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                              2015 PA Super 153

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

DAVID EDWARD RICKER

                         Appellant                   No. 1693 MDA 2014


              Appeal from the Order Entered October 1, 2014
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0003601-2014


BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

OPINION BY BOWES, J.:                                  FILED JULY 17, 2015

      David Edward Ricker appeals from the October 1, 2014 order denying

his pre-trial writ of habeas corpus. We affirm.

      The Commonwealth charged Appellant with attempted murder, assault

of a law enforcement officer, and aggravated assault after he exchanged

gunfire with a Pennsylvania State Police trooper at Appellant’s residence.

Specifically, Trooper Michael Trotta had responded to a dispatch regarding

loud and fast driving on Green Hill Road in West Hanover Township. Trooper

Trotta drove the length of that road and, after turning around, observed a

small group of people standing by the roadway at the end of a driveway.

The trooper pulled over and the group directed him to a damaged mailbox

and a lawn ornament sign which had been run over by a light colored pickup
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truck. The group informed Trooper Trotta that they knew the individual who

struck the mailbox because he was their neighbor.     They directed Trooper

Trotta to Appellant’s driveway.

       Trooper Trotta then appeared at the entrance of Appellant’s gated

driveway in full uniform in an unmarked patrol car.       The driveway was

approximately 100 yards long. Trooper Trotta pressed a call button at the

bottom of the driveway and saw a sport utility vehicle come to the top of the

driveway. Appellant’s wife exited that vehicle and walked down to the gate.

She initially refused to permit Trooper Trotta to enter. According to Trooper

Trotta, Appellant’s wife indicated that her husband was drunk and carried a

gun.    Ultimately, however, Appellant’s wife opened the gate and waved

Trooper Trotta past her. He then drove his car to the top of the driveway.

       Trooper Trotta saw Appellant walk towards his vehicle with a large

German Shepard. The trooper initially remained in his car. Trooper Trotta

told Appellant that his neighbors had reported that he sideswiped their

mailbox.   Appellant became irate and belligerent at that point, and the

trooper was able to discern that Appellant’s eyes were bloodshot and his

breath smelled of an alcoholic beverage. Appellant demanded, in a profanity

laced manner, that Trooper Trotta get off his property. Appellant’s wife then

raised her voice at her husband, who struck his wife and threw her to the

side. Trooper Trotta asked Mrs. Ricker to take the dog and go inside, and he

attempted to exit his car. Appellant slammed the car door shut. Trooper

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Trotta also had drawn his taser.       Appellant reached inside the car and

attempted to take the taser from the trooper.         Appellant’s wife again

interceded, but Appellant continued to direct the trooper to leave.     After

Trooper Trotta exited his vehicle, he saw Appellant remove a small gun from

the back of his pants. Appellant informed the officer that he had a permit to

carry and told Trooper Trotta to “get the fuck off my property.” Exhibit 1,

7/10/14, at 8.

        Trooper Trotta drew his own weapon and instructed Appellant’s wife to

move away and go inside the house. Instead, she stepped in front of her

husband. Trooper Trotta called for backup and Appellant continued to wave

his firearm. Appellant then began to walk toward his home. Trooper Trotta

told him that he was under arrest and followed him. Appellant entered an

open three-car garage bay. Soon thereafter, a young female child exited the

home. Trooper Trotta directed her to go to her mother’s car away from the

area.    By this time, another trooper, Trooper Dana Gingerich, had arrived

and was in the vicinity of that car.

        Trooper Trotta next went around the front of the house while Trooper

Gingerich advised the police barracks to send a specialized unit similar to a

SWAT team.       Trooper Trotta heard Trooper Gingerich yell to Appellant to

come out and let him see Appellant’s hands. Accordingly, Trooper Trotta ran

toward the yelling and came back to the garage bay. At this point, he saw

Appellant holding an assault rifle in his right hand and peering around the

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garage door toward Trooper Gingerich.         Trooper Trotta demanded that

Appellant drop the weapon.      According to Trooper Trotta, Appellant then

grabbed the front part of the rifle and began to level it at him. At that point,

Trooper Trotta opened fire, striking Appellant twice.        Appellant hit the

ground and returned fire, hitting the trooper multiple times.

