                                     [J-126-2016]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 41 MAP 2016
                                              :
                    Appellee                  :   Appeal from the Order of the Superior
                                              :   Court dated 7/17/15 at No. 1693 MDA
              v.                              :   2014 affirming the Order of the Dauphin
                                              :   County Court of Common Pleas dated
                                              :   10/1/14 at No. CP-22-CR-0003601-
DAVID EDWARD RICKER,                          :   2014
                                              :
                    Appellant                 :   ARGUED: December 6, 2016




                                CONCURRING STATEMENT


CHIEF JUSTICE SAYLOR                                    FILED: September 28, 2017

       In this criminal case, appeal was allowed to consider whether the Commonwealth

may satisfy its burden at a preliminary hearing through hearsay evidence alone, as well

as whether a defendant has a state or federal constitutional right to confront witnesses

against him in such proceedings. Presently, I conclude that the prosecution did not

proceed, at Appellant’s preliminary hearing, solely through hearsay.        Furthermore,

Appellant’s contention that the Commonwealth’s essential presentation rested

exclusively upon hearsay is interwoven into his constitutional arguments. I also note

that the Court is divided as to material considerations involved in assessing whether, or

to what extent, an accused enjoys a constitutional right of confrontation at a preliminary

hearing, and some of these considerations are not substantially addressed in the

present briefing.
       For these reasons, I have determined that this appeal does not present a suitable

vehicle by which to resolve the questions presented and that it should be dismissed.

Given the substantial significance of these issues, however, I have undertaken to

explain my reasoning in greater detail below and to specify some of the considerations

which I believe should be developed in the advocacy in future cases or addressed via

the rulemaking process to secure a resolution.

       In June 2014, Appellant shot Pennsylvania State Trooper Michael Trotta while

the officer was on Appellant’s property investigating possible crimes. Trooper Trotta

survived the encounter. Appellant was arrested and charged with attempted murder,

assault of a law enforcement officer, and aggravated assault.

       At the preliminary hearing before a magisterial district judge (the “MDJ”), the

Commonwealth presented live testimony from an investigating officer, Trooper Douglas

A. Kelley, who attested that he observed Trooper Trotta’s gunshot wounds and

participated in a search of Appellant’s residence, where officers found plastic bags and

jars containing marijuana, as well as eighty firearms.      Additionally, Trooper Kelley

indicated that he saw an AK-47 assault rifle, a pistol, and spent cartridge casings, in or

near the garage area of Appellant’s residence. He further explained that Appellant had

also been shot in the confrontation and that the trooper interviewed him in the hospital.

According to the witness, Appellant said that he was near his garage holding an AK-47

rifle when he was shot and commented that he did not understand why Trooper Trotta

did not leave his property and secure a warrant.

       During Trooper Kelley’s testimony, the prosecution played an audiotape

recording of his interview with Trooper Trotta, in which the latter attested to the

following.   On June 1, 2014, Trooper Trotta received a radio call to respond to a

disturbance on Green Hill Road in West Hanover Township.            He arrived to find a


                                    [J-126-2016] - 2
mailbox had been impacted by a vehicle, and witnesses identified Appellant as the

driver. Trooper Trotta proceeded to Appellant’s property, where he first encountered

Appellant’s wife, then Appellant, who was belligerent, manifested signs of intoxication,

hit his wife, and threatened the officer both verbally and by his conduct. While still

sitting in his vehicle to protect himself from Appellant’s dog, Trooper Trotta attempted to

retrieve a Taser weapon, and he and Appellant fought over control of that implement.

         The incident further escalated when Appellant produced a pistol and retreated to

his garage. There, Trooper Trotta observed Appellant in possession of an assault rifle

and believed that Appellant was positioning himself to engage another officer who had

been summoned by Trooper Trotta to assist him. Accordingly, the trooper fired several

shots at Appellant. Trooper Trotta then approached Appellant, who was prone in the

garage, and was shot by Appellant.1

         When the audiotape was played, Appellant’s lawyer expressed a desire to

examine Trooper Trotta, indicating that he found it to be unsatisfactory that the trooper’s

statement was introduced via hearsay with no opportunity afforded for cross-

examination. Counsel acceded, however, to proceeding with the presentation of the

Commonwealth’s case, but he requested that another hearing be slated to permit him to

question Trooper Trotta. The district attorney opposed the request on the following

terms:

               We didn’t just present hearsay because we also presented
               the statement of the Defendant in which he indicated that it
               was he and that he had a rifle in his hand.




1
 A more detailed recitation of the interview with Trooper Trotta appears in the Superior
Court’s opinion in the initial appeal. See Commonwealth v. Ricker, 120 A.3d 349, 351-
52 (Pa. Super. 2015).


                                     [J-126-2016] - 3
              We also had the testimony regarding the recovery of the
              firearms, including the rifle and the cartridge cases from the
              garage, which are evidence of the discharge of that firearm
              from the garage.

              The preliminary hearing is not for the purpose of discovering
              the Commonwealth’s case or to get a crack at the witnesses.
              It is to determine whether or not this Defendant, who is at
              liberty on bail, should be held for trial.
N.T., July 10, 2014, at 43.

       Appellant’s lawyer further indicated that he had been led to believe that the

Commonwealth would be presenting testimony from the trooper who had been called to

assist Trooper Trotta, and counsel attempted to call that officer as a witness. The MDJ,

however, did not permit this. In his concluding argument, Appellant’s attorney argued

that the use of force against Trooper Trotta was justified. Counsel stated:

              This guy was in his home. He was retreating. He had a
              firearm by his side and a very ominous looking firearm, an
              AK-47 but it was never pointed. It was never discharged.

