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Commonwealth v. McClelland

Superior Court of Pennsylvania

May 26, 2017


         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



          BOWES, J.

         In Commonwealth v. Ricker, 120 A.3d 349 (Pa.Super. 2015), appeal granted, 135 A.3d 175 (Pa. 2016)[1] 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[2] 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.


         Facts and Procedural History

         Pennsylvania 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.

         At the 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.

         On 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.

         On 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.



         Jurisdiction and Statutory Text

         We 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.

         The 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 property.

Pa.R.Crim.P. 542 (emphases added).


         Appellant's Argument

         Appellant 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.[3] Appellant's brief at 14.

         Appellant 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.

         First, 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.

         Second, 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.

         Third, 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 case.[4]


         We begin by discussing the pertinent constitutional principles governing the initiation of criminal prosecutions.


         Federal Law and Constitutional Principles

         The Grand Jury Clause of the Fifth Amendment to the United States Constitution limits the federal government's ability to initiate prosecutions.

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).

         While "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.

         As 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 ...

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