J-A12026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

KESHAWN CURTIS MCLAURIN

                            Appellant                No. 1686 WDA 2016


                     Appeal from the Order October 6, 2016
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001498-2016


BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                           FILED AUGUST 24, 2017

       Appellant, Keshawn Curtis McLaurin, appeals the order entered

October 6, 2016, denying his request for a writ of habeas corpus.        After

careful review, we quash the instant appeal for lack of jurisdiction.

       In March 2016, Appellant was charged with criminal homicide, murder,

criminal conspiracy to commit murder, two counts of aggravated assault and

recklessly endangering another person, possessing an instrument of crime,

firearms not to be carried without a license, and persons not to possess

firearms.1 In May 2016, the matter proceeded to preliminary hearing, where

the sole evidence presented by the Commonwealth was the testimony of

Detective Sergeant Rick Lorah.
____________________________________________


1
  18 Pa.C.S. §§ 2501, 2502, 903, 2702, 2705, 907, 6106, and 6105,
respectively.
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       The following evidence was introduced at the preliminary hearing.2

See Trial Court Opinion (TCO), 1/3/17, at 3-4. Shakur Franklin and Elijah

Jackson were killed in the drive-by shooting of a block party; the cause of

death was a .38 caliber gunshot wound.3 Four other victims were wounded

by bullets from a .22 caliber handgun, a .38 caliber handgun, an

undetermined caliber weapon, and a “snake load.” 4 The perpetrators drove

a Ford Explorer SUV, which crashed into a pole approximately one block

away from the party. Appellant was the registered owner of the SUV. When

questioned by police, Appellant admitted that he owned the SUV and was

driving that night. A .38 caliber gun was found close to the crashed SUV.

Appellant consented to a search of the vehicle, and another .38 caliber gun

was found inside the vehicle. Gunshot residue was found inside the vehicle.

       In addition to the physical evidence, Det. Sgt. Lorah testified to two

statements given to police by witnesses.           Reojanique Porter stated that

Appellant, co-defendant Demond Mitchell, and an unidentified third person

exited the SUV after it crashed.          Eugene Husband identified co-defendant

Jahaun Jones and co-defendant Stephen Russell as passengers in an SUV,

driven by Appellant, that passed him earlier that night. Mr. Husband stated


____________________________________________


2
  The transcript of the preliminary hearing was not included in the certified
record, though it does appear in Appellant’s reproduced record.
3
  See Notes of Testimony, 5/2/16, at 10-11.
4
  Det. Sgt. Lorah described a snake load as “a small shotgun shell that is
typically used in a revolver.” See N.T. at 48-49.



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that he heard either Mr. Jones or Mr. Russell ask where the block party was

and state that they were going to do a drive by of the party.                The

statements of Ms. Porter and Mr. Husband were videotaped, and Appellant

reviewed those tapes prior to trial.

       Appellant’s counsel objected to this testimony, arguing that it was

hearsay and admitted in a violation of his due process rights.               The

magisterial district court overruled the objections and the charges were

bound over to the Court of Common Pleas of Erie County, Pennsylvania.

Appellant filed a petition for writ of habeas corpus, arguing that the hearsay

testimony of the affiant alone was insufficient to sustain a prima facie case

against him.     In October 2016, the trial court denied the petition, finding

that there was a sufficient amount of legally admissible evidence to establish

a prima facie case without reaching the applicability of Buchanan v.

Verbonitz, 581 A.2d 172 (Pa. 1990) (plurality) and Commonwealth v.

Ricker, 120 A.3d 349, 357 (Pa. Super. 2015).5

       Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).        The trial

court issued a responsive opinion.

       On appeal, Appellant raises the following questions for our review:


____________________________________________


5
  The Supreme Court of Pennsylvania granted Ricker’s petition for allowance
of appeal on April 18, 2016. See Commonwealth v. Ricker, 135 A.3d 175
(Pa. 2016). A decision has not yet been rendered.



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      A. Whether or not exception circumstances exist to warrant
      appellate review of the denial of the Appellant’s writ of habeas
      corpus which contested the Commonwealth’s use of hearsay
      testimony as the sole basis to support a prima facie case at the
      preliminary hearing?

      B. Whether or not hearsay testimony from the affiant is legally
      sufficient evidence to establish a prima facie case at the
      preliminary hearing when it is the only evidence presented by
      the Commonwealth at the preliminary hearing?

      C. Whether or not absent the hearsay testimony of the affiant
      there was legally admissible evidence presented by the
      Commonwealth to establish prima facie evidence as to each of
      the charges against the defendant?

Appellant’s Brief at 5 (unnecessary capitalization and responsive answers

omitted).

      Appellant first claims that exceptional circumstances exist to warrant

appellate review of the denial of the writ of habeas corpus. See Appellant’s

Brief at 12-15.    Appellant contends that because this issue will evade

appellate review and an important constitutional question is raised, we may

review the merits of his issues. Id.

      Except as otherwise prescribed by the rules, an appeal may be taken

as of right from any final order of a trial court.    See Pa.R.A.P. 341(a).

