Opinion
31 EAP 2022 J-40-2023
05-13-2024
COMMONWEALTH OF PENNSYLVANIA, Appellant v. RONALD HARRIS, Appellee
ARGUED: September 12, 2023
Appeal from the Judgment of Superior Court entered on January 3, 2022 at No. 1981 EDA 2020, affirming the Order entered September 16, 2020 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0005166-2019.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
Justice Dougherty delivers the Opinion of the Court with respect to Parts I-III, and announces the Judgment of the Court. Justice Wecht joins the opinion in full. Justices Donohue and Brobson join the opinion with respect to Parts I-III, and join the plain-text analysis in Part IV.
OPINION
DOUGHERTY JUSTICE
This Court in recent years has sought to clarify when the Commonwealth may properly use hearsay evidence to establish a prima facie case at a preliminary hearing. See Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020); Commonwealth v. Ricker, 135 A.3d 175 (Pa. 2016) (per curiam), appeal dismissed as improvidently granted, 170 A.3d 494 (Pa. 2017) (per curiam). In this appeal by allowance, we consider another question in this field: whether Pennsylvania Rule of Criminal Procedure 542(E) permits the use of hearsay alone to prove the defendant's identity. After careful review, we hold the plain text of the rule does not permit the use of hearsay for this purpose.
I. Legal Background
Before recounting the facts, a brief review of the law is helpful. Rule 542, titled "Preliminary Hearing; Continuances," along with Pa.R.Crim.P. 543, titled "Disposition of Case at Preliminary Hearing," govern preliminary hearings in this Commonwealth. Rule 542 provides in pertinent part:
There is a counterpart to Rule 542 that applies to preliminary hearings in Philadelphia Municipal Court. See Pa.R.Crim.P. 1003 ("Procedure in Non-Summary Municipal Court Cases"). Moving forward, we refer only to Rule 542 since the text of the two provisions is essentially identical with respect to the hearsay issue presently before us. Compare Pa.R.Crim.P. 542(E) with Pa.R.Crim.P. 1003(E)(2).
(A) The attorney for the Commonwealth may appear at a preliminary hearing and:
(1) assume charge of the prosecution; and
(2) recommend to the issuing authority that the defendant be discharged or bound over to court according to law.
. . . .
(D) 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.
(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. Moreover, Rule 543 explains: "If the issuing authority finds that the Commonwealth has established a prima facie case that an offense has been committed and the defendant has committed it, the issuing authority shall hold the defendant for court on the offense(s) on which the Commonwealth established a prima facie case." Pa.R.Crim.P. 543(B). Alternatively, "[i]f there is no offense for which a prima facie case has been established, the issuing authority shall discharge the defendant." Id. These rules reflect a preliminary hearing's "principal function": "to protect an individual's right against unlawful detention." Commonwealth v. Mullen, 333 A.2d 755, 757 (Pa. 1975).
Our focus in this appeal is on Pa.R.Crim.P. 542 - more specifically, subsections (D) and (E). These subsections and their associated comments were promulgated by this Court on January 27, 2011. It has been observed that the changes were "publicly premised on an effort, spearheaded by several former Justices, to address criticisms of the Philadelphia criminal court system, including those about high dismissal rates due to the absence of fact witnesses at preliminary hearings." Ricker, 170 A.3d at 507 n.20 (Saylor, C.J., concurring); see McClelland, 233 A.3d at 733 (observing paragraph (E)'s initial purpose was to "relieve[ ] victims of property offenses from attending an accused's preliminary hearing simply to establish facts about the ownership of, nonpermissive use of, damage to, or value of stolen property"). Presumably for similar reasons, on April 25, 2013, the Court amended subsection (E) and its comment to their present form. The rule now states in relevant part: "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) (emphasis added to show amended language).
Not long after the 2013 amendment to Rule 542(E), questions arose regarding its breadth and impact. We attempted to resolve one of those issues - whether "a prima facie case may be proven by the Commonwealth through hearsay evidence alone" - in Ricker, 135 A.3d 175 (Pa. 2016) (per curiam), but we ultimately dismissed that appeal as improvidently granted. See Ricker, 170 A.3d 494 (Pa. 2017) (per curiam). Then, a few years later, we granted review in McClelland.
Our task in McClelland was twofold. First, we had to determine whether the Superior Court "failed to properly apply and follow the legal precedent set forth" by Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990) (plurality). Commonwealth v. McClelland, 179 A.3d 2, 3 (Pa. 2018) (per curiam). Significantly, Verbonitz presented the same issue we hoped to settle in Ricker before dismissing that case as improvidently granted - that is, whether the use of hearsay evidence alone "is sufficient to establish a prima facie case." Verbonitz, 581 A.2d at 173. In McClelland, we clarified that the Verbonitz Court answered this question in the negative decades before Ricker. See McClelland, 233 A.3d at 733 ("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").
But we did not stop there. We proceeded in McClelland to consider whether Rule 542(E), as adopted in 2011 and expanded in 2013, "supplant[ed] Verbonitz" by permitting "all elements of all offenses to be established at a preliminary hearing solely on the basis of hearsay evidence." Id. at 734 (emphasis in original). We held it did not. See, e.g., id. ("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."); id. at 735 ("As the foregoing analysis reveals, the amended rule does not evince an articulated intent to overrule Verbonitz[.]").
II. Factual Background
Having explained this legal context, we now turn to the facts of this case as presented at appellee's preliminary hearing. Around 7:50 p.m. on March 23, 2017, Philadelphia Police Officer Ryan Waltman was on duty when he received a radio dispatch for a male shot on the street. Officer Waltman met the victim, Nishied Stewart, at a home located two to three blocks from the corner of North 33rd Street and West Allegheny Avenue, where the shooting occurred. See N.T. Preliminary Hearing, 7/19/19, at 5-6, 21. Officer Waltman noticed the victim was bleeding from gunshot wounds to his right wrist and left thigh. The officer accompanied the victim to the emergency room within "less than ten minutes[.]" Id. at 7. At the hospital, the victim, who was "scared and . . . in pain[,]" told Officer Waltman he had been shot and supplied information on three males involved. Id. at 6-8.
Detective John Drudin arrived at the hospital around 9:10 p.m. The victim then provided "nickname[s], physical description[s,] and some biographical information" for the two shooters, plus an address. Id. at 12, 20. Detective Drudin left the hospital after speaking with the victim and went to the scene. There he observed five fired cartridge casings from a 9-millimeter firearm. Using police databases and the information provided by the victim, Detective Drudin developed two suspects: appellee and his brother, Rasheed Harris. See id. at 13, 19-20. When the detective returned to the hospital the next day, the victim "identified Rasheed and [appellee]" as his shooters from photographs, which the victim signed. Id. at 14. The victim also provided a written statement in which he asserted he saw "Sheed and Ron walking down the block. They said, did you steal my shit[?] They both started firing guns at me. I heard eight shots." Id. at 27.
The victim also implicated a third person named "Kevin" who, he claimed, "set him up." N.T. Preliminary Hearing, 7/19/19, at 26.
The Commonwealth charged appellee with eleven crimes, including attempted murder, aggravated assault, and weapons offenses. The victim did not appear for the first two scheduled preliminary hearings. When he failed to show for a third time, the Commonwealth proceeded with the testimony of Officer Waltman and Detective Drudin. As recounted above, Officer Waltman provided testimony regarding his response to the police dispatch and his firsthand account of the victim's injuries. For his part, Detective Drudin described the ballistics evidence he observed at the scene of the shooting and relayed portions of the victim's hospital statement and identification of appellee as one of his shooters. Appellee's counsel repeatedly objected to any mention of the victim's out-of-court statements, but the trial court overruled them all. See id. at 6-8, 11, 29. At the end of the hearing, the Commonwealth urged the preliminary hearing judge to hold appellee for court on all charges. It explained that, under Ricker, which was still good law at that time, "hearsay alone can establish all of the elements of the charges." Id. at 30. The judge agreed and bound all charges over for trial. See id. at 32 ("[T]his court finds a prima facie case has been made out against you on all charges.").
