Com. v. Burke, A.

2021 Pa. Super. 167, 261 A.3d 548

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2021
• Docket: 496 MDA 2020
• Status: Published

Opinion

J-A16007-21

2021 PA Super 167

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : AMY BURKE : : Appellant : No. 496 MDA 2020

Appeal from the Order Entered March 10, 2020 in the Court of Common Pleas of Luzerne County, Criminal Division at No(s): CP-40-CR-0004059-2019.

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

OPINION BY KUNSELMAN, J.: FILED: AUGUST 19, 2021

In this interlocutory appeal by permission, Amy Burke challenges the

order denying her pretrial Petition for a Writ of Habeas Corpus.1 Ms. Burke,

the Commonwealth, and trial court agree the magisterial district court and

trial court violated Commonwealth v. McClelland, 233 A.3d. 717, (Pa.

2020) (“McClelland II”). Those courts relied exclusively on hearsay evidence

at the preliminary hearing and habeas corpus hearing, respectively, to find

that the Commonwealth established its prima facie case against Ms. Burke

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* Former Justice specially assigned to the Superior Court.

1 Initially, this Court quashed Ms. Burke’s appeal as premature.She appealed to the Supreme Court of Pennsylvania, which vacated the quashal order and remanded “for consideration in light of Commonwealth v. McClelland, 233 A.3d. 717, 2020 WL 4092109 (Pa. July 21, 2020).” Commonwealth v. Burke, 239 A.3d 1086 (Pa. 2020). “Exceptional circumstances” necessitating immediate review of the trial court’s order exist. Commonwealth v. Hess, 414 A.2d 1034, 1048 (Pa. 1980); 42 Pa.C.S.A. § 702(b). We therefore grant Ms. Burke’s petition for an interlocutory appeal by permission. J-A16007-21

and to hold her case over for trial.2 See Ms. Burke’s Brief at 8;

Commonwealth’s Brief at 2; Trial Court Opinion, 12/21/20, at 2. Thus, the

only remaining issue is whether we should (a) discharge Ms. Burke without

prejudice for the Commonwealth to recharge her within the unexpired statute

of limitations or (b) remand for a supplemental habeas corpus hearing in the

trial court.

Determining the appropriate remedy for a Wirt of Habeas Corpus raises

a pure question of law. Therefore, “our standard of review is de novo, and

our scope of review is plenary.” McClelland II at 732.

The Commonwealth claims the proper remedy is for us to vacate the

appealed-from order and remand for a supplemental habeas corpus hearing

in the trial court. This would permit the prosecution to establish a prima facie

case via firsthand testimony and, thereby, rectify its McClelland II violation.

See Commonwealth’s Brief at 3. The Commonwealth cites no law to support

this result. Instead, it relies upon arguments of policy, judicial economy, and

prosecutorial efficiency. See id.

In its view, if we discharge Ms. Burke from custody, we “would prolong

the final resolution of the matter.” Id. This “discharge would entail the

Commonwealth filing a new complaint, bail being reset, and a new preliminary

2 The Commonwealth charged Ms. Burke with one count under 18 Pa.C.S.A. §

6301(a)(1)(1) (corruption of minors).

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hearing being scheduled. After the preliminary hearing, [Ms. Burke] may

again file a habeas petition.” Id. On the other hand, if we remand for a

supplemental habeas hearing, the Commonwealth argues we “alleviate the

need for a new arrest and preliminary hearing.” Id.

Additionally, the Commonwealth contends that the result of discharge is

unfair, because the jurisprudence regarding hearsay at preliminary and pre-

trial habeas hearings changed during the pendency of this appeal. “At the

time of [Ms. Burke’s] preliminary and habeas hearing, the Commonwealth was

permitted to establish a prima facie case by presenting only hearsay

evidence.” Id. at 4 (citing Commonwealth v. Ricker, 120 A.3d 349 (Pa.

Super. 2015), overruled by McClelland II, supra, and Commonwealth v.

McClelland, 165 A.3d 19 (Pa.Super. 2017) (“McClelland I”), reversed,

McClelland II, supra,). The Commonwealth suggests it “should not be

overly penalized for following the rules as they existed [prior to McClelland

II] by discharging [Ms. Burke]. Instead, the parties should be put back into

their relative positions at the point where the rules changed.” Id.

