J-S49004-17

                                  2017 PA Super 283



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    GIANTE HILLIARD                            :   No. 887 WDA 2016

                      Appeal from the Order May 27, 2016
               In the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0013040-2015

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*

OPINION BY DUBOW, J.:                                  FILED AUGUST 31, 2017

        The Commonwealth appeals from the trial court’s May 27, 2016 Order1

entered by the Allegheny County Court of Common Pleas dismissing all

charges against Appellee, Giante Hilliard. After careful review, we reverse

the trial court’s May 27, 2016 Order and remand for further proceedings.

        On August 22, 2015, a vehicle pulled up beside Anthony Baltimore as

he was walking to work near a fire station in Pittsburgh.       Someone in the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  We note that the Commonwealth purports to appeal from the trial court’s
May 26, 2016 Order. Although this reflects the date on which the trial court
signed the Order and sent the Order to the parties, the certified record
shows that the Order was not entered on the docket and filed until May 27,
2016. See Pa.R.A.P. 301(a)(1) (providing that “no order of a court shall be
appealable until it has been entered upon the appropriate docket in the
lower court.”). We have changed the caption accordingly.
J-S49004-17


vehicle wearing a hoodie shot at Baltimore, hitting him nine times. 2       An

ambulance responded and transported Baltimore to the hospital.

       Pittsburg Police Homicide Detective Edward Fallert, after learning of

the shooting, entered the triage unit in the emergency room. He observed

Baltimore on a gurney with his clothing removed, hooked up to several

different machines, with nine hospital staff members discussing Baltimore’s

gunshot wounds to his trunk. Detective Fallert learned that Baltimore was

losing a lot of blood internally, and the hospital staff members were

preparing Baltimore for emergency surgery and about to rush him into the

operating room. Detective Fallert stated that he believed Baltimore “wasn’t

going to make it.” N.T., 10/20/15, at 18.

       Detective Fallert followed Baltimore as he was being rushed from the

triage unit to the operating room and asked Baltimore who had shot him.

Baltimore stated that Giante Hilliard (“Appellee”) had shot him. The hospital

staff members then rushed Baltimore into emergency surgery in the

operating room. Baltimore survived.

       That same day, Detective Fallert learned that Appellee was in the

same hospital with a gunshot wound to his hand. Detective Fallert entered

Appellee’s room and observed the wound.          After verbally giving Appellee


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2
  Baltimore suffered gunshot wounds to his back, neck, arms, legs, and
abdomen.



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Miranda3 warnings, Detective Fallert asked Appellee to describe how and

where he had been shot.           Appellee told Detective Fallert that he was “a

passenger in a vehicle when an unknown person fired a gun from outside the

vehicle and struck him in the hand.” N.T., 10/20/15, at 22. Appellee then

was dropped off at the hospital for treatment. Id.

        The Commonwealth arrested Appellee and charged him with one count

of Criminal Attempt (Homicide), one count of Aggravated Assault, and one

count of Carrying a Firearm Without a License.4

        On   October    20,    2015,    at     Appellee’s   Preliminary   Hearing,   the

Commonwealth called Baltimore and Detective Fallert to testify. Baltimore

testified about the shooting, the extent of his injuries, and his continued

medical treatment. Baltimore did not identify Appellee as the shooter, and

claimed that he “really couldn’t see who was in the vehicle” or who had shot

him.     Baltimore twice stated that “[t]here was a hoodie over his [the

shooter’s] head.”       N.T., 10/20/15, at 5, 7.            Baltimore testified that he

remembered speaking to officers at the hospital, but he did not recall what

he told them about who had shot him.

        Over Appellee’s hearsay objections, Detective Fallert testified about

Baltimore’s statement and the surrounding circumstances, as well as his
____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
    18 Pa.C.S. § 901, 18 Pa.C.S. § 2702, and 18 Pa.C.S. § 6106, respectively.




