Commonwealth v. Ricker

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2015 PA Super 153COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID EDWARD RICKER
Appellant No. 1693 MDA 2014
Appeal from the Order Entered October 1, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003601-2014
BEFORE: BOWES, DONOHUE AND ALLEN, JJ.
OPINION BY BOWES, J.: FILED JULY 17, 2015
David Edward Ricker appeals from the October 1, 2014 order denying
his pre-trial writ of habeas corpus. We affirm.
The Commonwealth charged Appellant with attempted murder, assault
of a law enforcement officer, and aggravated assault after he exchanged
gunfire with a Pennsylvania State Police trooper at Appellant’s residence.
Specifically, Trooper Michael Trotta had responded to a dispatch regarding
loud and fast driving on Green Hill Road in West Hanover Township. Trooper
Trotta drove the length of that road and, after turning around, observed a
small group of people standing by the roadway at the end of a driveway.
The trooper pulled over and the group directed him to a damaged mailbox
and a lawn ornament sign which had been run over by a light colored pickup
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truck. The group informed Trooper Trotta that they knew the individual who
struck the mailbox because he was their neighbor. They directed Trooper
Trotta to Appellant’s driveway.
Trooper Trotta then appeared at the entrance of Appellant’s gated
driveway in full uniform in an unmarked patrol car. The driveway was
approximately 100 yards long. Trooper Trotta pressed a call button at the
bottom of the driveway and saw a sport utility vehicle come to the top of the
driveway. Appellant’s wife exited that vehicle and walked down to the gate.
She initially refused to permit Trooper Trotta to enter. According to Trooper
Trotta, Appellant’s wife indicated that her husband was drunk and carried a
gun. Ultimately, however, Appellant’s wife opened the gate and waved
Trooper Trotta past her. He then drove his car to the top of the driveway.
Trooper Trotta saw Appellant walk towards his vehicle with a large
German Shepard. The trooper initially remained in his car. Trooper Trotta
told Appellant that his neighbors had reported that he sideswiped their
mailbox. Appellant became irate and belligerent at that point, and the
trooper was able to discern that Appellant’s eyes were bloodshot and his
breath smelled of an alcoholic beverage. Appellant demanded, in a profanity
laced manner, that Trooper Trotta get off his property. Appellant’s wife then
raised her voice at her husband, who struck his wife and threw her to the
side. Trooper Trotta asked Mrs. Ricker to take the dog and go inside, and he
attempted to exit his car. Appellant slammed the car door shut. Trooper
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Trotta also had drawn his taser. Appellant reached inside the car and
attempted to take the taser from the trooper. Appellant’s wife again
interceded, but Appellant continued to direct the trooper to leave. After
Trooper Trotta exited his vehicle, he saw Appellant remove a small gun from
the back of his pants. Appellant informed the officer that he had a permit to
carry and told Trooper Trotta to “get the fuck off my property.” Exhibit 1,
7/10/14, at 8.
Trooper Trotta drew his own weapon and instructed Appellant’s wife to
move away and go inside the house. Instead, she stepped in front of her
husband. Trooper Trotta called for backup and Appellant continued to wave
his firearm. Appellant then began to walk toward his home. Trooper Trotta
told him that he was under arrest and followed him. Appellant entered an
open three-car garage bay. Soon thereafter, a young female child exited the
home. Trooper Trotta directed her to go to her mother’s car away from the
area. By this time, another trooper, Trooper Dana Gingerich, had arrived
and was in the vicinity of that car.
Trooper Trotta next went around the front of the house while Trooper
Gingerich advised the police barracks to send a specialized unit similar to a
SWAT team. Trooper Trotta heard Trooper Gingerich yell to Appellant to
come out and let him see Appellant’s hands. Accordingly, Trooper Trotta ran
toward the yelling and came back to the garage bay. At this point, he saw
Appellant holding an assault rifle in his right hand and peering around the
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garage door toward Trooper Gingerich. Trooper Trotta demanded that
Appellant drop the weapon. According to Trooper Trotta, Appellant then
grabbed the front part of the rifle and began to level it at him. At that point,
Trooper Trotta opened fire, striking Appellant twice. Appellant hit the
ground and returned fire, hitting the trooper multiple times.
The case proceeded to a preliminary hearing. Trooper Trotta did not
testify nor did Trooper Gingerich. Instead, the lead investigator into the
incident, Trooper Douglas Kelley, testified regarding his investigation, and
played for the magisterial district court a tape of an interview with Trooper
Trotta. That tape outlined the facts set forth above. Appellant objected to
the use of the hearsay evidence and also requested a continuance to call
Troopers Trotta and Gingerich on his behalf. The court overruled the
objection, declined to continue the matter, and bound the case over for trial.
Appellant then filed a pre-trial writ of habeas corpus. Therein, Appellant
argued that it was improper to find a prima facie case against him based
entirely on hearsay evidence. The trial court denied the writ without a
hearing or the presentation of argument. This appeal ensued.
The trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. That same date, this Court
issued a rule to show cause why the appeal should not be quashed as an
interlocutory appeal. Appellant responded, and the issue was deferred to
this panel. The trial court also filed its Rule 1925(a) decision. The matter is
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now ready for our consideration. Appellant presents three issues for our
review.
A. Whether the court should hear this interlocutory appeal from
the denial of Appellant’s habeas corpus petition under the
“exceptional” or extraordinary” circumstances exception to
the general rule because it entails a matter of great public
interest, e.g., whether hearsay evidence alone may prove a
prima facie case at a preliminary hearing, an issue which is
likely to evade review because appellate review would not
normally occur until the criminal case was finally resolved?
B. Whether the Commonwealth may prove a prima facie case at
the preliminary hearing exclusively through hearsay evidence,
which is what the trial and magisterial district courts
concluded in Appellant’s case?
C. Whether Pa.R.Crim.P. 543(e), which provides that hearsay
evidence shall be sufficient to establish any element of an
offense, violates the state and federal constitutional
confrontation rights of defendants, including Appellant, as
well as long-standing Pennsylvania and U.S. Supreme Court
precedent?
Appellant’s brief at 5.
Preliminarily, we must determine whether we have jurisdiction over
this interlocutory appeal. Generally, the denial of a pre-trial writ of habeas
corpus based on a lack of sufficient prima facie evidence does not constitute
an appealable order. Commonwealth v. Hess, 414 A.2d 1043, 1047-1048
(Pa. 1980); see also Commonwealth v. Jackson, 849 A.2d 1254(Pa.Super. 2004). Where exceptional circumstances exist, an appeal from
such an interlocutory order may be considered. Hess, supra at 1047-1048
(“Although it has been deemed appropriate to permit immediate review by
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the court of common pleas of the finding of a prima facie case by the district
magistrate, a balancing of the further disruption of the trial process against
the harm to the accused weighs in favor of barring immediate appellate
review unless ‘exceptional circumstances’ are present.”).
Appellant argues that exceptional circumstances are present. First, he
notes that, should he be acquitted or convicted, the issue of whether
hearsay evidence alone may establish a prima facie case at a preliminary
hearing would become moot. Indeed, it is well-settled that errors at a
preliminary hearing regarding the sufficiency of the evidence are considered
harmless if the defendant is found guilty at trial. Commonwealth v.
Sanchez, 82 A.3d 943, 984 (Pa. 2013); Commonwealth v. Tyler, 587
A.2d 326 (Pa.Super. 1991). Thus, Appellant maintains that any challenge to
a procedure allowing hearsay evidence alone to establish a prima facie case
would be capable of repetition and likely to evade review if this Court were
to await a final order. Appellant, therefore, suggests that exceptional
circumstances exist.
In addition, Appellant submits that this matter involves an issue of
great public interest and the safeguarding of basic human rights. See
Commonwealth v. Bernhardt, 519 A.2d 417, 419 (Pa.Super. 1986). He
contends that whether it is constitutional to hold over a defendant for trial
based solely on hearsay evidence after the 2011 addition of Pa.R.Crim.P.
542(E) is an issue of first impression. Pa.R.Crim.P. 542(E) reads,
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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.
The Comment to the Rule also provides in pertinent part,
Paragraph (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
Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581
A.2d 172 (Pa. 1990) (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.
Comment to Pa.R.Crim.P. 542.
In Appellant’s view, the current procedural rule is unconstitutional
because it violates his federal and state confrontation rights. The
Commonwealth counters that no extraordinary circumstances exist because
Appellant will be afforded an opportunity to confront the witness against him
at trial. It maintains that Appellant was required to seek an interlocutory
appeal by permission and that this appeal should be quashed.
Initially, we note that exceptional circumstances are not automatically
created because an issue is capable of evading review. Indeed, every denial
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of a pre-trial habeas corpus motion that alleges insufficient evidence results
in an inability to review whether the Commonwealth established its prima
facie case, unless permission to appeal is granted. If the defendant is
acquitted, then no review is necessary. Further, if the defendant is found
guilty at trial or pleads guilty, then no prejudice exists. Thus, in order to
establish exceptional circumstances, more is required than the issue
becoming moot. We find that this case presents such a circumstance. Not
only is Appellant’s claim capable of evading review, it presents an important
constitutional question regarding whether a powerful state governmental
entity violates federal and state constitutional principles in allowing a
defendant to be restrained of his liberty and bound over for trial based solely
on hearsay evidence. Accordingly, we hold that, under the precise facts
herein, we have jurisdiction to consider the merits of Appellant’s substantive
claims.
As Appellant’s arguments for his second and third issues are
intertwined, we consider them together. Appellant begins by pointing out
that, after the filing of a criminal complaint or a grand jury presentment, a
defendant is entitled by Pennsylvania criminal procedural rule to a
preliminary hearing. In order for a case to be held for trial, the
Commonwealth is required to make a prima facie showing that each element
of the crimes charged is present and that the defendant committed the act
or acts in question. Commonwealth v. McBride, 595 A.2d 589, 591 (Pa.
