                                 [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 July 17, 2015 at No. 1693
                                            :   MDA 2014 Affirming the Order of the
             v.                             :   Dauphin County Court of Common
                                            :   Pleas dated October 1, 2014 at No. CP-
                                            :   22-CR-0003601-2014.
DAVID EDWARD RICKER,                        :
                                            :   ARGUED: December 6, 2016
                    Appellant               :


                                DISSENTING STATEMENT

JUSTICE WECHT                                         FILED: September 28, 2017
      The Court dismisses this appeal as improvidently granted, because a majority of

Justices now have concluded that the case presents a poor vehicle by which to review

the use of hearsay evidence at preliminary hearings. The Court has determined that,

because the Commonwealth introduced some non-hearsay evidence at David Ricker’s

preliminary hearing, we should await a case in which the issue is more suitably

presented. I respectfully disagree.

      The Commonwealth’s prima facie case was premised upon, and, for all practical

purposes constructed entirely by, Trooper Michael Trotta’s taped interview.      At the

preliminary hearing, the crux of the prosecution’s case was inadmissible hearsay. It is

true that the Commonwealth presented live, non-hearsay testimony from Trooper

Douglas Kelley. But this testimony was tangential; it merely corroborated elements of

what the Commonwealth sought to prove through introduction of Trooper Trotta’s taped

interview. It also is true that Trooper Kelley’s testimony could have established one or
more elements in one or more of the three crimes for which David Ricker was charged.

But that is not what happened.

        At the preliminary hearing, Trooper Trotta’s taped statement was the

Commonwealth’s proverbial star witness. Trooper Trotta’s statement left no gaps to be

filled in with other evidence. The non-hearsay testimony was surplusage.1 Of course, it

was well within the Commonwealth’s discretion to introduce Trooper Kelley’s testimony.

However, while that testimony could have established some elements of the offenses, it

is plain that it did not do so. From my review of the record, I fail to discern how we

reasonably can conclude otherwise. The prima facie case was established exclusively

by Trooper Trotta’s taped interview. The fact that the Commonwealth introduced other

material does not change this reality.

        Perhaps the Court is correct that this case does not offer the optimal vehicle for

analyzing the issue. Nonetheless, I believe that it is imprudent for us to decline review

here.   The question presented is “one of such substantial public importance as to

require prompt and definitive resolution by the Pennsylvania Supreme Court.” See

1
        Chief Justice Saylor criticizes my characterization of Trooper Kelley’s testimony,
and highlights the lack of authority to support what he perceives as my effort to
“downplay” or “subordinate” that non-hearsay evidence. See Concurring Statement at
15-16 n.8. This criticism misconstrues my point. I neither make, nor intend, any
argument to “downplay” (or “up-play”) any evidence. What I am doing is simply viewing
the preliminary hearing, and the Commonwealth’s clear objective at that hearing, in a
realistic manner in light of what is plain from the record. My review of that record makes
patently clear that the Commonwealth sought to establish its prima facie case through
Trooper Trotta’s taped statement. The remainder of the evidence (i.e. Trooper Kelley’s
testimony) was used merely to bolster that hearsay evidence, and to corroborate it, but
quite obviously not to establish any elements on its own. To view the matter otherwise,
as the learned Chief Justice does, elevates the non-hearsay to a level unintended by
the Commonwealth and presses it into service now in a manner belied by the record of
how the hearing actually occurred. The result allows the Commonwealth to insulate its
case from meaningful challenge by a defendant and prevents this Court from
considering the constitutionality of a hearing conducted in the fashion that occurred
here.



                                     [J-126-2016] - 2
Pa.R.A.P.1114(b)(4). While this provision of our rules guides our decisions on whether

to grant review in a case, its principle is equally compelling when we consider whether

to dismiss an appeal as improvidently granted.           Thousands of preliminary hearings

occur across this Commonwealth each year. Query: How will those proceedings be

conducted and governed, and for how long, until the very best vehicle arrives at this

Court for review? To the extent that the Superior Court erred in this case, and I believe

that it did, its error will be replicated and imposed upon every defendant in this

Commonwealth until the best case arrives on our doorstep. The issue is adequately

preserved and presented, and should not be left on a back burner to await resolution at

some unknown point in the future.

       The Superior Court’s decision here permits prima facie cases to be built

exclusively upon hearsay.       Consider the consequences of that decision, which will

continue, and which may be exacerbated, as we await the best case.                  Magisterial

district judges will be unable to fulfill their essential role of determining whether the

Commonwealth has presented enough evidence to detain the accused. Defendants will

be subjected to extensive periods of pretrial incarceration that later may prove to have

been unnecessary.       Neither the Commonwealth nor the defendant will gain a fair

assessment of the strength of the case going forward. The defendant will be stripped of

a fair opportunity to test the Commonwealth’s case via his or her rule-based right to

cross-examination, to direct his or her pretrial investigation, to exercise his or her

constitutional right to an attorney in a meaningful fashion, and to consider intelligently

his or her options to plead guilty or to proceed with a jury trial or a non-jury trial.

