Use of Hearsay Evidence to Establish Defendant’s Identity at Preliminary Hearing
Commonwealth v. Harris, 269 A.3d 534 (Pa. Super. 2022), allocatur granted Oct. 4, 2022, appeal docket 31 EAP 2022
In this case, the Supreme Court will consider whether hearsay evidence of a defendant’s identity is sufficient to satisfy the Commonwealth’s burden at a preliminary hearing under Pennsylvania Rule of Criminal Procedure 542(E), which provides that “[h]earsay evidence shall be sufficient to establish any element of an offense[.]”
Superior Court summarized the relevant background as follows:
On March 23, 2017, around 7:50 p.m., Philadelphia Police Officer Ryan Waltman (Officer Waltman) received a radio call of a male gunshot victim near the 3100 block of North Patton Street. When he arrived, Officer Waltman found Stewart bleeding from gunshot wounds to his right wrists and left thigh. Stewart was taken to a nearby hospital. Around 9:10 p.m., Detective John Drudin (Detective Drudin) obtained a statement from Stewart about what happened. Stewart described that Harris and his brother, Rasheed Harris, confronted him about stealing drugs from them. During the confrontation, both men pulled out guns and began firing, striking Stewart twice as he ran away. Based on this information, Detective Drudin went to the crime scene and found multiple projectiles and fired cartridge casings.
He then went to his office and printed out photographs of Ronald Harris and Rasheed Harris. Detective Drudin returned to the hospital with the photographs. Stewart confirmed that the men in the photographs were the men who shot him.
The Commonwealth waited two years before finally filing its criminal complaint on May 9, 2019, at which time Harris was arrested and incarcerated for failing to post bail. In total, the Commonwealth charged Harris with eleven offenses: attempted murder, aggravated assault, intimidation, conspiracy to commit murder, possessing instruments of crime, simple assault, recklessly endangering another person, terroristic threats, and VUFA offenses 6105, 6106 and 6108.
Stewart did not show for the first two scheduled preliminary hearings. When he failed to show for the third, the Commonwealth went ahead with the hearing and called Officer Waltman and Detective Drudin. Officer Waltman testified about responding to the call and finding Stewart with two gunshot wounds. Detective Drudin, meanwhile, testified about finding the ballistics evidence at the scene of the shooting.
Through the detective’s testimony, the Commonwealth presented Stewart’s statement about the shooting and his photographic identification of Ronald Harris and Rasheed Harris as the men who shot him. Over Harris’s objections, the municipal court admitted the hearsay evidence. At the end of the hearing, Harris argued the Commonwealth failed to establish a prima facie case because it presented only hearsay that he was one of the shooters. The Commonwealth countered that hearsay evidence alone was enough under Ricker I. The municipal court agreed with the Commonwealth and held all charges for court except intimidation.
Slip op. at 3-4. Before the trial court, Harris filed a motion to quash all charges, which the trial court granted as to the attempted murder charge but denied as to the remaining charges. While the case was pending, the Pennsylvania Supreme Court decided Commonwealth v. McClelland, 233 A.3d 717 (2020) (McClelland II), which overruled Ricker I and held that Rule 542(E) “does not permit hearsay evidence alone to establish all elements of all crimes for purposes of establishing a prima facie case at a defendant’s preliminary hearing.” Slip op. at 5. Harris then filed a motion for reconsideration of his motion to quash, thereafter:
[a]t the hearing, the Commonwealth informed the trial court that homicide detectives had been unable to locate Stewart and, consequently, it would have to rely on the transcript of the preliminary hearing. Finding McClelland II applicable, the trial court granted the motion to quash all charges because “there is no admissible evidence here which connects [Harris] to the crimes for which he was charged.” Trial Court Opinion (TCO), 12/28/20, at 7.
Slip op. at 5. The Commonwealth appealed to Superior Court, arguing that the dismissal of Harris’s case was not supported by McClelland II, where no direct evidence was adduced, because in Harris’s case, the Commonwealth presented direct non-hearsay evidence at the preliminary hearing establishing that a crime was committed. Therefore, the Commonwealth argued, Rule 542(E) permits the use of hearsay evidence to establish that Harris was the person who committed the crime.
