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.

OPINION BY BOWES, J.:                                      FILED MAY 26, 2017

       In Commonwealth v. Ricker, 120 A.3d 349 (Pa.Super. 2015),

appeal granted, 135 A.3d 175 (Pa. 2016)1 we reviewed the 2013

amendment to Pa.R.Crim.P. 542, which permitted the Commonwealth to

establish, via hearsay, any element of an offense for purposes of

determining whether a prima facie case has been established that the actor

committed a criminal offense. Ricker held that this Rule did not run afoul of

the constitutional right to confront witnesses under either the Pennsylvania

or United States constitutions. We left unaddressed whether notions of due

process would require a different result. In this interlocutory appeal2 from

an order denying a pretrial motion for habeas corpus relief, Appellant today
____________________________________________


1
    The case was argued in December of 2016.
2
    We discuss the basis for our jurisdiction in the text, infra.



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



asks us to resolve that question in his favor. On these facts, we decline to

do so, and therefore affirm.

                                      I
                         Facts and Procedural History

      Pennsylvania State Trooper Christopher Wingard filed a complaint

accusing Appellant of indecent assault, indecent exposure, and corruption of

minors for crimes committed against A.T., an eight-year-old child.        The

complaint related that on August 3, 2015, A.T.’s parents arrived at a

Pennsylvania State Police barracks to report that A.T. told them that

Appellant touched her face with his penis on June 27, 2015. Based on this

information, an interview was scheduled at a Children’s Advocacy Center

with a specialist.   A.T. provided further details of the incident at this

interview, resulting in the criminal charges.

      At the preliminary hearing, the Commonwealth called Trooper Wingard

as its sole witness. He testified that he personally witnessed the interview

via a video link and related to the magistrate the specific contents of A.T.’s

interview.    Three counts were held for trial, and the Commonwealth

thereafter filed a criminal information charging Appellant with indecent

assault, indecent exposure, and corruption of minors, all graded as

misdemeanors of the first degree.

      On March 23, 2016, Appellant filed a motion seeking a writ of habeas

corpus dismissing the charges.        The motion acknowledged Ricker as



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controlling, but argued that holding the charges based on pure hearsay

violated his rights of confrontation and due process under both the

Pennsylvania and United States Constitutions.

        On April 4, 2016, the trial court denied the motion. Appellant filed a

timely notice of appeal, raising two issues: extraordinary circumstances

justify this interlocutory appeal, and a substantive issue raising the

aforementioned due process and confrontation arguments.

                                       II

                                       A
                        Jurisdiction and Statutory Text

      We first address whether we have jurisdiction over this interlocutory

appeal. In general, the denial of a pretrial writ of habeas corpus claiming a

lack of sufficient evidence is not an appealable order. Ricker, supra at 353.

Ricker determined that exceptional circumstances warranted review of the

appeal due to the important constitutional questions. Id. at 354. Since the

issue presented herein directly addresses an issue explicitly unresolved by

Ricker, we hold that the same reasoning applies and that we have

jurisdiction to consider the merits of his claim.

      The instant appeal concerns the intersection of two provisions of Rule

of Criminal Procedure 542, which governs preliminary hearings.          These

provisions state:

      (C) The defendant shall be present at any preliminary hearing
      except as provided in these rules, and may:

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J-A01033-17




       (1) be represented by counsel;

       (2) cross-examine witnesses and inspect                 physical
       evidence offered against the defendant;

       ...

       (E) 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 (emphases added).

                                           B
                                 Appellant’s Argument

       Appellant raises one issue for our review: Whether hearsay testimony

from an affiant violates due process when that hearsay alone establishes a

prima facie case at a preliminary hearing.3 Appellant’s brief at 14.

       Appellant does not distinguish between substantive due process and

procedural due process, nor does his argument specify what purported

interest is at stake and, in light of those interests, why the provided

procedure violates due process. He does not clarify whether this challenge is

facial or as-applied. Instead, his argument essentially invokes due process

____________________________________________


3
  We noted in Ricker that the terms “prima facie” and sufficient “probable
cause” have been used interchangeably in the context of modern preliminary
hearings.




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J-A01033-17



as a substitute for unfair.         We glean three major points advanced by

Appellant.

