J-S49044-19

                                   2019 PA Super 363


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAKREE S. BENNETT                         :
                                               :
                       Appellant               :   No. 2310 EDA 2018

        Appeal from the Judgment of Sentence Entered February 9, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003953-2016


BEFORE:      BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                         FILED DECEMBER 23, 2019

        Appellant, Shakree S. Bennett, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia after a jury found him

guilty on charges of involuntary deviate sexual intercourse (“IDSI”), robbery,

and possessing instruments of crime (“PIC”).           Sentenced to an aggregate

sentence of 22 ½ to 45 years’ incarceration, Appellant contends the trial court

violated his right to confront the witnesses against him and erroneously denied

his motion for mistrial. We affirm.

        The trial court opinion sets forth the pertinent facts, as follows:

        On September 28, 2015, at about 11:30 p.m., Philadelphia Police
        Officer Gerard Brennan was on patrol training another officer in
        the area of Temple University, when he received a radio call
        directing him to go to the 1400 block of Carlisle Street to
        investigate reports of a woman screaming and a rape. The officer
        immediately proceeded to that location and encountered S.D., the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     complainant herein, who was in an ambulance being treated by
     emergency medical personnel.

     Officer Brennan received information from the complainant
     concerning what the alleged assailant was wearing and that he
     was armed with a silver gun, which the officer put out over police
     radio. The complainant described the assailant as being a black
     male, in his twenties, about six feet tall and wearing a green jacket
     or vest, blue jeans, and a long black t-shirt. She further related
     that the assault occurred about thirty yards from where the officer
     encountered her. The officer then had the complainant exit the
     ambulance and took her to the headquarters of the Police
     Department’s Special Victim’s Unit (hereinafter SVU). Officer
     Brennan left the Unit after the complainant’s parent arrived.

     S.D., a student at Temple University, had spent the night of the
     incident studying at the library, which she left at about 11:00
     p.m., with members of her study group. After stopping to buy a
     cookie, she left her friends at Broad and Cecil B. Avenue and then
     walked alone a half block north to Carlisle Street where her
     apartment was located.

     When S.D. reached Jefferson Street and was crossing it, she heard
     the sound of footsteps on Jefferson Street going west from Broad
     Street. She turned around at which time a black male grabbed
     her and hit her on the arm with a small silver hand gun. The male
     then [directed] her to a desolate area. She screamed, but the
     male, who still was brandishing the gun told her to be quiet.

     The male then rifled through her backpack and wallet, and after
     taking some items from it including her cell phone, he told S.D. to
     take off her clothes. She did as ordered and the male put on a
     condom and anally raped her.fn




           Fn. Video surveillance cameras at various locations
           recorded S.D. as she proceeded toward her
           apartment.


     S.D. cried while this was occurring and the male ordered [her] to
     stop and moan. After about seven or eight minutes, the assailant
     stopped anally raping S.D. and pulled up his pants. After S.D. put

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     her clothes back on, the assailant ordered her to go in a direction
     toward her apartment and he went down Jefferson Street. S.D.
     indicated that the male was wearing jeans, a hat and a “greyish-
     green jacket-vest thing.”     S.D. entered her apartment and
     directed one of her roommates to call the police. Officer Brennan
     arrived shortly thereafter and took her to the S.V.U.

     Once at the S.V.U., S.D. was examined by a nurse and a Rape Kit
     was prepared after which she gave Detective Kimberly Organ a
     statement. Detective Organ then drove S.D. back to Temple
     University and had her repeat the route she walked home from
     the library and the location where the rape occurred. Two days
     thereafter, detectives came to her apartment and showed her still
     photographs produced from video recordings taken the night of
     the incident for the purpose of ascertaining whether she could
     identify [her assailant from the video and photographs]. Upon
     viewing the videos, S.D. positively identified a male depicted in
     them as the person who sexually assaulted her. S.D. identified
     him by his physical features and the clothing he was wearing.fn




           Fn. After identifying Appellant in the photograph, S.D.
           told her mother that she was positive that Appellant
           was the person who assaulted her.


     On October 9, 2015, S.D. took part in a photographic identification
     session.    Upon reviewing the photographs, she selected a
     photograph of Appellant because the photograph of him that she
     saw most resembled her assailant because the facial hair and
     complexion was right. When she selected the photograph she said
     that she was not one hundred percent sure and wanted to look at
     additional photographs. She did not change her mind or select
     another photograph upon reviewing additional photos, and
     thereafter positively and with certainty identified Appellant at his
     preliminary hearing and during trial before [the trial] court as the
     person who raped her.

