Com. v. Lanning, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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