J-S19040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VERNON BENNETT,                            :
                                               :
                       Appellant               :      No. 1133 EDA 2019

        Appeal from the Judgment of Sentence Entered January 7, 2019
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003503-2013

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 12, 2020

        Vernon Bennett (“Bennett”) appeals from the judgment of sentence

imposed following his convictions of theft by unlawful taking and robbery.1

We affirm.

        The trial court summarized the relevant factual and procedural history

as follows:

        On February 25, 2013, at approximately 8:30 p[.]m[.], Tara
        Whitaker (“Whitaker”) was working as a bartender at the
        Commodore Lounge[,] located at 5507 Baltimore Avenue,
        Philadelphia, PA. [Bennett] entered the lounge at approximately
        8:30 p[.]m[.,] and sat near the cash register close to the entrance
        to the bar where the bartenders come in and out of their service
        area. Whitaker testified that after sitting down at the bar,
        [Bennett] gestured [for] her to come to him. Whitaker went over
        to [Bennett] and asked if she could get him something. [Bennett]
        then slightly moved his hand out of his pant pocket and showed
        Whitaker the handle of a black gun, then put it back in his pocket.
        Next, [Bennett] ordered Whitaker to get a brown paper bag,
____________________________________________


1   18 Pa.C.S.A. §§ 3921(a), 3701(a)(1).
J-S19040-20


        empty out the cash register[,] and put the money in the bag.
        Whitaker retrieved a brown paper bag and filled it with money
        from the cash register and gave it to [Bennett].

               [Bennett] then demanded Whitaker hand over another bag
        of money. Whitaker placed a purple Crown Royal whiskey bag
        containing one dollar bills and quarters into the brown paper bag.
        [Bennett] then calmly walked out of the bar. Whitaker whispered
        to a patron that [Bennett] just robbed her. One of the patrons
        left the bar to find [Bennett]. At approximately 9:35 p[.]m[.],
        [Philadelphia Police] Officers [Patrick] Thompson [(“Officer
        Thompson”)] and [Paul] Buzzone [(“Officer Buzzone”)] were
        patrolling the area of 55th and Baltimore Avenue, in close
        proximity to the bar, when they were flagged down by three
        bystanders. After receiving information from the bystanders,
        Officer[] Thompson and [Officer] Buzzone drove down Angora
        Terrace.

              The [o]fficers noticed a male chasing [Bennett] down the
        sidewalk. The male chasing [Bennett] informed [the o]fficers that
        [Bennett] just robbed him. Officers then placed [Bennett] in
        custody. Officer Buzzone found a purple Crown Royal bag with
        money near the street next to a parked vehicle on the path
        [Bennett] took from the bar to the location of being apprehended.

               On September 12, 2018, [Bennett] was found guilty by a
        jury of [t]heft by [u]nlawful [t]aking of [m]ovable [p]roperty and
        [r]obbery. On January 7, 2019, [the trial court] sentenced
        [Bennett] to twenty-five (25) years to life imprisonment for the
        charge of [r]obbery[,] pursuant to [the “three strikes law,” 18
        Pa.C.S.A. § 9714(a)(2),] and [r]obbery. [Bennett filed a post-
        sentence Motion, which the trial court denied on January 25,
        2019.]     No direct appeal was taken.        On March 7, 2019,
        [Bennett’s] trial counsel filed a [Post Conviction Relief Act
        (“PCRA”)2 P]etition raising his own ineffective assistance due to
        his failure to file a direct appeal. On March 25, 2019, th[e trial
        c]ourt granted [Bennett’s] PCRA [P]etition[,] and restored
        [Bennett’s] direct appeal rights[,] nunc pro tunc. The [c]ourt
        appointed new counsel, and allowed new counsel to file a notice
        of appeal within thirty (30) days. Pursuant to t[he trial c]ourt’s
        March 25, 2019 Order, [Bennett] filed a timely counseled Notice
____________________________________________


2   See 42 Pa.C.S.A. §§ 9541-9546.

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      of Appeal on April 9, 2019. On April 22, 2019, th[e trial c]ourt
      ordered [Bennett] to file a [s]tatement of [m]atters [c]omplained
      of on [a]ppeal pursuant to Pa.R.[A.]P. 1925(b) (“1925(b)
      Statement”). [Bennett], through counsel, filed a timely 1925(b)
      Statement on May 13, 2019.

