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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
LOUIS HENRY BRANCH,                      :        No. 1947 EDA 2016
                                         :
                         Appellant       :


                     Appeal from the Order, May 24, 2016,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0008466-2015


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 15, 2017

        Louis Henry Branch appeals from the May 24, 2016 order entered in

the Court of Common Pleas of Montgomery County that denied his petition

for writ of habeas corpus. We quash.

        The record reflects that appellant was charged with 10 counts of rape

of a child less than 13 years of age; 10 counts of aggravated indecent

assault of a child less than 13 years of age; 2 counts of indecent assault --

complainant less than 13 years of age; and 1 count of unlawful contact with

minor.1     At appellant’s preliminary hearing, the Commonwealth called

Detective Heather Long as its sole witness. Detective Long testified that she

investigated the allegations that appellant sexually abused children and



1
    18 Pa.C.S.A. §§ 3121(c), 3125(b), 3126(a)(7), and 6318(a)(1).
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personally interviewed both victims.      The magisterial district judge (MDJ)

overruled     defense   counsel’s   hearsay   objections   to   Detective   Long’s

testimony regarding what the victims told her during their interviews.

        As such, Detective Long testified that victim R.Y. disclosed that she

was at her aunt’s home when appellant, R.Y.’s grandfather, “tried to push

my legs apart and rape me” and that “his private touched her private and he

was humping, going up and down.” (Notes of testimony, 11/17/15 at 10.)

Detective Long further testified that the victim described the room in which

the sexual assault occurred and that during a subsequent search of the

home, law enforcement collected corroborating evidence and photographed

the room. (Id. at 27.) Detective Long also testified that the second victim,

C.B., appellant’s niece, disclosed to her that when she was between 10 and

11 years old,2 appellant “would touch her vaginal area with his fingers and

insert them and ultimately insert his penis into her vagina” on “at least 10”

occasions.     (Id. 21-23.)   On the basis of Detective Long’s testimony, the

MDJ found that the Commonwealth made out a prima facie case and held

all 33 charges against appellant for court. (Id. at 36.)

        The record further reflects that appellant was unable to post bail and,

therefore, incarcerated on November 17, 2015. On April 5, 2016, appellant

filed a petition for writ of habeas corpus alleging that his “confinement is

unlawful and that the proceedings were in violation of due process of laws of


2
    The record reflects that C.B. is now 31 years old.


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the Federal Constitution and in violation of the Pennsylvania Constitution”

because the evidence “did not establish [a] prima facie case” and appellant

is “not guilty.” (Petition for writ of habeas corpus, 4/5/16 at unnumbered

page 2, ¶ 5.)

      The trial court conducted a hearing on appellant’s petition for habeas

corpus on May 23, 2016. At that hearing, the Commonwealth rested on the

notes of testimony from appellant’s preliminary hearing. The defense then

sought to call appellant’s former parole officer to testify that appellant was

on parole at the time of certain alleged assaults on C.B. and that C.B. failed

to report those assaults to the parole officer. The trial court sustained the

Commonwealth’s     objection   to   the   testimony   because   that   testimony

challenged C.B.’s credibility and credibility is not an issue at a habeas

corpus proceeding.     (Notes of testimony, 5/23/16 at 4-7.)       The defense

then sought to call Detective Long to establish that she has no personal

knowledge of the investigation other than through hearsay testimony. The

trial court sustained the Commonwealth’s objection to that testimony as well

because it challenged Detective Long’s credibility. (Id. at 8, 13.)

      By order dated May 24, 2016, but docketed on May 26, 2016, the trial

court denied appellant’s petition for habeas corpus.       On June 24, 2016,

appellant filed a notice of appeal to this court. The trial court then ordered

appellant to file a concise statement of errors complained of on appeal




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pursuant to Pa.R.A.P. 1925(b) within 21 days.          Appellant timely complied.

The trial court then filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review, which we have

re-ordered for ease of discussion:

            [1.]   Whether the instant appeal is a timely and
                   permissible interlocutory appeal pursuant to
                   Pa.R.A.P. 313[?]