By contrast, Ms. Burke argues we must discharge her, as a matter of

law. The trial court agrees with her. It opined, “Because the Commonwealth

failed to establish a prima facie case, the Petition for Writ of Habeas Corpus

. . . must be granted and the charge of corruption of minors dismissed.” Trial

Court Opinion, 12/21/20, at 3. As persuasive authority, Ms. Burke and the

trial court rely upon Commonwealth v. Montanez, 279 MDA 2017, 2020 WL

6581313 (Pa. Super. 2020) (non-precedential decision). Montanez applied

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McClelland II, reversed an order denying habeas corpus relief, and

discharged the defendant. Ms. Burke asks us to follow Montanez.

Notably, she also cites Commonwealth v. Dolan, 240 A.3d 1291 (Pa.

Super. 2020) (“Dolan III”). There, this Court affirmed an order that “granted

[Dolan’s] pretrial Writ of Habeas Corpus and remanded [to the magisterial

district court] for a new preliminary hearing.” Commonwealth v. Dolan,

167 A.3d 46, 47 (Pa. Super. 2017) (“Dolan I”), reversed, 237 A.3d 986 (Pa.

2020) (“Dolan II”). As such, Dolan III affirmed a habeas corpus remedy of

remand for a preliminary hearing de novo.

Under the doctrine of stare decisis, a “three-judge panel of this Court

cannot overrule another.” Commonwealth v. Taggart, 997 A.2d 1189,

1201 n.16 (Pa. Super. 2010); see also Commonwealth v. Taylor, 649 A.2d

453, 455 (Pa. Super. 1994). Thus, we must determine whether the decision

in Dolan III to affirm the order remanding to the magisterial district court

binds this panel.

Stare decisis “only applies to issues actually raised, argued, and

adjudicated, and only where the decision was necessary to the determination

of the case. The doctrine is limited to issues litigated and necessarily decided,

it does not apply to dicta or obiter dicta.” In re L.J., 79 A.3d 1073, 1081 (Pa.

2013). As we explain, the disposition from Dolan III is not stare decisis.

First, the Dolan III Court did not mention that the appealed-from order

directed remand, rather than discharge, given what appears in the opinion’s

second footnote. That footnote provides:

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Our order affirming the trial court’s interlocutory order does not preclude the Commonwealth from refiling charges against Appellee Dolan and proceeding with a new preliminary hearing. As the Supreme Court majority in McClelland [II] observed under circumstances virtually identical to those in the instant case:

Dismissal of charges and discharge of the accused for failure to establish a prima facie case at the preliminary hearing is an interlocutory order, see Commonwealth v. La Belle, 531 Pa. 256, 612 A.2d [418, 420 (Pa. 1992), which does not implicate double-jeopardy concerns. See Liciaga v. Court of Common Pleas of Lehigh Co., 523 Pa. 258, 566 A.2d 246, 267 (1989). Because the Commonwealth relied on a reasonable, yet imprecise reading of Rule 542, we discharge McClelland without prejudice to the Commonwealth to refile charges and proceed with a new preliminary hearing.

McClelland [II], 233 A.3d at 736.

Dolan III, 240 A.3d at 1293 n.2 (some punctuation omitted).

From this, it appears the Dolan III Court believed it was discharging

the defendant and thereby forcing the Commonwealth to refile its charges.

However, the Dolan III Court, by affirming the trial court order (rather than

modifying it), actually remanded for a new preliminary hearing.

Second, Dolan III merely followed the disposition of McClelland II,

i.e., “discharge [of the defendant] without prejudice to the Commonwealth to

refile charges and proceed with a new preliminary hearing.” McClelland II

at 736. Thus, Dolan III did not consider, much less decide, the proper

remedy for when the Commonwealth fails to make its prima facie case on all

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charges.3 The issue of the appropriate habeas corpus remedy was not raised,

argued, and adjudicated in Dolan III, nor was it “necessary to the

determination of the case.” In re L.J., 79 A.3d at 1081. Hence, the Dolan

III disposition does not bind this panel under the doctrine of stare decisis.

