For the Defense - Vol. 6, Issue 2 - 24

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.6
This amendment has resulted in two proprosecution
decisions in the Superior Court of
Pennsylvania, both of which threatened the
principal functions of a preliminary hearing.
The first was the Superior Court's 2015 decision
in Commonwealth v. Ricker, which declined to
follow Verbonitz, considering it non-precedential.
The Superior Court in Ricker instead held that
the Commonwealth's presentation of hearsay
evidence alone was sufficient to establish a prima
facie case and that criminal defendants have no
state or federal constitutional right to confront
witnesses against them at a preliminary hearing.7
Prosecutors have exploited the opportunity
provided by Ricker to proceed at preliminary
hearings without presenting the testimony of
witnesses to the alleged offense, even when they
were available for court.8
Although the Superior Court, in Ricker, held that
a prima facie case consisting of hearsay alone does
not violate the confrontation clause, it left open
the question whether the same would violate
the due process clause. Criminal defendants
were dealt another devastating blow in 2017, in
Commonwealth v. McClelland, which held that
a prosecutor's exclusive reliance on hearsay at a
preliminary hearing did not violate due process.9
Donald McClelland was accused of sexually
assaulting an eight-year-old child.10
The child provided details of
At McClelland's preliminary
The trooper's preliminary
The accusations
came to light following a delayed report of the
alleged incident.11
the alleged incident during an interview at a child
advocacy center.12
hearing, the Commonwealth presented only the
testimony of a Pennsylvania state trooper who
watched the child's interview via a video link. The
child did not testify.13
hearing testimony consisted of hearsay statements
made by the child during the interview. The
magistrate held the charges for court.14
McClelland
sought a writ of habeas corpus dismissing the case.
He argued that binding the charges over for trial
based on hearsay evidence alone violated his rights
of confrontation and to due process under the
state and federal constitutions.15
The trial court
denied McClelland's petition, and an interlocutory
appeal filed by McClelland followed.16
24 For The Defense l Vol. 6, Issue 2
The Superior Court affirmed. After reviewing the
federal law, state law and constitutional principles
governing the initiation of criminal prosecutions,
the Superior Court questioned whether due
process protections apply to preliminary hearings,
which are not constitutionally mandated and
are, instead, a statutory right. It held that " due
process principles apply to the procedures which
implement the statutory right to preliminary
hearing. " 17
The Superior Court next explained that,
because the U.S. Constitution does not require the
federal government to hold preliminary hearings,
a right to the same was not " implicit in the
concept of ordered liberty, " and, thus, principles
of substantive due process under the Fourteenth
Amendment do not apply.18
The Superior Court also examined whether the
procedures afforded to McClelland were sufficient
under principles of procedural due process, which
require only " adequate notice, the opportunity to
be heard, and the chance to defend oneself before
a fair and impartial tribunal having jurisdiction over
the case. " 19
The Superior Court reasoned that no
procedural due process violation occurred because
each requirement was satisfied, and McClelland's
" real interest does not lie in cross-examining the
witness in an attempt to secure dismissal at the
preliminary hearing [but rather] in probing the
strength of the Commonwealth's case for the
subsequent trial. " 20
Specifically, the Superior Court
noted that McClelland did not claim that a prima
facie case would not have been established if the
child had testified at the preliminary hearing but,
rather, that he was deprived of the opportunity to
explore and attack her credibility.21
Of important note, the Superior Court attempted
to diminish the deleterious consequences of
its decision by reasoning that " the effect of an
erroneous determination in preliminary hearings
is minimal " where any error would be cured at a
later trial. That is, if a defendant " is guilty beyond a
reasonable doubt, then any flaw in the preliminary
hearing process is irrelevant, and, if he is acquitted,
then there is no permanent loss of liberty. " 22
end, the Superior Court held that McClelland
In the
fail[ed] to show that an individual
subjected to a preliminary hearing,
which is not constitutionally mandated, is
entitled to " the full panoply of procedural
protections that the Constitution requires
be given to defendants who are in a
fundamentally different position at trial
and on first appeal as of right. " Turner,
supra at 764. Just as a prisoner has a

For the Defense - Vol. 6, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 2

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