J-S27028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


*
    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.
J-S27028-17



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.
____________________________________________


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.




                                           -2-
J-S27028-17


        § 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
____________________________________________


4
    Anders v. California, 386 U.S. 738 (1967).



                                           -3-
J-S27028-17


     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

                                    -4-
J-S27028-17


      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


                                      -5-
J-S27028-17


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).


____________________________________________


5
    Hooker’s Brief at 7.




                                           -6-
J-S27028-17


       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
____________________________________________


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).




                                           -7-
J-S27028-17


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


                                      -8-
J-S27028-17


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


                                     -9-
J-S27028-17


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


                                       - 10 -
J-S27028-17


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

____________________________________________


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.



                                          - 11 -
J-S27028-17


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.




____________________________________________


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.



                                          - 12 -
J-S27028-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




                          - 13 -