      The case proceeded to a preliminary hearing. Trooper Trotta did not

testify nor did Trooper Gingerich.    Instead, the lead investigator into the

incident, Trooper Douglas Kelley, testified regarding his investigation, and

played for the magisterial district court a tape of an interview with Trooper

Trotta. That tape outlined the facts set forth above. Appellant objected to

the use of the hearsay evidence and also requested a continuance to call

Troopers Trotta and Gingerich on his behalf.         The court overruled the

objection, declined to continue the matter, and bound the case over for trial.

Appellant then filed a pre-trial writ of habeas corpus.     Therein, Appellant

argued that it was improper to find a prima facie case against him based

entirely on hearsay evidence.     The trial court denied the writ without a

hearing or the presentation of argument. This appeal ensued.

      The trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.      That same date, this Court

issued a rule to show cause why the appeal should not be quashed as an

interlocutory appeal.   Appellant responded, and the issue was deferred to

this panel. The trial court also filed its Rule 1925(a) decision. The matter is

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now ready for our consideration.    Appellant presents three issues for our

review.

      A. Whether the court should hear this interlocutory appeal from
         the denial of Appellant’s habeas corpus petition under the
         “exceptional” or extraordinary” circumstances exception to
         the general rule because it entails a matter of great public
         interest, e.g., whether hearsay evidence alone may prove a
         prima facie case at a preliminary hearing, an issue which is
         likely to evade review because appellate review would not
         normally occur until the criminal case was finally resolved?

      B. Whether the Commonwealth may prove a prima facie case at
         the preliminary hearing exclusively through hearsay evidence,
         which is what the trial and magisterial district courts
         concluded in Appellant’s case?

      C. Whether Pa.R.Crim.P. 543(e), which provides that hearsay
         evidence shall be sufficient to establish any element of an
         offense, violates the state and federal constitutional
         confrontation rights of defendants, including Appellant, as
         well as long-standing Pennsylvania and U.S. Supreme Court
         precedent?

Appellant’s brief at 5.

      Preliminarily, we must determine whether we have jurisdiction over

this interlocutory appeal. Generally, the denial of a pre-trial writ of habeas

corpus based on a lack of sufficient prima facie evidence does not constitute

an appealable order. Commonwealth v. Hess, 414 A.2d 1043, 1047-1048

(Pa. 1980); see also Commonwealth v. Jackson, 849 A.2d 1254

(Pa.Super. 2004).    Where exceptional circumstances exist, an appeal from

such an interlocutory order may be considered. Hess, supra at 1047-1048

(“Although it has been deemed appropriate to permit immediate review by



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the court of common pleas of the finding of a prima facie case by the district

magistrate, a balancing of the further disruption of the trial process against

the harm to the accused weighs in favor of barring immediate appellate

review unless ‘exceptional circumstances’ are present.”).

      Appellant argues that exceptional circumstances are present. First, he

notes that, should he be acquitted or convicted, the issue of whether

hearsay evidence alone may establish a prima facie case at a preliminary

hearing would become moot.       Indeed, it is well-settled that errors at a

preliminary hearing regarding the sufficiency of the evidence are considered

harmless if the defendant is found guilty at trial.      Commonwealth v.

Sanchez, 82 A.3d 943, 984 (Pa. 2013); Commonwealth v. Tyler, 587

A.2d 326 (Pa.Super. 1991). Thus, Appellant maintains that any challenge to

a procedure allowing hearsay evidence alone to establish a prima facie case

would be capable of repetition and likely to evade review if this Court were

to await a final order.    Appellant, therefore, suggests that exceptional

circumstances exist.

      In addition, Appellant submits that this matter involves an issue of

great public interest and the safeguarding of basic human rights.        See

Commonwealth v. Bernhardt, 519 A.2d 417, 419 (Pa.Super. 1986). He

contends that whether it is constitutional to hold over a defendant for trial

based solely on hearsay evidence after the 2011 addition of Pa.R.Crim.P.

542(E) is an issue of first impression. Pa.R.Crim.P. 542(E) reads,

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       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.

