For the Defense - Vol. 6, Issue 2 - 26

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.'32
than just hearsay, it did not differentiate,
as the Superior Court did, whether the due
process right was substantive or procedural in
nature.
Justice Wecht also stated that while some hearsay
may be permitted at preliminary hearings for the
purpose of establishing the value of property,
or presenting scientific, technical or forensic
information, 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. Viewed as a
sliding scale, the more hearsay that is allowed at
preliminary hearings, the more the purposes and
interests of the hearing are disserved. " 33
As magisterial district judges, prosecutors
and the defense grapple with McClelland, the
question of how much hearsay will be permitted
at a preliminary hearing before running afoul of
Verbonitz's promise of fundamental due process
is likely to be litigated extensively. Litigation
is also likely to arise in situations in which the
Commonwealth introduces hearsay evidence to
establish the contested element or elements of a
prima facie case, such as identity.
Anticipated Areas of Litigation, Post-McClelland,
Include the Following:
* The McClelland Court did not answer the
question of what is meant by " hearsay as
provided by law. "
Criminal defendants are
likely to benefit from the narrower definition
- that is, hearsay that falls into an exception
delineated by the Pennsylvania Rules of
Evidence - because it shrinks universe
of potentially admissible out-of-court
statements.34
* The McClelland Court clearly disapproved
of Ricker's holding that a prima facie case
may consist of hearsay alone but did not
squarely address the foundation upon which
that decision was rendered: that is, that
criminal defendants have no state or federal
constitutional right to confront witnesses at
a preliminary hearing. And, although the
McClelland Court found that a majority of
Justices held in Verbontiz that due process
requires a prima facie case to consist of more
26 For The Defense l Vol. 6, Issue 2
* Future litigation is also likely concerning the
question of whether and what relief is due
to a defendant whose charges were held for
court based on hearsay evidence alone but
is subsequently convicted at trial under a
higher standard of proof. In Commonwealth
v. Rivera,35
the Superior Court held that the
Supreme Court did not intend to extend
McClelland's holding to cases where the
complained-of
defect
in
the
preliminary
hearing is subsequently cured at trial, unless
a defendant can demonstrate that the defect
in the evidence at the preliminary hearing
tainted the validity of the verdict.36
An
application for re-argument was filed by the
defendant/appellant in Rivera on April 12,
2021 and is pending disposition.
* In Commonwealth v. Hacker, 1781 EDA
2020, 2021 WL 1235399 (Pa. Super. filed
April 1, 2021), the Superior Court held in
an unpublished memorandum that the
Commonwealth's remedy when charges are
dismissed pursuant to McClelland is to refile
the charges, rather than file an interlocutory
appeal.
Although the Hacker decision is
unpublished, it relies on Commonwealth
v. LaBelle, 612 A.3d 418 (Pa. 1992), which
distinguishes between cases dismissed by the
trial court because of curable defects, such
as failure to make a prima facie case, and
incurable defects, such as failure to timely file
the complaint.
The latter are immediately
appealable; the former are not.
* Pennsylvania Rule of Evidence 601 states
that every witness is competent except as
provided by statute. However, Pennsylvania
cases also note special concern regarding
the competency of child witnesses. For those
witnesses, the trial court must decide the
threshold legal issue of competency, assessing
whether there exists " (1) such capacity to
communicate, including as it does both an
ability to understand questions and to frame
and express intelligent answers, (2) mental
capacity to observe the occurrence itself
and the capacity of remembering what it is
[the child] is called to testify about and (3) a
consciousness of the duty to speak the truth. "
Commonwealth v. Washington, 722 A.2d
643, 646 (Pa. 1998) (alterations in original).
Though it has often been held that the law

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