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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LOUIS HENRY BRANCH, : No. 1947 EDA 2016
:
Appellant :
Appeal from the Order, May 24, 2016,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0008466-2015
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 15, 2017
Louis Henry Branch appeals from the May 24, 2016 order entered in
the Court of Common Pleas of Montgomery County that denied his petition
for writ of habeas corpus. We quash.
The record reflects that appellant was charged with 10 counts of rape
of a child less than 13 years of age; 10 counts of aggravated indecent
assault of a child less than 13 years of age; 2 counts of indecent assault --
complainant less than 13 years of age; and 1 count of unlawful contact with
minor.1 At appellant’s preliminary hearing, the Commonwealth called
Detective Heather Long as its sole witness. Detective Long testified that she
investigated the allegations that appellant sexually abused children and
1
18 Pa.C.S.A. §§ 3121(c), 3125(b), 3126(a)(7), and 6318(a)(1).
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personally interviewed both victims. The magisterial district judge (MDJ)
overruled defense counsel’s hearsay objections to Detective Long’s
testimony regarding what the victims told her during their interviews.
As such, Detective Long testified that victim R.Y. disclosed that she
was at her aunt’s home when appellant, R.Y.’s grandfather, “tried to push
my legs apart and rape me” and that “his private touched her private and he
was humping, going up and down.” (Notes of testimony, 11/17/15 at 10.)
Detective Long further testified that the victim described the room in which
the sexual assault occurred and that during a subsequent search of the
home, law enforcement collected corroborating evidence and photographed
the room. (Id. at 27.) Detective Long also testified that the second victim,
C.B., appellant’s niece, disclosed to her that when she was between 10 and
11 years old,2 appellant “would touch her vaginal area with his fingers and
insert them and ultimately insert his penis into her vagina” on “at least 10”
occasions. (Id. 21-23.) On the basis of Detective Long’s testimony, the
MDJ found that the Commonwealth made out a prima facie case and held
all 33 charges against appellant for court. (Id. at 36.)
The record further reflects that appellant was unable to post bail and,
therefore, incarcerated on November 17, 2015. On April 5, 2016, appellant
filed a petition for writ of habeas corpus alleging that his “confinement is
unlawful and that the proceedings were in violation of due process of laws of
2
The record reflects that C.B. is now 31 years old.
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the Federal Constitution and in violation of the Pennsylvania Constitution”
because the evidence “did not establish [a] prima facie case” and appellant
is “not guilty.” (Petition for writ of habeas corpus, 4/5/16 at unnumbered
page 2, ¶ 5.)
The trial court conducted a hearing on appellant’s petition for habeas
corpus on May 23, 2016. At that hearing, the Commonwealth rested on the
notes of testimony from appellant’s preliminary hearing. The defense then
sought to call appellant’s former parole officer to testify that appellant was
on parole at the time of certain alleged assaults on C.B. and that C.B. failed
to report those assaults to the parole officer. The trial court sustained the
Commonwealth’s objection to the testimony because that testimony
challenged C.B.’s credibility and credibility is not an issue at a habeas
corpus proceeding. (Notes of testimony, 5/23/16 at 4-7.) The defense
then sought to call Detective Long to establish that she has no personal
knowledge of the investigation other than through hearsay testimony. The
trial court sustained the Commonwealth’s objection to that testimony as well
because it challenged Detective Long’s credibility. (Id. at 8, 13.)
By order dated May 24, 2016, but docketed on May 26, 2016, the trial
court denied appellant’s petition for habeas corpus. On June 24, 2016,
appellant filed a notice of appeal to this court. The trial court then ordered
appellant to file a concise statement of errors complained of on appeal
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pursuant to Pa.R.A.P. 1925(b) within 21 days. Appellant timely complied.
The trial court then filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review, which we have
re-ordered for ease of discussion:
[1.] Whether the instant appeal is a timely and
permissible interlocutory appeal pursuant to
Pa.R.A.P. 313[?]