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1991) (“In order to meet its burden at the preliminary hearing, the
Commonwealth is required to present evidence with regard to each of the
material elements of the charge and to establish sufficient probable cause to
warrant the belief that the accused committed the offense.”);
Commonwealth v. Mullen, 333 A.2d 755, 757 (Pa. 1975) (“[I]t is the
burden of the Commonwealth at a preliminary hearing to establish at least
prima facie that a crime has been committed and the accused is the one who
committed it.”).1
Prior to the promulgation of the applicable version of Rule 542(E),
hearsay evidence was admissible at a preliminary hearing, but several cases
indicated it could not solely be used to establish a prima facie case.
Commonwealth v. Carmody, 799 A.2d 143, 146 n.2 (Pa.Super. 2002)
(“[I]f the hearsay testimony offered at the preliminary hearing is the only
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1
Pennsylvania courts have used the terms “prima facie” and sufficient
“probable cause” interchangeably in the context of modern preliminary
hearings. Commonwealth v. Karetny, 880 A.2d 505, 514 (Pa. 2005) (“A
prima facie case exists when the Commonwealth 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.”);
Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003);
Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991);
Commonwealth v. Prado, 393 A.2d 8, 10 (Pa. 1978); Commonwealth ex
rel. Scolio v. Hess, 27 A.2d 705 (Pa.Super. 1942) (citing the early
Pennsylvania federal district court decision in United States v. Johns, 4
Dall. 412, 413 (1806)); but see Stewart v. Abraham, 275 F.3d 220 (3rd
Cir. 2001) (reasoning that the “prima facie” and “probable cause” standards
in Pennsylvania may not be identical).
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basis for establishing a prima facie case, it fails to meet the criteria for
evidence upon which the preliminary hearing judge may rely.”); Tyler,
supra at 328–29.
Appellant argues that this remains the law even considering Rule
542(E). Relying primarily on this Court’s footnote in Carmody, our opinion
in Tyler, and our Supreme Court’s plurality decision in Commonwealth ex
rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), Appellant asserts
that hearsay evidence alone cannot establish a prima facie case.
Continuing, Appellant avers that his state and federal confrontation clause
rights were infringed at the preliminary hearing because he was unable to
cross-examine Trooper Trotta.
Appellant has not alleged that his due process rights were infringed
because the magisterial district court violated Rule 542 to the extent it
denied him the opportunity to present non-character witnesses. However,
he does maintain that the court erred in declining to continue the case to
permit him to subpoena Trooper Trotta and Trooper Gingerich. This
argument, nevertheless, is undeveloped and was not included in his
statement of issues or in his 1925(b) statement of errors complained of on
appeal. Therefore, this latter argument is waived.
Appellant acknowledges that the Pennsylvania Supreme Court
promulgated the rule in question, but asserts that this fact is not dispositive
of whether the rule violates his confrontation rights. He adds that the
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comment to the rule even recognizes that the rule is in conflict with the
Pennsylvania Supreme Court’s plurality decision in Verbonitz. In
Appellant’s view, allowing hearsay evidence alone to establish a prima facie
case of criminal wrongdoing renders a preliminary hearing “an empty,
ceremonial formality in which the judge simply rubber stamps the uncross-
examinable testimony of the affiant[.]” Appellant’s brief at 40.
The Commonwealth responds that Rule 542(E) permits a magisterial
district judge to use hearsay evidence alone to find sufficient prima facie
evidence of a crime. It adds that the Pennsylvania Supreme Court enacted
the rule in question and therefore it should be presumed constitutional. The
Commonwealth further highlights that Verbonitz was a plurality decision in
which only three justices agreed that binding over a defendant for trial
based solely on hearsay violated the confrontation clause of the
Pennsylvania Constitution. It also points out that the Superior Court
decisions cited by Appellant were decided before the recent applicable
amendment to Rule 542.
Next, the Commonwealth posits that the court did not rely only on
hearsay evidence. It contends that evidence of the victim’s wounds, the
seizure of marijuana, and Appellant’s own statements were also introduced.
It submits that it presented testimony regarding the number of firearms
seized and that cartridge cases that had been recovered from a weapon
discharged at the scene. Finally, the Commonwealth argues that the right to
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confront witnesses against oneself is a trial right that does not apply at a
preliminary hearing.
We begin first with a determination of whether, in fact, hearsay
evidence alone was used to establish the elements of the crimes charged.
While the Commonwealth is correct that it introduced non-hearsay evidence
at the preliminary hearing, none of that evidence was sufficient to establish
the elements of the crimes charged. The seizure of weapons and marijuana
was immaterial to the charges. The fact that bullet casings were discovered
also is insufficient. Here, the evidence used to meet the material elements
of the crimes charged came from the taped statement of Trooper Trotta.
Thus, we agree with Appellant that hearsay alone was used to prove a prima
facie case of attempted murder, aggravated assault against a law
enforcement officer, and aggravated assault.
