J-S03012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DIMAS COLON-CRUZ

                            Appellant                No. 439 WDA 2016


                      Appeal from the Order March 1, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002778-2015


BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 28, 2017

       Appellant, Dimas Colon-Cruz, appeals from the order entered on March

1, 2016, dismissing his petition for writ of habeas corpus, which challenged

the Commonwealth’s ability to establish a prima facie case of witness

intimidation,1 based solely on hearsay evidence, at Appellant’s preliminary

hearing. We quash the appeal as interlocutory.

       The trial court summarized the facts and procedural history of this

case as follows:

         [Appellant] was charged by Officer Cheryl Frey of the Erie
         Police Department with one count of [i]ntimidation of a
         [v]ictim/[w]itness, a third degree felony. In the [c]riminal
         [c]omplaint, Officer Frey informed [Appellant] the charge
         was based on alleged statements and/or threats to his
         neighbor, Jennifer Keller, to not testify in a case involving
____________________________________________


1
    18 Pa.C.S.A. § 4952(a)(1).



* Retired Senior Judge assigned to the Superior Court.
J-S03012-17


         Dawaun Carson. In fact, Jennifer Keller did testify at a
         preliminary hearing involving Dawaun Carson during which
         [Appellant] allegedly made additional verbal and/or
         non-verbal threats to Keller.       Following the preliminary
         hearing for Carson, Officer Frey filed the within charge.

         At a preliminary hearing held in this case on October 1,
         2015, Jennifer Keller did not appear to testify. As a result,
         the Commonwealth adduced the testimony of Officer Frey
         who outlined the statement given to her by Jennifer Keller
         as set forth in the [c]riminal [c]omplaint. Over [Appellant’s]
         objections, the charge was bound over to court.

Trial Court Opinion, 3/1/2016, at 1. On February 9, 2016, Appellant filed an

omnibus pre-trial motion and accompanying memorandum of law in support.

At issue herein, Appellant sought              habeas corpus relief arguing the

Commonwealth        violated    his   constitutional   rights   to   confront   adverse

witnesses and due process because the Commonwealth relied solely on

hearsay testimony at the preliminary hearing. By order entered on March 1,

2016, the trial court denied relief. This appeal resulted.2

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

         A. Whether exceptional circumstances exist to warrant
            appellate review of the denial of [Appellant’s] [w]rit of
            [h]abeas [c]orpus which contested the Commonwealth’s
            use of only hearsay testimony as the sole basis to
            support its prima facie case at the preliminary hearing.



____________________________________________


2
    Appellant filed a timely notice of appeal on March 28, 2016. On March
28, 2016, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied on April 11, 2016. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on April 20, 2016.



                                           -2-
J-S03012-17


         B. Whether hearsay testimony by the affiant is legally
            sufficient to establish a prima facie case at the
            preliminary hearing when it is the only evidence
            presented.

Appellant’s Brief at 3-4.

       Appellant argues that the hearsay testimony of the investigating police

officer, standing alone, is insufficient to establish a prima facie case against

him since such a procedure violates his constitutional rights to due process

and to confront adverse witnesses. Initially, we must determine whether we

have jurisdiction over this appeal. “In this Commonwealth, an appeal may

only be taken from: 1) a final order or one certified by the trial court as

final; 2) an interlocutory order as of right; 3) an interlocutory order by

permission; or 4) a collateral order.” Commonwealth v. Ivy, 146 A.3d 241,

255 (Pa. Super. 2016) (internal citation omitted). “Generally, 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.”3       Commonwealth v.

Ricker, 120 A.3d 349, 353 (Pa. Super. 2015).        In Ricker, the defendant

raised a claim similar to the one presented herein, arguing exclusive reliance

upon hearsay evidence at a preliminary hearing violated a defendant’s right

____________________________________________


3
  Here, Appellant concedes that the order he appeals from is interlocutory.
Appellant’s Brief at 1. Upon review of the record, Appellant did not seek
permission from the trial court to appeal nor does Appellant contend that his
interlocutory order is permitted statutorily as of right. Instead, he argues
that exceptional circumstances warrant our review. Id. For the reasons
that follow, we disagree.