The Commonwealth withdrew a charge of intimidation under 18 Pa.C.S. §4952(a). See N.T. Preliminary Hearing, 7/19/19, at 33-34.
On August 1, 2019, appellee filed a counseled "Motion to Quash Return of Transcript and/or Petition for Writ of Habeas Corpus." In support of his request that the charges against him be dropped and he be discharged, appellee argued the "admissible evidence did not make out a prima facie case" against him since it "did not establish probable cause to believe that [he] committed a crime." Motion to Quash, 8/1/19, at ¶¶3-4 (emphasis added). This was so, he alleged, because the Commonwealth's prima facie case relating to his identity was not "based on legally competent evidence that [he] committed the crimes" but, rather, "was established solely through hearsay." Id. at 3 (unpaginated) ¶¶5-6; see id. at ¶6 ("Hearsay is not 'legally competent evidence' unless it falls within one of the recognized exceptions to the hearsay rule."). Thus, appellee claimed his continued detainment violated his right to be free from an unreasonable seizure under the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, §8 of the Pennsylvania Constitution. See id. at ¶4.
A motion to quash of this nature is "the equivalent in Philadelphia practice of a pre-trial writ of habeas corpus." Commonwealth v. Dantzler, 135 A.3d 1109, 1111 (Pa. Super. 2016) (en banc).
On December 13, 2019, the Honorable Mia Roberts Perez granted appellee's motion to quash as to the attempted murder charge but denied the motion with respect to the remaining charges. This Court decided McClelland a few months later, and on that day, appellee filed a motion to reconsider his motion to quash. Judge Perez held a hearing on the motion on September 16, 2020. After the victim failed to appear for a fourth time, see N.T. Hearing, 9/16/20, at 3 (prosecutor explaining detectives "were not able to locate" the victim despite visiting three addresses), Judge Perez quashed all outstanding charges. She agreed with appellee there was "no non-hearsay evidence" establishing an "actual connection between him and the crime that occurred." Id. at 6; see Trial Court Op., 12/28/20, at 7 (finding "no admissible evidence here which connects [appellee] to the crimes for which he was charged"; the only evidence to that effect "came from the out of court, oral and written statements of the [victim], none of which were admitted as substantive evidence"). That fact, in Judge Perez's view, "forced [her] under McClelland to grant the motion to quash on all charges." N.T. Hearing, 9/16/20, at 9.
The Commonwealth appealed to the Superior Court, which affirmed. Purporting to follow McClelland's "textual analysis of" Rule 542(E), a three-judge panel held in a published opinion that all "material elements of [a] criminal offense need to be proved at a preliminary hearing by non-hearsay evidence" to avoid "violat[ing] a defendant's constitutional rights to due process." Commonwealth v. Harris, 269 A.3d 534, 547-48 (Pa. Super. 2022). The panel did not describe what it considered to be a "material" element of a crime, and elsewhere in its opinion it used slightly different (but similarly undefined) terms. See id. at 547 (referencing "core elements" and "tangential" issues). At the same time, the panel noted evidence regarding the value of property for grading purposes and lab reports are immaterial matters. See id. As well, it explained "hearsay evidence can be introduced to corroborate direct evidence regarding an element of the crime or crimes charged." Id. Most relevant for our purposes, the panel concluded our decisions "in Verbonitz and McClelland preclude[ ] the Commonwealth from relying on hearsay alone at a preliminary hearing to establish a prima facie case that the defendant committed a crime." Id. at 548. "To interpret [Rule 542] any other way," said the panel, "would violate a defendant's constitutional rights to due process." Id. And since "no direct evidence was offered that [appellee] committed the crimes charged," the panel concluded "the Commonwealth violated [his] fundamental due process rights." Id. The Superior Court therefore affirmed the order granting the motion to quash all charges.
Given its holding, the panel did "not address whether the Commonwealth also violated [appellee]'s constitutional right to confrontation[.]" Harris, 269 A.3d at 548 n.8. We likewise do not reach the issue.
At the Commonwealth's request, we granted allowance of appeal to consider the following rephrased question:
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.Commonwealth v. Harris, 285 A.3d 883 (Pa. 2022) (per curiam).
III. Arguments
The Commonwealth first contends "McClelland does not mandate the Superior Court's sweeping ruling." Commonwealth's Brief at 6. According to the Commonwealth, "[w]hile McClelland clarified some of the questions that followed the Verbonitz plurality decision and the promulgation and amendment of Rule 542(E), its holding was limited." Id. at 13. More to the point, the Commonwealth argues the "only limit this Court has recognized to protect the defendant's due process rights is that the Commonwealth may not establish every element of every offense with hearsay alone." Id. at 24 (emphasis in original). But the Commonwealth stresses that, in this case, it did not rely exclusively on hearsay; it "presented non-hearsay evidence that a shooting occurred, and relied only partially on hearsay to establish some elements of the" crimes charged. Id. at 27. It submits "that difference demands a different analysis." Id.; see id. at 29 ("McClelland does not control the result where, as here, the Commonwealth also presents non-hearsay evidence.").
The Commonwealth additionally takes issue with the panel's interpretation of Rule 542. It faults the panel for not defining "core" or "material" elements of a crime or differentiating them from "non-core," "immaterial," or "tangential" matters - terms that are all absent from the rule. As the Commonwealth sees it, "this novel formulation" is "unworkably vague" and "fundamentally inconsistent with the preliminary hearing judge's central task: to decide whether the Commonwealth has presented a prima facie case as to every element of a charged crime to allow that charge to be held for trial." Id. at 36 (emphasis omitted). It explains that "[e]very statutory element is by definition 'core,' since a failure to establish any element renders the Commonwealth's proof inadequate." Id. (emphasis in original); see id. at 35 (since credibility and weight are irrelevant at preliminary hearings, reasoning "there would simply be no reason for the Commonwealth to introduce the type of immaterial, corroborative, or extraneous evidence . . . the Superior Court held is the only hearsay that Rule 542(E) allows"). In sum, the Commonwealth alleges the panel's decision "neuters Rule 542(E)'s explicit allowance of hearsay at preliminary hearings." Id. at 36; see id. at 20 (arguing Rule 542(E)'s "plain language" permits it to establish "one or more elements of the crime charged, or that the defendant was the person who committed the crime, through hearsay alone").
As they did in McClelland, see McClelland, 233 A.3d at 729-30, the Office of Attorney General ("OAG") and the Pennsylvania District Attorneys Association filed an amicus curiae brief on behalf of the Commonwealth broadly urging us to use this case as a vehicle "to articulate proper parameters for admission of hearsay in preliminary hearings." OAG's Brief at 4. From the amici's perspective, this "should be a qualitative question, not a quantitative one[,]" because the "due process concern is a matter of reliability, not math." Id.; see id. at 17 ("when hearsay is admitted under circumstances providing indicia of reliability and a level of confidence that the Commonwealth will be able to produce admissible evidence at trial consistent with the evidence presented at the hearing, a defendant's due process rights are respected").
