:        PENNSYLVANIA
               v.                              :
    JAYSON S. MONTANEZ,                        :
                      Appellant                :   No. 279 MDA 2017

              Appeal from the Order Entered September 26, 2016
               In the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0000160-2015


MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 10, 2020

        Appellant, Jayson S. Montanez, appeals from the September 26, 2016

Order entered in the Luzerne County Court of Common Pleas denying his pre-

trial Petition for Writ of Habeas Corpus. In light of the Pennsylvania Supreme

Court’s recent decision in Commonwealth v. McClelland, 233 A.3d 717 (Pa.

2020) (“McClelland II”), we reverse.

        The facts and procedural history are as follows. On November 21, 2014,

the Commonwealth charged Appellant with two counts of Involuntary Deviate

Sexual Intercourse (“ISDI”), two counts of Aggravated Indecent Assault, one

count of Incest, and one count of Corruption of Minors1 arising from allegations

of abuse by his minor daughter (the “Complainant”). The Complainant alleged


1   18 Pa.C.S. §§ 3123(b), 3125(b), 4302(b), and 6301(a)(1)(ii), respectively.
* Retired Senior Judge assigned to the Superior Court.

that Appellant had sexually abused her hundreds of times between 2012 and

July 2014, when she was between the ages of four and six years old.

      At   Appellant’s   January    12,    2015   Preliminary    Hearing,   the

Commonwealth presented only hearsay evidence. In particular, the former

Luzerne County Children and Youth caseworker who had interviewed the

Complainant recounted statements the Complainant had made to the

caseworker detailing the alleged sexual abuse.       The Commonwealth also

presented a video recording of the Complainant’s interview at the Luzerne

County Child Advocacy Center. The Complainant did not testify. The trial

court found that the Commonwealth’s hearsay evidence “clearly established a

prima facie case on each of the offenses charged[,]” and, thus, held all charges

over for trial. Trial Ct. Op., 2/24/17, at 2 (unpaginated).

      On May 29, 2015, Appellant filed an Omnibus Pretrial Motion, which

included a Petition for Writ of Habeas Corpus.      In the Petition, Appellant

asserted that Commonwealth failed to present sufficient competent, i.e., non-

hearsay, evidence at the Preliminary Hearing to establish a prima facie case

as to the elements of the charged offenses.

      On August 26, 2016, the trial court held a hearing on Appellant’s Petition

for Writ of Habeas Corpus. On September 26, 2016, relying “solely on the

basis of the law as set forth [] in Commonwealth v. Ricker [120 A.3d 349,

357 (Pa. Super. 2015)], which allows the Commonwealth to use hearsay


evidence alone to establish a prima facie case,” the trial court denied

Appellant’s Petition. Trial Ct. Op. at 3 (unpaginated).

       On December 27, 2016, Appellant filed a Petition for Review of the trial

court’s September 26, 2016 Order. On February 14, 2017, this Court granted

Appellant’s Petition for Review after concluding that Appellant’s due process

challenge to the use of hearsay evidence alone to establish a prima facie case

presented an “extraordinary circumstance” upon which to allow appeal of an

interlocutory order. See Order Granting Petition for Review, filed 2/14/17.

       However, after we granted the Petition for Review, this Court decided

Commonwealth           v.   McClelland,        165   A.3d   19   (Pa.   Super.   2017)

(“McClelland I”), and addressed the very issue upon which we had based our

conclusion that “extraordinary circumstances” existed in the instant matter to

justify our grant of permission to appeal.2 Thus, on February 12, 2018, we

quashed this appeal. Appellant filed a Petition for Allowance of Appeal with

the Pennsylvania Supreme Court.3

       Subsequently, on July 21, 2020, the Pennsylvania Supreme Court

reversed this Court’s decision in McClelland I, expressly disapproved of the


2 The McClelland I Court held that an accused’s due process rights are not
violated by a preliminary hearing at which the Commonwealth presents only
hearsay evidence. Id. at 32-33.

3  On September 28, 2018, the Pennsylvania Supreme Court entered an Order
holding Appellant’s Petition for Allowance of Appeal pending disposition of
McClelland II, supra. See Order Holding Petition for Allowance of Appeal,
filed 9/28/18.


holding in Ricker, supra, and concluded, inter alia, that hearsay evidence

alone is insufficient to establish a prima facie case at a preliminary hearing.

McClelland II, 233 A.3d at 721.

      As a result of this change in the law, on September 9, 2020, the

Supreme Court granted Appellant’s Petition for Allowance of Appeal and

remanded this case for our consideration of Appellant’s issue in light of the

Court’s holding in McClelland II.

      Appellant raised one issue on appeal:

      Did the trial court err as a matter of law by allowing the
      Commonwealth to sustain its burden of proof solely upon hearsay
      and without corroborating evidence under Pa.R.Crim.P. 542(E)
      and in violation of [Appellant’s] right to Due Process pursuant to
      the United States and Pennsylvania Constitutions?

Appellant’s Brief at 3.

      Our standard of review of the denial of a petition for writ of habeas

corpus that raises a question of law is de novo, and our scope of review is

plenary. McClelland II, 233 A.3d at 732.

      “A pre-trial habeas corpus motion is the proper means for testing

whether the Commonwealth has sufficient evidence to establish a prima facie

case.” Commonwealth v. Carper, 172 A.3d 613, 620 (Pa. Super. 2017)

(citation omitted).   “To demonstrate that a prima facie case exists, the

Commonwealth must produce evidence of every material element of the

charged offense(s) as well as the defendant’s complicity therein.” Id. (citation



      Pa.R.Crim.P. 542(E) permits a trial court to consider hearsay evidence

in determining whether the Commonwealth has established a prima facie case.

See Pa.R.Crim.P. 542(E) (“Hearsay as provided by law shall be considered by

the issuing authority in determining whether a prima facie case has been

established.”). Rule 542(E) does not, however, permit the Commonwealth to

rely exclusively on hearsay evidence to establish all elements of all crimes for

purposes of establishing a prima facie case at a preliminary hearing.

McClelland II, 233 A.3d at 721, 735-36.

      Instantly, it is undisputed that the Commonwealth presented only

hearsay evidence at Appellant’s preliminary hearing. Thus, pursuant to the

holding in McClelland II, the Commonwealth failed to sustain its burden to

establish all elements of all of the crimes charged for purposes of establishing

prima facie case at the preliminary hearing. We, therefore, reverse the trial

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

dismiss the charges against him.


       Order reversed. Appellant discharged without prejudice.4

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 11/10/2020


4 “Dismissal of charges and discharge of the accused for failure to establish a
prima facie case at the preliminary hearing . . . does not implicate double
jeopardy concerns.” McClelland II, 233 A.3d at 736 n.11 (citations omitted).
Accordingly, following Appellant’s discharge without prejudice, the
Commonwealth may refile the charges against Appellant and proceed with a
new preliminary hearing. Id.