Com. v. Benson, M.

J-A06040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MAREKUS EDWARD BENSON :

:

Appellant : No. 548 WDA 2023

Appeal from the Judgment of Sentence Entered January 18, 2023

In the Court of Common Pleas of Somerset County Criminal Division at

No(s): CP-56-CR-0000470-2021

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY BECK, J.: FILED: May 9, 2024

Marekus Edward Benson (“Benson”) appeals from the judgment of

sentence imposed following his convictions of two counts each of first-degree

murder, aggravated assault, kidnapping, and unlawful restraint, and eight

counts of conspiracy.1 Benson raises eight claims of error. After review, we

affirm.

Benson, Samson Ezekiel Washington (“Washington”), and Devon Wyrick

(“Wyrick”)2 were members of the East Main Money Gang from Columbus,

Ohio, who came to Johnstown, Pennsylvania to sell drugs. In March 2017, a

stash house in Johnstown used by the East Main Money Gang was burglarized

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1 18 Pa.C.S. §§ 2502(a), 2702(a)(1), 2901(a)(3), 2902(a)(1), 903(a).

2 Washington and Wyrick are half-brothers.

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and the burglars stole drugs, money, and a firearm. Benson, Washington,

Wyrick, Jasmine Browning (“Browning”),3 and Jasmine Hinton (“Hinton”)4

proceeded to Washington’s home to discuss the burglary. Gang members

contacted several drug users to identify the burglars. On March 26, 2017,

Washington and Benson went to a well-known drug house, where they asked

Amanda Ehrhart (“Ehrhart”) and Tracey Kralik (“Kralik”) about the missing

drugs and money. While at the house, Benson flashed his gun. Benson and

Washington, however, failed to learn any new information about the missing

drugs.

The following day, Joshua Bergmann (“Bergmann”) informed

Washington that James Smith (“Smith”) and Damian Staniszewski

(“Staniszewski”) suddenly possessed a large quantity of drugs. At

Washington’s request, Bergmann led Benson, Washington, Wyrick, and

Deandre Callender (“Callender”) to Staniszewski’s residence in Portage,

Pennsylvania, but no one was there. Later that day, however, Smith and

Staniszewski contacted Hinton to purchase drugs from Washington. The

parties agreed to meet at the Galleria Mall.

At the mall, Smith and Staniszewski got in the back seat of the vehicle

that Wyrick was driving. Browning followed in another vehicle. Wyrick then

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3 Browning and Washington have a child together.

4 Hinton and Benson were in a relationship.

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picked up Washington, who, upon entering the vehicle, pointed a gun at Smith

and Staniszewski and stated that they would not get away with stealing the

drugs, money, and firearm. Wyrick drove to the stash house. At this point,

Browning observed Wyrick and Washington take Smith and Staniszewski into

the house and left the scene.

Smith and Staniszewski were taken down into the basement where

Wyrick punched Staniszewski in the mouth and Washington poured bleach in

Staniszewski’s mouth. Washington called Benson, stating that they got the

people who stole the drugs and told Benson to come to the home. Upon

arriving, Benson asked the victims the location of the drugs. The victims

indicated a different person stole the drugs; thereafter, Benson struck one of

the victims in the face with the butt of his gun. Washington then invited

Bergmann to the stash house. Bergmann professed his innocence, and, upon

seeing the victims, indicated the victims were in the situation because of the

stolen drugs. Washington gave Bergmann drugs as he left the scene.

Subsequently, Benson retrieved Staniszewski’s truck from the mall to

search it for the missing money and drugs. After Benson found only a small

portion of the stolen property in the truck, he indicated to Wyrick that he

would kill Smith and Staniszewski. Later, Benson and Washington put the

victims into Staniszewski’s truck and drove them to a wooded area off Ligonier

Pike in Somerset County. Wyrick followed in a separate vehicle. As soon as

Staniszewski’s truck stopped, Smith attempted to run away from the scene.

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Benson shot him in the back. Benson then attempted to shoot Staniszewski,

but his gun malfunctioned. Consequently, Washington left the scene to

retrieve another weapon. Benson and Wyrick waited at the scene with the

two victims. Upon returning, Washington shot both victims in the head two

times. Benson, Washington, and Wyrick ran out of the woods. While running,

Benson dropped his laser aiming device.

Benson and Washington then drove away in Staniszewski’s truck while

Wyrick followed them. Benson and Washington eventually pulled over along

Somerset Pike, wiped their fingerprints from Staniszewski’s truck, abandoned

the truck, and left the scene in Wyrick’s vehicle. Afterwards, they drove to a

different wooded area, disassembled their firearms, and left the components

in the woods. Subsequently, Benson, Washington, and Wyrick returned to

Johnstown. They went to Browning’s residence and argued about Benson

dropping the laser aiming device from his firearm as they fled the woods and

Washington inviting Bergmann to come into his basement while the victims

were there. Washington told Browning that they had beaten up the victims in

the basement and then shot them in the woods.

On March 28, 2017, the police found Staniszewski’s truck near a bar

called “Jim & Jimmies.” The remains of Smith and Staniszewski were

discovered on September 29, 2017. The police classified the cause of death

for both victims as homicide. During the subsequent investigation, the FBI

mapped the locations of cell phone numbers associated with Callender,

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Wyrick, Smith, Staniszewski, Bergmann, and a phone that was designated as

a “shared phone.” Notably, the victims called the “shared phone” to set up

the drug deal that was to take place at the Galleria Mall and the victims’ cell

phones pinged off cell towers near the stash house on March 27, 2017. The

FBI also determined that various calls and texts were made to a phone

belonging to Benson and two phones belonging to Washington from some of

the mapped phones.

