J-A12028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                       v.

STEPHEN TERREL RUSSELL

                            Appellant                      No. 1688 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-0001497-2016


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

MEMORANDUM BY RANSOM, J.:                                 FILED AUGUST 25, 2017

       Appellant, Stephen Terrel Russell, appeals from 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 arrested and 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. Co-defendant Keshawn McLaurin was the registered

owner of the SUV. When questioned by police, Mr. McLaurin admitted that

he owned the SUV and was driving that night. A .38 caliber gun was found

close to the crashed SUV.           Mr. McLaurin 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 Mr.

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

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

Jahaun Jones and Appellant as passengers in an SUV, driven by Mr.


____________________________________________


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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McLaurin, that passed him earlier that night.    Mr. Husband stated that he

heard either Mr. Jones or Appellant 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.          However, 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 Appellant’s petition,

noting that although the prima facie case relied at least in part on

inadmissible hearsay, the court was bound by Pa.R.Crim.P. 542 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:

       A. Whether exceptional circumstances exist to warrant appellate
       review of the denial of [Appellant’s] writ of habeas corpus which
____________________________________________


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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      contested the Commonwealth’s use of hearsay testimony as the
      sole basis to support a prima facie case at the preliminary
      hearing?

      B. Whether 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?

      C. Whether the testimony from the Commonwealth was
      sufficient to establish a prima facie case regardless of it being
      based upon hearsay only.

Appellant’s Brief at 6.

      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 11. 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

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


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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:

       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?

____________________________________________


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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J-A12028-17



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

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


____________________________________________


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 23, 2017).



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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

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.

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     Judge Olson joins the memorandum.

     Judge Solano files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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