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interaction with Appellee in the hospital.             The court ultimately admitted

Detective Fallert’s testimony regarding Baltimore’s statement identifying

Appellee as the shooter as an excited utterance, but did not opine on the

Commonwealth’s        argument       that      the   statement   constituted   a   dying

declaration.5

       At the end of the Preliminary Hearing, Appellee argued that the

Commonwealth did not establish a prima facie case against him because it

relied solely on hearsay evidence to prove his identity as the shooter. He

claimed that the admission of the statement violated his confrontation rights

because Baltimore did not remember making the statement to Detective

Fallert.   Appellee further argued this evidence was unreliable because it

conflicted with Baltimore’s testimony. The Honorable Hugh F. McGough held

the case for trial, concluding that the Commonwealth had met its burden and

had established the prima facie case.6



____________________________________________


5
  See Pa.R.E. 803(2) (“The following are not excluded by the rule against
hearsay, regardless of whether the declarant is available as a witness: … A
statement relating to a startling event or condition, made while the declarant
was under the stress of excitement that it caused.”); Pa.R.E. 804(b)(2)
(“The following are not excluded by the rule against hearsay if the declarant
is unavailable as a witness: A statement that the declarant, while believing
the declarant’s death to be imminent, made about its cause or
circumstances.”).
6
 The court dismissed one count of Carrying a Firearm Without a License, 18
Pa.C.S. § 6106.



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       On March 3, 2016, Appellee filed a written Petition for Writ of Habeas

Corpus based solely on the issue of Baltimore’s statements arguing that the

Commonwealth failed to establish a prima facie case because the victim

testified at the Preliminary Hearing that he did not see who shot him. On

March 23, 2016, the Honorable Randal B. Todd conducted a hearing on

Appellee’s Petition for Writ of Habeas Corpus. At the hearing, Appellee also

argued that (1) Baltimore’s statement to Detective Fallert identifying the

shooter did not qualify as admissible evidence under the excited utterance

exception or the dying declaration exception to the hearsay rule, and (2) this

evidence was testimonial hearsay, which violated the Confrontation Clause.

Appellee argued that the trial court should essentially reassess and overturn

this evidentiary ruling, conclude that the Commonwealth failed to establish a

prima facie case, and dismiss all charges as a result. N.T., 3/23/16, at 5-7.

The trial court took the matter under advisement and the parties submitted

briefs.

       On May 27, 2016, Judge Todd granted Appellee’s Petition for Writ of

Habeas Corpus and dismissed all charges.

       On June 21, 2016, the Commonwealth filed a Notice of Appeal. Both

the Commonwealth and the trial court complied with Pa.R.A.P. 1925.7

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7
  In its Pa.R.A.P. 1925(a) Opinion, the trial court carefully considered the
admissibility of Detective Fallert’s testimony about Baltimore’s hospital
statement identifying Appellee as the shooter before concluding that the
(Footnote Continued Next Page)


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      The Commonwealth presents one issue for our review:

      Whether the trial court erred in granting the Petition for Writ of
      Habeas Corpus?

Commonwealth’s Brief at 4.

      The Commonwealth first challenges the trial court’s authority to revisit

Judge McGough’s evidentiary rulings given the narrow standard and scope of

review of a Petition for Writ of Habeas Corpus when considering the

sufficiency   of   the      evidence      presented     at    a    preliminary    hearing.

Commonwealth’s Brief at 14.

      “In reviewing a trial court’s order granting a defendant’s petition for

writ of habeas corpus, we must generally consider whether the record

supports the trial court’s findings, and whether the inferences and legal

conclusions     drawn       from     those       findings    are    free   from    error.”

Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (internal

quotation and citation omitted).           “A trial court may grant a defendant’s

petition for writ habeas corpus [after a preliminary hearing] where the

Commonwealth has failed to present a prima facie case against the

defendant.” Id.
                       _______________________
(Footnote Continued)

statement did not qualify as either an excited utterance or a dying
declaration. Moreover, the trial court concluded the admission of these
statements violated the Confrontation Clause and Crawford v.
Washington, 541 U.S. 36 (2004), because Detective Fallert’s purported
interrogation rendered the statement testimonial in nature. The trial court
did not address the propriety of its reconsideration of these evidentiary
rulings in the context of a Petition for Writ of Habeas Corpus.



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      The basic principles of law regarding the establishment of a prima facie

case at a Preliminary Hearing are well settled. “The preliminary hearing is

not a trial.”   Commonwealth v. Weigle, 997 A.2d 306, 311 (Pa. 2010).