The police arrested Benson and the Commonwealth charged him in the

initial criminal complaint with two counts each of criminal conspiracy to

commit criminal homicide, aggravated assault, kidnapping, and unlawful

restraint. The trial court held a joint preliminary hearing with Benson,

Callender, and Hinton on June 9, 2021.5 Browning testified at the preliminary

hearing. The conspiracy charges against Benson were held over for trial. On

June 28, 2021, the Commonwealth filed a criminal information, charging

Benson with the eight counts of conspiracy, and two counts each of criminal

homicide, aggravated assault, kidnapping, and unlawful restraint. Later,

Benson, Callender, and Hinton were joined as codefendants with Washington

and Wyrick.

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5 Washington and Wyrick were previously arrested and had a joint preliminary

hearing in February 2019.

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Benson filed several pretrial motions, including, in relevant part, a

motion to sever the cases and a habeas corpus motion, arguing that the

Commonwealth failed to prove a prima facie case of conspiracy. On June 30,

2022, the trial court held a hearing on the various motions of Benson,

Washington, Callender, Hinton, and Wyrick. At the hearing, Browning again

testified in relation to the cases against Wyrick and Washington.

Nevertheless, the trial court allowed counsel for Benson, Callender, and Hinton

to lodge objections to the testimony. The trial court also offered them the

opportunity to cross-examine Browning, but Benson declined because he did

not want her testimony to be used against him when deciding his habeas

motion. Ultimately, the trial court denied the motions to sever and for habeas

corpus relief. The trial court allowed the introduction of evidence that Benson

was a drug dealer, a single thirty-three second clip from one of the rap videos

propounded by the Commonwealth, and the threats against Ehrhart and

Kralik.

Separately, the Commonwealth filed notice of its intent to introduce

evidence that Benson was a drug dealer in the Johnstown community at the

time of the murders; that Benson and Washington threatened two women

(Ehrhart and Kralik) they believed were connected to the burglary; and

multiple music videos featuring Benson and displays of drug dealing, firearms,

and gang activity. The Commonwealth also filed a motion in limine, requesting

that the defense be precluded from introducing statements made by Landon

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Reighard (“Reighard”), who was deceased. Benson filed a motion in limine,

seeking to exclude his prior criminal history and evidence that he and

Washington threatened Ehrhart and Kralik with firearms when searching for

the stolen drugs.

The trial court ultimately granted the Commonwealth’s motion to

exclude Reighard’s statements, aside from three specific statements made by

Reighard that were against his interest: (1) he was involved with the victims

in the robbery of the Benson, Washington, and Wyrick, (2) he used illicit drugs,

and (3) he was helping the victims to sell drugs. The trial court allowed the

Commonwealth to introduce evidence that Benson was a drug dealer and

further allowed the admission of thirty-three seconds of only one video that

showed gang-related imagery. The trial court also granted Benson’s motion

as to his prior criminal history, but denied the motion as to the threats to the

two people.

Originally, the trial court scheduled trial for October 12, 2022, but prior

to trial, Wyrick pled guilty to two counts of third-degree murder and agreed

to testify on the Commonwealth’s behalf.6 The jury trial held on the charges

against Benson, Washington, and Callender occurred between October 17 and

October 21, 2022. Relevantly, Browning did not testify at trial, despite being

subpoenaed and called as a witness by the Commonwealth. Although she

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6 Hinton’s case was also severed from this case after the trial court dismissed

conspiracy charges against her.

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initially appeared at the courthouse, she ran out after refusing to take the

stand. The trial court issued a material witness warrant and indicated that if

she could not be located, it would declare her to be unavailable and allow the

transcripts of her preliminary and habeas hearings to be read into the record.

Benson objected to the use of Browning’s prior testimony at trial. The

Commonwealth was unable to locate Browning, however, and the trial court

allowed Browning’s prior testimony to be read to the jury.

At the conclusion of trial, the jury found both Benson and Washington

guilty of all charges and acquitted Callender. On January 4, 2023, the trial

court sentenced Benson to an aggregate term of life in prison without the

possibility of parole. The trial court also ordered restitution to the victims’

families for funeral expenses to be paid jointly and severally by the

codefendants. Specifically, the trial court ordered Washington and Benson to

pay $1,644.96 to Staniszewski’s family and $2,800 to Smith’s family. The

Commonwealth filed a timely post-sentencing motion, seeking to amend the

restitution for Smith’s funeral to $2,770 and payment be made to the funeral

home. On January 18, 2023, the trial court granted the Commonwealth’s

motion.7 Benson filed a timely post-sentence motion, which the trial court

denied, following which Benson timely appealed.

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7 See Commonwealth v. Garzone, 993 A.2d 1245, 1254 (Pa. Super. 2010)

(noting that where the trial court grants the Commonwealth’s post-sentence

(Footnote Continued Next Page)

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Benson raised the following questions for our review:

1. Whether the Trial Court abused its discretion in failing to sever

the cases of the co-defendants[?]

2. Whether the Trial Court erred in allowing the Commonwealth

to use at Trial both Jasmine Browning’s Preliminary Hearing

testimony and her testimony from the Habeas Corpus Hearing

against [Benson?]

3. Whether the Trial Court erred in permitting the Commonwealth

to present a Rap Video as evidence during the trial[?]

4. Whether the Court erred in permitting the Commonwealth to

proceed with trial on the homicide, aggravated assault, and

unlawful restraint charges where the only charges bound to

court against [Benson] were Conspiracy to commit these

offenses, simply based upon the Commonwealth filing an

amended information that included the additional charges[?]

5. Whether the Trial Court erred by admitting as a demonstrative

exhibit which included reference to a phone number that had

not been properly authenticated as being a phone number

linked to [Benson?]

6. Whether the Trial Court erred by admitting evidence that

[Benson] was a drug dealer in the community[?]

7. Whether the Trial Court erred in precluding a recorded

statement of [] Reighard made to police and by precluding the

defense from engaging in a line of questioning regarding

Reighard’s statements made in this recording[?]