Trial Court Opinion, 6/25/19, at 1-3 (footnote added; footnotes omitted).

      Bennett raises the following issues for our review on appeal:

      1. Whether the verdict was against the weight of the evidence[?]

      2. Whether the verdict was contrary to law[?]

      3. Whether the [trial] court was in error in denying the
      [Pa.R.Crim.P.] 600 Motion[?]

      4. Whether the Commonwealth committed a Brady [v.
      Maryland, 373 U.S. 83 (1963),] violation when it failed to
      produce the police file[?]

Brief for Appellant at 8.

      We will address Bennett’s first two issues together. First, Bennett claims

that the jury’s guilty verdict was against the weight of the evidence. Brief for

Appellant at 13.    Bennett argues that Whitaker’s testimony that Bennett

possessed a gun during the robbery was “so unreliable and contradictory that

any verdict of guilt could only have been arrive[d] at through speculation and

conjecture.” Id. at 14. Specifically, Bennett points to the jury’s acquittal of

the charges related to Bennett’s possession of the firearm as evidence that

Whitaker’s testimony was unreliable. Id. at 13. Bennett claims that no video

or physical evidence exists to demonstrate that he possessed a firearm, and

that no firearm was recovered after the incident. Id. at 14. Though Bennett

concedes that a felony robbery can be committed by placing the victim in fear


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that the actor was concealing a firearm, Bennett argues that Whitaker’s

testimony that she saw a firearm on Bennett’s person is contradicted by other

evidence. Id. at 14-15. Second, Bennett challenges the sufficiency of the

evidence based upon the credibility of the witness. Id. at 15. Bennett argues

that “[a]s indicated [] in the weight of the evidence argument, the

contradictory and unreliable testimony of []Whitaker established that the

verdict was contrary to law on the robbery and theft charges.” Id. at 16.3

         Our standard of review over challenges to the weight of the evidence is

clear:

         [a]ppellate review of a weight claim is a review of the exercise of
         discretion, not of the underlying question of whether the verdict
         is against the weight of the evidence. Because the trial judge has
         had the opportunity to hear and see the evidence presented, an
         appellate court will give the gravest consideration to the findings
         and reasons advanced by the trial judge when reviewing a trial
         court’s determination that the verdict is against the weight of the
         evidence. One of the least assailable reasons for granting or
         denying a new trial is the lower court’s conviction that the verdict
         was or was not against the weight of the evidence and that a new
         trial should be granted in the interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(citation omitted).     With regards to a weight challenge based on witness



____________________________________________


3 Though Bennett characterizes this argument as a challenge to the sufficiency
of the evidence, challenges to the credibility of witness testimony is a
challenge to the weight of the evidence, not its sufficiency.              See
Commonwealth v. Price, 616 A.2d 681, 683 (Pa. Super. 1992) (explaining
that, while a sufficiency challenge asks whether the evidence exists on the
record to sustain the conviction, an argument that the witness’s account is not
credible goes to the weight of the evidence).

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credibility, “our review of the trial court’s decision is extremely limited.