     Dr. Ralph Riviello, a professor of emergency medicine at Drexel
     University, and an affiliate of Philadelphia Sexual Assault
     Response Center, reviewed medical records pertaining to the
     examination of S.D. the night of the incident that was performed
     by Nurse Jenika Miles. The examination of S.D. consisted of an

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     interview concerning the incident, a physical examination, and the
     collection of biological materials from her body, which are then
     turned over to the police for further examination and testing. The
     physical examination of S.D. revealed that she suffered redness
     on her right buttock, a bruise to her left upper arm, and
     tenderness to the touch in the area of her anus.

     Mr. John Haggerty, a Temple student at the time of the incident
     herein, was walking down Carlisle Street at about the time of the
     incident when he saw a man and a woman next to a dumpster
     against the wall. Both persons were facing the wall. At the time,
     he thought that the persons were engaged in a consensual act.

     The next day, upon learning of the incident herein, Mr. Haggerty
     spoke to the police and said he got a side view of the male. He
     described the male he had seen the previous evening by the
     dumpster as African American, with a goatee who was wearing a
     hat or had close cropped hair, and a big jacket. A couple days
     later Mr. Haggerty also looked at photographs developed from a
     video recording and identified a person depicted therein, who was
     Appellant, as the male he saw by the dumpster based on the
     jacket that the person was wearing and the person’s face.

     Mr. Benjamin Mallow, a parole officer with the Commonwealth of
     Pennsylvania who, as a parole officer, supervised Appellant, saw
     one of the video[] recordings taken by security cameras in the
     area where the incident herein occurred. Upon watching the
     video, which was broadcast on local television stations following
     the rape of S.D., Mr. Mallow identified Appellant, who he saw once
     a month over an eight month period when he was supervising him.
     Mr. Mallow contacted the police and gave them a statement. The
     police also had him review photographs depicting Appellant
     developed from one of the video recordings recovered by police
     taken on the night of the incident and told the police that they
     depicted Appellant.

     United States Marshall Pedro Alvarez, who supervised and
     oversaw fugitive and criminal investigations in New Jersey,
     commenced an investigation involving Appellant after being
     requested to do so by the Philadelphia S.V.U. and because of a
     parole violation. On October 7, 2015, Marshall Alvarez and
     members of his team went to a residence in Newark, New Jersey,
     where they encountered Shaheed Bennett, Appellant’s brother,
     who appear[ed] to hesitate when asked if he knew where

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     Appellant might be located. While knocking on the front door the
     authorities heard someone stumbling and the sound of footsteps
     inside the residence. As a result thereof, they asked Mr. Bennett
     if they could search the residence for Appellant and he consented.
     On the third floor of the residence police found Appellant hiding
     under a bed. He refused to come out from under the bed and
     although he began kicking and punching, he was eventually
     apprehended. Incident to his apprehension, police seized a cell
     phone, a puffy purple jacket, a blue hooded sweatshirt, and a
     black hat. These items were turned over to the Philadelphia Police
     Department.

     Philadelphia Police Detective Edward Enriquez of the SVU was
     assigned to investigate the rape of S.D. Upon being assigned, he
     collected video recordings made by various surveillance cameras
     situated on Temple University’s campus and the route S.D. took
     to her residence. One of the recordings depicted S.D. running into
     her apartment at about 11:43 p.m., and a male fitting the flash
     information broadcast by Officer Brennan on other videos
     recorded at various locations on the campus and near the scene
     of the rape. The last time that individual is depicted on a video is
     11:43, at 15th and Jefferson Streets, a location a half block from
     Carlisle Street.

     These videos showed S.D. on the campus proceeding down
     Carlisle Street from Cecil B. Moore Avenue. He then walked South
     on Broad Street to Jefferson Street where he went westbound. He
     is next seen on a video at 11:43 p.m., at 15th and Jefferson
     Streets. Police developed still photographs depicting Appellant
     from these videos, which Detective Enriquez released for public
     broadcast. [As noted, supra, Parole Officer Mallow] thereafter
     informed police that he could identify the person in the
     photographs after which S.D. was asked to participate in a photo
     identification session. In another video taken on September 21,
     2015, Appellant was observed purchasing the jacket he was
     wearing in the other videos recorded the night of the incident.