       And there is a still larger problem that follows from the Court’s dismissal. Not

only will the Superior Court’s decision fundamentally alter the preliminary hearing; as

well, today’s result effectively hands the Commonwealth a blueprint for ensuring that




                                       [J-126-2016] - 3
cases are constructed in such a way as to perpetually avoid review of the question

presented in this case.     Henceforth, the Commonwealth can present inadmissible

hearsay to establish every element of every crime charged. The Commonwealth then

can call one live witness to testify as to any tangential, corroborative fact, no matter how

obvious or duplicative. For instance, in a murder case, the Commonwealth can call one

police officer to say that he or she saw the victim’s corpse in the morgue, even though

this fact was already established through hearsay. So long as that one additional fact

could touch upon or establish any element of the crimes charged, the prima facie

question will forever be able to avoid our review, and the Superior Court’s decision will

remain the law of this Commonwealth, escaping our consideration in perpetuity.

       Its facial appeal notwithstanding, the Court’s decision necessarily induces these

unfortunate results. Accordingly, I respectfully dissent. I would review the merits of the

case, and I would reverse the Superior Court. My analysis follows.

                                             I.

       In a criminal prosecution, the preliminary hearing is the first event at which the

right to counsel attaches. Coleman v. Alabama, 399 U.S. 1, 9-10 (1970) (plurality). It is

the proceeding at which the Commonwealth must carry its first burden. The preliminary

hearing is no mere formality.      It is important to both the Commonwealth and the

defendant. The preliminary hearing is essential to the functioning of a justice system

that seeks to balance the Commonwealth’s authority and obligation to prosecute crime

against the accused’s individual rights under our Constitutions.

       At the preliminary hearing, the Commonwealth must appear before a neutral and

detached magistrate and justify restraints of a person’s liberty—restraints imposed by

pretrial incarceration, by requiring a person to defend against criminal charges, or both.

The Commonwealth must justify such restraints by establishing a prima facie case to




                                     [J-126-2016] - 4
the judicial officer’s satisfaction. See Pa.R.Crim.P. 542(D). Although the burden is

relatively low, it is nonetheless vital to our system of justice.

       The question in this case is whether the Commonwealth can satisfy that burden

on the basis of inadmissible hearsay evidence alone. The Superior Court decided that it

may do so, concluding that Pa.R.Crim.P. 542(E) countenances a prima facie case

established under such circumstances.                This interpretation runs afoul of our

constitutional requirements of due process and fundamental fairness.                 It is

unsustainable, as a matter of law.

                                               II.

       The vast majority of criminal cases begin with the filing of a criminal complaint

against an individual suspected of committing one or more criminal offenses. In most

instances, the district attorney plays no part in the initial charging decision, which is

made by a law enforcement officer. Nor does the prosecutor typically appear at the

initial arraignment. Normally, the attorney for the Commonwealth involves himself or

herself in a case for the first time at the preliminary hearing.

       Rule 542 of the Pennsylvania Rules of Criminal Procedure governs those

hearings. The rule, inter alia, authorizes the Commonwealth to “assume charge of the

prosecution,” and to “recommend to the issuing authority that the defendant be

discharged or bound over to court.”           Pa.R.Crim.P. 542(A)(1)-(2).   The rule also

safeguards certain rights held by the defendant, including the right to “be represented

by counsel” and to “cross-examine witnesses and inspect physical evidence offered

against” him or her. Id. 542(C)(1)-(2). The defendant may call witnesses and offer

physical evidence on his or her own behalf. Id. 542(C)(3)-(4).

       The rule also sets forth the Commonwealth’s burden of proof, mandating that an

issuing authority may hold a defendant for trial only when the Commonwealth




                                       [J-126-2016] - 5
establishes a prima facie case demonstrating that “(1) an offense has been committed

and (2) the defendant has committed it.” Id. 542(D). Finally, the rule authorizes the

Commonwealth to satisfy this burden, at least in part, through the use of hearsay. Rule

542(E) provides as follows:

        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.

Id. 542(E) (boldface added for emphasis).

        In this case, the Superior Court interpreted “any” to mean, effectively, one

element, some elements, or all of the elements of a crime. The court opined that, “[i]f

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.” Commonwealth v. Ricker,

120 A.3d 349, 357 (Pa. Super. 2015). Thus, concluded the Superior Court, Rule 542(E)

permits the Commonwealth to establish a prima facie case premised exclusively upon

hearsay evidence, even though that same body of evidence would not be admissible at

a later trial.

                                             III.

        Like the Superior Court, we must interpret the term “any” as it appears in Rule

542(E).      In all matters involving statutory interpretation, we apply the Statutory

Construction Act, 1 Pa.C.S. §§ 1501 et seq.          The Act directs us to ascertain and

effectuate the intent of the drafter of the relevant provision. 1 Pa.C.S. § 1921(a).2 To

accomplish that goal, we interpret the operative language not in isolation, but with

2
       Generally, our rules of procedure are subject to the rules of statutory
interpretation. See Pa.R.Crim.P. 101(C) (“To the extent practicable, these rules shall be
construed in consonance with the rules of statutory construction.”).



