J-A08007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 AMIRAE JAMAL BENTON                      :
                                          :
                    Appellant             :   No. 1884 WDA 2017

            Appeal from the Judgment of Sentence July 19, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0004219-2016


BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, P.J.:                      FILED OCTOBER 22, 2019

      Amirae Jamal Benton appeals from the judgment of sentence imposed

following his jury trial conviction of first-degree murder, carrying a firearm

without a license, conspiracy, and robbery. On appeal, Appellant claims the

court erred when it denied his motion for a new trial after a witness recanted,

erred in admitting his out of court statement that he had committed other

robberies, and precluding the former testimony of an unavailable co-

defendant. Finally, Appellant claims that his mandatory life sentence is against

the principle of Miller v. Alabama, 567 U.S. 460 (2012). We affirm.

      On October 10, 2015, Appellant, his co-defendant Lucas Guggenheimer,

and the victim, Justin Granda, took a cab to the Turtle Creek section of

Pittsburgh to buy marijuana from Sean Speiber, an associate of Granda’s.

Upon arriving at the Speiber residence, Guggenheimer and Granda went

inside. Appellant remained in the cab with the driver, who, at Guggenheimer’s
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direction, drove Appellant around the area awaiting Guggenheimer and

Granda’s return.

      While in the Speiber residence, Guggenheimer pulled a gun on Speiber

in an attempt to rob him during the drug deal. A fight ensued, during which

Guggenheimer shot Speiber’s brother in the leg. Guggenheimer and Granda

then left the residence with neither the marijuana nor the money they had

brought to pay for it.

      After Guggenheimer and Granda returned to the cab, they appeared

hurried and out of breath. Guggenheimer instructed the cab driver to drive

them to Arlington, and while en route, Granda complained about having lost

his cell phone at the Speiber residence. When they reached Arlington, all three

men exited the cab near Choung’s Market on the 2200 block of Arlington

Avenue. Cell phone location data corroborated Appellant’s location throughout

the evening, and placed him in the Arlington area shortly after midnight on

October 11, 2015.

      At 12:20 a.m., Luis Rodriguez heard screaming from outside his house

at 2228 Arlington Avenue. He looked out of his bedroom window, and saw two

men chasing another man down the street, firing guns at him. Mr. Rodriguez

saw the man being chased fall down, and one of the men then run up to him

and shoot five times.

      Police arrived on the scene soon thereafter and found Granda deceased

on the sidewalk, having been shot eight times. Investigators found shell




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casings from 9 mm and .32 caliber bullets at the scene, and later recovered 9

mm and .32 caliber bullets from Granda’s body.

       Shortly after the shooting, police officers encountered Appellant less

than one-half mile away from where they found Granda’s body. Appellant told

the officers that his car had broken down. When later confronted with

surveillance video, Appellant admitted that he, Guggenheimer, and Granda

had walked together toward where Granda was killed. Appellant was arrested

and charged with having killed Granda.

       During Appellant’s jury trial, William Jackson, an inmate in jail with

Appellant, testified against him.1 Jackson testified that Appellant told him that

he and two other people went on a robbery, that they were seen on

surveillance video, and that they shot somebody with two different caliber

weapons. See N.T. Trial, 4/25/17, at 23. Appellant told him that he did not

think the cab driver could identify him by just his eyes. See id. at 30.

Appellant also told Jackson that he and Guggenheimer “used to rob people”

together. Id. at 32.

       Co-defendant Guggenheimer invoked his right not to testify at

Appellant’s trial. Appellant consequently sought to admit Guggenheimer’s

testimony from Guggenheimer’s own earlier trial as former testimony of an


____________________________________________


1 The trial court denied Appellant’s motion to suppress Jackson’s testimony,
and denied the motion to preclude statements about prior bad acts such as
the robberies.



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unavailable witness.2 The trial court denied Appellant’s motion, ruling that the

Commonwealth did not have a similar motive when it cross-examined

Guggenheimer. See N.T. Trial, 4/26/17, at 15-16.

       At the conclusion of trial, the jury found Appellant guilty of murder of

the first-degree, carrying a firearm without a license, robbery, and conspiracy.

On July 19, 2017, the trial court sentenced Appellant to a mandatory life-

sentence without the possibility of parole for the first-degree murder

conviction, and imposed a consecutive sentence of not less than three and

one-half, nor more than seven years of incarceration for carrying a firearm

without a license. The court did not impose a sentence at the remaining

counts.