Generally, unless the evidence is so unreliable and/or contradictory as to make

any verdict based thereon pure conjecture, these types of claims are not

cognizable on appellate review.”          Commonwealth v. Rossetti, 863 A.2d

1185, 1191 (Pa. Super. 2004) (citation omitted). In order for an appellant to

prevail on a challenge to the weight of the evidence, “the evidence must be

so tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

       In its Opinion, the trial court addressed Bennett’s challenge to the

weight of the evidence presented against him as follows:4

             [Bennett] claims that the verdict was contrary to law
       because the testimony presented was so contradictory and
       unreliable that the verdict of guilty cannot stand. This argument
       also fails because the testimony in this case was supported by
       video evidence of the robbery, and statements that [Bennett]
       made on his recorded prison phone calls. At trial, the jury
       observed a video of [Bennett] committing the robbery, listened to
       a prison phone call made by [Bennett,] and heard testimony from
       [Whitaker] and police officers.

             Based on the cumulative evidence, the jury determined that
       [Bennett] was guilty of [t]heft by [u]nlawful [t]aking of [m]ovable
       [p]roperty and [r]obbery. The video, supplemented by the
       testimony of [Whitaker], clearly shows [Bennett] is guilty of
       [r]obbery, as in the course of committing theft he[,] inter alia,

____________________________________________


4 We note that the trial court, prior to addressing Bennett’s challenge to the
weight of the evidence on its merits, concluded that the issue was waived on
the basis that Bennett had failed to raise the issue in a post-sentence motion.
Trial Court Opinion, 6/26/19, at 4. Our review of the record discloses that
Bennett did, in fact, argue that his verdict was against the weight of the
evidence in his post-sentence Motion. See Post Sentence Motion, 1/16/19, at
¶ 16.

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      threatened [Whitaker] with or intentionally put her in fear of
      immediate serious bodily injury. Moreover, in the course of
      committing the theft, [Bennett] physically took or removed
      property from [Whitaker] by force, however slight.

            [Bennett’s] assertion that [Whitaker] did not see a gun is
      incorrect. Whitaker testified that she saw the handle of the gun.
      Whitaker also testified that she was nervous and afraid for her life
      during the robbery.

             Additionally, [Bennett] was apprehended a very short time
      after the robbery by police officers in the vicinity of the robbery.
      In addition to the testimony by [Whitaker] the jury heard
      testimony from several police officers, including Officer Paul
      Buzzone, who helped detain [Bennett] and recover the proceeds
      of the robbery. Officer Buzzone recovered the Crown Royal bag
      filled with money, which is the same bag that Whitaker testified
      was taken by [Bennett] during the robbery. Officer Buzzone
      testified that the bag was found near the street next to a parked
      vehicle on the path [Bennett] took from the bar to being
      apprehended.

             [Bennett] made statements during prison phone calls, which
      were played at trial, which corroborated the testimony of
      [Whitaker] and Officer Buzzone. [Bennett] claims that he was
      trying to “get the bread[.]”[] He also states the only reason he
      got caught. [Bennett] claimed that he had a good shot of beating
      this case and stated[,] “they got me on camera, you know[.]”[]
      Moreover, he stated, “I’ma [sic] have to get convicted for theft,
      because that’s really all it was.” Based on the witness testimony,
      prison calls and video of the robbery, the jury determined that
      [Bennett] was guilty of robbery. The weight of the evidence
      clearly supported the verdict.

Trial Court Opinion, 6/25/19, at 5-7 (citations omitted). We agree with the

sound analysis of the trial court, and conclude that it did not abuse its

discretion in ruling that the weight of the evidence supported Bennett’s

convictions. See id.; see also Commonwealth v. Talbert, 129 A.3d 536,

545 (Pa. Super. 2015) (stating that “it is well-settled that inconsistent verdicts

are permissible in Pennsylvania,” and “[w]hen an acquittal on one count [] is

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inconsistent with a conviction on a second count, the court looks upon the

acquittal as no more than the jury’s assumption of power which they had no

right to exercise, but to which they were disposed through lenity.”) (citations

and quotations omitted).

      A challenge to witness credibility can be reviewed as a sufficiency

challenge “in those extreme situations where witness testimony is so

inherently unreliable and contradictory that it makes the jury’s choice to

believe that evidence an exercise of pure conjecture.” Commonwealth v.

