Com. v. Russell, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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