Com. v. Hooker, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIF HOOKER :
:
Appellant : No. 643 EDA 2016
Appeal from the Judgment of Sentence June 26, 2008
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001279-2007
BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*
MEMORANDUM BY OTT, J.: FILED MAY 23, 2017
Sharif Hooker appeals nunc pro tunc from the judgment of sentence
imposed on June 26, 2008, in the Court of Common Pleas of Philadelphia
County.1 A jury convicted Hooker of three counts of criminal attempt –
murder, three counts of aggravated assault, and one count each of robbery
– threat of immediate serious injury, kidnapping – facilitate a felony, and
criminal conspiracy.2 The trial court subsequently imposed an aggregate
sentence of 20 to 40 years’ imprisonment. In this appeal, Hooker raises the
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*
Retired Senior Judge assigned to the Superior Court.
1
Hooker’s direct appeal rights were reinstated for the second time via a
successful Post-Conviction Relief Act (PCRA) petition. See 42 Pa.C.S. §§
9541–9546.
2
See 18 Pa.C.S. §§ 901(a), 2702(a), 3701(a)(1)(ii), 2901(a)(2), and
903(a)(1), respectively.
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following issues: (1) the sufficiency of the evidence, (2) the legality of his
mandatory minimum sentences, (3) the discretionary aspects of his
sentence, (4) merger, and (5) credit for time served. Based upon the
following, we affirm Hooker’s convictions but vacate the judgment of
sentence and remand for resentencing.
The trial court summarized the procedural history of this appeal, as
follows:
On March 25, 2008, at the conclusion of his jury trial before the
Honorable[] John J. O’Grady, Jr., [Hooker] was convicted of:
Criminal Conspiracy Engaging – Murder[3]; Three Counts of
Aggravated Assault; Three Counts of Criminal Attempt - Murder;
Robbery with Threat of Serious Bodily Injury; and Kidnapping to
Facilitate a Felony. On June 26, 2008, [Hooker] was sentenced
to periods of confinement in a state correctional institution for
consecutive periods of 5 to 10 years for each of the three
charges of aggravated assault and the charge of conspiracy to
commit murder and concurrent periods of confinement of 10 to
20 years for the charge of attempted murder and 5 to 10 years
for the charge of robbery. [Hooker’s] cumulative sentence is 20
to 40 years confinement. [Hooker] did not take [a] direct appeal.
[Hooker] has since filed two petitions pursuant to the Post
Conviction Relief Act (PCRA). [Hooker’s] first PCRA petition was
timely filed August 20, 2009, pursuant to PCRA, 42 Pa.C.S.A.
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3
The trial court inadvertently states Hooker was convicted of criminal
conspiracy engaging – murder. Count 1 of the Information charged Hooker
with “criminal conspiracy engaging – (F1),” and specified the “criminal
objective” as “murder/assault.” Information, 2/16/2007 (Count 1). The jury
found Hooker guilty of criminal conspiracy and, on the verdict sheet, as to
the question of the object of the conspiracy, circled “aggravated assault”
and crossed out “murder.” N.T., 3/25/2008, at 41; Verdict Report,
3/25/2008, at 2.
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§ 9545(b)(1) seeking reinstatement of appellate rights nunc pro
tunc, which the PCRA court granted April 9, 2010. [Hooker]
timely filed his Notice of Appeal May 6, 2010. Instead of filing a
1925(b) Statement of Matters Complained of on Appeal,
[Hooker’s] counsel filed a petition to withdraw and an Anders[4]
brief, stating there were no meritorious issues to appeal. After a
thorough review, the Superior Court granted counsel’s
withdrawal and affirmed [Hooker’s] conviction and sentence.
See Commonwealth v. Hooker, No. 1246 EDA 2010 (Pa.
Super. Sept 12, 2011) (Non-precedential).
[Hooker’s first] PCRA petition [following the Superior Court’s
decision affirming the judgment of sentence] was timely filed
October 24, 2011 seeking reinstatement of his appellate rights
on the grounds that [Hooker] did not receive proper notice of
Counsel’s Ander[s] brief. The Court granted [Hooker’s] petition
on February 18, 20
16. On February 24, 2016, [Hooker] timely filed the instant
appeal and March 9, 2016, filed his Statement of Errors pursuant
to Pa.R.A.P. 1925(b)[.]
Trial Court Opinion, 7/18/2016, at 1–2.
The first issue raised in this appeal is a challenge to the sufficiency of
the evidence. Our standard of review for a sufficiency challenge is well
settled:
When reviewing a sufficiency of the evidence claim, an appellate
court must view all the evidence and reasonable inferences
therefrom in a light most favorable to the Commonwealth as
verdict winner and must determine whether the evidence was
such as to enable a fact finder to find that all of the elements
of the offense[] were established beyond a reasonable doubt.