[2.] Whether Rule 542(D) of the Pennsylvania
Rules of Criminal Procedure permits the
Commonwealth to prove every element of the
offense through the use of hearsay
testimony[?]
[3.] Whether Rule 542(D) of the Pennsylvania
Rules of Criminal Procedure is unconstitutional
insofar as it violates a defendant’s right to
confront the witnesses against him as
guaranteed by the Sixth Amendment to the
United States Constitution and Article I § 9 of
the Pennsylvania Constitution[?]
[4.] Whether the trial court committed an error of
law and/or abused its discretion in denying
[appellant’s] petition for writ of habeas
corpus where the Commonwealth’s proof at
the habeas hearing was limited to a transcript
of the preliminary hearing which itself was
supported only by hearsay evidence, thereby
rendering the evidence presented at the
habeas hearing double-hearsay[?]
[5.] Whether the trial court committed an error of
law and/or abused its discretion in precluding
the defense from presenting any witnesses at
the habeas corpus hearing[?]
Appellant’s brief at 5 (capitalization omitted; emphasis in original).
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We must first determine whether we have jurisdiction over this
interlocutory appeal. In so doing, we note that on August 9, 2016, this court
ordered appellant to show cause as to why this appeal should not be
quashed as interlocutory.3 Appellant averred that “the appeal should not be
quashed as interlocutory insofar as exceptional circumstances [apply],
nearly identical to the circumstances in Commonwealth v. Ricker, 120
A.3d 349 (Pa.Super. 2014),” appeal granted, 135 A.3d 175 (Pa. 2016).4
3
The show-cause order also directed appellant to show cause as to why this
appeal should not be quashed as untimely filed on June 24, 2016. In his
timely response to the show-cause order, appellant averred that although
the trial court dated its order denying his habeas petition May 24, 2016, its
date of entry on the docket was May 26, 2016, and therefore, his June 24,
2016 notice of appeal was timely filed. See Commonwealth v. Green, 862
A.2d 613, 615 n.5 (Pa.Super. 2004) (“The use of the term ‘date of entry of
an order’ has been interpreted to mean the date of docketing of the order.”);
see also Pa.R.A.P. 108 (“[T]he day of entry shall be the day the clerk of the
court or the office of the government unit mails or delivers copies of the
order to the parties, or if such delivery is not otherwise required by law, the
day the clerk or office of the government unit makes such copies public.”).
Our review of the record reveals that the date of entry on the docket of the
order denying appellant’s petition for habeas corpus was May 26, 2016.
Therefore, appellant timely filed his notice of appeal to this court.
4
Our supreme court granted the petition for allowance of appeal as to the
issue of:
[w]hether 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?
Ricker, 135 A.3d 175.
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(Appellant’s response to the rule to show cause why the appeal should not
be quashed as untimely and interlocutory, 8/19/16 at unnumbered page 2,
¶ 5.) Appellant then averred that,
[i]nsofar as the instant appeal raises identical issues
as those raised in Ricker and currently under review
by our Supreme Court, but actually amplifies them
by adding incarceration at a state correctional facility
and the use of double hearsay to support a
prima facie case at a habeas corpus hearing, it is
evident that exceptional circumstances exist herein
to permit this Honorable Court to exercise
jurisdiction over [appellant’s claims.]
Id. at unnumbered page 3, ¶ 5. Following appellant’s filing of his response
to the rule to show cause order, this court entered an order informing the
parties to this appeal that the issue regarding the appealability of the order
denying habeas relief would be referred to the merits panel. We, therefore,
address the appealability issue.
Generally, an order denying a pretrial writ of habeas corpus alleging
insufficient evidence is not an appealable order. Ricker, 120 A.3d at 353.
In Ricker, this court determined that exceptional circumstances existed to
warrant review of that interlocutory appeal of an order denying habeas
relief because “it present[ed] an important constitutional question regarding
whether a powerful state government 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.” Id. at 354.