     Detective Enriquez received the items recovered by Marshall
     Alvarez and placed them on a property receipt. He also obtained
     a search warrant for Appellant’s cell phone but it could not be
     accessed because police did not have its password.[]

     Natisha Bush, a witness for the defense, testified that she resided
     in the 1400 block of North 15th Street and that Appellant was her

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J-S49044-19


      fiance’. She stated she gave Appellant money from the jacket he
      was observed purchasing in the [above-referenced] video. She
      added that the jacket was missing its lining and that Appellant left
      the residence they shared in the morning wearing the clothes he
      had on in the videos. Further, she remarked that he did not take
      a change of clothing with him when he left in the morning of the
      day the incident occurred. Finally, she indicated that he usually
      returned home from work between 9:00 p.m. and 12:00 a.m.

Trial Court Opinion, 10/29/18, at 1-7.

      Appellant presents the following questions for our consideration:

      1. Did the lower court violate Appellant’s rights to confront the
         witnesses against him when it allowed the Commonwealth to
         substitute Dr. Riviello for Jenika Miles at the last minute and
         allowed Dr. Riviello to introduce testimonial evidence against
         Appellant of which the doctor had no personal knowledge?

      2. Did the lower court err in denying Appellant’s request for a
         mistrial when the jury indicated that it had reached a verdict
         on one charge, but the lower court did not take the verdict or
         in any way preserve it?

Appellant’s brief, at 4.

      In Appellant’s first issue, he claims that the trial court violated his

constitutional right to confront the witnesses against him when it allowed a

doctor to relate to the jury a written report prepared by a nurse who, alone,

conducted a post-assault interview and examination of S.D. and recorded

S.D.’s description of her rapist. We disagree.

      Initially, we set forth our standard of review:

      An appellate court's standard of review of a trial court's
      evidentiary rulings which include rulings on the admission of
      hearsay is abuse of discretion. [ ] Walter, ...93 A.3d [at] 449 ...
      citing Commonwealth v. Delbridge, 578 Pa. 641, 653 n.8, 855
      A.2d 27, 34 n.8 (2003). However, whether a defendant has been
      denied his right to confront a witness under the Confrontation
      Clause of the Sixth Amendment to the United States Constitution,

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      made applicable to the States via the Fourteenth Amendment,
      Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13
      L.Ed.2d 923 (1965), is a question of law, for which our standard
      of review is de novo and our scope of review is plenary.
      Commonwealth v. Yohe, 621 Pa. 527, 542–45, 79 A.3d 520,
      530–531 (2013) citing Commonwealth v. Cannon, 610 Pa. 494,
      22 A.3d 210 (2011).

In re N.C., 105 A.3d 1199, 1210 (Pa. 2014).

      In a trial that hinged solely upon identification, Appellant maintains, it

was reversible error to allow the doctor to read into the record S.D.’s

description of her assailant because it deprived Appellant the opportunity to

ask the nurse whether S.D. displayed any equivocation or uncertainty when

offering her description. The Commonwealth counters that it was S.D., and

not the nurse, who made the statements at issue, and S.D. testified under

both direct examination and cross-examination at trial. Therefore, Appellant

had the opportunity to confront his accuser about not only her certitude in the

description she gave to the nurse but also moments of indecision she

experienced while identifying Appellant from the photo array.

      Notably, Appellant relies on decisional law pertaining to a defendant’s

Confrontation Clause rights against testimonial hearsay arising from the

reading of an expert forensic report prepared by an out-of-court declarant.

See Appellant’s brief, at 12-14 (discussing, e.g., Williams v. Illinois, 567

U.S. ----, 132 S.Ct. 2221 (2012), Bullcoming v. New Mexico, 564 U.S. 647

(2011), Melendez-Diaz v. Massachusetts, 557 US 305 (2009)). We find

such jurisprudence, however, inapposite to the specific argument he has

developed, which focuses not on the physical examination or any medical


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opinion deriving therefrom, but on only the description S.D. gave of her

assailant during the interview.     1


       Indeed, Appellant points to no aspect of the doctor’s testimony where

he attempted to stand in the nurse’s stead and frame, or provide a broader

medical context to, S.D.’s description of her assailant. Nor does Appellant

maintain that the doctor read the nurse’s impressions or professional

assessment of S.D.’s statement. Appellant’s argument posits only that the

court should not have permitted the doctor to read to the jury the report’s

recordation of S.D.’s description of her assailant.

