[J-78-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 2 WAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court entered May 26, 2017 at No.
: 633 WDA 2016, affirming the Order of
v. : the Court of Common Pleas of Erie
: County entered April 4, 2016 at No.
: CP-25-CR-0003575-2015.
DONALD J. MCCLELLAND, :
: ARGUED: October 24, 2018
Appellant :
OPINION
JUSTICE DOUGHERTY DECIDED: JULY 21, 2020
I. Background
In Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 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, 170 A.3d 494 (Pa. 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 (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,
581 A.2d 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.”
Commonwealth v. McClelland, 179 A.3d 2 (Pa. 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
[J-78-2018] - 2
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
[J-78-2018] - 3
“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,
1 Chief Justice Nix wrote a dissenting opinion, joined by Justice McDermott, opining the
right to confront witnesses is not afforded to defendants at the preliminary hearing stage,
and to afford Buchanan such a right “conflicts with the overriding interest this
Commonwealth has shown in protecting child-witnesses in abuse cases.” Verbonitz, 581
A.2d at 177 (Nix, C.J., dissenting). Justice McDermott also wrote a brief dissenting
opinion, stating a preliminary hearing is not a trial in any sense of the word, and the
majority’s view would “make the first level of judicial process the final one.” Id. at 177
(McDermott, J., dissenting).
2 We view Paragraph (E) in the context of Paragraph (D), which provides, “At the
preliminary hearing, the issuing authority shall determine from the evidence presented
whether there is a prima facie case that (1) an offense has been committed and (2) the
defendant has committed it.” Pa.R.Crim.P. 542(D). Additionally, Paragraph (C) of the
Rule provides a defendant shall be present at a preliminary hearing except as otherwise
provided in the rules, “and may: (1) be represented by counsel; (2) cross-examine
witnesses and inspect physical evidence offered against the defendant; (3) call witnesses
on the defendant’s behalf, other than witnesses to the defendant’s good reputation only;
(4) offer evidence on the defendant’s own behalf, and testify; and (5) make written notes
of the proceedings, or have counsel do so, or make a stenographic, mechanical or
electronic record of the proceedings.” Pa.R.Crim.P. 542(C).
[J-78-2018] - 4
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
[J-78-2018] - 5
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 meet all of the elements.” Id. (emphasis
added). Thus, the court concluded the rule allows “hearsay evidence alone to establish
a prima facie case.” Id.3
3In a footnote, the court observed “Pennsylvania courts have used the terms ‘prima facie’
and sufficient ‘probable cause’ interchangeably in the context of modern preliminary
hearings.” Ricker I, 120 A.2d at 355 n.1. Although not at issue in this case, we agree
[J-78-2018] - 6
Noting its conclusion did not resolve the case, the court considered Ricker’s claim
that the preliminary hearing procedure violated his confrontation rights under the United
States and Pennsylvania Constitutions. The court reviewed “the historical underpinnings
of the preliminary hearing, the reasons for the creation of the Pennsylvania and federal
confrontation clauses, and the original public meaning of the respective confrontation
clauses,” and ultimately concluded it could find no “binding precedent that constitutionally
mandates an accused be afforded the opportunity to confront and cross-examine a
witness against him at a preliminary hearing based on the federal or state confrontation
clause.” Id. at 362-63. Additionally, the court noted Ricker “has not alleged that his due
process rights were infringed[.]” Id. at 355.
Regarding Verbonitz, the court correctly observed “a majority of justices agreed
that hearsay evidence alone was insufficient to establish a prima facie case at a
preliminary hearing.” Id. at 360. The court then noted, “[t]hree justices based their
rationale on a constitutional confrontation right, whereas two justices grounded their
decision on due process.” Id. Acknowledging “[t]he comment to Rule 542 recognizes the
tension between the rule and Verbonitz[,]” the panel nevertheless determined Verbonitz
“is not binding and is valuable only insofar as its rationale can be found persuasive.” Id.
at 361.
This Court initially granted allowance of appeal in Ricker to consider whether “a
defendant does not have a state and federal constitutional right to confront the witness
against him at a preliminary hearing” and whether “a prima facie case may be proven by
the Commonwealth through hearsay evidence alone[?]” Commonwealth v. Ricker, 135
with Chief Justice Saylor’s salient observation (in the context of discussing confrontation
rights), “[d]efining the prima facie standard is not without its complications, particularly
given the varying expressions of this Court.” Ricker II, 170 A.3d at 503 (Saylor, C.J.,
concurring).
[J-78-2018] - 7
A.3d 175 (Pa. 2016) (per curiam). Ultimately, however, as noted, this Court dismissed
the appeal as improvidently granted. Ricker II, 170 A.3d at 494.
D. McClelland
The present appeal arises out of a criminal complaint filed by State Trooper
Christopher Wingard, which accused appellant, Donald J. McClelland, of committing
indecent assault, indecent exposure and corruption of minors against A.T., an eight-year-
old child. Specifically, the complaint provided that, on August 3, 2015, A.T.’s parents
reported to State Police that A.T. told them McClelland touched her face with his penis
several months earlier. A.T. later provided additional details about the incident during an
interview with a Children’s Advocacy Center specialist, which led to the criminal charges.
Relevant to the present appeal, the Commonwealth called Trooper Wingard as its sole
witness at the preliminary hearing. Specifically, Trooper Wingard explained that he
personally witnessed A.T.’s interview with the child specialist via a video link, and he
recounted the contents of the interview to the magistrate, who bound the charges over
for trial. McClelland filed a motion seeking a writ of habeas corpus, arguing that allowing
the case to proceed to trial based solely on hearsay evidence violated his rights to
confrontation and due process under the Pennsylvania and United States Constitutions.