      First, he cites to the competing provision in Rule 542, which states

that a defendant at the preliminary hearing has a right to counsel and may

“cross-examine witnesses and inspect physical evidence offered against the

defendant[.]”    Pa.R.Crim.P. 542(C)(2).      Therefore, Rule 542(E), while not

violating the constitutional right to confrontation, vitiates the rule-based

right to cross-examine a witness. In other words, Ricker’s holding negates

Rule 542(C)(2), since the Commonwealth can simply decline to call any

witnesses with direct knowledge. “How is a defendant such as [Appellant] to

‘cross-examine witnesses and inspect physical evidence’ under Pa.R.Crim.P.

542(C)(2) when none is offered at the preliminary hearing?”          Appellant’s

brief at 14.

      Second, Appellant relies upon Coleman v. Alabama, 399 U.S. 1

(1970), which established that the preliminary hearing is a critical stage of

the prosecution entitling a defendant to counsel.      This point builds on the

first: If Appellant is entitled to a preliminary hearing and counsel at that

hearing, counsel must be able to cross-examine his primary accusers.

Otherwise, the right to counsel and cross-examination at this stage are

hollow guarantees.

      Third,    Appellant   cites   Commonwealth      ex.   rel.   Buchanan   v.

Verbonitz, 581 A.2d 172 (Pa. 1990) (plurality), a case we discussed in

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J-A01033-17



Ricker.     The concurring opinion in Verbonitz opined that due process

requires something more than pure hearsay to sustain a prima facie case.4

                                               III

       We    begin    by    discussing    the        pertinent   constitutional   principles

governing the initiation of criminal prosecutions.

                                       A
                     Federal Law and Constitutional Principles

       The Grand Jury Clause of the Fifth Amendment to the United States

Constitution limits the federal government’s ability to initiate prosecutions.

       No person shall be held to answer for a capital, or otherwise
       infamous crime, unless on a presentment or indictment of a
       Grand Jury, except in cases arising in the land or naval forces, or
       in the Militia, when in actual service in time of War or public
       danger;

U.S. Const. Am. V.          Infamous crimes are defined as those which are

punishable by death or imprisonment for a term of over one year. United

States v. Graham, 169 F.3d 787, 792 (3d Cir. 1999) (infamous crimes

“came to be defined as crimes punishable by more than one year of

confinement”). Other crimes may be prosecuted by information. See Duke

v. United States, 301 U.S. 492, 495 (1937) (“The offense . . . was not

subject     to   infamous     punishment-therefore           open    to   prosecution    by

____________________________________________


4
  Appellant incorrectly maintains that Ricker ignored Verbonitz. Appellant
attaches precedential significance to the outcome, but Verbonitz is a
plurality decision as to its reasoning.



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J-A01033-17



information.”). The United States Supreme Court has held that a grand jury

indictment may lawfully be secured on the basis of pure hearsay. Costello

v. United States, 350 U.S. 359 (1956).

        While “most of the provisions of the Bill of Rights apply with full force

to both the Federal Government and the States,” McDonald v. City of

Chicago, 561 U.S. 742, 750 (2010), via the Due Process Clause of the

Fourteenth Amendment, the Grand Jury Clause is not one of them.              The

High Court has applied a “selective incorporation” doctrine, in which the

Fourteenth Amendment incorporates most, but not all, of the particular

rights contained in the first eight Amendments to the United States

Constitution.    In Hurtado v. California, 110 U.S. 516 (1884), the High

Court held that the Grand Jury Clause was not binding on the States.          In

that case, a district attorney, pursuant to California procedures, filed an

information against Hurtado instead of seeking an indictment, charging him

with murder. Id. at 517. Hurtado asserted that his subsequent conviction

and sentence were void, as due process required an indictment by grand

jury.   The Court rejected that theory.      “[W]e are unable to say that the

substitution for a presentment or indictment by a grand jury of the

proceeding by information after examination and commitment by a

magistrate, certifying to the probable guilt of the defendant, with the right

on his part to the aid of counsel, and to the cross-examination of the




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J-A01033-17



witnesses produced for the prosecution, is not due process of law.” Id. at

538.

       As reflected in this quotation, California permitted cross-examination

at the probable cause hearing.     However, in Lem Woon v. Oregon, 229

U.S. 586 (1913), the Court confirmed that the ability to cross-examine was

irrelevant to the constitutional issue. Therein, Lem Woon was convicted of

murder after a prosecutor filed an information.     The law in Oregon at the

time “did not require any examination, or commitment by a magistrate, as a

condition precedent to the institution of a prosecution by an information filed

by the district attorney, nor require any verification other than his official

oath.” Id. at 587. The Court held that Hurtado applied, and this procedure

did not violate due process.