       The Comment to the Rule also provides in pertinent part,

       Paragraph (E) was amended in 2013 to reiterate that
       traditionally our courts have not applied the law of evidence in
       its full rigor in proceedings such as preliminary hearings,
       especially with regard to the use of hearsay to establish the
       elements of a prima facie case. See the Pennsylvania Rules of
       Evidence generally, but in particular, Article VIII. Accordingly,
       hearsay, whether written or oral, may establish the elements of
       any offense. The presence of witnesses to establish these
       elements is not required at the preliminary hearing. But compare
       Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581
       A.2d 172 (Pa. 1990) (plurality) (disapproving reliance on
       hearsay testimony as the sole basis for establishing a prima facie
       case). See also Rule 1003 concerning preliminary hearings in
       Philadelphia Municipal Court.


Comment to Pa.R.Crim.P. 542.

       In Appellant’s view, the current procedural rule is unconstitutional

because it violates his federal and state confrontation rights.             The

Commonwealth counters that no extraordinary circumstances exist because

Appellant will be afforded an opportunity to confront the witness against him

at trial.   It maintains that Appellant was required to seek an interlocutory

appeal by permission and that this appeal should be quashed.

       Initially, we note that exceptional circumstances are not automatically

created because an issue is capable of evading review. Indeed, every denial


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of a pre-trial habeas corpus motion that alleges insufficient evidence results

in an inability to review whether the Commonwealth established its prima

facie case, unless permission to appeal is granted. If the defendant is

acquitted, then no review is necessary. Further, if the defendant is found

guilty at trial or pleads guilty, then no prejudice exists.   Thus, in order to

establish exceptional circumstances, more is required than the issue

becoming moot. We find that this case presents such a circumstance. Not

only is Appellant’s claim capable of evading review, it presents an important

constitutional question regarding whether a powerful state governmental

entity violates federal and state constitutional principles in allowing a

defendant to be restrained of his liberty and bound over for trial based solely

on hearsay evidence.     Accordingly, we hold that, under the precise facts

herein, we have jurisdiction to consider the merits of Appellant’s substantive

claims.

      As Appellant’s arguments for his second and third issues are

intertwined, we consider them together.     Appellant begins by pointing out

that, after the filing of a criminal complaint or a grand jury presentment, a

defendant is entitled by Pennsylvania criminal procedural rule to a

preliminary hearing.     In order for a case to be held for trial, the

Commonwealth is required to make a prima facie showing that each element

of the crimes charged is present and that the defendant committed the act

or acts in question. Commonwealth v. McBride, 595 A.2d 589, 591 (Pa.

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1991) (“In order to meet its burden at the preliminary hearing, the

Commonwealth is required to present evidence with regard to each of the

material elements of the charge and to establish sufficient probable cause to

warrant     the    belief   that    the    accused   committed   the   offense.”);

Commonwealth v. Mullen, 333 A.2d 755, 757 (Pa. 1975) (“[I]t is the

burden of the Commonwealth at a preliminary hearing to establish at least

prima facie that a crime has been committed and the accused is the one who

committed it.”).1

       Prior to the promulgation of the applicable version of Rule 542(E),

hearsay evidence was admissible at a preliminary hearing, but several cases

indicated it could not solely be used to establish a prima facie case.

Commonwealth v. Carmody, 799 A.2d 143, 146 n.2 (Pa.Super. 2002)

(“[I]f the hearsay testimony offered at the preliminary hearing is the only

____________________________________________


1
   Pennsylvania courts have used the terms “prima facie” and sufficient
“probable cause” interchangeably in the context of modern preliminary
hearings. Commonwealth v. Karetny, 880 A.2d 505, 514 (Pa. 2005) (“A
prima facie case exists when the Commonwealth produces evidence of each
of the material elements of the crime charged and establishes probable
cause to warrant the belief that the accused committed the offense.”);
Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003);
Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991);
Commonwealth v. Prado, 393 A.2d 8, 10 (Pa. 1978); Commonwealth ex
rel. Scolio v. Hess, 27 A.2d 705 (Pa.Super. 1942) (citing the early
Pennsylvania federal district court decision in United States v. Johns, 4
Dall. 412, 413 (1806)); but see Stewart v. Abraham, 275 F.3d 220 (3rd
Cir. 2001) (reasoning that the “prima facie” and “probable cause” standards
in Pennsylvania may not be identical).



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basis for establishing a prima facie case, it fails to meet the criteria for

evidence upon which the preliminary hearing judge may rely.”); Tyler,

supra at 328–29.