Having considered and rejected Dolan III, we turn to Montanez,

supra, an unpublished decision of this Court, upon which Ms. Burke and the

trial court rely to support the remedy of discharge. Notably, the Montanez

Court also did not consider whether the discharge of the defendant was the

appropriate remedy. Instead, it cited McClelland II, supra, to “reverse the

trial court’s order denying Appellant’s Petition for Writ of Habeas Corpus and

dismiss the charges against him.” Montanez, supra (Slip Opinion at 5).

We note that in McClelland II, the Supreme Court of Pennsylvania

ordered the discharge of the defendant, where the Commonwealth failed to

make its prima facie case in circumstances identical to the matter now at bar.

Without pausing to consider remedial alternatives, the McClelland Court said,

“We therefore reverse the Superior Court’s decision below and expressly

disapprove Ricker, supra. The appellant is discharged without prejudice.”

McClelland, 233 A.3d at 736. Given the disposition of discharge, without any

discussion by the court, this remedy seems obvious – a foregone conclusion.

3 Here, Ms. Burke only faces one charge. Thus, the Commonwealth did not make its prima facie case on any of its charges. However, we neither consider nor decide the habeas corpus remedy when, after bringing multiple charges against a defendant, the Commonwealth makes its prima facie case on some, but not all, charges.

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History reveals that, in granting a habeas corpus petition, discharge of

defendants has been the remedy for generations upon generations of jurists.

“Habeas corpus is a high prerogative, or prerogative common-law writ of

ancient origin.” 39 C.J.S. § 2 at 460. Blackstone dubbed it the “great and

efficacious writ in all manner of illegal confinement.” COMMENTARIES ON THE

LAWS OF ENGLAND (1765–1769), Chicago U.P. at 129–137 (1979 ed.). “The

Writ of Habeas Corpus, also known as the Great Writ of Liberty, has its roots

in the Magna Carta of 1215 . . . [and it] was used to compel the production of

the prisoner to ascertain the cause of his or her detention.” Okpaluba, The

Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point

Construct, Erasmus L. Rev., 2 at 2, (forthcoming 2021). In 1679, Parliament

codified the writ by passing the Habeas Corpus Act, 31 Car. 2, “securing . . .

speedy relief from all unlawful imprisonment.” BLACK’S LAW DICTIONARY at

825 (10th. Ed. 2009) (emphasis added).

The writ derives its name “from the significant words which it contained

when writs issued by the English courts were in Latin.” 39 C.J.S. § 1 at 459.

“The term ‘habeas corpus’ is a generic one and there are several varieties of

this writ, but the one usually referred to as the writ of habeas corpus

[especially in criminal matters] is the writ of habeas corpus ad subjiciendum.”4

Id. at 459-60. This means, “Have the body [of the citizen] to subject” your

4 For other types of writs of habeas corpus, see 18 STANDARD PA. PRACTICE 2d

§ 98:9, 98:10, 98:11.

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reasons for imprisoning her to judicial review.5 This type of Writ of Habeas

Corpus most often remedies the “restraint upon individual liberty . . . inherent

in incarceration . . . .” 18 STANDARD PA. PRACTICE 2d § 98:2 at 219.

After the American Revolution, “the right of the citizen to his remedy of

habeas corpus in case of unlawful imprisonment was recognized and

preserved by constitutional provisions . . . .” 39 C.J.S. § 4 at 463. In fact,

the Constitution of the Commonwealth of Pennsylvania dictates that “the

privilege of the Writ of Habeas Corpus shall not be suspended, unless when in

case of rebellion or invasion the public safety may require it.” Pa. Const. art.

I, § 14.

To effectuate this provision, the General Assembly of Pennsylvania has

enacted certain statutes. See 42 Pa.C.S.A. §§ 6501-6505. The right to

habeas corpus relief extends to “any person restrained of his liberty within

this Commonwealth . . . .” 42 Pa.C.S.A. § 6503(a).