       Appellant filed a timely post-sentence motion seeking a new trial based

on after discovered evidence—a letter he received from Jackson recanting his

trial testimony. During a hearing on the motion for a new trial, Jackson

invoked his right not to testify. Supervisory Special Agent Gary Tallent, from

the Pennsylvania Office of the Attorney General, also testified at the hearing.

He stated that Jackson had called him and apologized for having written the

letter and said that what he wrote in it was not true. See N.T. Hearing,

11/30/17, at 11. Following argument, the court denied Appellant’s motion,

explaining that it did not find anything in the letter to warrant a new trial,

____________________________________________


2 Appellant and his co-defendant, Guggenheimer, were tried separately.
Guggenheimer was convicted of third degree murder and related offenses
prior to Appellant’s trial.

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given that Jackson’s credibility was already at issue when he testified, and he

did not testify about the letter at the post-sentence motion hearing. This

timely appeal followed.

         Appellant raises four issues on appeal.

    I.      [Whether] the court err[ed] by failing to award a new trial
            based on after-discovered evidence of recantation from the
            Commonwealth’s key witness, and did this error result in
            Appellant’s being denied due process and a fair trial?

   II.      [Whether] due process and the right to a fair trial [were]
            violated when the court allowed evidence of prior bad acts
            without contemporaneous limiting jury instructions and where
            the prosecutor argued to the jury in closing that said evidence
            showed Appellant to be a “career criminal[?]”

  III.      [Whether] due process and the right to a fair trial [were] denied
            by the court’s refusal to admit into evidence the unavailable
            codefendant’s former testimony from his own trial which
            exculpated Appellant?

   IV.      [Whether] the court err[ed] in sentencing Appellant to a
            mandatory sentence of life without parole on his conviction for
            a crime committed when he was only eighteen years, two
            months of age, in violation of the scientific consensus,
            constitutional analysis and foundational principles of Miller v.
            Alabama?

Appellant’s Brief, at xi.

         Appellant first claims that the trial court erred when it denied his motion

for a new trial. We review a trial court’s decision to deny a new trial based on

after-discovered evidence for “an abuse of discretion or an error of law which

controlled the outcome of the case.” Commonwealth v. Woeber, 174 A.3d

1096, 1108 (Pa. Super. 2017) (citation and internal quotation mark omitted).

         To obtain a new trial based on after-discovered evidence, the
         defendant must prove, by a preponderance of the evidence, that

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      the evidence: (1) could not have been obtained before the
      conclusion of trial by the exercise of reasonable diligence; (2) is
      not merely corroborative or cumulative; (3) will not be used solely
      to impeach a witness’s credibility; and (4) would likely result in a
      different verdict.

Commonwealth v. Murray, 174 A.3d 1147, 1153 (Pa. Super. 2017)

(citations omitted). Notably, it is the defendant’s burden to prove that the

evidence warrants a new trial, and he must do so by a preponderance of the

evidence.

      Here, Appellant claims that the letter written by Jackson, recanting his

testimony, constitutes after-discovered evidence and provides the basis for

granting a new trial. The letter could not have been obtained prior to the close

of trial because it was written after the jury rendered the verdict. Appellant

argues that because the letter is a complete retraction of testimony, it would

be neither cumulative, nor used solely to impeach Jackson. Furthermore, he

claims that evidence of Jackson’s recantation would likely result in a different

verdict because Jackson was the only witness who testified that Appellant was

involved in the robbery and shooting. See Appellant’s Brief, at 24-38. We

disagree.

      In assessing the credibility of after-discovered evidence, the trial court

must discern “whether the nature and quality of the evidence is such that

there is a reasonable probability that the jury would have credited it and

rendered a more favorable verdict.” Commonwealth v. Johnson, 966 A.2d

523, 542 (Pa. 2009). “It is well-settled recantation evidence is notoriously

unreliable, and where it involves an admission of perjury, it is the least reliable


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source of proof.” Commonwealth v. Hannibal, 156 A.3d 197, 222 (Pa.

2016) (citations omitted).

      Here, the trial court explained:

      In this [c]ourt’s view, Jackson authored the letter out of anger and
      not because the information contained in it was truthful. Jackson
      never ratified the substance of the letter. On the contrary, he
      advised Detective Tallent that the contents of the letter were false.
      There is no basis in the evidentiary record for this [c]ourt to find
      that credible after-discovered evidence established that Jackson
      recanted his testimony. Accordingly, no relief is warranted on this
      basis.

Trial Court Opinion, 7/18/18, at 18.

