For the Defense - Vol. 6, Issue 1 - 39

the child's forensic interview. McClelland filed a
Motion for Habeas Corpus, asserting that reliance
on the trooper's hearsay testimony alone violated
his state and federal right to cross-examination and
to due process. The trial court denied the motion
but permitted McClelland to file an interlocutory
appeal.
On appeal, the Superior Court relied upon its
prior decision in Commonwealth v. Ricker15 to
dismiss the confrontation clause challenge. In
Ricker, the Superior Court interpreted Rule 542
of the Pennsylvania Rules of Criminal Procedure
as permitting hearsay to establish every element
of an offense at a preliminary hearing. Further, it
held complete reliance on hearsay at a preliminary
hearing did not violate the right to confrontation.
As to the due process challenge, the Superior
Court acknowledged that due process principles do
apply to procedures implemented at preliminary
hearings. Nevertheless, the Superior Court did
not find that McClelland's preliminary hearing
offended due process or that the Supreme Court's
prior holding in Verbonitz controlled the outcome
of the case. Although the Superior Court found
that the circumstances of Verbonitz were virtually
indistinguishable from those of McClelland, the
Court concluded that a majority of justices had
not agreed upon the rationale underpinning the
decision.
The Supreme Court granted allowance of appeal
and held, " [i]n Verbonitz, the Court determined
the Commonwealth failed to establish a prima
facie case at a preliminary hearing. We have little
difficulty in stating with certainty that five Justices
in Verbonitz agreed a prima facie case cannot be
established by hearsay evidence alone, and the
common rationale among those Justices involved
due process considerations. " 16
The Court next considered the question of
whether the subsequent promulgation of Rule 542
affected the continuing validity of the Verbonitz's
holding. The Supreme Court deemed the language
of Rule 542(E) ambiguous, and after employing
principles of statutory interpretation, concluded
that the rule " does not evince an articulated intent
to overrule Verbonitz or re-affirm it; instead,
subsection (E) is intended to allow some use of
hearsay. The plain language of the rule does not
state a prima facie case may be established solely

on hearsay, despite the Superior Court's contrary
interpretation [in Ricker I]. " 17
In conclusion, the Supreme Court emphasized that
" [t]he primary reason for the preliminary hearing
is to protect an individual's right against unlawful
arrest and detention " and, while the full panoply
of rights does not apply at this stage of a criminal
proceeding, " due process clearly attaches. " 18
It further held the Commonwealth's exclusive
reliance upon evidence at a preliminary hearing,
that could not be presented at trial, violated due
process. The Supreme Court re-affirmed the validity
of Verbonitz, expressly disapproved of Ricker I, and
discharged McClelland without prejudice.

Commonwealth v. Katona, 240 A.3d 463 (Pa.
filed October 21, 2020)
In Katona, the Supreme Court considered
whether the independent source doctrine
remains applicable in some instances where the
" independent source " is not truly independent
from the investigative team that discovered it.
Here, based upon the cooperation of a
confidential informant with the Pennsylvania State
Police in a drug investigation, the Office of the
Attorney General sought and obtained a wiretap
order authorizing the CI to wear a recording device
inside Katona's residence. This order specifically
" authorized continuous interceptions of all inhome conversations for a period of thirty days. " 19
The Commonwealth sought and obtained one
extension to this order, which resulted in recordings
for a period of forty-five days.
At the end of this period, the Pennsylvania
State Police sought and obtained an anticipatory
search warrant based upon information " including
interviews conducted with the CI, purchases
of controlled substances, controlled monetary
payments and information received from members
of the [PSP] involved with this investigation and
others with expertise in the field of narcotics
investigations[.] " 20 A subsequent search permitted
the police to seize 84.2 grams of cocaine and 99.64
grams of methamphetamine.
Katona filed a motion to suppress and argued,
among other things, that the wiretap order
impermissibly permitted the police to record him
over a lengthy period when, in Katona's view,

Vol. 6, Issue 1 l For The Defense

For the Defense - Vol. 6, Issue 1

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