The trial court denied the motion, and McClelland filed an interlocutory appeal to the
Superior Court, which that court permitted.4
The Superior Court affirmed. McClelland, 165 A.3d at 33. The court initially noted
Ricker held the text of Rule 542(E) permits hearsay evidence to establish “any” element
of an offense during a preliminary hearing and the rule does not violate a criminal
4The Superior Court determined it had jurisdiction because “extraordinary circumstances”
existed to justify accepting the interlocutory appeal in Ricker I, and “the issue presented
herein directly addresses an issue explicitly unresolved by Ricker[I;]” i.e., whether
permitting hearsay alone to establish a prima facie case at a preliminary hearing violates
notions of due process. McClelland, 165 A.3d at 22-23.
[J-78-2018] - 8
defendant’s state or federal constitutional right to confront witnesses. Id. at 22. The court
explained Ricker left unresolved the question of “whether notions of due process would
require a different result.” Id. In addressing that issue, the court first considered the
threshold question of whether due process protections apply to preliminary hearings,
given that preliminary hearings are purely statutory in nature. The court observed,
although there is no constitutional right to a preliminary hearing, the Commonwealth
elected to act in this field by amending Article I, Section 10 of the Pennsylvania
Constitution to permit prosecutions to be initiated by the filing of criminal informations,
and 42 Pa.C.S. §8931(b) later provided the statutory authorization giving effect to the
amendment. The court noted these actions prompted our Court to promulgate “rules
governing the initiation of criminal charges, including Rule 542 and its hearsay provision,”
and triggered the application of due process protections to the procedures implementing
the statutory right to a preliminary hearing. Id. at 26.
Next, noting appellant did not specify whether he was raising a procedural or a
substantive due process claim, the court considered each type of due process and found
substantive due process to be inapplicable, requiring the claim to be analyzed under the
rubric of procedural due process. Specifically, the court emphasized that substantive due
process under the Fourteenth Amendment to the United States Constitution “‘requires
state criminal trials to provide defendants with protections implicit in the concept of
ordered liberty.’” Id. at 27, quoting Danforth v. Minnesota, 552 U.S. 264, 270 (2008)
(emphasis omitted). As the United States Constitution does not require the United States
government to hold a preliminary hearing for criminal defendants, the court reasoned the
right to a preliminary hearing was not “implicit in the concept of ordered liberty,” and, thus,
it concluded substantive due process does not apply. Id. at 28, citing Albright, supra
[J-78-2018] - 9
(majority of the Court finding no substantive due process right to be free from criminal
prosecution except upon probable cause).
Having determined the “appeal sounds in procedural due process[,]” the court next
examined whether the procedures afforded to appellant in connection with his preliminary
hearing were sufficient. Id. at 29. In so doing, the court noted the government may not
deprive individuals of life, liberty, or property without due process, including, inter alia,
“‘adequate notice, the opportunity to be heard, and the chance to defend oneself before
a fair and impartial tribunal having jurisdiction over the case.’” Id., quoting Commonwealth
v. Turner, 80 A.3d 754, 764 (Pa. 2013). The court observed appellant “failed to specify
what interest is at stake[,]” but construed his argument as alleging “the supplied procedure
is ‘fundamentally inadequate to vindicate’ his rule-based right to confront” the witnesses
against him “since the Commonwealth can elect to render it meaningless” by relying
solely on the presentation of hearsay evidence. Id. at 29-30. The court went on to reject
this argument, emphasizing that, in reality, appellant’s concern centered on his inability
to test witness credibility, which the court opined is irrelevant at a preliminary hearing
because cross-examination does not enhance the reliability of the prima facie
determination. Moreover, the court mused, even assuming the trial court erred in
admitting the hearsay evidence, the error would be irrelevant if appellant were found guilty
beyond a reasonable doubt at trial, and it would not lead to a permanent loss of liberty if
he were acquitted. Accordingly, the court concluded appellant’s procedural due process
rights were not violated, as he failed to demonstrate that defendants subjected to a
preliminary hearing are entitled to procedural due process protections beyond notice, the
opportunity to be heard, and the chance to defend themselves before a fair and impartial
jury, all of which were provided in this case.
[J-78-2018] - 10
The court also addressed appellant’s argument based upon Justice Flaherty’s
concurring opinion in Verbonitz, which opined the hearsay statement of a police officer
was insufficient by itself to establish a prima facie case because it violated notions of due
process. The court interpreted Justice Flaherty’s concurrence as expressing a view that
“due process requires an adversarial probable cause determination in order to hold a
person for trial,” which the court characterized as sounding in substantive due process.
McClelland, 165 A.3d at 31. Citing Albright, supra, the court again noted the United States
Supreme Court has rejected the notion that substantive due process extends to
preliminary hearings, and it explained that, in any event, the preliminary hearing is not a
final adjudication of “life, death, liberty, and property[.]” Id. While the court acknowledged
“significant liberty restraints may result from requiring an individual to stand trial,” it
highlighted that “[t]he Fourth Amendment, not due process, applies to those pretrial
restraints.” Id. at 32. The court further noted Verbonitz was decided prior to the
amendments to Rule 542, and, thus, it observed that Justice Flaherty’s concurrence
“could not account for later changes to that procedure.” Id.
In light of the foregoing, the court concluded appellant’s due process rights were
not violated. However, the court emphasized its decision was “predicated on the facts,
with consideration of [a]ppellant’s ability to cross-examine the primary investigator.” Id.