Having resolved that preliminary issue, we proceed to consider
whether Rule 542(E) and the use of hearsay evidence alone may establish a
prima facie case. In Carmody, the Commonwealth appealed to this Court
after the trial court granted in part the defendant’s pre-trial habeas corpus
motion. Therein, the defendant alleged that the magisterial district court
erred in finding a prima facie case as to simple assault, harassment, and
terroristic threats. Specifically, he averred that the district justice erred in
binding over the charges based only on hearsay evidence. The habeas court
concluded that sufficient evidence existed to establish prima facie evidence
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of simple assault and harassment. However, it determined that the
Commonwealth failed to prove a prima facie case of terroristic threats. The
hearsay evidence at issue were statements provided by the defendant’s
girlfriend to police. The girlfriend appeared at the preliminary hearing but
recanted her allegations. One of the officers who took a statement then
relayed her earlier account.
This Court held that the habeas court erred in determining that the
girlfriend’s prior inconsistent statement was inadmissible hearsay. Since the
girlfriend’s statement had been reduced to writing and signed, and the
parties were able to question her regarding her change in story, we held that
the habeas court erred. In a footnote, we opined that, while hearsay is
admissible at a preliminary hearing, it cannot be the only evidence used to
establish a prima facie case. The footnote was not necessary to the
disposition of the case since the hearsay in question was ultimately
determined not to be inadmissible hearsay. Accordingly, the Carmody
footnote is dicta.
That footnote relied on Tyler, supra. In Tyler, police arrested the
defendant after he sold crack cocaine to a confidential informant (“CI”). At
the preliminary hearing, the CI did not testify. Instead, over objection, the
Commonwealth introduced the CI’s statement via a police officer. The
defendant next requested to call the CI to testify at the hearing. The
Commonwealth objected, and the district justice refused to permit the
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defendant to call the CI. The defendant filed a writ of habeas corpus and a
motion to quash the information on the basis that the magistrate erred in
using hearsay evidence alone and declining to permit him to question the CI.
The trial court denied those motions, and a jury found the defendant guilty
of various drug charges.
On appeal, this Court initially ruled that because the jury determined
that Tyler was guilty beyond a reasonable doubt, it was immaterial if the
Commonwealth did not establish a prima facie case at the preliminary
hearing. The panel did note that the plurality decision in Verbonitz had set
forth that a prima facie case could not be met by hearsay evidence alone if it
would be inadmissible at trial. Nevertheless, it reasoned that Verbonitz did
not apply because non-hearsay evidence established the prima facie case
against Tyler, no trial occurred in Verbonitz, and, relatedly, Tyler did not
appeal after the denial of his habeas petition. The Tyler panel also cursorily
denied Tyler’s confrontation clause claim, citing Pennsylvania v. Ritchie,
480 U.S. 39 (1987) (plurality), and setting forth that the confrontation right
is a trial right. Thus, Tyler does not actually support Appellant’s hearsay or
constitutional positions.
Rule 542(E) is not in conflict with any binding precedent. A plain
reading of the rule indicates that it permits hearsay evidence to be
considered in determining any material element of a crime. Specifically, the
rule provides in relevant part, “Hearsay as provided by law shall be
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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.” Pa.R.Crim.P. 542(E)
(emphases added). If hearsay evidence is sufficient to establish one or
more elements of the crime, it follows that, under the rule, it is sufficient to
meet all of the elements. Accordingly, we find that the rule does allow
hearsay evidence alone to establish a prima facie case.
This conclusion, nonetheless, does not resolve the case. Appellant
also contends that the procedure herein violated his confrontation rights
under both the federal and state constitutions. Although Tyler summarily
denied a similar claim, in light of the United States Supreme Court’s
statements in Gerstein v. Pugh, 420 U.S. 103 (1975), which we will
discuss infra, and our Supreme Court’s plurality decision in Verbonitz, we
believe a more complete analysis of the claim is warranted.
The Pennsylvania Constitution provides in relevant part that, “In all
criminal prosecutions the accused hath a right . . . .to be confronted with the
witnesses against him[.]” Pa.Const. Art. I, § 9.2 Similarly, the Sixth
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2
The 1776 Pennsylvania Constitution set forth, in pertinent part, “That in all
prosecutions for criminal offences a man hath a right . . . . to be confronted
with the witnesses[.]” Pa.Const. Chapt. 1, § 9 (1776). The 1790
Constitution changed the wording slightly to read, “That, in all criminal
prosecutions, the accused hath a right . . . . to meet the witnesses face to
(Footnote Continued Next Page)
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Amendment reads, “In all criminal prosecutions, the accused shall enjoy the
right . . . . to be confronted with the witnesses against him[.]” U.S. Const.
Amend. VI.
When considering the Pennsylvania Constitution, “‘great regard should
be paid to spirit and intention’ and it is important to examine the ‘probable
intent of the makers.’” Commonwealth v. Rose, 81 A.3d 123,
127 (Pa.Super. 2013), allowance of appeal granted on other ground, 95
A.3d 274 (Pa. 2014) (emphases removed). In performing this examination,
we keep in mind that “[a] constitution is made, not particularly for the
inspection of lawyers, but for the inspection of the million, that they may
read and discern in it their rights and their duties; and it is consequently
expressed in the terms that are most familiar to them.” Monongahela
Navigation Co. v. Coons, 6 Watts & Serg. 101, 114 (Pa. 1843).
