Com. v. Dolan, M.

J-A08034-17
2020 PA Super 257COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 2509 EDA 2016
MAXWELL LIAM DOLAN
Appeal from the Order Entered March 4, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000742-2016
BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED OCTOBER 23, 2020
On April 1, 2016, the Commonwealth filed an interlocutory appeal to the
Pennsylvania Supreme Court and asked it to exercise its exclusive appellate
jurisdiction over any final order deeming a statute unconstitutional. According
to the Commonwealth, the common pleas court necessarily declared
Pa.R.Crim.P. 542(E)1 unconstitutional when it rejected the magisterial district
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* Former Justice specially assigned to the Superior Court.
1 Rule 542 provides, in pertinent part:
Rule 542. Preliminary Hearing; Continuances
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(C) The defendant shall be present at any preliminary hearing except as
provided in these rules, and may:
…
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judge’s ruling allowing the Commonwealth to rely exclusively on hearsay
testimony to make a prima facie case at the first preliminary hearing and
remanded for a new preliminary hearing, at which testimony from the alleged
rape victim would be required. The Supreme Court, however, declined to take
up the matter directly and, instead, transferred the appeal to this Court.
On July 22, 2017, this panel filed an order and opinion reversing the
trial court’s order and remanding the matter for further proceedings consistent
with our decision. See Commonwealth v. Dolan, 167 A.3d 46 (Pa.Super.
2017). In so doing, we followed binding precedent set forth in
Commonwealth v. McClelland, 165 A.3d 19 (Pa.Super. 2017), which held
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(2) Cross-examine witnesses and inspect physical evidence offered
against the defendant;
…
(D) At the preliminary hearing, the issuing authority shall determine
from the evidence presented whether there is a prima facie case
that (1) an offense has been committed and (2) the defendant has
committed it.
(E) Hearsay as provided by law shall be considered by the issuing
authority in determining whether a prima facie case has been
established. Hearsay evidence shall be sufficient to establish any
element of an offense, including, but not limited to, those requiring
proof of the ownership of, non-permitted use of, damage to, or
value of property.
….
Pa.R.Crim.P. 542 (selected provisions).
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that both decisional law regarding a defendant’s due process rights at a
preliminary hearing and Pennsylvania Rule of Criminal Procedure 542(E)
permit the Commonwealth to rely exclusively on hearsay evidence to establish
a prima facie case at a preliminary hearing.
Appellee Dolan filed a timely petition for allowance of appeal with the
Pennsylvania Supreme Court, which eventually granted his petition on August
20, 2020, in light of its treatment of the identical issue in Commonwealth v.
McClelland, --- A.3d ----, 2020 WL 4092109 (Pa. July 21, 2020). Specifically,
the Supreme Court in McClelland addressed:
whether the Superior Court panel failed to properly apply and
follow the legal precedent set forth in Commonwealth ex rel.
Buchanan v. Verbonitz, [525 Pa. 413] 581 A.[2d]3d 172, 174–
76 (Pa. 1990) in which five (5) Justices held that “fundamental
due process requires that no adjudication be based solely on
hearsay evidence.”
Commonwealth v. McClelland, 179 A.3d 2, 3 (Pa. 2018). In reversing this
Court, the Supreme Court held Rule 542(E)’s clause providing that “hearsay
may establish the elements of any offense” at a preliminary hearing, could not
be construed to mean that hearsay alone suffices to establish a prima facie
case at a preliminary hearing, contrary to Verbonitz. The Court further
clarified that the Commonwealth's use of hearsay evidence alone to establish
prima facie case at preliminary violated fundamental due process.
Consistent with its decision in McClelland, the Supreme Court issued
the following per curiam order in the case sub judice:
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AND NOW, this 20th day of August, 2020, the Petition for
Allowance of Appeal is GRANTED, and the order of the Superior
Court is REVERSED. See Commonwealth v. McClelland, 2020
WL 4092109 (Pa. July 21, 2020).
Pennsylvania Supreme Court Order, 8/20/2020.
In conformity with both our Supreme Court’s decision in McClelland
and its subsequent order reversing our prior order in the case sub judice, we
have no choice but to affirm the trial court’s interlocutory order entered
below.2
Order affirmed.
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2 Our order affirming the trial court’s interlocutory order does not preclude the
Commonwealth from refiling charges against Appellee Dolan and proceeding
with a new preliminary hearing. As the Supreme Court majority in
McClelland observed under circumstances virtually identical to those in the
instant case:
Dismissal of charges and discharge of the accused for failure to
establish a prima facie case at the preliminary hearing is an
interlocutory order, see [Commonwealth v.]La Belle, 612 A.2d
[418, 420 (Pa. 1992),] which does not implicate double jeopardy
concerns. See Liciaga v. Court of Common Pleas of Lehigh
Co., 523 Pa. 258, 566 A.2d 246, 267 (1989). Because the
Commonwealth relied on a reasonable yet imprecise reading of
Rule 542, we discharge [McClelland] without prejudice to the
Commonwealth to refile charges and proceed with a new
preliminary hearing.
McClelland, 233 A.3d at 736.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/20
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