The court noted appellant was able to cross-examine the investigator, who witnessed
A.T.’s interview, regarding the circumstances of that statement, and appellant “was free
to challenge the plausibility and reliability of the hearsay when addressing the prima facie
question.” Id. The court stressed its decision “does not suggest that the Commonwealth
may satisfy its burden by presenting the testimony of a mouthpiece parroting multiple
levels of rank hearsay[,]” clarifying “there is no reason to think that magistrates do not
already apply the similar Fourth Amendment probable cause standard used in other
[J-78-2018] - 11
contexts where decisions are made on the basis of hearsay.” Id. at 32-33, citing
Commonwealth v. Smith, 784 A.2d 182 (Pa. Super. 2001) (probable cause determination
for issuance of search warrant permits consideration of the basis of knowledge of persons
supplying hearsay and various indicia of reliability and unreliability).
Judge Strassburger dissented, opining that procedural “due process requires the
Commonwealth to produce something more than just hearsay at a preliminary hearing[.]”
Id. at 33. (Strassburger, J., dissenting). In reaching this conclusion, Judge Strassburger
first considered the liberty interests at stake and observed that, although the only restraint
on liberty in the instant case was requiring appellant to stand trial, the liberty interest
implicated in other similar cases may be more substantial, such as where a defendant is
held without bail or cannot afford bail. Judge Strassburger contemplated the sufficiency
of the procedure afforded to appellant and agreed squarely with the position advanced in
Justice Flaherty’s concurring opinion in Verbonitz that a “‘prima facie case cannot be
established at a preliminary hearing solely on the basis of hearsay testimony.’” Id. at 34,
quoting Verbonitz, 581 A.2d at 175 (Flaherty, J., concurring). Highlighting the fact that,
in the instant case, Trooper Wingard gave hearsay testimony regarding what he heard
the victim tell the Child Advocacy Center interviewer, rather than testifying regarding his
own interview with the victim, Judge Strassburger concluded appellant’s due process
rights were violated, and he cautioned that “[p]ermitting the Commonwealth to present
testimony only from the trooper investigating this case is the beginning of a path down a
slippery slope.” Id.
II. Arguments
A. Appellant
Appellant’s bedrock assertion is that the five-Justice Verbonitz holding — that
hearsay alone is insufficient to establish a prima facie case at a preliminary hearing — is
[J-78-2018] - 12
binding precedential authority from this Court, which the Superior Court had neither the
prerogative to ignore nor the power to overrule. Appellant begins by quoting the Verbonitz
Court’s statement of the issue upon which it granted review: “‘The issue presented in this
case is whether hearsay testimony presented at a preliminary hearing regarding a victim’s
account of an alleged criminal incident, which is the sole evidence presented by the
Commonwealth, is sufficient to establish a prima facie case.’” Appellant’s Brief at 9-10,
quoting Verbonitz, 581 A.2d at 173. Appellant advances that “[i]n the lead and concurring
opinions, a majority of the Court, five (5) Justices, held that the trial court erred by
permitting a prima facie case to be based solely on victim hearsay,” and consequently,
the Vebonitz Court ordered “‘the charges . . . dismissed and the appellant . . . discharged.’”
Id. at 10, quoting Verbonitz, 581 A.2d at 175.
Appellant asserts the Verbonitz holding was not dicta but an “‘actual
determination[] in respect to litigated and necessarily decided questions[.]’” Id., quoting
In re L.J., 79 A.3d 1073, 1081 (Pa. 2013) (additional bracketed text omitted). Appellant
claims, moreover, that in cases where no majority rationale exists for a decision of this
Court, the result of the decision is nevertheless precedential. Id. at 11, citing, e.g.,
Commonwealth v. Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (where a majority of the
members of this Court agree in a result, the decision is precedential). Appellant insists
the “Superior Court’s duty here, and in Ricker [I],” was simply to “follow this Court’s holding
in Verbonitz,” rather than “independently analyze [the] issue[]” and reach an opposite
result or conclusion. Id. at 11-12. Appellant additionally maintains the Superior Court
erred here (and in Ricker I) to the extent it concluded only three Justices in Verbonitz
based their result on an application of due process concerns. Appellant contends five
members of the Verbonitz Court joined in the due process rationale, and thus “Verbonitz
was binding on the Superior Court both as to the result and as to the rationale.” Id. at 13.
[J-78-2018] - 13
Appellant also claims the Superior Court erred in concluding the Verbonitz holding
was expressly overruled by this Court’s adoption of amended Rule 542(E). Appellant
asserts the Superior Court here and in Ricker incorrectly determined Rule 542(E)
provides that hearsay can be used to prove all elements of a prima facie case and thus,
that hearsay evidence alone is sufficient to establish a prima facie case. Appellant argues
the rule addresses when hearsay may be admissible, but by its plain terms, does not
address “if and when hearsay evidence, by itself, may be sufficient to establish a prima
facie case.” Id. at 14-15 (emphasis omitted). Appellant acknowledges the language of
the rule may be ambiguous, see id. at 16, citing Ricker II, 170 A.3d at 506 (Saylor, C.J.,
concurring) (“the applicable rules are not models of clarity”), but submits that “a lower
court has no authority to overrule a decision of a higher court based on its interpretation
of a subsequent ambiguous statement by the higher court.” Id., citing Bosse v. Oklahoma,
__ U.S. __, 137 S.Ct. 1, 2 (2016) (per curiam) (“Our decisions remain binding precedent
until we see fit to reconsider them, regardless of whether subsequent cases have raised
doubts about their continuing validity.”).
Appellant lastly maintains the Superior Court here and in Ricker I failed to properly
consider and apply the rules of statutory construction in determining that Rule 542 permits
all hearsay to be admissible and that hearsay alone is sufficient to establish a prima facie
case.5 Among other things, appellant argues the court in both cases erred to the extent
it failed to properly interpret the phrase “[h]earsay as provided by law” in Rule 542(E) as
“a limiting principle, referring to other statutes and past decisions.” Id. at 20. According
5 Neither the panel here nor in Ricker I expressly analyzed Rule 542(E) under the
principles of statutory construction and interpretation. The Ricker I court concluded,
nevertheless, that a “plain reading” of the Rule permits hearsay to establish “any material
element of a crime,” and thus, “it follows that, under the rule, [hearsay] is sufficient to meet
all of the elements.” Ricker I, 120 A.3d at 357.
