J. A29007/16

2016 PA Super 279

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

TIANT RASHAAD MITCHELL, :

:

Appellant : No. 633 WDA 2015

Appeal from the Judgment of Sentence November 3, 2014

In the Court of Common Pleas of Allegheny County 

Criminal Division at No.: CP-02-CR-0015446-2012

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

OPINION BY DUBOW, J.: FILED DECEMBER 8, 2016

Appellant, Tiant Rashaad Mitchell, appeals from the Judgment of 

Sentence entered in the Allegheny County Court of Common Pleas following 

his jury trial convictions for Attempted Murder and related offenses. After 

careful review, we affirm.

The underlying facts, as summarized in the trial court’s 1925(a) 

Opinion, are as follows:

In the late evening hours of October 11, 2012, Wanda Moore 

drove her daughter, Shawnece Moore, and Appellant (Shawnece 

Moore’s husband) to a bar in the South Side section of the City 

of Pittsburgh. Wanda Moore returned to the bar approximately 

one hour later with her husband Gary Evans, to pick up 

Shawnece and Appellant. Evans and Wanda Moore entered the 

bar to have a drink with Appellant and Shawnece. When another 

man in the bar bought the group a round of drinks, Appellant 

became angry because he thought the man was “trying to talk 

to” Shawnece. Nonetheless, the group left the bar without 

incident at 2:00 A.M., and Wanda Moore drove Evans, 

Shawnece, and Appellant to her home in the Garfield 

neighborhood of the city.
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When they arrived at Wanda Moore’s home, Appellant was still 

agitated about the man who purchased the round of drinks at 

the bar, and he stated that he was “going to do things.” The 

group continued to drink, and Appellant began to argue with 

Wanda Moore and Evans. Wanda Moore repeatedly told 

Appellant not to talk like that in her house, and as a result of 

Appellant’s agitated and confrontational state, Evans drove 

Appellant and Shawnece to their home on Millerdale Street, in 

the adjacent Stanton Heights neighborhood.

Shawnece’s four children were asleep at home when she and 

Appellant arrived: her three older children were upstairs, and her 

one-year old daughter was downstairs. Once inside the home, 

Appellant pointed a gun at Shawnece, calling her names and 

threatening her. Appellant was drunk and belligerent, and he 

also pointed the gun at Shawnece’s one[-]year[-]old daughter, 

and called her names. Appellant started to scream louder, and 

Shawnece began yelling at Appellant about him having a gun. 

Shawnece’s eighteen[-]year-old son Jamil awoke during that 

commotion, and called down from the top of the staircase to 

determine if his mother was okay. Appellant told Jamil to go 

back to bed, but Jamil waited until his mother said she was okay 

before he returned to his room. Concerned about Appellant 

having a gun, Jamil locked his bedroom door and barricaded 

himself against it.

Shortly thereafter Appellant went upstairs and attempted to 

open Jamil’s door but he could not gain entry to the bedroom. 

Appellant cocked the gun outside Jamil’s bedroom door. 

Shawnece came upstairs and was able to persuade Appellant to 

leave the home by offering to buy him cigarettes. They left the 

home and as they were walking together near the 900 block of 

Millerdale Street, Appellant fired the gun into the air three times. 

Appellant told Shawnece that he wanted to die, and that he 

would shoot at the police officers when they arrived so that they 

would shoot back and kill him. In fact, a resident of Millerdale 

Street had heard the shots and called 911 to report the shots 

fired, and dispatch alerted officers to that call.

