For the Defense - Vol. 6, Issue 2 - 25

limited interest in post-conviction rights,
so too does an accused have a limited
interest in the preliminary hearing. The
hearing serves a gatekeeping function
only; defendants who face a preliminary
hearing are not on the same footing as
a defendant undergoing an actual trial,
or pursuing an appeal as of right. Hence,
we hold that the preliminary hearing
procedure must simply provide adequate
notice, the opportunity to be heard, and
the chance to defend oneself before a fair
and impartial tribunal having jurisdiction
over the case.23
Finally, the Superior Court addressed and
rejected McClelland's reliance on Justice Flaherty's
concurring opinion in Verbonitz, which the
Superior Court read as " expressing a view that
due process requires an adversarial probable cause
determination to hold a person for trial. That
claim sounds in substantive due process, which
is contradicted by United States Supreme Court
precedent... " 24
The Superior Court also noted that
Verbonitz was decided before the amendments to
Pennsylvania Rule of Criminal Procedure 542 and,
therefore, did not account for changes made by
the Pennsylvania Supreme Court, which expanded
the existing rule.25
The Pennsylvania Supreme Court reversed.
First, it explained, " it is clear that a five-member
majority of the [Verbonitz] 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. " 26
Next, the Supreme Court analyzed the continuing
viability of Verbonitz following the amendments
to Pennsylvania Rule of Criminal Procedure 542(E).
Specifically, the Supreme Court considered whether
Rule 542(E) as amended supplanted Verbonitz
and permitted all elements of all offenses to be
established at a preliminary hearing, solely based
on hearsay evidence.
Guided by principles of statutory construction,
the Supreme Court noted that while " the quantity
of 'any' may be indefinite, that quantity is
delimited by the phrase '[h]earsay as provided by
law shall be considered.' " 27
The Court wrote that
the phrase " hearsay as provided by law " could
reasonably mean either " hearsay as defined by
law, i.e. an out-of-court statement presented as
evidence of the truth of the matter asserted " or
" 'contingent on' or 'subject to' law. " 28
The Court
noted that the 2013 amendment to Rule 542
included in the Comments a citation to Verbonitz
and its disapproval of the use of hearsay alone to
establish a prima facie case.29
Without explicitly endorsing either meaning of
" hearsay as provided by law " , and applying the
canon of constitutional avoidance, the Supreme
Court arrived at this conclusion:
the amended 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 the basis of hearsay,
despite the Superior Court's contrary
interpretation. Significantly, the rule as
written is open to reasonable yet opposing
interpretations. Indeed, given that the
word " any " and the phrase " as provided
by law " are ambiguous, particularly in
light of the comment citing Verbonitz,
we now prudentially apply the " canon of
constitutional avoidance, " which instructs
" we are bound to interpret a statute,
where possible, in a way that comports
with the constitution's terms. " 30
Thus, while a prima facie case may consist of some
hearsay, it may not consist of hearsay entirely.31
In
short, Verbonitz lives to fight another day.
What Does This Mean?
Justice Wecht, in his concurring opinion, asked
it best: " if the prima facie case cannot be made
by hearsay only, how much hearsay can be used? "
Citing his own dissenting opinion in Ricker, Justice
Wecht answered this question as follows:
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.'
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
results.
Not
only
is
the prima
naturally engenders unreliable
facie
determination questionable when based
Vol. 6, Issue 2 l For The Defense 25

For the Defense - Vol. 6, Issue 2

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