                                           -3-
J-S03012-17



to confront witnesses.        We accepted the interlocutory order, because the

issue was one of first impression in the Commonwealth and exceptional

circumstances warranted it.           We determined the issue was capable of

evading    review    and    presented     “an    important   constitutional   question

regarding 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.” Id. at

354. After examining Pa.R.Crim.P. 542(E),4 the historical underpinnings of

the preliminary hearing, the Pennsylvania and federal confrontation clauses,

and applicable case law, “we [found] that an accused does not have the

right to confront the witnesses against him at his preliminary hearing[.]”

Id. at 362.

       On April 18, 2016, the Pennsylvania Supreme Court granted a petition

for allowance of appeal in Ricker.             See Commonwealth v. Ricker, 135

A.3d 175 (Pa. 2016). To date, however, no decision has been forthcoming.

“It is beyond the power of a Superior Court panel to overrule a prior decision

of the Superior Court, except in circumstances where intervening authority

by our Supreme Court calls into question a previous decision of this Court.”


____________________________________________


4
 “Hearsay as provided by law shall be considered by the issuing authority in
determining whether a prima facie case has been established. Hearsay
evidence shall be sufficient to establish any element of an offense, including,
but not limited to, those requiring proof of the ownership of, non-permitted
use of, damage to, or value of property.” Pa.R.Crim.P. 542(E).



                                           -4-
J-S03012-17



Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (internal

citations omitted).     At this point in time, our Supreme Court has only

granted an appeal for the purpose of determining whether a defendant has a

right to confront witnesses at his preliminary hearing or if a prima facie case

may be proven by the Commonwealth through hearsay evidence alone.

Because our Supreme Court has not yet ruled upon Ricker’s declaration that

challenges such as the present one involve appealable matters or the issue

of whether the Commonwealth may rely solely on hearsay evidence to

establish its prima facie case at a preliminary hearing, our Court's prior

decision in Ricker is binding and Appellant is not entitled to appellate

review.     As such, Appellant has not shown exceptional circumstances to

accept his otherwise interlocutory appeal.

         As noted above, Appellant also argues, in the alternative, that the use

of hearsay alone at his preliminary hearing violates his fundamental right to

due process.      Appellant’s Brief at 13-20.       For this proposition, Appellant

relies     primarily   on   our   Supreme         Court’s    plurality   decision   in

Commonwealth ex. rel. Buchanon v. Verbonitz, 581 A.2d 172 (Pa.

1990).      We have recently addressed this identical due process claim,

specifically    examining    Verbonitz,      in     our     published    decision   in

Commonwealth v. McClelland, -- A.3d --, 2017 WL 2312083 (Pa. Super.

2017).     In McClelland, similar to Ricker, we first addressed whether we

had jurisdiction, recognizing that generally “the denial of a pretrial writ of

habeas corpus claiming a lack of sufficient evidence is not an appealable

                                       -5-
J-S03012-17



order.” McClelland at *1. We then determined that Ricker left unresolved

whether it was a violation of fundamental due process rights when the

Commonwealth relies solely upon hearsay evidence at a preliminary hearing.

Because we had yet to address this important constitutional question, we

found that exceptional circumstances warranted review of an otherwise

interlocutory order.   Id.   Ultimately, in McClelland, we determined there

was no violation of due process where, at his preliminary hearing, McClelland

had the ability to cross-examine the primary investigator about statements

made to him by the victim.     In this case, at Appellant’s preliminary hearing,

the Commonwealth presented the testimony of the police officer who took

the alleged victim’s purported statement, which then formed the basis for

the criminal charges against Appellant.         Thus, McClelland previously

addressed (and rejected) the identical due process argument Appellant

advances sub judice. Accordingly, Appellant has not presented exceptional

circumstances warranting our review of his separate due process challenge.

For all the foregoing reasons, we lack jurisdiction to entertain the appeal of

this interlocutory order.

      Appeal quashed.

      Strassburger, J. joins this memorandum.

      Solano, J. concurs in the result.




                                      -6-
J-S03012-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2017




                          -7-