       The distinction sought to be drawn between the present case
       and that of Hurtado, on the ground that the Oregon system did
       not require that the information be preceded by the arrest or
       preliminary examination of the accused, is untenable.
       ....

       [T]he ‘due process of law’ clause does not require the state to
       adopt the institution and procedure of a grand jury, [and] we are
       unable to see upon what theory it can be held that an
       examination, or the opportunity for one, prior to the formal
       accusation by the district attorney is obligatory upon the states.

Id. at 590. Hurtado remains good law. See McDonald, supra at 784, n.


30 (citing Hurtado).




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J-A01033-17



       Taken together, nothing obligates the States to provide any pretrial

testing   procedure      whatsoever;      the    prosecutor’s   decision    to   file   an

information is sufficient to require a citizen to stand trial. 5           However, the

same is not true with respect to pretrial restraints on liberty—whether

incarceration or any other restraint pending trial—absent an opportunity for

a probable cause examination. “[W]e do not think prosecutorial judgment

standing alone meets the requirements of the Fourth Amendment.”

Gerstein v. Pugh, 420 U.S. 103, 117 (1975). Thus, there is a distinction

between requiring an individual to stand trial, and subjecting an accused to

restraints on liberty, incarceration or otherwise, pending that trial, even

though such restraints necessarily flow from the act of filing charges.

                                       B
                      State Law and Constitutional Principles

       The States are, of course, free to act where the Constitution does not

compel them to do so.           Historically, criminal prosecutions could not be

initiated in this Commonwealth, absent limited exceptions, via the filing of

criminal informations. That prohibition was removed with the Amendment of


____________________________________________


5
    Due process applies to, inter alia, notice requirements; i.e., an accused
has the right to know of which crimes he is being prosecuted. However, that
tells us nothing about any limitation on the power to require a citizen to
answer those charges in the first instance, or an accused’s right to challenge
that determination.




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J-A01033-17



May 15, 1973 to Article I, Section 10, which added the following emphasized

language to the Pennsylvania Constitution:

      Except as hereinafter provided no person shall, for any indictable
      offense, be proceeded against criminally by information, except
      in cases arising in the land or naval forces, or in the militia,
      when in actual service, in time of war or public danger, or by
      leave of the court for oppression or misdemeanor in office. Each
      of the several courts of common pleas may, with the
      approval of the Supreme Court, provide for the initiation
      of criminal proceedings therein by information filed in the
      manner provided by law.

Pa. Const. art. I, § 10 (emphasis added).          See Commonwealth v.

Webster, 337 A.2d 914 (Pa. 1975) (noting that prior to this 1973

amendment, the Pennsylvania Constitution, with few exceptions, prohibited

the filing of criminal informations). Subsequent statutory authorization gave

effect to the amendment. See 42 Pa.C.S. § 8931(b) (permitting each of the

courts of common pleas, with approval of the Supreme Court, to permit

initiation of criminal proceedings by criminal information).     In turn, our

Supreme Court has promulgated rules governing the initiation of criminal

charges, including Rule 542 and its hearsay provision.

      Note, then, that the right to a preliminary hearing markedly differs

from the right to confront witnesses, as the latter right is codified in both

constitutions. “In all criminal prosecutions the accused hath a right. . . . to

be confronted with the witnesses against him,” Pa. Const. Art. I, § 9; “In all

criminal prosecutions, the accused shall enjoy the right . . . . to be

confronted with the witnesses against him[.]” U.S. Const.Am. VI.            In


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J-A01033-17



contrast, there is no constitutional right to a preliminary hearing, as we have

set forth, and Article I, § 10 contemplates the initiation of a prosecution via

information. Thus, our Constitution cedes authority to the Supreme Court to

dictate the procedures governing preliminary hearings.

                                       IV

      As a threshold matter, we must determine whether the fact that a

preliminary hearing is purely statutory triggers due process protections. If a

right is created by statute, it would follow that the right may be

subsequently limited, if not eliminated.

      We conclude that due process applies. Once a State elects to act in a

field, due process protections inhere to the administration and regulation of

the system.   This point is illustrated by analogous cases discussing other

criminal matters for which there is no constitutional right: the right to appeal

and the right to collateral review.    “Almost a century ago, the Court held

that the Constitution does not require States to grant appeals as of right to

criminal defendants seeking to review alleged trial court errors.” Evitts v.

Lucey, 469 U.S. 387, 393 (1985) (citing McKane v. Durston, 153 U.S.

684, 14 S.Ct. 913, 38 L.Ed. 867 (1894)). Yet, having established a right to

an appeal, regulation of that system is subject to due process protections.