Commonwealth v. Castelhun, 889 A.2d 1228, 1230-32 (Pa.
Super. 2005) (internal citations omitted). Moreover, when
reviewing the sufficiency of the evidence, this Court may not
substitute its judgment for that of the fact-finder; if the record
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4
Anders v. California, 386 U.S. 738 (1967).
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contains support for the convictions they may not be disturbed.
Commonwealth v. Hartle, 2006 Pa. Super. 45, 894 A.2d 800,
803 (Pa. Super. 2006). Lastly, the finder of fact may believe all,
some or none of a witness’s testimony. Castelhun, 889 A.2d at
1232.
Commonwealth v. Holley, 945 A.2d 241, 246-47 (Pa. Super. 2008).
This Court previously summarized the evidence, viewed in the light
most favorable to the Commonwealth as the verdict winner, as follows:
At 8:15 p.m., on August 24, 2006, [Curtis Williams, Jr.] drove
his employees home from work. N.T., 3/18/08, at 58. After
dropping off his employees, Williams saw Hooker at the corner of
55th and Broomall Streets in Philadelphia. Id. at 58-59. Williams
stopped his truck and began talking to Hooker. Id. at 59. At
some point, Hooker entered the truck, sitting in the driver’s seat,
while Williams slid over into the passenger seat. Id. at 60-61.
Immediately thereafter, [Hooker’s co-defendant, Aaron Briddell]
barged into the truck by means of the passenger side door. Id.
at 62.
Once inside of the truck, Briddell pulled out a gun and demanded
that Hooker drive Briddell to Garman Street. Id. at 63.
According to Williams, Briddell “started to act crazy and put the
gun in [sic] my head[,]” and that both men began beating him.
Id. at 64; N.T., 3/19/08, at 228. Briddell also demanded money
from Williams, threatening to kill him. Id. at 228. The men took
$130 from Williams’s pocket and drove him to an alley. Id. at
229. While stopped in the alley, two other men approached the
vehicle and told Briddell and Hooker that they should kill
Williams. Id.
Hooker and Briddell then drove Williams to 73rd and Garman
Streets. N.T., 3/18/08, at 65-66. When the vehicle stopped on
Garman Street, Williams hailed a man known to him as “Geese.”
N.T., 3/19/08, at 229. As Geese walked towards the car window,
Williams jumped out of the vehicle and ran towards the steps of
a nearby house. N.T., 3/19/08, at 229-30. Williams repeatedly
shouted out to Geese, “They’re stickup guys!” Id. at 230. In a
signed statement to police, the contents of which were testified
to at trial, Williams specifically stated that both Hooker and
Briddell shot at him as he ran up the steps to the house. Id. In
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his signed statement, Williams described Hooker as shooting at
him with an “automatic gun.” “It was a black gun.” Id. at 232.
Susan Georigi (“Georigi”) lived on Garman Street with her
daughter, Carin, at the time of the shooting. Id. at 110, 154-55.
Georigi testified that during the evening of August 24, 2006, she
saw a white car stop a few houses down from her residence on
Garman Street. Id. at 154-55. As Georigi sat on her front porch
with Carin, she saw Williams jump out of the truck and run up
her front stairs. Id. at 155. According to Georigi, Williams
“stopped on the landing and he said to the man that was talking
to him in the truck, ‘run, they’re going to shoot, it’s a setup.’”
Id. As Williams said the word “shoot,” “the bullets started
coming, [and] Carin and I jumped up and tried to run into the
house[.]” Id. At that time, Georigi saw that Carin had been
struck by a bullet above her ear. Id. Subsequently, Carin
received 12 to 15 stitches for the wound at the hospital. Id. at
157.
Carin testified at trial that she, too, saw Williams jump out of the
vehicle, run up her stairs and yell “[i]t’s a setup, they’re going to
shoot.” Id. at 111. As Carin fled inside of the house, she felt a
burning sensation on her head and discovered that her head was
bleeding. Id. According to Carin, three bullets struck Georigi’s
porch roof, one struck the sidewall of the house and another
struck the roof. Id. at 135.
Malik[a] Huff (“Huff”) testified that on August 24, 2006, while
visiting a friend’s house and standing near the door, a man
opened the door of the house. Id. at 163, 165-66. As the door
opened, Huff was shot in her right thigh. Id. at 166.
Commonwealth v. Hooker, 34 A.3d 220 [1246 EDA 2016] (Pa. Super.
2016) (unpublished memorandum, at 7–9).
Hooker argues the Commonwealth’s evidence was insufficient to
convict him of attempted murder because there was no showing he intended
to kill the complainants. See Hooker’s Brief at 7. Although Hooker states in
his brief that “[t]he evidence was insufficient to convict [him] of two counts
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of attempted murder,”5 we note Hooker was convicted of three counts of
attempted murder — as to Williams, Giorigi, and Huff.