Superior Court affirmed the trial court’s dismissal of all charges, concluding that:
… the Commonwealth must present evidence that, if presented at trial and accepted as true, establishes not only that a crime has been committed, but also that it was the defendant who committed it. Fundamental due process limits the applicability of Rule 542(E) to the use of other inadmissible hearsay evidence to matters that are not core elements of the crime charged, or matters that are tangential to whether the defendant was the one who committed the crime, such as evidence regarding the value of the property for grading purposes, lab reports or other evidence that does not materially affect the defendant’s due process rights. Furthermore, hearsay evidence can be introduced to corroborate direct evidence regarding an element of the crime or crimes charged.
We also reject the Commonwealth’s argument that Rule 542(E) permits it to establish any element of the charged offenses with hearsay once it adduces non-hearsay evidence as to any element of the crime. The Commonwealth simply asserts that subsection (E) expressly permits hearsay to establish “any element” of a crime to make out a prima facie case, essentially the same argument presented in McClelland II, only now the Commonwealth is arguing that “any” in the phrase “shall be sufficient to establish any element of an offense means” means “at least one” rather than “all.”
Initially, we note that the Commonwealth’s position that due process does not require direct evidence that the defendant was the person who committed the crime as long as there was direct evidence that a crime had been committed is somewhat anomalous, given that it was the defendant that was going to be bound for trial and subject to pre-trial detention.
Moreover, this position ignores that McClelland II found that expanded Rule 542(E) does not allow hearsay evidence alone to establish all elements of all crimes just because “any” was not limited in the rule. Id. at 734. In so finding, the Supreme Court held that there were reasonable alternative interpretations of the use of “any” in subsection (E) of the rule, especially since that word was “delimited by the phrase ‘[h]earsay as provided by law shall be considered’ contained in the first sentence of subsection (E).” Id. It found that phrase ambiguous, as it could interpreted to mean either (1) “hearsay as defined by law, i.e., an out-of-court statement presented as evidence of the truth of the matter asserted”; or (2) a limitation on the use of hearsay meaning “ ‘contingent on’ or ‘subject to’ law[.]” Id. at 735. After making this analysis, the only thing the McClelland II Court could say for sure about Rule 542(E) was that it is “intended to allow some use of hearsay.” Id.
Following the McClelland II Court’s textual analysis of the rule, we hold that nothing in Rule 542(E) prevents the application of [Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990)] requiring that all the material elements of the criminal offense need to be proved at a preliminary hearing by non-hearsay evidence. While a preliminary hearing is not a trial and due process is a flexible concept, the hearing is still a critical stage in the proceedings that “is intended under Rule 542 to be more than a mere formality.” McClelland II, 233 A.3d at 736. The preliminary hearing “seeks to prevent a person from being imprisoned or required to enter bail for a crime … for a crime with which there is no evidence of [the defendant’s] connection.” Id. (citation omitted) (emphasis added). To interpret it any other way, the rule would violate a defendant’s constitutional rights to due process.
What Rule 542(E) does permit is that otherwise inadmissible hearsay evidence can be admitted that does not materially go to whether a crime has been committed or that the person committed the crime. Such evidence regarding the value of the property for grading purposes, lab reports and such can be introduced because they do not materially affect the defendant’s due process rights. Furthermore, hearsay evidence can be introduced to corroborate direct evidence regarding an element of the crime or crimes charged.
In this case, no direct evidence was offered that Harris committed the crimes charged. Despite this, the Commonwealth was able to keep Harris in pretrial incarceration for nearly a year-and-a-half, even though, based on our review of the record, it has never been able to proceed to trial because it would not be able to present the live in-person testimony of Stewart. While mindful of the witness intimidation concerns raised by the Commonwealth, those concerns cannot outweigh the defendant’s due process right at a preliminary hearing to have the Commonwealth present legally competent evidence that a criminal offense was committed and that the defendant, in fact, committed that offense.
Slip op. at 24-28 (emphasis in original).
The Pennsylvania Supreme Court will consider the following issue:
Whether the Commonwealth, based on constitutional or non-constitutional principles, is prohibited from proceeding to trial following a preliminary hearing where it presented non-hearsay evidence establishing elements of the crimes charged and established the defendant’s identity through hearsay evidence from officers who personally interviewed the shooting victim in the immediate aftermath of the crime and to whom the victim identified his shooters by name and in the photographs.