J-A24034-21
2022 PA Super 1
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RONALD HARRIS : No. 1981 EDA 2020
Appeal from the Order Entered September 16, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005166-2019
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED JANUARY 03, 2022
I.
The Commonwealth appeals from the order of the Court of Common
Pleas of Philadelphia County (trial court) granting the pretrial motion filed by
Ronald Harris (Harris) to quash charges filed against him because there was
no direct evidence adduced at the preliminary hearing that he shot the victim.
Harris was charged with attempted murder and related offenses after
allegedly shooting Nisheed Stewart (Stewart). When Stewart failed to show
for any of the scheduled preliminary hearings, the Commonwealth presented
testimony of the detective who took his statement identifying Harris as the
shooter. Harris was held for court on all charges based on our then-extant
decision in Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015)
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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(Ricker I), which held that hearsay alone is enough to establish a prima facie
case. While the case was pending, our Supreme Court overruled Ricker I in
Commonwealth v. McClelland,
233 A.3d 717 (Pa. 2020) (McClelland II),
holding that the Commonwealth cannot rely on hearsay alone to establish a
prima facie case at a preliminary hearing. Relying on McClelland II, the trial
court quashed all charges because there was no direct non-hearsay evidence
that Harris shot Stewart.
On appeal, the Commonwealth asserts that McClelland II is
inapplicable because it did not present hearsay alone at the preliminary
hearing. While conceding that it relied on hearsay evidence to identify Harris,
the Commonwealth emphasizes it also presented non-hearsay evidence
through its police witnesses that a crime was committed. In their view, as
long as it presents some direct evidence for one element of a charged offense,
then it is allowed to rely on hearsay alone for other elements of the crime,
including identification of the defendant. The Commonwealth argues this
expressly allowed under the rule of criminal procedure governing preliminary
hearings, which provides that “[h]earsay evidence shall be sufficient to
establish any element of an offense[.]” Pa.R.Crim.P. 542(E).
After review, we conclude that the trial court correctly applied
McClelland II in holding there was insufficient evidence to establish a prima
facie case as to each element at the preliminary hearing where the
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Commonwealth relied on hearsay evidence alone to establish that Harris
committed the offense.
II.
A.
On March 23, 2017, around 7:50 p.m., Philadelphia Police Officer Ryan
Waltman (Officer Waltman) received a radio call of a male gunshot victim near
the 3100 block of North Patton Street. When he arrived, Officer Waltman
found Stewart bleeding from gunshot wounds to his right wrists and left thigh.
Stewart was taken to a nearby hospital. Around 9:10 p.m., Detective John
Drudin (Detective Drudin) obtained a statement from Stewart about what
happened. Stewart described that Harris and his brother, Rasheed Harris,
confronted him about stealing drugs from them. During the confrontation,
both men pulled out guns and began firing, striking Stewart twice as he ran
away. Based on this information, Detective Drudin went to the crime scene
and found multiple projectiles and fired cartridge casings. He then went to
his office and printed out photographs of Ronald Harris and Rasheed Harris.
Detective Drudin returned to the hospital with the photographs. Stewart
confirmed that the men in the photographs were the men who shot him.
The Commonwealth waited two years before finally filing its criminal
complaint on May 9, 2019, at which time Harris was arrested and incarcerated
for failing to post bail. In total, the Commonwealth charged Harris with eleven
offenses: attempted murder, aggravated assault, intimidation, conspiracy to
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commit murder, possessing instruments of crime, simple assault, recklessly
endangering another person, terroristic threats, and VUFA offenses 6105,
6106 and 6108.1
B.
Stewart did not show for the first two scheduled preliminary hearings.
When he failed to show for the third, the Commonwealth went ahead with the
hearing and called Officer Waltman and Detective Drudin. Officer Waltman
testified about responding to the call and finding Stewart with two gunshot
wounds. Detective Drudin, meanwhile, testified about finding the ballistics
evidence at the scene of the shooting. Through the detective’s testimony, the
Commonwealth presented Stewart’s statement about the shooting and his
photographic identification of Ronald Harris and Rasheed Harris as the men
who shot him. Over Harris’s objections, the municipal court admitted the
hearsay evidence. At the end of the hearing, Harris argued the
Commonwealth failed to establish a prima facie case because it presented only
hearsay that he was one of the shooters. The Commonwealth countered that
hearsay evidence alone was enough under Ricker I. The municipal court
agreed with the Commonwealth and held all charges for court except
intimidation.
____________________________________________
118 Pa.C.S. §§ 901(a), 2502(a), 2702(a), 4952(a), 903, 907(a), 2701(a),
2705, 2706(a)(1), 6105(a)(1), 6106(a)(1) and 6108.
