For the Defense - Vol. 6, Issue 2 - 23

Verbonitz Reaffirmed, Ricker Disapproved:
Commonwealth v. McClelland and Hearsay
at the Preliminary Hearing
T
he Supreme Court of the United States has held
that, although not constitutionally mandated,
a preliminary hearing is a " critical stage " of
a state's criminal process at which the accused is
as much entitled to the aid of counsel as the trial
itself.1
The significance of a preliminary hearing's
principal function - to protect an individual's right
against an unlawful arrest and detention - cannot
be understated.2
In theory, the preliminary hearing
operates as a vital protection " against unwarranted
governmental intrusions upon a citizen's liberty. " 3
In practice, preliminary hearings, as they have
been conducted in magisterial district courts across
Pennsylvania in recent years, have been little more
than a formality in which magistrates act as a rubber
stamp for the Commonwealth. However, a recent
decision of the Pennsylvania Supreme Court held that
hearsay alone is insufficient to establish a prima facie
case at a preliminary hearing. It explained that such a
presentation violates principles of fundamental due
process. Despite this holding, additional questions
still linger about how the Pennsylvania Supreme
Court's decision will be applied in future decisions.
The admission of hearsay at preliminary hearings
has caused consternation for magisterial district
judges, prosecutors, and defendants. In 1990, in
Commonwealth ex rel. Buchanan v. Verbonitz,
a majority of the justices on the Pennsylvania
Supreme Court agreed that hearsay evidence alone
is insufficient to establish a prima facie case at a
preliminary hearing.4
At that time, the Pennsylvania
Rules of Criminal Procedure were silent concerning
whether, or how much, hearsay was permitted at
a preliminary hearing. In 2011, the Pennsylvania
Supreme Court promulgated Pennsylvania Rule
of Criminal Procedure 542(E), which stated that
hearsay as provided by law " shall be sufficient
to establish any element of an offense requiring
proof of the ownership of, non-permitted use of,
damage to, or value of property. " 5
In 2013, the Pennsylvania Supreme Court
expanded Rule 542(E) as follows:
Hearsay as provided by law shall be
considered by the issuing authority in
Vol. 6, Issue 2 l For The Defense 23
Stephanie Noel
and Michael Ovens

For the Defense - Vol. 6, Issue 2

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