In Evitts, the issue was whether a defendant’s right to appeal could be

terminated when appointed counsel failed to follow appellate rules.         The

Commonwealth of Kentucky argued that, since a state is not obligated to

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J-A01033-17



provide a system of appellate review, any regulation thereof cannot

implicate due process. The United States Supreme Court flatly rejected that

premise.      “The right to appeal would be unique among state actions if it

could be withdrawn without consideration of applicable due process norms. .

. . In short, when a State opts to act in a field where its action has

significant discretionary elements, it must nonetheless act in accord with the

dictates of the Constitution-and, in particular, in accord with the Due Process

Clause.” Evitts, supra at 400-01. Similarly, Pennsylvania v. Finley, 481

U.S. 551 (1987), which held that there is no right to collateral review,

suggested that when a state opts to provide collateral review, the

fundamental protections of the Due Process Clause of the Fourteenth

Amendment apply. Id. at 401 (citing Evitts, but concluding the respondent

“has suffered no deprivation, assuming for the moment that the Due Process

Clause is relevant”).

      Thus, as a threshold matter, we conclude that due process principles

apply to the procedures which implement the statutory right to preliminary

hearing.

                                            V

      We now examine the standards governing our review of Appellant’s

due process claim.        As a preliminary matter, we note that duly enacted

legislation    carries   with   it   a   strong    presumption   of   constitutionality.

Commonwealth v. Swinehart, 664 A.2d 957, 961 (Pa. 1995).                           This

                                          - 12 -
J-A01033-17



principle extends to rules promulgated by our Supreme Court.              Ricker,

supra at 362.      The presumption of constitutionality will not be overcome

unless the legislation clearly, palpably, and plainly violates the constitution.

Swinehart, supra.

                                       A
                   Substantive versus Procedural Due Process

        The constitutions of this Commonwealth and the United States both

provide due process protections. The Pennsylvania Constitution states:

        In all criminal prosecutions the accused hath a right to be heard
        by himself and his counsel, to demand the nature and cause of
        the accusation against him, to be confronted with the witnesses
        against him, to have compulsory process for obtaining witnesses
        in his favor, and, in prosecutions by indictment or information, a
        speedy public trial by an impartial jury of the vicinage; he cannot
        be compelled to give evidence against himself, nor can he be
        deprived of his life, liberty or property, unless by the judgment
        of his peers or the law of the land.

Pa. Const. art. I, § 9.         The Due Process Clause to the Fourteenth

Amendment to the United States Constitution reads, “[N]or shall any State

deprive any person of life, liberty, or property, without due process of law.”

These     two   clauses   are   generally   treated   as   coextensive.       See

Commonwealth, Department of Transportation v. Taylor, 841 A.2d

108, 114 (Pa. 2004). Appellant does not assert that the Pennsylvania due

process provisions offer any greater protection than its federal counterpart

with respect to this issue. Thus, we draw on federal cases interpreting the

scope of due process rights.



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J-A01033-17



      The Due Process Clauses contain both a procedural component and a

substantive one. “[T]he Due Process Clause of the Fourteenth Amendment

not only accords procedural safeguards to protected interests, but likewise

protects substantive aspects of liberty against impermissible governmental

restrictions.”   Harrah Independent School District v. Martin, 440 U.S.

194, 197 (1979). Appellant does not clarify whether his attack is based on a

procedural or substantive theory.

      In Danforth v. Minnesota, 552 U.S. 264 (2008), the Supreme Court

explained that the Fourteenth Amendment’s Due Process Clause is

      the source of this Court's power to decide whether a defendant
      in a state proceeding received a fair trial—i.e., whether his
      deprivation of liberty was “without due process of law.” . . . In
      construing that Amendment, we have held that it imposes
      minimum standards of fairness on the States, and requires state
      criminal trials to provide defendants with protections “implicit in
      the concept of ordered liberty.”

Id. at 269–70 (citation omitted).    The “implicit in the concept of ordered

liberty” formulation refers to fundamental rights, i.e., substantive due

process.   See United States v. Windsor, 133 S.Ct. 2675, 2714 (2013).

Clearly, the right to a preliminary hearing is not implicit in the concept of

ordered liberty, given that the federal constitution does not obligate the

United States Government to hold a preliminary hearing before a neutral

magistrate.

      Any doubt that substantive due process is irrelevant to Appellant’s

claim is removed by Albright v. Oliver, 510 U.S. 266 (1994) (plurality).


