                             [J-78-2018][M.O. - Dougherty, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                    WESTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 2 WAP 2018
                                               :
                                               :   Appeal from the Order of the Superior
                       Appellee                :   Court entered on 5/26/17 at No. 633
                                               :   WDA 2016, affirming the order of the
                                               :   Court of Common Pleas of Erie County
                  v.                           :   entered 4/4/16 at No. CP-25-CR-
                                               :   0003575-2015
                                               :
DONALD J. MCCLELLAND,                          :
                                               :
                       Appellant               :   ARGUED: October 24, 2018




                        CONCURRING AND DISSENTING OPINION


CHIEF JUSTICE SAYLOR                               DECIDED: JULY 21, 2020


       I join the majority’s analysis to the extent it reflects that a majority of Justices in

Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990) (plurality), held that hearsay

alone is insufficient to sustain the Commonwealth’s burden of establishing a prima facie

case at a preliminary hearing. Accord Commonwealth v. Ricker, 642 Pa. 367, 375 &

n.5, 170 A.3d 494, 499 & n.5 (2017) (Saylor, C.J., concurring). I also agree that a

majority of Justices advanced a due process rationale in Verbontiz.            See Majority

Opinion, slip op. at 23.1

1 Despite my position, above, I continue to reference the Verbonitz opinion as a plurality
opinion. This, of course, doesn’t mean the opinion necessarily lacks a holding or any
shared rationale. See, e.g., Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990,
993 (1977) (stating that when “a fragmented Court decides a case and no single
(continued…)
       As Justice Baer highlights, however, the Verbonitz due process rationale is

severely lacking. See Dissenting Opinion, slip op. at 4-5, 10-11. In this regard, both the

lead opinion and the concurrence rested the entire analysis upon an inapt analogy

between final administrative adjudications of rights or interests and preliminary hearings

in criminal cases, at which no such final adjudication occurs. See id. For this reason, I

find that Verbonitz is so insufficiently reasoned that it fails to qualify for precedential

treatment.   See generally Mayhugh v. Coon, 460 Pa. 128, 135, 331 A.2d 452, 456

(1975) (discussing stare decisis and the applicable exceptions).

       I do not believe, however, that this case presents a suitable vehicle to proceed

further to address the due process issue, decoupled from Verbonitz’s faulty rationale.

Of course, I certainly understand the dissent’s approach of proceeding to do so,

particularly in light of the substantial public importance and the difficulty the Court has

had with identifying a suitable case. But I note that there is no advocacy on this subject

from the criminal-defense side, given that Appellant has assiduously staked his position

to Verbonitz. Accordingly, and since I differ with Appellant’s contention that Verbonitz

should control, I would simply affirm the order of the Superior Court.

       Finally, the majority asserts, “that grave and doubtful constitutional concerns are

evident is beyond peradventure.” Majority Opinion, slip op. at 28 n.9. It is significant,

however, to me at least, that such concerns proceed largely from the Court’s decision to

impose a burden on the Commonwealth beyond what is required by the federal and

state constitutions, i.e., the burden to establish a prima facie case as opposed to

probable cause. See generally Ricker, 642 Pa. at 380-86, 170 A.3d at 502-06 (Saylor,


(…continued)
rationale explaining the result enjoys the assent of [the majority], ‘the holding of the
Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds'” (citation omitted)).


                          [J-78-2018][M.O. – Dougherty, J.] - 2
C.J., concurring) (discussing the uncertainties and difficulties flowing from the

maintenance of this ostensibly higher, extra-constitutional standard).

       I believe this Court should carefully consider whether this extra-constitutional

measure of protection remains feasible in the modern era, particularly in light of the

increased phenomenon of witness intimidation.          As summarized in a United States

Department of Justice publication:

              Citizens who witness or are victimized by crime are
              sometimes reluctant to report incidents to police or to assist
              in the prosecution of offenders. Such reluctance may be in
              response to a perceived or actual threat of retaliation by the
              offender or his or her associates, or may be the result of
              more generalized community norms that discourage
              residents from cooperating with police and prosecutors. In
              some communities, close ties between witnesses, offenders,
              and their families and friends may also deter witnesses from
              cooperating; these relationships can provide a vitally
              important context for understanding witness intimidation.
              Particularly in violent and gang-related crime, the same
              individual may, at different times, be a victim, a witness, and
              an offender. Historically, witness intimidation is most closely
              associated with organized crime and domestic violence, but
              has recently thwarted efforts to investigate and prosecute
              drug, gang, violent, and other types of crime.
See generally KELLY DEDEL, U.S. DEP’T       OF   JUSTICE, OFFICE   OF   COMMUNITY ORIENTED

POLICING STRATEGIES, PROBLEM-ORIENTED GUIDES FOR POLICE PROBLEM-SPECIFIC GUIDES

SERIES, W ITNESS INTIMIDATION 2 (2006).          Although empirical research may remain

sparse, “small-scale studies and surveys of police and prosecutors suggest that witness

intimidation is pervasive and increasing.” Id. at 5.

       In my view, the salutary effect of providing criminal defendants with an extra-

constitutional layer of protection at preliminary hearings via the maintenance of the

prima facie standard must be weighed against the burden imposed on the

Commonwealth to repeatedly produce victims and other lay witnesses during multiple

                          [J-78-2018][M.O. – Dougherty, J.] - 3
phases of a criminal prosecution.      In this balance, I find that serious consideration

should be given to recalibrating preliminary hearings according to the constitutionally-

prescribed requirement for the government to establish probable cause and leaving the

conferral of any additional rights to the political branch, which is better situated to make

broad-scale assessments of social policy.2




2 Along these lines I note that the Criminal Procedural Rules Committee recently
solicited public comment on a proposal that would replace the prima facie standard with
a probable cause assessment. See Supreme Court of Pa. Crim. Proc. R. Comm.
Notice of Proposed Rulemaking, Proposed Amendments of Pa.Rs.Crim.P. 542, 543,
and 1003, 49 Pa. B. 197 (Jan. 12, 2019). That proposal, however, remains within the
Committee’s purview after having received comments from the public.


                          [J-78-2018][M.O. – Dougherty, J.] - 4