Here, Hooker contends “[t]he shooting occurred to effectuate a
robbery and escape therefrom and the shots fired were not directed at
anyone in particular but in a scatter shot way.” Id. Hooker maintains, the
Commonwealth did not establish the requisite mens rea for the crime, i.e.,
the specific intent to kill. Id.
The legal authority that applies to the charges of attempted murder
was set forth by this Court in Hooker’s previous appeal:
“A person commits an attempt when, with intent to commit a
specific crime, he does any at which constitutes a substantial
step toward the commission of that crime.” 18 Pa.C.S. § 901(a).
“A person may be convicted of attempted murder if he takes a
substantial step toward the commission of a killing, with the
specific intent in mind to commit such an act.” Commonwealth
v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008) (internal
quotation marks and citations omitted). “The substantial step
test broadens the scope of attempt by concentrating on the acts
the defendant has done and does not any longer focus on the
acts remaining to be done before the actual commission of the
crime.” Id. (citation omitted). Specific intent to kill may be
inferred from the use of a deadly weapon upon a vital part of the
body. Commonwealth v. Davis, 861 A.2d 310, 324 (Pa.
Super. 2004).
Hooker, supra, 34 A.3d 220 [1246 EDA 2016] (Pa. Super. 2016)
(unpublished memorandum, at 5–6).
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5
Hooker’s Brief at 7.
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Furthermore, relevant to the specific issue Hooker raises herein
regarding proof of the requisite mens rea, it is important to note the doctrine
of transferred intent provides the intent to murder may be transferred where
the person actually killed is not the intended victim.6 See Commonwealth
v. Padilla, 80 A.3d 1238, 1247 (Pa. 2013). See also Commonwealth v.
Thompson, 739 A.2d 1023, 1029-1030 (Pa. 1999) (citation omitted) (“The
doctrine of transferred intent provides that if the intent to commit a crime
exists, this intent can be transferred for the purpose of finding the intent
element of another crime.”); Commonwealth v. Jackson, 955 A.2d 441,
445-446 (Pa. Super. 2008) (concluding that evidence was sufficient to
support aggravated assault conviction under transferred intent doctrine
when bystander was injured in shooting).
Here, viewing the evidence and all reasonable inferences in the light
most favorable to the Commonwealth as verdict winner, we conclude the
evidence was sufficient to sustain Hooker’s three convictions for attempted
murder. When Williams fled from the vehicle, Briddell and Hooker both fired
their guns at him as he attempted to escape into a house. In the gunfire,
Carin Georigi and Malika Huff were struck by bullets. Although Hooker
argues the evidence is consistent with an intent to effectuate a robbery and
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6
The doctrine of “transferred intent,” is codified at 18 Pa.C.S. § 303(b). See
Commonwealth v. Jackson, 955 A.2d 441, 448 n.4 (Pa. Super. 2008),
citing Commonwealth v. Devine, 750 A.2d 899, 904 (Pa. Super. 2000).
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escape, the jury could reasonably infer that Briddell and Hooker shared a
specific intent to kill Williams by shooting at him as he attempted to run
away from them. See Commonwealth v. Jones, 610 A.2d 931, 938 (Pa.
1992) (specific intent to kill inferred from appellant’s conduct in firing
barrage of bullets at crowd of people in courtyard). Moreover, with regard
to Georigi and Huff, the doctrine of transferred intent applies, and the
specific intent to kill Williams transferred to Georigi and Huff who were both
hit by bullets. See Padilla, supra; Thompson, supra; Jackson, supra.
Accordingly, we reject Hooker’s sufficiency challenge to his convictions for
attempted murder.
The remaining issues raised by Hooker are attacks upon his sentence.
Because we agree with the Commonwealth that resentencing is required
without application of mandatory minimum sentences, and that the doctrine
of merger is applicable, we need not address Hooker’s challenge to the
discretionary aspects of his sentence and his claim that the trial court failed
to give him credit for time served.
By way of background, we point out that because Hooker’s direct
appeal rights were reinstated nunc pro tunc by the PCRA court, Hooker is
currently proceeding on direct appeal. Specifically, the effect of the
reinstatement of direct appeal rights nunc pro tunc based on a PCRA petition
is that the judgment of sentence is no longer final and, thus, the initial PCRA
is a nullity so that there cannot be an appeal from its partial denial. See
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Commonwealth v. Leslie, 757 A.2d 984, 985-86 (Pa. Super. 2000)
(holding that PCRA petition may be filed only after appellant has waived or
exhausted direct appeal rights). See also Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citation omitted) (“It is now well[-]
established that a PCRA petition brought after an appeal nunc pro tunc is
considered [an] appellant’s first PCRA petition, and the one-year time clock
will not begin to run until this appeal nunc pro tunc renders his judgment of
sentence final.”).