                                      [J-126-2016] - 6
reference to the context in which it appears. See Consulting Eng’rs Council of Pa. v.

State Architects Licensure Bd., 560 A.2d 1375, 1377 (Pa. 1989). A provision’s plain

language generally provides the best indication of the drafters’ intent.          See, e.g.,

McGrory v. Dep’t of Transp., 915 A.2d 1155, 1158 (Pa. 2007); Commonwealth v.

Gilmour Mfg. Co., 822 A.2d 676, 679 (Pa. 2003); Pa. Fin. Responsibility Assigned

Claims Plan v. English, 664 A.2d 84, 87 (Pa. 1995) (“Where the words of a statute are

clear and free from ambiguity the legislative intent is to be gleaned from those very

words.”).   Only where the words are ambiguous will we resort to other means for

discerning legislative intent.   1 Pa.C.S. § 1921(c); see In re Canvass of Absentee

Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d 1223, 1230 (Pa. 2004) (citing O’Rourke

v. Pa. Dep’t of Corr., 778 A.2d 1194, 1201 (Pa. 2001) (“Only when the language of the

statute is ambiguous does statutory construction become necessary.”)).

       The plain meaning of the term “any” sheds faint light on whether the rule was

intended to allow a prosecutor to demonstrate a prima facie case based solely upon

otherwise inadmissible hearsay. In the Superior Court’s view, “any” reasonably could

mean “every” or “all.” This is a reasonable interpretation, one that comports generally

with dictionary definitions. Merriam-Webster’s dictionary defines “any” in a number of

ways, including “one or some indiscriminately of whatever kind” and “one, some, or all

indiscriminately of whatever quantity.”3

       On the other hand, it would be reasonable as well to interpret “any” in a more

restrictive, singular sense. A simple hypothetical will illustrate the point. The setting is a

law firm. In an effort to ingratiate himself with his older colleagues, one young associate

shows up for work on a Friday with a dozen doughnuts, and sends out an email reading

“I brought doughnuts today. Please help yourself to any that you like.” Inside the box

3
       See https://www.merriam-webster.com/dictionary/any (last visited Aug. 7, 2017).



                                      [J-126-2016] - 7
are three different kinds of doughnuts: glazed, chocolate-sprinkled, and cream-filled.

Lawyer A walks up and selects one glazed doughnut, reasonably believing that “any”

meant “any one” particular doughnut. However, imagine that Lawyer B was the first to

the box, and he decided to take two glazed doughnuts and two chocolate-sprinkled

doughnuts. Lawyer B, also reasonably, interpreted “any” to mean “some” or “as many

as,” because each doughnut fairly can be considered “any” doughnut. The first glazed

is “any”, as is the second glazed, and as is each of the two chocolate-sprinkled

doughnuts. Now, suppose instead that Lawyer C is the first to the box, and that he

takes all of the doughnuts. Every one of them is a doughnut that he likes, and there

was no limit suggested on the amount of doughnuts that he could take. In fact, he was

told that he could take “any” of them. In his view, “any” meant “all,” which he happens

to know is also the precise meaning ascribed to the term by the Superior Court of

Pennsylvania.

      Both the Superior Court’s interpretation and the above hypothetical demonstrate

the interpretive complexities attending the term “any,” with its several common usages.

Preeminent lexicographer and legal writing maven Bryan Garner, undoubtedly

recognizing these complexities and usages, has described the numerous “uses and

meanings” of “any” as follows:

      As an adjective, any has essentially six uses. (1) The most common
      occurrence is in conditional, hypothetical, and interrogative sentences,
      where any means “a (no matter which)” or “some” <if you have any salt, I’d
      like to borrow some> <if any problem were to arise, what would it likely
      be?> <is there any evidence of the crime?>. (2) In the negative
      assertions, it creates an emphatic negative, meaning “not at all” or “not
      even one” <it was not in any way improper> <she did not know any
      member who was at the event>. (3) In affirmative sentences, it means
      “every” or “all” <any attempt to flout the law will be punished> <you are
      required to produce any documents related to the issue>. (4) In a
      sentence implying that a selection or discretionary act will follow, it may
      mean “one or more (unspecified things or people); whichever; whatever”
      <any student may seek a tutorial> <pick any books you like> <a good buy


                                   [J-126-2016] - 8
      at any price>. (5) In a declarative sentence or imperative involving a
      qualitative judgment, it means “of whatever kind” <you’ll have to take any
      action you consider appropriate>. In this sense, there is sometimes the
      implication that the quality may be poor <any argument is better than no
      argument>.      (6) In a declarative sentence involving a quantitative
      judgment, it means “unlimited in amount or extent; to whatever extent
      necessary” <this computer can process any quantity of numbers
      simultaneously>. In a related colloquial sense, it may mean “of great size
      or considerable extent” when following a negative <we won’t be able to
      make any real headway this week>.

