Commonwealth v. Ricker, 41 MAP 2016.

• Citation: 170 A.3d 494 (Mem)
• Decision Date: 28 September 2017
• Docket Number: 41 MAP 2016.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David Edward RICKER, Appellant
• Court: United States State Supreme Court of Pennsylvania

170 A.3d 494 (Mem)

COMMONWEALTH of Pennsylvania, Appellee
v.
David Edward RICKER, Appellant

41 MAP 2016.

Supreme Court of Pennsylvania.

ARGUED: December 6, 2016
DECIDED: September 28, 2017

William Costopoulos, Esq., Costopoulos, Foster & Fields, for Appellant.

Francis T. Chardo III, Esq., Dauphin County District Attorney's Office, Edward Michael Marsico Jr., Esq., for Appellee.

Timothy Jon Barker, Esq., Stephanie Elizabeth Lombardo, Esq., York County District Attorney's Office, Rachel Haynes Pinsker, Esq., Pennsylvania Coalition Against Domestic Violence, Peter Rosalsky, Esq., Defender Association of Philadelphia, Barbara A. Zemlock, Esq., Perry Shore Weisenberger & Zemlock, Leonard Sosnov, Esq., for Amicus Curiae parties.

ORDER

PER CURIAM

AND NOW, this 28th day of September, 2017, this appeal is dismissed as having been improvidently granted.

Chief Justice Saylor files a concurring statement.

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Justice Wecht files a dissenting statement.

Justice Donohue did not participate in the consideration or decision of this case.

CONCURRING STATEMENT

CHIEF JUSTICE SAYLOR

In this criminal case, appeal was allowed to consider whether the Commonwealth may satisfy its burden at a preliminary hearing through hearsay evidence alone, as well as whether a defendant has a state or federal constitutional right to confront witnesses against him in such proceedings. Presently, I conclude that the prosecution did not proceed, at Appellant's preliminary hearing, solely through hearsay. Furthermore, Appellant's contention that the Commonwealth's essential presentation rested exclusively upon hearsay is interwoven into his constitutional arguments. I also note that the Court is divided as to material considerations involved in assessing whether, or to what extent, an accused enjoys a constitutional right of confrontation at a preliminary hearing, and some of these considerations are not substantially addressed in the present briefing.

For these reasons, I have determined that this appeal does not present a suitable vehicle by which to resolve the questions presented and that it should be dismissed. Given the substantial significance of these issues, however, I have undertaken to explain my reasoning in greater detail below and to specify some of the considerations which I believe should be developed in the advocacy in future cases or addressed via the rulemaking process to secure a resolution.

In June 2014, Appellant shot Pennsylvania State Trooper Michael Trotta while the officer was on Appellant's property investigating possible crimes. Trooper Trotta survived the encounter. Appellant was arrested and charged with attempted murder, assault of a law enforcement officer, and aggravated assault.

At the preliminary hearing before a magisterial district judge (the "MDJ"), the Commonwealth presented live testimony from an investigating officer, Trooper Douglas A. Kelley, who attested that he observed Trooper Trotta's gunshot wounds and participated in a search of Appellant's residence, where officers found plastic bags and jars containing marijuana, as well as eighty firearms. Additionally, Trooper Kelley indicated that he saw an AK–47 assault rifle, a pistol, and spent cartridge casings, in or near the garage area of Appellant's residence. He further explained that Appellant had also been shot in the confrontation and that the trooper interviewed him in the hospital. According to the witness, Appellant said that he was near his garage holding an AK–47 rifle when he was shot and commented that he did not understand why Trooper Trotta did not leave his property and secure a warrant.

During Trooper Kelley's testimony, the prosecution played an audiotape recording of his interview with Trooper Trotta, in which the latter attested to the following. On June 1, 2014, Trooper Trotta received a radio call to respond to a disturbance on Green Hill Road in West Hanover Township. He arrived to find a mailbox had been impacted by a vehicle, and witnesses identified Appellant as the driver. Trooper Trotta proceeded to Appellant's property, where he first encountered Appellant's wife, then Appellant, who was belligerent, manifested signs of intoxication, hit his wife, and threatened the officer both verbally and by his conduct. While still sitting in his vehicle to protect himself from Appellant's dog, Trooper Trotta attempted to retrieve a Taser weapon, and he and Appellant

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fought over control of that implement.

