J-S03012-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DIMAS COLON-CRUZ

Appellant No. 439 WDA 2016

Appeal from the Order March 1, 2016

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0002778-2015

BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED JUNE 28, 2017

Appellant, Dimas Colon-Cruz, appeals from the order entered on March 

1, 2016, dismissing his petition for writ of habeas corpus, which challenged 

the Commonwealth’s ability to establish a prima facie case of witness 

intimidation,1 based solely on hearsay evidence, at Appellant’s preliminary 

hearing. We quash the appeal as interlocutory.

The trial court summarized the facts and procedural history of this 

case as follows:

[Appellant] was charged by Officer Cheryl Frey of the Erie 

Police Department with one count of [i]ntimidation of a 

[v]ictim/[w]itness, a third degree felony. In the [c]riminal 

[c]omplaint, Officer Frey informed [Appellant] the charge 

was based on alleged statements and/or threats to his 

neighbor, Jennifer Keller, to not testify in a case involving 

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1

 18 Pa.C.S.A. § 4952(a)(1).
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Dawaun Carson. In fact, Jennifer Keller did testify at a 

preliminary hearing involving Dawaun Carson during which 

[Appellant] allegedly made additional verbal and/or 

non-verbal threats to Keller. Following the preliminary 

hearing for Carson, Officer Frey filed the within charge.

 

At a preliminary hearing held in this case on October 1, 

2015, Jennifer Keller did not appear to testify. As a result, 

the Commonwealth adduced the testimony of Officer Frey 

who outlined the statement given to her by Jennifer Keller 

as set forth in the [c]riminal [c]omplaint. Over [Appellant’s] 

objections, the charge was bound over to court.

Trial Court Opinion, 3/1/2016, at 1. On February 9, 2016, Appellant filed an 

omnibus pre-trial motion and accompanying memorandum of law in support. 

At issue herein, Appellant sought habeas corpus relief arguing the 

Commonwealth violated his constitutional rights to confront adverse 

witnesses and due process because the Commonwealth relied solely on 

hearsay testimony at the preliminary hearing. By order entered on March 1, 

2016, the trial court denied relief. This appeal resulted.2

 On appeal, Appellant raises the following issues for our review:

A. Whether exceptional circumstances exist to warrant 

appellate review of the denial of [Appellant’s] [w]rit of 

[h]abeas [c]orpus which contested the Commonwealth’s 

use of only hearsay testimony as the sole basis to 

support its prima facie case at the preliminary hearing.

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2

 Appellant filed a timely notice of appeal on March 28, 2016. On March 

28, 2016, the trial court entered an order directing Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant complied on April 11, 2016. The trial court issued an opinion 

pursuant to Pa.R.A.P. 1925(a) on April 20, 2016.
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B. Whether hearsay testimony by the affiant is legally 

sufficient to establish a prima facie case at the 

preliminary hearing when it is the only evidence 

presented.

Appellant’s Brief at 3-4.

Appellant argues that the hearsay testimony of the investigating police 

officer, standing alone, is insufficient to establish a prima facie case against 

him since such a procedure violates his constitutional rights to due process 

and to confront adverse witnesses. Initially, we must determine whether we 

have jurisdiction over this appeal. “In this Commonwealth, an appeal may 

only be taken from: 1) a final order or one certified by the trial court as 

final; 2) an interlocutory order as of right; 3) an interlocutory order by 

permission; or 4) a collateral order.” Commonwealth v. Ivy, 146 A.3d 241, 

255 (Pa. Super. 2016) (internal citation omitted). “Generally, 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.”3 Commonwealth v. 

Ricker, 120 A.3d 349, 353 (Pa. Super. 2015). In Ricker, the defendant 

raised a claim similar to the one presented herein, arguing exclusive reliance 

upon hearsay evidence at a preliminary hearing violated a defendant’s right 

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3 Here, Appellant concedes that the order he appeals from is interlocutory. 