            [2.]   Whether Rule 542(D) of the Pennsylvania
                   Rules of Criminal Procedure permits the
                   Commonwealth to prove every element of the
                   offense   through the   use   of  hearsay
                   testimony[?]

            [3.]   Whether Rule 542(D) of the Pennsylvania
                   Rules of Criminal Procedure is unconstitutional
                   insofar as it violates a defendant’s right to
                   confront the witnesses against him as
                   guaranteed by the Sixth Amendment to the
                   United States Constitution and Article I § 9 of
                   the Pennsylvania Constitution[?]

            [4.]   Whether the trial court committed an error of
                   law and/or abused its discretion in denying
                   [appellant’s] petition for writ of habeas
                   corpus where the Commonwealth’s proof at
                   the habeas hearing was limited to a transcript
                   of the preliminary hearing which itself was
                   supported only by hearsay evidence, thereby
                   rendering the evidence presented at the
                   habeas hearing double-hearsay[?]

            [5.]   Whether the trial court committed an error of
                   law and/or abused its discretion in precluding
                   the defense from presenting any witnesses at
                   the habeas corpus hearing[?]

Appellant’s brief at 5 (capitalization omitted; emphasis in original).




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      We must first determine whether we have jurisdiction over this

interlocutory appeal. In so doing, we note that on August 9, 2016, this court

ordered appellant to show cause as to why this appeal should not be

quashed as interlocutory.3 Appellant averred that “the appeal should not be

quashed as interlocutory insofar as exceptional circumstances [apply],

nearly identical to the circumstances in Commonwealth v. Ricker, 120

A.3d 349 (Pa.Super. 2014),” appeal granted, 135 A.3d 175 (Pa. 2016).4


3
  The show-cause order also directed appellant to show cause as to why this
appeal should not be quashed as untimely filed on June 24, 2016. In his
timely response to the show-cause order, appellant averred that although
the trial court dated its order denying his habeas petition May 24, 2016, its
date of entry on the docket was May 26, 2016, and therefore, his June 24,
2016 notice of appeal was timely filed. See Commonwealth v. Green, 862
A.2d 613, 615 n.5 (Pa.Super. 2004) (“The use of the term ‘date of entry of
an order’ has been interpreted to mean the date of docketing of the order.”);
see also Pa.R.A.P. 108 (“[T]he day of entry shall be the day the clerk of the
court or the office of the government unit mails or delivers copies of the
order to the parties, or if such delivery is not otherwise required by law, the
day the clerk or office of the government unit makes such copies public.”).
Our review of the record reveals that the date of entry on the docket of the
order denying appellant’s petition for habeas corpus was May 26, 2016.
Therefore, appellant timely filed his notice of appeal to this court.
4
  Our supreme court granted the petition for allowance of appeal as to the
issue of:
           [w]hether 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?

Ricker, 135 A.3d 175.


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(Appellant’s response to the rule to show cause why the appeal should not

be quashed as untimely and interlocutory, 8/19/16 at unnumbered page 2,

¶ 5.) Appellant then averred that,

            [i]nsofar as the instant appeal raises identical issues
            as those raised in Ricker and currently under review
            by our Supreme Court, but actually amplifies them
            by adding incarceration at a state correctional facility
            and the use of double hearsay to support a
            prima facie case at a habeas corpus hearing, it is
            evident that exceptional circumstances exist herein
            to permit this Honorable Court to exercise
            jurisdiction over [appellant’s claims.]

Id. at unnumbered page 3, ¶ 5. Following appellant’s filing of his response

to the rule to show cause order, this court entered an order informing the

parties to this appeal that the issue regarding the appealability of the order

denying habeas relief would be referred to the merits panel. We, therefore,

address the appealability issue.

      Generally, an order denying a pretrial writ of habeas corpus alleging

insufficient evidence is not an appealable order. Ricker, 120 A.3d at 353.

In Ricker, this court determined that exceptional circumstances existed to

warrant review of that interlocutory appeal of an order denying habeas

relief because “it present[ed] an important constitutional question regarding

whether a powerful state government 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.” Id. at 354.