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J-A01033-17



Therein, the authorities had issued a warrant for Albright’s arrest for the sale

of fake cocaine to a confidential informant.           Albright surrendered, was

arrested, and then released on bond. The case was held for trial following a

preliminary hearing, but the charges were later dismissed on the ground that

the sale of fake cocaine was not a crime under state law.            Albright then

alleged a violation of his civil rights, theorizing that there is a substantive

due process right to be free from criminal prosecution except upon probable

cause.     By definition, there was no probable cause to believe Albright

committed an offense when the facts as alleged were not criminal.

       Four Justices opined that there is no substantive 6 due process right in

connection with the decision to prosecute, because the Fourth Amendment

specifically governed the matter of pretrial deprivations of liberty.      Hence,

substantive due process did not apply. Id. at 275. Justice Kennedy, joined

by Justice Thomas, concurred.           Significantly, Justice Kennedy agreed that

there is no substantive right to be free from prosecution except upon

probable cause.      However, he and Justice Thomas did not outright reject

substantive due process protections on other grounds.              “Albright’s due

process claim concerns not his arrest but instead the malicious initiation of a
____________________________________________


6
   The Court specifically did not address procedural due process. “[Albright]
claims that the action of respondents infringed his substantive due process
right to be free of prosecution without probable cause. He does not claim
that Illinois denied him the procedural due process guaranteed by the
Fourteenth Amendment.” Id. at 271.



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J-A01033-17



baseless criminal prosecution against him.”         Id. at 281.   Therefore, a

majority of the Court agreed that there is no substantive due process right

to be free from criminal prosecution except upon probable cause. As Justice

Kennedy explained:

      With respect to the initiation of charges, however, the specific
      guarantees contained in the Bill of Rights mirror the traditional
      requirements of the criminal process. The common law provided
      for a grand jury indictment and a speedy trial; it did not provide
      a specific evidentiary standard applicable to a pretrial hearing on
      the merits of the charges or subject to later review by the
      courts.

      Moreover, because the Constitution requires a speedy trial but
      no pretrial hearing on the sufficiency of the charges leaving aside
      the question of extended pretrial detention, any standard
      governing the initiation of charges would be superfluous in
      providing protection during the criminal process. If the charges
      are not proved beyond a reasonable doubt at trial, the charges
      are dismissed; if the charges are proved beyond a reasonable
      doubt at trial, any standard applicable to the initiation of charges
      is irrelevant because it is perforce met. . . .

      In sum, the due process requirements for criminal
      proceedings do not include a standard for the initiation of
      a criminal prosecution.

Id. at 282–83 (Kennedy, J., concurring) (emphasis added).

      Thus, nothing in the constitution limits the Commonwealth’s ability to

file criminal charges against its citizens.         A prosecutor’s belief and

affirmation to such effect is sufficient.     “[W]e adhere to the Court’s prior

holding that a judicial hearing is not prerequisite to prosecution by

information.”    Gerstein, supra at 119 (citing Lem Woon, supra).




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J-A01033-17



Accordingly, we find that Appellant’s claim must be analyzed under the

rubric of procedural due process.

                                      B
                           Procedural Due Process

      Having determined that this appeal sounds in procedural due process,

we must determine whether the procedures afforded to Appellant in

connection with the right to a preliminary hearing are sufficient.     Perhaps

Appellant broadly invokes the protections of due process since it is, by

definition, a malleable concept.    “It is by now well established that due

process, unlike some legal rules, is not a technical conception with a fixed

content unrelated to time, place and circumstances . . . . [It] is flexible and

calls for such procedural protections as the particular situation demands.”

Gilbert v. Homar, 520 U.S. 924, 930 (1997) (citations and quotation marks

omitted).   “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.” Commonwealth v. Turner, 80

A.3d 754, 764 (Pa. 2013). We first ask if there is a life, liberty, or property

interest at issue, and, if so, whether the procedures attendant to that

deprivation were constitutionally sufficient. Id.



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      In Turner, supra, our Supreme Court analyzed an as-applied

procedural due process challenge to this Commonwealth’s collateral relief

statutory scheme. Id. We find that Turner provides the framework for our

analysis. Just as there is no constitutional right to a preliminary hearing, the

States are not constitutionally obligated to provide collateral relief.