8. Whether the Trial Court erred in reaching a verdict that

[Benson] committed two counts of homicide and reaching an

overall verdict without sufficient evidence[?]

Benson’s Brief at 2-4.

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motion, the appeal lies from the amended judgment of sentence). We have

changed the caption to reflect the proper date of sentencing.

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1. Severance

In his first claim, Benson makes several disjointed arguments

concerning the trial court’s severance decisions. Id. at 4-8. He first contends

generally that the trial court abused its discretion in failing to sever his case

from his codefendants’ case, which he states prejudiced him.8 Id. at 4. As

somehow supporting this claim, he asserts that codefendant Wyrick was

required to testify against Benson to get a plea deal, and that Wyrick admitted

on the record that his testimony “was not his version of the truth.” Id. at 7.

Id. Benson baldly alleges that severance was required because Hinton’s case

was improperly severed without notice or opportunity to be heard by him or

any of his codefendants. Id. at 7-8. Benson argues that the severance motion

as to Hinton moved forward at the pretrial motion hearing without notice or

the opportunity for all the codefendants to be present; therefore, the

remaining cases should have been severed because “prejudice is presumed

due to the absence of all codefendants at a critical stage of the joined

proceedings.” Id. at 8.

“Whether to join or sever offenses for trial is within the trial court’s

discretion and will not be reversed on appeal absent a manifest abuse thereof,

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8 Benson refers generally to “co-defendants” throughout his argument and

does not name them by name. Based upon his citations to the record and the

arguments made, however, we are able deduce that the specific claims he

makes concern Wyrick and Hinton.

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or prejudice and clear injustice to the defendant.” Commonwealth v.

Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018) (citation omitted).

The authority to try codefendants together in a single trial is provided

by Pennsylvania Rule of Criminal Procedure 582(A), which provides:

(2) Offenses charged in separate indictments or informations

may be tried together if:

(a) the evidence of each of the offenses would be

admissible in a separate trial for the other and is

capable of separation by the jury so that there is no

danger of confusion; or

(b) the offenses charged are based on the same act or

transaction.

(2) Defendants charged in separate indictments or informations

may be tried together if they are alleged to have participated in

the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses.

Pa.R.Crim.P. 582(A). “The court may order separate trials of offenses or

defendants, or provide other appropriate relief, if it appears that any party

may be prejudiced by offenses or defendants being tried together.”

Pa.R.Crim.P. 583. However, “[u]nder Rule 583, the prejudice the defendant

suffers due to the joinder must be greater than the general prejudice any

defendant suffers when the Commonwealth’s evidence links him to a crime.”

Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010) (citation

omitted).

Our Supreme Court has further explained:

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Where … the crimes charged against each defendant arise out of

the same facts and virtually all of the same evidence is applicable

to both defendants, this Court, as well as the United States

Supreme Court, have indicated a preference to encourage joint

trials to conserve resources, promote judicial economy, and

enhance fairness to the defendants:

It would impair both the efficiency and the fairness of

the criminal justice system to require … that

prosecutors bring separate proceedings, presenting

the same evidence again and again, requiring victims

and witnesses to repeat the inconvenience (and

sometimes trauma) of testifying, and randomly

favoring the last tried defendants who have the

advantage of knowing the prosecution’s case

beforehand. Joint trials generally serve the interests

of justice by avoiding inconsistent verdicts and

enabling more accurate assessment of relative

culpability.

Given this preference, the burden is on defendants to show a real

potential for prejudice rather than mere speculation.

Commonwealth v. Rainey, 928 A.2d 215, 231-32 (Pa. 2007) (citations and

quotation marks omitted).

At the outset, we observe that Benson and Wyrick were not tried

together, as Wyrick pled guilty and did not face trial. Benson does not explain

how Wyrick’s decision to plead guilty and testify against the remaining

codefendants established that Benson’s case should be severed. See

Pa.R.A.P. 2119(a) (stating that argument section of brief must contain

pertinent discussion and citation to authority). Moreover, Wyrick’s statement

that he did testify to “his version” of the truth at trial does not ipso facto

establish that Benson’s case should have been severed from his codefendants,

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and Benson provides no argument in support of a contrary finding.9 Therefore,

Benson’s claim in this regard is without merit.

Benson also has not established that Hinton’s case was severed without

the presence of Benson or the remaining codefendants or that any action

concerning Hinton’s case by the trial court required severance of the remaining

codefendants’ cases. Notably, the trial court states that Hinton’s case was not

severed on the date specified by Benson. Benson does not rebut the trial

court observation that no “critical stage” of the proceeding occurred on the

date identified by Benson and that it “did not make any decision that day that

impacted or affected any of the remaining four co[]defendants; and in fact[,]

at that time, I did not sever her case so the status quo was essentially

maintained.” N.T., 6/30/2022, at 204. In any event, Benson has not

established, through citation to any authority, that the purported failure to

have all codefendants attend a hearing on a motion to sever one codefendant’s

case, automatically necessitates severance of the remaining codefendants’

cases. See Pa.R.A.P. 2119(a). Accordingly, Benson’s claim regarding Hinton

therefore does not merit relief.

Benson does not dispute that the consolidation of his case with his

codefendants promoted judicial economy and enhanced fairness among the

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9 Viewed in context, the record reflects that Wyrick made this statement in

response to a question on cross-examination wherein defense counsel

suggested that Wyrick’s testimony was not entirely truthful but was instead

“his version” of the truth. N.T., 10/19/2022, at 750.

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codefendants. See Rainey, 928 A.2d at 231. At trial, the prosecution

presented numerous witnesses, and forensic and cell phone data evidence.

Consolidating the three cases eliminated the inconvenience and burden for the

prosecution to require these witnesses to give testimony at multiple

prosecutions. See id. Furthermore, “joint trials are preferred where

conspiracy is charged.” Commonwealth v. Housman, 986 A.2d 822, 834

(Pa. 2009). In fact, Benson recognizes this proposition and raises no

argument that requires a contrary finding.10 See Benson’s Brief at 6.