            We previously outlined the collateral order doctrine
            as follows:


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                Our High Court has delineated three
                requirements that must be satisfied in
                order for the doctrine to apply.        The
                order must be “separable from and
                collateral to the main cause of action;” it
                must involve a right that “is too
                important to be denied review;” and, “if
                review is postponed until final judgment,
                the claim will be irreparably lost.”
                Vaccone v. Syken, 587 Pa. 380, 899
                A.2d 1103, 1106 (2006). The doctrine is
                to be narrowly interpreted as it is an
                exception to the rule of finality. Id.; see
                also Rae v. Pennsylvania Funeral
                Directors Association, 602 Pa. 65, 977
                A.2d 1121, 1126 (2009).

          In re Reglan/Metoclopramide Litigation, 2013
          PA Super 214, 81 A.3d 80, 86 (Pa.Super. 2013).
          Hence, the three essential elements of a collateral
          order are “separability, importance and irreparable
          loss.” Geniviva v. Frisk, 555 Pa. 589, 725 A.2d
          1209, 1211 (Pa. 1999).

          Our Supreme Court codified the elements of a
          collateral order into Pa.R.A.P. 313. That rule provides
          as follows:

          (a)   General rule. An appeal may be taken
                as of right from a collateral order of an
                administrative agency or a lower court.

          (b)   Definition. A collateral order is an order
                separable from and collateral to the main
                cause of action where the right involved
                is too important to be denied review and
                the question presented is such that if
                review is postponed until final judgment
                in the case, the claim will be irreparably
                lost.

          Pa.R.A.P. 313.



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Rehrer v. Youst, 91 A.3d 183, 187-188 (Pa.Super. 2014).

     Here, in his brief, appellant contends that exceptional circumstances

exist based on a violation of his constitutional right to confront witnesses

against him at his preliminary hearing because Detective Long’s hearsay

testimony regarding the statements the victims made in their interviews

deprived him of the right to confront the victims. (Appellant’s brief at 13.)

Appellant   later   “acknowledges   that   this   Court   held   in   Ricker   that

Pa.R.Crim.P 542[, which provides, among other things, that ‘hearsay

evidence shall be sufficient to establish any element of an offense’ at a

preliminary hearing] does not violate a defendant’s right to confront the

witnesses against him, but respectfully requests that this court re-examine

that holding.” (Id. at 18.) We decline to do so. Until our supreme court

overrules our decision in Ricker, it is the law of this Commonwealth. See

Commonwealth v. Forbes, 867 A.2d 1268, 1279 (Pa.Super. 2005)

(reiterating that “[i]t is well settled . . . that until the Supreme Court

overrules a decision of this Court, our decision is the law of this

Commonwealth” (citation omitted)).

     Moreover, we note that even though appellant acknowledges that he

seeks collateral review with respect to an issue that has been resolved by

Ricker, he still attempts to convince this court that the issue is too

important to be denied review because he “remains incarcerated and under

the specter of accusations that he sexually abused his grandchild and niece



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without having had the opportunity to cross-examine any witness with

purported first-hand knowledge of the alleged crime.”           (Appellant’s brief

at 13; emphasis in original.)    In determining whether the right involved is

too important to be denied review, however, the issue “must involve rights

deeply rooted in public policy,” and “[go] beyond the specific litigation before

the court.”    Ben v. Schwartz, 729 A.2d 547, 552 (Pa. 1999).               Stated

differently, it is not sufficient that the issue is important to a particular party.

Id.   Therefore, even though appellant’s incarceration and the accusations

made against appellant are important to him, that falls far short of involving

a right deeply rooted in public policy.

      Finally, with respect to the remainder of appellant’s issues concerning

his claim that the habeas proceeding violated his constitutional right to

confront witnesses against him and his claim that the trial court abused its

discretion in precluding him from presenting two witnesses at that

proceeding, appellant has failed to present any argument as to why those

issues satisfy the collateral order rule’s three-pronged test over which he

asks us to assert jurisdiction. Therefore, we are without jurisdiction to do

so.   See Rae, 977 A.2d at 1130 (holding that “the collateral order rule’s

three-pronged test must be applied independently to each distinct legal issue

over which an appellate court is asked to assert jurisdiction pursuant to

Rule 313”).

      Appeal quashed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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