J-S15003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 692 EDA 2015


        Appeal from the Judgment of Sentence Entered January 16, 2009
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012147-2007

BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED FEBRUARY 29, 2016

        Appellant, Issa Benoit, appeals nunc pro tunc from the judgment of

sentence of an aggregate term of 17 to 34 years’ incarceration, followed by

3 years’ probation, imposed after he was convicted by a jury of attempted

murder and related offenses.           Appellant challenges the sufficiency of the

evidence to support his attempted murder conviction, as well as the

discretionary aspects of his sentence.            Additionally, Appellant argues that

pursuant to our Supreme Court’s recent decision in Commonwealth v.

Walker, 92 A.3d 766 (Pa. 2014), he is entitled to a hearing for the trial

court    to   determine     the   admissibility    of   expert   testimony   regarding

eyewitness identifications.         After careful review, we affirm Appellant’s


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S15003-16



judgment of sentence in part, and remand for a hearing in accordance with

Walker.

      The trial court set forth the facts of this case, as follows:

            On February 27, 2007, Philadelphia police officers (Officer
      Sean Devlin and Officer Joseph Domico) set up undercover
      surveillance to monitor illegal narcotics sales at 151 West Apsley
      Street. Their main objective was to investigate [] [A]ppellant,
      who was suspected of selling narcotics from this address. Both
      plain clothes officers were part of the Narcotics Strike Force at
      the time and monitored the location from an unmarked blue
      Dodge Caravan minivan. The minivan was across the street from
      151 West Apsley 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[.] Devlin hid in
      the van in this area directly behind the front passenger seat.
      Domico hid in the back of the van[.]

             The officers observed [] [A]ppellant engage in two drug
      sales. They watched as several unidentified people handed []
      [A]ppellant money. After receiving the money, [] [A]ppellant
      went inside of 151 West Apsley Street, exited several minutes
      later, and gave the unidentified people small objects. Based on
      these observations, Devlin contacted the backup officers and
      gave them a description of [] [A]ppellant. The police did not
      arrest these individuals.

            Shortly after [] [A]ppellant interacted with the individuals,
      [] [A]ppellant walked across the street and approached the
      minivan. [] [A]ppellant looked into the driver's side front window
      and said, "I see you hiding in there pussy. Oh, you want to
      bang?" Devlin saw [] [A]ppellant pull a gun from his pants, aim
      the gun at Devlin and fire it. Devlin pulled out his weapon and
      returned fire. [] [A]ppellant then ran from the crime scene
      towards 151 West Apsley Street. Officer McCabe found the gun
      in a yard behind 135 Apsley Street. On February 28, 2007,
      Domico identified [] [A]ppellant in a photo array. On June 21,
      2007, Delvin identified [] [A]ppellant in an in person lineup.

Trial Court Opinion (TCO), 7/10/15, at 4-5 (footnote and internal citations to

the record omitted).


                                      -2-
J-S15003-16



        Appellant was arrested and proceeded to a jury trial in October of

2008.     At the close thereof, he was convicted of attempted murder,

aggravated assault, possession of a firearm by a person prohibited, carrying

a firearm without a license, carrying a firearm in public in Philadelphia, and

possessing an instrument of crime (PIC). On January 16, 2008, Appellant

was sentenced to an aggregate term of 17 to 34 years’ incarceration,

followed by 3 years’ probation.     Appellant filed a timely post-sentence

motion, which was denied.

        Appellant then filed a timely notice of appeal with this Court, but

thereafter, his counsel failed to file a brief on his behalf. Consequently, we

dismissed Appellant’s appeal. Appellant later filed a timely, pro se petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,

seeking the restoration of his direct appeal rights. The PCRA court granted

that petition and reinstated Appellant’s direct appeal rights on February 18,

2015.

        Appellant filed the present appeal on March 3, 2015.    He thereafter

timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

statement, raising a plethora of issues. See TCO at 2-3 (setting forth the

twelve issues Appellant presented in his Rule 1925(b) statement). Herein,

however, Appellant presents only the following three issues for our review:

        I. Was the evidence insufficient to convict [A]ppellant of
        attempted murder when the Commonwealth did not establish
        beyond a reasonable doubt the mens rea for the offense?



                                    -3-
J-S15003-16


      II. Did the trial court err in precluding trial defense counsel from
      arguing the specific and inherent weaknesses of cross-racial
      identification to the jury and from precluding the defense from
      presenting an expert witness in regard to cross-racial
      identification, or holding a hearing to determine if this evidence
      was admissible where the eye-witnesses were white and
      [Appellant is] an African America[n]?

