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.
Commonwealth v. Ricker, 120 A.3d 349 (Pa.Super.
2015), appeal granted, 135 A.3d 175 (Pa.
2016) we reviewed the 2013 amendment to
Pa.R.Crim.P. 542, which permitted 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. Ricker held that this Rule did not run
afoul of the constitutional right to confront witnesses under
either the Pennsylvania or United States constitutions. We
left unaddressed whether notions of due process would require
a different result. In this interlocutory
appeal from an order denying a pretrial motion
for habeas corpus relief, Appellant today asks us to
resolve that question in his favor. On these facts, we
decline to do so, and therefore affirm.
and Procedural History
State Trooper Christopher Wingard filed a complaint accusing
Appellant of indecent assault, indecent exposure, and
corruption of minors for crimes committed against A.T., an
eight-year-old child. The complaint related that on August 3,
2015, A.T.'s parents arrived at a Pennsylvania State
Police barracks to report that A.T. told them that Appellant
touched her face with his penis on June 27, 2015. Based on
this information, an interview was scheduled at a
Children's Advocacy Center with a specialist. A.T.
provided further details of the incident at this interview,
resulting in the criminal charges.
preliminary hearing, the Commonwealth called Trooper Wingard
as its sole witness. He testified that he personally
witnessed the interview via a video link and related to the
magistrate the specific contents of A.T.'s interview.
Three counts were held for trial, and the Commonwealth
thereafter filed a criminal information charging Appellant
with indecent assault, indecent exposure, and corruption of
minors, all graded as misdemeanors of the first degree.
March 23, 2016, Appellant filed a motion seeking a writ of
habeas corpus dismissing the charges. The motion
acknowledged Ricker as controlling, but argued that
holding the charges based on pure hearsay violated his rights
of confrontation and due process under both the Pennsylvania
and United States Constitutions.
April 4, 2016, the trial court denied the motion. Appellant
filed a timely notice of appeal, raising two issues:
extraordinary circumstances justify this interlocutory
appeal, and a substantive issue raising the aforementioned
due process and confrontation arguments.
and Statutory Text
first address whether we have jurisdiction over this
interlocutory appeal. In general, the denial of a pretrial
writ of habeas corpus claiming a lack of sufficient
evidence is not an appealable order. Ricker,
supra at 353. Ricker determined that
exceptional circumstances warranted review of the appeal due
to the important constitutional questions. Id. at
354. Since the issue presented herein directly addresses an
issue explicitly unresolved by Ricker, we hold that
the same reasoning applies and that we have jurisdiction to
consider the merits of his claim.
instant appeal concerns the intersection of two provisions of
Rule of Criminal Procedure 542, which governs preliminary
hearings. These provisions state:
(C) The defendant shall be present at any preliminary hearing
except as provided in these rules, and may:
(1) be represented by counsel;
(2) cross-examine witnesses and inspect physical evidence
offered against the defendant;
(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
Pa.R.Crim.P. 542 (emphases added).
raises one issue for our review: Whether hearsay testimony
from an affiant violates due process when that hearsay alone
establishes a prima facie case at a preliminary
hearing. Appellant's brief at 14.
does not distinguish between substantive due process and
procedural due process, nor does his argument specify what
purported interest is at stake and, in light of those
interests, why the provided procedure violates due process.
He does not clarify whether this challenge is facial or
as-applied. Instead, his argument essentially invokes due
process as a substitute for unfair. We glean three major
points advanced by Appellant.
he cites to the competing provision in Rule 542, which states
that a defendant at the preliminary hearing has a right to
counsel and may "cross-examine witnesses and inspect
physical evidence offered against the defendant[.]"
Pa.R.Crim.P. 542(C)(2). Therefore, Rule 542(E), while not
violating the constitutional right to confrontation, vitiates
the rule-based right to cross-examine a witness. In other
words, Ricker's holding negates Rule 542(C)(2),
since the Commonwealth can simply decline to call any
witnesses with direct knowledge. "How is a defendant
such as [Appellant] to 'cross-examine witnesses and
inspect physical evidence' under Pa.R.Crim.P. 542(C)(2)
when none is offered at the preliminary hearing?"
Appellant's brief at 14.
Appellant relies upon Coleman v. Alabama, 399 U.S. 1
(1970), which established that the preliminary hearing is a
critical stage of the prosecution entitling a defendant to
counsel. This point builds on the first: If Appellant is
entitled to a preliminary hearing and counsel at that
hearing, counsel must be able to cross-examine his primary
accusers. Otherwise, the right to counsel and
cross-examination at this stage are hollow guarantees.
Appellant cites Commonwealth ex. rel. Buchanan v.
Verbonitz, 581 A.2d 172 (Pa. 1990) (plurality), a case
we discussed in Ricker. The concurring opinion in
Verbonitz opined that due process requires something
more than pure hearsay to sustain a prima facie
begin by discussing the pertinent constitutional principles
governing the initiation of criminal prosecutions.
Law and Constitutional Principles
Grand Jury Clause of the Fifth Amendment to the United States
Constitution limits the federal government's ability to
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of
War or public danger;
U.S. Const. Am. V. Infamous crimes are defined as those which
are punishable by death or imprisonment for a term of over
one year. United States v. Graham, 169 F.3d 787, 792
(3d Cir. 1999) (infamous crimes "came to be defined as
crimes punishable by more than one year of
confinement"). Other crimes may be prosecuted by
information. See Duke v. United States, 301 U.S.
492, 495 (1937) ("The offense . . . was not subject to
infamous punishment-therefore open to prosecution by
information."). The United States Supreme Court has held
that a grand jury indictment may lawfully be secured on the
basis of pure hearsay. Costello v. United States,
350 U.S. 359 (1956).
"most of the provisions of the Bill of Rights apply with
full force to both the Federal Government and the States,
" McDonald v. City of Chicago, 561 U.S. 742,
750 (2010), via the Due Process Clause of the Fourteenth
Amendment, the Grand Jury Clause is not one of them. The High
Court has applied a "selective incorporation"
doctrine, in which the Fourteenth Amendment incorporates
most, but not all, of the particular rights contained in the
first eight Amendments to the United States Constitution. In
Hurtado v. California, 110 U.S. 516 (1884), the High
Court held that the Grand Jury Clause was not binding on the
States. In that case, a district attorney, pursuant to
California procedures, filed an information against Hurtado
instead of seeking an indictment, charging him with murder.
Id. at 517. Hurtado asserted that his subsequent
conviction and sentence were void, as due process required an
indictment by grand jury. The Court rejected that theory.
"[W]e are unable to say that the substitution for a
presentment or indictment by a grand jury of the proceeding
by information after examination and commitment by a
magistrate, certifying to the probable guilt of the
defendant, with the right on his part to the aid of counsel,
and to the cross-examination of the witnesses produced for
the prosecution, is not due process of law."
Id. at 538.
reflected in this quotation, California permitted
cross-examination at the probable cause hearing. However, in
Lem Woon v. Oregon, 229 U.S. 586 (1913), the Court
confirmed that the ability to cross-examine was irrelevant to
the constitutional issue. Therein, Lem Woon was convicted of
murder after a prosecutor filed an information. The law in
Oregon at the time "did not require any examination, or
commitment by a magistrate, as a condition precedent to the
institution of a prosecution by an information filed by the
district attorney, nor require any ...