoodie run
        past her home. Fries could not tell whether the person was male
        or female or what their race was. Nevertheless, Fries testified
        that she was certain that the identified person was not
        [Bennett].

Trial Court Opinion, 1/6/14, at 2-4.

        On April 23, 2012, a jury convicted Bennett of first-degree murder,

possessing an instrument of crime (PIC),2            and violating the Uniform

Firearms Act (VUFA).3 The following day, the court sentenced Bennett to life

imprisonment for first-degree murder and concurrent sentences of 2½ to 5

years for the additional offenses.

        Bennett filed post-sentence motions, which the court denied by order

dated May 7, 2012.          However, because the order was not served upon

Bennett or his counsel, Bennett did not file a timely appeal from his

judgment of sentence.         On September 19, 2012, he filed a PCRA petition

requesting reinstatement of his appellate rights nunc pro tunc.          The trial

court granted relief on May 14, 2013, and this timely appeal followed, in

which Bennett raises one issue for our review:

        Did not the trial court abused its discretion and err by prohibiting
        [Bennett] from cross-examining Commonwealth witness Jerry
        Holloman in regard to his involvement in a murder and his role
        as an immunized Commonwealth witness in the murder case for
____________________________________________


2
    18 Pa.C.S. § 907.
3
    18 Pa.C.S. § 6108.



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      the purpose of eliciting testimony showing that Holloman was in
      a position that inclined him to want to curry favor with the
      prosecution or avoid displeasing the prosecution as a result of
      his concerns about his involvement in the other murder case,
      and therefore had a strong motive to testify falsely in the
      present case?

Appellant’s Brief, at 2.

      “The scope of cross-examination is within the discretion of the trial

judge, and absent an abuse of that discretion an appellate court will not

disturb the trial judge’s rulings.” Commonwealth v. Pagan, 950 A.2d 270,

285 (Pa. 2008) (citing Commonwealth v. Auker, 681 A.2d 1305, 1317

(Pa. 1996). “An abuse of discretion will not be found based on a mere error

of judgment, but rather exists where the court has reached a conclusion

[that] overrides or misapplies the law, or where the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013) (quoting

Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007)).

      Consistent with the statement he made to police the day after the

murder, Holloman testified at trial that he saw Bennett shoot the victim. He

acknowledged that he was testifying under a grant of immunity, and he

“understood that to mean that as long as [he] testified in a way [the

Commonwealth] agreed with, [he] would never be charged with any crimes

or none of the things that [he] might say would ever be used against [him]

in a criminal prosecution.” N.T. Trial, 4/18/12, at 195. Holloman admitted

that he sold marijuana, id. at 150, and that he had an open pending theft

charge against him for which he had failed to appear, leading to the issuance

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of a bench warrant.       Id. at 144.    He also testified that, due to his

cooperation with the government in another case, his family had received

$16,000 in benefits. Id. at 226.

      Holloman also testified that at the beginning of the investigation into

Young’s murder, he maintained that he knew nothing. However, after being

detained by the police for thirty-eight hours, he began to talk. Id. at 188.

He agreed with defense counsel that he had concluded by that point that he

was “not going anywhere” until he told the police “what they wanted to

hear.” Id. at 228. He further admitted that if he had not accused someone

else, he believed he was going to be arrested for Young’s murder.      Id. at

249-51.

      As the above-referenced testimony indicates, the trial court permitted

defense counsel several opportunities to challenge Holloman’s motives and

credibility.   However, the trial court refused to allow defense counsel to

cross-examine Holloman about a second case in which he testified under a

grant of immunity, the murder of Danny Williams by Clarence Burbage,

which took place seven months after the murder of Young.          On appeal,

Bennett argues that the trial court’s refusal to allow him to ask “Holloman

any questions pertaining to the Williams murder case and his role in the

murder and his role as a Commonwealth witness,” Appellant’s Brief, at 18,

was an abuse of discretion and a violation of his right to confrontation under

the federal and state Constitutions.




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     The exposure of a witness’s motivation in testifying is a proper
     and important function of the constitutionally protected right of
     cross-examination.     It does not follow, of course, that the
     Confrontation Clause of the Sixth Amendment prevents a trial
     judge from imposing any limits on defense counsel’s inquiry into
     the potential bias of a prosecution witness. On the contrary, trial
     judges retain wide latitude insofar as the Confrontation Clause is
     concerned to impose reasonable limits on such cross-
     examination, based on concerns about, among other things . . .
     confusion of the issues . . . or interrogation that is repetitive or
     only marginally relevant. The Confrontation Clause guarantees
     and opportunity for effective cross-examination, not cross-
     examination that is effective in whatever way, and to whatever
     extent, the defense might wish.

Commonwealth v. Bozyk, 987 A.2d 753 (Pa. Super. 2009) (citations and

quotations omitted).

     Significantly, Holloman was never charged with any offense related to

the Williams homicide.      Accordingly, the trial court’s determination not to

permit cross-examination on this issue is consistent with Commonwealth

v. Patterson, 91 A.3d 55 (Pa. 2014), where our Supreme Court upheld a

trial court’s ruling that where no criminal charges were ever filed against a

witness, he could not be impeached with evidence that he had solicited a

murder in order to test his motivation to cooperate with the Commonwealth

because of his own vulnerability to prosecution.

     Bennett relies on Davis v. Alaska, 415 U.S. 308 (1974), for the

general proposition that the Confrontation Clause “mandates that the fact

finder see and evaluate a witness’s demeanor under cross-examination.”

Appellant’s Brief, at 19.    However, an important factual difference exists

between Davis and the present case.         In Davis, the trial court erred by



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prohibiting impeachment with the fact that the witness who testified that

Davis committed a burglary, had himself previously been adjudicated

delinquent for burglary and was on probation for that offense. In contrast,

the Commonwealth never charged Holloman with any offense related to

Williams’ death. Accordingly, Davis does not compel an opposite result.

     In light of the fact that the trial court permitted Bennett to impeach

Holloman for bias in connection with the grant of immunity in this case, his

open theft charge, the government payments his family received for his

cooperation, his insistence he knew nothing about Young’s murder until he

was detained by police for thirty-eight hours, and his admission that he

accused Bennett out of fear he was going to be arrested, the court did not

abuse its discretion in prohibiting Bennett from cross-examining Holloman

about a homicide that occurred seven months after Bennett’s death, and for

which Holloman was never charged.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015




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