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After being held for court, Harris filed a pretrial motion to quash the
charges.2 The trial court granted the motion as to attempted murder but
denied it as to the remaining charges. While the case was pending, the
Pennsylvania Supreme Court decided McClelland II on July 21, 2020,
overruling Ricker I and holding that hearsay evidence alone cannot establish
a prima facie case at a preliminary hearing. See McClelland II, 233 A.3d at
734 (“[Pa.R.Crim.P.] 542(E) … does not permit hearsay evidence alone to
establish all elements of all crimes for purposes of establishing a prima facie
case at a defendant’s preliminary hearing.”).
Because of McClelland II, Harris filed a motion for reconsideration of
his motion to quash. At the hearing, the Commonwealth informed the trial
court that homicide detectives had been unable to locate Stewart and,
consequently, it would have to rely on the transcript of the preliminary
hearing. Finding McClelland II applicable, the trial court granted the motion
to quash all charges because “there is no admissible evidence here which
connects [Harris] to the crimes for which he was charged.” Trial Court Opinion
(TCO), 12/28/20, at 7. After the Commonwealth filed this appeal, the trial
court lowered Harris’s bail to an unsecured amount on October 17, 2020,
bringing his 17-month pretrial incarceration to an end.
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2 A pretrial motion to quash is “the equivalent in Philadelphia practice of a pre-
trial writ of habeas corpus.” Commonwealth v. Dantzler, 135 A.3d 1109,
1111 (Pa. Super. 2016).
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The Commonwealth now raises this issue for review:
Did the lower court err by quashing all charges on the purported
ground of [McClelland II], where in the instant case the
Commonwealth presented both non-hearsay and hearsay
evidence at the preliminary hearing, all of which was admissible
and together established a prima facie case sufficient to proceed
to trial on all charges?
Commonwealth’s Brief at 4.
III.
We must first determine whether we have jurisdiction to entertain this
appeal from an order quashing charges bound over for trial at a preliminary
hearing due to lack of evidence. See Commonwealth v. Young, 246 A.3d
887, 888 (Pa. Super. 2021) (citation omitted) (subject matter jurisdiction is a
question of law and may be raised by the court sua sponte).
Appellate review of any court order is a jurisdictional question
defined by rule or statute. This principle applies to appellate
review of a pretrial order. A court may consider the issue of
jurisdiction sua sponte. In evaluating our jurisdiction to allow [a
party’s] appeal, we look to other criminal cases involving appeals
of pretrial orders .... In this Commonwealth, an appeal may only
be taken from: 1) a final order or one certified by the trial court
as final; 2) an interlocutory order as of right; 3) an interlocutory
order by permission; or 4) a collateral order.
Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017) (quotation
marks and citations omitted).
The Commonwealth asserts that the trial court’s order quashing the
charges is an appealable final order under Pa.R.A.P. 742. See
Commonwealth’s Brief at 1 (citing Commonwealth v. Karetny, 880 A.2d
505, 512-13 (Pa. 2005) (“[A]n order quashing a charge is unquestionably
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‘final’ as to that charge because a trial on the remaining charges would
permanently preclude trial on the quashed charge.”)).
However, in McClelland II, after the trial court denied his habeas
petition, the defendant filed an interlocutory appeal that we permitted because
“extraordinary circumstances” existed to justify accepting the appeal. See
McClelland II, 233 A.3d at 724-25. On appeal to our Supreme Court, the
Commonwealth challenged whether interlocutory appellate review was
appropriate. The Court, however, declined to consider this challenge, stating
that our allowance of the appeal was “beyond the scope of the issue upon
which allocatur was granted.” Id. at 732 n.8. In so doing, however, the Court
reiterated that “[a]n order denying or granting a writ of habeas corpus is
interlocutory.” Id. (citing Commonwealth v. La Belle, 612 A.2d 418 (Pa.
1992)).
After McClelland II, we quashed two Commonwealth interlocutory
appeals involving similar circumstances. In both instances, the panels found
it lacked jurisdiction to consider Commonwealth appeals from trial court orders
granting habeas relief and dismissing all charges without prejudice to charges
being refiled. See Commonwealth v. Hacker, 253 A.3d 252 (Pa. Super.
April 1, 2021) (unpublished memorandum), reargument denied (June 8,
2021); Commonwealth v. Rogers,
2021 WL 2592241, 1302 MDA 2020 (Pa.
Super. June 1, 2021) (unpublished memorandum).
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More recently, though, a panel of this Court came to a different
conclusion in Commonwealth v. Merced, ___ A.3d ___, 2021 WL 4898934
(Pa. Super. October 21, 2021). In that case, the defendant was charged with
various sexual offenses against his ex-girlfriend’s daughters. At the
preliminary hearing, none of the daughters testified, as the Commonwealth
relied on the arresting officer’s testimony about their statements. Because
Ricker I was still good law at the time, all charges were held for court. After
McClelland II was issued, the defendant filed a habeas petition in the trial
court. At the habeas hearing, the Commonwealth supplemented the
preliminary hearing record with the daughters’ testimony about the abuse.