5 The writ more fully directed, “Praecipimus tibi, quod Corpus A.B. in prisona

nostra sub custodia tua detent. ut dicitur una cum causa detentionis suae . . . Habeas coram nobis . . . ad subjiciendum et recipiendum ea quae curia nostra de ea adtunc, et ibidem ordinari contigerit in hac parte et hoc nullatenus, omittatis periculo incumbente, et habeas ibi hoc breve.” Hurd, 2 TREATISE ON THE RIGHT OF PERSONAL LIBERTY, AND ON THE WRIT OF HABEAS CORPUS AND THE PRACTICE CONNECTED WITH IT § V(1) at 232 (1858) (quoting 2 INST. 53; Term P.C., 354) (emphasis by Hurd). This roughly translates to, “You Shall Have at our Court the Body of A.B., which is in our prison under your arrest detained, as alleged [in the petition for this writ], together with the day and cause of his taking and detention . . . to submit and to receive what our Court shall then consider and order in this regard; fail you in this at your peril; and you shall [also] have this writ there.”

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These statutes, however, do not confer any power on our courts to grant

habeas corpus relief that the legislature might annul. The power to grant

habeas corpus relief is innate in our trial courts, because it arises from the

ancient common law, not statute.

As the Supreme Court of Pennsylvania recognized decades ago, the

courts of common pleas have “full power, under this common-law authority

over inferior magistrates, and also by virtue of being a justice of the peace,

to require the Commonwealth to produce evidence proving a prima facie case

against the” incarcerated individual. Com. ex rel. Levine v. Fair, 146 A.2d

834, 845 (Pa. 1958) (quoting trial court opinion with approval). Indeed,

“There is no locked door which may not be opened by the key of habeas corpus

. . . there is no enclosure which may not be entered by the person bearing

this Writ,” the Great Writ of Liberty. Id. at 846.

“Nor does one need to search through the books for a precedent for its

application.” Id. “Although the complexities of modern life are constantly

expanding, and are now even traveling into spheres of conduct and human-

relationship reaching into the very spaces of the infinite, the principle of the

right to untrammeled freedom of action is still the fixed star in the sky of the

English-speaking world.” Id. “Hence, no matter what may be the situation

or how involved the circumstances, any person who claims he is illegally

imprisoned or restrained of his liberty may have such claim inquired into by a

competent court, and, if his claim is found to be well grounded, he will be

discharged and freed of such restraint.” Id. (emphasis added).

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This pronouncement of the Supreme Court of Pennsylvania on the

appropriate remedy of habeas corpus petition resolves this dispute. Thus,

even if the Commonwealth’s arguments in support of remand – i.e., judicial

economy and prosecutorial efficiency – convinced us otherwise (and they do

not), we have no authority to overrule Levine, supra.

No matter how inconvenient it may be for the Commonwealth to

recharge Ms. Burke, to rearrest her, to have a court reset her bail, and to redo

her preliminary hearing, our state constitution and the Writ of Habeas Corpus

do not concern themselves with conveniences of the Commonwealth. Indeed,

these bulwarks of Pennsylvania law exist to burden and to check the

Commonwealth in its prosecutions of citizens, whom we presume innocent

unless and until proven otherwise beyond a reasonable doubt. Thus, it is the

rights and liberties of the people which Article I, § 14 protects from executive

and legislative overreach.

For centuries, courts of this Commonwealth and England have used the

Writ of Habeas Corpus “to determine whether a petitioner is entitled to an

immediate release from an unlawful confinement.” Commonwealth ex

rel. Powell v. Rosenberry, 645 A.2d 1328, 1330 (Pa. Super. 1994)

(emphasis added). Rather than grant Ms. Burke immediate release, the

Commonwealth’s request for a new habeas corpus hearing would effectively

suspend her privilege of the Writ of Habeas Corpus for the duration of the

remand and new hearing. Article I, § 14 of our state constitution forbids this

result.

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Today, we reaffirm the principles of justice dating back to Magna Carta,

the corresponding common law of habeas corpus relief, and the ancient line

of unbroken precedents applying them. Thus, we discharge Ms. Burke.6

Order reversed. Ms. Burke discharged from custody without prejudice

to the Commonwealth to refile its charge.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/19/2021

6 To the extent the trial court’s order in Commonwealth v. Dolan, 240 A.3d

1291 (Pa. Super. 2020) (“Dolan III”) directed a remand for a new preliminary hearing, we expressly disapprove of that result.

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