      When a state choses to offer help to those seeking relief from
      convictions and custody, due process does not “dictat[e] the
      exact form such assistance must assume.” Moreover, states
      need not provide post-conviction petitioners with “the full
      panoply of procedural protections that the Constitution requires
      be given to defendants who are in a fundamentally different
      position-at trial and on first appeal as of right.” Finley, 481 U.S.
      at 552, 107 S.Ct. 1990. Indeed, the United States Supreme
      Court has stated that post-conviction petitioners “have only a
      limited interest in post-conviction relief.” To deny due process,
      the complained-of aspect of the state post-conviction procedures
      must be “fundamentally inadequate to vindicate” the defendant's
      liberty interest, and must offend “some principle of justice so
      rooted in the traditions and conscience of our people as to be
      ranked as fundamental” or transgress “any recognized principle
      of fundamental fairness in operation

Id. at 764.

      Appellant has failed to specify what interest is at stake.          Interests

protected by the Fourteenth Amendment arise from two sources: the due

process clause itself, and the laws of the State.      See Kentucky Dept. of

Corr. v. Thompson, 490 U.S. 454, 460 (1989). Appellant appears to refer

to the state law right to a preliminary hearing broadly, and, more

specifically, the right to cross-examine witnesses at that hearing. We glean

from Appellant’s argument that the supplied procedure is “fundamentally



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inadequate     to   vindicate”    his rule-based right to   confront since   the

Commonwealth can elect to render it meaningless through hearsay.

       We disagree with this premise. In truth, Appellant’s real interest does

not lie in cross-examining the witness in an attempt to secure dismissal at

the preliminary hearing; rather, it rests in probing the strength of the

Commonwealth’s case for the subsequent trial.7          Significantly, Appellant

does not claim that a prima facie case would not have been established if

A.T. had testified at the preliminary hearing. Instead, Appellant complains

that he was unable to explore the lack of a prompt complaint by the victim,

why the victim and her family allegedly remained in contact with Appellant

after the alleged crimes, or why other witnesses present at the scene of the

crime did not report to the police. Those matters go strictly to credibility,

which, as Appellant recognizes, is irrelevant at a preliminary hearing. Thus,
____________________________________________


7
   In this sense, Appellant’s argument is an alternative way of saying that he
is entitled to impeachment evidence prior to trial. Prosecutors are, of
course, already obligated to disclose impeachment material.          “Material
impeachment evidence is included within the scope of the Brady[v.
Maryland, 373 U.S. 83 (1963)] rule.” Commonwealth v. Johnson, 727
A.2d 1089, 1094 (Pa. 1999).

The United States Supreme Court has declined to require prosecutors to
disclose Brady material prior to a plea. “[I]mpeachment information is
special in relation to the fairness of a trial[.]” United States v. Ruiz, 536
U.S. 622, 629 (2002) (emphasis in original). This further underscores the
point that, whatever the merits of permitting cross-examination to develop
weaknesses in a case, it simply is not constitutionally required. “There is no
general constitutional right to discovery in a criminal case[.]” Weatherford
v. Bursey, 429 U.S. 545, 559 (1977).



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J-A01033-17



the reliability of the prima facie determination would in no way be enhanced

by cross-examining A.T.

      Furthermore, the effect of an erroneous determination in preliminary

hearings is minimal when viewed with respect to the magistrate’s decision to

hold the case for trial. Indeed, one of the primary reasons for not accepting

interlocutory appeals in these cases is the fact that the trial itself will cure

any errors. If Appellant is guilty beyond a reasonable doubt, then any flaw

in the preliminary hearing process is irrelevant, and, if he is acquitted, then

there is no permanent loss of liberty.        Additionally, even in those cases

where the magistrate refuses to hold the case for a trial, nothing prevents

the Commonwealth from refiling the charges.

      In sum, Appellant fails to show that an individual subjected to a

preliminary hearing, which is not constitutionally mandated, is entitled to

“the full panoply of procedural protections that the Constitution requires be

given to defendants who are in a fundamentally different position-at trial and

on first appeal as of right.” Turner, supra at 764. Just as a prisoner has a

limited interest in post-conviction rights, so too does an accused have a

limited interest in the preliminary hearing.           The   hearing serves a

gatekeeping function only; defendants who face a preliminary hearing are

not on the same footing as a defendant undergoing an actual trial, or

pursuing an appeal as of right. Hence, we hold that the preliminary hearing

procedure must simply provide adequate notice, the opportunity to be

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J-A01033-17



heard, and the chance to defend oneself before a fair and impartial tribunal

having jurisdiction over the case. Those criteria were satisfied in the present

case.

