Hearsay Enough for Preliminary Hearing? PA Court Leaves Question Unanswered

Filed under: Criminal Law by Contributor @ October 5, 2017

In August of 2015, the Pennsylvania Superior Court ruled in Commonwealth v. Ricker that prosecutors can sufficiently meet their burden of establishing a prima facie case through hearsay evidence alone at preliminary hearings. The purpose of a preliminary hearing is “not to establish guilt or innocence, but rather, to determine whether a prima facie case has been established.” The Superior Court decision gives prosecutors the ability to construct a case based solely on hearsay evidence at this initial stage of the court proceeding without giving defendants the opportunity to confront their accusers. This was a game-changer as Pennsylvania law had previously required that at least some of the evidence had to come from a source other than hearsay.

This decision was appealed to the Supreme Court of Pennsylvania. However, in a ruling handed down last week, the PA Supreme Court did not reach the controversial issue on appeal. Instead, the court ruled there was sufficient non-hearsay evidence in Ricker’s preliminary hearing to support the prima facie case.

In a concurring statement, Justice Saylor explained the decision to dismiss Ricker’s appeal, which was based on the determination that “the prosecution did not proceed, at [the] preliminary hearing, solely through hearsay.” Justice Saylor acknowledged the important need for the court to address this issue but determined that Ricker’s case was not a “suitable vehicle” to properly address it.

Defendant David Ricker shot Pennsylvania State Trooper Michael Trotta after a confrontation and was arrested for attempted murder, assault of a law enforcement officer, and aggravated assault. At his preliminary hearing, the prosecutor called the lead investigator as a witness. In his testimony, he described observing Officer Trotta’s gunshot wounds at the hospital, searching Ricker’s house, finding marijuana and eighty firearms. He also described the confrontation which led to Officer Trotta’s injury and played a recording of his interview with the officer at the hospital. Because this testimony was introduced without Officer Trotta present in court, the defendant had no opportunity to cross examine the injured officer’s statements.

Defendant Dave Ricker

However, Justice Saylor notes that the Commonwealth’s case also included evidence of the investigator’s own observations, as well. Such evidence included observing Officer Trotta’s wounds at the hospital and witnessing the injured defendant at the hospital who gave a statement admitting to possessing an assault rifle during the confrontation. The investigator also viewed the rifle at the scene of the incident. Additionally, the defendant offered a justification defense at the close of the hearing, conceding that the defendant shot the officer.

Addressing the issue of the right of confrontation, Justice Saylor criticizes the Superior Court for failing to “adequately address what it means to present a prima facie case in Pennsylvania” and how this standard differs from other jurisdictions. However, the court must first determine what is necessary for the Commonwealth to meet its burden of establishing a prima facie case before assessing the right of confrontation. This is because “the closer in resemblance a pretrial procedure is to a trial, the more likely it is that trial rights will attach.” Furthermore, he notes the deep division within the court on this matter.

The concurrence concludes by commenting on the change in Rule 542(E), which expanded the use of hearsay evidence. Justice Saylor “candidly” described his thoughts that the amendment to the rule “was not intended to convey that the Commonwealth could meet its burden at a preliminary hearing entirely through hearsay evidence.”

In a dissenting statement, Justice Wecht explains his belief that it would be “imprudent for us to decline to review here,” despite Ricker not being the optimal case. He characterizes “the crux of the prosecution’s case” as being based on inadmissible hearsay, and any “non-hearsay testimony was surplusage.” As such, it would have been appropriate to address the critical question before the court. Justice Wecht cautions of the dangers of allowing hearsay evidence to establish every element of the crime for purposes of the preliminary hearing.

Until the Pennsylvania Supreme Court decides to address the issue, the decision of the Superior Court controls. Pennsylvania courts will continue to await a case that properly presents the issue in a way that will invite review by the Supreme Court. As of now, all that is clear from Ricker is that this remains an unanswered and controversial question for Pennsylvania courts.

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