Accordingly, Benson failed to show that the trial court abused its discretion in

consolidating his trial with his codefendants.

2. Browning’s Testimony

In his second claim, Benson contends that the trial court erred in

permitting the Commonwealth to read into the trial record the testimony of

Browning from the preliminary and pretrial hearings, as it was violative of the

Confrontation Clause. Benson’s Brief at 9, 18. Benson argues that Browning

was not unavailable to testify at the trial, as the Commonwealth did not make

a good faith effort to locate Browning or compel her appearance at trial. Id.

at 9, 11-12. Benson highlights that Browning did not die, and the

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10 “Severance may be proper where a party can establish the co[]defendants’

defenses are so antagonistic that a joint trial would result in prejudice.”

Housman, 986 A.2d at 834. Benson has not argued or established that

severance would be proper because the codefendants’ defenses were

antagonistic to his defense.

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Commonwealth provided no evidence that she could not be served with a

subpoena to appear. Id. at 12. Benson claims that his counsel did not have

a full and fair opportunity to cross-examine Browning at either the preliminary

hearing or the pretrial hearing, noting that Browning’s credibility was not at

issue at the hearings. Id. at 9, 12-18. Benson also asserts that Browning’s

habeas corpus testimony at the hearing on the pretrial motions was offered

against Washington and Wyrick, and Benson had no need to cross-examine

her at this hearing. Id. at 14-15. Benson claims that had he questioned

Browning at the pretrial hearing, it could have opened the door to

incriminating evidence against him that the Commonwealth had not proffered.

Id. at 15. Benson seeks a new trial. Id. at 18.

Pennsylvania Rule of Evidence 804(b)(1) “permits the admission of prior

recorded testimony from a preliminary hearing as an exception to the hearsay

rule when the witness is unavailable, the defendant had counsel, and the

defendant had a full and fair opportunity for cross-examination at the

preliminary hearing.” Commonwealth v. Leak, 22 A.3d 1036, 1044 (Pa.

Super. 2011) (citation omitted); see also Pa.R.E. 804(b)(1). A declarant is

unavailable, in relevant part, when she “is absent from the trial or hearing and

the statement’s proponent has not been able, by process or other reasonable

means, to procure … the declarant’s attendance, in the case of a hearsay

exception under Rule 804(b)(1)[.]” Pa.R.E. 804(a)(5)(A). The

Commonwealth must show that it made a good faith effort to try to produce

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the live testimony of the witness. Commonwealth v. Lebo, 795 A.2d 987,

990 (Pa. Super. 2002); see also Commonwealth v. Blair, 331 A.2d 213,

215 (Pa. 1975) (stating that the rule “does not require that the

Commonwealth establish that the witness has disappeared from the face of

the earth; it demands that the Commonwealth make a good-faith effort to

locate the witness and fail”). The decision of the trial court to determine what

constitutes a good faith effort to locate a missing witness “will not be

overturned absent an abuse of discretion.” Commonwealth v. Douglas, 737

A.2d 1188, 1196 (Pa. 1999).

Unavailability

The record reflects that at trial, the Commonwealth called Browning to

testify; however, she would not take the stand. N.T., 10/18/2022, at 279.

The Commonwealth indicated that Browning’s refusal to testify was a delay

tactic and she did not want to testify. Id. at 286. The Commonwealth then

called Browning again. Id. at 287. Browning exited the courtroom at this

point and refused to testify. Id. at 287-88. The following day, the

Commonwealth again stated it would call Browning as a witness but was

unable to locate her. N.T., 10/19/2022, at 517. The Commonwealth

requested the issuance of a material witness warrant, and that if Browning

could not be located, the trial court declare her an unavailable witness and

have her preliminary hearing transcript read into the record. Id. at 517-20.

The Commonwealth noted that when Browning exited the courtroom the prior

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day, she stated that “she was scared to death[,]” “did not wish to testify[,]”

and “would not testify.” Id. at 797. The Commonwealth indicated it

attempted to locate Browning by going to her home, which she shared with

her sister and mother, contacting her sister and mother, and calling Browning.

Id. at 798. The Commonwealth also noted that Browning was under subpoena

to testify. Id. Subsequently, the trial court found Browning to be unavailable,

and counsel for Benson agreed with this finding. Id. at 799; see also id. at

768 (wherein Benson’s counsel conceded that Browning was “an unavailable

witness”).

Benson’s concession notwithstanding, the record supports the trial

court’s finding that the Commonwealth exerted reasonable efforts to locate

Browning and that such efforts constituted a good faith effort to procure her

attendance and testimony at trial. See Trial Court Opinion, 8/1/2023, at 18-

20; see also Douglas, 737 A.2d at 1196 (concluding the trial court did not

abuse its discretion in finding the Commonwealth made a good faith effort to

locate the witness by searching his apartment, searching places he was known

to frequent, and contacting his mother, sister, and girlfriend). Accordingly,

Benson’s argument related to the trial court’s finding that Browning was

unavailable fails.

Confrontation

Benson’s claim that he did not have a full and fair opportunity to cross-

examine Browning implicates his right to confrontation enumerated in both

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the Pennsylvania and United States Constitutions and the evidentiary rules

related to hearsay. See Commonwealth v. Grush, 295 A.3d 247, 251 (Pa.

Super. 2023) (“Introducing statements of an unavailable witness presents

issues relating to both the constitutional rights of confrontation as well as

evidentiary rules governing introduction of hearsay.”). Benson’s constitutional

right to confront the witnesses against him raises a question of law, and our

standard of review is de novo and scope of review is plenary.

Commonwealth v. Mitchell, 152 A.3d 355, 358 (Pa. Super. 2016).