Appellee advocates that we resolve this case in his favor on non-constitutional grounds. He assails the Commonwealth for supposedly dodging the issue before us by ignoring the import of Rule 542(D). That subsection, according to appellee, leaves "no doubt that" this Court "considers proof of the elements of an offense as being distinct from proof that the defendant was the one who committed the offense." Appellee's Brief at 15, citing Pa.R.Crim.P. 542(D) (requiring Commonwealth to prove a prima facie case "that (1) an offense has been committed and (2) the defendant has committed it"). Appellee claims this "was an affirmative choice in 2011 to explicitly distinguish the two separate requirements for establishing a prima facie case[.]" Id. at 16. And, when considered along with subsection (E), which permits "a limited right of hearsay evidence only for establishing some elements of an offense[,]" id. (emphasis in original), appellee believes "it is clear that the Commonwealth may not establish a prima facie case that the defendant committed the crime through hearsay, as it did in this case." Id. at 17. According to appellee, this straightforward reading of the rule renders it unnecessary to engage with the panel's "core elements" theory. See id. at 17-18.
In reply, the Commonwealth claims Rule 542(D) supports its position. It argues subsection (D) "defines the prima facie case as being 'that (1) an offense has been committed and (2) the defendant has committed it,' Rule 542(D) (emphasis added), and then says that hearsay 'shall be considered by the issuing authority in determining whether a prima facie case has been established,' Rule 542(E)." Commonwealth's Reply Brief at 2. The Commonwealth takes the position these "two provisions together show that the allowance of hearsay in 542(E) applies to both the defendant's identity and the commission of the crime." Id. at 2-3; see id. at 3 ("Nothing in the rule, nor the cases interpreting it, suggests that hearsay cannot be used to establish defendant's identity.") (emphasis omitted). In any event, the Commonwealth observes that "the rule states that hearsay 'shall be sufficient to establish any element of an offense," and it claims "our courts have spoken of the defendant's identity as an 'element' of the offense." Id., citing Commonwealth v. Bronshtein, 691 A.2d 907, 915-16 (Pa. 1997).
IV. Analysis
We have explained that, 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." McClelland, 233 A.3d at 732 (internal quotations and citation omitted). Here we are presented with a question of law regarding the scope of Pa.R.Crim.P. 542. See Commonwealth v. Lopez, 280 A.3d 887, 894 (Pa. 2022) ("The proper interpretation of a rule of criminal procedure is a question of law[.]"). In construing the Rules of Criminal Procedure, "the principles set forth in Pa.R.J.A. 104 to 115 shall be observed." Pa.R.Crim.P. 101(C). "The object of all interpretation and construction of rules is to ascertain and effectuate the intention of" this Court. Pa.R.J.A. 108 (a). "In construing the language, and giving it effect, we should not interpret the rule's words in isolation, but must read them with reference to the context in which they appear." Lopez, 280 A.3d at 897 (internal quotation marks, ellipses, brackets, and citation omitted). Moreover, "we may consult the explanatory comment of the committee which worked on the rule in determining the proper construction and application thereof." Commonwealth v. Harth, 252 A.3d 600, 617 (Pa. 2021); see also Pa.R.J.A. 108(c) (when the words of a rule are not explicit we may consider, among other things, this Court's precedent interpreting the current rule, commentary accompanying the rule, and the rulemaking history).
As noted at the outset, our focus in this appeal is on subsections (D) and (E) of Rule 542. Subsection (D) states: "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). Contrary to the Commonwealth's assertion this subsection "defines the prima facie case[,]" Commonwealth's Reply Brief at 2, it merely sets the applicable burden: to bind a defendant over for court, the Commonwealth must prove "a prima facie case" both with respect to the elements of the crimes and the defendant's identity. In this way, the rule reflects what has long been regarded as the primary reason for preliminary hearings in this Commonwealth: "It 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." Commonwealth ex rel. Maisenhelder v. Rundle, 198 A.2d 565, 567 (Pa. 1964) (emphasis added). These are independent requirements, as the rule plainly sets forth, and failure to prove a prima facie case as to either prong is fatal to the Commonwealth's case.
We recognize our caselaw has created some uncertainty regarding whether "the rule-based delineation of a prima facie standard [is] meant in whole or in part to connote probable cause[.]" Commonwealth v. Perez, 249 A.3d 1092, 1106 (Pa. 2021) (Saylor, J., concurring). Over the years there have been "varying expressions of this Court" and, "[f]rom some of this Court's formulations, one might [ ] infer that the prima facie burden attaches only to the facet of the Commonwealth's obligation to prove that a crime has been committed, and that a separate probable cause standard pertains to demonstrating that the defendant was the perpetrator." Ricker, 170 A.3d at 503 (Saylor, C.J., concurring), citing, e.g., Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) ("A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense."). Nevertheless, we cannot ignore that the "Rules of Criminal Procedure do not distinguish between abstract crime commission and identity in terms of the applicable standard at preliminary hearings." Id. (continued…) at 503 n.11, citing Pa.R.Crim.P. 542(D). We also observe that the apparent incongruity between our various articulations of the applicable burden and the actual text of Rule 542(D) may be easily explained: perhaps "a prima facie case" simply "entails a mere determination of probable cause." Commonwealth v. Talley, 265 A.3d 485, 517 (Pa. 2021). Some of our cases support this interpretation. See, e.g., Petition of McNair, 187 A. 498, 501 (Pa. 1936) (equating prima facie case with probable cause). However, since this issue is not squarely before us, we do not opine on it further.
This understanding of subsection (D)'s dual burdens informs our construction of subsection (E). See McClelland, 233 A.3d at 734 ("[W]e read the sections of Rule 542 together, and we construe them to give effect to all of the rule's provisions."); accord Pa.R.J.A. 108(b). Beginning with subsection (E)'s first sentence, it states: "Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established." Pa.R.Crim.P. 542(E). In McClelland, we observed the phrase "hearsay as provided by law" is less than clear, but that it "could reasonably mean hearsay as defined by law, i.e.[,] an out-of-court statement presented as evidence of the truth of the matter asserted." 233 A.3d at 735. Upon closer review, we now adopt this interpretation.
Read in context, the first sentence of subsection (E) is a codification of the precept that, "[t]raditionally, our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings[.]" Pa.R.E. 101, Cmt. Indeed, it authorizes the Commonwealth to present, and requires the preliminary hearing judge to consider, what would otherwise be inadmissible hearsay evidence. See Pa.R.E. 802 ("Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute."). Stated differently, the sentence operates as an exception to Pa.R.E. 802's general bar against the use of hearsay, as indicated in that rule's comment. See Pa.R.E. 802, Cmt. ("In preliminary hearings in criminal cases, the court may consider hearsay evidence pursuant to Pa.R.Crim.P. 542(E) and 1003(E).").
It is important to recognize Rule 542 is not concerned with non-hearsayi.e., a statement the declarant makes while testifying at the current trial or hearing or an out-of-court statement that is admissible for some relevant purpose other than to prove the truth of the matter asserted - or with admissible hearsayi.e., hearsay falling under a hearsay exception. It instead governs "inadmissible hearsay" which, unlike non-hearsay and admissible hearsay, "does not constitute legally competent evidence." Verbonitz, 581 A.2d at 174. Thus, while Rule 542 uses the word "hearsay," it more accurately refers to "inadmissible hearsay," since it is the use of legally incompetent, inadmissible hearsay evidence that raises due process concerns. Cf. Commonwealth v. Riggins, 386 A.2d 520, 523 (Pa. 1978) (where hearsay statement identifying defendant was admitted under dying declaration exception, "[t]his evidence alone . . . was sufficient in law to sustain the verdict").
