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Commonwealth v. Ricker

Superior Court of Pennsylvania

July 17, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID EDWARD RICKER, Appellant

Argued, April 14, 2015

Page 350

Appeal from the Order of the Court of Common Pleas, Dauphin County, Criminal Division, No(s): CP-22-CR-0003601-2014. Before CHERRY, J.

William Costopoulos, Lemoyne, for appellant.

Francis T. Chardo, III, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

Page 351

OPINION

BOWES, J.

David Edward Ricker appeals from the October 1, 2014 order denying his pre-trial writ of habeas corpus. We affirm.

The Commonwealth charged Appellant with attempted murder, assault of a law enforcement officer, and aggravated assault after he exchanged gunfire with a Pennsylvania State Police trooper at Appellant's residence. Specifically, Trooper Michael Trotta had responded to a dispatch regarding loud and fast driving on Green Hill Road in West Hanover Township. Trooper Trotta drove the length of that road and, after turning around, observed a small group of people standing by the roadway at the end of a driveway. The trooper pulled over and the group directed him to a damaged mailbox and a lawn ornament sign which had been run over by a light colored pickup truck. The group informed Trooper Trotta that they knew the individual who struck the mailbox because he was their neighbor. They directed Trooper Trotta to Appellant's driveway.

Trooper Trotta then appeared at the entrance of Appellant's gated driveway in full uniform in an unmarked patrol car. The driveway was approximately 100 yards long. Trooper Trotta pressed a call button at the bottom of the driveway and saw a sport utility vehicle come to the top of the driveway. Appellant's wife exited that vehicle and walked down to the gate. She initially refused to permit Trooper Trotta to enter. According to Trooper Trotta, Appellant's wife indicated that her husband was drunk and carried a gun. Ultimately, however, Appellant's wife opened the gate and waved Trooper Trotta past her. He then drove his car to the top of the driveway.

Trooper Trotta saw Appellant walk towards his vehicle with a large German Shepard. The trooper initially remained

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in his car. Trooper Trotta told Appellant that his neighbors had reported that he sideswiped their mailbox. Appellant became irate and belligerent at that point, and the trooper was able to discern that Appellant's eyes were bloodshot and his breath smelled of an alcoholic beverage. Appellant demanded, in a profanity laced manner, that Trooper Trotta get off his property. Appellant's wife then raised her voice at her husband, who struck his wife and threw her to the side. Trooper Trotta asked Mrs. Ricker to take the dog and go inside, and he attempted to exit his car. Appellant slammed the car door shut. Trooper Trotta also had drawn his taser. Appellant reached inside the car and attempted to take the taser from the trooper. Appellant's wife again interceded, but Appellant continued to direct the trooper to leave. After Trooper Trotta exited his vehicle, he saw Appellant remove a small gun from the back of his pants. Appellant informed the officer that he had a permit to carry and told Trooper Trotta to " get the fuck off my property." Exhibit 1, 7/10/14, at 8.

Trooper Trotta drew his own weapon and instructed Appellant's wife to move away and go inside the house. Instead, she stepped in front of her husband. Trooper Trotta called for backup and Appellant continued to wave his firearm. Appellant then began to walk toward his home. Trooper Trotta told him that he was under arrest and followed him. Appellant entered an open three-car garage bay. Soon thereafter, a young female child exited the home. Trooper Trotta directed her to go to her mother's car away from the area. By this time, another trooper, Trooper Dana Gingerich, had arrived and was in the vicinity of that car.

Trooper Trotta next went around the front of the house while Trooper Gingerich advised the police barracks to send a specialized unit similar to a SWAT team. Trooper Trotta heard Trooper Gingerich yell to Appellant to come out and let him see Appellant's hands. Accordingly, Trooper Trotta ran toward the yelling and came back to the garage bay. At this point, he saw Appellant holding an assault rifle in his right hand and peering around the garage door toward Trooper Gingerich. Trooper Trotta demanded that Appellant drop the weapon. According to Trooper Trotta, Appellant then grabbed the front part of the rifle and began to level it at him. At that point, Trooper Trotta opened fire, striking Appellant twice. Appellant hit the ground and returned fire, hitting the trooper multiple times.

