J-S38012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDALL HOCKETT :
:
Appellant : No. 1136 WDA 2020
Appeal from the Judgment of Sentence Entered December 9, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002538-2018
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: February 2, 2022
Appellant, Randall Hockett, appeals from the judgment of sentence of
43½ to 87 years’ incarceration, imposed after a jury convicted him of two
counts of assault of a law enforcement officer, four counts of aggravated
assault, possession of a firearm by a person prohibited, and carrying a firearm
without a license. On appeal, Appellant argues that the Commonwealth failed
to establish a prima facie case at his preliminary hearing, and that the court
erred by not awarding him credit for time served prior to his sentencing. After
careful review, we affirm Appellant’s convictions, but vacate his judgment of
sentence and remand for further proceedings.
The trial court summarized the pertinent facts and procedural history of
Appellant’s case, as follows:
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* Retired Senior Judge assigned to the Superior Court.
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[Appellant] was charged with numerous crimes arising out of
events which occurred in Wilkinsburg, Allegheny County[,] on
January 21, 2018. More specifically, it was alleged that at
approximately 3 a.m., while responding to the call of a burglary
in progress at 1810 Clark Street, police officers were confronted
by … [Appellant] in the side yard of that residence. Wilkinsburg
Police Officer John Snyder testified that as he rounded the corner
of the house, he was surprised to come face to face with …
[Appellant], who was armed with a handgun. Then, just as …
[Appellant] aimed for the officer and discharged his firearm,
Officer Snyder slipped on the snow, fell to the ground, and was
barely able to avoid being wounded. In the exchange of gunfire
with police that followed, however, … [Appellant] was wounded
and taken into custody. As he was turned over to be handcuffed,
police recovered [Appellant’s] gun[,] which was cocked and
appeared to have all the rounds expended. Because this was a
police-involved shooting, Wilkinsburg requested the assistance of
the Allegheny County Homicide Unit to investigate.
Ultimately, Allegheny County detectives charged … [Appellant]
with various crimes, including two counts of criminal attempt
(murder of a law enforcement officer of the first degree), two
counts of assault of [a] law enforcement officer, four counts of
aggravated assault, possession of a firearm [by a person]
prohibited, two counts of burglary, one count of firearm not to be
carried without a license, discharge of a firearm into [an] occupied
structure, and one count of recklessly endangering another
person. After a preliminary hearing, the charges were held for
court. … [Appellant] elected to be tried before a jury, selection of
which began in September of 2019. Ultimately, … [Appellant] was
convicted of the assault and firearms violations and sentenced to
an aggregate an period of 43½ to 87 years of incarceration[.]
Trial Court Opinion (TCO), 8/2/21, at 2-3.
Appellant filed a timely notice of appeal, and he also complied with the
trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court thereafter filed a Rule 1925(a) opinion.
Herein, Appellant states two issues for our review:
1. Did the trial court err in failing to grant [Appellant’s] requests
for dismissal where the Commonwealth failed to establish a prima
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facie case at his preliminary hearing because it relied solely on
evidence that was hearsay[,] or which should have been regarded
as hearsay at best[,] and which was contrary to the
incontrovertible physical facts and other incontrovertible record
evidence, and, thus, insufficient as a matter of law to support a
prima facie case?
2. Did the trial court err in failing to award [Appellant] credit for
the time he served prior to his sentencing?
Appellant’s Brief at 4.
Appellant first argues that the evidence presented by the
Commonwealth at the preliminary hearing was insufficient to establish a prima
facie case of his guilt. He insists that the Commonwealth presented only
hearsay testimony, which so conflicted with the “incontrovertible facts” of the
case that it could not possibly be deemed credible. Id. at 14. Consequently,
Appellant contends that the trial court erred by not granting any of his
multiple, pretrial petitions for writ of habeas corpus to dismiss his case based
on the alleged inadequacy of the evidence at his preliminary hearing.1
We agree with the Commonwealth that Appellant’s challenge to the
sufficiency of the evidence at his preliminary hearing became moot upon his
conviction following a jury trial. As the Commonwealth points out,
[i]t is well settled that “once a defendant has gone to trial and
been found guilty of a crime, any defect in the preliminary hearing
is rendered immaterial.” Commonwealth v. Jacobs, … 640 A.2d
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1 Specifically, Appellant raised this issue in a pro se petition for writ of habeas
corpus on August 23, 2018; an amended, pro se petition for writ of habeas
corpus on October 31, 2018; a counseled petition for writ of habeas corpus on
December 12, 2018; and a pro se “Motion to Dismiss Due to Lack of Probable
Cause and Jurisdiction over Subject Matter” on February 5, 2019. All those
filings were denied orally by the court at the start of Appellant’s jury-selection
proceeding. See N.T., 9/9/19, at 12.
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1326, 1330 ([Pa. Super.] 1994)[] [(]quoting Commonwealth v.
Worrall, … 609 A.2d 851, 852 ([Pa. Super.] 1992)[)]. See[,]
e.g., Commonwealth v. Lee, … 662 A.2d 645, 650 ([Pa.] 1995)
(deeming moot [the] defendant’s claims that [the] preliminary
hearing judge should have recused himself, as well as the claim
that the evidence failed to establish probable cause, where [the]
defendant ultimately was found guilty by a jury);
Commonwealth v. McCullough, 461 A.2d 1229, 1231 ([Pa.]
1983) (concluding that [the] Commonwealth’s failure to establish
[a] prima facie case at [the] preliminary hearing was immaterial
where [the] Commonwealth subsequently met its burden of proof
beyond a reasonable doubt at trial); Commonwealth v. Hess, …
414 A.2d 1043, 1048 ([Pa.] 1980) ([stating that w]here “it is
determined at trial that the evidence of the Commonwealth is
sufficient to be submitted to the jury, then any deficiency in the
presentation before the district justice would have been
harmless”); Commonwealth v. Cassidy, … 620 A.2d 9, 11 ([Pa.