              The question is, did he give up his right to live having that
              gun by his side. And I respectfully submit that he did not
              because Trotta intended to kill him.

              And if that first shot didn’t take him out, he shot him again.
              Ricker never shot back after that first shot was fired.

              Ricker was in his house. Ricker never shot back after that
              second shot was fired and indeed a third shot was fired and
              he returned fire.

              I believe it was justified because Trotta’s action was
              excessive and deadly and unlawful and it just didn’t need to
              happen.
Id. at 45. Counsel then reiterated his position that the hearing should be continued so

that the officers could be questioned.



                                     [J-126-2016] - 4
       The MDJ concluded that the Commonwealth had met its burden and denied the

request for a continuance. In this regard, the MDJ explained that the purpose of a

preliminary hearing is not to establish guilt or innocence, but rather, to determine

whether a prima facie case has been presented.           See generally Commonwealth v.

McBride, 528 Pa. 153, 160, 595 A.2d 589, 592 (1991) (“A judge at a preliminary hearing

is not required, nor is he authorized to determine the guilt or innocence of an accused;

his sole function is to determine whether probable cause exists to require an accused to

stand trial on the charges contained in the complaint.”).

       Subsequently, Appellant filed a petition for writ of habeas corpus requesting

dismissal of the charges based on the Commonwealth’s asserted failure to meet its

burden of proof at the preliminary hearing.             In the petition, Appellant again

acknowledged that he had shot Trooper Trotta, but he claimed that he had been

retreating and was justified in defending himself.

       Appellant recognized that the function of a preliminary hearing is to protect the

right against unlawful arrest and detention and that, therefore, the Commonwealth’s

burden is limited to presenting “evidence with regard to each of the material elements of

the charge and to establish sufficient probable cause to warrant the belief that the

accused committed the offense.”      Petition for Writ of Habeas Corpus at 4 (quoting

McBride, 528 Pa. at 158, 595 A.2d at 591).           He also acknowledged that hearsay

evidence is admissible at a preliminary hearing and that the prosecution may rely upon

hearsay to meet its burden of establishing a prima facie case.        See id.   Appellant

contended, however, that hearsay alone will not suffice.          See id. at 4-5 (citing

Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004), and

Commonwealth v. Tyler, 402 Pa. Super. 429, 433-34, 587 A.2d 326, 328 (1991)).

Appellant relied substantially upon the plurality decision of this Court in Commonwealth


                                     [J-126-2016] - 5
ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990), explaining that, in that

case, Justices found that the presentation of solely hearsay at a preliminary hearing

violated state constitutional norms of confrontation and due process. See id. at 418-19,

581 A.2d at 175 (lead opinion) (relying primarily on the right of confrontation); see also

id. at 419-21, 581 A.2d at 175-76 (Flaherty, J., concurring) (invoking due process).

Furthermore, Appellant contended that, at his preliminary hearing, the Commonwealth

had based its presentation concerning the material elements of the charged offenses

exclusively upon hearsay.

      Appellant’s petition also addressed recent amendments to Rule of Criminal

Procedure 542(E), which prescribe:

             Hearsay as provided by law shall be considered by the
             issuing authority in 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.
Pa.R.Crim.P. 542(E). While, again, Appellant conceded that the prosecution may rely

upon some hearsay evidence at a preliminary hearing, to the degree that the rule

sanctions reliance on hearsay alone, Appellant argued that its provisions offend

constitutional requirements and render a preliminary hearing “a meaningless proceeding

if the prosecution could simply call the affiant to the stand and read from his criminal

complaint/affidavit of probable cause in order to get charges bound over for trial[.]”

Petition for Writ of Habeas Corpus at 14.2

2
  Appellant also asserted that the MDJ abused his discretion by refusing the request for
a continuance so that the troopers who were present during the shooting could be
called by the defense as witnesses. On appeal, the Superior Court found this challenge
to have been waived, see Ricker, 120 A.3d at 364; the question was not framed in
Appellant’s petition for allowance of appeal; and no further discussion of it is offered
here.


                                     [J-126-2016] - 6
      The court of common pleas denied relief on the petition, reasoning that the

Commonwealth simply did not rely exclusively on hearsay at the preliminary hearing.

The court explained:

             At the preliminary hearing, Trooper Kelley testified that in his
             presence Appellant stated that he did not understand why
             the trooper did not leave and get a warrant. Appellant also
             stated that he was in his garage holding the AK-47 when he
             was shot.      These admissions to Trooper Kelley were
             presented along with evidence regarding the seizure of
             eighty firearms from the home . . . and cartridge cases in the
             garage consistent with being discharged from an AK-47.
             Since the admissions and the products of the search were
             presented at the preliminary hearing, the Commonwealth did
             not rely solely on hearsay evidence as Appellant contends.
Commonwealth v. Ricker, No. CP-22-CR-0003601-2014, slip op. at 5 (Dauphin Cnty.

Dec. 4, 2014).    The court also highlighted Rule 542(E)’s express authorization of

hearsay in preliminary hearings.

      In terms of the right of confrontation, the county court related that this is a trial

right. See id. at 6 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S. Ct. 989,

999 (1970) (plurality)). The function of a preliminary hearing, the court continued, is to

determine whether a prima facie case has been made out against the accused. See id.

