Com. v. Montanez, J. ( 2020 )

J-S68029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAYSON S. MONTANEZ, :
:
Appellant : No. 279 MDA 2017
Appeal from the Order Entered September 26, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0000160-2015
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 10, 2020
Appellant, Jayson S. Montanez, appeals from the September 26, 2016
Order entered in the Luzerne County Court of Common Pleas denying his pre-
trial Petition for Writ of Habeas Corpus. In light of the Pennsylvania Supreme
Court’s recent decision in Commonwealth v. McClelland, 233 A.3d 717 (Pa.
2020) (“McClelland II”), we reverse.
The facts and procedural history are as follows. On November 21, 2014,
the Commonwealth charged Appellant with two counts of Involuntary Deviate
Sexual Intercourse (“ISDI”), two counts of Aggravated Indecent Assault, one
count of Incest, and one count of Corruption of Minors1 arising from allegations
of abuse by his minor daughter (the “Complainant”). The Complainant alleged
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1 18 Pa.C.S. §§ 3123(b), 3125(b), 4302(b), and 6301(a)(1)(ii), respectively.
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* Retired Senior Judge assigned to the Superior Court.
J-S68029-17
that Appellant had sexually abused her hundreds of times between 2012 and
July 2014, when she was between the ages of four and six years old.
At Appellant’s January 12, 2015 Preliminary Hearing, the
Commonwealth presented only hearsay evidence. In particular, the former
Luzerne County Children and Youth caseworker who had interviewed the
Complainant recounted statements the Complainant had made to the
caseworker detailing the alleged sexual abuse. The Commonwealth also
presented a video recording of the Complainant’s interview at the Luzerne
County Child Advocacy Center. The Complainant did not testify. The trial
court found that the Commonwealth’s hearsay evidence “clearly established a
prima facie case on each of the offenses charged[,]” and, thus, held all charges
over for trial. Trial Ct. Op., 2/24/17, at 2 (unpaginated).
On May 29, 2015, Appellant filed an Omnibus Pretrial Motion, which
included a Petition for Writ of Habeas Corpus. In the Petition, Appellant
asserted that Commonwealth failed to present sufficient competent, i.e., non-
hearsay, evidence at the Preliminary Hearing to establish a prima facie case
as to the elements of the charged offenses.
On August 26, 2016, the trial court held a hearing on Appellant’s Petition
for Writ of Habeas Corpus. On September 26, 2016, relying “solely on the
basis of the law as set forth [] in Commonwealth v. Ricker [120 A.3d 349,
357 (Pa. Super. 2015)], which allows the Commonwealth to use hearsay
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evidence alone to establish a prima facie case,” the trial court denied
Appellant’s Petition. Trial Ct. Op. at 3 (unpaginated).
On December 27, 2016, Appellant filed a Petition for Review of the trial
court’s September 26, 2016 Order. On February 14, 2017, this Court granted
Appellant’s Petition for Review after concluding that Appellant’s due process
challenge to the use of hearsay evidence alone to establish a prima facie case
presented an “extraordinary circumstance” upon which to allow appeal of an
interlocutory order. See Order Granting Petition for Review, filed 2/14/17.
However, after we granted the Petition for Review, this Court decided
Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super. 2017)
(“McClelland I”), and addressed the very issue upon which we had based our
conclusion that “extraordinary circumstances” existed in the instant matter to
justify our grant of permission to appeal.2 Thus, on February 12, 2018, we
quashed this appeal. Appellant filed a Petition for Allowance of Appeal with
the Pennsylvania Supreme Court.3
Subsequently, on July 21, 2020, the Pennsylvania Supreme Court
reversed this Court’s decision in McClelland I, expressly disapproved of the
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2 The McClelland I Court held that an accused’s due process rights are not
violated by a preliminary hearing at which the Commonwealth presents only
hearsay evidence. Id. at 32-33.
3 On September 28, 2018, the Pennsylvania Supreme Court entered an Order
holding Appellant’s Petition for Allowance of Appeal pending disposition of
McClelland II, supra. See Order Holding Petition for Allowance of Appeal,
filed 9/28/18.
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holding in Ricker, supra, and concluded, inter alia, that hearsay evidence
alone is insufficient to establish a prima facie case at a preliminary hearing.
McClelland II, 233 A.3d at 721.
As a result of this change in the law, on September 9, 2020, the
Supreme Court granted Appellant’s Petition for Allowance of Appeal and
remanded this case for our consideration of Appellant’s issue in light of the
Court’s holding in McClelland II.
Appellant raised one issue on appeal:
Did the trial court err as a matter of law by allowing the
Commonwealth to sustain its burden of proof solely upon hearsay
and without corroborating evidence under Pa.R.Crim.P. 542(E)
and in violation of [Appellant’s] right to Due Process pursuant to
the United States and Pennsylvania Constitutions?
Appellant’s Brief at 3.
Our standard of review of the denial of a petition for writ of habeas
corpus that raises a question of law is de novo, and our scope of review is
plenary. McClelland II, 233 A.3d at 732.
“A pre-trial habeas corpus motion is the proper means for testing
whether the Commonwealth has sufficient evidence to establish a prima facie
case.” Commonwealth v. Carper, 172 A.3d 613, 620 (Pa. Super. 2017)
(citation omitted). “To demonstrate that a prima facie case exists, the
Commonwealth must produce evidence of every material element of the
charged offense(s) as well as the defendant’s complicity therein.” Id. (citation
omitted).
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Pa.R.Crim.P. 542(E) permits a trial court to consider hearsay evidence
in determining whether the Commonwealth has established a prima facie case.
See Pa.R.Crim.P. 542(E) (“Hearsay as provided by law shall be considered by
the issuing authority in determining whether a prima facie case has been
established.”). Rule 542(E) does not, however, permit the Commonwealth to
rely exclusively on hearsay evidence to establish all elements of all crimes for
purposes of establishing a prima facie case at a preliminary hearing.
McClelland II, 233 A.3d at 721, 735-36.
Instantly, it is undisputed that the Commonwealth presented only
hearsay evidence at Appellant’s preliminary hearing. Thus, pursuant to the
holding in McClelland II, the Commonwealth failed to sustain its burden to
establish all elements of all of the crimes charged for purposes of establishing
prima facie case at the preliminary hearing. We, therefore, reverse the trial
court’s Order denying Appellant’s Petition for Writ of Habeas Corpus and
dismiss the charges against him.
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Order reversed. Appellant discharged without prejudice.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2020
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4 “Dismissal of charges and discharge of the accused for failure to establish a
prima facie case at the preliminary hearing . . . does not implicate double
jeopardy concerns.” McClelland II, 233 A.3d at 736 n.11 (citations omitted).
Accordingly, following Appellant’s discharge without prejudice, the
Commonwealth may refile the charges against Appellant and proceed with a
new preliminary hearing. Id.
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