BRYAN A. GARNER, GARNER’S MODERN ENGLISH USAGE 51 (4th ed. 2016).

      “Any,” at first blush a simple word, has variable meanings depending upon the

context in which the term is used. The problem we face here is that, not only is the term

itself amenable to multiple definitions and usages, but the context in which it appears

also is unhelpful. The remainder of Rule 542 offers us no guidance as to whether the

term “any” was intended to mean “any” in its singular or less than total sense, or

whether it was intended to mean one, some, or all.         Each construction would be

reasonable in this case. Because “[a] statute is ambiguous when there are at least two

reasonable interpretations of the text,” A.S. v. Pa. State Police, 143 A.3d 896, 905-06

(Pa. 2016), Rule 542(E) is ambiguous.

      When language is ambiguous, this Court generally may resolve the ambiguity by

considering: “the occasion and necessity for the statute or regulation; the circumstances

under which it was enacted; the mischief to be remedied; the object to be attained; the

former law, if any, including other statutes or regulations upon the same or similar

subjects; the consequences of a particular interpretation; and administrative

interpretations of such statute.” Freedom Med. Supply, Inc. v. State Farm Fire & Cas.

Co., 131 A.3d 977, 984 (Pa. 2016) (citing 1 Pa.C.S. § 1921(c)). However, there are

additional canons of statutory interpretation that we must consider as well. Relevant




                                    [J-126-2016] - 9
here is our “canon of constitutional avoidance.”4 We invoked this canon of restraint

recently in Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016):

      [W]e are bound to interpret a statute, where possible, in a way that
      comports with the constitution’s terms. 1 Pa.C.S. § 1922 (directing us to
      presume “[t]hat the General Assembly does not intend to violate the
      Constitution of the United States or of this Commonwealth”). We reach a
      constitutional challenge only when we find no tenable interpretation of the
      statute in question that obviates the necessity of doing so. “When the
      validity of [a statute] is drawn in question, and if a serious doubt of
      constitutionality is raised, it is a cardinal principle that this Court will first
      ascertain whether a construction of the statute is fairly possible by which
      the [constitutional] question may be avoided.”              Commonwealth v.
      Monumental Props., Inc., 329 A.2d 812, 827 (Pa. 1974) (quoting Crowell
      v. Benson, 285 U.S. 22, 62 (1932)). In MCI WorldCom, Inc. v. Pa. Pub.
      Utility Comm'n, 844 A.2d 1239 (Pa. 2004), we explained the governing
      principle as follows:

             The “canon of constitutional avoidance” provides that when a
             statute is susceptible of two constructions, by one of which
             grave and doubtful constitutional questions arise and by the
             other of which such questions are avoided, our duty is to
             adopt the latter. See Harris v. United States, 536 U.S. 545,
             555 (2002). . . . Pennsylvania explicitly recognizes this
             canon by statute in instances where construction of a
             Pennsylvania statute is at issue. See 1 Pa.C.S. § 1922; see
             also Commonwealth v. Bavusa, 832 A.2d 1042, 1050-51
             (Pa. 2003).

      MCI WorldCom, 844 A.2d at 1249-50.

Veon, 150 A.3d at 443 (citations modified).
      Although “any” is susceptible to myriad interpretations, for purposes of the

narrow question at issue in this case, only two are relevant. The one formulated by the


4
       As detailed below, the lower courts’ interpretations of “any” raise considerable
due process concerns that necessitate avoidance of an expansive interpretation.
Moreover, because the term is ambiguous, the rule of lenity also would apply and would
require a more restrictive interpretation of “any.” See Commonwealth v. Fithian, 961
A.2d 66, 74 (Pa. 2008) (explaining that, if an ambiguity exists in a penal statute, the
ambiguity should be resolved in the light most favorable to the accused).



                                     [J-126-2016] - 10
Superior Court reads “any” to include “every” element of the crimes charged. The other

interpretation encompasses something less than every element, whether one element

or some, but not all, elements. As we shall see, the former interpretation raises grave

due process concerns that render it unsustainable, requiring it to give way to a

construction that does not raise the same concerns.

                                               IV.

                                               A.

       Before addressing these due process concerns, a brief jurisprudential note is in

order. The issue upon which this Court granted review is the validity of a prima facie

case established only by hearsay in light of a criminal defendant’s constitutional right to

confront and cross-examine witnesses against him or her, a right which traditionally has

been confined to the trial setting. See Pennsylvania v. Richie, 480 U.S. 39, 52-53

(1987).   Indeed, the confrontation right has been the focus of this case from its

inception. Nonetheless, in their briefing to this Court, both the Commonwealth and

Ricker have determined that due process considerations are integral to a full resolution

of the claim, and both parties have asserted expressly to us here that the due process

issue is unavoidable.5 It is rare that opposing parties agree on a fundamental point in a

case. Undoubtedly, the parties are more familiar than we are with this case, having

been involved with it from its outset. They have determined that consideration of due

process issues is necessary for compete disposition of this matter. The Commonwealth

has gone so far as to waive expressly any challenge to issue preservation. I would

grant the parties’ joint request for review.

