Matthew T. Mangino
The Pennsylvania Law Weekly
May 17, 2018
The criminal preliminary hearing in Pennsylvania, at least
for the time being, is of no practical use nor does it provide any meaningful
protection to a defendant.
In interpreting Pennsylvania Rule of Criminal Procedure 542
(E) the Pennsylvania Superior Court has authorized magisterial district judges
to hold a defendant for court following a preliminary hearing at which the
commonwealth presents only hearsay evidence.
Pursuant to Commonwealth v. Ricker, 120 A.3d 349 (Pa.
Super. Ct. 2015), and Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super.
Ct. 2017), a prosecutor can call a police officer as its sole witness at a
preliminary hearing, have her read her affidavit of probable cause into the
record, and meet its burden of proof.
In Ricker, the Pennsylvania Superior Court held that it
does not violate the confrontation clause of Article I, Section 9 of the
Pennsylvania Constitution, or the Sixth Amendment to the U.S. Constitution for
a defendant to be held for court and ordered to stand trial as a result of a
preliminary hearing based on hearsay alone.
In June 2014, David Ricker shot Pennsylvania State Trooper
Michael Trotta. Ricker was arrested and charged with attempted murder, assault
of a law enforcement officer and aggravated assault.
At the preliminary hearing before a magisterial district
judge, the commonwealth presented live testimony from an investigating
officer, who testified that he observed Trotta’s gunshot wounds and
participated in a search of Ricker’s residence.
The investigating officer spoke to Ricker in the hospital
who said that he had an AK-47 rifle when he shot Trotta and commented that he
did not understand why Trotta did not leave his property and obtain a search
warrant.
At the preliminary hearing the prosecution played a
recording of an interview with Trooper Trotta. Ricker’s lawyer demanded to
cross-examine Trotta, and argued that Ricker’s case is being improperly
evaluated on hearsay testimony alone. The commonwealth argued that they
presented more than just hearsay evidence—they also presented Ricker’s
statement.
Rule 542 (E), amended in 2013, provides: “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, nonpermitted use of, damage to,
or value of property.”
The Superior Court found that Rule 542 (E), permitting
hearsay to be considered in assessing whether the commonwealth has met its
burden, authorizes the use of hearsay alone at a preliminary hearing to satisfy
the commonwealth’s entire burden of proof.
In McClelland, the Superior Court held that the 14th
Amendment due process clause is not violated when a defendant is held for court
at a preliminary hearing based on only hearsay testimony.
Donald McClelland was charged by the Pennsylvania State
Police with sexually assaulting an 8-year-old girl. The charges included
indecent assault, indecent exposure and corruption of a minor. The child was
interviewed on videotape by a child advocate in the presence of a state
trooper.
At the preliminary hearing, the prosecution did not call the
8-year-old alleged victim to testify or play the videotaped interview. The
prosecution called only the trooper. The trooper testified entirely from his
observations of the interview. The only evidence presented was hearsay.
McClelland filed a petition for writ of habeas corpus asking
the Court of Common Pleas to review the preliminary hearing and dismiss the
charges. The attorneys for McClelland argued that holding the charges for court
based only on hearsay violated both their client’s right of confrontation and
right to due process under both the Pennsylvania and U.S. constitutions.
The trial court denied the petition, and McClelland filed an
interlocutory appeal to the Superior Court.
The Superior Court found that there is no constitutional
right to a preliminary hearing, and therefore the prosecution cannot violate
the defendant’s right to due process by asking a police officer to simply read
into the record the statement of a witness.
Prior to Rule 542, Ricker and McClelland, there
was Commonwealth Buchanan v. Verbonitz, 581 A.2d 172, 175 (Pa. 1990).
In Buchanan, the only evidence offered by the
commonwealth at the preliminary hearing was the testimony of a police officer
testifying about a statement made by a witness. The Pennsylvania Supreme Court
held that the commonwealth failed to establish a prima facie case. Justice
Rolf Larsen wrote in a plurality opinion, “Fundamental due process requires
that no adjudication be based solely on hearsay evidence.”
The importance of the preliminary hearing was firmly
established by the U.S. Supreme Court through a series of decisions beginning
with Coleman v. Alabama, 399 U.S. 1, 9 (1970), which found that the
preliminary hearing is a critical stage of a criminal case and requires the
assistance of counsel. In Gerstein v. Pugh, 420 U.S. 103, 120 (1975), the
high court found that witness testimony and the opportunity for
cross-examination are essential to pretrial matters.
In Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super.
Ct. 2002), the Superior Court ruled that the use of only hearsay testimony
fails to meet the threshold for evidence upon which the preliminary hearing
judge may rely. In Commonwealth v. Nieves, 876 A.2d 423, 427 (Pa. Super.
Ct. 2005), the court found that a prima facia case can be established by
hearsay only when the prosecution provides other evidence in addition to
hearsay.
The Pennsylvania Supreme Court dismissed Ricker’s appeal on
Sept. 28, 2017, as improvidently granted. While doing so, a dissenting
statement and concurring statement clearly signaled that this issue is far from
resolved.
Chief Justice Thomas G. Saylor, in a concurring statement,
acknowledged, “I recognize that the applicable rules are not models of clarity,
as, for example, the directive to accept hearsay evidence in Rule 542 (E)
appears to clash with the rule-based right to cross-examine witnesses against
the defendant conferred under Rule 542 (C).”
Saylor went on, “From my perspective, the 2013 amendment to
the rule was not intended to convey that the commonwealth could meet its burden
at a preliminary hearing entirely through hearsay evidence.”
“I personally operated on the belief that the court was not
rejecting Commonwealth Buchanan v. Verbonitz, but rather, was simply
putting the attendant controversy aside for future consideration in the case
law,” said Saylor.
Justice David Wecht, in a dissenting statement, spent a
great deal of time exploring the difference between “any” as used in Rule 542
and “all” as generally used. In addition he wrote, “when the law affords a
hearing to a person involved in our judicial system, particularly a hearing in
which that person’s liberty is at stake, the hearing must be more than a mere
formality.” He then borrowed from U.S. Supreme Court Justice Benjamin Cardoza
in Palko v. Connecticut, 302 U.S. 319, 327 (1937), “the hearing, moreover,
must be a real one, not a sham or a pretense.”
Although in McClelland, the Superior Court acknowledged
that the due process clause requires adequate notice, the opportunity to be
heard, and the chance to defend oneself—it does not require the opportunity to
confront witnesses against a defendant. However, Judge Mary Jane Bowes writing
for the three-judge panel in McClelland did suggest some limitations
on hearsay. She wrote, “This decision does not suggest that the commonwealth
may satisfy it burden by presenting the testimony of a mouthpiece parroting
multiple levels of rank hearsay.”
The use of rank hearsay is exactly what Ricker and McCelland have
permitted. Although the Rules of Evidence have traditionally been relaxed at a
preliminary hearing, permitting the prosecution to offer only hearsay evidence
at such a hearing is, as Justice Benjamin Cardoza wrote, a “sham,” and a
violation of the 14th Amendment due process and the Sixth Amendment right to
confrontation.
The Pennsylvania Supreme Court granted allowance to appeal
to McClelland in January, refining the issue to “Whether the Superior
Court panel failed to properly apply and follow the legal precedent set forth
in Commonwealth Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), in which
five justices held that ‘fundamental due process requires that no adjudication
be based solely on hearsay evidence.’”
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George. His book “The Executioner’s Toll, 2010″ was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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