The incident further escalated when Appellant produced a pistol and retreated to his garage. There, Trooper Trotta observed Appellant in possession of an assault rifle and believed that Appellant was positioning himself to engage another officer who had been summoned by Trooper Trotta to assist him. Accordingly, the trooper fired several shots at Appellant. Trooper Trotta then approached Appellant, who was prone in the garage, and was shot by Appellant.¹

When the audiotape was played, Appellant's lawyer expressed a desire to examine Trooper Trotta, indicating that he found it to be unsatisfactory that the trooper's statement was introduced via hearsay with no opportunity afforded for cross-examination. Counsel acceded, however, to proceeding with the presentation of the Commonwealth's case, but he requested that another hearing be slated to permit him to question Trooper Trotta. The district attorney opposed the request on the following terms:

We didn't just present hearsay because we also presented the statement of the Defendant in which he indicated that it was he and that he had a rifle in his hand.

We also had the testimony regarding the recovery of the firearms, including the rifle and the cartridge cases from the garage, which are evidence of the discharge of that firearm from the garage.

The preliminary hearing is not for the purpose of discovering the Commonwealth's case or to get a crack at the witnesses. It is to determine whether or not this Defendant, who is at liberty on bail, should be held for trial.

N.T., July 10, 2014, at 43.

Appellant's lawyer further indicated that he had been led to believe that the Commonwealth would be presenting testimony from the trooper who had been called to assist Trooper Trotta, and counsel attempted to call that officer as a witness. The MDJ, however, did not permit this. In his concluding argument, Appellant's attorney argued that the use of force against Trooper Trotta was justified. Counsel stated:

This guy was in his home. He was retreating. He had a firearm by his side and a very ominous looking firearm, an AK–47 but it was never pointed. It was never discharged.

The question is, did he give up his right to live having that gun by his side. And I respectfully submit that he did not because Trotta intended to kill him.

And if that first shot didn't take him out, he shot him again. Ricker never shot back after that first shot was fired.

Ricker was in his house. Ricker never shot back after that second shot was fired and indeed a third shot was fired and he returned fire.

I believe it was justified because Trotta's action was excessive and deadly and unlawful and it just didn't need to happen.

Id. at 45. Counsel then reiterated his position that the hearing should be continued so that the officers could be questioned.

The MDJ concluded that the Commonwealth had met its burden and denied the request for a continuance. In this regard, the MDJ explained that the purpose of a preliminary hearing is not to establish

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guilt or innocence, but rather, to determine whether a prima facie case has been presented. See generally Commonwealth v. McBride , 528 Pa. 153, 160, 595 A.2d 589, 592 (1991) ("A judge at a preliminary hearing is not required, nor is he authorized to determine the guilt or innocence of an accused; his sole function is to determine whether probable cause exists to require an accused to stand trial on the charges contained in the complaint.").

Subsequently, Appellant filed a petition for writ of habeas corpus requesting dismissal of the charges based on the Commonwealth's asserted failure to meet its burden of proof at the preliminary hearing. In the petition, Appellant again acknowledged that he had shot Trooper Trotta, but he claimed that he had been retreating and was justified in defending himself.

Appellant recognized that the function of a preliminary hearing is to protect the right against unlawful arrest and detention and that, therefore, the Commonwealth's burden is limited to presenting "evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense." Petition for Writ of Habeas Corpus at 4 (quoting McBride , 528 Pa. at 158, 595 A.2d at 591 ). He also acknowledged that hearsay evidence is admissible at a preliminary hearing and that the prosecution may rely upon hearsay to meet its burden of establishing a prima facie case. See id. Appellant contended, however, that hearsay alone will not suffice. See id. at 4–5 (citing Commonwealth v. Jackson , 849 A.2d 1254, 1257 (Pa. Super. 2004), and Commonwealth v. Tyler , 402...