[J-78-2018] - 14
to appellant, “[c]learly, the most significant past decision is Verbonitz which specifically
held that a prima facie case may not be based entirely on hearsay.” Id.
B. Commonwealth
In response, the Commonwealth first asserts the Superior Court lacked jurisdiction
to entertain the interlocutory appeal from the trial court’s denial of a request for habeas
corpus relief because there were no “exceptional circumstances” present.
Commonwealth’s Brief at 1. The Commonwealth asserts exceptional circumstances
exist, inter alia, “‘where an issue of great importance is involved.’” Id. at 2, quoting
Commonwealth v. Reagan, 479 A.2d 621, 622 (Pa. Super. 1984) (internal citation and
quotation omitted). However, while acknowledging the Superior Court determined
“important” constitutional questions were implicated in the appeal, the Commonwealth
avers that “important is not enough; issues must be of great importance to warrant
[interlocutory] review.” Id. The gravamen of the Commonwealth’s argument is that
“[a]ppellant has not lost any constitutional rights[,]” because he still has the full panoply
of trial rights “ahead of him.” Id. Thus, despite the fact this Court granted discretionary
review of the discrete issue involving the precedential effect of Verbonitz, the
Commonwealth asserts the instant appeal should be quashed.
The Commonwealth next argues the Superior Court correctly treated Verbonitz as
a non-binding plurality opinion. Quoting Justice Flaherty’s concurring opinion in which he
described Justice Larsen’s lead opinion as a “plurality[,]” the Commonwealth asserts
“[t]he Justices who decided the Verbonitz case agree that it is a plurality and no amount
of legal wrangling and twisting by the [a]ppellant will change that.” Id. at 3, quoting
Verbonitz, 581 A.2d at 175 (Flaherty, J., concurring). “‘Plurality opinions, by definition,
establish no binding precedent for future cases.’” Id., quoting Commonwealth v. Brown,
872 A.2d 1139, 1165 (Pa. 2005) (Castille, J., concurring). The Commonwealth therefore
[J-78-2018] - 15
concludes the Superior Court committed no error in declining to find the Verbonitz
reasoning persuasive.
Moreover, in the Commonwealth’s view, appellant’s argument regarding the
proper statutory interpretation of the phrase “hearsay as provided by law” is “illogical[;]”
i.e., the phrase does not mean “that hearsay can be used except for the limits placed by
Verbonitz.” Id. at 5. Instead, the Commonwealth asserts, “the plain meaning of the words
is that hearsay, as defined by the Rules of Evidence, can be used to meet the prima facie
burden . . . at the preliminary hearing.” Id. The Commonwealth further argues any
interpretation of Rule 542(E) that incorporates the Verbonitz plurality rationale would
directly contradict the rule’s command that “‘Hearsay evidence shall be sufficient to
establish any element of an offense.’” Id., quoting Pa.R.Crim.P. 542(E). The
Commonwealth insists, “[e]ither Verbonitz controls or Rule 542([E]) controls; they cannot
be reconciled.” Id.
The Commonwealth maintains that, in any event, “[u]sing hearsay alone to prove
a prima facie case does not violate substantive due process.” Id. It notes that preliminary
hearings are not constitutionally mandated; however, it also recognizes that once a state
decides to institute such a proceeding “then procedural due process must apply.” Id. at
6. The Commonwealth insists appellant received all the process that was due — he
received adequate notice, the opportunity to be heard, and the chance to defend himself
before a fair and impartial tribunal. Regarding cross-examination, the Commonwealth
notes appellant, in fact, cross-examined Trooper Wingard at some length, and notes the
language of Pa.R.Crim.P. 542(C) allows only that a “defendant . . . may cross-examine
witnesses[.]” Id. at 8, quoting Pa.R.Crim.P. 542(C) (emphasis supplied by the
Commonwealth). The Commonwealth suggests Rule 542 does not give an accused the
right to cross-examine his accusers, but merely provides an accused the right to cross-
[J-78-2018] - 16
examine whatever witnesses are presented at the hearing. Finally, the Commonwealth
argues that hearsay in the preliminary hearing context is similar to that permitted in the
context of seeking a search warrant, and submits the information provided by Trooper
Wingard was reliable since his basis of knowledge was probed and it sufficiently
supported the reliability of the hearsay evidence.
C. Amici
Amici Curiae, Attorney General Josh Shapiro and the Pennsylvania District
Attorneys Association (“amici”) have jointly filed a brief on behalf of the Commonwealth.
They assert the due process clause permits a preliminary hearing judge to hold a case
for court and detain a defendant pending trial on the basis of hearsay evidence alone. In
support, amici first suggest Verbonitz was unmistakably a plurality decision, a point they
claim Justices Larsen and Flaherty made “clear” in their separate writings acknowledging
their separate rationales — the “lead opinion” was based on “the constitutional rights of
confrontation and cross-examination” while the concurrence “would resolve the case on
due process grounds[.]” Amici Brief at 5 (internal quotations and citation omitted).
Nevertheless, amici recognize Justices Larsen and Flaherty both cited due process
principles addressed in Commonwealth, Unemployment Compensation Bd. of Review v.