In determining the admissibility of prior testimony, the critical issue is

whether the defendant had a full and fair opportunity to cross-examine the

witness. Id. “The Commonwealth may not be deprived of its ability to present

inculpatory evidence at trial merely because the defendant, despite having the

opportunity to do so, did not cross-examine the witness at the preliminary

hearing as extensively as he might have done at trial.” Commonwealth v.

Leaner, 202 A.3d 749, 775 (Pa. Super. 2019) (citation omitted). If at the

time of the preliminary hearing, however, the defendant did not have access

to vital impeachment evidence, such as a prior inconsistent statement by the

witness or the witness’ criminal record, the defendant would not have had a

full and fair opportunity to cross-examine the witness, and admission of the

prior testimony violates the defendant’s right to confront the witness.

Commonwealth v. Bazemore, 614 A.2d 684, 688 (Pa. 1992). It is the

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defendant’s burden to show that he was denied vital impeachment evidence

at the time of the preliminary hearing. Leaner, 202 A.3d at 775.

Here, Benson does not dispute he cross-examined Browning at his

preliminary hearing. Further, Benson acknowledges that he did not cross-

examine Browning at the pretrial hearing to preserve his own habeas corpus

claim so no evidence could be used against him. N.T., 6/30/2022, at 73-74.

But regardless of why Benson chose not to cross-examine the witness at that

time, there is no question that he had the opportunity to cross-examine her.

See Commonwealth v. Wholaver, 989 A.2d 883, 904 (Pa. 2010) (noting

that where defendant had the opportunity to cross-examine a witness, the

right to confrontation has been met). Benson claims, in an entirely conclusory

manner, that his opportunity to cross-examine Browning was not “full and

fair” because he was not able to attack her credibility; however, Benson does

not specify any impeachment evidence he would have used but was

unavailable to him at the pertinent times. See Bazemore, 614 A.2d at 688;

Lerner, 202 A.3d at 775. Instead, he makes a bare, unsubstantiated

assertion. As Benson had a full and fair opportunity to cross-examine

Browning, he is not entitled to relief on this claim.

3. Admission of Evidence: Rap Video

In his third claim, Benson contends that the trial court abused its

discretion in permitting the Commonwealth to introduce a rap music video

featuring Benson as evidence of his character and capacity to commit the

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crimes in question. Benson’s Brief at 18. Benson argues that the video was

irrelevant and prejudicial, as it established he dealt drugs and had bad

character. Id. at 18-19. According to Benson, rap music lyrics are not

necessarily biographical but rather utilize exaggeration and metaphors to

inaccurately depict real-life events. Id. at 20. Benson claims the video could

have confused and mislead the jury. Id.

The admission and exclusion of evidence are within the sound discretion

of the trial court, and this Court will not disturb this decision absent an abuse

of discretion. Commonwealth v. Brown, 200 A.3d 986, 990 (Pa. Super.

2018).

“The threshold inquiry with admission of evidence is whether the

evidence is relevant.” Commonwealth v. Yale, 249 A.3d 1001, 1022 (Pa.

2021) (citation omitted). “Evidence is relevant if: (a) it has any tendency to

make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.” Pa.R.E. 401.

“Evidence that is not relevant is not admissible.” Pa.R.E. 402.

Although the Commonwealth sought to introduce several separate

videos and lyrics of rap music that Benson performed, the trial court did not

allow the introduction of any lyrics and only allowed thirty-three seconds of

one video that showed gang-related imagery. See Opinion and Order,

9/13/2022, at 7-8. The trial court explained its decision as follows:

[T]he Commonwealth alleges that [the codefendants] are

members of the East Main Money Gang a.k.a. “Blam Squad.”

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Evidence that Defendant Benson, and the other defendants, are

members of the same gang is probative evidence of the existence

of a conspiracy and motive. … The gang related images at the

beginning of the … video supports the Commonwealth’s allegation

that Defendant Benson is a member of the East Main Money Gang

and makes it more probable that he entered into a conspiracy with

other gang members.

Id.

Based upon the arguments advanced by Benson, we cannot conclude

that trial court abused its discretion. Benson makes no specific argument to

support a finding that the video was improperly admitted. Instead, he devotes

his argument in support of this claim to the improper admission of rap lyrics,

failing to recognize that the trial court did not admit any lyrics. On this basis,

Benson has not established that the trial court abused its discretion in

admitting the thirty-three second video. See Pa.R.A.P. 2119(a); see also

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that

“where an appellate brief fails to provide any discussion of a claim with citation

to relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”).

4. Criminal Information

In his fourth issue, Benson contends that the trial court erred in allowing

trial to proceed on all counts charged in the criminal information. Benson’s

Brief at 21, 26. Benson argues that the only charges bound for court following

the preliminary hearing were the conspiracy charges. Id. He claims that the

homicide, aggravated assault, kidnapping, and unlawful restraint charges

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were never raised at the preliminary hearing and the court erroneously

allowed these charges to proceed after the Commonwealth filed an amended

information. Id. at 21-22. According to Benson, the trial court violated

Pa.R.Crim.P. 564, which allows the amendment of an information, so long as

it “does not charge an additional or different offense.” Id. at 24 (quoting

Pa.R.Crim.P. 564). Benson asserts that because the amended information

significantly added to his charges, no prima facie case for these charges was

made, his due process rights were violated, and the trial court should not have

allowed the Commonwealth to prosecute the crimes at trial. Id. at 25-26.

At the outset, we note that, to the extent Benson now argues that the

criminal information should have been dismissed, he has waived this claim

based upon his failure to raise it before the trial court. See Pa.R.A.P. 302(a)

(“Issues not raised in the trial court are waived and cannot be raised for the

first time on appeal.”). A challenge to a criminal information must be raised

in an omnibus pretrial motion. See Pa.R.Crim.P. 578, cmt. (stating that a

request “to quash or dismiss an information” is one of the “[t]ypes of relief

[that is] appropriate for the omnibus pretrial motion”); Commonwealth v.