Thus, we construe words in their plain and natural meaning, unless the
words themselves denote a technical sense. Id. “Concomitantly, a
fundamental precept in interpreting our constitution is that the language
‘must be interpreted in its popular sense, as understood by the people when
they voted on its adoption. Our ultimate touchstone is the actual language
of the Constitution itself.’” Rose, supra at 127 (quoting Stilp v.
_______________________
(Footnote Continued)
face[.]” Pa.Const. Art. 9, § 9 (1790). The 1790 language was amended in
2003 to its current formulation.
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Commonwealth, 905 A.2d 918, 939 (Pa. 2006)). In short, we consider
“the original public meaning of the text at issue, giving due regard to both
its spirit and the intent of the framers of the clause.” Rose, supra at 127.
At the time of the ratification of the early Pennsylvania Constitutions,
preliminary hearings were held, but not constitutionally mandated. See e.g.
Commonwealth v. O'Brien, 124 A.2d 666, 669-671 (Pa.Super. 1956)
(discussing the Marian bail and committal statutes, which were in force in
Pennsylvania following the Declaration of Independence, and the history of
preliminary hearings). Preliminary hearings began in England to prevent
justices of the peace from indiscriminately releasing persons arrested for a
crime. See id. The initial purpose of early English preliminary hearings was
also for purposes of inquisition. That is, the justice of the peace would
examine the felony suspect and certify the results of that examination for
the court. Id. at 670; see also Crawford v. Washington, 124 S.Ct. 1354(2004). Information gleaned from these proceedings subsequently came to
be used in criminal trials, causing “frequent demands by the prisoner to
have his ‘accusers,’ i.e. the witnesses against him, brought before him face
to face.” Crawford, supra at 1359 (quoting 1 J. Stephen, History of the
Criminal Law of England 326 (1883)).
“Through a series of statutory and judicial reforms, English law
developed a right of confrontation that limited these abuses. For example,
treason statutes required witnesses to confront the accused ‘face to face’ at
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his arraignment.” Crawford, supra at 1361. Nonetheless, it was not until
1848 that English statutory law permitted an accused to confront or call
witnesses during a preliminary hearing proceeding. See Gary L. Anderson,
The Preliminary Hearing—Better Alternatives or More of the Same?, Missouri
L.Rev. Vol. 35, Issue 3, Summer 1970, at 284 n.13 (citing 1 W. Holdsworth,
History of English Law, 297 (5th Ed. 1931)) (hereinafter, “Anderson, The
Preliminary Hearing”).3
Early American preliminary hearings, it appears, were not inquisitorial
of the accused due to the prohibition against self-incrimination. See
Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.
Rev. 547, 750 n.574 (1999); see also Anderson, The Preliminary Hearing,
at 285 n.15; compare Ex Parte Schultz 1841 WL 3999, *3 (Pa. 1841)
(“In England, and perhaps in Pennsylvania, justices of the peace have
authority, in certain cases, to take inquisitions by the examination of
witnesses[.]”).
Rather, a committing magistrate was limited to determining whether a
crime was committed and whether the defendant was the culprit. See 5
Tucker’s Blackstone, 296 (Philadelphia, 1803) (“The justice, before whom
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3
It should be noted that English case law had, by 1791, applied a cross-
examination rule to testimony before a justice of the peace in felony cases
for purposes of usage at trial. See Crawford v. Washington, 124 S.Ct.
1354, 1361 (2004).
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such prisoner is brought, is bound immediately to examine the
circumstances of the crime alleged . . . . If upon this inquiry it manifestly
appears, either that no such crime was committed, or that the suspicion
entertained of the prisoner was wholly groundless, in such cases only it is
lawful totally to discharge him. Otherwise he must either be committed to
prison or give bail[.]”).
The typical practice at the time of the founding was for an affiant to
appear before a justice of the peace and be placed under oath. See
U.S.Const. Am. IV; Pa.Const. Chapt. 1, § 10 (1776); Pa.Const. Art. 9, § 10
(1790); William Waller Hening, The New Virginia Justice, 597 (Richmond, 2 nd
ed. 1810). Affiants were not ordinarily law enforcement officials, but the
victims. See Hening, supra at 80, 156, 161, 474 (providing sample
warrants for assault, burglary, arson, and rape in Virginia). The justice of
the peace would then determine if probable cause existed and issue a
warrant. Id. at 76, 80, 208; see also Commonwealth v. Green, 17 A.
878, 879 (Pa. 1889) (discussing later 19th century Pennsylvania practice). A
constable or sheriff would then be charged with placing the suspect under
arrest. Hening, supra at 72. Upon arresting the accused, the constable
would bring the suspect before a magistrate or justice of the peace who
would commit him to prison, provide for bail, or discharge the individual if
there was no probable cause to believe the accused committed the crime.