      Upon review, we conclude that the trial court neither abused its

discretion nor committed an error of law when it determined that the

recantation evidence of Jackson’s letter lacked credibility. Detective Tallent

testified that Appellant told him the letter was false, and Jackson refused to

testify concerning his letter at the post-sentence motion hearing, either to

confirm or deny the validity of the letter. Accordingly, the trial court did not

err in finding that Appellant had not proven, by a preponderance of the

evidence, that the letter would likely result in a different verdict. See Murray,

174 A.3d at 1153. Appellant’s first issue does not merit relief.

      In his second issue, Appellant claims that the trial court erred when it

denied his motion to suppress evidence of other robberies. Our scope and

standard of review concerning the admission of evidence of a prior bad act by

the defendant is well settled.

           The admission of evidence is a matter vested within the
      sound discretion of the trial court, and such a decision shall be

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      reversed only upon a showing that the trial court abused its
      discretion. In determining whether evidence should be admitted,
      the trial court must weigh the relevant and probative value of the
      evidence against the prejudicial impact of that evidence. Evidence
      is relevant if it logically tends to establish a material fact in the
      case or tends to support a reasonable inference regarding a
      material fact. Although a court may find that evidence is relevant,
      the court may nevertheless conclude that such evidence is
      inadmissible on account of its prejudicial impact.

             Evidence of prior bad acts committed by a defendant is not
      admissible solely to show the defendant’s bad character or his
      propensity for committing bad acts. However, evidence of prior
      bad acts is admissible where there is a legitimate reason for the
      evidence, such as to establish: 1) motive; 2) intent; 3) absence
      of mistake or accident; 4) a common scheme or plan; and 5)
      identity. The evidence may also be admissible to impeach the
      credibility of a testifying defendant; to show that the defendant
      has used the prior bad acts to threaten the victim; and in
      situations where the bad acts were part of a chain or sequence of
      events that formed the history of the case and were part of its
      natural development.

Commonwealth v. Page, 965 A.2d 1212, 1219 (Pa. Super. 2009) (citation

and emphasis omitted).

      Appellant claims that the trial court erred when it permitted Jackson to

testify that Appellant told him that he and Guggenheimer “used to rob people.”

N.T. Trial, 4/25/17, at 32; see also Appellant’s Brief, at 39-48. He asserts

that the statement is evidence of prior bad acts, which is inadmissible unless

it falls into a specified exception. He claims that the evidence does not tend

to prove intent because there is no connection between the other robberies

and the Speiber robbery. See Appellant’s Brief, at 41. Finally, Appellant argues

that the probative value of the prior bad acts does not outweigh its unfair

prejudice.



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      To be admissible to show intent or motive, the evidence must give
      sufficient ground to believe that the crime currently being
      considered grew out of or was in any way caused by the prior set
      of facts and circumstances. There must be a logical connection
      between the prior incident and the crime for which the accused is
      being tried. Important factors to be considered in making this
      determination include the proximity in time between the
      incidents; the similarity in the circumstances surrounding the
      incidents; and whether evidence of the prior crime is necessary to
      rebut the accused’s evidence or contention of accident, mistake or
      lack of required intent.

Commonwealth v. Camperson, 612 A.2d 482, 484 (Pa. Super. 1992)

(citations and internal quotation marks omitted).

      Here, the trial court found that the evidence was probative to rebut

Appellant’s claim that he “was merely along for the ride when he accompanied

Guggenheimer to Speiber’s residence.” Trial Ct. Op., 7/18/18, at 16 (internal

quotation marks omitted). The court elaborated that the statement was direct

evidence that Appellant had participated in robberies with Guggenheimer in

the past, and it refuted Appellant’s claim that he was merely present in the

cab and not a participant in the robbery. See id. at 17.

      Upon review, we conclude that the trial court did not abuse its discretion

in admitting Appellant’s statement. The evidence that Appellant and

Guggenheimer had committed robberies together in the past was relevant to

show that Appellant was aware of Guggenheimer’s plan to rob Sean Speiber,

and that his intent in riding around in the cab was to help facilitate the robbery.

Furthermore, we conclude that the probative value of the statement outweighs

its prejudicial effect. See Page, 965 A.2d at 1219. In addition, we note that

the trial court gave a curative instruction concerning the prior bad acts


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evidence, see N.T. Trial, 4/26/17, at 187-88, which the jury is presumed to

have followed. See Commonwealth v. Fletcher, 41 A.3d 892, 896 (Pa.

Super. 2012). Accordingly, Appellant’s second issue does not merit relief.