Even though Rule 542(E)'s first sentence requires the preliminary hearing judge to consider hearsay in determining whether a prima facie case has been established - which, as discussed above, means a prima facie case as to both the commission of a crime and the identity of the defendant - it says nothing about the sufficiency of such evidence to meet the applicable burden. Rather, that separate issue is governed by the sentence that immediately follows. The second sentence explains, "[h]earsay 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).
By its plain terms, this sentence speaks only to "element[s] of an offense," id., which pertain solely to Rule 542(D)'s first requirement that the Commonwealth prove a prima facie case that "an offense has been committed[.]" Pa.R.Crim.P. 542(D). Notably, there is no mention whatsoever in subsection (E) of subsection (D)'s second and equally important burden on the Commonwealth to prove a prima facie case that "the defendant has committed it." Id. This strongly suggests hearsay relating to the identity of the offender is insufficient to prove a prima facie case under Rule 542. See generally Pa.R.J.A. 110(c) ("[e]xceptions expressed in a rule shall be construed to exclude all others").
What the text of the rule suggests, its comment confirms. It begins by echoing Pa.R.E. 101's observation that "traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings," but then specifically adds: "especially with regard to the use of hearsay to establish the elements of a prima facie case." Pa.R.Crim.P. 542, Cmt. (emphasis added). "Accordingly," it continues, "hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements is not required at the preliminary hearing." Id. (emphasis added). The comment clearly discusses hearsay only in the context of proving the elements of offenses; it makes no reference to using such evidence as a legitimate or legally competent means of proving a prima facie case as to a defendant's identity. The silence is telling.
Presumably recognizing neither the plain text of the rule, its comment, nor any caselaw supports its proposed reading of Rule 542(E), the Commonwealth makes one last-ditch attempt. It argues subsection (E) permits the use of hearsay to prove a prima facie case with respect to identity because "the rule's reference to 'elements' applies to the defendant's identity, which our courts have treated as an element like any other in the Commonwealth's evidentiary burden." Commonwealth's Brief at 27 n.5; see Commonwealth's Reply Brief at 3 ("our courts have spoken of the defendant's identity as an 'element' of the offense"). But we are unpersuaded.
It is generally true "that a crime conceptually consists of three elements: 'First, the occurrence of the specific kind of injury or loss . . .; secondly, somebody's criminality (in contrast, e.g., to accident) as the source of the loss, - these two together involving the commission of a crime by somebody; and, thirdly, the accused's identity as the doer of this crime.'" Commonwealth v. Ware, 329 A.2d 258, 274 (Pa. 1974), quoting 7 J. Wigmore, Evidence §2072, at 401 (3d ed. 1940) (emphasis removed). Along these lines, we have broadly referred to identity as an element of a crime in limited circumstances - namely, when discussing the admissibility of other crimes evidence. See Bronshtein, 691 A.2d at 915-16 ("The existence of a common scheme is relevant to establish any element of a crime (e.g. the identity or intent of the perpetrator) so long as it does not merely indicate the defendant's propensity to commit similar crimes."). Here, however, we are not concerned with the conceptual elements of crimes and we are not dealing with other crimes evidence. Instead, our task is limited to determining whether "identity" is considered an "element" for purposes of Rule 542. It is not.
Nothing in the rule or its comment suggests an intent to shoehorn identity as an element of the offense under Rule 542. On the contrary, all signs point the other way. As discussed, Rule 542(D) deliberately assigns to the Commonwealth a burden of proving a prima facie case in two different respects. The listing of dual requirements in subsection (D) strongly implies one is not a subset of the other. Moreover, as noted in McClelland, when Rule 542(E) was first promulgated in 2011, it "was of limited scope" - its primary purpose was to ease the Commonwealth's burden in "establish[ing] elements of property offenses." 233 A.3d at 733. Although the 2013 amendment expanded the rule's reach beyond property offenses, the expansion still was limited to elements of crimes, with no indication that identity was ever considered to be one for this purpose. Indeed, even the Crimes Code does not portray identity as an element of an offense in the sense the Commonwealth advocates. See 18 Pa.C.S. §103 (defining "[e]lement of an offense"). All told, we find no support for the proposition that identity is an element of a crime for purposes of Rule 542(E) such that hearsay alone may be used to establish it.
The dissent accuses us of "creat[ing] an artificial distinction between the elements of the offense and the defendant's identity." Dissenting Opinion at 1. Respectfully, as we have explained, it is Rule 542's plain text that creates the distinction. And while it may be true that there is "no reason to treat identity differently from the statutory elements of the crime" at a preliminary hearing, the fact remains that "the current [r]ule does so." Concurring Opinion (Wecht, J.) at 10. In the present adjudicatory context, we are "bound to interpret the rule as currently written[.]" Id. at 11; but see infra n.10 (referring matter to Criminal Procedural Rules Committee).
To summarize the state of the law regarding the use of hearsay at preliminary hearings, Rule 542(E) "is intended to allow some use of" otherwise inadmissible hearsay by the Commonwealth to establish a prima facie case that an offense has been committed. McClelland, 233 A.3d at 735. But "[t]he plain language of the rule does not state a prima facie case may be established solely on the basis of hearsay[,]" and to do so would violate due process in any event. Id. Finally, we now hold, based on the plain language of Rule 542, that inadmissible hearsay alone may not be used to prove a prima facie case as to the defendant's identity. This means the Commonwealth at a preliminary hearing is required to produce some non-hearsay or admissible hearsay evidence to sustain its prima facie burden as to the defendant's identity. See Verbonitz, 581 A.2d at 174 ("In order to satisfy [its] burden of establishing a prima facie case, the Commonwealth must produce . . . legally competent evidence to demonstrate the existence of facts which connect the accused to the crime charged.").
Despite affirming the Superior Court's holding, we disapprove its rationale in three respects. See, e.g., Commonwealth v. Chisebwe, 310 A.3d 262, (Pa. 2024) ("because we review not reasons but judgments," we may uphold a lower court order for any valid reason appearing from record) (internal quotation marks and citations omitted). First, we do not endorse its discussion of "core" elements and the like, terms which do appear in the text of Rule 542. We also reject the panel's opinion to the extent it implies due process "require[s] direct evidence that the defendant was the person who committed the crime[.]" Harris, 269 A.3d at 547 (emphasis added). It has long been the law that "[d]irect evidence of identity is, of course, not necessary and a defendant may be convicted solely on circumstantial evidence." Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973); see Commonwealth v. Lovette, 450 A.2d 975, 977 (Pa. 1982) ("The fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence."). Put simply, circumstantial evidence and hearsay evidence are not opposite sides of the same coin, and Rule 542(E) only precludes the latter from serving as sufficient evidence to bound a case over for court. Third and finally, both the preliminary hearing judge and the panel seemed to believe that only non-hearsay evidence could suffice to establish a prima facie case as to appellee's identity. See N.T. Hearing, 9/16/20, at 6 (referencing lack of "non-hearsay evidence"); Harris, 269 A.3d at 547-48 (same). To reiterate, what matters to establish identity - what Rule 542 demands - is the use of legally competent evidence, such as non-hearsay evidence or admissible hearsay evidence falling under a hearsay exception. Accord supra note 8; see McClelland, 233 A.3d at 738 (Wecht, J., concurring) ("the result of a hearing so intertwined with one's liberty interests cannot rest exclusively upon evidence that is unreliable, inadmissible, and provides no assurances as to the future viability of a particular prosecution").