Brown, 52 A.3d 1139, 1156 n.18 (Pa. 2012).              To the extent that Bennett

raises a challenge to the sufficiency of the evidence, we agree with the trial

court’s conclusion that the Commonwealth proved each material element

underlying his convictions for theft by unlawful taking and robbery. See Trial

Court Opinion, 6/25/19, at 5-6. We also conclude that Whitaker’s testimony—

which, as the trial court indicated, was supported by contemporaneous

evidence—was not so inherently unreliable and contradictory that it made the

jury’s choice to believe her testimony an exercise of pure conjecture. See

Brown, supra. Accordingly, we grant Bennett no relief on these claims.

      Next, Bennett argues that the trial court abused its discretion when it

denied his Motion under Pa.R.Crim.P. 600.               Brief for Appellant at 16.

Specifically,   Bennett   claims   that   the   trial    court   had   ordered   the

Commonwealth to produce the full police file for Bennett’s review, and that

the Commonwealth failed to do so. Id. at 16-17. Because of this failure,


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according to Bennett, the Commonwealth failed to exercise due diligence in

timely prosecuting the case against him. Id. Accordingly, Bennett argues

that the entire time period between October 12, 2016, when the trial court

purportedly ordered that the file be produced, and September 10, 2018, when

the trial commenced, should have counted towards the statutory time period

in Rule 600. Id. at 17.

             Under Rule 600, the Commonwealth must bring a case to
      trial within 365 days of the criminal complaint’s filing.
      Pa.R.Crim.P. 600(A)(2)(a). Our standard of review relating to the
      application of Rule 600 is whether the trial court abused its
      discretion. Our scope of review is limited to the evidence on the
      record of the Rule 600 evidentiary hearing and the findings of the
      trial court. We must view the facts in the light most favorable to
      the prevailing party.

Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006) (citation

omitted); see also Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa.

2015)(explaining that “[a]n abuse of discretion will not be found based on a

mere error of judgment, but rather occurs 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.”). While delays in bringing the case to trial that are attributable to

the Commonwealth are included in the 365 day time period, delays that are

attributable to the defendant or the trial court are not included. Pa.R.Crim.P.

600(C); see also Commonwealth v. McCarthy, 180 A.3d 368, 376 (Pa.

Super. 2018) (recognizing that a delay that resulted from the unavailability of

time on trial court’s calendar was excludable from the Rule 600 calculation);

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Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006) (stating that,

“[i]n conducting the due diligence inquiry, our jurisprudence has excused such

delay resulting from court congestion.”).

      Here, Bennett’s Rule 600 claim is premised solely on a purported delay

in the Commonwealth’s production of discovery materials.          Specifically,

Bennett directs our attention to the time period between October 12, 2016,

the date he alleges the Commonwealth began its failure to act with due

diligence, and September 10, 2018, the date his trial began.               The

Commonwealth filed its Criminal Complaint against Bennett on February 26,

2013. Thus, the mechanical run date for Rule 600 purposes was February 26,

2014. Bennett’s trial commenced on September 10, 2018, 1,657 days beyond

the mechanical run date.

      Our review of the record discloses that in this case, Bennett was

“instrumental in causing the delay.” Pa.R.Crim.P. 600, Cmt. Indeed, either

Bennett or the judiciary caused the following periods of delay: April 24, 2013,

to May 3, 2013 (Bennett’s Motion to continue); May 3, 2013, to October 7,

2013 (Bennett’s Motion to suppress evidence); October 7, 2013, to May 19,

2014 (Bennett’s Motion to continue); May 19, 2014, to June 2, 2014

(Bennett’s omnibus pretrial Motion); June 2, 2014, to August 27, 2014

(Bennett’s Motion to continue); August 28, 2014, to September 2, 2014

(Bennett’s Motion to continue); September 2, 2014, to September 9, 2014

(scheduling conflicts with Bennett’s counsel); September 9, 2014, to March 9,


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2015 (Bennett’s Motion to continue); March 9, 2015, to March 24, 2015