      III. Is [A]ppellant entitled to a new sentenc[ing] hearing when
      the trial court imposed a sentence which was outside the
      sentenc[ing] guidelines and the record indicates that the trial
      court was partial toward the victim/complainant?

Appellant’s Brief at 2.

      Initially, Appellant challenges the sufficiency of the evidence to support

his attempted murder conviction.

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      In Commonwealth v. Jackson, 955 A.2d 441 (Pa. Super), a case

addressing the sufficiency of the evidence to prove attempted murder, this

Court stated:

      Under the Crimes Code, “[a] person commits an attempt when
      with intent to commit a specific crime, he does any act which
      constitutes a substantial step towards the commission of the
      crime.” 18 Pa.C.S.A. § 901(a). “A person may be convicted of
      attempted murder ‘if he takes a substantial step toward the
      commission of a killing, with the specific intent in mind to

                                     -4-
J-S15003-16


      commit such an act.’” Commonwealth v. Dale, 836 A.2d 150,
      152 (Pa. Super. 2003) (citation omitted). See 18 Pa.C.S.A. §§
      901, 2502. “The substantial step test broadens the scope of
      attempt liability by concentrating on the acts the defendant has
      done and does not any longer focus on the acts remaining to be
      done     before   the   actual   commission    of   the  crime.”
      Commonwealth v. Gilliam, 273 Pa. Super. 586, 417 A.2d
      1203, 1205 (1980). “The mens rea required for first-degree
      murder, specific intent to kill, may be established solely from
      circumstantial evidence.” Commonwealth v. Schoff, 911 A.2d
      147, 160 (Pa. Super. 2006). “[T]he law permits the fact finder
      to infer that one intends the natural and probable consequences
      of his acts [.]” Commonwealth v. Gease, 548 Pa. 165, 696
      A.2d 130, 133 (1997).

Jackson, 955 A.2d at 444.

      Here, Appellant was convicted of the attempted murder of Officer

Devlin.   He maintains that the evidence was insufficient to support this

conviction because the Commonwealth failed to prove that he intended to

kill the officer. According to Appellant, the evidence only demonstrated that

he “was attempting to get away from the [officer], not to harm him, by

scaring him and running away.” Appellant’s Brief at 9.

      The record completely belies Appellant’s claim. Officer Devlin testified

that he was lying in the back of the surveillance van when Appellant “came

right up on our vehicle and looked into … the driver’s side front window right

… on the door.”     N.T. Trial, 10/14/08, at 11.     The officer stated that

Appellant “came right up on the door frame” and said, “I see you hiding in

there, pussy,” and “Oh, you want to bang.” Id. at 12. Then, the officer saw

Appellant pull out a gun “and fire[] it point blank into [the] surveillance




                                    -5-
J-S15003-16



vehicle.” Id. Officer Devlin testified that, “[t]he window blew out and glass

fell. I saw his muzzle flash and it was deafening, the sound.” Id.

      Officer Devlin’s testimony established that Appellant approached the

officer’s vehicle, made comments indicating that he saw Officer Devlin

crouched inside, and then fired his gun at point blank range into the vehicle.

Officer Devlin’s death would have been a natural and probable consequence

of Appellant’s conduct, thus adequately demonstrating that he possessed the

intent to kill.    See Jackson, 955 A.2d at 444 (citation omitted).

Consequently, Appellant’s challenge to the sufficiency of the evidence to

support his attempted murder conviction is meritless.

      Next, Appellant contends that, under our Supreme Court’s recent

decision in Walker, he is entitled to a hearing to determine the admissibility

of expert testimony regarding the reliability of eyewitness identification. Our

Court has discussed the implications of Walker, as follows:

      For over twenty years, Pennsylvania case law placed a per se
      ban on expert testimony regarding the reliability of eyewitness
      identification, holding that such testimony would “intrude upon
      the jury's basic function of deciding credibility.” See
      Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1182
      (1993); Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d
      621, 631 (1995). Recently, our Supreme Court in Walker
      reversed course, holding that “the admission of expert testimony
      regarding eyewitness identification is no longer per se
      impermissible in our Commonwealth[.]” See Walker, 92 A.3d at
      792–93. In so doing, the Walker Court joined the trend among
      state and federal courts to permit testimony regarding the
      fallibility of eyewitness identification in light of “advances in
      scientific study ... that eyewitnesses are apt to erroneously
      identify a person as the perpetrator of a crime when certain
      factors are present.” Id. at 782–83.


