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For some time, confusion has reigned with regard to the amount of hearsay evidence prosecutors (in Pennsylvania, prosecutors represent “the Commonwealth”) can use to prove a prima facie or bare-bones case at the preliminary hearing in a criminal case. To establish a prima facie case, the Commonwealth must prove that a crime may have been committed and that the defendant may have committed that crime; a very low bar of proof. In the past, based upon existing case law, the Commonwealth could rely upon hearsay testimony in proving its case. The Commonwealth frequently did this, for example, by presenting only the testimony of a police officer, describing what he or she was told by witnesses, rather than the testimony of the actual witnesses. On January 3rd of this year, the Superior Court provided significant clarity on this issue in the case of Commonwealth v. Harris, 2022 Pa. Super. 1, when it held that the Commonwealth is prohibited from relying on hearsay alone, for each element of each offense, to establish a prima facie case that a defendant committed a crime at a preliminary hearing. The Court further affirmed that relying on hearsay alone violates a defendant’s fundamental due process rights.
Hearsay at the Preliminary Hearing: A Brief History
Prior to Harris, a series of cases presented confusing guidelines as to the quality of evidence that the Commonwealth had to present at a preliminary hearing to establish a prima facie case. For years, it was generally accepted under Commonwealth v. Verbonitz that fundamental due process prevented the Commonwealth from relying on hearsay alone to establish a prima facie case. Then in 2016 in Commonwealth v. Ricker, the Superior Court found that Verbonitz, a plurality opinion by the Pennsylvania Supreme Court, was “not binding and valuable only insofar as its rationale can be found persuasive.” The Ricker panel ultimately held that because hearsay evidence was sufficient to establish one or more elements of a crime, it was sufficient to meet all the elements. The Superior Court went even further, concluding that a defendant does not have a constitutional right to confrontation at a preliminary hearing.
In Commonwealth v. McClelland, decided in 2017, the Pennsylvania Supreme Court held that Verbonitz is precedential and that relying only on hearsay at a preliminary hearing violates a defendant’s due process rights. The problem then became that the McClelland court did not specify how much hearsay is, or is not, permissible to hold criminal charges for further action at the Court of Common Pleas. This brings us to Commonwealth v. Harris, where the Commonwealth argued that because it presented direct non-hearsay evidence at the preliminary hearing, establishing that a crime was committed, it can use hearsay evidence that the defendant, Ronald Harris, was the person that committed that crime.
Harris and Preserving a Defendant’s Due Process Rights
Ronald Harris was charged with attempted murder and related offenses after allegedly shooting Nisheed Stewart. Stewart failed to appear for any of the scheduled preliminary hearings and to establish the identity of the defendant, the Commonwealth presented only testimony of the detective who took Stewart’s statement, which hearsay identified Harris as the shooter. Harris was held for court on all the charges, based on the Court’s decision in Ricker, which held that hearsay alone is enough to establish a prima facie case. While the case was pending, the Pennsylvania Supreme Court overruled Ricker in the McClelland decision, holding that hearsay alone was not sufficient to establish a prima facie case. The trial court dismissed all charges because there was no direct non-hearsay evidence that Harris shot Stewart.
The Commonwealth appealed the trial court’s decision, arguing that while it did rely on hearsay evidence to identify Harris, it also presented non-hearsay evidence to establish the element that a crime was committed, including shell casings recovered from the scene. The Commonwealth’s position was that as long as it presented some direct evidence for one element of a charged offense, then it could rely on hearsay alone for other elements of the crime, including identification of the defendant. The Superior Court disagreed.
Implications for Defense Counsel
Ultimately, the Superior Court found that no direct evidence was offered that Ronald Harris committed the crimes charged and that for a court to find that the hearsay evidence was sufficient to be reversible error. Harris was kept in jail pre-trial for nearly a year-and-a-half, even though the Commonwealth was never able to move forward with trial because it could not produce the live, in-person testimony of Nisheed Stewart. Going forward, this holding precludes the Commonwealth from relying on hearsay alone at a preliminary hearing to establish a prima facie case that a defendant committed a crime. This is particularly useful for defense counsel in cases involving charges of domestic violence and sexual assault, where frequently an officer’s testimony is offered instead of an accuser’s. The Harris decision protects a defendant’s rights to confrontation and cross-examination, as well as fundamental due process rights, acknowledging that the preliminary hearing truly is a critical stage of criminal proceedings.