Appeal from the PCRA Order March 28, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009273-2008
BEFORE: FORD ELLIOTT, P.J.E., BOWES, J., and OTT, J.
Eric Johnson appeals the order entered March 28, 2013, in the Philadelphia County Court of Common Pleas denying him relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. On October 22, 2009, Johnson was sentenced to an aggregate term of eight to 16 years' imprisonment, following his conviction of aggravated assault and related offenses. On appeal, Johnson argues the PCRA court erred in determining that the trial court possessed jurisdiction to convict and sentence him. Specifically, he asserts the magistrate who presided over his preliminary hearing did not explicitly and publicly hold him for court on any of the charges. For the reasons set forth below, we affirm.
The facts underlying Johnson's arrest were aptly summarized by the PCRA court as follows:
On April 28, 2008, at approximately 11:00 p.m., Philadelphia Police Officers Charles Bondiskey and Anthony Comitalo were patrolling the area of Summerville Avenue and Broad Street when they noticed a GMC Safari with a broken brake light. Officer Bondiskey ran the car's license plate through the DMV computer system, which indicated that the car had been stolen. As the officer watched, the car pulled over on the side of Broad Street. The officers then activated their lights and sirens to indicate to the car's occupants that they were approaching the vehicle. As he moved towards the vehicle on foot, Officer Bondiskey approached [Johnson], who was in the passenger seat, and asked him to exit the vehicle with his hands up. [Johnson] did so, but when Officer Bondiskey attempted to place [Johnson's] hands on the side of the vehicle, [Johnson] ran. Officer Bondiskey caught [Johnson], who began punching Officer Bondiskey repeatedly. Officer Bondiskey was able to wrestle [Johnson] to the ground, at which point [Johnson] pulled out a black Beretta handgun. Officer Bondiskey and Officer Comitalo wrestled the gun away from [Johnson] as [Johnson] continued to fight both officers. [Johnson] was placed under arrest. The gun contained one round in the chamber and one in the magazine. A later examination of the gun by ballistics expert Officer Norman DeFields revealed that the gun was operable.
PCRA Court Opinion, 6/18/2013, at 2-3 (record citations omitted).
Johnson was subsequently charged with aggravated assault, simple assault, recklessly endangering another person (REAP), and three violations of the Uniform Firearms Act. A preliminary hearing was conducted on July 21, 2008. After the Commonwealth rested its case-in-chief, the municipal court asked defense counsel if he had anything to present. The following exchange took place:
[Defense Counsel]: … On the aggravated assault, the officer testified he suffered no injuries. He was able to finish his shift. Those injuries do not rise to the level of an aggravated assault . So for that charge, and that charge only, I believe should be dismissed.
THE COURT: Commonwealth, what degree are you asking for on aggravated assault?
[Prosecutor]: Your Honor, I would submit that's an attempt to cause bodily injury with a deadly weapon. Which would be – the court's brief indulgence. A felony of the second degree.
THE COURT: You think it's a felony of the second degree?
[Prosecutor]: Well, your Honor, I would also note that with struggling over a firearm with one loaded in the chamber and one in the magazine, that was ...