Ceja, 427 A.2d 631 (Pa. 1981) (“Ceja”). Amici characterize Ceja as an “unrelated case[,]”
and assert the citations to Ceja in the separate Verbonitz expressions amounted to
“general language[.]” Amici Brief at 5 n.1.6 Amici additionally note the comment to Rule
6The precise language from Ceja quoted by both the Verbontiz lead and concurring
opinions was “‘[f]undamental due process requires that no adjudication be based solely
on hearsay evidence.’” Verbonitz, 581 A.2d at 174 (Larsen, J., lead opinion), quoting
Ceja, 427 A.2d at 647; Verbonitz, 581 A.2d at 176 (Flaherty, J., concurring), quoting Ceja,
427 A.2d at 647.
[J-78-2018] - 17
542(E) describes Verbonitz as a “plurality” and suggests the “weight of authority, both
federal and state, clearly supports the use of hearsay alone to find a prima facie case or
detain a defendant.” Id. at 7-9, citing, inter alia, United States v. Delker, 757 F.2d 1390
(3rd Cir. 1985) (rejecting claim hearsay may not be used at pretrial detention hearing to
demonstrate defendant committed crime charged).
Amici then pivot to this Court’s authority to “create sensible rules for the use of
hearsay evidence at preliminary hearings.” Id. at 10. Acknowledging “the role of hearsay
has proved to be a vexing problem in Pennsylvania jurisprudence” that “remains
unresolved after decades of litigation and rulemaking[,]” and that previous approaches
have “too often tried to be quantitative[,]” amici suggest “the question should be
addressed qualitatively: what specific kinds of hearsay are reliable enough to move the
case forward to trial?” Id. at 10-11. Amici then propose “three types of evidence that are
easily defined and offer elements of reliability that justify their admission for preliminary
hearing purposes”: 1) audio/video recordings; 2) testimony by an officer who actually
participated in the interview of a witness; and 3) expert reports. Id. at 11-14. Amici ask
this Court to amend the rules specifically to permit hearsay evidence of this nature.
Amicus Curiae, the Defender Association of Philadelphia (“DAP”), has filed a brief
on behalf of appellant. DAP asserts that both the lead and concurring opinions in
Verbonitz opined that hearsay does not constitute legally competent evidence and thus,
five Justices agreed hearsay alone, as a matter of due process, cannot be sufficient to
make out a prima facie case at a preliminary hearing. DAP argues Verbonitz is
precedential under each of three separate doctrines: 1) “result” stare decisis; 2)
[J-78-2018] - 18
“narrowest ground of agreement” stare decisis; and 3) “false plurality” analysis. DAP’s
Brief at 6.
DAP explains “result” stare decisis requires any “result espoused by a majority of
this Court (no matter how many separate opinions are issued to establish this) should be
controlling in substantially identical cases.” Id. at 8 (emphasis deleted), citing Linda
Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 COLUM.
L. REV. 756, 779 (1980); Rappa v. New Castle County, 18 F.3d 1043, 1061 n.26 (3rd Cir.
1994), (“[I]t seems clear that lower courts must adhere at the minimum to the principle of
‘result’ stare decisis, which mandates that any specific result espoused by a clear majority
of the Court should be controlling in substantially identical cases. The absence of a clear
majority rationale supporting the result may give a lower court some flexibility to formulate
a justifying rule[;] it does not, however, justify a court in embracing a line of reasoning that
will lead to a contrary result. . . . Adherence to ‘result’ stare decisis is essential if principles
of certainty and uniformity are to have any meaning at all . . ..”), quoting Novak, supra.
DAP further claims “Verbonitz is actually a case in which, as a result of Justice
Larsen’s Opinion and Justice Flaherty’s Opinion, a majority of the Court did agree both
on the result (i.e. the Commonwealth cannot establish a prima facie case based solely on
hearsay evidence) and one common rationale supporting the result (i.e. due process
protections).” Id. at 9 (emphasis supplied by DAP). DAP argues “[this] circumstance
triggers the more commonly invoked stare decisis ‘narrowest grounds of agreement’
doctrine, which treats a case as binding authority on the narrowest of grounds upon which
a majority of the Court agree on both a result and its supporting rationale.” Id., citing
Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a
[J-78-2018] - 19
case and no single rationale explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds[.]”) (additional citations and
quotation marks omitted).7
DAP also advances the argument that Verbonitz can be seen as “what some legal
commentators refer to as a ‘false plurality’.” Id. at 11, citing Plurality Decisions and
Judicial Decision Making, 94 HARV. L. REV. 1127 (1981).
The key characteristic that makes plurality decisions troublesome is the
presence of at least two distinct rationales that will justify the result reached
in a case, neither of which commands a majority. In some cases that are
nominally plurality decisions, however, a majority of the Court does support
a rationale sufficient to justify the holding. Such cases take the form of
plurality decisions only because some justices go on to state additional
ideas. Thus, when proposition A is sufficient to justify the holding, and either
the plurality opinion supports A while the minority opinion supports both A
and B, or the plurality opinion supports A and B while the minority opinion
supports A, a ‘false plurality’ decision results.
Id., quoting Plurality Decisions and Judicial Decision Making, 94 HARV. L. REV. at 1130.
DAP argues a “false plurality” decision is more akin to a majority decision than a
plurality decision, but due to the structure of the opinion, the majority agreement is
somewhat hidden. According to DAP, “[f]or stare decisis purposes, the structure of a
7 DAP also relies on legal commentary to explain the doctrine:
It is easy to isolate the narrowest possible ground in those situations where
the plurality [lead opinion] relies on rationale A in support for the result, and
the concurrence clearly agrees on the applicability of that rationale, but also
goes a step further and espouses rationale B as well. In such cases the
plurality rationale may be fairly regarded as the narrowest ground
embodying the reasoning of a majority of the Court, and that rationale
should be binding on lower courts for future cases.
DAP’s Brief at 10 n.7, quoting Novak, supra at 763.
