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Commonwealth v. Dolan

Superior Court of Pennsylvania

July 7, 2017

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
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

          STEVENS, P.J.E.

         The Commonwealth files this interlocutory appeal from the order entered in the Court of Common Pleas of Bucks County granting Defendant/Appellee's pretrial writ of habeas corpus and remanding this matter for a new preliminary hearing. At issue is the order's directive that the Commonwealth may not rely exclusively on hearsay to establish a prima facie case at the new hearing but must, instead, proffer Appellee's alleged rape victim as a witness.

         The present appeal thus implicates whether Pa.R.Crim.P. 542(E), [1]which permits the Commonwealth to rely on hearsay to establish any or all elements of an offense for purposes of making a prima facie case at a preliminary hearing, violates a defendant's due process rights where the hearsay in question was offered by an investigating officer who interviewed the alleged victim personally and was available for cross-examination. Consonant with recent jurisprudence of this Court discerning no due process violation from facts virtually identical to those in the present case, we reverse the order below and remand.

         On July 5, 2015, Appellee was arrested and charged with Rape-Forcible Compulsion, Sexual Assault, Aggravated Indecent Assault-Forcible Compulsion, Indecent Assault-Forcible Compulsion, Indecent Assault Without Consent of Other, and Harassment[2] for his alleged sexual assault of a female during a party on July 4, 2015. At Appellee's preliminary hearing, the magisterial district judge held the present charges for trial solely on the basis of hearsay testimony offered by the lead investigator who personally interviewed Appellee's alleged rape victim. Appellee conducted thorough cross-examination of the investigator.

         Appellee subsequently filed a pre-trial writ of habeas corpus with the Court of Common Pleas of Bucks County asserting that his due process rights were violated when the district judge found a prima facie case solely from hearsay evidence. After entertaining argument by respective counsel, the common pleas court granted Appellee's writ and remanded the matter to the district judge for a second preliminary hearing, where, the court additionally directed, the alleged victim must testify and be subject to cross-examination.

         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 court of common pleas necessarily declared Pa.R.Crim.P. 542(E) unconstitutional when it rejected the exclusive use of hearsay testimony at the first preliminary hearing and required the alleged victim to testify at a new preliminary hearing. The Supreme Court declined to take up the matter, however, and transferred the appeal to this Court, instead.

The Commonwealth presents the following questions for our review:
I. DOES THIS HONORABLE COURT HAVE JURISDICTION OVER THIS APPEAL PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 313?
II. DID THE LOWER COURT ERR IN HOLDING THAT THE COMMONWEALTH VIOLATED APPELLEE'S DUE PROCESS RIGHTS WHEN IT RELIED ON HEARSAY TESTIMONY AT THE PRELIMINARY HEARING TO ESTABLISH A PRIMA FACIE CASE PURSUANT TO PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 542(E) AND COMMONWEALTH V. RICKER, 120 A.3D 349 (Pa.Super. 2015)[ ].

Appellant's brief at 4.[3]

         After a thorough review of the certified record, party briefs, the lower court's opinion, and governing authority, we reverse the order below and remand this matter to the Court of Common Pleas of Bucks County for proceedings consistent with this decision. In so doing, we rely on this Court's recent decision in Commonwealth v. McClelland, ___ A.3d ___, 633 WDA 2016 (filed May 26, 2017), a case squarely on point with, and thereby controlling of, the instant appeal.

         Specifically, McClelland took up the very issues presently before us. First, it granted an interlocutory appeal from an ordinarily unappealable disposition of a pretrial writ of habeas corpus in order to address an ...


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