Several Pittsburgh police officers, including Officer Andrew 

Baker, responded to the dispatch at 5:00 A.M. The dispatch 

included information that three shots were fired by a black male 

in a white sweatshirt on Millerdale Street. As Officer Baker 

approached Millerdale Street from Schenley Manor Drive, he 
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observed Appellant, in a white sweatshirt, walking in the middle 

of the street with Shawnece. Officer Baker stopped his marked 

patrol vehicle, opened his door, and Appellant immediately 

pulled a gun out of his waistband and began to shoot at Officer 

Baker. Officer Baker was able to get out of his vehicle and 

return fire. Officer Baker moved to the back of his vehicle for 

better cover and to radio for backup. Appellant ran across the 

front of the patrol vehicle and continued to shoot at Officer 

Baker, and Officer Baker again returned fire. Appellant stopped 

shooting when he fell into a ditch. He raised his hands yelling 

“I’m done, I’m done. I'm shot, I'm shot.” 

Appellant’s gunfire struck Officer Baker in the center area of his 

chest, creating a hole in his exterior shirt and an indentation in 

his bulletproof vest. Appellant’s gunfire also struck Officer 

Baker’s vehicle four times. Officer Baker’s return fire struck 

Appellant in the ankle and buttocks. During the exchange of 

gunfire Shawnece ran into the yard of a nearby home, and she 

was struck in the hand by a ricochet bullet fragment.

Backup officers arrived on scene within one minute of Officer 

Baker’s call for backup, and Appellant was taken into custody. A 

9mm firearm was recovered twenty feet from where Appellant 

was arrested.

* * *

On August 6-7, 2014, Appellant proceeded to a jury trial. The 

jury found Appellant guilty of criminal attempt (homicide), 

assault of a law enforcement officer, aggravated assault, 

carrying a firearm without a license, endangering welfare of 

children, simple assault, and three counts of recklessly 

endangering another person, and not guilty of one count of 

simple assault. On November 3, 2014, Appellant was sentenced 

by the trial court to an aggregate sentence of thirty to sixty 

years’ incarceration. On November 12, 2014, Appellant filed a 

post[-]sentence motion, which was denied by operation of law 

on March 18, 2015.

Trial Court Opinion, filed 1/14/16, at 3-8 (footnotes and citations omitted).

Appellant filed a Notice of Appeal on April 17, 2015. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant presents one issue for our review:

Is [Appellant] entitled to a new trial in order to remedy the 

violation of his federal and state constitutional rights to 

confrontation, cross-examination, and due process that occurred 

where the Commonwealth was permitted to present as 

substantive evidence the preliminary hearing testimony of a 

prosecution witness who willfully failed to appear for trial and 

where the opportunity for full and fair cross[-]examination did 

not and necessarily could not have existed?

Appellant’s Brief at 6.

Insofar as Appellant’s constitutional challenge raises a question of law, 

our standard of review over the trial court’s admission of the contested 

testimony is de novo and our scope of review is plenary. Commonwealth 

v. Yohe, 39 A.3d 381, 384 (Pa. Super. 2012).

“Our Supreme Court has made clear that the admission at trial of 

previously [recorded] testimony depends upon conformity with applicable 

evidentiary rules and the defendant’s constitutional right to confront 

witnesses against him.” Commonwealth v. Leak, 22 A.3d 1036, 1043-44 

(Pa. Super. 2011). See also Commonwealth v. Rizzo, 726 A.2d 378, 380 

n.2 (Pa. 1999) (“Pennsylvania law permits the admission of prior recorded 

testimony from a preliminary hearing as an exception to the hearsay rule 

when the witness is unavailable, the defendant had counsel, and the 

defendant had a full and fair opportunity for cross-examination at the 

preliminary hearing.”); Pa.R.E. 804(b)(1).

“Where testimonial evidence is at issue, however, the Sixth

Amendment demands what the common law required: unavailability and a 
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prior opportunity for cross-examination.” Commonwealth v. Allshouse, 

36 A.3d 163, 171 (Pa. 2012) (citing Crawford v. Washington, 541 U.S. 

36, 68 (2004)). “Whether prior testimony was given at trial or at any other 

proceeding, where, as here, admission of that prior testimony is being 

sought as substantive evidence against the accused, we conclude that the 

standard to be applied is that of full and fair opportunity to cross-examine.” 