The case proceeded to a preliminary hearing. Trooper Trotta did not testify nor did Trooper Gingerich. Instead, the lead investigator into the incident, Trooper Douglas Kelley, testified regarding his investigation, and played for the magisterial district court a tape of an interview with Trooper Trotta. That tape outlined the facts set forth above. Appellant objected to the use of the hearsay evidence and also requested a continuance to call Troopers Trotta and Gingerich on his behalf. The court overruled the objection, declined to continue the matter, and bound the case over for trial. Appellant then filed a pre-trial writ of habeas corpus. Therein, Appellant argued that it was improper to find a prima facie case against him based entirely on hearsay evidence. The trial court denied the writ without a hearing or the presentation of argument. This appeal ensued.

The trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. That same date, this Court issued a rule to show cause why the appeal should not be quashed as an interlocutory appeal. Appellant

Page 353

responded, and the issue was deferred to this panel. The trial court also filed its Rule 1925(a) decision. The matter is now ready for our consideration. Appellant presents three issues for our review.

A. Whether the court should hear this interlocutory appeal from the denial of Appellant's habeas corpus petition under the " exceptional" or extraordinary" circumstances exception to the general rule because it entails a matter of great public interest, e.g., whether hearsay evidence alone may prove a prima facie case at a preliminary hearing, an issue which is likely to evade review because appellate review would not normally occur until the criminal case was finally resolved?
B. Whether the Commonwealth may prove a prima facie case at the preliminary hearing exclusively through hearsay evidence, which is what the trial and magisterial district courts concluded in Appellant's case?
C. Whether Pa.R.Crim.P. 542(E), which provides that hearsay evidence shall be sufficient to establish any element of an offense, violates the state and federal constitutional confrontation rights of defendants, including Appellant, as well as long-standing Pennsylvania and U.S. Supreme Court precedent?

Appellant's brief at 5.

Preliminarily, we must determine whether we have jurisdiction over this interlocutory appeal. Generally, 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. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043, 1047-1048 (Pa. 1980); see also Commonwealth v. Jackson, 2004 PA Super 150, 849 A.2d 1254 (Pa.Super. 2004). Where exceptional circumstances exist, an appeal from such an interlocutory order may be considered. Hess, supra at 1047-1048 (" Although it has been deemed appropriate to permit immediate review by the court of common pleas of the finding of a prima facie case by the district magistrate, a balancing of the further disruption of the trial process against the harm to the accused weighs in favor of barring immediate appellate review unless 'exceptional circumstances' are present." ).

Appellant argues that exceptional circumstances are present. First, he notes that, should he be acquitted or convicted, the issue of whether hearsay evidence alone may establish a prima facie case at a preliminary hearing would become moot. Indeed, it is well-settled that errors at a preliminary hearing regarding the sufficiency of the evidence are considered harmless if the defendant is found guilty at trial. Commonwealth v. Sanchez, 623 Pa. 253, 82 A.3d 943, 984 (Pa. 2013); Commonwealth v. Tyler, 402 Pa.Super. 429, 587 A.2d 326 (Pa.Super. 1991). Thus, Appellant maintains that any challenge to a procedure allowing hearsay evidence alone to establish a prima facie case would be capable of repetition and likely to evade review if this Court were to await a final order. Appellant, therefore, suggests that exceptional circumstances exist.

In addition, Appellant submits that this matter involves an issue of great public interest and the safeguarding of basic human rights. See Commonwealth v. Bernhardt, 359 Pa.Super. 413, 519 A.2d 417, 419 (Pa.Super. 1986). He contends that whether it is constitutional to hold over a defendant for trial based solely on hearsay evidence after the 2011 addition of Pa.R.Crim.P. 542(E) is an issue of first impression. Pa.R.Crim.P. 542(E) reads,

E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case

Page 354

has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, ...

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