Their testimony, however, varied somewhat from their original statements
about digital penetration. Based on this discrepancy, the trial court held that
the direct testimony established a prima facie case for some charges but not
aggravated indecent assault. Rather than proceed with the remaining
charges, however, the Commonwealth appealed under Pennsylvania Rule of
Appellate Procedure 311(d), certifying that the trial court’s order will
“terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d).
While neither party contested jurisdiction, the Merced panel addressed
whether it had jurisdiction. Merced, supra at *3. After comprehensively
reviewing the history of habeas corpus in Pennsylvania, the panel concluded
that it was “well established that the Commonwealth may appeal from a trial
court’s order dismissing a felony charge based on a pretrial petition for Writ
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of Habeas corpus.” Id. at *4 (quoting Karetny, supra at 513). As a result,
the panel held it had jurisdiction over the Commonwealth’s appeal. While
acknowledging that this conflicted with the result in Hacker and Rogers, the
panel observed that those were both non-precedential decisions to which it
was not bound. Likewise, the panel acknowledged that its holding also
conflicted with statement in McClelland II that an order denying or granting
habeas relief is interlocutory. Id. at n.7. However, that statement, the
Merced panel observed, was non-binding dicta because the Supreme Court’s
allocatur grant in McClelland II did not include the appealability of habeas
orders. Id.
Like we did in Merced, here we address a Commonwealth appeal of a
pretrial order dismissing charges on a habeas petition. While there are
differences on the merits, Merced is a published decision that answers the
jurisdictional question in this case. As we often recognize, a prior published
opinion issued by a panel of this Court constitutes binding precedential
authority. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super.
2013) (“A panel [of this Court] is not empowered to overrule another panel of
the Superior Court.”) (citation omitted). This being the case, we have
jurisdiction and may address the merits of the Commonwealth’s appeal.3
____________________________________________
3 The evidentiary sufficiency of the Commonwealth’s prima facie case for a
charged crime is a question of law for which our standard of review is de novo
(Footnote Continued Next Page)
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IV.
Before addressing the Commonwealth’s contention that it can rely solely
on hearsay to establish that the defendant committed the crime as long as it
presents some direct evidence as to the commission of the crime, a review of
the relevant case law is necessary.
A.
Until Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172
(Pa. 1990), it was generally considered that a person could be held for court
on charges at the preliminary hearing on hearsay alone. There, the defendant
was charged with sexual offenses against a minor. At his preliminary hearing,
the only evidence the Commonwealth presented was the hearsay testimony
of the investigating police officer, who testified about the victim’s description
of the assault. In a 5-2 vote, our Supreme Court held that the investigating
officer’s hearsay testimony about the victim’s allegations was insufficient
alone to establish a prima facie case against the defendant. While the five
Justices agreed that the Commonwealth failed to establish a prima facie case
under fundamental due process under the Pennsylvania and United States
____________________________________________
and our scope of review is plenary. See Commonwealth v. Wroten,
257
A.3d 734, 742 (Pa. Super. 2021) (citation omitted).
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Constitutions,4 they split on whether the defendant had a constitutional right
to confrontation at the preliminary hearing.
The lead opinion found that fundamental due process prevented the
Commonwealth from relying on hearsay alone to establish a prima facie case.
In its discussion of the standards for preliminary hearings, the lead opinion
believed that the Commonwealth cannot rely on hearsay to establish any of
the elements of any of the charged offenses.
In order to satisfy this burden of establishing a prima facie case,
the Commonwealth must produce legally competent evidence,
Commonwealth v. Shain, 493 Pa. 360,
426 A.2d 589 (1981),
which demonstrates the existence of each of the material
elements of the crime charged and legally competent evidence to
____________________________________________
4 The Due Process Clause of the Fourteenth Amendment to the United States
Constitution prevents states from depriving “any person of life, liberty, or
property, without due process of law ....” U.S. CONST. amend XIV, § 1.
Additionally, the Pennsylvania Constitution provides due process protection in
Article I, Section 9, which provides:
In all criminal prosecutions the accused hath a right to be heard
by himself and his counsel, to demand the nature and cause of
the accusation against him, to be confronted with the witnesses
against him, to have compulsory process for obtaining witnesses
in his favor, and, in prosecutions by indictment or information, a
speedy public trial by an impartial jury of the vicinage; he cannot
be compelled to give evidence against himself, nor can he be
deprived of his life, liberty or property, unless by the judgment of
his peers or the law of the land. The use of a suppressed voluntary
admission or voluntary confession to impeach the credibility of a
person may be permitted and shall not be construed as compelling
a person to give evidence against himself.
PA. CONST. art. I, § 9. These two due process provisions have been treated
as largely coextensive. See Commonwealth v. Sims, 919 A.2d 931, 941
n.6 (2007).