      In his third issue, Appellant claims that the trial court erred when it

refused to admit the trial testimony of Guggenheimer into evidence during

Appellant’s trial. Appellant argues that Guggenheimer’s testimony at his own

trial met the requirements of Rule 804(b)(1), and should have been admitted

as former testimony. Specifically, he claims that Guggenheimer testified under

oath, and that the prosecutor for the Commonwealth, who tried both cases,

had a similar motive in cross-examining Guggenheimer. See Appellant’s Brief,

at 49-53. We disagree.

      We review a trial court’s evidentiary ruling for an abuse of discretion or

an error of law. See Page, 965 A.2d at 1219. The Pennsylvania Rules of

Evidence bar admission of hearsay evidence, except as specifically provided

by the rules. See Pa.R.E. 802. Rule 804 sets forth the exception to the rule

against hearsay concerning former testimony of an unavailable witness, as

follows:

      (b) The Exceptions. The following are not excluded by the rule
      against hearsay if the declarant is unavailable as a witness:

      (1) Former Testimony. Testimony that:

            (A) was given as a witness at a trial, hearing, or lawful
            deposition, whether given during the current
            proceeding or a different one; and

            (B) is now offered against a party who had—or, in a
            civil case, whose predecessor in interest had—an


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            opportunity and similar motive to develop it by direct,
            cross-, or redirect examination.

Pa.R.E. 804(b)(1).

      “Similar motive to cross-examine is determined by ascertaining the

interests and objectives of the party in the first proceeding.” Commonwealth

v. Colon, 846 A.2d 747, 756 (Pa. Super. 2004) (citation and internal

quotation marks omitted). Accordingly, in order for a first co-defendant’s

testimony from his own trial to be admissible at a later trial of a second co-

defendant, the prosecutor must have an interest in establishing beyond a

reasonable doubt the guilt of the second co-defendant while cross-examining

the first co-defendant at his own trial.

      In the instant case, the trial court found:

      It was clear that the Commonwealth did not have a similar motive
      in each trial to develop the testimony concerning [Appellant’s]
      possession of a firearm. In Guggenheimer’s trial, Guggenheimer
      testified that he did not shoot the victim. He attempted to put his
      gun in the hands of some other person, not the defendant. He
      denied knowing much, if anything, as to how the victim was shot.
      Because        the      Commonwealth’s          motive     during
      Guggenheimer’s trial was to convict Guggenheimer, the
      Commonwealth’s attorneys were not                   focused     on
      [Appellant’s] culpability at all. They had no interest in
      engaging in any cross-examination impacting the guilt of
      [Appellant] in this case. This Court does not believe that the
      testimony of Guggenheimer at Guggenheimer’s trial was
      admissible in this case.

Trial Ct. Op., 7/18/18, at 11 (emphasis added).

      Upon review, we agree that the Commonwealth did not have a similar

motive to cross-examine Guggenheimer. As the trial court aptly noted, in

Guggenheimer’s trial, the Commonwealth’s motive to cross-examine was to


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establish Guggenheimer’s guilt. If Guggenheimer were to testify at Appellant’s

trial, the Commonwealth’s motive would be to establish Appellant’s guilt.

Accordingly, we conclude that the trial court did not abuse its discretion in

concluding   that   the   former   testimony    exception    did   not   apply   to

Guggenheimer’s testimony from his trial. Appellant’s third issue is meritless.

      Finally, in his fourth issue, Appellant claims that his mandatory sentence

of life imprisonment without the possibility of parole is unconstitutional

pursuant to Miller v. Alabama, because he was only a few months older than

eighteen at the time of the shooting. Appellant concedes that Pennsylvania

law holds that Miller does not apply to those over the age of eighteen at the

time their crimes were committed; however, he raises this issue now to

preserve his Miller claim. See Appellant’s Brief at 57-58.

      As Appellant acknowledges, this Court has held that Miller v. Alabama

permits sentencing an individual to a mandatory term of life imprisonment

without the possibility of parole if that individual was at least eighteen years

old at the time of the offense. See Commonwealth v. Montgomery, 181

A.3d 359, 361 (Pa. Super. 2018) (en banc), appeal denied, 190 A.3d 1134

(Pa. 2018); see also Commonwealth v. Lee, 206 A.3d 1, 11 (Pa. Super.

2019) (en banc) (declining to extend Miller v. Alabama to offenders who are

at least eighteen years old at time of offense). We are bound by the prior

decisions of this Court and decline to revisit this issue. Appellant’s fourth issue

does not merit relief.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2019




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