The Legal Intelligencer
March 3, 2022
A recent Pennsylvania Superior Court panel has weighed in on
the ongoing evolution of what evidence prosecutors need to sustain a prima
facie case at a preliminary hearing.
A look back more than 30 years will help put into context
the latest decision of the Superior Court. In 1990, the Pennsylvania Supreme
Court decided Commonwealth Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990).
Prior to Verbonitz prosecutors could establish a
prima facie case at a preliminary hearing by presenting only hearsay evidence.
In Verbonitz, the only evidence offered by the commonwealth at the
preliminary hearing was the testimony of a police officer 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(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 (1975), the high
court found that witness testimony and the opportunity for cross-examination
are essential to pretrial matters.
In Pennsylvania, appellate decisions further expounded on
the importance of the preliminary hearing. 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, (Pa. Super. Ct. 2005), the court found that a prima facie case can be
established by hearsay only when the prosecution provides other evidence in
addition to hearsay.
Twenty years after Verbonitz, Pennsylvania Rule of
Criminal Procedure 542 was established and preliminary hearings were got a bit
twisted. Subsection (E) provides as follows:
“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
requiring proof of the ownership of, non-permitted use of, damage to, or value
of property.”
Rule 542 was established in 2011. It appeared that the new
rule was intended to lessen the burden on prosecutors to call witnesses to
prove “ownership of, nonpermitted use of, damage to, or value of property.”
However, the new rule’s comments appeared to imply that
hearsay could be used to establish any element of a prima facie case.
Prosecutors ran with that interpretation.
In 2013, the comment to Rule 542 was amended. The comment,
as it reads today, provides “Hearsay, whether written or oral, may establish
the elements of any offense. The presence of witnesses to establish these
elements in not required at the preliminary hearing.”
The Pennsylvania appellate courts were then tasked with
interpreting Rule 542. In Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super.
Ct. 2015) the Superior Court found “By the rule’s own terms, the panel found
that hearsay evidence alone was enough for a prima facie case.” In 2017, the
Superior Court ruled in Commonwealth v. McClelland, 165 A.3d 19 (Pa.
Super. Ct. 2017), in support of hearsay at a preliminary hearing, “admitting
hearsay at the preliminary hearing would be irrelevant if the defendant was
convicted at trial, and if the defendant was acquitted, then the error’s impact
would be ‘minimal’ because there would be no permanent loss of liberty,”
see Commonwealth v. Harris, 2022 Pa. Super. 1, at p. 9 (Pa. Super. Ct.
2022). The logic employed by the Superior Court appeared to render the
preliminary hearing meaningless.
After the decision in McClelland, the criminal
preliminary hearing in Pennsylvania, at least for the moment, was of no
practical use nor did it provide any meaningful protection to a defendant. In
interpreting Pennsylvania Rule of Criminal Procedure 542 (E) the Pennsylvania
Superior Court authorized magisterial district judges to hold a defendant for
court following a preliminary hearing at which the commonwealth presented only
hearsay evidence. I wrote here in 2018, the preliminary hearing in Pennsylvania
had been “eviscerated.”
Then in 2020, the Pennsylvania Supreme Court reversed the
Superior Court in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020)
which has come to be referred to as McClelland II.
In McClelland II, the Supreme Court had “little
difficulty in stating with certainty that five Justices in Verbonitz agreed
a prima facia case cannot be established by hearsay evidence alone, and the
common rationale among those justices involved due process considerations.” The
court held that hearsay evidence alone cannot establish a prima facie case at a
preliminary hearing.
Just as we flipped the calendar to 2022, the Superior Court
further interpreted Rule 542. On Jan. 3, the Superior Court decided Commonwealth
v. Harris, 2022 Pa. Super. 1 (Pa. Super. Ct. 2022). Ronald Harris was
accused of shooting a man over drugs. The victim failed to show up for two
preliminary hearings. When the victim failed to show for a third hearing the
District Attorney’s Office called the police officer who took a statement of
the victim. The officer testified over the objection of Harris’ counsel. The
case was bound to trial.
Although Harris filed a motion to quash the information, he
remained incarcerated for nearly 18 months, despite the fact that the
commonwealth had a witness unwilling to cooperate.
The court in Harris found that “Nothing in Rule
542 (E) prevents the application of Verbonitz requiring that all
material elements of the criminal offense need to be proved at a preliminary
hearing by nonhearsay evidence.”
The court went on to say, “While a preliminary hearing is
not a trial and due process is a flexible concept, the hearing is still a
critical stage in the proceedings that is intended under Rule 542 to be more
than a mere formality.”
The court continued, “We conclude that the Supreme Court’s
holdings in Verbonitz and McClelland precludes the
commonwealth from relying on hearsay alone at a preliminary hearing to
establish a prima facie case that the defendant committed a crime.”
The Superior Court affirmed the order of the trial court
dismissing the charges against Harris, and has provided some guidance for
criminal law practitioners. The preliminary hearing has regained its status as
a meaningful proceeding that provides, at least, limited protections for those
accused of a crime.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly and George and the former district attorney of Lawrence
County. He is the author of “The Executioner’s Toll.” You can follow him
on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.
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