[J-78-2018] - 20
‘false plurality’ should be pierced,” and its points of agreement should be seen as a
majority decision of the Court. Id. at 12. DAP contends Verbonitz is just such a decision
because “five Justices agreed (although spread across two Opinions) that a preliminary
hearing prima facie case based solely on hearsay evidence violates due process.” Id.
Moreover, DAP disagrees with the Superior Court’s suggestion that the continuing
validity of Verbonitz has been undercut by the current version of Rule 542(E) and the
Comment thereto. First, DAP notes the conclusions of Justices Larsen and Flaherty in
Verbonitz are constitutionally-based, not rule-based. In any event, DAP observes the
Comment includes specific reference to Verbonitz as “disapproving” of “reliance on
hearsay testimony as the sole basis for establishing a prima facie case.” Id. at 14, citing
Pa.R.Crim.P. 542(E), cmt. Thus, DAP concludes, “[r]ather than being undercut by Rule
[542(E)],” Verbonitz has been “included in” and “fortified by” the rule. Id.
III. Analysis
Our Court has articulated the following standard and scope of review: “Ordinarily,
an appellate court will review a grant or denial of a petition for writ of habeas corpus for
abuse of discretion, but for questions of law, our standard of review is de novo, and our
scope of review is plenary.” Commonwealth v. Judge, 916 A.2d 511, 521 n.13 (Pa. 2007)
(citations omitted).8 As stated, the precise question presented in this appeal is one of
law, i.e., whether the panel below failed to properly apply and follow Verbonitz.
A. Precedential Value of Verbonitz
8 An order denying or granting a writ of habeas corpus is interlocutory. See e.g.
Commonwealth v. LaBelle, 612 A.2d 418 (Pa. 1992). Although the Commonwealth now
contests the Superior Court’s determination that interlocutory appellate review was
appropriate in this case, that conclusion is beyond the scope of the issue upon which
allocatur was granted. Thus, we do not consider it.
[J-78-2018] - 21
In Verbonitz, the Court determined the Commonwealth failed to establish a prima
facie case at a preliminary hearing. We have little difficulty in stating with certainty that
five Justices in Verbonitz agreed a prima facie case cannot be established by hearsay
evidence alone, and the common rationale among those Justices involved due process
considerations. In the lead opinion, styled as the “Opinion of the Court,” Justice Larsen
wrote: “In this case it is clear that the Commonwealth did not meet its burden. As Justice
Flaherty stated in his concurring opinion in [Ceja,] ‘fundamental due process requires
that no adjudication be based solely on hearsay evidence.’” See Verbonitz, 581 A.2d at
174, quoting Ceja, 427 A.2d at 647 (Flaherty, J., concurring) (emphasis added). Because
hearsay “does not constitute legally competent evidence[,]” Justice Larsen explained, “the
Commonwealth has failed to establish prima facie that a crime has been committed and
that Buchanan committed that crime.” Id. Justice Larsen immediately continued,
“Additionally, a criminal defendant has a right to confront and cross-examine the
witnesses against him: this right being secured by the United States Constitution; the
Pennsylvania Constitution; and the Pennsylvania Rules of Criminal Procedure.” Id.
(emphasis supplied, footnotes omitted). Justice Larsen stated, “[a] preliminary hearing is
an adversarial proceeding which is a critical stage in a criminal prosecution[,]” and
concluded Buchanan was denied his constitutional rights to confrontation and cross-
examination. Id. at 175. Justice Larsen’s opinion was joined by Justice Zappala and
Justice Papadakos.
In his concurring opinion, Justice Flaherty opined he “reach[ed] the same
conclusion through an analysis somewhat different from that employed by the plurality.”
Id. at 175 (Flaherty, J. concurring). Justice Flaherty observed that to “establish a prima
[J-78-2018] - 22
facie case, the Commonwealth must produce evidence which presents sufficient probable
cause to believe that the person charged has committed the offense stated.” Id. (internal
quotation marks and citation omitted). Noting the United States Supreme Court has
“implied in dictum, but has not held, that other rights, such as the right to confrontation
and the right to cross-examination, are constitutionally protected at the preliminary
hearing[,]” Justice Flaherty opined those considerations “do not answer the question
presented to us: whether hearsay testimony, standing alone, may constitute sufficient
evidence to establish a prima facie case at a preliminary hearing.” Id. (emphasis in
original). Justice Flaherty “conclude[d] that it cannot[,]” and “deem[ed] this to be a
requirement of due process.” Id. Justice Flaherty then cited his Ceja concurrence for the
proposition that “fundamental due process requires that no adjudication be based solely
on hearsay.” Id. at 176 (emphasis added). Accordingly, we conclude that although
Verbonitz is nominally a plurality decision, it is clear that a five-member majority of the
Court held hearsay alone is insufficient to establish a prima facie case at a preliminary
hearing because to do so violates principles of fundamental due process.
B. The Validity of Verbonitz Following Adoption of Rule 542(E)
While the subsequent promulgation of Rule 542(E) in 2011 permitted the use of
hearsay in preliminary hearings, appellant challenges the instant panel’s interpretation of
the rule as permitting unlimited use of hearsay, as announced in Ricker I, as long as such
use is not in the nature of layers of rank hearsay. We begin by observing that we apply
the Statutory Construction Act, 1 Pa.C.S. §§1501-1991, when interpreting the Rules of
Criminal Procedure. See Pa.R.Crim.P. 101(C) (“To the extent practicable, these rules
shall be construed in consonance with the rules of statutory construction.”).