        Appellant’s only argument that the supplied process failed to meet

these requirements, aside from his inability to cross-examine his accuser,

largely rests on Justice Flaherty’s concurring opinion in Verbonitz.       We

agree that the facts of Verbonitz are virtually indistinguishable from the

case sub judice.     Therein, the Commonwealth prosecuted Verbonitz for

numerous crimes against a seven-year-old child. The Commonwealth called

only the investigating police officer, who presented the hearsay testimony of

the victim as told to the officer.

        The plurality decision determined that the Commonwealth failed to

present sufficient evidence to sustain a prima facie case.      Three Justices

found that the presentation of hearsay violated confrontation rights, a

position we rejected in Ricker.      Justice Flaherty, joined by Justice Cappy,

authored a concurring opinion, opining that holding a defendant for a

criminal trial based on pure hearsay violates due process.        Therefore, a

majority agreed that the Commonwealth failed to sustain its prima facie

burden, but did not agree on a legal rationale.

        Since Verbonitz is a plurality decision, we believe the due process

arguments raised by Justice Flaherty warrant further examination, especially

since Appellant largely adopts those views as his own. Justice Flaherty’s

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J-A01033-17



concurring opinion recognized that there is no constitutional right to a

preliminary hearing. He nevertheless concluded that due process required

something more than pure hearsay.

      I deem this to be a requirement of due process. In
      Commonwealth, Unemployment Compensation Board of
      Review v. Ceja, 493 Pa. 588, 616, 427 A.2d 631, 645 (1981), a
      plurality of this Court referred to “this Commonwealth's long-
      standing requirement that administrative findings must be
      supported by some evidence that would be admissible over
      objection in a court of law.” This author expressed the view that
      “[f]undamental due process requires that no adjudication be
      based solely on hearsay evidence.” Id. at 619, 427 A.2d at 647.
      The reference in Ceja was to a final adjudication of property
      rights, but the principle a fortiori applies with equal force in a
      preliminary hearing-a critical stage of a criminal proceeding in
      which life, death, liberty, and property are all at issue.

      Applying this principle to this case requires the conclusion that
      the hearsay statement of the police officer was insufficient, vel
      non, to establish a prima facie case against appellant. It was a
      hearsay statement which could not be admitted over objection in
      a criminal trial and thus, standing alone, it was insufficient to
      establish a prima facie case, which . . . must be based on
      evidence which could be presented at the trial in court. I
      therefore concur in the judgment that the Commonwealth's
      evidence at appellant's preliminary hearing failed to establish a
      prima facie case, and that appellant is entitled to discharge.

Id. at 175–76 (citation omitted).

      We read this opinion as expressing a view that due process requires an

adversarial probable cause determination in order to hold a person for trial.

That claim sounds in substantive due process, which is contradicted by

United States Supreme Court precedent, as made clear in Albright, supra.

Furthermore, while “life, death, liberty, and property” may all be at issue in



                                    - 22 -
J-A01033-17



the event an accused is actually convicted, the preliminary hearing is

obviously not a final adjudication of those issues. That point is glossed over

by the citation to Justice Flaherty’s own opinion discussing final adjudication

of   property    rights.     Moreover,         Verbonitz   was   decided   before   the

amendments to Rule 542 at issue herein.               As a matter of procedural due

process, the concurring opinion obviously could not account for later changes

to that procedure. Justice Flaherty’s points, therefore, do not speak to the

fact that our Supreme Court amended the applicable procedure.

       We are mindful that significant liberty restraints may result from

requiring an individual to stand trial, but the probable cause required for

those determinations8 is separate from requiring a citizen to stand trial in

the first place. The Fourth Amendment, not due process, applies to those

pretrial restraints.    Gerstein, supra; Manuel v. City of Joliet, Illinois,

137 S. Ct. 911, 917–18 (2017) (“That Amendment, standing alone,

guaranteed a fair and reliable determination of probable cause as a condition

for any significant pretrial restraint . . . those detained prior to trial without



____________________________________________


8
   See Kaley v. United States, 134 S.Ct. 1090, 1104 (2014) (“[A]n
adversarial process is far less useful to the threshold finding of probable
cause, which determines only whether adequate grounds exist to proceed to
trial . . . [probable cause], by its nature, is hard to undermine, and still
harder to reverse.”).




                                          - 23 -
J-A01033-17



such a finding could appeal to the Fourth Amendment's protection against

unfounded invasions of liberty.”) (quotation marks and citations omitted).

                                         VI

     For the foregoing reasons, we decline to find that Appellant’s due

process rights were violated.        Appellant’s suggestion that his rule-based

right to confront witnesses was an empty guarantee is belied by the record.