5
       See Brief for Ricker at 14, 33-34; Brief for the Commonwealth at 17 n.3 (“The
Superior Court found the due process claim unpreserved. As noted by [Ricker], both
parties seek review of this claim as well. The [Commonwealth] waives any right to
assert that this claim has not been preserved. Resolution of both the Confrontation
Clause and due process claim is in the public interest.”).



                                      [J-126-2016] - 11
       Occasionally, in order to resolve a complicated legal question upon which

allocatur was granted, we must consider issues beyond those that have been the focus

of the lower courts.6 This is particularly true for a discretionary court such as ours.

Sometimes, the parties recognize that our review and resolution of a discrete legal claim

would be hampered without consideration of a separate issue. And so it is with today’s

case. Hence, though uncommon, at times our function necessitates incorporating and

addressing additional claims or arguments, such as the due process issue agreed upon

by the parties here.

       Furthermore, both statutory interpretation and constitutional determinations are

questions of law, which allow for de novo review. See Commonwealth v. Lutz-Morrison,

143 A.3d 891, 894 (Pa. 2016) (statutory interpretation); Commonwealth v. Smith, 131

A.3d 467, 472 (Pa. 2015) (constitutional due process). Both parties have agreed that

the due process issue is indispensable to the ultimate disposition of this case, and both

have availed themselves of the opportunity to brief that issue in full. Accordingly, there

are no jurisprudential reasons to abstain from the due process considerations that are

implicated in this case.

                                            B.

       The Due Process Clause of the Fourteenth Amendment to the United States

Constitution prevents states from depriving “any person of life, liberty, or property,




6
        At times, this Court identifies such issues, and directs the parties to include them
in their presentations to this Court. By way of example, consider our recent grant of
allocatur in Commonwealth v. Livingstone, 135 A.3d 1016 (Pa. 2016) (per curiam),
where, in order to consider a police seizure of a vehicle for purposes of rendering aid,
we directed the parties to brief and to argue the potential application of the community
caretaker doctrine, even though the issue had not been part of the lower courts’
analysis and even though neither party requested consideration of that issue.



                                     [J-126-2016] - 12
                                                                         7
without due process of law . . . .” U.S. CONST. amend XIV, § 1.              In addition to

incorporating specific provisions of the Bill of Rights to the states and providing certain

substantive rights, the clause generally serves to protect individuals from processes and

procedures so unfair that they offend “fundamental conceptions of justice,” Dowling v.

United States, 493 U.S. 342, 352 (1990) (quoting United States v. Lovasco, 431 U.S.

783, 790 (1977)), and to uphold traditional notions of fundamental fairness and ordered

liberty. Id.8

       In his oft-quoted concurrence in Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123 (1951), Justice Felix Frankfurter remarked upon the role that due process

plays in safeguarding fairness for those involved in the judicial system, noting that

“[f]airness of procedure is due process in the primary sense. It is ingrained in our

national traditions and is designed to maintain them.”        Id. at 161 (Frankfurter, J.,

concurring) (internal citation and quotation marks omitted). Justice Frankfurter then

offered the following historical quote from Hagar v. Reclamation Dist., No. 108, 111 U.S.

701, 708 (1884): “(B)y ‘due process’ is meant one which, following the forms of law, is


7
        The Due Process Clause generally encompasses two species of protection. The
first category, known as substantive due process, applies to those rights “created only
by the Constitution,” see Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 229
(1985), and “specially protects those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation's history and tradition.” Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997) (citations and internal quotation marks
omitted). The second category is procedural due process, which embodies the notion
that “[p]arties whose rights are to be affected are entitled to be heard; and in order that
they may enjoy that right they must first be notified.” Fuentes v. Shevin, 407 U.S. 67, 80
(1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1863)). In today’s case, only
procedural due process is at issue.
8
       As noted infra, though broad on its face, procedural due process is not a device
for imposing substantive or normative notions of just results. See e.g. Dowling 493 U.S.
at 352 (“Beyond the specific guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation.”).



                                    [J-126-2016] - 13
appropriate to the case, and just to the parties to be affected. It must be pursued in the

ordinary mode prescribed by the law; it must be adapted to the end to be attained; and

wherever it is necessary for the protection of the parties, it must give them an

opportunity to be heard respecting the justice of the judgment sought.”          Joint Anti-

Fascist Refugee Comm., 341 U.S. at 162 (Frankfurter, J., concurring). Finally, Justice

Frankfurter offered the following insight upon the place of due process in a system of

ordered justice:

       The requirement of ‘due process' is not a fair-weather or timid assurance.
       It must be respected in periods of calm and in times of trouble; it protects
       aliens as well as citizens. But ‘due process,’ unlike some legal rules, is
       not a technical conception with a fixed content unrelated to time, place
       and circumstances. Expressing as it does in its ultimate analysis respect
       enforced by law for that feeling of just treatment which has been evolved
       through centuries of Anglo-American constitutional history and civilization,
       ‘due process' cannot be imprisoned within the treacherous limits of any
       formula. Representing a profound attitude of fairness between man and
       man, and more particularly between the individual and government, ‘due
       process' is compounded of history, reason, the past course of decisions,
       and stout confidence in the strength of the democratic faith which we
       profess. Due process is not a mechanical instrument. It is not a yardstick.
       It is a process. It is a delicate process of adjustment inescapably involving
       the exercise of judgment by those whom the Constitution entrusted with
       the unfolding of the process.