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demonstrate the existence of facts which connect the
accused to the crime charged. See Commonwealth v.
Wojdak, 502 Pa. 359,
466 A.2d 991 (1983).
Verbonitz,
581 A.2d at 174 (emphasis added).
Applying this standard, the lead opinion concluded that the
Commonwealth failed to meet its burden, approvingly citing to Justice
Flaherty’s concurrence in Unemployment Compensation Board of Review
v. Ceja, 427 A.2d 631 (Pa. 1981), a case evaluating the use of the “legal
residuum” rule in administrative hearings that holds that hearsay cannot be
used to support a finding unless it is corroborated by direct evidence.5
… As Justice Flaherty stated in his concurring opinion in [Ceja,
427 A.2d at 647], “[f]undamental due process requires that no
____________________________________________
5 Under 2 Pa.C.S. § 505, “Commonwealth agencies shall not be bound by
technical rules of evidence at agency hearings, and all relevant evidence of
reasonably probative value may be received. Reasonable examination and
cross-examination shall be permitted.” (Formerly, Section 32 of the
Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. 1710:32).
The “legal residuum” rule in administrative proceedings, often called the
Walker rule in Pennsylvania, provides that “unobjected to hearsay evidence
can be relied on to support a finding if it is corroborated by other competent
evidence, while objected to hearsay evidence can never be relied on to support
a finding.” Walker v. Unemployment Compensation Board of Review,
367 A.2d 366, 370 (1976). (citations omitted). The alternative is to allow
agencies and reviewing courts to exercise discretion in determining in the light
of circumstances of each case whether particular evidence is reliable, even
though it would be excluded in a jury case. In the exercise of such discretion,
agencies and reviewing courts will in many circumstances find that particular
hearsay or other so-called incompetent evidence has insufficient reliability.
The legal residuum rule prevents agencies from relying only on “incompetent”
evidence like hearsay in reaching a decision. This forces agencies to insist on
careful presentation and examination of evidence. See Schwartz,
ADMINISTRATIVE LAW, § 7.4, at 376-77 (1991) (citing 1 Cooper, State
Administrative Law 411 (1965)).
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adjudication be based solely on hearsay evidence.” If more than
“rank hearsay” is required in an administrative context, the
standard must be higher in a criminal proceeding where a person
may be deprived of his liberty. The testimony of a witness as to
what a third party told him about an alleged criminal act is clearly
inadmissible hearsay, Commonwealth v. Maybee, 429 Pa. 222,
239 A.2d 332 (1968), Commonwealth v. Whitner,
444 Pa. 556,
281 A.2d 870 (1971) and thus, does not constitute legally
competent evidence. In this case the Commonwealth has failed
to establish prima facie that a crime has been committed and that
[the defendant] committed that crime.
Verbonitz, 581 A.2d at 174. The lead opinion went on to also find that the
defendant’s right to confrontation under the Pennsylvania Constitution was
violated because he could not cross-examine his accuser. Id. at 418-19.
Justice Flaherty, joined by Justice Cappy, concurred on due process
grounds. Like the lead opinion, Justice Flaherty cited his concurrence in Ceja
for the proposition that due process requires that the Commonwealth present
something more than mere hearsay at a preliminary hearing.
I deem this to be a requirement of due process. In [Ceja], a
plurality of this Court referred to “this Commonwealth’s longstanding requirement that administrative findings must be
supported by some evidence that would be admissible over
objection in a court of law.” This author expressed the view that
“[f]undamental due process requires that no adjudication be
based solely on hearsay evidence.” [Ceja, 427 A.2d at 647]. The
reference in Ceja was to a final adjudication of property rights,
but the principle a fortiori applies with equal force in a preliminary
hearing-a critical stage of a criminal proceeding in which life,
death, liberty, and property are all at issue.
Applying this principle to this case requires the conclusion that the
hearsay statement of the police officer was insufficient, vel non,
to establish a prima facie case against appellant. It was a hearsay
statement which could not be admitted over objection in a criminal
trial and thus, standing alone, it was insufficient to establish a
prima facie case, which ... must be based on evidence which could
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be presented at the trial in court. I therefore concur in the
judgment that the Commonwealth’s evidence at [the defendant’s]
preliminary hearing failed to establish a prima facie case, and that
[the defendant] is entitled to discharge.
Verbonitz, 581 A.2d at 175–76 (citation omitted).
Based on this analysis, Justice Flaherty did not believe that the Court
had to address the applicability of the rights of confrontation and cross-
examination at a preliminary hearing. Instead, he thought the Court need
only hold that the Commonwealth cannot rest a prima facie case solely on
hearsay. Id. at 176. Thus, Verbonitz did not mean that hearsay evidence
was not allowed to bolster non-hearsay evidence, only that a person could not
be held for court solely on hearsay evidence.
B.