       Appellant argues that this remains the law even considering Rule

542(E). Relying primarily on this Court’s footnote in Carmody, our opinion

in Tyler, and our Supreme Court’s plurality decision in Commonwealth ex

rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), Appellant asserts

that   hearsay     evidence   alone   cannot       establish   a   prima   facie   case.

Continuing, Appellant avers that his state and federal confrontation clause

rights were infringed at the preliminary hearing because he was unable to

cross-examine Trooper Trotta.

       Appellant has not alleged that his due process rights were infringed

because the magisterial district court violated Rule 542 to the extent it

denied him the opportunity to present non-character witnesses. However,

he does maintain that the court erred in declining to continue the case to

permit him to subpoena Trooper Trotta and Trooper Gingerich. This

argument, nevertheless, is undeveloped and was not included in his

statement of issues or in his 1925(b) statement of errors complained of on

appeal. Therefore, this latter argument is waived.

       Appellant    acknowledges      that   the     Pennsylvania    Supreme       Court

promulgated the rule in question, but asserts that this fact is not dispositive

of whether the rule violates his confrontation rights.              He adds that the

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comment to the rule even recognizes that the rule is in conflict with the

Pennsylvania      Supreme   Court’s   plurality   decision   in   Verbonitz.      In

Appellant’s view, allowing hearsay evidence alone to establish a prima facie

case of criminal wrongdoing renders a preliminary hearing “an empty,

ceremonial formality in which the judge simply rubber stamps the uncross-

examinable testimony of the affiant[.]” Appellant’s brief at 40.

        The Commonwealth responds that Rule 542(E) permits a magisterial

district judge to use hearsay evidence alone to find sufficient prima facie

evidence of a crime. It adds that the Pennsylvania Supreme Court enacted

the rule in question and therefore it should be presumed constitutional. The

Commonwealth further highlights that Verbonitz was a plurality decision in

which only three justices agreed that binding over a defendant for trial

based    solely   on   hearsay   violated   the   confrontation    clause   of   the

Pennsylvania Constitution.       It also points out that the Superior Court

decisions cited by Appellant were decided before the recent applicable

amendment to Rule 542.

        Next, the Commonwealth posits that the court did not rely only on

hearsay evidence.      It contends that evidence of the victim’s wounds, the

seizure of marijuana, and Appellant’s own statements were also introduced.

It submits that it presented testimony regarding the number of firearms

seized and that cartridge cases that had been recovered from a weapon

discharged at the scene. Finally, the Commonwealth argues that the right to

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confront witnesses against oneself is a trial right that does not apply at a

preliminary hearing.

        We begin first with a determination of whether, in fact, hearsay

evidence alone was used to establish the elements of the crimes charged.

While the Commonwealth is correct that it introduced non-hearsay evidence

at the preliminary hearing, none of that evidence was sufficient to establish

the elements of the crimes charged. The seizure of weapons and marijuana

was immaterial to the charges. The fact that bullet casings were discovered

also is insufficient. Here, the evidence used to meet the material elements

of the crimes charged came from the taped statement of Trooper Trotta.

Thus, we agree with Appellant that hearsay alone was used to prove a prima

facie   case   of   attempted   murder,   aggravated   assault   against   a   law

enforcement officer, and aggravated assault.

        Having resolved that preliminary issue, we proceed to consider

whether Rule 542(E) and the use of hearsay evidence alone may establish a

prima facie case. In Carmody, the Commonwealth appealed to this Court

after the trial court granted in part the defendant’s pre-trial habeas corpus

motion.    Therein, the defendant alleged that the magisterial district court

erred in finding a prima facie case as to simple assault, harassment, and

terroristic threats. Specifically, he averred that the district justice erred in

binding over the charges based only on hearsay evidence. The habeas court

concluded that sufficient evidence existed to establish prima facie evidence

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of simple assault and harassment.          However, it determined that the

Commonwealth failed to prove a prima facie case of terroristic threats. The

hearsay evidence at issue were statements provided by the defendant’s

girlfriend to police.   The girlfriend appeared at the preliminary hearing but

recanted her allegations.      One of the officers who took a statement then

relayed her earlier account.

