Commonwealth v. Merced

265 A.3d 786

COMMONWEALTH of Pennsylvania, Appellant

v.Angel Luis MERCED

Commonwealth of Pennsylvania, Appellant

v.Angel Luis Merced

No. 1351 MDA 2020

No. 1352 MDA 2020

Superior Court of Pennsylvania.

Argued August 3, 2021

Filed October 21, 2021

Fritz K. Haverstick, Assistant District Attorney, for Commonwealth, appellant.

MaryJean Glick, Public Defender, Lancaster, for appellee.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.^*

OPINION BY KUNSELMAN, J.:

I. Introduction

The Commonwealth appeals from the order granting partial, habeas corpus relief to Angel Luis Merced. Before addressing the Commonwealth's argument, we first determine that we have jurisdiction over this habeas corpus appeal. On the merits, the trial court erroneously excluded the arresting officer's hearsay evidence from its scope of review. As such, we partially vacate the appealed-from order and remand for reconsideration.

II. Procedural Background

In 2019 and 2020, the Commonwealth charged Merced with various sexual offenses against his ex-girlfriend's four daughters, K.P., A.P., S.P., and N.P. The sisters were all under 13 years of age at the time of the alleged incidents.¹

On June 19, 2019, the Commonwealth filed its first complaint (at Docket No. 5625-2019) regarding the allegations of K.P., A.P., and S.P. That October, the magisterial district court held a preliminary hearing, where the arresting officer provided hearsay testimony about the crimes. Under Commonwealth v. Ricker , 120 A.3d 349 (Pa. Super. 2015), overruled , Commonwealth v. McClelland , ––– Pa. ––––, 233 A.3d 717 (2020), the magisterial district court accepted the hearsay evidence, found a prima facie case, and bound the charges over to the trial court. Of particular relevance here, the arresting officer testified that K.P. and A.P. said Merced used his fingers to touch them between their labia. See N.T., 10/11/19, at 9-10.

On January 7, 2020, the Commonwealth filed a second complaint (at Docket No. 845-2020), based on the allegations of the fourth sister, N.P. At that preliminary hearing, the magisterial district court again relied upon the officer's hearsay testimony to find that the Commonwealth established its prima facie case. According to the officer, N.P. recalled Merced's fingers "touching and rubbing her vagina over and under her clothes and penetrating her labia ...." N.T., 2/12/20, at 5-6.

Six months later, the Supreme Court of Pennsylvania overruled Ricker in McClelland (holding that due process prohibits the Commonwealth from relying solely upon hearsay evidence to establish its prima facie case). The next week, Merced petitioned for a Writ of Habeas Corpus in the trial court. He argued the Commonwealth had violated McClelland at his two preliminary hearings. At the habeas corpus hearing, the Commonwealth supplemented the preliminary-hearing record by offering direct testimony from all four sisters.

Although none could recall exact dates, each sister alleged that Merced repeatedly abused her while living with them and their mother in or around 2007. The Commonwealth charged Merced with aggravated indecent assault as to three of the sisters.² The Commonwealth summarized their testimony as follows:

[N.P.] testified that she was "molested" by [Merced]. When asked for clarification, [she] testified that [Merced's] fingers "touched her vagina" underneath her clothing. [N.P.] testified that this occurred at night in her bedroom and that [Merced] would reach his hand underneath her clothing. [N.P.] testified that [Merced] would also rub himself against her with clothes and "put his penis in [her] mouth."

[K.P.] testified [Merced] would "go into [her] room at nighttime and put his hands in [her] pants and touch [her] vagina lips, just, like, stay there and play with it." [K.P.] stated that [Merced] would stand over her while she was in bed and reach his hand underneath her clothing.

[A.P.] testified that [Merced] would "touch her private area." When asked for clarification, she stated her private area was her vagina, that [Merced] would use his fingers, and that this would be underneath her clothing. She further testified that the contact was skin to skin and that [Merced] would "rub it."

Commonwealth's Redacted Brief at 5-6 (citations to record omitted).

In the view of the trial court, this direct testimony established a prima facie case for some charges. However, the trial court opined that McClelland required direct testimony of digital penetration to establish a prima facie case for the crime of aggravated indecent assault. It therefore dismissed the seven counts for that offense but allowed lesser charges to proceed.

The Commonwealth appealed under Pennsylvania Rule of Appellate Procedure 311(d).³ Upon reviewing the Commonwealth's brief, we discovered no Statement of Jurisdiction⁴ and questioned our appellate jurisdiction at oral argument. The Commonwealth responded that we have jurisdiction, because the trial court "made an error of law." Counsel for Merced agreed.