                                     -6-
J-S15003-16


     The Supreme Court indicated that “such expert testimony would
     be limited to certain cases[,]” and trial courts must exercise their
     traditional role in determining the admissibility of expert
     testimony, including pursuant to Rules 401, 403, and 702 of the
     Pennsylvania Rules of Evidence. Id. at 787, 789–91. In
     particular, the Walker Court explained:

        We now allow for the possibility that such expert testimony
        on the limited issue of eyewitness identification as raised in
        this appeal 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. Of
        course, the question of the admission of expert testimony
        turns not only on the state of the science proffered and its
        relevance in a particular case, but on whether the
        testimony will assist the jury. 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. If the trial court finds
        that the testimony satisfies Frye,[2] the inquiry does not
        end. 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. The proof should establish the
        presence of factors (e.g., stress or differences in race, as
        between the eyewitness and the defendant) which may be
        shown to impair the accuracy of eyewitness identification
        in aspects which are (or to a degree which is) beyond the
        common understanding of laypersons.
           2
             The Frye test is an evidentiary test, which is used
           “when a party wishes to introduce novel scientific
           evidence obtained from the conclusions of an expert
           scientific witness.” Frye v. United States, 293 F.
           1013 (D.C. Cir. 1923); see Commonwealth v.
           Harrell, 65 A.3d 420, 429 (Pa. Super. 2013).




                                     -7-
J-S15003-16




       Id. at 792 (footnote added).

Commonwealth v. Selenski, 117 A.3d 1283, 1284-85 (Pa. Super 2015).

       Here, at trial, Appellant moved to introduce expert testimony

regarding the reliability of cross-racial identifications, but the court denied

the motion, ruling that such evidence was per se inadmissible under the case

law in effect at that time.1 See Spence, 627 A.2d at 1182; Simmons, 662

A.2d at 631. However, Walker overruled that per se ban, and requires the

trial court to undertake a case-by-case assessment of whether expert

testimony regarding eyewitness identifications is admissible.         Because

Appellant is currently on direct appeal from his judgment of sentence,

Walker applies retroactively to Appellant’s case. See Commonwealth v.

Cabeza, 469 A.2d 146, 148 (Pa. 1983) (holding “that where an appellate

decision overrules prior law and announces a new principle, unless the

decision specifically declares the ruling to be prospective only, the new rule

is to be applied retroactively to cases where the issue in question is properly

preserved at all stages of adjudication up to and including any direct


____________________________________________


1
  Appellant does not point to where in the record he moved for the
admission of this expert testimony. However, neither the Commonwealth
nor the trial court indicate that Appellant waived the issue. Indeed, both the
Commonwealth and the trial court seem to essentially concede that
Appellant moved to introduce such expert testimony, and that the court
precluded it. See TCO at 5; Commonwealth’s Brief at 13. Thus, we will
consider this issue preserved for our review.




                                           -8-
J-S15003-16



appeal”).2 Accordingly, as we did in Selenski, we are required to “remand

this case to the trial court so that it may perform its traditional gatekeeper

function with regard to the proposed expert testimony….”3       Selenski, 117

A.3d at 1285.

        In sum, we conclude that Appellant’s sufficiency of the evidence claim

is meritless; thus, we affirm his judgment of sentence in that respect.

However, we remand Appellant’s case for the trial court to hold a hearing in

accordance with Walker, limited to the question of whether expert

testimony pertaining to eyewitness identification is admissible in Appellant’s

case.    Because the trial court may ultimately vacate Appellant’s current

judgment of sentence and award him a new trial, we decline to address the

sentencing challenge Appellant presents herein, without prejudice to his

right to reassert that claim on appeal following remand.



____________________________________________


2
   The trial court concludes that Walker does not apply because that
“decision did not become law until 2014, six years after this court’s decision
on the issue.” TCO at 5. The court reasons that “[t]he governing law during
[] [A]ppellant’s trial was that expert eyewitness identification testimony was
per se inadmissible.” Id. (citation omitted). However, in Selenski, the
defendant’s trial occurred in 2009 - just one year after Appellant’s trial - and
yet this Court applied the ruling in Walker to his direct appeal in 2015. See
Selenski, 117 A.3d at 1284-1295. Accordingly, Walker also applies to
Appellant’s case.
3
  We point out that “the Commonwealth does not oppose a remand for the
limited purpose of allowing the trial court to determine whether such
testimony would be appropriate in this case.” Commonwealth’s Brief at 13.



                                           -9-
J-S15003-16



      Judgment of sentence affirmed, in part.     Case remanded for further

proceedings consistent with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




                                    - 10 -