      This Court held that the habeas court erred in determining that the

girlfriend’s prior inconsistent statement was inadmissible hearsay. Since the

girlfriend’s statement had been reduced to writing and signed, and the

parties were able to question her regarding her change in story, we held that

the habeas court erred.      In a footnote, we opined that, while hearsay is

admissible at a preliminary hearing, it cannot be the only evidence used to

establish a prima facie case.       The footnote was not necessary to the

disposition of the case since the hearsay in question was ultimately

determined not to be inadmissible hearsay.         Accordingly, the Carmody

footnote is dicta.

      That footnote relied on Tyler, supra.      In Tyler, police arrested the

defendant after he sold crack cocaine to a confidential informant (“CI”). At

the preliminary hearing, the CI did not testify. Instead, over objection, the

Commonwealth introduced the CI’s statement via a police officer.          The

defendant next requested to call the CI to testify at the hearing. The

Commonwealth objected, and the district justice refused to permit the

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defendant to call the CI. The defendant filed a writ of habeas corpus and a

motion to quash the information on the basis that the magistrate erred in

using hearsay evidence alone and declining to permit him to question the CI.

The trial court denied those motions, and a jury found the defendant guilty

of various drug charges.

      On appeal, this Court initially ruled that because the jury determined

that Tyler was guilty beyond a reasonable doubt, it was immaterial if the

Commonwealth did not establish a prima facie case at the preliminary

hearing.   The panel did note that the plurality decision in Verbonitz had set

forth that a prima facie case could not be met by hearsay evidence alone if it

would be inadmissible at trial. Nevertheless, it reasoned that Verbonitz did

not apply because non-hearsay evidence established the prima facie case

against Tyler, no trial occurred in Verbonitz, and, relatedly, Tyler did not

appeal after the denial of his habeas petition. The Tyler panel also cursorily

denied Tyler’s confrontation clause claim, citing Pennsylvania v. Ritchie,

480 U.S. 39 (1987) (plurality), and setting forth that the confrontation right

is a trial right. Thus, Tyler does not actually support Appellant’s hearsay or

constitutional positions.

      Rule 542(E) is not in conflict with any binding precedent.      A plain

reading of the rule indicates that it permits hearsay evidence to be

considered in determining any material element of a crime. Specifically, the

rule provides in relevant part, “Hearsay as provided by law shall be

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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.”                     Pa.R.Crim.P. 542(E)

(emphases added).         If hearsay evidence is sufficient to establish one or

more elements of the crime, it follows that, under the rule, it is sufficient to

meet all of the elements.         Accordingly, we find that the rule does allow

hearsay evidence alone to establish a prima facie case.

       This conclusion, nonetheless, does not resolve the case.        Appellant

also contends that the procedure herein violated his confrontation rights

under both the federal and state constitutions.       Although Tyler summarily

denied a similar claim, in light of the United States Supreme Court’s

statements in Gerstein v. Pugh, 420 U.S. 103 (1975), which we will

discuss infra, and our Supreme Court’s plurality decision in Verbonitz, we

believe a more complete analysis of the claim is warranted.

       The Pennsylvania Constitution provides in relevant part that, “In all

criminal prosecutions the accused hath a right . . . .to be confronted with the

witnesses against him[.]”          Pa.Const. Art. I, § 9.2   Similarly, the Sixth


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2
 The 1776 Pennsylvania Constitution set forth, in pertinent part, “That in all
prosecutions for criminal offences a man hath a right . . . . to be confronted
with the witnesses[.]”      Pa.Const. Chapt. 1, § 9 (1776).         The 1790
Constitution changed the wording slightly to read, “That, in all criminal
prosecutions, the accused hath a right . . . . to meet the witnesses face to
(Footnote Continued Next Page)


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Amendment reads, “In all criminal prosecutions, the accused shall enjoy the

right . . . . to be confronted with the witnesses against him[.]” U.S. Const.

Amend. VI.

         When considering the Pennsylvania Constitution, “‘great regard should

be paid to spirit and intention’ and it is important to examine the ‘probable

intent    of   the   makers.’”     Commonwealth     v.   Rose,   81   A.3d   123,

127 (Pa.Super. 2013), allowance of appeal granted on other ground, 95

A.3d 274 (Pa. 2014) (emphases removed). In performing this examination,

we keep in mind that “[a] constitution is made, not particularly for the

inspection of lawyers, but for the inspection of the million, that they may

read and discern in it their rights and their duties; and it is consequently

expressed in the terms that are most familiar to them.”           Monongahela

Navigation Co. v. Coons, 6 Watts & Serg. 101, 114 (Pa. 1843).