Martin, 694 A.2d 343, 344 (Pa. Super. 1997) (stating that “[a] request to

quash an information must be made in an omnibus pretrial motion for relief

or it is considered waived”). Benson’s failure to file an omnibus motion

challenging the information prevents this Court from addressing his appellate

challenge to the addition of the charges. See Martin, 694 A.2d at 344.

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Additionally, we observe that Benson misquotes Rule of Criminal

Procedure 564 (governing the amendment of a criminal information) in his

brief before this Court. In full, the Rule states:

The court may allow an information to be amended, provided that

the information as amended does not charge offenses arising from

a different set of events and that the amended charges are not so

materially different from the original charge that the defendant

would be unfairly prejudiced. Upon amendment, the court may

grant such postponement of trial or other relief as is necessary in

the interests of justice.

Pa.R.Crim.P. 564.11

The additional crimes charged in the criminal information do not arise

of a different series of events than the originally charged conspiracy. Further,

Benson makes no showing that he was prejudiced or that he required a

continuance to prepare his defense that was denied by the trial court.

Nor has Benson shown that his due process rights were violated. An

essential element of a criminal defendant’s procedural due process rights is a

reasonable notice of the charges against him. Commonwealth v. Baldwin,

8 A.3d 901, 903 (Pa. Super. 2010). “Due process requires a criminal statute

to give fair warning of the conduct prescribed, and the criminal information

must provide fair notice of every crime of which a criminal defendant is

accused.” Commonwealth v. Widger, 237 A.3d 1151, 1164 (Pa. Super.

____________________________________________

11 Benson quotes a prior version of Rule 564, but the rule was amended in

2016 to the above-quoted language “to more accurately reflect the

interpretation of this rule” by our Supreme Court and this Court since the

passage of the Rule in 1974. Pa.R.Crim.P. 564, cmt.

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2020); see also Commonwealth v. Sims, 919 A.2d 931, 939 (Pa. 2007)

(“Such notice ensures that, if the Commonwealth prevails at trial, the

defendant’s conviction is not arbitrary or oppressive.”).

The record reflects that the Commonwealth originally charged Benson

with two counts each of conspiracy to commit criminal homicide, aggravated

assault, kidnapping, and unlawful restraint. Criminal Complaint, 6/11/2021,

at 1-3. Each of these charges were held for court following the preliminary

hearing on June 9, 2021. On June 28, 2021, the Commonwealth filed a

criminal information against Benson which, in addition to the conspiracy

charges held over at the preliminary hearing, contained two counts each of

criminal homicide, aggravated assault, kidnapping, and unlawful restraint.

See Information, 6/28/2021, at 1-3 (unnumbered). After the criminal

information was filed, Benson filed a motion for habeas corpus, arguing that

the Commonwealth failed to make a prima facie case on the conspiracy

charges. The trial court held a hearing on the motion and found that “the

Commonwealth has made out a prima facie case with respect to the charges

filed against Benson.” N.T., 6/30/2022, at 171; N.T., 10/17/2022, at 37.

As such, even if not waived, we find no error by the trial court in allowing

the charges not raised at the preliminary hearing to go forward to trial.

Benson’s fourth claim fails.

5. Admission of Evidence: Phone Number

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In his fifth issue raised on appeal, Benson argues that the trial court

abused its discretion in admitting evidence of a phone number that had not

been properly authenticated and linked to him. Benson’s Brief at 26-28.

Benson contends that “the Commonwealth improperly identified cell phone

tower pings as being the phone number linked to [Benson].” Id. at 28.

According to Benson, the Commonwealth did not present any evidence to

establish he was in possession of the cell phone at the time of the cell phone

tower pings. Id. Benson thus claims the Commonwealth failed to

authenticate his ownership of the phone. Id. According to Benson, the

evidence was highly prejudicial because it corroborated Wyrick’s testimony

that Benson was present and involved in the crimes. Id. at 29. Benson seeks

a new trial. Id.12

“[T]o satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a finding

that the item is what the proponent claims it is.” Pa.R.E. 901(a).

“Authentication generally entails a relatively low burden of proof[.]”

Commonwealth v. Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017) (citation

____________________________________________

12 Benson properly preserved his claim regarding the authentication of a phone

attributed to him before the trial court. See N.T., 10/20/2022, at 928-29;

see also Trial Court Opinion, 8/1/2023, at 32. In his brief, Benson also raises

a claim related to the “shared phone.” Benson’s Brief at 29. The trial court

correctly found that Benson waived any claims related to the “shared phone”

by failing to object or otherwise raise the argument below. Trial Court

Opinion, 8/1/2023, at 32-33; see Pa.R.A.P. 302(a). Therefore, we need not

address any claims about the “shared phone.”

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omitted). Circumstantial evidence may be used to authenticate evidence.

Commonwealth v. Orr, 255 A.3d 589, 595-96 (Pa. Super. 2021).

Regarding the authentication issue for the phone number in the report

associated with Benson ending in 9274, FBI Agent John Orlando testified that

in preparing the report, he reviewed the Commonwealth’s case file, including

the cell phone extraction report from Wyrick’s phone completed by Special

Agent April Campbell. The extraction report contained a list of contacts of

names and cell phone numbers, a list of the codefendants’ names and

nicknames, including Benson’s nickname of “Trigg,” and cell phone records

and certifications. See N.T., 10/20/2022, at 925-27, 938; N.T., 10/19/2022,

at 589-93 (Commonwealth Exs. at 92-96A — cell phone records and

certifications for various numbers); N.T., 10/19/2022, at 635 (Commonwealth

Ex. 100 — cell phone extraction report); N.T., 10/19/2022, at 652

(Commonwealth Ex. 101 — pictures, names, and nicknames of the

defendants). Special Agent Campbell testified that two phone numbers in

Wyrick’s phone were associated with “Trigg”—one ending in 9274 and one

ending in 9488.13 N.T, 10/19/2022, at 636. Pennsylvania State Police Trooper

Sonny Halterman testified that on May 26, 2017, he conducted a traffic stop

involving Benson at which time stated that his phone number was the number

ending in 9274. Id. at 622. Based upon this evidence, we conclude that the

____________________________________________

13 The full phone numbers were included in the records and testimony at trial.

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Commonwealth properly authenticated the phone number associated with

Benson and this claim merits no relief. See Orr, 255 A.3d at 595-96.