      On Appellant’s interlocutory appeal, the Superior Court affirmed. See Ricker,

120 A.3d at 351.3 Initially, the panel considered whether the Commonwealth proffered

3
  The Superior Court determined that interlocutory appellate review was appropriate,
since the issue presented was significant and capable of repetition and likely to evade
review. See id. at 353-54 (citing Commonwealth v. Hess, 489 Pa. 580, 589, 414 A.2d
1043, 1047-48 (1980), for the proposition that exceptional circumstances may justify an
interlocutory appeal from the denial of a pretrial petition for a writ of habeas corpus).
See generally Tracy Bateman Farrell, et al., 26A STANDARD PA. PRAC. 2D §132:576
(2017). This facet of the court’s opinion is extraneous to the issue on which allocatur
was granted, and I do not consider it here.



                                    [J-126-2016] - 7
hearsay alone.     While recognizing that the prosecution had offered some direct

evidence, in the form of Trooper Kelley’s testimony about his investigation, the panel

nevertheless opined that none of this was sufficient to establish the elements of the

crimes charged. See id. at 356. For this reason, in the panel’s judgment, “hearsay

alone was used to prove a prima facie case.” Id. In this particular passage of its

opinion, the panel implied that the Commonwealth must adduce enough direct evidence

at a preliminary hearing to satisfy all elements of the charged offenses, and that, if

hearsay is adduced, it may only be supplementary.4

       In terms of Rule 542(E), the panel found that its provision requiring hearsay to be

considered in assessing whether the Commonwealth has met its burden implicitly

authorizes the use of hearsay alone at a preliminary hearing to satisfy the

Commonwealth’s entire burden of proof. See id. at 357 (reasoning that, if hearsay

evidence can be sufficient to meet one or more elements of a crime, “it follows that,

under the rule, it is sufficient to meet all of the elements” (emphasis added)).

       Turning to the constitutional issue involving the right of confrontation, the panel

offered an extensive discussion of the history of preliminary hearings in the

Commonwealth, concluding with the assessment that Pennsylvania courts, historically,

had found no constitutional right of confrontation extending to preliminary hearings. See

id. at 358-60.



4
  This reasoning, of course, is in apparent conflict with Rule 542(E)’s prescription that
“[h]earsay as provided by law shall be considered by the issuing authority in determining
whether a prima facie case has been established.” Pa.R.Crim.P. 542(E) (emphasis
added). Moreover, it also contradicts the panel’s apparent acceptance, otherwise in its
opinion, that the Commonwealth may rely upon hearsay as a component of its prima
facie case. See, e.g., Ricker, 120 A.3d at 357 (“If hearsay evidence is sufficient to
establish one or more elements of the crime, it follows that, under the rule, it is sufficient
to meet all of the elements.” (emphasis added)).


                                      [J-126-2016] - 8
       The panel then considered the plurality decision in Verbonitz, 525 Pa. 413, 581

A.2d 172, in which a majority of Justices agreed that hearsay alone was insufficient to

satisfy the Commonwealth’s burden at a preliminary hearing. The lead Justices, the

panel explained, concluded that a preliminary hearing is a critical stage of a criminal

proceeding and, as such, the right of confrontation attaches. See id. at 361 (citing

Verbonitz, 525 Pa. at 417-18, 581 A.2d at 174). The panel observed that the same

Justices also construed the term “criminal prosecutions” in the Pennsylvania

Constitution as encompassing preliminary hearings, thus implicating the right to confront

witnesses.    See id. (referring to Verbonitz, 525 Pa. at 419, 581 A.2d at 175).

Additionally, the panel noted that Justice Flaherty, who supplied a fourth vote in support

of the outcome, took the position that “fundamental due process requires that no

adjudication be based solely on hearsay evidence.” Id. (quoting Verbonitz, 525 Pa. at

419-21, 581 A.2d at 175-76 (Flaherty, J., concurring)).5 Given the plurality status of

Verbonitz, however, the panel declined to afford it controlling significance.

       The panel also found the admission of hearsay at a preliminary hearing designed

to assess prima facie proof to be in tension with dictum from the United States Supreme

Court’s decision in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975). In that case,

the Supreme Court initially explained that the federal Constitution does not require the

full panoply of adversary safeguards attending trial at a preliminary hearing directed to

determining probable cause for purposes of assessing the propriety of pretrial detention.

See id. at 120, 95 S. Ct. at 866 (“[P]robable cause to believe the suspect has committed

a crime . . . traditionally has been decided by a magistrate in a nonadversary

proceeding on hearsay and written testimony, and the Court has approved these

5
 Notably, the lead Justices in Verbonitz would appear also to have briefly invoked a
due process rationale relative to the proposition that hearsay alone is insufficient. See
Verbonitz, 525 Pa. at 417, 581 A.2d at 174.


                                     [J-126-2016] - 9
informal modes of proof.”).    However, the Gerstein Court undertook to distinguish

preliminary hearings serving broader purposes, to which higher standards of proof

pertain. See id. at 122-23, 95 S. Ct. at 867-68 (citing Coleman v. Alabama, 399 U.S. 1,

90 S. Ct. 1999 (1970)). Ultimately, the Superior Court panel reasoned that “Gerstein

. . . suggests but does not hold that a federal constitutional right to confront witnesses

exists at the type of preliminary hearing used in Pennsylvania.” Ricker, 120 A.3d at

362.

       In the final passages of its opinion, the Superior Court panel accorded deference

to Rule 542(E) and, concomitantly, to this Court as the rule-maker.             The panel

highlighted the absence of any binding precedent affording a defendant a right to cross-

examine witnesses at a preliminary hearing. Moreover, the panel emphasized that, at

the time of the ratification of the federal and early Pennsylvania Constitutions, the

concept of “criminal prosecutions” did not encompass preliminary hearings, and there

was no such right afforded at grand jury proceedings initiated subsequent to preliminary

hearings. Id. at 363.

       Finally, the panel recognized that there is some tension between Rule 542(C)’s

conferral of a rule-based right to cross-examine and Rule 542(E)’s approval of hearsay.