Over 20 years after Verbonitz, Rule of Criminal Procedure 542 replaced
the former rule governing preliminary hearings. Under the initial 2011
version, subsection (E) provided as follows:
(E) 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.
Pa.R.Crim.P. 542(E) (2011 version). The rule’s comment explained that the
elements listed were not meant to be exclusive:
Subsection (E) was added to the rule in 2011 to clarify that
traditionally our courts have not applied the law of evidence in its
full rigor in proceedings such as preliminary hearings, especially
with regard to the use of hearsay to establish the elements of a
prima facie case. See the Pennsylvania Rules of Evidence
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generally, but in particular, Article VIII. Accordingly, hearsay,
whether written or oral, may establish the elements enumerated
in subsection (E). That enumeration is not comprehensive and
hearsay is admissible to establish other matters as well. The
presence of witnesses to establish these elements is not required
at the preliminary hearing. See also Rule 1003 concerning
preliminary hearings in Philadelphia Municipal Court.
Pa.R.Crim.P. 542(E), cmt. (2011 version).
In 2013, subsection (E) was amended to its current version to clarify
what the comment stated — that the listed elements were not intended to be
exclusive.
(E) 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, non-permitted use of, damage
to, or value of property.
Pa.R.Crim.P. 542(E) (emphasis added to amending language). The comment
was also amended to reflect the change but cited Verbonitz, ostensibly
warning of possible tension between the rule and the Supreme Court’s
decision. The comment currently reads as follows:
Subsection (E) was amended in 2013 to reiterate that traditionally
our courts have not applied the law of evidence in its full rigor in
proceedings such as preliminary hearings, especially with regard
to the use of hearsay to establish the elements of a prima facie
case. See the Pennsylvania Rules of Evidence generally, but in
particular, Article VIII. Accordingly, hearsay, whether written or
oral, may establish the elements of any offense. The presence of
witnesses to establish these elements is not required at the
preliminary hearing. But compare [Verbonitz] (plurality)
(disapproving reliance on hearsay testimony as the sole
basis for establishing a prima facie case). See also Rule 1003
concerning preliminary hearings in Philadelphia Municipal Court.
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Pa.R.Crim.P. 542(E), cmt. (emphasis added). The Commonwealth contends
that under this Rule, once it makes out any element of the crime, it can make
out other elements of the crime with hearsay.
C.
In Ricker I, this Court got its first chance to reconcile the language in
subsection (E) with our Supreme Court’s decision in Verbonitz. In Ricker I,
the defendant shot a state trooper. The trooper survived and gave an audio-
recorded statement about the shooting to the lead investigator. At the
preliminary hearing, the Commonwealth played the audio recording of the
trooper’s statement. Additionally, like this case, the investigator also testified
about recovering ballistics evidence from the crime scene. The defendant
objected to the audio recording on hearsay grounds and requested a
continuance to call the trooper as a witness. The district magistrate court
overruled the objection, declined the continuance request, and held the
defendant for court. The defendant then filed a pretrial writ of habeas corpus,
arguing that the district magistrate court erred in finding a prima facie case
based solely on the trooper’s audio-recorded statement. After the trial court
denied the writ, we permitted the defendant’s interlocutory appeal.
On appeal, the Ricker I panel first agreed with the defendant that
hearsay alone was used to prove a prima facie case of attempted murder,
aggravated assault against a law enforcement officer, and aggravated assault
against the police officer. Ricker I, 120 A.3d at 356. Having settled that
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preliminary issue, the panel next considered whether “Rule 542(E) and the
use of hearsay evidence alone may establish a prima facie case.” Id. After
finding no binding precedent to the contrary, the panel noted that Rule 542(E),
by its plain terms, permits hearsay to be considered in determining any
material element of the crime. Because hearsay evidence was sufficient to
establish one or more elements of the crime, it followed then that hearsay
evidence was sufficient “to meet all of the elements.”
Id. at 357. Thus, by
the rule’s own terms, the panel found that hearsay evidence alone was enough
for a prima facie case.
Id.
This conclusion, however, did not resolve the case because the
defendant claimed that his confrontation rights were violated under both the
United States and Pennsylvania Constitutions. It was in this context that the
panel reviewed Verbonitz and acknowledged that “a majority of justices
agreed that hearsay evidence alone was insufficient to establish a prima facie
case at a preliminary hearing.” Id. at 360. Nevertheless, under the panel’s
reading of Verbonitz, the lead opinion based its rationale “on a constitutional
confrontation right,” while the concurrence based its rationale on due process.
Id. Thus, the panel found that Verbonitz was “not binding and valuable only
insofar as its rationale can be found persuasive.”
Id. Ultimately, the Ricker
I panel, after reviewing “the historical underpinnings of the preliminary
hearing, the reasons for the creation of the Pennsylvania and federal
confrontation clauses, and the original public meaning of the respective
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confrontation clauses,” concluded that a defendant does not have a
constitutional right to confrontation at a preliminary hearing. Id. at 362.
