Commonwealth v. McClelland

• Decision Date: 21 July 2020
• Docket Number: No. 2 WAP 2018,2 WAP 2018
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Donald J. MCCLELLAND, Appellant
• Court: Pennsylvania Supreme Court

233 A.3d 717

COMMONWEALTH of Pennsylvania, Appellee

v.Donald J. MCCLELLAND, Appellant

No. 2 WAP 2018

Supreme Court of Pennsylvania.

Argued: October 24, 2018

Decided: July 21, 2020

OPINION

JUSTICE DOUGHERTY

I. Background

In Commonwealth ex rel. Buchanan v. Verbonitz , 525 Pa. 413, 581 A.2d 172 (1990) (plurality) (" Verbonitz "), a five-Justice majority of this Court held hearsay evidence alone is insufficient to establish a prima facie case at a preliminary hearing. In the present case, a divided Superior Court recognized the Verbonitz holding, but did not follow it, despite acknowledging "the facts of Verbonitz are virtually indistinguishable from the case sub judice ." Commonwealth v. McClelland , 165 A.3d 19, 31 (Pa. Super. 2017). The Superior Court articulated five reasons for its departure from Verbonitz : (1) the Verbonitz Court did not agree on a single rationale to support its holding; (2) the Superior Court, in Commonwealth v. Ricker , 120 A.3d 349 (Pa. Super. 2015) (" Ricker I "), appeal dismissed as improvidently granted , 642 Pa. 367, 170 A.3d 494 (2017) (per curiam ) (" Ricker II "), rejected the position of the three-Justice Verbonitz plurality opining the presentation of hearsay violates confrontation rights; (3) the two-Justice Verbonitz minority relied on a substantive due process analysis contradicted by Albright v. Oliver , 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality); (4) Verbonitz was decided before the 2013 amendments to Pa.R.Crim.P. 542(E) ; and (5) there was no procedural due process violation here.

We accepted review of the following issue:

[W]hether the Superior Court panel failed to properly apply and follow the legal precedent set forth in Commonwealth ex rel. Buchanan v. Verbonitz , 525 Pa. 413, 581 A.2d 172, 174-76 (1990) in which five (5) Justices held that "fundamental due process requires that no adjudication be based solely on hearsay evidence."

Commonwealth v. McClelland , 645 Pa. 167, 179 A.3d 2 (2018) (per curiam ).

Upon careful review, we hold the Superior Court erred to the extent it concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing. Accordingly, we reverse the Superior Court's decision in this matter and disapprove the Superior Court's prior decision in Ricker I , which similarly concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing.

A. Verbonitz

In Verbonitz , the defendant (Buchanan) was arrested and charged with statutory rape, corruption of a minor and endangering the welfare of a child. At Buchanan's preliminary hearing, the seven-year-old female victim did not testify. Over defense objection, the Commonwealth presented the investigating officer who recounted what the victim told him about what Buchanan had allegedly done to her. On the basis of this hearsay alone, District Justice Edward Verbonitz determined a prima facie case had been established and bound the matter over for trial. Buchanan's subsequent writ of habeas corpus was denied by the trial court, the Superior Court denied Buchanan's petition for review, and this Court granted allowance of appeal. The issue upon which we granted review was whether hearsay evidence alone is sufficient to establish a prima facie case.

This Court reversed in a plurality decision. Verbonitz , 581 A.2d at 175. Justice Larsen wrote the lead opinion, joined by Justice Zappala and Justice Papadakos, which concluded the Commonwealth failed to establish a prima facie case because it relied on inadmissible hearsay rather than legally competent evidence. Id. at 174. The lead opinion also reasoned Buchanan's right to confront the witnesses against him, guaranteed by the Pennsylvania Constitution, was violated when he was bound over for trial solely on the basis of hearsay testimony. Id. at 174-75. Justice Flaherty wrote a concurring opinion, joined by Justice Cappy, which agreed hearsay evidence alone is insufficient to establish a prima facie case, but deemed this conclusion "to be a requirement of due process." Id. at 175 (Flaherty, J., concurring). In Justice Flaherty's view, deciding the matter on due process grounds made it unnecessary for the Court to discuss a defendant's confrontation rights. Id. at 176. Justice Flaherty explained, "[i]t is sufficient to hold that a prima facie case cannot be established at a preliminary hearing solely on the basis of hearsay testimony." Id. (emphasis omitted).

Accordingly, although Verbonitz was a plurality decision, a five-Justice majority of the Court concluded the presentation of hearsay evidence, without more, is insufficient to establish a prima facie case at a preliminary hearing. The five-Justice majority also agreed, in determining hearsay alone was insufficient to establish a prima facie case, that "fundamental due process requires that no adjudication be based solely on hearsay evidence." Id. at 174 (Larsen, J., lead opinion); id. at 176 (Flaherty, J., concurring).¹

B. Pennsylvania Rule of Criminal Procedure 542(E)

Paragraph (E) and the comments thereto were first promulgated by Order of January 27, 2011, and were amended by Order of April 25, 2013.² Initially, Paragraph (E) provided:

(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). At that time, the comment to the rule explained:

Paragraph (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 generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements enumerated in paragraph (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, the second sentence of Paragraph (E) was amended, and the rule currently reads 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, 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) (amending language emphasized). Concurrently, the comment to Paragraph (E) was also amended as follows:

Paragraph (E) was added to the rule amended in 2011 2013 to clarify 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. enumerated in Paragraph (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. 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.

Pa.R.Crim.P. 542 (E), cmt. (deletions shown by strikethrough, additions in bold).

C. Ricker

On July 2, 2014, Pennsylvania State Troopers Michael Trotta and Dana Gingerich were dispatched to David Edward Ricker's residence to investigate reports of a disturbance. Ricker engaged Trooper Trotta in an exchange of gunfire, witnessed by Trooper Gingerich. Trooper Trotta and Ricker shot each other multiple times, but each survived. Ricker was arrested and charged with attempted murder, assault of a law enforcement officer and aggravated assault. At Ricker's preliminary hearing, neither trooper testified. Instead, the lead investigator, Douglas A. Kelley, testified regarding his investigation of the charges and played an audiotape of his interview with Trooper Trotta for the court. Ricker objected to the use of this hearsay evidence and requested a continuance to call Trooper Trotta and Trooper Gingerich on his behalf. The court overruled the objection, denied the request for a continuance, and bound the matter over for trial.

Ricker filed a pre-trial writ of habeas corpus . Therein, he argued it was improper for the court to conclude a prima facie case was established based only on hearsay evidence. The writ was denied and the Superior Court permitted Ricker's interlocutory appeal. The Superior Court subsequently affirmed the order of the trial court. The panel first noted, although some non-hearsay evidence was presented at Ricker's preliminary hearing, "none of that evidence was sufficient to establish the elements of the crimes charged." Ricker I , 120 A.3d at 356. The panel found "the evidence used to meet the material elements of the crimes charged came from the taped statement of Trooper Trotta[,]" and thus, "hearsay alone was used to prove a prima facie case[.]" Id. The Superior Court further held " Rule 542(E) is not in conflict with any binding precedent." Id. at 357. The court held if hearsay evidence can establish one or more elements of a crime, "it follows that, under the rule, it is sufficient to...