“The principal function of a preliminary hearing is to protect an individual’s

right against an unlawful arrest and detention.”     Id.   “At this hearing the

Commonwealth bears the burden of establishing at least a prima facie case

that a crime has been committed and that the accused is probably the one

who committed it.” Id.; Pa.R.Crim.P. 542(D).

      “At the pre-trial stage of a criminal prosecution, it is not necessary for

the Commonwealth to prove the defendant’s guilt beyond a reasonable

doubt[.]”   Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003)

(citation omitted).   “A prima facie case exists when the Commonwealth

produces evidence of each of the material elements of the crime charged

and establishes probable cause to warrant the belief that the accused

committed the offense.” Weigle, supra at 311 (emphasis added, quotation

marks omitted). “Further, the evidence must be considered in the light most

favorable to the Commonwealth so that inferences that would support a

guilty verdict are given effect.” Santos, supra at 363.

      In addition, “the evidence should be such that if presented at trial, and

accepted as true, the judge would be warranted in allowing the case to go to

the jury.” Commonwealth v. Landis, 48 A.3d 432, 444 (Pa. Super. 2012)

(quotation, citation, and boldface omitted). “The standard clearly does not


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require that the Commonwealth prove the accused’s guilt beyond a

reasonable doubt at this stage.” Id. (citation and quotation omitted). Most

significant in this appeal, “[t]he weight and credibility of the evidence is not

a factor at this stage.” Id.

       Importantly, this Court has held in the post-trial context that, when

“evaluating the sufficiency of the evidence, we do not review a diminished

record.”   Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005)

(citation omitted).      “Rather, the law [provides] that we are required to

consider all evidence that was actually received, without consideration as to

the admissibility of that evidence or whether the trial court’s evidentiary

rulings are correct.”     Id. (citation omitted).    “Hearsay as provided by law

shall be considered by the issuing authority in determining whether a prima

facie case has been established.           Hearsay evidence shall be sufficient to

establish any element of an offense[.]” Pa.R.Crim.P. 542(E).8

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8
  This Court recently reviewed the 2013 amendment to Pa.R.Crim.P. 542,
which permitted the Commonwealth to establish, via hearsay, any element
of an offense for purposes of determining whether a prima facie case has
been established that the actor committed a criminal offense.           See
Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015), appeal
granted, 135 A.3d 175 (Pa. 2016). We held in Ricker that Rule 542 did not
run afoul of the constitutional right to confront witnesses under either the
Pennsylvania Constitution or the United States Constitution. The case was
argued before the Pennsylvania Supreme Court in December of 2016. To
date, no decision has been issued. “It is beyond the power of a Superior
Court panel to overrule a prior decision of the Superior Court, except in
circumstances where intervening authority by our Supreme Court calls into
question a previous decision of this Court.” Commonwealth v. Pepe, 897
(Footnote Continued Next Page)


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J-S49004-17


      This Court has previously criticized the grant of a petition for writ of

habeas corpus where the reviewing court concluded that evidence produced

at the preliminary hearing “might be subject to exclusion at trial” and

therefore disregarded the evidence in assessing the sufficiency of the

evidence produced at the preliminary hearing. See, e.g., Commonwealth

v. Keller, 823 A.2d 1004 (Pa. Super. 2003), abrogated on other grounds by

Commonwealth v. Dantzler, 135 A.3d 1109 (Pa. Super. 2016) (holding

that this Court in Keller improperly applied an abuse of discretion standard

of review). The Court in Keller concluded that dismissing the charges was

an improper remedy given the procedural posture of a pretrial writ of habeas

corpus because “the trial court deprived the Commonwealth of any

possibility of proving its case by other legally obtained evidence (if there was

any).” Id. at 1012 n.5. Further, this Court noted “that the prosecution will

not be able to prove its case at trial as a result of a suppression order . . . is

not a basis . . . for granting a pretrial writ of habeas corpus.” Id.

      Here the trial court concluded that the Commonwealth failed to

establish a prima facie case. Our review of the record indicates that the trial

court’s grant of Appellee’s Petition for Writ of Habeas Corpus is not

supported by the record and is based on improper legal conclusions.


                       _______________________
(Footnote Continued)

A.2d 463, 465 (Pa. Super. 2006) (internal citations omitted). Accordingly,
this Court’s prior decision in Ricker is binding.



