Com. v. Hockett, R. ( 2022 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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:
    ____________________________________________
    *   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
    ____________________________________________
    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
    ____________________________________________
    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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    J-S38012-21
    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
    ____________________________________________
    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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    J-S38012-21
    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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