PA SUPERIOR COURT: Hearsay Enough for Prima Facie Case?

A three-member panel of the Pennsylvania Superior Court has upended the required evidence for proving a prima facie case at a preliminary hearing, holding in Commonwealth v. Ricker, 2015 WL 43810955, that a prima facie case at this stage in a criminal proceeding can be established solely based on hearsay.

Hearsay is an out-of-court statement used to prove the matter asserted. Generally, hearsay is excluded from legal proceedings because it is deemed unreliable, subject only to explicit and carefully defined exceptions (i.e. a “dying declaration” is admissible to prove the identity of the assailant and a “present sense impression” is admissible because statements made simultaneously as the information conveyed is perceived by the declarant is more likely to be accurate).   Hearsay not otherwise considered reliable is excluded because a fact-finder cannot assess the credibility of the declarant through her own perception. In other words, the prohibition of hearsay prevents “he said; she said” situations from being given too much undue credence.

However, hearsay is admissible at preliminary hearings in Pennsylvania. The preliminary hearing is an initial stage of the criminal adversarial process whereby the prosecution must prove that it has the specific evidence necessary, if later proved true beyond a reasonable doubt at trial before a jury, for the defendant to be convicted of the crime charged.   Preliminary hearings are held in front of a magisterial district judge, an elected position that does not require a law degree.

The admissibility or inadmissibility of hearsay in a criminal case is an especially important decision for the reliability of certain statements to be considered. As anyone who has ever sat for jury duty will note, one of the first questions a defense attorney or a prosecutor may ask is whether or not the potential juror will be especially swayed (for better or worse) by the testimony of a police officer. Preliminary hearings are generally considered to be prosecution-friendly, where the Commonwealth has a low burden. Nevertheless, the hearing serves an important role in holding the prosecution accountable.

This reality is what makes the intermediate appellate court’s decision in Ricker all the more alarming, and, perhaps, suspect. As the decision in Ricker stands, a prosecutor can in essence “phone it in” by having some different officer read the notes of the investigating officer, or worse yet, an officer provide his version of what the complaining witness said. There are absolutely no safeguards to such a system.

The underlying rationale in Ricker is based on an interpretation of Pa. R.Crimp.P. 542(E), recently amended in 2013, which permits the admission of hearsay. Specifically, Rule 542(E) allows that hearsay “shall be sufficient to establish any element of an offense.” However, this language cannot be read in a vacuum. It is situated beneath Rule 542(C), which provides defendants with a right to confront witnesses in the preliminary setting. The panel recognized as much, stating that “there does appear to be some tension” between the two sub-parts.  Nonetheless, the opinion’s author summarily dispensed with any further discussion, stating that the defendant failed to “explore[] this issue and, as noted, did not develop any argument relative” to the tension.

Contextually, while Rule 542(E) allows that hearsay may be used to establish “any element,” the language does not go so far as to say that all elements may be established through this form of evidence.   In fact, the decision appears to be in flat contradiction of a previous majority holding of the Pennsylvania Supreme Court, a decision which the Superior Court is bound to follow. In Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), a 5-member majority held that hearsay may not be the sole basis for the finding of a prima facie case. Other decisions of the Superior Court have recognized this as the state of the law. See, e.g. Commonwealth v. Fox, 619 A.2d 327, 332 (Pa. Super. 1993) (stating that “[t]he precise holding in Buchanan is that hearsay testimony alone is insufficient to establish a prima facie case at a preliminary hearing.”). The judges in Ricker declined to follow these precedent based on a theory that a rule amendment in 2013 superseded the older cases on the subject. However, the rule amendment specifically noted that hearsay was only admissible as provided by law. Thus, there is no legal support for the proposition that the law has been changed to permit hearsay to be the sole evidence at a Preliminary Hearing.

Furthermore, a decision upholding the notion that the entire prima facie case may be established solely through the use of hearsay eviscerates any occasion for the rule-based right to confront a witness. By use of hearsay, the prosecution may just introduce a police affidavit stating the alleged facts, and there would be no opportunity or ability for the defendant to respond. Because reading Rule 542(E) in isolation frustrates the right for the defendant to confront his or her accuser, it is respectfully suggested that it is an incorrect interpretation of the rule.

Although the defendant argued that his confrontational right to confront his accuser under the Constitution was violated, the panel rejected this argument.   The right to confront one’s accuser, as provided in the 6^th Amendment and incorporated against the states through the 14^th Amendment (and also, probably, under the Pennsylvania Constitution), is specifically a trial right. Its purpose is to give the defendant an opportunity to critique the accuser’s credibility and forthrightness in front of the jury.   This right is separate and apart from the rule-based right provided by the Pennsylvania Supreme Court through the promulgation of Rule 542(C).

The defendant did not argue that there was a due process violation under this interpretation. While the due process argument may have merit, a conclusion that there was a violation would require a court to find that the Pennsylvania Supreme Court promulgated an unconstitutional rule. This is an unlikely scenario in any event, as a Rule promulgated by the Supreme Court is presumptively considered constitutional and a trial court judge or lower appellate panel would tread carefully in deciding otherwise. The more likely scenario is that this panel decision will be overturned or confined to its facts, or, alternatively, that Rule 542 will be amended yet again for clarity.