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       Rather than reviewing the Preliminary Hearing transcript in conjunction

with all of the evidence presented at the Preliminary Hearing to determine

whether the “Commonwealth produce[d] evidence of each of the material

elements of the crime charged and establishe[d] probable cause to warrant

the belief that the accused committed the offense[s,]” the trial court

considered a diminished record when considering Appellee’s Petition for Writ

of Habeas Corpus. Weigle, supra at 311.

       The Commonwealth offered the statement at issue, which the court

admitted at the Preliminary Hearing. Thus, in ruling on the Petition for Writ

of Habeas Corpus, the court was bound to consider this evidence in

determining whether the Commonwealth met its prima facie burden. Gray,

supra at 567. The failure to do so constituted a misapplication of the scope

of review and relevant legal standards.            Id.   As a result, the extreme

remedy of dismissing all charges was erroneous.            We are constrained to

reverse on this basis.9

       We next address the Commonwealth’s remaining argument that the

trial court erred in concluding that the Commonwealth failed to present a

prima facie case against the defendant given the entirety of the evidence

submitted during the Preliminary Hearing. Commonwealth’s Brief at 19.
____________________________________________


9
  Given our resolution, standard of review, and scope of review, we do not
address the merits of whether the statement identifying Appellee as the
shooter met a hearsay exception or constituted testimonial hearsay admitted
in violation of the Confrontation Clause.



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        It is well-settled that “the evidentiary sufficiency, or lack thereof, of

the Commonwealth’s prima facie case for a charged crime is a question of

law as to which an appellate court’s review is plenary.” Commonwealth v.

Karetny, 880 A.2d 505, 513 (Pa. 2005). “Furthermore, our scope of review

is limited to determining whether the Commonwealth has established a

prima facie case.”    Commonwealth v. Heckman, 66 A.3d 765, 768 (Pa.

Super. 2013) (emphasis added).

        Appellant was charged with one count of Criminal Attempt (Homicide)

and one count of Aggravated Assault. Pursuant to Pennsylvania statute, “[a]

person commits attempt when, with intent to commit a specific crime, he

does any act which constitutes a substantial step toward the commission of

that crime.”    18 Pa.C.S. § 901.     Further, “[a] person is guilty of criminal

homicide if he intentionally, knowingly, recklessly or negligently causes the

death of another human being.” 18 Pa.C.S. § 2501. Additionally, “[t]he use

of a deadly weapon on a vital part of the human body is sufficient to

establish the specific intent to kill.”   Commonwealth v. Randolph, 873

A.2d 1277, 1281 (Pa. 2005).

        With respect to the charge of Criminal Attempt (Homicide), the

Commonwealth was required to present evidence to show that Appellee

committed a substantial step toward “intentionally, knowingly, recklessly or

negligently caus[ing] the death of another human being.”           18 Pa.C.S. §

2501.      Relevant to this case and the identity of the shooter, the


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Commonwealth needed to establish “probable cause to warrant the belief

that the accused committed the offense.” Weigle, supra at 311 (emphasis

added).

        The Commonwealth presented evidence that a male wearing a hoodie

pulled up next to Baltimore in a vehicle and shot him nine times in the back,

neck, arms, legs, and abdomen.             Baltimore testified about his substantial

injuries, for which he continues to receive medical treatment.                Detective

Fallert testified about Baltimore’s life-threatening situation in the hospital

and Baltimore’s statement identifying Appellee as the person who shot him.

Detective Fallert also testified about his interaction in the same hospital on

the same day with Appellee, who was also receiving treatment for a gunshot

wound to his hand.

        Considering    this     evidence    in   the   light   most   favorable   to   the

Commonwealth,         as   we    must,     the   Commonwealth’s       evidence    at   the

Preliminary Hearing sufficiently established each element of Criminal

Attempt (Homicide) for purposes of showing the existence of a prima facie

case.    Baltimore testified about the nature of his nine gunshot wounds to

vital parts of his body, which constituted serious bodily injury for which he

continues to receive medical treatment.                It is reasonable to infer the

shooter’s intent from both the number of gunshot wounds he inflicted and

the use of a deadly weapon upon a vital part of the victim’s body.                     See

Randolph, supra at 1281. The act of shooting at Baltimore at least nine


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times constitutes the commission of a sufficient substantial step that

supports the attempt aspect of this charge.            Moreover, for purposes of

establishing a prima facie case at the preliminary hearing stage of the

proceedings, the Commonwealth adequately established Appellee’s identity

through Detective Fallert’s testimony about Baltimore’s hospital statement,

the evidence of Appellee’s own suspicious statements to Detective Fallert in

the hospital, and Detective Fallert’s observation of the gunshot wound to

Appellee’s hand under suspicious circumstances at the same time on the

same date.

