Com. v. Bickerstaff, J. ( 2022 )

J-S06026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN BICKERSTAFF :
:
Appellant : No. 1116 EDA 2021
Appeal from the Judgment of Sentence Entered January 26, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005500-2011
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 13, 2022
John Bickerstaff appeals from the judgment of sentence imposed after
this Court granted post-conviction relief in the form of resentencing.
Bickerstaff argues his preliminary hearing offended his rights to due process
and confrontation and the jury verdict was against the weight of the evidence.
Because Bickerstaff’s issues do not relate to his resentencing, they are not
properly before the Court. We therefore affirm.
Our disposition of this case is controlled by its procedural history. In
2012, a jury convicted Bickerstaff of attempted murder and related offenses
stemming from the shooting of Michael Dowling.1 See Trial Court Opinion,
filed July 12, 2021, at 2. The court sentenced Bickerstaff to an aggregate term
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1 The jury found Bickerstaff guilty of Attempted Murder, Aggravated Assault,
Possession of an Instrument of Crime, Firearms not to be Carried Without a
License, and Carrying Firearms in Public. See 18 Pa.C.S.A. §§ 901(a),
2702(a), 907(a), 6106(a)(1), and 6108, respectively.
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of 20 to 40 years’ imprisonment. Bickerstaff filed a timely notice of appeal,
and this Court affirmed the judgment of sentence. Bickerstaff filed a petition
for allowance of appeal to the Pennsylvania Supreme Court, which was denied.
Bickerstaff filed a timely pro se Post-Conviction Relief Act (“PCRA”)
petition in 2015. See 42 Pa.C.S.A. §§ 9541-9546. The PCRA court dismissed
the petition, and Bickerstaff appealed. This Court found merit to Bickerstaff’s
argument that his sentence for attempted murder exceeded the lawful
maximum because the Commonwealth had not given him notice of its intent
to prove serious bodily injury related to the attempted murder. See
Commonwealth v. Bickerstaff, 204 A.3d 988, 994-98 (Pa.Super. 2019).
We vacated the entire judgment of sentence and remanded for resentencing.
We did not in any way upset the conviction. The Supreme Court denied
Bickerstaff’s petition for allowance of appeal, and the case returned to the trial
court.
Prior to resentencing, Bickerstaff filed a Petition for Habeas Corpus and
an Amended Petition for Habeas Corpus, claiming the Commonwealth failed
to present a prima facie case at Bickerstaff’s preliminary hearing. The trial
court denied the Petition,2 and resentenced Bickerstaff to an aggregate
sentence of ten and one-half to 21 years’ imprisonment. Bickerstaff filed a
post-sentence motion, again challenging the preliminary hearing. The motion
was denied by operation of law.
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2 See N.T., Resentencing, 1/26/21, at 9.
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Bickerstaff filed a timely notice of appeal. He describes his issue as
follows:
Did the lower court err by denying [Bickerstaff’s] post-sentence
motion as he was never identified as the shooter at either
preliminary hearing where only hearsay testimony was used to
connect him to the crime; his right to confront and cross-examine
witnesses, right to counsel and his due process rights were
violated? Moreover, [Bickerstaff] asserts that the subsequent trial
did not cure these defects as the guilty verdict was against the
weight of the evidence as evidence was presented that the co-
defendant was previously identified, in-court, as the shooter.
Bickerstaff’s Br. at 7.
Bickerstaff argues that because the Commonwealth used solely hearsay
testimony to identify him as the shooter at the preliminary hearing, he was
denied the right to due process and confrontation. Id. at 23 (citing
Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020)). Bickerstaff
acknowledges this Court had remanded the case for the limited purpose of
resentencing, but nonetheless requests we “reach the merits of his
McClelland claim due to the severity of the defects at the preliminary
hearing” and because it “would be in line with notions of fair play and in the
interest of justice.” Id. at 24. He also claims this issue is not waived for failure
to raise it after the preliminary hearing, because McClelland had not yet been
decided at the time. Bickerstaff’s Reply Br. at 7.
Bickerstaff further argues the verdicts were against the weight of the
evidence because the eyewitness who identified Bickerstaff at trial as the
shooter had not done so at the first preliminary hearing and there was no DNA
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or fingerprint evidence linking Bickerstaff to the firearm used in the murder,
which was recovered from the trunk of a car registered in someone else’s
name. Bickerstaff’s Br. at 20-22. He asserts that although he raised his weight
claim in his first appeal and then abandoned it in his brief, this claim is not
waived because he “is not directly making a traditional weight argument” but
including it “for the purpose of showing that the due process/confrontation
clause violations and complete lack of evidence establishing a prima facie case
at the preliminary hearings, were defects that were not cured by the trial.”
Id. at 25.
We cannot reach the merits of Bickerstaff’s issues. When this case was
last before us, we did not expand Bickerstaff’s direct appeal rights or disturb
his conviction, but only granted relief in the form of remand for resentencing.
Bickerstaff, 204 A.3d at 998. We are therefore limited to matters stemming
from the resentencing. See Commonwealth v. Cook, 175 A.3d 345, 350
(Pa.Super. 2017) (holding, on appeal following remand for the correction of
an illegal sentence, appellant could not raise challenges to guilt phase of trial).
Neither an attack on the propriety of his preliminary hearing nor a challenge
to the weight of the evidence stem from Bickerstaff’s resentencing.
Even if this were Bickerstaff’s direct appeal from his initial judgment of
sentence, we would not grant relief on his McClelland claim. In McClelland,
the defendant filed an appeal from the order denying the motion seeking a
writ of habeas corpus dismissing the charges following the preliminary
hearing. McClelland, 233 A.3d at 725. The Supreme Court held that hearsay
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evidence alone is insufficient to establish a prima facie case at a preliminary
hearing. Id. at 721.
Bickerstaff, however, did not present this issue on an appeal from the
denial of habeas corpus following his preliminary hearing. Instead, Bickerstaff
proceeded to trial, where his jury conviction superseded the preliminary
hearing and mooted any defects in the preliminary hearing. See
Commonwealth v. Haney, 131 A.3d 24, 36 (Pa. 2015) (finding challenge to
evidence offered at preliminary hearing rendered moot by subsequent jury
conviction). Therefore, even if Bickerstaff had raised the McClelland issue on
direct appeal from his initial judgment of sentence, it would not have provided
a basis for relief. See Commonwealth v. Rivera, 255 A.3d 497, 503
(Pa.Super. 2021) (“the Supreme Court did not intend to extend McClelland’s
holding to cases such as this one, where the complained-of defect in the
preliminary hearing is subsequently cured at trial”), reargument denied (July
29, 2021), appeal granted, No. 494 MAL 2021, 2022 WL 536442 (Pa. Feb. 23,
2022).3
Judgment of sentence affirmed.
Judge King joins the memorandum.
Judge Kunselman files a concurring statement.
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3 Bickerstaff’s weight claim, which is meritless in any event, does not change
the analysis. See Commonwealth v. Upshur, 764 A.2d 69, 74 (Pa.Super.
2000) (en banc) (stating that it is solely for the jury to determine the
credibility of witnesses and to resolve any conflicts or inconsistencies in the
evidence).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2022
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