Appellant   was    able   to   cross-examine     the   primary   investigator,   who

witnessed A.T.’s interview, regarding the circumstances of the statement,

the details of the statement, and what steps he did or did not take during

the investigation. Rule 542(C)(2) thus served a clear purpose, albeit not the

one Appellant wanted. Moreover, he was free to challenge the plausibility

and reliability of the hearsay when addressing the prima facie question. In

light of the foregoing constitutional principles, we cannot find that the

inability to subject the primary accuser to adversarial examination violated

due process.

     Finally, we note that our holding is predicated on the facts, with

consideration     of   Appellant’s   ability    to   cross-examine    the   primary

investigator. An extremely permissive reading of Rule 542(E) would mean

that a prima facie case is always satisfied through the presentation of

hearsay.    As an extreme application, the Commonwealth could sustain its

burden by presenting the testimony of a fellow prosecutor who spoke to a

police officer, who had read a report, which stated that an anonymous

                                       - 24 -
J-A01033-17



citizen called to report that a defendant committed a series of acts that met

the material elements of some charged crime.          This decision does not

suggest that the Commonwealth may satisfy its burden by presenting the

testimony of a mouthpiece parroting multiple levels of rank hearsay.9

       Additionally, there is no reason to think that magistrates do not

already apply the similar Fourth Amendment probable cause standard used

in other contexts where decisions are made on the basis of hearsay.10 See

e.g. Commonwealth v. Smith, 784 A.2d 182 (Pa.Super. 2001) (probable

____________________________________________


9
   For example, Iowa states that a magistrate may consider hearsay if there
is a substantial reason to believe that the source is credible:

       b. Probable cause finding. If from the evidence it appears that
       there is probable cause to believe that an offense has been
       committed and that the defendant committed it, the magistrate
       shall order the defendant held to answer in further proceedings.
       The finding of probable cause shall be based upon substantial
       evidence, which may be hearsay in whole or in part, provided
       there is a substantial basis for believing the source of the
       hearsay to be credible and for believing that there is a factual
       basis for the information furnished. The defendant may cross-
       examine witnesses and may introduce evidence in the
       defendant's own behalf.

I.C.A Rule 2.2(4). See W.R.LaFave et al., Criminal Procedure, § 14.4(b)
(4th ed.) (discussing three general approaches to applicability of rules of
evidence at preliminary hearings).
10
   There is an obvious selection bias at play, as appellate courts are unlikely
to encounter a case where a magistrate declines to hold a case on the basis
of rank hearsay. Presumably, prosecutors would simply re-file in those
cases and present witnesses with a closer connection to the crime.




                                          - 25 -
J-A01033-17



cause for issuance of a search warrant permits a common-sense decision

given all the information, including the basis of knowledge of persons

supplying hearsay; various indicia of reliability and unreliability considered).

If prosecutors relied upon multiple levels of hearsay to satisfy the prima

facie standard, nothing prevents an accused from arguing that the

information is so unreliable as to fail to meet probable cause standards. In

this respect, the presence of an attorney serves a clear purpose, as counsel

would obviously be in a better position to convince the magistrate that

probable cause is lacking.

       None of this is to say Appellant’s arguments are unpersuasive. Cross-

examining Appellant’s accuser might well have led to fertile grounds for

impeachment at a later trial, which would have obvious value as recorded

testimony under oath.         Permitting Appellant to do so may be wise as a

matter of policy, but we do not think that due process requires it.

Moreover, this Court is not only ill-equipped to fashion a one-size-fits-all

rule11 in light of competing law enforcement and administrative interests, we

____________________________________________


11
     There are compelling reasons to limit cross-examination of primary
accusers in cases such as domestic violence, witness intimidation, and child
abuse when the preliminary hearing is held close in time to the alleged
crime. See e.g. 42 Pa.C.S. § 5985.1 (permitting introduction of out-of-court
statement made by a child victim or witness under certain conditions).
These concerns would not equally apply to run-of-the-mill cases involving
police officer testimony. The question of how much hearsay should be
permitted is not for us to decide.
(Footnote Continued Next Page)


                                          - 26 -
J-A01033-17



are constitutionally barred from doing so.          Pa.Const. art. V, § 10(c)

(Supreme Court shall have the power to promulgate rules governing

procedure).

      Order affirmed.

      Judge Olson joins the opinion.

      Judge Strassburger files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




                       _______________________
(Footnote Continued)




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