6
D.
1.
We again addressed this issue in Commonwealth v. McClelland, 165
A.3d 19 (Pa. Super. 2017) (McClelland I). There, the defendant was charged
with committing various sexual offenses against an eight-year-old child.
According to the criminal complaint, the state police learned of the abuse from
the child’s parents. This led to a specialist at a children’s advocacy center
interviewing the child about the defendant’s abuse. At the preliminary
hearing, the investigator was the Commonwealth’s only witness, as he
testified about what the child told the specialist. After all charges were held
for court, the defendant filed a habeas motion that was denied.
After allowing interlocutory appeal, we affirmed the denial of the motion.
Unlike the Ricker I panel, which did not need due process because it was not
raised, the McClelland I panel had to make the threshold determination
whether due process protections apply to a preliminary hearing. While the
____________________________________________
6 Initially our Supreme Court granted allowance of appeal to determine “a
defendant does not have a state or federal constitutional right to confront the
witness against him at a preliminary hearing” and whether “a prima facie case
may be proven by the Commonwealth through hearsay evidence alone[?]”
Commonwealth v. Ricker, 135 A.3d 175 (Pa. 2016) (per curiam). After
argument, however, the Court dismissed the appeal as improvidently granted.
See Commonwealth v. Ricker,
170 A.3d 494 (Pa. 2017) (Ricker II).
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defendant “failed to specify what interest is at stake,” the panel read his
argument as being that his preliminary hearing was inadequate to vindicate
“his rule-based right to confront [the witnesses against him] since the
Commonwealth can elect to render it meaningless through hearsay.” Id. at
29-30.
We rejected this argument, finding that the defendant’s interest was not
in confronting the witnesses against him but “in probing the strength of the
Commonwealth’s case for the subsequent trial.” Id. at 30. This included the
lack of prompt complaint, the victim’s family staying in contact with the
defendant, and other witnesses present at the crime scene failing to come
forward. Id. Because such matters went to credibility and were irrelevant at
a preliminary hearing, we found the reliability of the prima facie determination
would not have been enhanced by the defendant cross-examining the minor
victim. Id.
We also found that any error in admitting hearsay at the preliminary
hearing would be irrelevant if the defendant were convicted at trial, and if the
defendant were acquitted, then the error’s impact would be “minimal” because
there would be no permanent loss of liberty. In summarizing its conclusion
that due process was not violated, we found that the defendant failed to show
that he was entitled under due process to anything beyond “adequate notice,
the opportunity to be heard, and the chance to defend oneself before a fair
and impartial tribunal,” all of which he received. Id. Finally, while
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acknowledging that requiring an individual to stand trial imposes significant
liberty constraints, we noted that the Fourth Amendment and not due process
applied to such constraints. Id. at 32.
2.
In McClelland II, our Supreme Court reversed. It began by recognizing
that (1) a five-Justice majority in Verbonitz agreed that hearsay evidence,
without more, cannot establish a prima face case at a preliminary hearing,
and (2) that a majority also agreed that “fundamental due process requires
that no adjudication be based solely on hearsay evidence.” See McClelland
II, 233 A.3d at 721 (citations omitted). It had “little difficulty in stating with
certainty that five Justices in Verbonitz agreed a prima facie case cannot be
established by hearsay evidence alone, and the common rationale among
those Justices involved due process considerations.” Id. at 732.
The Court next considered the validity of Verbonitz after the
promulgation of Rule 542(E), which the Ricker I panel construed as allowing
the unlimited use of hearsay for establishing “all elements of all offenses.”
Focusing first on the rule’s initial 2011 version, the Court explained:
…The rule, by its plain language, was of limited scope. It
permitted “[h]earsay as provided by law” to be “considered” and
offered primarily to establish elements of property offenses. The
rule, in part, relieved victims of property offenses from attending
an accused’s preliminary hearing simply to establish facts about
the ownership of, nonpermissive use of, damage to, or value of
stolen property. Notably, at that time, the rule was in essential
harmony with the Verbonitz lead and concurring opinions, which
concluded legally competent evidence, and not hearsay alone, was
required to establish the elements which must be proven at a
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preliminary hearing. Thus, initial promulgation of subsection (E),
to an extent, formalized a procedure many preliminary hearing
courts were already following — allowing some hearsay to prove
some elements when other legally competent, non-hearsay
evidence was also presented, in accordance with the conclusion of
the five Verbonitz justices who opined hearsay evidence alone is
not sufficient to establish a prima facie case.
Id. at 733 (citations omitted).
It then turned to the 2013 amendment to Rule 542(E) and, as the
Ricker I and McClelland I panels implicitly held, the expanded version of the
rule supplanted Verbonitz to allow “all elements of all offenses to be
stablished at a preliminary hearing solely on the basis of hearsay evidence.”