         Thus, we construe words in their plain and natural meaning, unless the

words themselves denote a technical sense.               Id.   “Concomitantly, a

fundamental precept in interpreting our constitution is that the language

‘must be interpreted in its popular sense, as understood by the people when

they voted on its adoption. Our ultimate touchstone is the actual language

of the Constitution itself.’”          Rose, supra at 127 (quoting Stilp v.

                       _______________________
(Footnote Continued)

face[.]” Pa.Const. Art. 9, § 9 (1790). The 1790 language was amended in
2003 to its current formulation.



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Commonwealth, 905 A.2d 918, 939 (Pa. 2006)).           In short, we consider

“the original public meaning of the text at issue, giving due regard to both

its spirit and the intent of the framers of the clause.” Rose, supra at 127.

      At the time of the ratification of the early Pennsylvania Constitutions,

preliminary hearings were held, but not constitutionally mandated. See e.g.

Commonwealth v. O'Brien, 124 A.2d 666, 669-671 (Pa.Super. 1956)

(discussing the Marian bail and committal statutes, which were in force in

Pennsylvania following the Declaration of Independence, and the history of

preliminary hearings).   Preliminary hearings began in England to prevent

justices of the peace from indiscriminately releasing persons arrested for a

crime. See id. The initial purpose of early English preliminary hearings was

also for purposes of inquisition.   That is, the justice of the peace would

examine the felony suspect and certify the results of that examination for

the court. Id. at 670; see also Crawford v. Washington, 124 S.Ct. 1354

(2004). Information gleaned from these proceedings subsequently came to

be used in criminal trials, causing “frequent demands by the prisoner to

have his ‘accusers,’ i.e. the witnesses against him, brought before him face

to face.” Crawford, supra at 1359 (quoting 1 J. Stephen, History of the

Criminal Law of England 326 (1883)).

      “Through a series of statutory and judicial reforms, English law

developed a right of confrontation that limited these abuses. For example,

treason statutes required witnesses to confront the accused ‘face to face’ at

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his arraignment.” Crawford, supra at 1361. Nonetheless, it was not until

1848 that English statutory law permitted an accused to confront or call

witnesses during a preliminary hearing proceeding. See Gary L. Anderson,

The Preliminary Hearing—Better Alternatives or More of the Same?, Missouri

L.Rev. Vol. 35, Issue 3, Summer 1970, at 284 n.13 (citing 1 W. Holdsworth,

History of English Law, 297 (5th Ed. 1931)) (hereinafter, “Anderson, The

Preliminary Hearing”).3

       Early American preliminary hearings, it appears, were not inquisitorial

of the accused due to the prohibition against self-incrimination.        See

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.

Rev. 547, 750 n.574 (1999); see also Anderson, The Preliminary Hearing,

at 285 n.15; compare Ex Parte Schultz 1841 WL 3999, *3 (Pa. 1841)

(“In England, and perhaps in Pennsylvania, justices of the peace have

authority, in certain cases, to take inquisitions by the examination of

witnesses[.]”).

       Rather, a committing magistrate was limited to determining whether a

crime was committed and whether the defendant was the culprit.         See 5

Tucker’s Blackstone, 296 (Philadelphia, 1803) (“The justice, before whom
____________________________________________


3
  It should be noted that English case law had, by 1791, applied a cross-
examination rule to testimony before a justice of the peace in felony cases
for purposes of usage at trial. See Crawford v. Washington, 124 S.Ct.
1354, 1361 (2004).




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such      prisoner   is   brought,   is   bound    immediately   to   examine   the

circumstances of the crime alleged . . . . If upon this inquiry it manifestly

appears, either that no such crime was committed, or that the suspicion

entertained of the prisoner was wholly groundless, in such cases only it is

lawful totally to discharge him. Otherwise he must either be committed to

prison or give bail[.]”).