      “A person is guilty of [A]ggravated [A]ssault if he . . . attempts to

cause serious bodily injury to another, or causes such injury intentionally,

knowingly    or   recklessly    under      circumstances      manifesting     extreme

indifference to the value of human life[.]”         18 Pa.C.S. § 2702(a)(1).     The

Crimes Code defines “Serious bodily injury” as “[b]odily injury which creates

a   substantial   risk   of   death   or    which    causes    serious,     permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S. § 2301.

      With respect to the charge of Aggravated Assault, the Commonwealth

relied on the same evidence to establish at least a prima facie showing of

each element of Aggravated Assault as to show Attempted Homicide.

Aggravated Assault is a lesser-included offense of Criminal Attempt

(Homicide) for sentencing purposes when premised on the same act.


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J-S49004-17


Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994) (holding that

Aggravated Assault is a lesser-included offense of Attempted Murder in the

context of merger at sentencing).              As a result, we need not separately

address this charge.          The Commonwealth’s proof of Criminal Attempt

(Homicide) was legally sufficient as a matter of law to support Aggravated

Assault.

       Accordingly, we conclude that, with respect to each charge, the

Commonwealth met its “burden of establishing at least a prima facie case

that a crime has been committed and that the accused is probably the one

who committed it.” Weigle, supra at 311.

       Appellee has argued, and argues again in his Brief, that the trial

court’s    decision   properly    resolved      an   essential   contradiction   in   the

evidence.10      Any conflicts or discrepancies in the evidence, which are

questions regarding the weight and credibility of evidence, must be resolved

by the fact-finder at trial, not at the Preliminary Hearing. See Landis, 48

A.3d at 448 (holding that “it is inappropriate for the trial court to make

credibility   determinations       in   deciding     whether     the   Commonwealth

established a prima facie case.”).


____________________________________________


10
   Baltimore, who was shot in the back, testified at the Preliminary Hearing
that he did not see who shot him, which contradicted Detective Fallert’s
testimony at the Preliminary Hearing that Baltimore recalled and stated that
Appellee had shot him. Appellee’s Brief at 8 n.3; N.T., 3/23/16, at 6.



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J-S49004-17


       Here, in granting the Writ of Habeas Corpus, the trial court improperly

weighed the evidence.        See Trial Court Opinion, filed 1/17/17, at 2

(describing that Baltimore testified that he did not recall making any

statements in the hospital when he in fact remembered speaking with

officers but did not recall what he told them about the shooting); id. at 8-9

(discussing whether Baltimore remembered the shooting and who shot him);

id. at 11-12 (describing deficiencies in the record about the circumstances of

Baltimore’s   statement    to   Detective   Fallert   rendering   the   statement

testimonial). The trial court omitted mention of Detective Fallert’s testimony

about his interactions with Appellee at the hospital. See Trial Court Opinion,

filed 1/17/17, at 2.

       In doing so, the trial court assumed the responsibilities of a fact-finder

in order to resolve conflicts in the evidence. That is not the function of a

court at either a preliminary hearing or when considering whether to grant a

writ of habeas corpus after a preliminary hearing.       See Weigle, supra at

311.

       After reviewing the evidence presented at the Preliminary Hearing in

the light most favorable to the Commonwealth, we conclude that the

Commonwealth met its burden of establishing at least a prima facie case

“that a crime has been committed and that the accused is probably the one

who committed it.” Weigle, supra at 311. To view the evidence otherwise




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J-S49004-17


would be to view it in the light most favorable to Appellee, which is contrary

to our standard and scope of review.

      Accordingly, we reverse the trial court’s May 27, 2016 Order, direct

the court to reinstate the charges, and remand for further proceedings.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Solano joins the Opinion.

      Justice Fitzgerald concurs in result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2017




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