Gerstein, supra at 114 (citing 2 M. Hale, Pleas of the Crown, 77, 81, 95,
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121 (1736); 2 W. Hawkins, Pleas of the Crown, 116-117 (4th ed. 1762));
Green, supra.
A prisoner could seek relief via habeas corpus if he believed he was
being detained unlawfully. See Ex Parte Bollman, 4 Cranch 75 (1807). If
not granted the writ, a grand jury of the accused’s peers would determine
whether sufficient probable cause existed to warrant the case proceeding to
a jury trial. If the grand jury so concluded, a true bill would issue and the
defendant would then elect to go to trial or admit to the crimes.
The Pennsylvania legislature’s first significant foray into governing
preliminary hearings did not occur until 1915. That statute declared,
Hereafter, upon a preliminary hearing before a magistrate for
the purpose of determining whether a person charged with any
crime or misdemeanor against the laws, except murder,
manslaughter, arson, rape, mayhem, sodomy, buggery, robbery,
or burglary, ought to be committed for trial, the person accused,
and all persons on behalf of the person accused, shall be heard if
the person accused shall so demand.
Act of May 14, 1915, P.L. 499, 42 P.S. § 1080 (as cited by O’Brien, supra
at 671). Thus, relative to serious crimes outlined, an accused did not have a
right to be heard or to confront witnesses.4 See O’Brien, supra at 671.
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4
As of 1930, no state even mandated appointment of counsel for such a
preliminary hearing. Gary L. Anderson, The Preliminary Hearing—Better
Alternatives or More of the Same?, Missouri L.Rev. Vol. 35, Issue 3, Summer
1970, at 285 n.19. Concomitantly, fifteen states in 1930 required
confrontation of the witness and authorized cross-examination. Id. at 286
n.22. That number had risen to forty-two by 1969, with three of the eight
(Footnote Continued Next Page)
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Indeed, the O’Brien Court held that a defendant “has no constitutional right
to face his accusers at a preliminary hearing.” Id. at 674 (italics in original);
see also Commonwealth v. Burger, 171 A.2d 599, 602 (Pa.Super. 1961)
(“The defendant is not entitled, at a preliminary hearing, to be confronted
with all the Commonwealth witnesses and evidence.”).
Pursuant to Pa.R.Crim.P. 542(C), a defendant at a preliminary hearing
is entitled to counsel, to cross-examine witnesses, inspect physical evidence,
call non-character witnesses, and present his own evidence. Hence, the law
of the land in Pennsylvania provides a limited rule-based right to confront
witnesses at the preliminary hearing level.
In Verbonitz, supra, a majority of justices agreed that hearsay
evidence alone was insufficient to establish a prima facie case at a
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(Footnote Continued)
remaining states requiring witnesses to be examined in the presence of the
suspect. Id. Interestingly, by 1969, one year before the United States
Supreme Court in Coleman v. Alabama, 90 S.Ct. 1999 (1970), held that
counsel was required at a preliminary hearing, all but three states permitted
an accused to have counsel. Anderson, The Preliminary Hearing, supra at
285 n.18. The Supreme Court in Coleman v. Alabama, 90 S.Ct. 1999(1970), determined that a preliminary hearing is a “critical stage” of the
criminal prosecution and that counsel was therefore required. The dissent
by Chief Justice Burger agreed that, as a policy matter, counsel should be
afforded at such a hearing, but set forth that almost two centuries of
American practice refuted that it was constitutionally mandated. He opined
that, at the time of ratification of the federal constitution, the words
“criminal prosecution” did not include a preliminary hearing. Id. at 2010-
2011 (Burger, C.J., dissenting).
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preliminary hearing. Three justices based their rationale on a constitutional
confrontation right, whereas two justices grounded their decision on due
process.5 As noted, Appellant has not forwarded a due process argument.
In Verbonitz, police arrested the defendant and charged him with
statutory rape, corruption of a minor, and endangering the welfare of a
child. The victim was a seven-year-old-child. At the preliminary hearing,
the victim did not testify. The Commonwealth presented the victim’s
testimony through the investigating police officer. The defendant,
Buchanan, objected, but the objection was overruled. The Commonwealth
did not present any other evidence. The district justice bound the case over
for trial.
Buchanan filed a writ of habeas corpus and the Commonwealth
submitted the transcript of the preliminary hearing as the only evidence to
be considered. The trial court denied the motion and declined to certify the
case for purposes of permission to appeal an interlocutory order. Buchanan
sought review with the Pennsylvania Supreme Court, which transferred the
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5
Justice Larsen, joined by Justices Zappala and Papadakos, held that there
was a constitutional right to confrontation at a preliminary hearing. Justice
Flaherty, joined by Justice Cappy, opined that it was a violation of due
process to allow only hearsay evidence to satisfy the Commonwealth’s low
burden of proof at a preliminary hearing. Chief Justice Nix and Justice
McDermott dissented, both disagreeing with the plurality that a
constitutional right to confrontation existed at a preliminary hearing.