Generally,   a criminal defendant   may appeal only   from   a   judgment   of

sentence. Commonwealth v. Reagan, 479 A.2d 621, 622 (Pa. Super.

1984).   More specifically, in most circumstances “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.” See Ricker, 120 A.3d at 353 (internal




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citations omitted). Where exceptional circumstances exist, an appeal from

such an interlocutory order may be considered. Id.

       In Ricker, this Court considered a matter with a nearly identical

procedural     posture    and    issue,    examining   the   2013   amendment   to

Pa.R.Crim.P. 542, which permitted the Commonwealth to establish, via

hearsay, any element of an offense for purposes of determining whether a

prima facie case was established. See Ricker, supra. At the preliminary

hearing, the arresting officers did not testify.        Ricker, 120 A.3d at 352.

Instead, the lead investigator on the case played a tape of an interview with

officers involved in the inciting incident. Id. Upon review, this Court held

that 1) exceptional circumstances supported the appeal, such that it could

be reviewed;6 2) hearsay evidence alone was sufficient to hold the case over

for trial; 3) there was no constitutional right to confrontation of witnesses

prior to trial; and 4) declining to address the due process implications of this

decision, as Ricker had not briefed this argument. See Ricker, supra.

       In April 2016, the Pennsylvania Supreme Court granted allocatur to

answer the question:

____________________________________________


6
  Specifically, there was an important question to be determined, i.e.,
“whether a powerful state governmental entity violates federal and state
constitutional principles in allowing a defendant to be restrained of his liberty
and bound over for trial based solely on hearsay evidence.” Ricker, 120
A.3d at 354. The fact that this question would evade review due to the
inability to challenge issues raised in preliminary hearings constituted
extraordinary circumstances. Id.



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      Whether the Pennsylvania Superior Court wrongly held, in a
      published opinion of first impression, that a defendant does not
      have a state or federal constitutional right to confront the
      witness against him at a preliminary hearing and that a prima
      facie case may be proven by the Commonwealth through
      hearsay evidence alone, which is what the trial and magisterial
      district courts concluded in Petitioner's case?

Commonwealth v. Ricker, 135 A.3d 175 (Pa. 2016).

      This Court has also recently addressed the due process implications of

holding   cases   for   trial   based   solely   on   hearsay   evidence.   See

Commonwealth v. McClelland, --- A.3d ---, 2017 Pa. Super. 163 (filed

May 26, 2017). The appellant in McClelland was held for trial following a

preliminary hearing during which the only evidence introduced was the

testimony of an investigating officer regarding an interview he witnessed

with the child victim.     Id. at *1.    On appeal, the appellant argued that

holding the charges based on hearsay violated his rights to confrontation

and due process. Id.

      We affirmed, holding that 1) a preliminary hearing triggers due

process protections and should be analyzed under procedural due process;

2) an accused has a limited liberty interest in the preliminary hearing; 3)

while liberty interests may be at issue when an accused is convicted, the

preliminary hearing is not a final adjudication of those issues; 4) Appellant’s




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due process rights were not violated by a preliminary hearing at which only

hearsay evidence was presented. See McClelland, *1-10.7

       Appellant contends that because similar extraordinary circumstances

are present here, and because his case is factually similar to Ricker, he is

likewise entitled to an interlocutory appeal. However, Ricker held that the

Pennsylvania Rules of Criminal Procedure allow hearsay evidence alone to

establish a prima facie case and that an accused does not have a state or

federal constitutional right to confront the witnesses against him at his

preliminary hearing. Ricker, supra. Until adjudication by the Pennsylvania

Supreme Court, our decision in Ricker is dispositive.

       Appellant raises substantially the same issues already examined in

Ricker and again in McClelland.                 As these decisions remain binding

precedent, we would be constrained to conclude that Appellant’s issue is

meritless. Nevertheless, because Ricker is dispositive, the issues Appellant

seeks to raise no longer constitute extraordinary circumstances.                   See

Ricker, 120 A.3d at 354. We have in fact determined whether a defendant

may be bound over to the Court of Common Pleas based upon a preliminary

hearing with hearsay as the              sole     evidence.   See    Ricker,    supra;

McClelland,      supra.       Thus,    we      cannot   conclude   that   extraordinary


____________________________________________


7
 A petition for allowance of appeal was filed June 23, 2017. A decision has
not yet been rendered. See Commonwealth v. McClelland, 252 WAL
2017 (filed June 23252 WAL 2017, 2017).



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circumstances exist in Appellant’s case. His issue has indeed been reviewed

by a prior panel of this Court and has been rejected.     It is currently on

appeal to the Pennsylvania Supreme Court.

     Accordingly, we do not have appellate jurisdiction to consider an

interlocutory appeal not of right and where permission has not been granted.

See Pa.R.A.P. 301; 311; 312.     Therefore we will not reach the merits of

Appellant’s remaining issues.

     Appeal quashed.

     Judge Olson joins the memorandum.

     Judge Solano files a concurring statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2017




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