[J-78-2018] - 23
Turning to the interpretation of Rule 542(E) as set forth in Ricker I, we first note the
rule, as originally set forth in 2011, expressly stated hearsay as provided by law “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.” See Pa.R.Crim.P 542(E) (2011
version). The rule, by its plain language, was of limited scope. It permitted “[h]earsay as
provided by law” to be “considered” and offered primarily to establish elements of property
offenses. The rule, in part, relieved victims of property offenses from attending an
accused’s preliminary hearing simply to establish facts about the ownership of, non-
permissive use of, damage to, or value of stolen property. Notably, at that time, the rule
was in essential harmony with the Verbonitz lead and concurring opinions, which
concluded legally competent evidence, and not hearsay alone, was required to establish
the elements which must be proven at a preliminary hearing. Thus, initial promulgation
of subsection (E), to an extent, formalized a procedure many preliminary hearing courts
were already following — allowing some hearsay to prove some elements when other
legally competent, non-hearsay evidence was also presented, in accordance with the
conclusion of the five Verbonitz justices who opined hearsay evidence alone is not
sufficient to establish a prima facie case. See, e.g. Commonwealth v. O'Shea-Woomer,
8 Pa.D.&C.5th 178, 184 (Lanc. Co. 2009) (admitting hearsay medical report at preliminary
hearing where other non-hearsay evidence was presented to establish prima facie case,
and noting “hearsay evidence alone may not be the basis for establishing a prima facie
case in a preliminary hearing”) (emphasis in original). See also Commonwealth v.
Camacho, 2007 Pa.Dist.&Cnty. (Ches. Co.) (granting pre-trial writ of habeas corpus on
[J-78-2018] - 24
basis Commonwealth presented hearsay evidence alone, concluding “the
Commonwealth has failed to present a prima facie case by competent evidence”).
Rule 542(E), however, was expanded in 2013. Implicit in our consideration of the
Superior Court’s decision below is the scope of the expanded rule, and in particular,
whether, as the Superior Court held in Ricker I and suggested here, the rule supplants
Verbonitz, and permits all elements of all offenses to be established at a preliminary
hearing solely on the basis of hearsay evidence. We determine Rule 542(E), though not
the model of clarity, 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.
Initially, although the word “any” is an adjective which can mean “one, some, every,
or all,” THE AMERICAN HERITAGE COLLEGE DICTIONARY (3d ed. 1993), the precise meaning
of its usage depends largely on the context in which it is employed. See Snyder Bros. v.
Pa. PUC, 198 A.3d 1056, 1073 (Pa. 2018) (“we consider the meaning of the term ‘any’ to
be wholly dependent on the context in which it is used in the particular statute under
review”); see also JP Morgan v .Taggart, 203 A.3d 187, 193-94 (Pa. 2019) (same). “‘A
statute is ambiguous when there are at least two reasonable interpretations of the text.’”
Id. at 194, quoting A.S. v. Pa. State Police, 143 A.3d 896, 905-06 (Pa. 2016). Because
the alternative interpretations of “any” offered by the parties are reasonable, rendering its
meaning ambiguous, we resort to the canons of statutory construction. Those canons
require us to consider matters beyond the statutory language, including the occasion and
necessity of the statute or rule, the mischief to be remedied, and the object to be attained.
[J-78-2018] - 25
See 1 Pa.C.S. §1921(c). In addition, we read the sections of Rule 542 together, and we
construe them to give effect to all of the rule’s provisions. Id. at §1921(a).
Under Rule 542(E), hearsay shall be sufficient to prove any element. The word
“any” is used to describe an element (or elements) of an offense, including, but not limited
to, those for which proof of ownership of, non-permitted use of, damage to, or value of
property is required. Thus, contextually under the rule, the understanding of “any” is
intended to mean an indefinite or unknown quantity. Nevertheless, although the rule
suggests the quantity of “any” may be indefinite, that quantity is delimited by the phrase
“[h]earsay as provided by law shall be considered” contained in the first sentence of
subsection (E). See Rule 542 (E) (“Hearsay as provided by law shall be considered by
the issuing authority in determining whether a prima facie case has been established.”)
(emphasis added). Some meaning must be ascribed to every word in a statute (or rule,
in the present case), and there is a presumption that disfavors interpreting language as
mere surplusage. 1 Pa.C.S. §1922(2) (“[i]n ascertaining the intention of the General
Assembly in the enactment of a statute,” a court may presume “the General Assembly
intends the entire statute to be effective and certain”); S & H Transp., Inc. v. City of York,
140 A.3d 1, 7 (Pa. 2016) (in construing language of statute, court must give effect to every
word, and may not assume any words were intended as mere surplusage).
Hearsay is generally inadmissible in legal proceedings unless it falls under a
recognized exception. Commonwealth v. Ali, 10 A.3d 282, 315 (Pa. 2010). The critical
term in the phrase “hearsay as provided by law” is the word “provided,” which is a
conjunction meaning “on the condition [of].” THE AMERICAN HERITAGE COLLEGE
DICTIONARY (3d ed. 1993). Thus, the phrase “hearsay as provided by law” could
[J-78-2018] - 26
reasonably mean hearsay as defined by law, i.e. an out-of-court statement presented as
evidence of the truth of the matter asserted. See, e.g., Castellani v. Scranton Times, L.P.,
124 A.3d 1229, 1239 (Pa. 2015), quoting Pa.R.E. 801(c) (defining hearsay as out-of-court
statement made by declarant that party “offers in evidence to prove the truth of the matter
asserted in the statement”).