The panel commented, however, that Appellant had not explored this issue, and

accordingly, it provided no further assessment. See id. at 364.

       Appellant filed a petition for allowance of appeal, which this Court granted,

framing the questions presented as follows:

             Whether the Pennsylvania Superior Court wrongly held, in a
             published opinion of first impression, that a defendant does
             not have a state or federal constitutional right to confront the
             witness against him at a preliminary hearing and that a prima
             facie case may be proven by the Commonwealth through
             hearsay evidence alone, which is what the trial and
             magisterial district courts concluded in Petitioner's case?

                                    [J-126-2016] - 10
Commonwealth v. Ricker, 635 Pa. 255, 135 A.3d 175 (2016) (per curiam).
       Presently, Appellant maintains that the Commonwealth inappropriately relied

exclusively upon hearsay at the preliminary hearing. See, e.g., Brief for Appellant at 24,

31-32 (“The only evidence adduced by the Commonwealth . . . going to the crimes’

essential elements was the tape-recorded interview with Trooper Trotta, which was

‘rank hearsay.’” (quoting Verbonitz, 525 Pa. at 417, 581 A.2d at 174) (quoting UCBR v.

Ceja, 493 Pa. 588, 619, 427 A.2d 631, 647 (1981) (plurality))). It is Appellant’s position

that, to establish a prima facie case, each and every element of the crimes charged

must be proven by the prosecution through legally competent evidence. See id. at 25.

Appellant relies substantially upon Verbonitz for the proposition that hearsay alone

simply cannot be employed to satisfy such burden.           He also asserts that Rule of

Criminal Procedure 542 should be read to preclude reliance upon only hearsay. See id.

at 30; see also Brief for Amicus Curiae Defender Ass’n of Phila. at 7-11.

       Appellant continues to accept that some hearsay evidence is admissible at

preliminary hearings, but he posits that the presentation of certain witnesses is

essential. He offers the following remarks to illustrate this position:

              Undersigned counsel does not contend that there should be
              an unrestricted right of confrontation at a preliminary hearing
              and hearsay evidence would continue to be admissible,
              particularly as to forensic evidence (e.g., lab reports,
              pathologist opinions, DNA results, BAC levels, etc.).
              However, as to crimes against persons (such as homicide,
              assault, robbery, sex crimes, etc.) as opposed to property-
              related offenses (theft, forgery, burglary, etc.), the alleged
              victim or victims must be in attendance and testify on both
              direct- and cross-examination in order for the evidence
              against a defendant to be tested.
Brief for Appellant at 32-33. As to his own preliminary hearing, Appellant claims that

“the only way for the Commonwealth to prove a prima facie case of the essential


                                     [J-126-2016] - 11
elements of the three crimes [charged] – absent hearsay evidence – would have been

through the direct testimony of [Trooper Trotta] and the trooper who eyewitnessed the

shootings.” Brief for Appellant at 31.

       In terms of the right of confrontation, Appellant recognizes that preliminary

hearings in Pennsylvania are directed to addressing the lawfulness of pretrial custody

for Fourth Amendment purposes. See Brief for Appellant at 22-23 (citing McBride, 528

Pa. at 158, 595 A.2d at 591).      Nevertheless, his brief implies that the prima facie

standard imposes a higher threshold than the probable-cause litmus serving as the

constitutional floor relative to the salient Fourth Amendment concerns. In this regard,

Appellant also references Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983)

(plurality), for the proposition that the Commonwealth’s burden is to “present admissible

evidence at the preliminary hearing that would warrant a reasonable jury in finding each

of the elements of the offense [beyond a reasonable doubt].” Brief for Appellant at 23

(citing, indirectly, to Wojdak). Appellant also highlights that, in Coleman v. Alabama,

399 U.S. 1, 90 S. Ct. 1999 (1970), the Supreme Court determined that a preliminary

hearing afforded in Alabama comprised a critical stage of the proceedings for purposes

of the Sixth Amendment right to counsel. See id. at 9-10, 90 S. Ct. at 2003.

       Appellant supplements his presentation with an argument under the Due Process

Clauses of the federal and state Constitutions.         While he acknowledges that this

exceeds the scope of the allocatur grant and what had been presented initially,

Appellant indicates that the claim is closely related to his confrontation challenge and

that the Commonwealth also wishes for this Court to review it presently.

       In reply, the Commonwealth maintains that it did not rely solely on hearsay

evidence at Appellant’s preliminary hearing, since it offered Trooper Kelley’s testimony

that he observed Trooper Trotta’s gunshot wounds, seized packaged marijuana and


                                    [J-126-2016] - 12
weapons from Appellant’s residence, and viewed spent cartridges in the vicinity of the

location where the rifle was found. See Brief for Appellee at 7, 21. The Commonwealth

also highlights Appellant’s admission that he was in possession of an AK-47 rifle when

he was shot. See id.

       Further, the Commonwealth takes the position that, under Rule 542(E), hearsay

evidence is per se admissible at a preliminary hearing and can be used to satisfy any

and all elements of the prosecution’s burden. The Commonwealth emphasizes that

jurists who preside at preliminary hearings do not evaluate credibility, but rather, make a

legal, sufficiency-based determination. See Brief for Appellee at 10 (citing, inter alia,

Liciaga v. Court of Common Pleas of Lehigh Cty., 523 Pa. 258, 263, 566 A.2d 246, 248

(1989)). As to Verbonitz, the Commonwealth regards the plurality decision as non-

binding and poorly reasoned.