Commonwealth v. Bazemore, 614 A.2d 684, 687 (Pa. 1992) (emphasis in 

original).

“The Commonwealth may not be deprived of its ability to present 

inculpatory evidence at trial merely because the defendant, despite having 

the opportunity to do so, did not cross-examine the witness at the 

preliminary hearing stage as extensively as he might have done at trial.” 

Leak, supra at 1045 (citation omitted).

The trial court addressed this issue as follows:

Here, the parties agreed that Shawnece Moore was unavailable 

pursuant to Pennsylvania Rule of Evidence 804, as she could no 

longer be located. Though agreeing that Shawnece was 

unavailable, Appellant argues that the testimony was 

inadmissible because credibility and character were not at issue 

at the preliminary hearing. However, otherwise admissible 

preliminary hearing testimony will not be excluded merely 

because defense counsel did not cross-examine the witness as 

extensively at the preliminary hearing as he might have done at 

trial, provided he had t[he] opportunity to do so and was not 

denied access to vital impeachment evidence. Commonwealth 

v. Johnson, 758 A.2d 166, 169 (Pa. Super. 2000). At the 

preliminary hearing, defense counsel extensively cross-examined 

Shawnece Moore, including the accuracy and credibility of her 

perceptions that evening given her consumption of alcohol. 

Appellant had a full and fair opportunity to cross-examine 
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Shawnece at the preliminary hearing. Further, there is no 

allegation or evidence that the Commonwealth withheld 

impeachment evidence, or that the defense attorney at the 

preliminary hearing was not permitted to cross-examine 

Shawnece Moore as to her credibility or character. As such, the 

[t]rial [c]ourt properly admitted the preliminary hearing 

testimony of Shawnece Moore.

Appellant’s claim is without merit.

Trial Court Opinion at 16-17 (citations omitted).

We agree with the trial court’s analysis and conclusion. Appellant had 

a full and fair opportunity to cross-examine the witness, but declined to do 

so. Appellant does not allege that the Commonwealth withheld any 

statements, criminal record history, or any other concerning factors relevant 

under the case law. Accordingly, Appellant’s claim merits no relief and we 

affirm Appellant’s Judgment of Sentence.1

 

1 While the outcome of the case is clear under our binding precedent, we 

must highlight the potential unfairness to defendants in circumstances such 

as this, where a court admits preliminary hearing testimony from an 

unavailable witness as substantive evidence without the benefit of full crossexamination. On the one hand, this Court has narrowed the rights of 

defendants at preliminary hearings over time. See, e.g., Commonwealth 

v. Ricker, 120 A.3d 349 (Pa. Super. 2015) (holding that “an accused does 

not have the right to confront the witnesses against him at his preliminary 

hearing” and “[Pa.R.Crim.P. 542(E)] does allow hearsay evidence alone to 

establish a prima facie case”), appeal granted, 135 A.3d 175 (Pa. 2016); 

Commonwealth v. Landis, 48 A.3d 432, 448 (Pa. Super. 2012) (holding 

that “it is inappropriate for the trial court to make credibility determinations 

in deciding whether the Commonwealth established a prima facie case.”); 

Pa.R.E. 101, Comment (“Traditionally, our courts have not applied the law of 

evidence in its full rigor in proceedings such as preliminary hearings...”); 

Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 101.02 

et seq. (2016 ed. LexisNexis Matthew Bender). On the other hand, we have 

continued to raise the stakes and importance of a defendant’s cross-
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Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2016

 

examination opportunities at the preliminary hearing in cases such as 

Appellant’s. See also Leak, supra. Given the increasing importance and 

vitality of Crawford, we encourage our Supreme Court, the Criminal 

Procedural Rules Committee, the Committee on the Rules of Evidence, and 

our Pennsylvania General Assembly to consider carefully the adequacy of our 

evidentiary rules and case law governing the conduct of preliminary hearings 

in light of this growing tension with the Confrontation Clause under both the 

federal and state constitutions.