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
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*
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.
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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
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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
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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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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.
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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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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.”).
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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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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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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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