Super.] 1993); Commonwealth v. Tyler, … 587 A.2d 326, 328
([Pa. Super.] 1991); Commonwealth v. Taylor, … 596 A.2d
222, 224–[]25 (Pa. Super. 1991); Commonwealth v. Troop, …
571 A.2d 1084, 1088 ([Pa. Super.] 1990); and Commonwealth
v. Lyons, … 568 A.2d 1266, 1268 ([Pa. Super.] 1989). Cf.
Commonwealth v. Walter, … 966 A.2d 560, 565 ([Pa.] 2009)
(“Any claims of inadequacy [the] appellant alleges with respect to
pre-trial matters have been rendered moot by the [‘]subsequent
independent judicial judgment[’] confirming the existence of the
aggravating circumstance in this case.”) [(citations omitted)]; and
Commonwealth v. Haney, … 131 A.3d 24, 41 ([Pa.] 2015)
(same).
Commonwealth’s Brief at 5-6.
In Appellant’s reply brief, he insists that “the appellate decisions upon
which the Commonwealth relies lack any meaningful legal analysis, [and] rest
ultimately on dicta that presumes the availability of the appellate remedy they
foreclose….” Appellant’s Reply Brief at 9. More importantly, he claims, those
decisions “ignore[] completely a defendant’s rule-based right to a preliminary
hearing and his constitutional rights therein, and create[] a semi-anarchical
situation in which defendants whose cases did not legally proceed to trial are
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subjected to all the burdens of trial and then perversely denied the right to
challenge that procession as of right on appeal, ever, on the ground that their
illegal trial somehow justified its own existence.” Id. at 6 (emphasis omitted).
Initially, the cases cited by the Commonwealth demonstrate that both
our Supreme Court and this Court have expressly, and repeatedly, held that
a determination of guilt at trial renders moot any challenges to the adequacy
of the preliminary hearing. Moreover, contrary to Appellant’s argument, he
could have sought review of the trial court’s denial of his pretrial petition(s)
for writ of habeas corpus on the basis that the Commonwealth failed to
establish a prima facie case at the preliminary hearing.2 While “[g]enerally,
the denial of a pre-trial writ of habeas corpus based on a lack of sufficient
prima facie evidence does not constitute an appealable order[,] … [w]here
exceptional circumstances exist, an appeal from such an interlocutory order
may be considered.” Commonwealth v. Ricker, 120 A.3d 349, 353 (Pa.
Super. 2015) (citation omitted), disapproved of on other grounds by
Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020). While Appellant
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2 Indeed, Appellant —who dismissed multiple, court-appointed attorneys and
represented himself at various points during the pretrial proceedings, as well
as at trial — acknowledged his understanding of his right to file an appeal from
the court’s interlocutory order denying his petition(s). See N.T. Hearing,
4/2/19, at 55 (Appellant’s stating that if the court denied his petition for
habeas corpus, he “can still appeal on this matter interlocutory,” and the
Commonwealth’s agreeing that Appellant could “file for an interlocutory
appeal”); N.T. Hearing, 9/9/19, at 11 (Appellant’s stating he “would like an
interlocutory appeal” from the court’s denial of his pretrial motions, and the
court’s informing him that “[t]here are certain rules with regard to
interlocutory appeals”).
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had (and clearly understood) the ability to file an interlocutory appeal from
the court’s order denying his petition(s) for writ of habeas corpus, and argue
that exceptional circumstances exist to warrant our review, he chose not to
do so. Accordingly, we conclude that Appellant’s challenge to the sufficiency
of the evidence at the preliminary hearing became moot upon his conviction.
In Appellant’s second issue, he contends that the trial court erred by not
giving him credit for 687 days of incarceration he served prior to sentencing
in this case.3 According to the Commonwealth, no relief is due on this claim
because the court stated at the sentencing hearing that Appellant “shall
receive credit for any time served which may be attributable to this case.”
N.T. Sentencing, 12/9/19, at 20. The Commonwealth notes that Appellant’s
prior record score was a five, “and therefore, it may well be that some or all
of his pretrial incarceration was applied to an outstanding sentence of
probation or parole. However, as this claim was not raised previously, there
is no evidence of record to evaluate this possibility, or whether [A]ppellant is
being denied credit.” Id. at 9. Thus, the Commonwealth suggests that we
deny relief, and that Appellant may then “file a post conviction petition under
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3 We observe that Appellant did not raise this argument before the trial court.
However, we agree with him that it constitutes a non-waivable challenge to
the legality of his sentence. See Commonwealth v. Davis, 852 A.2d 392,
399 (Pa. Super. 2004) (“An attack upon the court’s failure to give credit for
time served is an attack upon the legality of the sentence and cannot be
waived.”).
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the Post Conviction Relief Act [to] raise the issue, with the obligation to plead
and prove his claim.” Id.
We disagree with the Commonwealth’s recommended course of action.
While the trial court did direct that Appellant receive credit for time served at
the sentencing hearing, the court’s written sentencing order made no mention
of credit for time served. See Sentencing Order, 12/9/12, at 1-2
(unnumbered). Moreover, the certified record contains a DC-300B Court
Commitment Form, which states multiple times that Appellant is to receive “0
days” credit for time served. See Court Commitment Form, 12/13/19, at 1,
3. Thus, it appears that Appellant’s sentence does not include credit for any
time served. Accordingly, we vacate Appellant’s judgment of sentence and
remand for the court to determine what, if any, credit for time served
Appellant is entitled and to resentence him accordingly.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2022
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