Benson’s additional arguments related to the cellphone tower pings

involving the phone in question are unsupported by the record. Pointedly,

Benson’s phone was never tracked, obtained, or analyzed in this case. N.T.,

10/20/2022, at 997. Benson points to no testimony that his phone was ever

linked to a particular cell tower or geographic location. To the contrary, Agent

Orlando specifically stated that he analyzed six numbers, including a “shared

phone,” Callender’s phone, the victims’ phones, Wyrick’s phone, and

Bergmann’s phone. N.T., 10/20/2022, at 936-37; see also id. at 935

(Commonwealth Ex. 102 — FBI Cellular Analysis Report); Trial Court Opinion,

8/1/2023, at 30 (observing that “[t]he FBI report mapped the locations of six

cell phones and any incoming or outgoing phone calls and text messages sent

or received by those phone numbers,” none of which was the cell phone

attributed solely to Benson). Therefore, this claim is without merit.

6. Admission of Evidence: Drug Dealer

In his sixth claim, Benson contends that the trial court abused its

discretion in admitting evidence that he was a drug dealer in the community.

Benson’s Brief at 29. Benson argues that the prejudicial value of this evidence

outweighed the probative value. Id. at 29-31. Benson further argues that

the evidence was not representative of the community’s consensus and

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improper on that basis as well. Id. at 30. Benson seeks a new trial. Id. at

31.

The trial court states that it is unclear from the record whether Benson

preserved this claim for appeal. See Trial Court Opinion, 8/1/2023, at 24.

The trial court highlights that Benson’s motion in limine sought to exclude his

prior criminal charges and convictions but does not mention evidence that he

was a drug dealer in Johnstown. Id. Further, the trial court notes that Benson

did not join Washington’s motion in limine that did raise this issue. Id.

Our review of the record comports with that of the trial court. This issue

is therefore waived. See Pa.R.A.P. 302(a). Regardless of waiver, the issue is

also meritless.

“Generally, evidence of prior bad acts or unrelated criminal activity is

inadmissible to show that a defendant acted in conformity with those past acts

or to show criminal propensity.” Commonwealth v. Sherwood, 982 A.2d

483, 497 (Pa. 2009) (citing Pa.R.E. 404(b)(1)). “However, evidence of prior

bad acts may be admissible when offered to prove some other relevant fact,

such as motive, opportunity, intent, preparation, plan, knowledge, identity,

and absence of mistake or accident.” Sherwood, 982 A.2d at 497 (citing

Pa.R.E. 404(b)(2)). “In determining whether evidence of other prior bad acts

is admissible, the trial court is obliged to balance the probative value of such

evidence against its prejudicial impact.” Sherwood, 982 A.2d at 497.

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Applying this precedent, the trial court did not abuse its discretion in

admitting this evidence at trial. Benson’s drug related activity was relevant

and probative of his motive and intent to kidnap, assault, and ultimately

murder the victims. See Commonwealth v. Ganjeh, 300 A.3d 1082, 1091

(Pa. Super. 2023) (stating that “[t]he challenged evidence shows the chain or

sequence of events which formed the history of the case, is part of the natural

development of the case, and demonstrates [a]ppellant’s malice and ill-will

toward the victim”). Therefore, Benson is not entitled to relief.

7. Admission of Evidence: Reighard’s Recorded Statement

In his seventh claim, Benson contends that the trial court erred in failing

to allow him to introduce a recording of Reighard being questioned by the

police. Benson’s Brief at 31-32, 34. Benson notes that Reighard was

unavailable to testify because he is dead, and the recording was admissible

under the hearsay exception—statement against interest. Id. at 32-33.

Benson argues that the recording implicates Reighard in the murders, as it

contains information that would not have been known by anyone who was not

involved in the murders. Id. at 32, 34. Benson asserts that the refusal to

admit this evidence “eliminated a line of defense that Reighard and

[Bergmann] were in fact the individuals who committed this crime.” Id. at

34; see also id. (noting “Reighard and Bergmann knew the victims were in

possession of large amounts of drugs and both Reighard and Bergmann were

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drug users[, which] provided motive and opportunity for them to have

committed the crimes”).

Hearsay is a statement that “(1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).

Hearsay is inadmissible “except as provided by [the Rules of Evidence], by

other rules prescribed by the Pennsylvania Supreme Court, or by statute.”

Pa.R.E. 802; see also Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa.

Super. 2020) (“Hearsay generally is inadmissible unless it falls within one of

the exceptions to the hearsay rule delineated in the Pennsylvania Rules of

Evidence.”).

A statement may be admitted under the hearsay exception as a

statement against interest if the declarant is unavailable as a witness and

(A) a reasonable person in the declarant’s position would have

made [the statement] only if the person believed it to be

true because, when made, it was so contrary to the

declarant’s proprietary or pecuniary interest or had so great

a tendency to invalidate the declarant’s claim against

someone else or to expose the declarant to civil or criminal

liability; and

(B) [the statement] is supported by corroborating

circumstances that clearly indicate its trustworthiness, if it

is offered in a criminal case as one that tends to expose the

declarant to criminal liability.

Pa.R.E. 804(b)(3).

