Commonwealth v. Mitchell, 152 A.3d 355

In October 2012 Appellant Tiant Rashaad Mitchell shot at Pittsburgh police after firing shots on a residential street; Officer Baker returned fire and Appellant was wounded and arrested. A 9mm was recovered near the arrest site.\
Victim/witness Shawnece Moore was present during earlier domestic altercation and the shooting; she testified at the preliminary hearing but was unavailable at trial and did not appear.\
At trial the Commonwealth offered Shawnece Moore’s preliminary hearing testimony as substantive evidence; the jury convicted Mitchell of attempted murder, assault of a law enforcement officer, aggravated assault, and related offenses.\
Mitchell was sentenced to an aggregate 30–60 years. He appealed, arguing admission of the preliminary-hearing testimony violated his federal and state confrontation and due process rights because he lacked a full and fair opportunity for cross-examination.\
The trial court admitted the prior testimony under Pa.R.E. 804(b)(1), finding Mitchell had a full and fair opportunity to cross-examine Moore at the preliminary hearing and the Commonwealth did not withhold impeachment evidence.\
The Superior Court affirmed, applying Crawford and Pennsylvania precedent requiring unavailability plus a prior opportunity for cross-examination for admission of testimonial prior testimony.\

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of preliminary-hearing testimony as substantive evidence when witness is unavailable	Commonwealth: admissible if witness unavailable and defendant had full and fair cross-examination opportunity	Mitchell: inadmissible because admission denied his confrontation rights where full cross-examination at trial was impossible	The court held admission proper: witness unavailable and Mitchell had a full and fair opportunity to cross-examine at the preliminary hearing, no impeachment evidence was withheld

Commonwealth v. Yohe, 39 A.3d 381 (Pa. Super. 2012) (standard of review and rules for admitting prior testimony)\
Commonwealth v. Leak, 22 A.3d 1036 (Pa. Super. 2011) (prior recorded testimony admissible if witness unavailable, defendant had counsel, and had full and fair cross-examination)\
Commonwealth v. Rizzo, 726 A.2d 378 (Pa. 1999) (preliminary hearing testimony admissible as hearsay exception when witness unavailable and defendant had opportunity to cross-examine)\
Commonwealth v. Allshouse, 36 A.3d 163 (Pa. 2012) (Sixth Amendment requires unavailability and prior opportunity to cross-examine for testimonial evidence)\
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause requires prior opportunity for cross-examination before admitting testimonial statements)\
Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992) (full and fair opportunity to cross-examine is required before prior testimony may be used substantively)\
Commonwealth v. Johnson, 758 A.2d 166 (Pa. Super. 2000) (admissible preliminary-hearing testimony will not be excluded because defense did not cross-examine as extensively at preliminary hearing if opportunity existed)