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[U] Commonwealth v. Benson

Superior Court of Pennsylvania

February 7, 2014

DION BENSON, Appellant


Appeal from the Judgment of Sentence entered October 4, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0013032-2009; CP-51-CR-0013011-2009; and CP-51-CR-0013401-2009.




Dion Benson ("Appellant") appeals from the judgment of sentence imposed after the trial court convicted him of aggravated assault, conspiracy to commit aggravated assault, carrying a firearm without a license, simple assault and intimidation of a witness. We affirm.

The trial court detailed the testimony presented at trial as follows:

On December 24, 2008, between 11 a.m. and 1 p.m., Darice Gardner exited a lottery store located on Ruscomb and Rosehill streets in Philadelphia. Notes of Testimony, August 20, 2012 pp. 22, 26. Gardner was standing on the corner of Rosehill Street in front of the lottery store waiting for a ride. Id. at 25-26. While Gardner was waiting, Appellant and Angel Valdes drove up to the corner and initiated dialogue with him from a silver car. Id. at 26, 28-31. Rather than converse with them, Gardner walked across the street away from Appellant and Valdes. Id. at 28-29. Appellant and Valdes again pulled the car up to the sidewalk next to where Gardner was standing. At that point, Appellant, in the passenger seat, was closest to Gardner, and he asked Gardner why was he standing out there and whether he was "hustling." Id. at 31, 34. Appellant and Gardner then began to argue. Id. at 31-33. After arguing for 20 minutes, Appellant and Valdes jumped out of the car and walked toward Gardner. Id. at 35.
Valdes subsequently grabbed Gardner's forearms with a tight grip and struck him in the face two times. Id. at 36-40. Appellant watched from three feet away. Id. 38-39. Once Gardner freed himself, he punched Valdes. Id. at 40. When doing so, Gardner felt a strike to the left side of his head and blacked out. Id. at 41-44. Although Gardner did not see who punched him, he knew it was not Mr. Valdes. Moreover, Appellant was the only other person in the immediate vicinity. Id. at 43.
When Gardner regained consciousness he went home and told his wife (Angela White) that he had been "jumped." Id. at 176. Two minutes later, Gardner left the house to look for Appellant and Valdes. Id. at 177. Five minutes later Angela White left the house. Notes of Testimony, August 21, 2012, p.14. While looking for Appellant and Valdes, Gardner grabbed a metal pipe from an alley to defend himself. Notes of Testimony, August 20, 2012, pg. 47-48. Ms. White later saw Gardner chase Appellant with the pipe. Id. at 177. As he was being pursued, Appellant ordered Valdes to drive the car and shoot Gardner. Id. at 52, 179. Gardner asked Valdes not to get involved since there was no disagreement between the two of them. Id. at 52. Notwithstanding, Valdes complied with Appellant's orders by driving the car, rolling down his window, and firing shots at Gardner from the car approximately ten to fifteen feet away. Id. at 55-57. None of the shots hit Gardner. Id. After the shots were fired, Gardner stopped chasing Appellant, and eventually both he and his wife went home. Id. at 57-58.
On December 25, 2008, Ms. White went to the same lottery store with her child to buy milk. After she left the store, Valdes called her over to his car. However, White did not go to the car. Instead, White went home and informed her husband. Id. at 63, 189-191. Gardner later went to the lottery store with a friend ("L"). Id. at 64. After leaving the store fifteen minutes later, Gardner saw Appellant with a gun. Id. at 69, 75. At the time, Gardner was a few feet from Appellant. Id. at 74-75. Gardner described the gun as "like a .40 caliber" or "a .45 or something." Id. at 75.
While Gardner and "L" were standing outside the store, Appellant told "L" to "move". Id. at 75-76. At that point, Appellant was standing three feet from Gardner, and Valdes was behind a little red truck. Id. at 78. Gardner felt as though he was being trapped. Id. Suddenly, Appellant fired two shots. Id. at 77-80. After the second shot, Gardner fled down Rosehill Street. As Gardner was running, Appellant fired a third shot. Id. at 78-80. All three shots missed Gardner. In the meantime, Valdes jumped into a silver car as Appellant chased Gardner for two blocks. Id. at 82. Gardner escaped his pursuers by running and dipping between cars. Id. at 83. He eventually climbed through the window of his sister-in-law's (Sandy's) house. Id. at 84-85.
On December 26, 2008, Gardner and White flagged down Officer Joseph O'Neill. Id. at 198, Notes of Testimony, August 21, 2012, pg. 43. Gardner explained that Appellant and Angel Valdes had shot at him on December 24th and 25th. Notes of Testimony, August 21, 2012, pg. 46. Officer O'Neill took Gardner and White to the police station where they gave a statement explaining what had happened. Id. at 46. Gardner also gave a description of Appellant and Valdes, and the two cars they had driven on December 24th and 25th. Id. at 46-48. Lastly, Gardner and White gave the address where Appellant and Valdes were living. Id. at 48. Later that day, the police arrested Mr. Valdes. Id. at 59-66. Notes of Testimony, August 20, 2012, pg. 92.
On January 5, 2009, Gardner testified at Valdes' preliminary hearing. Notes of Testimony, August 20, 2012, pg. 93, 206. At the conclusion of the hearing, the court scheduled Valdes' next hearing in March. Before the March hearing, Appellant drove up and down the street in front of Gardner and White's house. Notes of Testimony, August 20, 2012, pg. 96. Appellant later walked up to the front steps of Gardner and White's house and told them that he could have killed both of them because he had been watching them. Id. at 94-95, 200. Appellant also told them that he would pay them not to go to court. Id. at 94. Appellant further told them "Make sure you all don't go to court tomorrow." Id. at 200. In response, Gardner and White called Assistant District Attorney Lynne O'Brien and left a voicemail message for Detective Brooks informing them about the threats. Id. at 201; Notes of Testimony, August 21, 2012, pg. 28. On February 24, 2009, the police tried to locate Appellant without success.
On March 21, 2009, Appellant made further contact with the Complainant and White. On this day, Appellant saw Gardner and White at a Sunoco gas station. On this occasion, Appellant made Gardner and White two offers. Appellant first offered Gardner and White five thousand dollars not to [sic] go to court for Valdes' case. He then offered them five thousand dollars not to [sic] come to court for his own case. Id. at 97-98. Although the police subsequently tried to locate Appellant, they learned that he had fled the court's ...

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