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case to this Court. After this Court denied his petition for review, our
Supreme Court granted allocatur.
The plurality opinion in Verbonitz opined that in order to establish 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 demonstrate the existence
of facts which connect the accused to the crime charged.” Verbonitz,
supra at 174.6 The lead opinion continued that the evidence in question
was inadmissible hearsay and therefore not legally competent evidence.
The plurality asserted, “[a]dditionally, a criminal defendant has a right
to confront and cross-examine the witnesses against him: this right being
secured by the United States Constitution; the Pennsylvania Constitution;
and the Pennsylvania Rules of Criminal Procedure.” Id. (footnotes omitted).
In support, it relied on Coleman, supra and Gerstein, supra. The plurality
concluded that because a preliminary hearing is a critical stage of a criminal
proceeding, and Gerstein inferred a right to confront witnesses at such a
hearing, the United States Constitution guaranteed a right to confront
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6
The citation to Commonwealth v. Shain, 426 A.2d 589 (Pa. 1981), is
somewhat curious because its reference to legally competent evidence
therein pertained to trial. Shain had no bearing on a preliminary hearing
proceeding.
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witnesses at a preliminary hearing. It also construed the term “criminal
prosecutions” in the Pennsylvania Constitution as encompassing a
preliminary hearing, thus providing for a right to confront witnesses. Since
the defendant was not afforded an opportunity to cross-examine the child
victim, it discharged the defendant. The Verbonitz Court undertook no
significant detailed confrontation clause analysis.
Justice Flaherty in his concurring opinion agreed with the plurality that
the defendant should be discharged. However, he reasoned that this was
required by due process. Relying on one of his own prior concurring
decisions, he set forth, “fundamental due process requires that no
adjudication be based solely on hearsay evidence.” Verbonitz, supra at
176 (Flaherty, J., concurring). He concluded that because the hearsay
statement would not have been admissible at trial, and it was the only
evidence introduced at the preliminary hearing, Buchanan was entitled to be
discharged.
The comment to Rule 542 recognizes the tension between the rule and
Verbonitz decision. That case, nonetheless, is not binding and is valuable
only insofar as its rationale can be found persuasive. The same is true of
the United States Supreme Court decision in Gerstein, supra as it relates to
the present issue. In Gerstein, the question before the High Court was
whether the Fourth Amendment required a “judicial determination of
probable cause for pretrial restraint of liberty.” Gerstein, supra at 105.
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The case arose out of Florida. Under Florida procedure, the defendants were
arrested and charged by criminal information. At the time, Florida law
permitted a prosecutor to charge an individual with a crime via criminal
information without a prior preliminary hearing. Statutory law and case law
in Florida also combined to allow a person to be “detained for a substantial
period solely on the decision of a prosecutor.” Id. at 106.
The Gerstein Court held that “the Fourth Amendment requires a
judicial determination of probable cause as a prerequisite to extended
restraint of liberty following arrest.” Id. at 114. In dicta, the Court added
that where a state uses a full preliminary hearing, similar to Pennsylvania’s
current procedure, to meet this probable cause standard, “[t]he importance
of the issue to both the State and the accused justifies the presentation of
witnesses and full exploration of their testimony on cross-examination.” Id.
at 120. The High Court added that, where the probable cause determination
was made at a less than full preliminary hearing,
This is not to say that confrontation and cross-examination
might not enhance the reliability of probable cause
determinations in some cases. In most cases, however, their
value would be too slight to justify holding, as a matter of
constitutional principle, that these formalities and safeguards
designed for trial must also be employed in making the Fourth
Amendment determination of probable cause.
Id. at 122. Gerstein, therefore, suggests but does not hold that a federal
constitutional right to confront witnesses exists at the type of preliminary
hearing used in Pennsylvania.
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After review of 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 confrontation
clauses, we find that an accused does not have the right to confront the
witnesses against him at his preliminary hearing under those provisions.7
See Tyler, supra; O’Brien, supra; Burger, supra; see also McCullough
v. Commonwealth, 67 Pa. 30 (1870) (asserting that the right to meet
witnesses face-to-face attached after a true bill was found by a grand jury);
compare also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality
opinion) (“[T]he right to confrontation is a trial right.”); Barber v. Page,
390 U.S. 719, 725 (1968); (“The right to confrontation is basically a trial
right.”); cf. Crawford, supra at 68 (Confrontation Clause precludes
introduction at trial of testimony from a preliminary hearing unless there was
a prior opportunity to cross-examine the original declarant of the
statements).8
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7
Since Appellant does not argue the position, we do not decide the distinct
question of whether there exists a constitutional due process right to
confront witnesses because Rule 542(C) authorizes limited confrontation
rights.
8
Our conclusion is consistent with a large body of other precedent. State v.
Lopez, 314 P.3d 236 (N.M. 2013); State v. Randolph, 933 A.2d 1158,
1191 n.15 (Conn. 2007); Blevins v. Tihonovich, 728 P.2d 732, 734 (Colo.
