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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J. A29007/16


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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J. A29007/16


      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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