We previously outlined the collateral order doctrine
as follows:
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Our High Court has delineated three
requirements that must be satisfied in
order for the doctrine to apply. The
order must be “separable from and
collateral to the main cause of action;” it
must involve a right that “is too
important to be denied review;” and, “if
review is postponed until final judgment,
the claim will be irreparably lost.”
Vaccone v. Syken, 587 Pa. 380, 899
A.2d 1103, 1106 (2006). The doctrine is
to be narrowly interpreted as it is an
exception to the rule of finality. Id.; see
also Rae v. Pennsylvania Funeral
Directors Association, 602 Pa. 65, 977
A.2d 1121, 1126 (2009).
In re Reglan/Metoclopramide Litigation, 2013
PA Super 214, 81 A.3d 80, 86 (Pa.Super. 2013).
Hence, the three essential elements of a collateral
order are “separability, importance and irreparable
loss.” Geniviva v. Frisk, 555 Pa. 589, 725 A.2d
1209, 1211 (Pa. 1999).
Our Supreme Court codified the elements of a
collateral order into Pa.R.A.P. 313. That rule provides
as follows:
(a) General rule. An appeal may be taken
as of right from a collateral order of an
administrative agency or a lower court.
(b) Definition. A collateral order is an order
separable from and collateral to the main
cause of action where the right involved
is too important to be denied review and
the question presented is such that if
review is postponed until final judgment
in the case, the claim will be irreparably
lost.
Pa.R.A.P. 313.
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Rehrer v. Youst, 91 A.3d 183, 187-188 (Pa.Super. 2014).
Here, in his brief, appellant contends that exceptional circumstances
exist based on a violation of his constitutional right to confront witnesses
against him at his preliminary hearing because Detective Long’s hearsay
testimony regarding the statements the victims made in their interviews
deprived him of the right to confront the victims. (Appellant’s brief at 13.)
Appellant later “acknowledges that this Court held in Ricker that
Pa.R.Crim.P 542[, which provides, among other things, that ‘hearsay
evidence shall be sufficient to establish any element of an offense’ at a
preliminary hearing] does not violate a defendant’s right to confront the
witnesses against him, but respectfully requests that this court re-examine
that holding.” (Id. at 18.) We decline to do so. Until our supreme court
overrules our decision in Ricker, it is the law of this Commonwealth. See
Commonwealth v. Forbes, 867 A.2d 1268, 1279 (Pa.Super. 2005)
(reiterating that “[i]t is well settled . . . that until the Supreme Court
overrules a decision of this Court, our decision is the law of this
Commonwealth” (citation omitted)).
Moreover, we note that even though appellant acknowledges that he
seeks collateral review with respect to an issue that has been resolved by
Ricker, he still attempts to convince this court that the issue is too
important to be denied review because he “remains incarcerated and under
the specter of accusations that he sexually abused his grandchild and niece
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without having had the opportunity to cross-examine any witness with
purported first-hand knowledge of the alleged crime.” (Appellant’s brief
at 13; emphasis in original.) In determining whether the right involved is
too important to be denied review, however, the issue “must involve rights
deeply rooted in public policy,” and “[go] beyond the specific litigation before
the court.” Ben v. Schwartz, 729 A.2d 547, 552 (Pa. 1999). Stated
differently, it is not sufficient that the issue is important to a particular party.
Id. Therefore, even though appellant’s incarceration and the accusations
made against appellant are important to him, that falls far short of involving
a right deeply rooted in public policy.
Finally, with respect to the remainder of appellant’s issues concerning
his claim that the habeas proceeding violated his constitutional right to
confront witnesses against him and his claim that the trial court abused its
discretion in precluding him from presenting two witnesses at that
proceeding, appellant has failed to present any argument as to why those
issues satisfy the collateral order rule’s three-pronged test over which he
asks us to assert jurisdiction. Therefore, we are without jurisdiction to do
so. See Rae, 977 A.2d at 1130 (holding that “the collateral order rule’s
three-pronged test must be applied independently to each distinct legal issue
over which an appellate court is asked to assert jurisdiction pursuant to
Rule 313”).
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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