Our repeated entanglements with Rule 542 over the last few years have convinced us that "the hearsay-related amendments were not promulgated under ideal circumstances and that further reflection and refinement in the rulemaking arena is warranted." Ricker, 170 A.3d at 507 (Saylor, C.J., concurring); see also Perez, 249 A.3d at 1106 (Saylor, J., concurring) (highlighting "view that additional clarification of the 'prima facie' standard governing preliminary hearings . . . is needed"); McClelland, 233 A.3d at 742 (Wecht, J., concurring) (opining that "hearsay should be eliminated from preliminary hearings as a substitute for eyewitness testimony, police testimony, or other testimony bearing upon the establishment of the material elements of a prima facie case"); id. at 749 (Baer, J., dissenting) (advocating "reasonable parameters for the admission of only those types of hearsay evidence that are the most reliable"). Consequently, we once more refer this matter to the Criminal Procedural Rules Committee for it to make recommendations to this Court regarding potential amendment of the rule.
Should the Commonwealth determine it can carry its burden of proof consistent with this opinion, it remains free to "bring the matter again before any other officer empowered to hold a preliminary hearing." Commonwealth v. Prado, 393 A.2d 8, 9 (Pa. 1978); see McClelland, 233 A.3d at 736 n.11 (discharging defendant "without prejudice to the Commonwealth to refile charges and proceed with a new preliminary hearing"). We also remind the Commonwealth that, where intimidation is at issue, as it may have been here, see Commonwealth's Brief at 42 (asserting "intimidation was likely a factor here, where the victim told police that [appellee]'s brother contacted him while he was in the hospital after the shooting, offered to pay him to keep quiet, and told the victim he would kill him if he talked to police"), it can utilize the indicting grand jury. See Pa.R.Crim.P. 556(A) (permitting Commonwealth to "proceed with an indicting grand jury . . . in cases in which witness intimidation has occurred, is occurring, or is likely to occur"); Pa.R.Crim.P. 556.11(A)(2) (authorizing grand jury to indict "based upon evidence it has received, including hearsay evidence as permitted by law, or upon a presentment issued by an investigating grand jury, if the grand jury finds the evidence establishes a prima facie case that (1) an offense has been committed and (2) the defendant has committed it").
Justice Wecht joins the opinion, Justices Donohue and Brobson join the opinion with respect to Parts I-III, and join the plain-text analysis in Part IV.
Justice Donohue files a concurring opinion in which Justice Brobson joins.
Justice Wecht files a concurring opinion.
Justice Mundy files a dissenting opinion in which Chief Justice Todd joins.
CONCURRING OPINION
DONOHUE JUSTICE
I join the Majority Opinion in Parts I-III, and in Part IV insofar as it holds that the plain text of Pa.R.Crim.P. 542 does not allow the Commonwealth to satisfy its prima facie burden to establish the defendant's identity at a preliminary hearing solely through the use of evidence deemed inadmissible pursuant to the rule against hearsay (Pa.R.E. 802). Rule 542(E) must be read in conjunction with the distinction recognized in Rule 542(D) between the elements of a criminal offense (i.e., whether "an offense has been committed") and the identity of the offender. Pa.R.Crim.P. 542(D). Thus, while Rule 542(E) relaxes the rule against hearsay with respect to the Commonwealth's prima face burden at a preliminary hearing to prove the elements of an offense (subject to the limitation set forth in Commonwealth v. McClelland, 233 A.3d 717, 735 (Pa. 2020), that such case cannot be established solely on the basis of hearsay), that provision does not apply to proof of identity because identity is not an element of a criminal offense for purposes of Rule 542.
Majority Op. at 1 (holding "the plain text of [Rule 542] does not permit the use of hearsay" for the purpose of proving "the defendant's identity" at a preliminary hearing).
I write separately only to distance myself from those aspects of the Majority's discussion in Part IV that go beyond an examination of the plain text of Rule 542. Thus, I do not join the Majority Opinion insofar as it justifies its conclusion for reasons other than the text of Rule 542.
Justice Brobson joins this concurring opinion.
CONCURRING OPINION
WECHT JUSTICE
Once again, we must address the use of hearsay at preliminary hearings. Make no mistake: this recurring problem is one of this Court's own making. Prior to 2013, Pennsylvania courts adhered to a straightforward rule: the use of hearsay at preliminary hearings was limited to establishing elements of criminal offenses that involved "proof of the ownership of, non-permitted use of, damage to, or value of property." This rule was not broken. It required no fixing. For unexplained reasons, and despite the lack of any indication that this rule was interfering with the fair and reliable operation of preliminary hearings, this Court decided to experiment. And that's where the trouble began.
This is at least our fourth attempt to make sense of the problems that this Court created by allowing the Commonwealth to use inherently untrustworthy and unreliable evidence to establish a prima facie case. See Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990) (plurality); Commonwealth v. Ricker, 170 A.3d 494 (Pa. 2017) (per curiam) (dismissed as improvidently granted); Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020). Unfortunately, this likely will not be our last attempt.
Pa.R.Crim.P. 542(E) (effective 2/28/2011-6/1/2013).
In 2013, this Court committed an unforced error: whereas the settled rule had allowed the Commonwealth to use hearsay only to prove issues related to the ownership and value of property, a new rule issued, allowing the Commonwealth to use hearsay to prove "any" element of a crime. This has been a failed experiment. As written, the new rule initially was construed to allow the Commonwealth to use hearsay to prove not just "any" element, but every element. In McClelland, which followed an impasse in Ricker,a majority of this Court agreed that such an interpretation violates due process. But a problem remained in McClelland's wake: if the Commonwealth cannot use hearsay to establish the entirety of a prima facie case, how much hearsay can it use? That is the unstated (and, alas, unresolved) question at the heart of this case. Today's Majority offers a reasonable interpretation of Rule 542. But the question of "how much is too much" remains. Today's ruling makes clear that the Commonwealth cannot prove identity exclusively with hearsay. But this Court still has not announced how much hearsay can be used to prove "any" of the other elements of a crime.
Pa.R.Crim.P. 540(E) (current version).
In Ricker, this Court tried, but failed, to resolve the issue of whether a prima facie case built entirely upon hearsay violates due process. We revisited the issue in McClelland.
See McClelland, 233 A.3d at 736.
The time has come to end the failed experiment that this Court initiated in 2013. More than ten years of experience with Rule 542(E) has generated a tremendous amount of litigation, with no end in sight. Throughout it all, no reason has emerged to suggest that the use of hearsay has improved the functioning of, or the interests served by, preliminary hearings. In fact, quite the opposite. I join today's Majority because it correctly interprets the language that currently appears in Rule 542. However, it is time for this Court to stop trying to make sense of our own ill-conceived Rule. We should rewrite the Rule, and end this futile quest of trying to guess the point at which a legal burden can be satisfied with incompetent and otherwise inadmissible evidence.
Hearsay evidence-an out of court statement that is offered for the truth of the matter asserted-is "incompetent to establish any specific fact," and is "in its own nature inadmissible." "Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible." Naturally, then, the question of how much hearsay should be used at a hearing that implicates a criminal defendant's liberty interests should be easy to answer. How much inadmissible evidence should be admissible? The answer is none.
See Pa.R.E. 801(c)(1)-(2).
Queen v. Hepburn, 11 U.S. 290, 295 (1813) (emphasis in original).
Id.
Id. at 296.
Over the years, as this Court has considered cases on this topic, the Commonwealth has not offered a proper justification for lowering the evidentiary bar in this manner for preliminary hearings. The Commonwealth has noted that neither the United States Constitution nor the Pennsylvania Constitution requires a preliminary hearing. That is true enough. But then the Commonwealth asserts that, having provided for such a hearing, the law does not also provide that the hearing includes the full panoply of constitutional rights. That our Constitutions do not require a particular hearing does not mean that the hearing, once provided, may be treated as an empty formality. In the law, the truth matters. Those that find themselves involved in the criminal justice system are entitled to assurance that the system is fair, that the adjudications are reliable, and that jurists make decisions based upon competent, reliable evidence.