(Bennett’s Motion to continue); March 24, 2015, to December 7, 2015 (trial

court scheduling trial); December 7, 2015, to December 17, 2015 (Bennett’s

counsel was unavailable for trial); December 17, 2015, to January 27, 2016

(trial court continuance to locate notes of testimony); October 21, 2016, to

January 12, 2017 (Bennett’s Motion to continue); January 12, 2017, to

October 16, 2017 (trial court scheduling new trial); October 16, 2017, to

November 2, 2017 (Bennett’s request for new counsel); November 2, 2017,

to November 9, 2017 (Bennett’s counsel was unavailable); November 9, 2017,

to May 21, 2018 (Bennett’s motion to continue); May 21, 2018, to September

10, 2018 (Bennett’s motion to proceed pro se, and then to proceed with

counsel).   See Trial Court Opinion, 6/26/19, at 7 (wherein the trial court,

referencing the docket, states that all of the requests for continuances from

October 2016 to September 2018 “were either joint requests or time

requested by the defense.”).

      In total, 1,696 days are attributable to Bennett and the trial court;

hence, this time is excludable for purposes of Rule 600. Adding the excludable

time to the mechanical run date, we calculate the adjusted run date to be

October 19, 2018, 39 days after the date Bennett’s trial began.           Because

Bennett’s trial commenced within the adjusted run date, we discern no abuse

of discretion by the trial court in rejecting Bennett’s Rule 600 claim.




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      Moreover, Bennett’s argument that the Commonwealth failed to

prosecute his case with due diligence is also without merit. When evaluating

a claim that the Commonwealth failed to act with due diligence in prosecuting

an appellant’s case under Rule 600, we emphasize that “[d]ue diligence is a

fact-specific concept that must be determined on a case-by-case basis. Due

diligence does not require perfect vigilance and punctilious care, but rather a

showing by the Commonwealth that a reasonable effort has been put forth.”

Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. 2007)

(emphasis in original).

      In its Opinion, the trial court addressed this issue as follows:

            [Bennett] claims that the Commonwealth violated [the trial
      court’s] Order to produce a police file, thereby causing a period of
      delay between October 12, 2016[,] and September 10, 2018. This
      argument fails because, as the docket reflects, there was no Order
      for the Commonwealth to turn over a police file. While [the trial
      court] inquired about the police file, there was no order to turn
      the police file over to [Bennett] or his counsel. N.T.[,] 10/12/[]16,
      at [13, 77]. The docket entry of October 12, 2016[,] reflects that
      the matter was continued to October 13, 2016[,] for the police file
      to be produced, but there is no Order that the police file be
      produced. Docket, page 21, #5.

                                     ***

            No Protective Order was sought by the Commonwealth
      [pursuant to Pa.R.Crim.P. 573,] and [Bennett] has received the
      material items that the Commonwealth is required to disclose
      from the Commonwealth through reciprocal discovery. The items
      mandated by discovery rules in the police file were tendered by
      the Commonwealth[,] and produced at trial without objection.
      N.T.[,] 9/11/[]18[,] at 139, 18. … Therefore, the Rule 600
      [M]otion was properly denied, as there was no delay by the
      Commonwealth. N.T.[,] 9/10/[]18, at 29. Furthermore, the
      Commonwealth represented, on the record, that the police file was


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      reviewed for further discoverable and relevant information to the
      case. If anything was found[,] it was made available to the
      defense. N.T.[,] 9/10/18[,] at 29, 4. The statement by the
      Commonwealth is consistent with the docket of October 13,
      2016[,] stating that discovery was still the subject of continuance
      requests. However, subsequent to October 20, 2018[,] there
      is no further mention of continuance for discovery
      pertaining to the police file. Furthermore[,] the court finds
      that, if in fact, there was an Order to give [Bennett] access to the
      police file, a reasonable interpretation of that Order would be that
      the Commonwealth turn over the discoverable information in the
      police file. N.T.[,] 9/1[0]/[]18[,] at 24, 8.