       Therefore, we find Appellant’s Confrontation Clause concerns to be

without merit, as it is axiomatic that the Confrontation Clause does not apply


____________________________________________


1Indeed, following Appellant’s review of cases concerning the application of
Confrontation Clause rights to testimony regarding forensic examinations, he
admits the defense theory turned not on the forensic examination but, instead,
on identification evidence offered at trial:

       The trial was over identification, not the crime itself; no one
       attempted to cast doubt on S.D.’s claim that she was sexually
       assaulted. The defense was simply that Appellant was not the
       culprit. . . . Just as the Commonwealth had to call as a witness
       Detective Kimberly Boston to testify regarding the identification
       procedure she did with S.D. . . . likewise the Commonwealth
       needed to call Ms. Miles to give Appellant the opportunity to cross-
       examine regarding S.D.’s description.

Appellant’s brief, at 16-17. Nowhere in Appellant’s argument does he
maintain that the nurse’s expert or forensic assessment of S.D.’s statement
was read into the record in contravention of his right to cross-examine the
nurse on such impressions and conclusions.



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J-S49044-19



where the out-of-court declarant is available for cross-examination in court.

Commonwealth v. Barnett, 50 A.3d 176, 189 n.6 (Pa.Super. 2012). S.D.

was the declarant in question, and she was available for cross-examination at

trial.

         In Appellant’s remaining issue, he argues that the trial court erred when

it denied his request for a mistrial after a juror, whom the court excused during

deliberations, and the court crier noted that the jury had reached a verdict on

one charge but not on the others. By neither recording the partial verdict nor

making any inquiry into it prior to empaneling an alternate juror and starting

deliberations anew, Appellant submits, the court subjected him to double

jeopardy and denied him his right to a trial by jury.

         The record shows, however, that prior to the dismissal of the original

juror and the seating of the alternate juror, the remaining members of the

jury had notified the court, through the court crier, that they no longer agreed

on a verdict to any charge. N.T. at 11/17/17, at 30.           As such, the court

excused the original juror, assigned the alternate juror, and instructed the

jury to recommence its deliberations. N.T. at 33-35.

         The trial court summarizes the relevant events, as follows:

         This claim stems from events after the jury commenced
         deliberations. One of the jurors had been advised when she was
         first selected as a juror that the trial would end and her jury
         service would be finished in time for her to take her vacation.
         However, because of delays beyond the control of the court, the
         trial went longer than anticipated, thereby jeopardizing the juror’s
         vacation and, therefore, the juror had to be released and an
         alternate seated in her place. N.T. at 15-16.


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      To compound matters, before the juror could be relieved and
      replaced, the court crier advised that the jury, as originally
      constituted, had reached a verdict on one of the charges. N.T. at
      18. A discussion then ensued involving the court and the
      attorneys concerning a possible solution to the problem including,
      taking the partial verdict from the original jury and then direct the
      reconstituted jury deliberate on the remaining charges, seal the
      partial verdict and announce it after the reconstituted jury reached
      a verdict on the remaining two charges, or have the reconstituted
      jury start deliberations anew on all three charges. N.T. at 18-29.

      Before adopting one of these options, the court crier indicated that
      the original jury had not, in fact, reached a verdict on one of the
      charges and that the original jury was again deliberating. N.T. at
      30. Upon being so informed, this court excused the original juror,
      replaced her with the alternate, and directed the reconstituted
      jury to continue deliberations after giving it instructions. N.T. at
      30-35. After all of this occurred, defense counsel lodged a general
      objection, which this court denied altogether with an earlier
      motion for a mistrial. N.T. at 32-33.

Trial Court Opinion, at 14-15.

      Our standard of review of a court's denial of a motion for mistrial is as

follows:

      A motion for a mistrial is within the discretion of the trial court. A
      mistrial upon motion of one of the parties is required only when
      an incident is of such a nature that its unavoidable effect is to
      deprive the appellant of a fair and impartial trial. It is within the
      trial court's discretion to determine whether a defendant was
      prejudiced by the incident that is the basis of a motion for a
      mistrial. On appeal, our standard of review is whether the trial
      court abused that discretion.

Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa.Super. 2015)(quoting

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa.Super. 2014)).

      Appellant fails to make the requisite demonstration of prejudice from

the record, as it is clear that the jury informed the court that it had not reached


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a verdict as to any charge prior to the release of the original juror and seating

of the alternate juror.    With its factual predicate thus belied, we deem

Appellant’s claim meritless.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/19




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