       Finally, the Commonwealth asserts that the constitutional right of confrontation is

a trial right that simply does not extend to a preliminary hearing. See Brief for Appellee

at 13-14 (citing Ritchie, 480 U.S. at 52, 107 S. Ct. at 999 (plurality)). It also observes

that hearsay evidence is routinely admitted to establish probable cause at preliminary

hearings and grand jury proceedings in the federal courts, per Federal Rule of Evidence

1101(d)(3). See generally W AYNE R. LAFAVE,      ET AL.,   4 CRIM. PROC. §14.4(b) (4th ed.

2016) (explaining that a potential majority of jurisdictions “start from the premise that

the rules of evidence do not apply to the preliminary hearing”).


                                    I. Hearsay Alone

       Upon review, and as previously noted, I agree with the Commonwealth that the

prosecution did not rely exclusively on hearsay in addressing the elements of the crimes

with which Appellant was charged. Rather, the district attorney adduced live testimony

from an investigating trooper: confirming from visual observation at the hospital that the

                                    [J-126-2016] - 13
injured officer suffered from gunshot wounds; relating that the investigating trooper had

observed Appellant in the hospital, who also had been shot; explaining that the trooper

witnessed Appellant’s statement that he had been in his garage holding the AK-47

assault rifle at the time of the shooting incident;6 and attesting to the trooper’s personal

observation of an AK-47 near that garage.             See N.T., July 10, 2014, at 5-10.

Significantly, as well, at the conclusion of the preliminary hearing, the defense

conceded, as the direct proofs amply evidenced, that Appellant had shot the injured

officer, while offering a justification defense. See id. at 45.

       In delineating the elements of crimes, this Court distinguishes between the actus

reus element and mens rea.7 Very plainly, the Commonwealth adduced direct evidence

establishing a prima facie case of one element, namely, the actus reus, of each of the

three offenses in question – attempted murder, assault of a law enforcement officer, and

aggravated assault. Accordingly, since the prima facie case was not advanced through

6
  Although Appellant’s statement is hearsay under Pennsylvania law, see Pa.R.E.
803(25), it is not of a type that implicates a defendant’s confrontation rights. See
generally United States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006) (citing 4 JACK B.
WEINSTEIN & MARGARET A. BERGER, W EINSTEIN'S FEDERAL EVIDENCE §802.05[3][d] at
802–25 (2d ed. 2005), for the proposition that “a party cannot seriously claim that his or
her own statement should be excluded because it was not made under oath or subject
to cross-examination”).

7
  See, e.g., Commonwealth v. Shaw, 560 Pa. 296, 304, 744 A.2d 739, 743 (2000)
(adopting a formulation from Commonwealth v. Bolden, 367 Pa. Super. 333, 532 A.2d
1172 (1987), in determining equivalency of in-state versus out-of-state offenses for
purposes of sentencing, requiring courts to “identify the requisite elements of the crime
– the actus reus and mens rea – which form the basis of liability”). See generally 21
AM. JUR. 2D CRIMINAL LAW §112 (2017) (“A crime generally consists of two elements, a
physical, wrongful deed (the ‘actus reus’), and a guilty mind that produces the act (the
‘mens rea’).”); accord Paul H. Robinson, 1 CRIM. L. DEF. §11 (2016) (“The elements of
an offense are of two sorts: objective criteria (actus reus elements) and culpability
requirements (including primarily mens rea elements).” (footnotes omitted)).



                                      [J-126-2016] - 14
hearsay evidence alone, this case does not present a suitable vehicle for this Court to

address the question of whether the Commonwealth may rely exclusively upon

hearsay.8

                                   II. Confrontation

      Regarding the right of confrontation, initially, I note that there are aspects of the

Superior Court’s opinion with which I do not agree. See, e.g., supra note 4. Primarily, I

am concerned that the panel did not adequately address what it means to present a

prima facie case in Pennsylvania and how this may contrast with the law in other

jurisdictions expressly limiting the determination at preliminary hearings to probable

cause. For example, in its discussion of the United States Supreme Court’s Gerstein

decision, the panel implied that the prima facie standard sets Pennsylvania apart from

other jurisdictions, Ricker, 120 A.3d at 362, but the panel proceeded to cite exclusively

to jurisdictions applying a pure probable cause standard in opining that its “conclusion




8
  In terms of mens rea, the investigating trooper further testified that substantial
quantities of marijuana and a large cache of weapons were found in Appellant’s
residence, thus also tending to demonstrate a consciousness-of-guilt rationale
motivating the shooting. Although this does not bear controlling relevance on the
question of whether the Commonwealth proceeded with its overall case solely on the
basis of hearsay, it is noteworthy that the Commonwealth did not proceed on such basis
relative to mens rea elements either.

Self-evidently, I differ strongly with Justice Wecht’s assertion that the uncontested
evidence presented through Trooper Kelley’s testimony that Appellant shot a law
enforcement officer is somehow “tangential,” “merely corroborat[ive],” or “surplusage.”
Dissenting Statement at 1-2 (Wecht, J.). The dissent references no authority that would
suggest that direct evidence of crime elements presented by the Commonwealth at a
preliminary hearing should be downplayed and subordinated in such a fashion.



                                   [J-126-2016] - 15
[pertaining to Pennsylvania’s prima facie standard] is consistent with a large body of

other precedent.” Id. n.8.9

      Defining the prima facie standard is not without its complications, particularly

given the varying expressions of this Court. Under the ordinary definition, presentation

of a prima facie case entails “[a] party's production of enough evidence to allow the fact-

trier to infer the fact at issue and rule in the party's favor.” Prima Facie Case, BLACK'S

LAW DICTIONARY (10th ed. 2014). Indeed, this Court has employed this formulation in

various cases. See, e.g., Commonwealth v. Karetny, 583 Pa. 514, 529, 880 A.2d 505,

514 (2005) (depicting the Commonwealth burden at a preliminary hearing as to adduce

enough evidence such that, “if presented at trial and accepted as true, the judge would

be warranted in permitting the case to be decided by the jury” (citing Commonwealth v.