Initially, we observe that Benson does not provide any indication as to

the statements by Reighard that he sought to introduce at trial or provide any

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precedent that supports a finding of its admissibility. Instead, he makes bald

statements about Reighard’s statement to the police and contends that was

admissible under Rule 804(b)(3). “Mere issue spotting without analysis or

legal citation to support an assertion precludes our appellate review of a

matter.” Commonwealth v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020)

(citation and brackets omitted). Therefore, this claim is waived.

Nonetheless, the trial court states that Benson sought to introduce

Reighard’s statements to the police that he saw the victims at Kralik’s home,

and they were ultimately killed in Kralik’s home. See Trial Court Opinion,

8/1/2023, at 26-27 (citing N.T., 10/20/2022, at 1043-46). The trial court

rejected Benson’s claim:

Here, Reighard's statements only demonstrated that he had some

alleged knowledge of the murders. None of Reighard’s

statements, however, rose to the level of tending to subject him

to criminal liability. … In other words, having some knowledge of

certain details of a crime does not per se subject someone to

criminal liability.[fn]

[fn] We note that Reighard’s statements were inconsistent

with the testimony of the Commonwealth’s witnesses

including, Kralik, Bergmann, Browning, Wyrick, and the

forensic evidence.

Trial Court Opinion, 8/1/2023, at 18 (footnote in original); see also N.T.,

10/20/2022, at 1045-46 (trial court’s denying admission of Reighard’s

statement at trial because “simply making statements, … things he may have

knowledge of, I didn’t hear any of those that would be statements against

interest”).

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We find no abuse of discretion in the trial court’s ruling. Reighard’s

statement contradicted the evidence of record and did nothing to expose him

to criminal liability. See Pa.R.E. 804(b)(3)(B); cf. Commonwealth v.

Statum, 769 A.2d 476, 480 (Pa. Super. 2001) (noting that an unavailable

witness’ statement was admissible under the statement against interest

hearsay exception because the witness admitted to the crime for which the

defendant had been charged). Therefore, the trial court properly denied

admission of the evidence.

8. Sufficiency of the Evidence

In his final claim, Benson contends that the evidence was insufficient to

support his first-degree murder convictions. Benson’s Brief at 34-35. Benson

argues that he did commit the murders, stating, “at best the record supports

a conviction of conspiracy or attempted murder, [as] the record evidence in

fact demonstrates that [Washington] committed the killings and that [Benson]

was simply part of a conspiracy.” Id. at 37.

Benson once again fails entirely to support his claim with citations to the

record or pertinent authority other than boilerplate law, or any discussion

thereof. See Johnson, 985 A.2d at 924. His claim is also without merit.

Our standard of review of sufficiency claims is as follows:

Because a determination of evidentiary sufficiency presents a

question of law, our standard of review is de novo and our scope

of review is plenary. In reviewing the sufficiency of the evidence,

we must determine whether the evidence admitted at trial and all

reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, were sufficient

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to prove every element of the offense beyond a reasonable doubt.

[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence. It is within the

province of the [factfinder] to determine the weight to be accorded

to each witness’s testimony and to believe all, part, or none of the

evidence. The Commonwealth may sustain its burden of proving

every element of the crime by means of wholly circumstantial

evidence. Moreover, as an appellate court, we may not re-weigh

the evidence and substitute our judgment for that of the

[factfinder].

Commonwealth v. Rosario, 307 A.3d 759, 764–65 (Pa. Super. 2023)

(citation omitted).

To convict a defendant of first-degree murder, the jury must find

that (1) a human being was unlawfully killed; (2) the defendant is

responsible for the killing; and (3) the defendant acted with a

specific intent to kill. Specific intent to kill can be established

through circumstantial evidence, such as the use of a deadly

weapon on a vital part of the victim’s body. Further, to prove

conspiracy, the trier of fact must find that: (1) the defendant

intended to commit or aid in the commission of the criminal act;

(2) the defendant entered into an agreement with another to

engage in the crime; and (3) the defendant or one or more of the

other co-conspirators committed an overt act in furtherance of the

agreed upon crime. Finally, each member of a conspiracy to

commit homicide can be convicted of first-degree murder

regardless of who inflicted the fatal wound.

Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008) (citations,

ellipses, and quotation marks omitted).

Here, the credible evidence established that Benson, Washington, and

Wyrick were part of a gang from Ohio. N.T., 10/19/2022, at 648-50; N.T.,

10/18/2022, at 255. After learning their drugs, money, and firearm were

stolen, the three sought to find the culprit and actively searched for the

victims. N.T., 10/19/2022, at 672-77, 680-83, 690-92. After Washington

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and Wyrick brought the victims to stash house, Benson arrived on the scene

and asked the victims the location of the drugs, money, and firearm. Id. at

692. Upon finding some of the drugs and money in Staniszewski’s truck,

Benson stated “I’m goin’ to kill these mother-fuckers.” N.T., 10/19/2022, at

697. Thereafter, Benson and Washington took the victims into the woods and

as Smith attempted to escape the scene, Benson shot him in the back. Id. at

701. Benson’s gun then jammed, and Washington left the scene to retrieve a

new gun while Wyrick and Benson waited with the victims. Id. at 703-04.

Washington returned to the scene with a gun and shot both victims twice in

the head. Id. at 704-05. Washington, Benson, and Wyrick fled the scene,

abandoned Staniszewski’s truck in another location after wiping it down, and

discarded their clothes and firearms. Id. at 706-08.

The evidence, viewed in a light most favorable to the Commonwealth,

established that Washington, Benson, and Wyrick conspired in finding the

victims, taking them to an isolated spot in the woods, killing them, and

disposing of the evidence. See Benson’s Brief at 37 (conceding that the

evidence supported a finding that he was part of the conspiracy). Therefore,

despite the fact Washington inflicted the fatal wounds on the victims, Benson

was guilty of first-degree murder for his role in the conspiracy to kill the

victims. See Montalvo, 956 A.2d at 932.

Judgment of sentence affirmed.

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5/9/2024

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