Com. v. Mitchell, T.

J. A29007/16
2016 Pa. Super. 279
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TIANT RASHAAD MITCHELL, :
:
Appellant : No. 633 WDA 2015
Appeal from the Judgment of Sentence November 3, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0015446-2012
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
OPINION BY DUBOW, J.: FILED DECEMBER 8, 2016
Appellant, Tiant Rashaad Mitchell, appeals from the Judgment of
Sentence entered in the Allegheny County Court of Common Pleas following
his jury trial convictions for Attempted Murder and related offenses. After
careful review, we affirm.
The underlying facts, as summarized in the trial court’s 1925(a)
Opinion, are as follows:
In the late evening hours of October 11, 2012, Wanda Moore
drove her daughter, Shawnece Moore, and Appellant (Shawnece
Moore’s husband) to a bar in the South Side section of the City
of Pittsburgh. Wanda Moore returned to the bar approximately
one hour later with her husband Gary Evans, to pick up
Shawnece and Appellant. Evans and Wanda Moore entered the
bar to have a drink with Appellant and Shawnece. When another
man in the bar bought the group a round of drinks, Appellant
became angry because he thought the man was “trying to talk
to” Shawnece. Nonetheless, the group left the bar without
incident at 2:00 A.M., and Wanda Moore drove Evans,
Shawnece, and Appellant to her home in the Garfield
neighborhood of the city.
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When they arrived at Wanda Moore’s home, Appellant was still
agitated about the man who purchased the round of drinks at
the bar, and he stated that he was “going to do things.” The
group continued to drink, and Appellant began to argue with
Wanda Moore and Evans. Wanda Moore repeatedly told
Appellant not to talk like that in her house, and as a result of
Appellant’s agitated and confrontational state, Evans drove
Appellant and Shawnece to their home on Millerdale Street, in
the adjacent Stanton Heights neighborhood.
Shawnece’s four children were asleep at home when she and
Appellant arrived: her three older children were upstairs, and her
one-year old daughter was downstairs. Once inside the home,
Appellant pointed a gun at Shawnece, calling her names and
threatening her. Appellant was drunk and belligerent, and he
also pointed the gun at Shawnece’s one[-]year[-]old daughter,
and called her names. Appellant started to scream louder, and
Shawnece began yelling at Appellant about him having a gun.
Shawnece’s eighteen[-]year-old son Jamil awoke during that
commotion, and called down from the top of the staircase to
determine if his mother was okay. Appellant told Jamil to go
back to bed, but Jamil waited until his mother said she was okay
before he returned to his room. Concerned about Appellant
having a gun, Jamil locked his bedroom door and barricaded
himself against it.
Shortly thereafter Appellant went upstairs and attempted to
open Jamil’s door but he could not gain entry to the bedroom.
Appellant cocked the gun outside Jamil’s bedroom door.
Shawnece came upstairs and was able to persuade Appellant to
leave the home by offering to buy him cigarettes. They left the
home and as they were walking together near the 900 block of
Millerdale Street, Appellant fired the gun into the air three times.
Appellant told Shawnece that he wanted to die, and that he
would shoot at the police officers when they arrived so that they
would shoot back and kill him. In fact, a resident of Millerdale
Street had heard the shots and called 911 to report the shots
fired, and dispatch alerted officers to that call.
Several Pittsburgh police officers, including Officer Andrew
Baker, responded to the dispatch at 5:00 A.M. The dispatch
included information that three shots were fired by a black male
in a white sweatshirt on Millerdale Street. As Officer Baker
approached Millerdale Street from Schenley Manor Drive, he
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observed Appellant, in a white sweatshirt, walking in the middle
of the street with Shawnece. Officer Baker stopped his marked
patrol vehicle, opened his door, and Appellant immediately
pulled a gun out of his waistband and began to shoot at Officer
Baker. Officer Baker was able to get out of his vehicle and
return fire. Officer Baker moved to the back of his vehicle for
better cover and to radio for backup. Appellant ran across the
front of the patrol vehicle and continued to shoot at Officer
Baker, and Officer Baker again returned fire. Appellant stopped
shooting when he fell into a ditch. He raised his hands yelling
“I’m done, I’m done. I'm shot, I'm shot.”
Appellant’s gunfire struck Officer Baker in the center area of his
chest, creating a hole in his exterior shirt and an indentation in
his bulletproof vest. Appellant’s gunfire also struck Officer
Baker’s vehicle four times. Officer Baker’s return fire struck
Appellant in the ankle and buttocks. During the exchange of
gunfire Shawnece ran into the yard of a nearby home, and she
was struck in the hand by a ricochet bullet fragment.
Backup officers arrived on scene within one minute of Officer
Baker’s call for backup, and Appellant was taken into custody. A
9mm firearm was recovered twenty feet from where Appellant
was arrested.
* * *
On August 6-7, 2014, Appellant proceeded to a jury trial. The
jury found Appellant guilty of criminal attempt (homicide),
assault of a law enforcement officer, aggravated assault,
carrying a firearm without a license, endangering welfare of
children, simple assault, and three counts of recklessly
endangering another person, and not guilty of one count of
simple assault. On November 3, 2014, Appellant was sentenced
by the trial court to an aggregate sentence of thirty to sixty
years’ incarceration. On November 12, 2014, Appellant filed a
post[-]sentence motion, which was denied by operation of law
on March 18, 2015.
