Does reliance on hearsay alone to establish a prima facie case at a criminal preliminary hearing violate due process?

Com. v. McClelland, 165 A.3d 19, allocatur granted January 11, 2018, appeal docket 2 WAP 2018 (majority) (dissent)

Criminal defendant McClelland was held for trial on charges of indecent assault, indecent exposure, and corruption of minors based solely on preliminary hearing testimony of a state trooper who (a) interviewed the parents of the 8 year old victim and learned details of what their daughter told them of the alleged assault, and (b) witnessed a Children’s Advocacy Center interview with the victim via a video link.  The trial court denied defendant’s motion for writ of habeas corpus to dismiss the charges on hearsay grounds, and Superior Court, after granting defendant’s interlocutory appeal, affirmed, deciding that hearsay testimony from an affiant does not violate due process even when hearsay alone established a prima facie case at a preliminary hearing.

The Superior Court majority reasoned that, although due process principles apply to the procedures which implement Pennsylvania’s statutory right to a preliminary hearing, reliance on hearsay testimony at a preliminary hearing does not violate due process because the preliminary hearing serves only a gatekeeping function:

In sum, Appellant fails to show that an individual subjected to a preliminary hearing, which is not constitutionally mandated, is entitled to “the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position-at trial and  on first appeal as of right.” [Commonwealth v. ] Turner, [80 A.3d 754 (Pa. 2013)] supra at 764. Just as a prisoner has a limited interest in post-conviction rights, so too does an accused have a limited interest in the preliminary hearing. The hearing serves a gatekeeping function only; defendants who face a preliminary hearing are not on the same footing as a defendant undergoing an actual trial, or pursuing an appeal as of right. Hence, we hold that the preliminary hearing procedure must simply provide adequate notice, the opportunity to beheard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case. Those criteria were satisfied in the present case.

Slip op. at 20-21.

The Superior Court majority distinguished Com. v. Verbonitz, 581 A.3d 172, 174-76 (Pa. 1990), which it characterized as a plurality opinion in which, on nearly identical facts, three justices found that sole reliance on hearsay violated confrontation rights, and two additional justices found that holding a defendant for a criminal trial based on pure hearsay violates due process.  As to Verbonitz’s right to confrontation, the Superior Court majority reasoned that Superior Court’s decision in Commonwealth v. Ricker, 120 A.3d 349 (Pa.Super. 2015), appeal granted, 135 A.3d 175 (Pa. 2016), upholding the 2013 amendment to Pa. R. Crim. P. 542 permitting the Commonwealth to establish, via hearsay, any element of an offense for purposes of determining whether a prima facie case has been established that the actor committed a criminal offense, superseded Verbonitz’s right to confrontation argument.  With respect to due process, the Superior Court majority found that Justice Flaherty’s concurring opinion statement in Verbonitz that “[f]undamental due process requires that no adjudication be based solely on hearsay evidence” did not apply because of the intervening rule change to Pa. R. Crim. P. 542 and because Justice Flaherty was relying on case law related to hearsay as the basis for final adjudications, not preliminary hearings.

Aware of the potential mischief that could be created by its decision, the Superior Court majority cautioned:

[W]e note that our holding is predicated on the facts, with consideration of Appellant’s ability to cross-examine the primary investigator. An extremely permissive reading of Rule 542(E) would mean that a prima facie case is always satisfied through the presentation of hearsay. As an extreme application, the Commonwealth could sustain its burden by presenting the testimony of a fellow prosecutor who spoke to a police officer, who had read a report, which stated that an  anonymous citizen called to report that a defendant committed a series of acts that met the material elements of some charged crime. This decision does not suggest that the Commonwealth may satisfy its burden by presenting the testimony of a mouthpiece parroting multiple levels of rank hearsay.

Slip op. at 24-25 (emphasis added).

Senior Judge Strassburger, in dissent, adopted Justice Flaherty’s reasoning from Verbonitz, and added:

Permitting the Commonwealth to present testimony only from the trooper investigating the case is the beginning of a path down a slippery slope. Certainly there are sensitivities involved in prosecuting claims of sexual assault on children, but the accused has rights as well. Accordingly, I respectfully dissent.

Slip op. at 2-3 (footnote omitted).

The Supreme Court granted allocatur.  The issue, slightly rephrased for clarity, is:

[W]hether the Superior Court panel failed to properly apply and follow the legal precedent set forth in Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.3d 172, 174-76 (Pa. 1990) in which five (5) Justices held that “fundamental due process requires that no adjudication be based solely on hearsay evidence.”

For more information, contact Kevin McKeon or Dennis Whitaker.