The Legal Intelligencer
July 2, 2024
The Pennsylvania Supreme Court has yet again addressed
the issue of proving a prima facie case at a preliminary hearing. The Supreme
Court has clarified that inadmissible hearsay alone will not be adequate to
identify a defendant at a preliminary hearing.
The high court initially sought to clarify when the
commonwealth may properly use hearsay evidence to establish a prima facie case
at a preliminary hearing in Commonwealth v. Ricker, 135 A.3d 175 (Pa.
2016), an appeal dismissed as improvidently grant, and in Commonwealth v.
McClelland, 233 A.3d 717 (Pa. 2022).
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.”
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, nonpermitted 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.”
In 2017, the Pennsylvania 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.” The logic employed by the Superior Court appeared
to render the preliminary hearing meaningless.
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.
That bring us to the Supreme Court’s latest iteration
of the preliminary hearing. On Jan. 3, 2022, 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 Superior 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 Superior Court concluded, “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 Supreme Court permitted the commonwealth to
appeal, by allowance, the Superior Court’s decision in Harris, Commonwealth
v. Harris, No. 31 EAP 2022, decide May 13, 2024. The Supreme court
narrowed its inquiry as to whether Rule 542 (E) permits the use of hearsay
alone to prove the defendant’s identity.
The Supreme Court found that “Rule 542 (E)’s first
sentence requires the preliminary hearing judge to consider hearsay in
determining whether a prima facie case has been established … as to both the
commission of a crime and the identity of the defendant.” The second sentence
of 542 (E) is significant, it provides that hearsay shall be sufficient to
prove “any element of an offense including, but not limited to. those requiring
proof of ownership of, nonpermitted use of, damage to, or value of property.”
The second sentence does not refer to identification. The court went on, “This
strongly suggests hearsay relating to the identity of the offender is
insufficient to prove a prima facie case under Rule 542.”
Although the Supreme Court did not approve of the
rational of the Superior Court in Harris in all regard, the court was
unequivocal in holding:
To summarize the state of the law regarding the use of
hearsay at preliminary hearings, Rule 542 (E) is intended to allow some use of
otherwise inadmissible hearsay by the commonwealth to establish a prima facie
case that an offense has been committed.
Finally, we now hold, based on the plain language of
Rule 542, that inadmissible hearsay alone may not be used to prove a prima
facie case as to the defendant’s identity. This means the commonwealth at a
preliminary hearing is required to produce some nonhearsay or admissible
hearsay evidence to sustain its prima facie burden as to the defendant’s
identity.
The Supreme Court has distinguished between the
evidence needed to sustain a prima facia finding of the elements of an offense
at a preliminary hearing and the identity of the alleged offender at the
preliminary hearing.
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 X
@MatthewTMangino or contact him at mmangino@lgkg.com.
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