See, e.g., Commonwealth's Br. at 29-34.
The Commonwealth has expressed concern that, if hearsay is prohibited in toto at preliminary hearings, those hearings will devolve into mini-trials. Before 2013, hearsay was largely excluded from use at preliminary hearings. There is no evidence to suggest that the criminal justice system was bogged down, or that preliminary hearings had become mini-trials encumbered by numerous witnesses, credibility issues, and constant evidentiary disputes. There is no reason to believe that, if we return the Rule to its pre-2013 status, mini-trials would become the norm or the court system would grind to a halt. Indeed, history and experience suggest the opposite. There is no reason to doubt that the vast majority of preliminary hearings are proceeding today as they always have, with live witnesses and competent evidence. Both before 2013 and since 2013, preliminary hearings have maintained viability without the need for hearsay, and no evidence suggests a restriction on hearsay would transform such hearings into mini-trials.
See id. at 32.
Nor is there any reason to believe that the insistence upon competent evidence would lead to material alterations in how preliminary hearings are conducted. The Commonwealth must meet only a prima facie standard, the lowest burden in our criminal law. This requires only a bare minimum showing: that "an offense has been committed" and that "the defendant has committed it." This burden is far removed from the trial standard of proof beyond a reasonable doubt. Furthermore, credibility of witnesses is not a consideration at a preliminary hearing. The Commonwealth is not required to establish, through its questioning or through separate corroborating evidence, the credibility of its witnesses. Hence, by its very nature, a preliminary hearing cannot become a mini-trial. Limiting (or prohibiting) the use of hearsay will not somehow change that hearing's fundamental character.
The use of hearsay at preliminary hearings does not merely fail to serve any valid interests. As I explained in McClelland, its use actually disserves the interests of "each of the three principal players" at such hearings: (1) the magisterial district judge; (2) the prosecutor; and (3) the charged defendant.
McClelland, 233 A.3d at 739 (Wecht, J., concurring).
The magisterial district judge presides over the preliminary hearing and is responsible for a number of decisions critical to the progression of the criminal justice process in each individual case. The judge must listen to the evidence and decide whether the defendant should "be discharged," Pa.R.Crim.P. 542(A)(2), or whether the Commonwealth has established a prima facie case such that the defendant should be "bound over to court according to law," id. The magisterial district judge's decision to bind a case for trial is an authorization to the Commonwealth to continue to detain the defendant-either physically in jail or by compelling the defendant to appear for hearings and to stand for trial. The jurist presides over the hearing in order 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." Commonwealth ex rel. Maisenhelder v. Rundle, 198 A.2d 565, 567 (Pa. 1964).
The evidentiary presentation, and the decision flowing from it, is a preview of what would be presented at an actual trial and is meant to convince the magisterial district judge that there is at least some evidence for all elements of the charged offenses, and that the charges and detention accordingly are warranted. The actual presentation informs the magisterial district judge's decision as to whether to hold all of the charges for trial, dismiss all of the charges, or dismiss some and hold others. The Commonwealth's evidence illuminates for the magisterial district judge the nature and severity of the crimes charged, the facts and circumstances underlying the arrest and the charges, and the role that the defendant played in the crimes. This body of information is material not just to the prima facie determination, but it also provides a foundation to modify, reduce, or increase the defendant's bail.
The use of inadmissible hearsay undermines each of these decisions. The more hearsay is relied upon at a preliminary hearing, the less "confidence can be ascribed to that decision. "In principle, the justification for the Commonwealth's charges would be no different than if the prosecutor had looked up to the judicial officer and said 'trust me, we can prove this case later.'" Ricker, 170 A.3d at 519 (Wecht, J., dissenting). This is true when
the Commonwealth relies upon any amount of hearsay to establish the material aspects of its prima facie case.
Evidence that the law deems unreliable per se naturally engenders unreliable results. Not only is the prima facie determination questionable when based upon hearsay; so, too, would be any collateral decisions that are made based upon such information, decisions such as bail modifications or issuances of "no contact" or "stay away" orders. Simply put, reliance upon hearsay undermines each and every aspect of the magisterial district judge's role at this "critical stage."
For the Commonwealth, the preliminary hearing often is the prosecutor's entry point into the process, and provides the prosecutor with the first substantive view of the evidence that police uncovered before charging the defendant. The hearing affords the Commonwealth an opportunity to speak to its witnesses for the first time before a neutral fact-finder, to present live testimony to enable evaluation of the strengths and weaknesses of the case, to add or withdraw charges as necessary, and to set the case on course for a trial on charges that are warranted by the facts. The Commonwealth can make its own initial credibility assessments, direct additional investigation or scientific testing of evidence, and contemplate future plea offers, all based upon the preview of the case that a reliable preliminary hearing provides.
Having such a solid understanding of the strengths and weaknesses of a case promotes efficiency in the process by prompting the Commonwealth to utilize its resources to prosecute only the charges that are reasonably capable of being proven at trial. Knowing from the outset that a case would be difficult or impossible to prove, or that a case does not warrant the severity of the charges being pursued by the police initially, the prosecution may tailor the allocation of its resources prudently, perhaps by seeking to reach a plea agreement with the defendant, which, in turn, provides the corollary benefit (among others) of minimizing the amount of exposure the victim of crime has to the court system.
The Commonwealth can achieve none of this if the case relies upon the weak and unreliable foundation that hearsay lays. Hearsay can taint not only the initial perception of the strength of a case, but reliance upon the same might influence future prosecutorial decisions and arguments, heightening the possibility that a defendant could remain incarcerated longer than is necessary or justified, or that a victim will be forced to testify in cases that should have settled with plea bargains.
It neither diminishes nor harms any legitimate prosecutorial purpose to require the Commonwealth to meet its evidentiary burden with actual, admissible evidence. There is a valid concern that requiring live testimony to establish material elements of a prima facie case would increase victims' exposure to the criminal justice process. I do not discount this argument, nor do I in any way downplay the trauma that crime and the obligations
attendant to a prosecution of that crime have on victims. But the Commonwealth's role is more than just advocating for one victim, or even for victims generally. The Commonwealth's greater obligation is to represent the people as a whole, and to stand for the interests of the state in prosecuting crimes. A prosecutor's job is "not merely to convict." Commonwealth v. Clancy, 192 A.3d 44, 52 (Pa. 2018) (quoting Commonwealth v. Starks, 387 A.2d 829, 831 (Pa. 1978)). The prosecutor is an "officer of the court," an "administrator of justice," and an "advocate." Id. In wearing each of these three hats, the prosecutor's devotion is to the law, and the prosecutor simultaneously must "enforce the interests of the public" and "respect the rights of the defendant." Id.
At all times, "[t]he prosecutor must ensure that 'the defendant is accorded procedural justice and that [adjudications are] decided upon the basis of sufficient evidence.'" Id. at 52-53 (citing Pa.R.P.C. 3.8 cmt. 1; and Model Rules of Prof'l Conduct 3.8 cmt. 1 (Am. Bar Ass'n 2015)) (brackets omitted). Adjudications predicated upon inadmissible evidence satisfy neither of these prosecutorial responsibilities. It does not matter that the evidentiary threshold is low, or that the preliminary hearing is not intended to be a full criminal trial. It is a proceeding that affects the substantive rights of an accused and implicates significant societal interests, and, once afforded as a matter of law, it cannot be cast aside as a mere formality. Hearsay is not sufficient evidence. Hearings based upon insufficient evidence fail to afford procedural justice. Prosecutors are duty-bound to satisfy lofty responsibilities. Allowing those ministers of justice to circumvent burdens using inadmissible evidence serves none of those responsibilities.
