J-A18005-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

MICHAEL FRANK LANNING

                        Appellant                  No. 1761 WDA 2016


            Appeal from the Order Entered October 28, 2016
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0001679-2016


BEFORE: BOWES, LAZARUS, AND OTT, JJ.

JUDGMENT ORDER BY BOWES, J.:                         FILED JUNE 27, 2017

     Michael Frank Lanning appeals from the October 28, 2016 order

denying his pretrial motion for habeas corpus relief. We quash.

     Appellant was charged with two counts each of rape, aggravated

indecent assault, endangering the welfare of children, and indecent

exposure, and four counts of indecent assault. At the preliminary hearing,

the charges were bound over premised upon hearsay information provided

by the affiant for Appellant’s arrest, Pennsylvania State Trooper Curtis

Guntrum.   Appellant filed a petition for writ of habeas corpus, which was

denied. This appeal followed.

     On appeal, the question presented is whether hearsay testimony is

sufficient to establish a prima facie case where no other evidence is
J-A18005-17



presented.      Appellant’s brief at 5.   Initially, we note that “it is firmly

established that the denial of a habeas corpus claim, based upon the

insufficiency of the evidence presented to the issuing authority, without a

showing of exceptional circumstances[,] . . . will not provide a basis for

immediate appellate review.” Commonwealth v. Hess, 414 A.2d 1043,

1048 (1980); accord Commonwealth v. Ricker, 120 A.3d 349 (Pa.Super.

2015), appeal granted, 135 A.3d 175 (Pa. 2016); Commonwealth v.

Jackson, 849 A.2d 1254, 1256 (Pa. 2004).

      Appellant avers that exceptional circumstances exist herein because

the issues presented are capable of being repeated yet evading appellate

review.    See Ricker, supra; see also Commonwealth v. McClelland,

2017 PA Super 163 (May 26, 2017). Appellant contends that use of hearsay

by the affiant as the sole basis to support a prima facie case at a preliminary

hearing violates his confrontation clause and due process rights. Appellant’s

brief at 12-13.    However, these issues have been squarely addressed and

rejected   in    Ricker,   supra   (confrontation   clause   did   not   prohibit

Commonwealth from establishing prima facie case solely through the use of

hearsay) and McClelland, supra (use of hearsay testimony from an affiant

does not violate due process even though hearsay was sole basis upon which

Commonwealth established prima facie case at preliminary hearing). Hence,

the purported errors raised herein are no longer capable of being repeated

and evading review, as review has been achieved. Furthermore, Ricker and

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McClelland constitute binding precedent on the issues presented herein,

which prevents a finding of exceptional circumstances such as to warrant

immediate review of the order herein.   Hence, we quash this appeal,

     Appeal quashed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




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