J-S49044-19

2019 PA Super 363

COMMONWEALTH OF PENNSYLVANIA

v.

SHAKREE S. BENNETT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 1⁄2 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 

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* 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 “greyishgreen 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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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 

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Indeed, 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 crossexamine 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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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