                                      *      *      *

       Due process is perhaps the most majestic concept in our whole
       constitutional system. While it contains the garnered wisdom of the past
       in assuring fundamental justice, it is also a living principle not confined to
       past instances.

Id. at 162-63, 174.9

9
      See also Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J.,
concurring) (“The history of American freedom is, in no small measure, the history of
procedure.”); and McNabb v. United States, 318 U.S. 332, 347 (1943) (Frankfurter, J.,
concurring) (“The history of liberty has largely been the history of observance of
procedural safeguards.”).



                                     [J-126-2016] - 14
      Notwithstanding the constitutional dimensions of “fundamental fairness,” its

scope has not been unbounded, and the principle is not simply a catch-all repository

allowing resort to sundry invocations of fairness when no lawful remedy exists.          In

Lovasco, the Supreme Court emphasized the limitation as follows:

      Judges are not free, in defining “due process,” to impose on law
      enforcement officials [their] “personal and private notions” of fairness and
      to “disregard the limits that bind judges in their judicial function.” Rochin v.
      California, 342 U.S. 165, 170 (1952). . . . [They] are to determine only
      whether the action complained of . . . violates those “fundamental
      conceptions of justice which lie at the base of our civil and political
      institutions,” Mooney v. Holohan, 294 U.S. 103, 112 (1935), and which
      define “the community's sense of fair play and decency,” Rochin, 342 U.S.
      at 173.

Lovasco, 431 U.S. at 790 (citations modified).

      Still, while bounded by principles of restraint, procedural due process

nonetheless provides important protections to criminal defendants, largely to ensure the

fairness of proceedings. In the pretrial stage, procedural due process provides a litany

of protections, as summarized by Professor Wayne LaFave and his colleagues in their

treatise on criminal procedure:

      At the investigatory stage, due process restricts the state's utilization of
      lineups, showups, and other identification procedures insofar as they
      present a “substantial likelihood of irreparable misidentification,” prohibits
      police practices that are so “outrageous” as to “shock the conscience,”
      and mandates against the intentional destruction or failure to preserve
      evidence recognized to be exculpatory and actions directed at making it
      more difficult for the defendant to locate potentially favorable witnesses.
      At the charging stage, due process prohibits unjustified extensive delay in
      charging that results in prejudice to the defense in preparing its case and
      charges that are the product of prosecutorial vindictiveness. At the pretrial
      stage, due process governs procedural elements of the motion to
      suppress, ensures that the defense receives reciprocal discovery when it
      is required to provide discovery to the prosecution, provides the indigent
      defendant with access to experts as needed to evaluate and present a
      contention resting on scientific expertise (e.g., insanity), recognizes a
      defense right to obtain during pretrial discovery governmental records
      determined by the trial court to contain material exculpatory information,


                                    [J-126-2016] - 15
       imposes on the prosecution a duty to disclose to the defense or court
       material exculpatory evidence that is within its possession or control, and
       prohibits state timing requirements for motions that are so stringent as to
       deny the defendant a reasonable opportunity to raise a constitutional
       objection.

1 W AYNE R. LAFAVE    ET AL.,   Criminal Procedure § 2.7(a) (4th ed. 2015) (footnotes and

citations omitted).

       It is indisputable that neither the United States Constitution nor the Pennsylvania

Constitution requires a preliminary hearing. This does not mean that, once afforded, the

hearing lies outside the scope of due process protections. To date, neither the United

States Supreme Court nor this Court has defined the protections demanded by due

process when the Commonwealth proceeds with a preliminary hearing, at least not with

regard to the quantity of admissible evidence that the Commonwealth must advance in

order to support a magisterial district judge’s decision to bind a defendant over for trial.

We approached the question in Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d

172 (Pa. 1990) (plurality).      In that case, five Justices held that the due process

implications attendant to any adjudicative proceeding attach as well to preliminary

hearings.

       On its face, Verbonitz is a plurality decision. Closer inspection reveals that a

majority of the Court would have held that constitutional principles of due process apply,

at least to some degree, at preliminary hearings. Justice Larsen authored the lead

opinion, which was joined by Justices Zappala and Papadakos. Justice Larsen noted

that, to satisfy its prima facie burden, “the Commonwealth must produce legally

competent evidence . . . .” Id. at 174. He then continued:

       In this case it is clear that the Commonwealth did not meet its burden. As
       Justice Flaherty stated in his concurring opinion in Unemployment
       Compensation Board of Review v. Ceja, 427 A.2d 631, 647 (Pa. 1981)
       (Flaherty, J., concurring), “fundamental due process requires that no
       adjudication be based solely on hearsay evidence”. If more than “rank


                                      [J-126-2016] - 16
       hearsay,” id., is required in an administrative context, the standard must
       be higher in a criminal proceeding where a person may be deprived of his
       liberty.