For the defendant, the preliminary hearing is a crucial proceeding. As I explained in Ricker:
The preliminary hearing was not created for the purpose of serving as a trial preparation tool for the defense. This does not mean that no benefits necessarily and naturally accrue to the defendant in conducting the hearing according to its true purpose and within the confines of our Constitutions. A true preliminary hearing involves introduction by the Commonwealth of the minimum competent evidence to establish a prima facie case. In doing so, the Commonwealth opens its case to preliminary inspection and subjects its witnesses to basic cross-examination. Each is necessary to convince the presiding judicial officer that the Commonwealth's restraint upon the accused's liberty is warranted. . . . [T]his allows the accused and his counsel to probe the testimony, to make arguments against the charges or in favor of bail, and to preserve favorable testimony. It also serves as a limited discovery tool, which can inform decisions on whether to challenge the seizure of the accused or the
acquisition of evidence in a suppression motion, and on what defense to pursue, if any. Moreover, the ability to participate fully in a preliminary hearing can aid in focusing subsequent expenditures of limited investigative resources, something that is particularly beneficial to chronically (and unlawfully) underfunded public defender's offices. See Kuren v. Luzerne Cty., 146 A.3d 715, 717 (Pa. 2016).
Ricker, 170 A.3d at 518 (some citations omitted).
Reliance upon hearsay to establish any of the material elements of a preliminary hearing would render "the right to counsel and the rule-based right to cross-examine witnesses . . . nothing more than hollow formalities, promises broken." Id. at 519.
There would be no ability to test the Commonwealth's prima facie case, no witnesses to cross-examine, no testimony to preserve. Counsel would not be able to identify weaknesses in the Commonwealth's case or to identify possible defenses, as counsel would have no reason to be confident that the [hearsay] accurately or fully reflect[s] what the witness would say on the witness stand at trial. The right to counsel, and [the] concomitant rule-based right to cross-examine witnesses, would shrink to a right merely to have a warm body stand next to the accused, incapable of serving any real function on the accused's behalf.
Additionally, the accused would be deprived of the other benefits that flow from participating in a preliminary hearing, such as obtaining a fair idea of the case against him or her and being able to allocate resources accordingly. At the same time, the Commonwealth would benefit from shielding its case and its witnesses from testing and examination, and would be permitted to proceed on little more than its assurance that it will produce competent evidence at some later date.Id.
McClelland, 233 A.3d at 739-42 (Wecht, J., concurring).
Neither the Commonwealth's arguments, nor this Court's precedents, justifies disregarding these compelling interests for the sake of convenience. Even the use of some hearsay evidence demeans and diminishes these interests. Perhaps in the next case-and because today's case again leaves open the question of how much hearsay is allowed under the Rule, there will be a next case-this Court will realize as much, and will bring an end to this fruitless endeavor.
In other non-trial contexts, we do not permit the use of hearsay as a method of proving a fact. For instance, in mental illness adjudications-which, like preliminary hearings are not full trials but implicate important liberty interests and afford the right to counsel-we elevate the rights and interests of the parties over the convenience of using hearsay. In In re Hutchinson, we held as follows:
Furthermore, appellant's right to confront and cross-examine witnesses necessarily implies that hearsay evidence is inadmissible. 50 P.S. § 7304(e)(3). Finally, considering the grave consequences of an adjudication of mental illness under § 304, it is imperative that the commitment court strictly comply with the rules of evidence generally applicable to other proceedings which may result in an extended deprivation of an individual's liberty. The Commonwealth's burden to present admissible evidence at the commitment hearings is small compared to the individual's interest in not being deprived of liberty on the basis of inherently unreliable evidence.
In re Hutchinson, 454 A.2d 1008, 1011 n.8 (Pa. 1982) (citing Commonwealth ex rel. Finken v. Roop, 339 A.2d 764, 773-74 (Pa. Super. 1975)).
We should treat preliminary hearings the same way. As in mental health proceedings, the burden of using competent evidence pales in comparison to the rights and interests at stake.
There is another reason that we should go back to the proverbial drawing board with this Rule. The Majority's interpretation of the specific text used in the Rule, although correct, is detached from the way in which practitioners and judges understand criminal offenses. First, and foremost, there is no compelling or even logical reason to treat identity as a superior aspect of a prima facie case, such that it cannot be proven by hearsay, while the other elements of the offense can be proven by hearsay. Second, while the language of the rule might support treating identity and statutory elements as separate for purposes of the use of hearsay, this distinction does not comport with how practitioners and magisterial judges treat these components in practice. To the contrary, these elements are treated as parts of the whole. Ask any defense attorney or prosecutor and they will tell you: identity is an implicit element of every crime, and it necessarily garners the same treatment as any other element. The terms of the rule notwithstanding, there is no reason to treat identity differently from the statutory elements of the crime. Yet, oddly, the current Rule does so.
Fortunately, Rule 542 is not a legislative enactment. We are not bound to live with it. It is a procedural rule, written and adopted by this Court. We can change it at will, and we should do so post-haste. The Rule has done enough damage, both in the amount of resources that this Court has expended trying to make heads or tails of it and in allowing the Commonwealth to satisfy its burden with untrustworthy evidence. Left to my own devices, and for the reasons stated herein and in my opinions in Ricker and McClelland, I would do away with any allowance for the use of hearsay at preliminary hearings. Inadmissible evidence should be inadmissible.
However, in the event that this Court is not inclined to banish hearsay entirely from preliminary hearings, I remain mindful of the fact that some types of hearsay historically have been permitted in order to facilitate the swift and efficient conduct of preliminary hearings. Some evidence, such as scientific or forensic lab reports, takes a long time to produce, is more readily provable than witness-based hearsay, and is less likely to be unavailable later at trial. Deferring preliminary hearings for the production of such evidence might unreasonably delay those hearings, jeopardize the Commonwealth's ability to comply with its speedy trial obligations, and unnecessarily lengthen defendants' pre-trial incarceration. Thus, I propose that we replace the current version of Rule 542(E) with the following modified version of the pre-2013 rule:
See McClelland, 233 A.3d at 742 (Wecht, J., concurring).
(E) Hearsay as provided by law shall not be considered by the issuing authority in determining whether a prima facie case has been established, except to establish the value of real or personal property for grading purposes, to present scientific, technical, or forensic information, or to introduce laboratory reports.
Regardless of the path that we take from here, it has become unavoidably clear that change should occur, and soon. That said, as I am bound to interpret the rule as currently written, I join the Majority Opinion.
DISSENTING OPINION
MUNDY JUSTICE
The Majority holds that Pennsylvania Rule of Criminal Procedure 542(E) does not permit the Commonwealth to prove a defendant's identity through hearsay alone at a preliminary hearing. Majority Op. at 1. This interpretation contradicts the plain and unambiguous language of Rule 542(E), which explicitly provides that "[h]earsay evidence shall be sufficient to establish any element of an offense[.]" Pa.R.Crim.P. 542(E). Rather than adhering to this clear directive, the Majority creates an artificial distinction between the elements of the offense and the defendant's identity. Accordingly, I dissent.
In 2011, Rule 542(E) limited the use of hearsay at preliminary hearings to that establishing "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). The Comment further provided in pertinent part:
Paragraph (E) was added to the rule in 2011 to clarify that 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 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 Philadelphi Municipal Court.Pa.R.Crim.P. 542(E), Comment (2011) (emphasis added).
In 2013, Rule 542(E) was amended to its current form:
(D) 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.