Huggins, 575 Pa. 395, 402, 836 A.2d 862, 866 (2003))). Nevertheless, the Court has

also said that the “sole function” of the jurist presiding at a preliminary hearing is “to

determine whether probable cause exists to require an accused to stand trial on the

charges contained in the complaint.” McBride, 528 Pa. at 160, 595 A.2d at 592 (citing

Commonwealth v. Prado, 481 Pa. 485, 489, 393 A.2d 8, 10 (1978)).10

9
  I have confirmed that none of the decisions from other jurisdictions cited in footnote 8
of the Superior Court’s opinion applies a prima facie standard. Rather, they all apply
the Fourth-Amendment-based probable cause standard.

10
   The frequently cited plurality decision in Wojdak appears to equate probable cause
with proofs that “if presented at the trial in court, and accepted as true, the judge would
be warranted in allowing the case to go to a jury.” Wojdak, 502 Pa. at 368, 466 A.2d at
996 (emphasis omitted) (quoting Commonwealth ex rel. Scolio v. Hess, 149 Pa. Super.
371, 375, 27 A.2d 705, 707 (1942)). As explained by other courts, however, this classic
formulation of a prima facie case differs materially from a conventional probable cause
standard. See, e.g., Stewart v. Abraham, 275 F.3d 220, 229-30 (3d Cir. 2001); accord
Gerstein, 420 U.S. at 119-20, 95 S. Ct. at 866 (distinguishing probable cause hearings
from those requiring prima facie proofs).



                                    [J-126-2016] - 16
       From some other of this Court’s formulations, one might alternatively infer that

the prima facie burden attaches only to the facet of the Commonwealth’s obligation to

prove that a crime has been committed, and that a separate probable cause standard

pertains to demonstrating that the defendant was the perpetrator. See, e.g., Huggins,

575 Pa. at 402, 836 A.2d at 866 (“A prima facie case exists when the Commonwealth

produces evidence of each of the material elements of the crime charged and

establishes sufficient probable cause to warrant the belief that the accused committed

the offense.”). The Court has never explained, however, why any greater importance

would attach to establishing abstract crime commission as compared to the defendant’s

participation, in terms of the salient Fourth Amendment interests involved. 11




11
    Notably, moreover, the applicable Rules of Criminal Procedure do not distinguish
between abstract crime commission and identity in terms of the applicable standard at
preliminary hearings. See, e.g., Pa.R.Crim.P. 542(D) (“At the preliminary hearing, the
issuing authority shall determine from the evidence presented whether there is a prima
facie case that (1) an offense has been committed and (2) the defendant has committed
it.”); id. 543(B) (“If the issuing authority finds that the Commonwealth has established a
prima facie case that an offense has been committed and the defendant has committed
it, the issuing authority shall hold the defendant for court on the offense(s) on which the
Commonwealth has established a prima facie case.”).

To the extent that some other jurisdiction had recognized a difference between identity
and abstract crime commission, the modern trend has been to move away from such
distinctions. See, e.g., Sheriff, Washoe Cty. v. Middleton, 921 P.2d 282, 286 (Nev.
1996) (“[W]e now clarify that at the preliminary hearing stage, the state's burden with
respect to the corpus delicti is the same as its burden to show probable cause. The
state must present evidence supporting a ‘reasonable inference’ of death by criminal
agency.”); State v. Jones ex rel. Cty. of Maricopa, 6 P.3d 323, 329 (Ariz. Ct. App. 2000)
(“Given that the purpose of the preliminary hearing is to determine whether probable
cause exists to bind the defendant over to the superior court and that it is not a
resolution of the merits of the charge(s), the justification for the corpus delicti rule is not
pertinent.”).



                                      [J-126-2016] - 17
       The Court, of course, must squarely resolve the ambiguity in terms of what is

required of the Commonwealth before it can determine whether, or to what extent, the

constitutional right of confrontation attaches. This is so, since the Supreme Court of the

United States has indicated, essentially, that the closer in resemblance a pretrial

procedure is to a trial, the more likely it is that trial rights will attach. See Gerstein, 420

U.S. at 122-23, 95 S. Ct. at 867-68.         This consideration, however, is not sharply

developed in the briefing, and the Court presently is deeply divided concerning the

appropriate approach. For these reasons, I elect not the proceed further at the present

with the Confrontation Clause analysis in this case, or the due process analysis which,

as Appellant correctly explains, is closely related.12

       When the Court does consider the issue of the Commonwealth’s burden, either

in a future case or through the rulemaking process, I share the concern of the Supreme

Court of the United States with controlling the burden upon the criminal justice system

imposed by pretrial hearings. See Gerstein, 420 U.S. at 122 & n.23, 95 S. Ct. at 867 &

n.23. In this regard, I find it significant that the Supreme Court has indicated that states

12
   I do note that the United States Supreme Court has, on various occasions, warned
against interference in matters of state criminal procedure under the auspices of the
Due Process Clause. See, e.g., Medina v. California, 505 U.S. 437, 443–44, 112 S. Ct.
2572, 2576 (1992) (“[I]t has never been thought that decisions under the Due Process
Clause establish this Court as a rule-making organ for the promulgation of state rules of
criminal procedure.” (alterations, internal citations and quotation marks omitted));
Patterson v. New York, 432 U.S. 197, 201–02, 97 S. Ct. 2319, 2322 (1977) (cautioning
that, “we should not lightly construe the Constitution so as to intrude upon the
administration of justice by the individual States” and explaining that “it is normally
within the power of the State to regulate procedures under which its laws are carried
out, including the burden of producing evidence and the burden of persuasion, and its
decision in this regard is not subject to proscription under the Due Process Clause
unless it offends some principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental” (internal citations and quotation marks
omitted)).