Id. (citation modified; emphasis added).

       Similarly, Justice Flaherty, joined by Justice Cappy, acknowledged that there is

no constitutional right to a preliminary hearing. However, he noted that, when, by law, a

state creates a hearing, certain rights, such as the right to counsel and possibly the right

to confront witnesses, necessarily attach. Justice Flaherty then addressed directly the

question of whether hearsay “standing alone” may constitute sufficient evidence for a

prima facie case; unequivocally, he would have held that such evidence was

insufficient. Id. at 175 (Flaherty, J., concurring) (emphasis omitted). Justice Flaherty

deemed “this to be a requirement of due process,” id., and reiterated his

pronouncement in Ceja that “[f]undamental due process requires that no adjudication be

based solely on hearsay evidence.” Id. at 176 (quoting Ceja, 427 A.23 at 547 (Flaherty,

J., concurring)).

       In the case sub judice, the Superior Court effectively buried Verbonitz as a

valueless plurality. This was a parched interpretation. In Verbonitz, five Justices of this

Court agreed that, to some degree, constitutional due process attaches at a preliminary

hearing and prohibits cases from being bound over for trial based solely upon hearsay.

Far from lacking persuasive value, the Verbonitz opinions should together be

recognized as a holding that due process prohibits the Commonwealth from depriving a

person of liberty upon nothing more than inadmissible hearsay. A hearing premised

only on hearsay cannot comport with any reasonable understanding of “fundamental

conceptions of justice” or ‘the community's sense of fair play and decency.” Lovasco,

431 U.S. at 790.

                                            C.



                                     [J-126-2016] - 17
       For a prima facie case to rest upon nothing more than inadmissible hearsay is to

offend traditional notions of procedural due process. At such an illusory proceeding, the

interests, purposes, rights, and benefits of a preliminary hearing are denuded of

substance or meaning.

       Although not constitutionally mandated, a preliminary hearing, once established,

plays a vital role in our criminal justice system. For all parties involved, it serves a core

function, and it protects against unwarranted governmental intrusions upon a citizen’s

liberty. “The primary reason for the preliminary hearing is to protect an individual’s right

against unlawful arrest and detention.” Commonwealth ex rel. Maisenhelder v. Rundle,

198 A.2d 565, 567 (Pa. 1964). Additionally, the hearing “seeks to prevent a person

from being imprisoned or required to enter bail for a crime which was never committed,

or for a crime with which there is no evidence of his connection.” Id.

       In Coleman v. Alabama, the United States Supreme Court described the role of

counsel at the preliminary hearing.      In determining that such a proceeding, when

afforded by state law, is a critical stage of the criminal justice system at which the right

to counsel attaches, the Court explained that the preliminary hearing may serve to

prevent “erroneous or improper prosecution.”       Coleman, 399 U.S. at 9. The Court

described defense counsel’s functions at the hearing as follows:

       First, the lawyer’s skilled examination and cross-examination of witnesses
       may expose fatal weaknesses in the State’s case that may lead the
       magistrate to refuse to bind the accused over. Second, in any event, the
       skilled interrogation of witnesses by an experienced lawyer can fashion a
       vital impeachment tool for use in cross-examination of the State’s
       witnesses at the trial, or preserve testimony favorable to the accused of a
       witness who does not appear at the trial. Third, trained counsel can more
       effectively discover the case the state has against his client and make
       possible the preparation of a proper defense to meet that case at the trial.
       Fourth, counsel can also be influential at the preliminary hearing in making
       effective arguments for the accused on such matters as the necessity for
       an early psychiatric examination or bail.



                                     [J-126-2016] - 18
Id.

      Although the panoply of constitutionally provided trial rights does not apply in its

entirety at a preliminary hearing, the hearing clearly is intended to be more than a mere

formality. The very rule that we are called upon to interpret provides a right to counsel

and to cross-examine witnesses. The rule further provides the accused with the right to

inspect the evidence offered by the Commonwealth.

      The preliminary hearing was not created for the purpose of serving as a trial

preparation tool for the defense. See Commonwealth v. Sanchez, 82 A.3d 943, 984

(Pa. 2013). This does not mean that no benefits necessarily and naturally accrue to the

defendant in conducting the hearing according to its true purpose and within the

confines of our Constitutions. A true preliminary hearing involves introduction by the

Commonwealth of the minimum competent evidence to establish a prima facie case. In

doing so, the Commonwealth opens its case to preliminary inspection and subjects its

witnesses to basic cross-examination. Each is necessary to convince the presiding

judicial officer that the Commonwealth’s restraint upon the accused’s liberty is

warranted. As noted in Coleman, this allows the accused and his counsel to probe the

testimony, to make arguments against the charges or in favor of bail, and to preserve

favorable testimony.   It also serves as a limited discovery tool, which can inform

decisions on whether to challenge the seizure of the accused or the acquisition of

evidence in a suppression motion, and on what defense to pursue, if any. Moreover,

the ability to participate fully in a preliminary hearing can aid in focusing subsequent

expenditures of limited investigative resources, something that is particularly beneficial

to chronically (and unlawfully) underfunded public defender’s offices.     See Kuren v.