Nevertheless, appellant’s argument that the phrase “as provided by law” is a
limiting principle is also reasonable. Because “as provided by law” could alternatively
mean “contingent on” or “subject to” law, the phrase can be a bulwark against reading the
rule as a sweeping pronouncement permitting hearsay alone to prove all elements of all
offenses at a preliminary hearing. Indeed, although the 2013 amendment expanded the
potential offenses for which hearsay shall be permitted, the amended comment
specifically added a comparison citation to Verbonitz, which parenthetically highlighted
the contrasting conclusion disapproving the use of hearsay alone to establish a prima
facie case at a preliminary hearing. See Rossi v. Commonwealth, Bureau of Driver
Licensing, 860 A.2d 64, 66 (Pa. 2004) (“individual statutory provisions must be construed
with reference to the entire statute of which they are a part”), citing 1 Pa.C.S. §1922(2);
see also Commonwealth v. Lurie, 569 A.2d 329, 331 (Pa. 1990) (“[S]ections of statutes
are not to be isolated from the context in which they arise such that an individual
interpretation is accorded one section which does not take into account the related
sections of the same statute.”), quoting Commonwealth v. Revtai, 532 A.2d 1, 5 (Pa.
1987).
As the foregoing analysis reveals, the amended rule does not evince an articulated
intent to overrule Verbonitz or re-affirm it; instead, subsection (E) is intended to allow
[J-78-2018] - 27
some use of hearsay. The plain language of the rule does not state a prima facie case
may be established solely on the basis of hearsay, despite the Superior Court’s contrary
interpretation. Significantly, the rule as written is open to reasonable yet opposing
interpretations. Indeed, given that the word “any” and the phrase “as provided by law”
are ambiguous, particularly in light of the comment citing Verbonitz, we now prudentially
apply the “canon of constitutional avoidance,” which instructs “we are bound to interpret
a statute, where possible, in a way that comports with the constitution’s terms.”
Commonwealth v. Veon, 150 A.3d 435, 443 (Pa. 2016). In other words, “when a statute
is susceptible of two constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are avoided, our duty is to adopt
the latter.” Id., quoting Harris v. United States, 536 U.S. 545, 555 (2002).9
“The primary reason for the preliminary hearing is to protect an individual’s right
against unlawful arrest and detention.” Commonwealth ex rel. Maisenhelder v. Rundle,
198 A.2d 565, 567 (Pa. 1964). The preliminary hearing “seeks to prevent a person from
being imprisoned or required to enter bail for a crime which was never committed, or for
a crime with which there is no evidence of his connection.” Id. Our precedents make
9 That grave and doubtful constitutional concerns are evident is beyond peradventure;
however, given the limited question on which we granted review, any discussion herein
of due process, confrontation rights and whether the probable cause and prima facie
standards are synonymous, would, of necessity, be dicta. Moreover, notwithstanding
Chief Justice Saylor’s criticisms of the due process analysis in Verbonitz, he agrees this
case is an inappropriate vehicle for a substantive discussion of the issue and the Chief
Justice would thus simply affirm the Superior Court. See Concurring and Dissenting Op.
at 2. We reverse the Superior Court, however, on the issue actually raised in this appeal,
which implicates that court’s prerogative to essentially ignore a prior decision from this
Court which clearly articulates hearsay alone is insufficient to establish a prima facie case,
and where a majority of the justices relied to some degree on due process principles to
reach that conclusion.
[J-78-2018] - 28
clear the full panoply of trial rights do not apply at a preliminary hearing, but the hearing
is nevertheless a critical stage of the proceedings, and is intended under Rule 542 to be
more than a mere formality. Due process clearly attaches, but due process is a flexible
concept, incapable of precise definition. See Turner, 80 A.3d at 764 (although its basic
elements are known, procedural due process “not capable of an exact definition”). Here,
at the hearing afforded appellant, the Commonwealth relied exclusively and only on
evidence that could not be presented at a trial. This is precisely the circumstance and
rationale upon which five Justices in Verbonitz determined Buchanan’s right to due
process was violated.10
10 Despite Justice Baer’s contrary view in dissent, it is abundantly clear the sole issue in
Verbonitz was whether hearsay alone is sufficient to establish a prima facie case. It is
equally and perfectly clear, a five-member majority of that Court held hearsay alone is
insufficient to establish a prima facie case. Moreover, as the dissent acknowledges, those
five justices all invoked a due process rationale by quoting the exact same language from
Ceja, 427 A.2d at 647: “fundamental due process requires that no adjudication be based
solely on hearsay evidence.” Verbonitz, 581 A.2d at 174 (Larsen, J., lead opinion); id. at
176 (Flaherty, J., concurring). Justice Baer minimizes the precedential import of this clear
agreement among the members of the Verbonitz Court by opining that had the lead
(plurality) expression by Justice Larsen actually relied on a due process rationale, Justice
Flaherty “would have surely joined that portion of the opinion[.]” Dissenting Op. at 5. In
our view, however, whatever “sure” reasons existed for the separate expressions, by
quoting the identical language from Ceja, five justices in Verbonitz agreed hearsay alone
is insufficient to establish a prima facie case due in part to principles of fundamental due
process.
[J-78-2018] - 29
IV. Conclusion
We reaffirm the validity of Verbonitz. We therefore reverse the Superior Court’s
decision below and expressly disapprove Ricker I. The appellant is discharged without
prejudice.11
Justices Todd, Donohue and Wecht join the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Saylor files a concurring and dissenting opinion.
Justice Baer files a dissenting opinion in which Justice Mundy joins.
11Dismissal of charges and discharge of the accused for failure to establish a prima facie
case at the preliminary hearing is an interlocutory order, see LaBelle, 612 A.2d at 420,
which does not implicate double jeopardy concerns. See Liciaga v. Court of Common
Pleas of Lehigh Co., 566 A.2d 246, 267 (Pa. 1989). Because the Commonwealth relied
on a reasonable yet imprecise reading of Rule 542, we discharge appellant without
prejudice to the Commonwealth to refile charges and proceed with a new preliminary
hearing.
[J-78-2018] - 30
Commonwealth v. McClelland, D., Aplt.
Combined Opinion