J-A01033-17
                              2017 PA Super 163



COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                   v.                      :
                                           :
DONALD J. MCCLELLAND                       :
                                           :
                Appellant                  :   No. 633 WDA 2016


                    Appeal from the Order April 4, 2016,
               in the Court of Common Pleas of Erie County,
            Criminal Division at No(s): CP-25-CR-0003575-2015

BEFORE:     BOWES, OLSON, and STRASSBURGER,* JJ.

DISSENTING OPINION BY STRASSBURGER, J.: FILED May 26, 2017

      Because procedural due process requires the Commonwealth to

produce something more than just hearsay at a preliminary hearing, I

respectfully dissent and offer the following analysis.

             In terms of procedural due process, government is
      prohibited from depriving individuals of life, liberty, or property,
      unless it provides the process that is due. While not capable of
      an exact definition, the basic elements of procedural due process
      are adequate notice, the opportunity to be heard, and the
      chance to defend oneself before a fair and impartial tribunal
      having jurisdiction over the case.          Thus, courts examine
      procedural due process questions in two steps: the first asks
      whether there is a life, liberty, or property interest that the state
      has interfered with; and the second examines whether the
      procedures attendant to that deprivation were constitutionally
      sufficient.

Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013) (internal citations

omitted).




*Retired Senior Judge assigned to the Superior Court.
J-A01033-17


         Here, the Majority concludes that the only right with respect to a

preliminary hearing that is implicated is a “liberty restraint[ that] may result

from requiring an individual to stand trial.” Majority Opinion, at 23. I agree

with that position in this case; however, I point out that in situations where

a defendant is being held without bail or cannot afford bail, the liberty

interest is quite different.

         Turning to the second inquiry regarding the sufficiency of the

procedure, I agree with the concurring opinion authored by Justice Flaherty

in Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172, 175

(Pa. 1990) (Flaherty, J. concurring, joined by Justice Cappy). In that case,

Justice Flaherty reiterated his position that a “prima facie case cannot be

established at a preliminary hearing solely on the basis of hearsay

testimony.” Id. at 176.        See also Com., Unemployment Comp. Bd. of

Review v. Ceja, 427 A.2d 631, 647 (Pa. 1981) (Flaherty, J. concurring)

(“Fundamental due process requires that no adjudication be based solely

upon hearsay evidence.”).

         Permitting the Commonwealth to present testimony only from the

trooper investigating the case1 is the beginning of a path down a slippery

slope.     Certainly there are sensitivities involved in prosecuting claims of




1
  In this case, the Trooper Wingard was not even testifying to his own
interview with the victim; rather, he was testifying about what he heard the
victim tell the interviewer from the Child Advocacy Center.

                                      -2-
J-A01033-17


sexual assault on children, but the accused has rights as well. Accordingly, I

respectfully dissent.




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