Trial Court Opinion, filed 1/14/16, at 3-8 (footnotes and citations omitted).
Appellant filed a Notice of Appeal on April 17, 2015. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant presents one issue for our review:
Is [Appellant] entitled to a new trial in order to remedy the
violation of his federal and state constitutional rights to
confrontation, cross-examination, and due process that occurred
where the Commonwealth was permitted to present as
substantive evidence the preliminary hearing testimony of a
prosecution witness who willfully failed to appear for trial and
where the opportunity for full and fair cross[-]examination did
not and necessarily could not have existed?
Appellant’s Brief at 6.
Insofar as Appellant’s constitutional challenge raises a question of law,
our standard of review over the trial court’s admission of the contested
testimony is de novo and our scope of review is plenary. Commonwealth
v. Yohe, 39 A.3d 381, 384 (Pa. Super. 2012).
“Our Supreme Court has made clear that the admission at trial of
previously [recorded] testimony depends upon conformity with applicable
evidentiary rules and the defendant’s constitutional right to confront
witnesses against him.” Commonwealth v. Leak, 22 A.3d 1036, 1043-44
(Pa. Super. 2011). See also Commonwealth v. Rizzo, 726 A.2d 378, 380
n.2 (Pa. 1999) (“Pennsylvania law 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.”); Pa.R.E. 804(b)(1).
“Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required: unavailability and a
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prior opportunity for cross-examination.” Commonwealth v. Allshouse,
36 A.3d 163, 171 (Pa. 2012) (citing Crawford v. Washington, 541 U.S.
36, 68 (2004)). “Whether prior testimony was given at trial or at any other
proceeding, where, as here, admission of that prior testimony is being
sought as substantive evidence against the accused, we conclude that the
standard to be applied is that of full and fair opportunity to cross-examine.”
Commonwealth v. Bazemore, 614 A.2d 684, 687 (Pa. 1992) (emphasis in
original).
“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 stage as extensively as he might have done at trial.”
Leak, supra at 1045 (citation omitted).
The trial court addressed this issue as follows:
Here, the parties agreed that Shawnece Moore was unavailable
pursuant to Pennsylvania Rule of Evidence 804, as she could no
longer be located. Though agreeing that Shawnece was
unavailable, Appellant argues that the testimony was
inadmissible because credibility and character were not at issue
at the preliminary hearing. However, otherwise admissible
preliminary hearing testimony will not be excluded merely
because defense counsel did not cross-examine the witness as
extensively at the preliminary hearing as he might have done at
trial, provided he had t[he] opportunity to do so and was not
denied access to vital impeachment evidence. Commonwealth
v. Johnson, 758 A.2d 166, 169 (Pa. Super. 2000). At the
preliminary hearing, defense counsel extensively cross-examined
Shawnece Moore, including the accuracy and credibility of her
perceptions that evening given her consumption of alcohol.
Appellant had a full and fair opportunity to cross-examine
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Shawnece at the preliminary hearing. Further, there is no
allegation or evidence that the Commonwealth withheld
impeachment evidence, or that the defense attorney at the
preliminary hearing was not permitted to cross-examine
Shawnece Moore as to her credibility or character. As such, the
[t]rial [c]ourt properly admitted the preliminary hearing
testimony of Shawnece Moore.
Appellant’s claim is without merit.
Trial Court Opinion at 16-17 (citations omitted).
We agree with the trial court’s analysis and conclusion. Appellant had
a full and fair opportunity to cross-examine the witness, but declined to do
so. Appellant does not allege that the Commonwealth withheld any
statements, criminal record history, or any other concerning factors relevant
under the case law. Accordingly, Appellant’s claim merits no relief and we
affirm Appellant’s Judgment of Sentence.1
1
While the outcome of the case is clear under our binding precedent, we
must highlight the potential unfairness to defendants in circumstances such
as this, where a court admits preliminary hearing testimony from an
unavailable witness as substantive evidence without the benefit of full cross-
examination. On the one hand, this Court has narrowed the rights of
defendants at preliminary hearings over time. See, e.g., Commonwealth
v. Ricker, 120 A.3d 349 (Pa. Super. 2015) (holding that “an accused does
not have the right to confront the witnesses against him at his preliminary
hearing” and “[Pa.R.Crim.P. 542(E)] does allow hearsay evidence alone to
establish a prima facie case”), appeal granted, 135 A.3d 175 (Pa. 2016);
Commonwealth v. Landis, 48 A.3d 432, 448 (Pa. Super. 2012) (holding
that “it is inappropriate for the trial court to make credibility determinations
in deciding whether the Commonwealth established a prima facie case.”);
Pa.R.E. 101, Comment (“Traditionally, our courts have not applied the law of
evidence in its full rigor in proceedings such as preliminary hearings…”);
Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 101.02
et seq. (2016 ed. LexisNexis Matthew Bender). On the other hand, we have
continued to raise the stakes and importance of a defendant’s cross-
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Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2016
examination opportunities at the preliminary hearing in cases such as
Appellant’s. See also Leak, supra. Given the increasing importance and
vitality of Crawford, we encourage our Supreme Court, the Criminal
Procedural Rules Committee, the Committee on the Rules of Evidence, and
our Pennsylvania General Assembly to consider carefully the adequacy of our
evidentiary rules and case law governing the conduct of preliminary hearings
in light of this growing tension with the Confrontation Clause under both the
federal and state constitutions.
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