                                      [J-126-2016] - 18
have some flexibility to experiment with the appropriate balance to be stricken. See id.

at 123-24, 95 S. Ct. at 868.       Accordingly, some balancing of the respective, vital

interests of criminal defendants and the Commonwealth should be considered. 13 It

must also be borne in mind that preliminary hearings in Pennsylvania do not implicate

“the fine resolution of conflicting evidence that a reasonable-doubt or even a

preponderance standard demands,” Gerstein, 420 U.S. at 121, 95 S. Ct. at 867, a point

which the Supreme Court found to be material in determining the degree of

constitutionally required safeguards. Accord McBride, 528 Pa. at 157-58, 595 A.2d at

591 (emphasizing the preliminary hearings are not to be converted into guilt-based mini-

trials).

           Furthermore, contrary to Appellant’s position, I wish to emphasize that the

Commonwealth is not obliged to present particular witnesses or all of its witnesses, but

rather, must merely establish a prima facie case.14 Defendants, on the other hand,

have a rule-based right to cross-examine the witnesses that the Commonwealth does

present at preliminary hearings and to offer their own witnesses, subject, at least to

some degree, to the presiding jurist’s discretion and within reason. See Pa.R.Crim.P.

542(C). Of course, the defendant’s core Fourth Amendment interests must be fully

vindicated, per governing federal and state constitutional law.


13
  In this regard, the Commonwealth highlights that, per relatively recent amendments to
the Pennsylvania Constitution, like criminal defendants, it enjoys a right to a jury trial.
See PA. CONST., art. I, §6.

14
    Under Appellant’s approach requiring the Commonwealth to present the
eyewitnesses, a defendant could not be tried if they were unavailable. This certainly is
not the law, as, for example, the Commonwealth may secure a criminal conviction
based on circumstantial evidence. See, e.g., McBride, 528 Pa. at 159 n.7, 595 A.2d at
592 n.7. So too may it prevail via the presentation of sufficient circumstantial evidence
as a prima facie showing at a preliminary hearing.


                                     [J-126-2016] - 19
       Addressing the constitutional requirement of confrontation will also require a

determination of the extent to which the rights to counsel and to cross-examination

intersect. In this regard, it is noteworthy that several of the seminal decisions of the

United States Supreme Court that are cited here involve the right to counsel. See, e.g.,

Coleman, 399 U.S. 1, 90 S. Ct. 1999.            However, the analytical framework and

underlying justification for the two discrete Sixth Amendment rights differ substantially.

The primary objective of the right to counsel is to guarantee “counsel's assistance

whenever necessary to assure a meaningful ‘defence[,]’” United States v. Wade, 388

U.S. 218, 225, 87 S. Ct. 1926, 1931 (1967), and, indeed, this right may attach as early

as a pre-indictment lineup. See Commonwealth v. Richman, 458 Pa. 167, 172, 320

A.2d 351, 353 (1974). Conversely, the Confrontation Clause is a procedural guarantee

preventing the “use of ex parte examinations as evidence against the accused,”

Crawford v. Washington, 541 U.S. 36, 50, 124 S. Ct. 1354, 1363 (2004),15 and this right

has repeatedly been characterized as “a trial right.” Ritchie, 480 U.S. at 52, 107 S. Ct.

at 999 (“The opinions of this Court show that the right to confrontation is a trial right[.]”

(emphasis in original)). Notably, Appellant has referenced no cases treating these two

rights conterminously.

       Moreover, assuming, arguendo, that the Confrontation Clause is applicable in the

preliminary hearing context, future advocacy should take into account its limited scope.

In Crawford, the United States Supreme Court held that the constitutional right to

confront a witness will only bar hearsay evidence that is “testimonial” in nature.


15
  See also Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339 (1895)
(explaining that one of the primary purposes of the Confrontation Clause is to force the
accuser “to stand face to face with the jury in order that they may look at him, and judge
by his demeanor upon the stand . . . whether he is worthy of belief”).



                                     [J-126-2016] - 20
Crawford, 541 U.S. at 51, 124 S. Ct. at 1364. Although the precise contours remain

somewhat nebulous,16 the Court has identified several categories of hearsay evidence

that are nontestimonial and, thus, fall outside the protective realm of the clause,

including, inter alia: statements obtained for the “primary purpose” of responding to an

emergency;17 statements made by a witness who the defendant intentionally rendered

unavailable;18 business and public records, provided that they were not created “for the

purpose of establishing or proving some fact at trial,” Melendez-Diaz v. Massachusetts,

557 U.S. 305, 324, 129 S. Ct. 2527, 2539-40 (2009); “off-hand [or] overheard

remark[s],” Crawford, 541 U.S. at 51, 124 S. Ct. at 1364; and “[s]tatements to friends

and neighbors about abuse and intimidation,” Giles, 554 U.S. at 376, 128 S. Ct.at 2692–

93.




16
   See, e.g., id. at 51-52, 124 S. Ct. at 1364 (positing that the assessment may require
focusing on differing aspects of the circumstances in which the statement was made,
including the degree of formality, the declarant’s objective belief as to the purpose for
which the statement was taken, and the nature and extent of police involvement); see
also Michigan v. Bryant, 562 U.S. 344, 367, 131 S. Ct. 1143, 1160 (2011) (suggesting
that the “primary purpose of the interrogation” is the touchstone).