Here, Hooker’s appeal rights were initially reinstated in 2010 as the
result of a successful PCRA petition, and this Court affirmed the judgment of
sentence in 2011. Hooker then filed a subsequent PCRA petition, which
constituted a first petition for PCRA purposes. See Fowler, supra. For the
second time, the PCRA court reinstated Hooker’s direct appeal rights nunc
pro tunc, and this appeal followed. Therefore, Hooker’s judgment of
sentence is no longer final and he is now on direct appeal.
Having established the present procedural posture of this case, we
turn to Hooker’s challenge regarding his mandatory minimum sentences. In
Alleyne v. United States, 133 S. Ct. 2151 (2013), the United States
Supreme Court held that any fact that, by law, increases the penalty for a
crime must be treated as an element of the offense, submitted to a jury,
rather than a judge, and found beyond a reasonable doubt. See Alleyne,
133 S. Ct. at 2163. The effect of Alleyne was to invalidate a range of
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Pennsylvania sentencing statutes predicating mandatory minimum penalties
upon non-elemental facts and requiring such facts to be determined by a
preponderance of the evidence at sentencing. See Commonwealth v.
Wolfe, 140 A.3d 651, 653 (Pa. 2016).
In this case, the trial court imposed five-year mandatory minimum
sentences on the three counts of aggravated assault and one count of
criminal conspiracy pursuant to 42 Pa.C.S. § 9712 (“Sentences for offenses
committed with firearms”). The Commonwealth states in its brief that
“[b]ecause Pennsylvania’s mandatory [minimum] sentencing statutes have
been ruled unconstitutional under Alleyne and its progeny, [the]
Commonwealth does not oppose [Hooker’s] request for resentencing.”
Commonwealth’s Brief at 13–14 (citations omitted). We agree with the
Commonwealth that Hooker is entitled to resentencing.
In Commonwealth v. Valentine, 101 A.3d 801, 811–812 (Pa. Super.
2014), this Court, applying Alleyne, found the mandatory sentencing
provision of 42 Pa.C.S. § 9712 unconstitutional. Recently, the Pennsylvania
Supreme Court definitively held that, even if the issue is not preserved,
relief under Alleyne is available in cases on direct appeal. Commonwealth
v. Barnes, 151 A.3d 121 (Pa. 2016) (“[W]here the mandatory minimum
sentencing authority on which the sentencing court relied is rendered void
on its face, and no separate mandatory authority supported the sentence,
any sentence entered under such purported authority is an illegal sentence
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for issue preservation purposes on direct appeal. Thus, Appellant is entitled
to resentencing notwithstanding his failure to preserve his issue prior to
seeking our review.”). Accordingly, in this case, because Hooker is
proceeding on a reinstated direct appeal, he is entitled to the benefit of
Alleyne.
Furthermore, the Commonwealth concedes that Hooker “is correct that
the crimes of attempted murder and aggravated assault merge for
sentencing.”7 We agree the merger doctrine applies in this case. Here,
Hooker was sentenced on three counts of aggravated assault (Williams,
Georigi, and Huff) and one count of attempted murder (Georigi). 8 Hooker’s
crimes of attempted murder and aggravated assault against the three
complainants “arise from a single criminal act,” 42 Pa.C.S. § 9765,9 and “all
of the statutory elements of one offense are included in the statutory
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7
Commonwealth Brief at 14.
8
See Order, 6/26/2008.
9
Section 9765 of the Sentencing Code governs the merger of sentences, and
provides:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765.
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elements of the other offense.” Id. See Commonwealth v. Anderson,
650 A.2d 20, 24 (Pa. 1994) (holding that, for merger purposes, all of the
statutory elements for the crime of aggravated assault are included within
the statutory elements for the crime of attempted murder.). Therefore,
merger applies to the offenses of attempted murder and aggravated assault
for purposes of sentencing.10
Based on our conclusion that Hooker’s Alleyne and merger arguments
have merit, it is proper for this Court to vacate the sentence in its entirety
and remand for resentencing. See Commonwealth v. Goldhammer, 517
A.2d 1280, 1283 (stating generally if appellate court alters overall
sentencing scheme, then remand for re-sentencing is proper). Accordingly,
we affirm Hooker’s convictions but vacate the judgment of sentence and
remand for resentencing consistent with this memorandum.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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10
Hooker also argues that his offenses of attempted murder and conspiracy
to commit murder merge for purposes of sentencing, and in support cites 18
Pa.C.S. § 906 (“Multiple convictions of inchoate crimes barred”). See
Hooker’s Brief at 14. However, as we have already noted, the jury found
Hooker guilty of conspiracy to commit aggravated assault, not murder. See
Footnote 3, supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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