Luzerne Cty., 146 A.3d 715, 717 (Pa. 2016).




                                    [J-126-2016] - 19
        Inevitably, the protocol that would ensue if due process tolerated prima facie

cases premised upon hearsay alone would typically allow a prosecutor merely to call a

police officer to the witness stand to read reports and summaries of interviews to the

magisterial district judge.   The officer would not even be required to have any

involvement in the case.        In busy cities like Philadelphia and Pittsburgh, the

Commonwealth could install one police officer in each criminal courtroom and simply

have that officer read the reports as the cases are called, with no requirement of prior

familiarity with any case. Under such a protocol, the right to counsel and the rule-based

right to cross-examine witnesses would amount to nothing more than hollow formalities,

promises broken. Counsel’s functions, as outlined by the Supreme Court in Coleman,

would cease to exist. There would be no ability to test the Commonwealth’s prima facie

case, no witnesses to cross-examine, no testimony to preserve. Counsel would not be

able to identify weaknesses in the Commonwealth’s case or to identify possible

defenses, as counsel would have no reason to be confident that the statements read by

police officers accurately or fully reflect what the witness would say on the witness stand

at trial.   The right to counsel, and counsel’s concomitant rule-based right to cross-

examine witnesses, would shrink to a right merely to have a warm body stand next to

the accused, incapable of serving any real function on the accused’s behalf.

        Additionally, the accused would be deprived of the other benefits that flow from

participating in a preliminary hearing, such as obtaining a fair idea of the case against

him or her and being able to allocate resources accordingly. At the same time, the

Commonwealth would benefit from shielding its case and its witnesses from testing and

examination, and would be permitted to proceed on little more than its assurance that it

will produce competent evidence at some later date.




                                    [J-126-2016] - 20
      Perhaps as importantly, the presiding magistrate would be unable to perform his

or her function. That judicial officer must evaluate the Commonwealth’s case and be

convinced that the Commonwealth’s charges are justified and that the Commonwealth’s

evidence warrants subjecting the accused to a full trial. If a magisterial district judge

renders a decision based exclusively upon evidence that cannot be used against the

accused at a later trial, no 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.” No restraint upon a person’s liberty can rest upon such a premise.

      As a flexible concept, due process is necessarily incapable of precise definition.

However, by any definition, principles of fundamental fairness and ordered liberty

demand minimally that, when the law affords an individual a hearing, particularly one

where restraint of a person’s liberty interest is at issue, that hearing cannot be a

functionless formality, nor entirely one-sided. Our Constitutions and our laws identify

rights and interests that play an important role in the preliminary hearing. When the

Commonwealth is permitted to circumvent each of those rights and interests by

introducing only evidence that cannot be introduced at trial, and nothing more, that

hearing falls well below the line that due process draws. Nothing about such a hearing

satisfies ‘the community's sense of fair play and decency.” Lovasco, 431 U.S. at 790.

      When the law affords a hearing to a person involved in our judicial system,

particularly a hearing in which that person’s liberty is at stake, the hearing must be more

than a mere formality.     In the words of Justice Benjamin Cardozo, “[t]he hearing,

moreover, must be a real one, not a sham or a pretense.”               Palko v. State of

Connecticut, 302 U.S. 319, 327 (1937) (citations omitted) (overruled by Benton v.




                                    [J-126-2016] - 21
Maryland, 395 U.S. 784, 794 (1969) (holding that the Due Process Clause required

incorporation of the Fifth Amendment’s Double Jeopardy Clause to the states)).

                                           V.

      Because a prima facie case that rests exclusively upon hearsay would violate

constitutional due process requirements, any interpretation of Rule 542(E) that permits

such a result also is unconstitutional. As such, the Superior Court’s interpretation must

be avoided. See Veon, 150 A.3d at 443. The ambiguity that surrounds Rule 542(E)’s

use of the term “any” must be resolved in favor of Ricker. The term cannot mean “all.”

      The issue in this case only requires consideration of whether “any” can mean

“all.” Beyond that, the question of what portion of a prima facie case can rest upon

hearsay is not before the Court. The Criminal Procedural Rules Committee, comprised

of judges, prosecutors, and defense lawyers, should consider that question in the first

instance and in light of today’s result. Those additional considerations are not before

the Court, and should be reviewed in short order by the Committee.

      For purposes of the present case, Ricker did not receive a preliminary hearing in

accordance with the manner required by due process. The Superior Court’s decision to

the contrary must be reversed, and Ricker must be afforded a new preliminary hearing.




                                   [J-126-2016] - 22