(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 non-permitted use of, damage to, or value of property.Pa.R.Crim.P. 542(D)-(E) (emphasis added). The Comment, also amended, now reads:
Paragraph (E) was amended in 2013 to 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 Rule of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements is not required at the preliminary hearing. But compare Commonwealth ex rel. Buchanan v. Verbonitz, [ ] 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), Comment (emphasis added).
As the Majority recognizes, Rule 542(E) has been the subject of various recent appeals before this Court, with each case seeking to clarify the scope of hearsay evidence the Commonwealth may rely on to prove a prima facie case at a preliminary hearing. See Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020); Commonwealth v. Ricker, 135 A.3d 175 (Pa. 2016), appeal dismissed as improvidently granted, 170 A.3d 494 (Pa. 2017). Our most recent attempt at such clarification was McClelland, in which the Court 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." McClelland, 233 A.3d at 734. In doing so, the Court reaffirmed the validity of Verbonitz. See generally Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (1990) (plurality) (holding that hearsay evidence alone is insufficient to establish a prima facie case at a preliminary hearing). Although McClelland concluded the Commonwealth may not prove its entire prima facie case through hearsay at the preliminary hearing, it left open the precise degree of hearsay permitted and whether hearsay may be used to demonstrate a defendant's identity.
Although Verbonitz was a plurality decision, the McClelland Court determined its holding in this regard was binding precedent because "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 'fundamental due process requires that no adjudication be based solely on hearsay evidence.'" McClelland, 233 A.3d at 722 (quoting Verbonitz, 581 A.2d at 174 (Larsen, J., lead opinion); id. at 176 (Flaherty, J., concurring)). I joined Chief Justice Baer's dissenting opinion in McClelland in which he opined, inter alia, that Verbonitz has been widely viewed as a plurality opinion for decades and should not be viewed with such authoritative value. See McClelland, 233 A.3d at 744 (C.J. Baer, dissenting). I nonetheless recognize this Court is now bound by our decision in McClelland.
Turning back to the text of Rule 542, the Majority begins by highlighting the "dual burdens" of Rule 542(D). It reasons that a plain reading of this subsection makes clear that "the Commonwealth must prove 'a prima facie case' both with respect to the elements of the crimes and the defendant's identity" and the failure to satisfy either prong is fatal to the Commonwealth's case. Majority Op. at 12 (emphasis in original). It further finds that Rule 542(D) informs Rule 542(E). The Majority reads the latter subsection to pertain only to the elements of an offense, which does not include the identity of the perpetrator. In sum, the Majority holds that the Commonwealth must present a prima facie case as to the elements of the offense and the identity of the perpetrator, neither of which may be done through hearsay alone pursuant to McClelland. Majority Op. at 13-14. In reaching this conclusion, the Majority recognizes that "our caselaw has created some uncertainty" concerning whether such a distinction between the elements of the offense and the identity of the perpetrator exists. See Ricker, 170 A.3d at 503 (Saylor, C.J., concurring) ("Nevertheless, we cannot ignore that the 'Rules of Criminal Procedure do not distinguish between abstract crime commission and identity in terms of the applicable standard at preliminary hearings.").
In my view, Rule 542(D) simply indicates that the Commonwealth must establish by a preponderance of the evidence that a crime was committed and the defendant committed it. It says nothing about whether the defendant's identity is an element of an offense, which is understandable because offenses have widely-varying definitions. Further, to the extent the Majority's assessment may be construed to indicate a perpetrator's identity is a standalone offense element, such a predicate is questionable - as even the majority appears to recognize. Cf. Majority Op. at 12 n.7 (suggesting that preliminary hearing standards do not recognize a distinction between abstract crime commission and the perpetrator's identity). In fact, any element of an offense that involves an actus reus or mens rea inherently involves identity: it is impossible for the Commonwealth to prove such an element at trial without establishing the identity of the person who committed the act or had the requisite scienter.
To illustrate, consider the offense of witness intimidation, one variety of which is defined as follows:
(a) Offense defined. - A person commits an offense if, with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent
or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to: . . . (6) Absent himself from any proceeding or investigation to which he has been legally summoned.
(b) Grading. - (1) The offense is a felony of the degree indicated in paragraphs (2) through (4) if: (i) The actor employs force, violence or deception, or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person. . . . (2) The offense is a felony of the first degree if a felony of the first degree or murder in the first or second degree was charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.18 Pa.C.S. § 4952(a). See generally Commonwealth v. Dixon, 255 A.3d 1258 (Pa. 2021) (involving this crime). The above involves multiple elements with an identity component: (i) intimidating or attempting to intimidate by threat or violence a witness or victim into absenting himself from a proceeding or investigation to which he has been legally summoned; (ii) doing so with the intent or knowledge that the conduct would obstruct, impede, impair, prevent, or interfere with the administration of criminal justice; and (iii) using force, violence, or deception, or threats to employ force or violence upon the witness or victim or another person. Each such element only makes any sense if the identity of the alleged perpetrator is known and proved. Without proving identity, the Commonwealth cannot prove the element at trial. By contrast, there are some elements that do not involve identity. In the above example, it is an element of the first-degree-felony version of the crime that the underlying case - as to which the witness was intimidated into absenting himself - involved a charge of a first-degree felony or first- or second-degree murder. Non-identity elements are ordinarily attendant circumstances or the results of the conduct. See generally State v. Mekoshvili, 280 A.3d 388, 397 (Conn. 2022) (reciting that offense elements consist of "the requisite mens rea, actus reus, and any required results or attendant circumstances"). In brief, the Majority, in my view, makes a false distinction between a crime with its elements in the abstract, and the identity of the perpetrator as a distinct, additional element.
Under Rule 542, the Commonwealth may prove any of these elements through hearsay alone, with the judicially-imposed caveat that its whole case may not rest solely on hearsay. See Pa.R.Crim.P. 542(D), (E) ("Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of non-permitted use of, damage to, or value of property.") (emphasis added). It is also apparent from a review of the former and current versions of Rule 542, as well as the corresponding Comments, that the instant version of Rule 542 is more expansive than the former and does not appear to limit the use of hearsay to those elements regarding proof of value, ownership, or non-permission of use frequently relating to property crimes. In sum, then, I would find that the Commonwealth is indeed permitted to prove a defendant's identity at the preliminary hearing through hearsay alone, so long as it demonstrates at least one element of the offense in question through other reliable means. Applying this interpretation to the case at hand, I believe the Commonwealth presented sufficient evidence to establish a prima facie case to hold Harris for trial. While its evidence concerning Harris' identity constituted hearsay, its whole case was not based on hearsay alone in accordance with McClelland. I therefore disagree with the Majority's decision to affirm the Superior Court's decision granting the motion to quash all charges. As in McClelland, I continue to believe that referral to the Criminal Procedure Rules Committee is the best course of action to remedy the shortcomings of Rule 542 that will surely continue to plague this Court. See McClelland, 233 A.3d at 749-50 (Baer, C.J., dissenting). In light of the foregoing, I respectfully dissent.
Again, the degree of hearsay versus non-hearsay evidence that must be presented remains to be decided.
In its response, the Majority insists that its distinction between the elements of the offense and the defendant's identity is supported by the plain text of Rule 542. Majority Op. at 17 n.9. Respectfully, Rule 542 contains no such distinction. Again, Rule 542 clearly states that "any element" of an offense may be proven through hearsay. If the intent of the rule was to treat identity differently, the rule would have been drafted as such. The Majority cites no binding authority to support its reading and instead reinforces its position by citing Justice Wecht's concurring opinion reaching the same conclusion. Id.
Chief Justice Todd joins this dissenting opinion.