J-A01033-17
2017 PA Super 163
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DONALD J. MCCLELLAND :
:
Appellant : No. 633 WDA 2016
Appeal from the Order April 4, 2016,
in the Court of Common Pleas of Erie County,
Criminal Division at No(s): CP-25-CR-0003575-2015
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
DISSENTING OPINION BY STRASSBURGER, J.: FILED May 26, 2017
Because procedural due process requires the Commonwealth to
produce something more than just hearsay at a preliminary hearing, I
respectfully dissent and offer the following analysis.
In terms of procedural due process, government is
prohibited from depriving individuals of life, liberty, or property,
unless it provides the process that is due. While not capable of
an exact definition, the basic elements of procedural due process
are adequate notice, the opportunity to be heard, and the
chance to defend oneself before a fair and impartial tribunal
having jurisdiction over the case. Thus, courts examine
procedural due process questions in two steps: the first asks
whether there is a life, liberty, or property interest that the state
has interfered with; and the second examines whether the
procedures attendant to that deprivation were constitutionally
sufficient.
Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013) (internal citations
omitted).
*Retired Senior Judge assigned to the Superior Court.
J-A01033-17
Here, the Majority concludes that the only right with respect to a
preliminary hearing that is implicated is a “liberty restraint[ that] may result
from requiring an individual to stand trial.” Majority Opinion, at 23. I agree
with that position in this case; however, I point out that in situations where
a defendant is being held without bail or cannot afford bail, the liberty
interest is quite different.
Turning to the second inquiry regarding the sufficiency of the
procedure, I agree with the concurring opinion authored by Justice Flaherty
in Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172, 175
(Pa. 1990) (Flaherty, J. concurring, joined by Justice Cappy). In that case,
Justice Flaherty reiterated his position that a “prima facie case cannot be
established at a preliminary hearing solely on the basis of hearsay
testimony.” Id. at 176. See also Com., Unemployment Comp. Bd. of
Review v. Ceja, 427 A.2d 631, 647 (Pa. 1981) (Flaherty, J. concurring)
(“Fundamental due process requires that no adjudication be based solely
upon hearsay evidence.”).
Permitting the Commonwealth to present testimony only from the
trooper investigating the case1 is the beginning of a path down a slippery
slope. Certainly there are sensitivities involved in prosecuting claims of
1
In this case, the Trooper Wingard was not even testifying to his own
interview with the victim; rather, he was testifying about what he heard the
victim tell the interviewer from the Child Advocacy Center.
-2-
J-A01033-17
sexual assault on children, but the accused has rights as well. Accordingly, I
respectfully dissent.
-3-