1986); State v. Sherry, 667 P.2d 367, 376 (Kan. 1983) (“There is no
constitutional right to allow the accused to confront witnesses against him at
(Footnote Continued Next Page)
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We also note that it is presumed that a state legislature, when
enacting law, acts constitutionally. Commonwealth v. Swinehart, 664
A.2d 957 (Pa. 1995). We agree with the Commonwealth that no less of a
standard applies when it is our High Court that promulgates a rule of
procedure.9 This is not to say that the Pennsylvania Supreme Court could
not pass an unconstitutional rule; only that there is a strong presumption
against it.
We acknowledge that one of the primary harms sought to be
remedied by the federal and Pennsylvania confrontation clause was the
English practice of using statements taken pre-trial to establish guilt at trial
without affording the accused an opportunity to cross-examine the witness.
Thus, the very reason for the constitutional right was because an accused
could not confront those witnesses during the earlier proceedings. The
constitutional right, therefore, offered the protection of ensuring the right to
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(Footnote Continued)
the preliminary hearing.”); Sheriff v. Witzenburg, 145 P.3d 1002, 1005
(Nev. 2006); State v. Woinarowicz, 720 N.W.2d 635, 641 (N.D. 2006)
(“right to confrontation is a trial right, which does not apply to pretrial
suppression hearings”); State v. Jones, 259 S.E.2d 120, 122 (S.C. 1979);
Wilson v. State, 655 P.2d 1246, 1250 (Wyo. 1982) (“The use of hearsay
testimony to establish probable cause at a preliminary hearing is practically
a universally approved practice.”).
9
The Pennsylvania Supreme Court’s power to prescribe rules is limited to
those that do not abridge, enlarge, or modify substantive rights. Pa.Const.
Art. V, § 10(c). Appellant does not allege that the rule abridges any other
substantive right than his confrontation rights.
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confront the witness at his trial. Appellant has not provided, nor have we
been able to uncover, any binding precedent that constitutionally mandates
an accused be afforded the opportunity to confront and cross-examine a
witness against him at a preliminary hearing based on the federal or state
confrontation clause.
Moreover, at the time of the ratification of the federal and early
Pennsylvania Constitutions, the phrase “criminal prosecutions” did not
encompass a preliminary hearing. It is beyond cavil that an accused did not
have a constitutional right to confront witnesses at a grand jury proceeding,
which occurred after the preliminary hearing. See McCullough, supra; cf.
Respublica v. Shaffer, 1 U.S. 236 (Pa.Ct. Oyer and Terminer 1788) (Chief
Justice McKean opining that a defendant does not have right to call
witnesses before a grand jury). A grand jury was considered a bulwark of
liberty by those who framed the early constitutions, but it was not
considered part of the criminal prosecution for purposes of the Sixth
Amendment. It would be incongruous to find that the phrase “criminal
prosecution” did not encompass the constitutionally-required grand jury
proceeding, but did include the earlier non-constitutionally-mandated
preliminary hearing proceeding.
In Ex Parte Bollman, supra, Chief Justice John Marshall, writing
while on circuit, permitted the use of an affidavit during a pre-trial
proceeding. He opined,
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To decide that an affidavit made before one magistrate would
not justify a commitment by another, might in many cases be
productive of great inconvenience, and does not appear
susceptible of abuse if the verity of the certificate be established.
Such an affidavit seems admissible on the principle that before
the accused is put upon his trial all the proceedings are ex parte.
Bollman, supra at 129-130. That same year, Justice Bushrod Washington,
also on circuit, declared that cross-examination of a prosecution’s witness at
a bind-over proceeding was “certainly improper.” United States v. White,
28 F. Cas. 588, 588 (C.C. Pa. 1807); see also In re Bates, 2 F.Cas. 1015,
1018 (D.C.S.C. 1858) (“[T]hese constitutional rights, which are supposed to
be invaded by this construction, are rights which are not contemplated by
the constitution in connection with preliminary proceedings; that the
privilege of confronting the witness is a privilege which pertains to the trial
in court; that it does not extend to all periods in the proceeding, is manifest
in the fact that it cannot be claimed before the grand jury: a period, when, if
allowed, it would be far more available for the accused than in the
preliminary proceedings before the magistrate.”).
Hence, the probable intent of the makers of the respective
confrontation clauses and the original meaning placed on the text by those
who ratified the provisions in question did not constitutionally guarantee a
right to confront witnesses before trial. Appellant’s confrontation clause
arguments, therefore, fail. We add that we are cognizant that there does
appear to be some tension between Rule 542(C) and 542(E) since
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defendants do have a rule-based right to confront witnesses and call
witnesses on their own behalf to refute the Commonwealth’s prima facie
evidence. Appellant has not explored this issue and, as noted, did not
develop any argument relative to the district justice’s decision not to permit
him to call Trooper Trotta or Trooper Gingerich. Thus, we do not opine on
those matters. For all of the aforementioned reasons, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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