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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