III. Analysis

A. Appellate Jurisdiction over Orders Granting Habeas Corpus Relief

"Although neither party has specifically questioned the jurisdiction of this Court on this matter, the mere agreement of the parties will not vest jurisdiction where it otherwise should not be." Commonwealth v. Morganthaler , 320 Pa.Super. 120, 466 A.2d 1091, 1092 (1983). We may raise "the appealability of the trial court's ruling sua sponte ." Id.⁵

"Jurisdiction is purely a question of law; the appellate standard of review is de novo , and the scope of review is plenary." Commonwealth v. Seiders , 11 A.3d 495, 496–97 (Pa. Super. 2010).

To decide whether our jurisdiction is proper, we examine the history of habeas corpus . Originally, at common law, neither the jailer nor the petitioner could appeal from an order resolving a habeas corpus claim. In England, it was repeatedly said "that [an appeal] would not" lie from "a final order made on a habeas corpus ." Hurd, 2 TREATISE ON THE RIGHT OF PERSONAL LIBERTY, AND ON THE WRIT OF HABEAS CORPUS AND THE PRACTICE CONNECTED WITH IT § I(1) at 568 (2d ed, 1876). Under the English approach, there was "no judgment pronounced in the case of a habeas corpus ." Id. at 570.

In 1884, the Supreme Court of Pennsylvania rejected that procedure as applied to the jailer. In Doyle v. Com. ex rel. Davis , 107 Pa. 20, 25 (1884), the Court of Common Pleas of Allegheny County found Davis in contempt of court and issued an attachment for his arrest. Doyle, an Allegheny County deputy sheriff, executed the attachment in Warren County. The Warren County trial court promptly served Doyle with a Writ of Habeas Corpus , directing him to produce Davis’ body. Doyle complied, and he answered the writ by offering the Allegheny County arrest attachment and underlying contempt decree. See Doyle , 107 Pa. at 24.

That documentation "fully exhibited the authority of [Doyle] to arrest [Davis] anywhere within the Commonwealth and take him before the Court of Common Pleas of Allegheny County; but, notwithstanding this uncontradicted return, Davis was unconditionally discharged." Id. Doyle appealed. Citing Hurd, 2 HABEAS CORPUS , supra , Davis moved to quash the appeal under the common law that a habeas corpus order is neither final nor appealable.

The Supreme Court of Pennsylvania was "of a different opinion." Id. at 26. An "order discharging [an individual] from custody is essentially final, and the officer in whose custody he was, has no redress except by removal of the proceedings to this court for revision." Id. The Court opined that the broad, appellate powers conferred in the Judicial Act of 1836 supplanted the appellate practice of common law. Thus, the granting of habeas corpus relief became a final, appealable order under the 1836 statute.

The Judicial Act of 1836 was a forerunner of Title 42, the Judicial Code. In our current Judicial Code, the General Assembly divided the 19th-century, appellate jurisdiction of the Supreme Court among the three appellate courts of Pennsylvania. The broad, direct, appellate powers first identified in Doyle passed to the Superior Court in 1895, when it became Pennsylvania's intermediate appellate court and, thereafter, the legislature conferred upon it direct, appellate jurisdiction over habeas corpus appeals.⁶

It is now black-letter law that, "The rule limiting the Commonwealth's right of appeal in criminal cases does not apply to the Commonwealth's right to appeal in a habeas corpus proceeding, because habeas corpus is a civil rather than a criminal proceeding ." 18 STANDARD PA. PRACTICE 2d § 98:95 at 311 (emphasis added). Pretrial, if "a court discharges the accused on a habeas corpus petition which raises the issue of whether there was probable cause for holding the accused for trial [i.e. , whether there is a prima facie case], the court's order is final and appealable." 18 STANDARD PA. PRACTICE 2d § 98:96 at 313 (citing Commonwealth ex rel. Stingel v. Hess , 154 Pa.Super. 639, 36 A.2d 848 (1944) ).

The Supreme Court has said, "In considering whether [an] appellant may immediately appeal the [order regarding] habeas corpus relief, it must be remembered that the rules of appealability are not reciprocal in this area." Commonwealth v. Hess , 489 Pa. 580, 414 A.2d 1043, 1047 (1980). The "Commonwealth may appeal from an order discharging a defendant upon a Writ of Habeas Corpus , Commonwealth ex rel. Bryant v. Hendrick , 444 Pa. 83, 280 A.2d 110 (1971) ; Doyle , [supra ]." Id. However, "it is equally well-settled that the defendant may not immediately appeal from the denial of his pretrial application for habeas corpus relief." Id. (citations omitted).

Today, it is "well established that the Commonwealth may appeal from a trial court's order dismissing a felony charge based on a pretrial petition for Writ of Habeas Corpus ." Commonwealth v. Karetny , 583 Pa. 514, 880 A.2d 505, 513 (2005) (citation omitted). Our jurisdiction over the appealed-from order "is secure." Id.⁷ See also, ...