Appellant’s Brief at 1. Upon review of the record, Appellant did not seek 

permission from the trial court to appeal nor does Appellant contend that his 

interlocutory order is permitted statutorily as of right. Instead, he argues 

that exceptional circumstances warrant our review. Id. For the reasons 

that follow, we disagree.
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to confront witnesses. We accepted the interlocutory order, because the 

issue was one of first impression in the Commonwealth and exceptional 

circumstances warranted it. We determined the issue was capable of 

evading review and presented “an important constitutional question 

regarding 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.” Id. at 

354. After examining Pa.R.Crim.P. 542(E),4the historical underpinnings of 

the preliminary hearing, the Pennsylvania and federal confrontation clauses, 

and applicable case law, “we [found] that an accused does not have the 

right to confront the witnesses against him at his preliminary hearing[.]” 

Id. at 362. 

On April 18, 2016, the Pennsylvania Supreme Court granted a petition 

for allowance of appeal in Ricker. See Commonwealth v. Ricker, 135 

A.3d 175 (Pa. 2016). To date, however, no decision has been forthcoming. 

“It is beyond the power of a Superior Court panel to overrule a prior decision 

of the Superior Court, except in circumstances where intervening authority 

by our Supreme Court calls into question a previous decision of this Court.” 

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4

“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(E).
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Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (internal 

citations omitted). At this point in time, our Supreme Court has only 

granted an appeal for the purpose of determining whether a defendant has a 

right to confront witnesses at his preliminary hearing or if a prima facie case 

may be proven by the Commonwealth through hearsay evidence alone. 

Because our Supreme Court has not yet ruled upon Ricker’s declaration that 

challenges such as the present one involve appealable matters or the issue 

of whether the Commonwealth may rely solely on hearsay evidence to 

establish its prima facie case at a preliminary hearing, our Court's prior 

decision in Ricker is binding and Appellant is not entitled to appellate 

review. As such, Appellant has not shown exceptional circumstances to 

accept his otherwise interlocutory appeal.

As noted above, Appellant also argues, in the alternative, that the use 

of hearsay alone at his preliminary hearing violates his fundamental right to 

due process. Appellant’s Brief at 13-20. For this proposition, Appellant 

relies primarily on our Supreme Court’s plurality decision in 

Commonwealth ex. rel. Buchanon v. Verbonitz, 581 A.2d 172 (Pa. 

1990). We have recently addressed this identical due process claim, 

specifically examining Verbonitz, in our published decision in 

Commonwealth v. McClelland, -- A.3d --, 2017 WL 2312083 (Pa. Super. 

2017). In McClelland, similar to Ricker, we first addressed whether we 

had jurisdiction, recognizing that generally “the denial of a pretrial writ of 

habeas corpus claiming a lack of sufficient evidence is not an appealable 
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order.” McClelland at *1. We then determined that Ricker left unresolved 

whether it was a violation of fundamental due process rights when the 

Commonwealth relies solely upon hearsay evidence at a preliminary hearing. 

Because we had yet to address this important constitutional question, we 

found that exceptional circumstances warranted review of an otherwise 

interlocutory order. Id. Ultimately, in McClelland, we determined there 

was no violation of due process where, at his preliminary hearing, McClelland 

had the ability to cross-examine the primary investigator about statements 

made to him by the victim. In this case, at Appellant’s preliminary hearing, 

the Commonwealth presented the testimony of the police officer who took 

the alleged victim’s purported statement, which then formed the basis for 

the criminal charges against Appellant. Thus, McClelland previously 

addressed (and rejected) the identical due process argument Appellant 

advances sub judice. Accordingly, Appellant has not presented exceptional 

circumstances warranting our review of his separate due process challenge. 

For all the foregoing reasons, we lack jurisdiction to entertain the appeal of 

this interlocutory order.

Appeal quashed.

Strassburger, J. joins this memorandum.

Solano, J. concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/2017