Trial Court Opinion, 6/26/19, at 7-9 (emphasis added).

      Here, as discussed above, the delays and continuances were not

attributable to the Commonwealth’s inability to try Bennett’s case, nor are the

delays and continuances the result of the Commonwealth’s lack of due

diligence. Rather, the record reveals no indication that the Commonwealth

was out of compliance with a court order or not exercising due diligence with

regard to the October 12, 2016 request by the trial court for the detective to

bring the police file into court for the trial court’s examination. We conclude

that the trial court did not abuse its discretion in denying Bennett’s Rule 600

Motion, and Bennett is entitled no relief on this claim. See McCarthy, supra;

Frye, supra.

      Fourth, Bennett argues that the trial court abused its discretion when it

denied his Motion for pretrial disclosure, discovery, and inspection. Brief for

Appellant at 18. He claims that because the police file may have contained

exculpatory information, it should have been produced by the Commonwealth.

Id. at 19. Bennett points again to the circumstances underlying his Rule 600

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Motion, and argues that the Commonwealth’s failure to provide him with the

full police file upon request constitutes a Brady violation and warrants that

his convictions be overturned. Id.

      As an initial matter, though Bennett characterizes this Motion as a

Brady motion, he actually argues that the Commonwealth failed to comply

with a discovery “order” when it did not provide him with the full police file.

The trial court ably addressed the nature of this “order” in its Opinion, which

we discussed in full above. See Trial Court Opinion, 6/25/19, at 7-9. We

agree with the trial court’s conclusions, and discern no abuse of discretion in

its determination that the Commonwealth complied with all necessary

discovery requests. Accordingly, Bennett is entitled to no relief on this claim.

      To the extent that Bennett argues a Brady violation by the

Commonwealth, he would also be entitled to no relief.             In order to

demonstrate a Brady violation, a defendant must show that (1) the evidence

was favorable to the accused, either because it was exculpatory or because it

impeaches; (2) the evidence was suppressed by the prosecution, either

willfully or inadvertently; and (3) prejudice ensued.     Commonwealth v.

Burke, 781 A.2d 1136, 1141 (Pa. 2001) (citation omitted). However, “[t]he

mere possibility that an item of undisclosed information might have helped

the defense, or might have affected the outcome of the trial, does not establish

materiality in the constitutional sense.” Commonwealth v. Chambers, 807

A.2d 872, 887 (Pa. 2002) (citation omitted).      Evidence is material “only if


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there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Id. at 887-88 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

      Bennett does not specifically allege that exculpatory evidence actually

exists; rather, he argues that “potentially material and exculpatory evidence

was suppressed by the Commonwealth.”          Brief for Appellant at 19.   While

Bennett points out that due process requires that all discoverable evidence be

provided to a defendant, he presents no evidence that the Commonwealth

failed to provide him with relevant discovery information.          Accordingly,

Bennett has failed to meet his Brady burden. See Commonwealth v. Willis,

46 A.3d 648, 670 (Pa. 2012) (stating that “a defendant necessarily must

identify specific evidence or information that would have been uncovered, and

explain how that evidence or information would have changed the result of

the proceeding,” and that mere speculation by a defendant is insufficient)

(internal citation omitted).

      Further, as the trial court notes, the evidence introduced at trial against

Bennett was significant. Trial Court Opinion, 6/26/19, at 9-10 (wherein the

trial court states that the jury reviewed video evidence of Bennett committing

the robbery, eyewitness testimony of the robbery, recorded inculpatory

statements made by Bennett while in prison, and physical evidence of the

robbery recovered in proximity to where Bennett was arrested).       As a result,


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Bennett’s argument that the evidence, to the extent that it exists, would have

materially changed the outcome of his trial is not supported by the record.

Because Bennett has failed to articulate any of the elements of a successful

Brady challenge, we cannot grant him relief on this claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2020




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