17
   See Bryant, 562 U.S. at 358, 131 S. Ct. at 1155; see also Davis v. Washington, 547
U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006) (“Statements are nontestimonial when
made in the course of police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency.”). Notably, this principle has been interpreted rather broadly. See
Ohio v. Clark, __ U.S. __ 135 S. Ct. 2173 (2015) (holding that a three-year-old boy’s
statements regarding the source of his injuries and identity of his abuser were not
testimonial because the pre-school teacher and her supervisor obtained the statements
in an effort to respond to an emergency).

18
  See Giles v. California, 554 U.S. 353, 361, 128 S. Ct. 2678, 2684 (2008) (holding that
the Confrontation Clause will not preclude hearsay testimony if “defendant intended to
prevent a witness from testifying”)


                                   [J-126-2016] - 21
       To the degree that this Court is to provide meaningful guidance concerning the

use of hearsay evidence vis-à-vis a defendant’s interests, I believe that it is likely that

we will also consider the character of the expected proffer in terms of focus, quality (or

reliability), and/or quantity. The opinions in Ceja, 493 Pa. 588, 427 A.2d 631, arising out

of the use of hearsay in administrative proceedings, provide salient expositions of

relevant considerations. See, e.g., id. at 594-612, 427 A.2d at 634-44. In the absence

of such a review, I decline at this time to endorse bright-line authorization or

disapproval.


                            III. Rule 542(E) and Conclusion

       Finally, and candidly, I recognize that the applicable rules are not models of

clarity, as, for example, the directive to accept hearsay evidence in Rule 542(E) appears

to clash with the rule-based right to cross-examine witnesses against the defendant

conferred under Rule 542(C).19         I also acknowledge that the hearsay-related


19
   That said, the amendatory hearsay references, being later in time and more specific,
were plainly intended to control over the general authorization of cross-examination.
Nevertheless, it is preferable for the rule to be adjusted to eliminate the facial
incongruity. For example, and without endorsing the specific approach, the Arizona
Rules of Criminal Procedure provide a more developed description of what is permitted
and expected of the participants in a preliminary hearing, as follows:

            The preliminary hearing shall be held before a magistrate
            who shall admit only such evidence as is material to the
            question whether probable cause exists to hold the
            defendant for trial. All parties shall have the right to cross-
            examine the witnesses testifying personally against them,
            and to review their previous written statements prior to such
            cross-examination. At the close of the prosecution's case,
            including cross-examination of prosecution witnesses by the
            defendant, the magistrate shall determine and state for the
            record whether the prosecution's case establishes probable
(continued…)
                                    [J-126-2016] - 22
amendments were not promulgated under ideal circumstances and that further

reflection and refinement in the rulemaking arena is warranted.

      From my perspective, the 2013 amendment to the rule (which expanded the

range of express permission for the use of hearsay evidence beyond establishing

elements requiring proof of ownership of, non-permitted use of, damage to, or value of

property) was not intended to convey that the Commonwealth could meet its burden at

a preliminary hearing entirely through hearsay evidence. Rather, I believe the revision

served only as an attempt to clarify that the 2011 amendment to the rule had not

restricted the Commonwealth’s ability to adduce hearsay evidence at preliminary

hearings solely to offense elements requiring proof of ownership, non-permitted use,

damage, or value of property.20 Given that there is no public deliberative history of the

(…continued)
            cause. The defendant may then make a specific offer of
            proof, including the names of witnesses who would testify or
            produce the evidence offered. The magistrate shall allow the
            defendant to present the offered evidence, unless the
            magistrate determines that it would be insufficient to rebut
            the finding of probable cause.

Brailsford v. Foster, 393 P.3d 138, 143 (Ariz. Ct. App. 2017) (quoting Ariz.R.Crim.P.
5.3).

20
   The 2011 amendment was publicly premised on an effort, spearheaded by several
former Justices, to address criticisms of the Philadelphia criminal court system,
including those about high dismissal rates due to the absence of fact witnesses at
preliminary hearings. See, e.g., Craig R. McCoy, Nancy Phillips & Dylan Purcell,
Justice: Delayed, Dismissed, Denied, PHILA. INQUIRER (Dec. 13, 2009),
http://www.philly.com/philly/news/special_packages/20091213_Justice__Delayed__Dis
missed__Denied.html (“With Philadelphia’s court system in disarray, cases crumble as
witnesses fear reprisals . . ..”); Tony Romeo, Top Pa. Judges Seek to Streamline
Philadelphia’s           Court        Process,          (Oct.          18,         2010)
http://philadelphia.cbslocal.com/2010/10/18/top-pa-judges-seek-to-streamline-
philadelphias-court-process (“Two Pennsylvania State Supreme Court justices are
lobbying for a change that would eliminate the practice of requiring certain Philadelphia
(continued…)
                                   [J-126-2016] - 23
amendment, the most I am able to say is that, in supporting the revision, I personally

operated on the belief that the Court was not rejecting Commonwealth ex rel. Buchanan

v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990) (plurality), but rather, was simply putting

the attendant controversy aside for future consideration in the case law.




(…continued)
crime victims to testify at preliminary hearings.”); Tom MacDonald, Philadelphia Courts
to Let Witnesses Skip Preliminary Hearings, NEWSWORKS (Jan. 28, 2011),
http://www.newsworks.org/index.php/local/item/12066-28tmcourt (reflecting a former
Justice’s comment that the 2011 rule amendment “will save literally thousands of victims
from showing up at preliminary hearings from taking time off from their work, . . .
[t]housands of victims of losing time from their homes”).


                                    [J-126-2016] - 24
