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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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