Id. at 734. (emphasis in original). While recognizing that Rule 542(E) was
“not the model of clarity,” the Court concluded that Rule 542(E) “does not
permit hearsay evidence alone to establish all elements of all crimes for
purposes of establishing a prima facie case at a defendant’s preliminary
hearing.” Id.
In reaching this conclusion, the Court found that the rule’s use of the
word “any” in providing that hearsay evidence is sufficient to establish any
element of the crime was ambiguous. It also recognized that the rule’s use
of the word “any” was “delimited” by the phrase “[h]earsay as provided by
law shall be considered” in the first sentence of Rule 542(E). Id. Because
some meaning must be ascribed to this phrase, it then examined the
competing interpretations, with one of them being that it merely means “as
defined by law, i.e., an out-of-court statement presented as evidence of the
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truth of the mattered asserted.” Id. at 735 (citation omitted). On the other
hand, our Supreme Court noted the phrase, “as provided by law” could also
reasonably be construed as meaning “contingent on” or “subject to,” acting
as a “bulwark against reading the rule as a sweeping pronouncement
permitting hearsay alone to prove all elements of all offenses at a preliminary
hearing.” Id. It observed that this reading was supported by the comparison
citation to Verbonitz that was added to the rule’s comment in 2013. Id.
Based on this analysis, the Court found that “the amended rule does not
evince an articulated intent to overrule Verbonitz or re-affirm it; instead,
subsection (E) is intended to allow some use of hearsay.” Id. (emphasis
added.) Applying the canon of constitutional avoidance to interpret the rule
so as to not violate due process, it went on to state the rule’s plain language,
“does not state a prima facie case may be established solely on the basis of
hearsay, despite the Superior Court’s contrary interpretation.” Id.7
With that in mind, our Supreme Court held that the Commonwealth
violated the defendant’s due process rights by relying exclusively on hearsay
at the preliminary hearing, stating:
The primary reason for the preliminary hearing is to protect an
individual’s right against unlawful arrest and detention. The
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7 “Under the canon of constitutional avoidance, if a statute is susceptible of
two reasonable constructions, one of which would raise constitutional
difficulties and the other of which would not, we adopt the latter construction.”
Commonwealth v. Herman, 161 A.3d 194, 212 (Pa. 2017). The doctrine is
equally applicable to court rules.
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preliminary hearing seeks to prevent a person from being
imprisoned or required to enter bail for a crime which was never
committed, or for a crime with which there is no evidence of
his connection. Our precedents make clear the full panoply of
trial rights do not apply at a preliminary hearing, but the hearing
is nevertheless a critical stage of the proceedings, and is intended
under Rule 542 to be more than a mere formality. Due process
clearly attaches, but due process is a flexible concept, incapable
of precise definition. Here, at the hearing afforded [the
defendant], the Commonwealth relied exclusively and only on
evidence that could not be presented at a trial. This is precisely
the circumstance and rationale upon which five Justices in
Verbonitz determined [the defendant’s] right to due process was
violated. (emphasis added).
Id. at 736 (internal citations and quotations omitted) (emphasis added).
Now to the merits of this appeal.
V.
A.
While it acknowledges that McClelland II held that Verbonitz is
precedential and held that relying only on hearsay at a preliminary hearing
violates a defendant’s due process rights, the Commonwealth contends that
McClelland II does not address the amount and type of hearsay that can
make out a prima facie case at a preliminary hearing. It argues that Rule 542
expressly permits hearsay to: (1) “be considered by the issuing authority in
determining whether a prima facie case”; and (2) “be sufficient to establish
any element of an offense, including, but not limited to, those requiring proof
of the ownership of, non-permitted use of, damage to, or value of property.”
Pa.R.Crim.P. 542(E).
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In this case, unlike in Verbonitz and McClelland II where no direct
evidence was adduced, the Commonwealth contends that because it
presented direct non-hearsay evidence at the preliminary hearing establishing
that a crime was committed, it can use hearsay evidence that Harris was the
person that committed the crime. This is so because the express language of
Rule 542(E) permits the use of hearsay evidence at a preliminary hearing to
establish some elements, just not all of them.
In addressing the Commonwealth’s contention, we first note the general
principles of a preliminary hearing. As we have recently explained:
The preliminary hearing is not a trial and serves the principal
function of protecting the accused’s right against an unlawful
arrest and detention. At a preliminary hearing, the
Commonwealth bears the burden of proving the prima facie case,
which is met when it produces evidence of each of the material
elements of the crime charged and establishes probable cause to
warrant the belief that the accused committed the offense. The
evidence supporting a prima facie case need not establish the
defendant’s guilt beyond a reasonable doubt, but must only
demonstrate that, if presented at trial and accepted as true, the
judge would be warranted in permitting the case to proceed to a
jury.
Commonwealth v. Wroten, 257 A.3d 734, 742 (Pa. 2021) (internal citations
and quotations omitted); see also Pa.R.Crim.P. 542(D) (“At the preliminary
hearing, the issuing authority shall determine from the evidence presented
whether there is a prima facie case that (1) an offense has been committed
and (2) the defendant has committed it.”).
As these principles show, the Commonwealth must present evidence
that, if presented at trial and accepted as true, establishes not only that a
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crime has been committed, but also that it was the defendant who committed
it. Fundamental due process limits the applicability of Rule 542(E) to the use
of other inadmissible hearsay evidence to matters that are not core elements
of the crime charged, or matters that are tangential to whether the defendant
was the one who committed the crime, such as evidence regarding the value
of the property for grading purposes, lab reports or other evidence that does
not materially affect the defendant’s due process rights. Furthermore,
hearsay evidence can be introduced to corroborate direct evidence regarding
an element of the crime or crimes charged.
B.
We also reject the Commonwealth’s argument that Rule 542(E) permits
it to establish any element of the charged offenses with hearsay once it
adduces non-hearsay evidence as to any element of the crime. The
Commonwealth simply asserts that subsection (E) expressly permits hearsay
to establish “any element” of a crime to make out a prima facie case,
essentially the same argument presented in McClelland II, only now the
Commonwealth is arguing that “any” in the phrase “shall be sufficient to
establish any element of an offense means” means “at least one” rather than
“all.”
Initially, we note that the Commonwealth’s position that due process
does not require direct evidence that the defendant was the person who
committed the crime as long as there was direct evidence that a crime had
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been committed is somewhat anomalous, given that it was the defendant that
was going to be bound for trial and subject to pre-trial detention.
Moreover, this position ignores that McClelland II found that expanded
Rule 542(E) does not allow hearsay evidence alone to establish all elements
of all crimes just because “any” was not limited in the rule. Id. at 734. In so
finding, the Supreme Court held that there were reasonable alternative
interpretations of the use of “any” in subsection (E) of the rule, especially
since that word was “delimited by the phrase ‘[h]earsay as provided by law
shall be considered’ contained in the first sentence of subsection (E).”
Id. It
found that phrase ambiguous, as it could interpreted to mean either (1)
“hearsay as defined by law, i.e., an out-of-court statement presented as
evidence of the truth of the matter asserted”; or (2) a limitation on the use of
hearsay meaning “‘contingent on’ or ‘subject to’ law[.]”
Id. at 735. After
making this analysis, the only thing the McClelland II Court could say for
sure about Rule 542(E) was that it is “intended to allow some use of hearsay.”
Id.
Following the McClelland II Court’s textual analysis of the rule, we hold
that nothing in Rule 542(E) prevents the application of Verbonitz requiring
that all the material elements of the criminal offense need to be proved at a
preliminary hearing by non-hearsay evidence. 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
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mere formality.” McClelland II, 233 A.3d at 736. The preliminary hearing
“seeks to prevent a person from being imprisoned or required to enter bail for
a crime … for a crime with which there is no evidence of [the
defendant’s] connection.” Id. (citation omitted) (emphasis added). To
interpret it any other way, the rule would violate a defendant’s constitutional
rights to due process.
What Rule 542(E) does permit is that otherwise inadmissible hearsay
evidence can be admitted that does not materially go to whether a crime has
been committed or that the person committed the crime. Such evidence
regarding the value of the property for grading purposes, lab reports and such
can be introduced because they do not materially affect the defendant’s due
process rights. Furthermore, hearsay evidence can be introduced to
corroborate direct evidence regarding an element of the crime or crimes
charged.
In this case, no direct evidence was offered that Harris committed the
crimes charged. Despite this, the Commonwealth was able to keep Harris in
pretrial incarceration for nearly a year-and-a-half, even though, based on our
review of the record, it has never been able to proceed to trial because it
would not be able to present the live in-person testimony of Stewart. While
mindful of the witness intimidation concerns raised by the Commonwealth,
those concerns cannot outweigh the defendant’s due process right at a
preliminary hearing to have the Commonwealth present legally competent
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evidence that a criminal offense was committed and that the defendant, in
fact, committed that offense.
VI.
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. By failing to do that in this case, the Commonwealth
violated Harris’s fundamental due process rights.8 Accordingly, we conclude
that the trial court did not err in granting the motion to quash all charges
against Harris.
Order affirmed. Harris discharged without prejudice.9
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8 Because our conclusion is based on fundamental due process under
Verbonitz and McClelland II, we need not address whether the
Commonwealth also violated Harris’s constitutional right to confrontation,
which he attempts to argue at the end of his brief. See Harris’s Brief at 21-
23.
9 “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).
The Commonwealth may refile the charges against Harris and proceed with a
new preliminary hearing, subject to the limitations discussed in this opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2022
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