       The typical practice at the time of the founding was for an affiant to

appear before a justice of the peace and be placed under oath.                  See

U.S.Const. Am. IV; Pa.Const. Chapt. 1, § 10 (1776); Pa.Const. Art. 9, § 10

(1790); William Waller Hening, The New Virginia Justice, 597 (Richmond, 2 nd

ed. 1810).      Affiants were not ordinarily law enforcement officials, but the

victims.     See Hening, supra at 80, 156, 161, 474 (providing sample

warrants for assault, burglary, arson, and rape in Virginia). The justice of

the peace would then determine if probable cause existed and issue a

warrant. Id. at 76, 80, 208; see also Commonwealth v. Green, 17 A.

878, 879 (Pa. 1889) (discussing later 19th century Pennsylvania practice). A

constable or sheriff would then be charged with placing the suspect under

arrest.    Hening, supra at 72.       Upon arresting the accused, the constable

would bring the suspect before a magistrate or justice of the peace who

would commit him to prison, provide for bail, or discharge the individual if

there was no probable cause to believe the accused committed the crime.

Gerstein, supra at 114 (citing 2 M. Hale, Pleas of the Crown, 77, 81, 95,

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121 (1736); 2 W. Hawkins, Pleas of the Crown, 116-117 (4th ed. 1762));

Green, supra.

       A prisoner could seek relief via habeas corpus if he believed he was

being detained unlawfully. See Ex Parte Bollman, 4 Cranch 75 (1807). If

not granted the writ, a grand jury of the accused’s peers would determine

whether sufficient probable cause existed to warrant the case proceeding to

a jury trial. If the grand jury so concluded, a true bill would issue and the

defendant would then elect to go to trial or admit to the crimes.

       The Pennsylvania legislature’s first significant foray into governing

preliminary hearings did not occur until 1915. That statute declared,

       Hereafter, upon a preliminary hearing before a magistrate for
       the purpose of determining whether a person charged with any
       crime or misdemeanor against the laws, except murder,
       manslaughter, arson, rape, mayhem, sodomy, buggery, robbery,
       or burglary, ought to be committed for trial, the person accused,
       and all persons on behalf of the person accused, shall be heard if
       the person accused shall so demand.

Act of May 14, 1915, P.L. 499, 42 P.S. § 1080 (as cited by O’Brien, supra

at 671). Thus, relative to serious crimes outlined, an accused did not have a

right to be heard or to confront witnesses.4       See O’Brien, supra at 671.

____________________________________________


4
  As of 1930, no state even mandated appointment of counsel for such a
preliminary hearing. Gary L. Anderson, The Preliminary Hearing—Better
Alternatives or More of the Same?, Missouri L.Rev. Vol. 35, Issue 3, Summer
1970, at 285 n.19.        Concomitantly, fifteen states in 1930 required
confrontation of the witness and authorized cross-examination. Id. at 286
n.22. That number had risen to forty-two by 1969, with three of the eight
(Footnote Continued Next Page)


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Indeed, the O’Brien Court held that a defendant “has no constitutional right

to face his accusers at a preliminary hearing.” Id. at 674 (italics in original);

see also Commonwealth v. Burger, 171 A.2d 599, 602 (Pa.Super. 1961)

(“The defendant is not entitled, at a preliminary hearing, to be confronted

with all the Commonwealth witnesses and evidence.”).

      Pursuant to Pa.R.Crim.P. 542(C), a defendant at a preliminary hearing

is entitled to counsel, to cross-examine witnesses, inspect physical evidence,

call non-character witnesses, and present his own evidence. Hence, the law

of the land in Pennsylvania provides a limited rule-based right to confront

witnesses at the preliminary hearing level.

      In Verbonitz, supra, a majority of justices agreed that hearsay

evidence alone was insufficient to establish a prima facie case at a

                       _______________________
(Footnote Continued)

remaining states requiring witnesses to be examined in the presence of the
suspect. Id. Interestingly, by 1969, one year before the United States
Supreme Court in Coleman v. Alabama, 90 S.Ct. 1999 (1970), held that
counsel was required at a preliminary hearing, all but three states permitted
an accused to have counsel. Anderson, The Preliminary Hearing, supra at
285 n.18. The Supreme Court in Coleman v. Alabama, 90 S.Ct. 1999
(1970), determined that a preliminary hearing is a “critical stage” of the
criminal prosecution and that counsel was therefore required. The dissent
by Chief Justice Burger agreed that, as a policy matter, counsel should be
afforded at such a hearing, but set forth that almost two centuries of
American practice refuted that it was constitutionally mandated. He opined
that, at the time of ratification of the federal constitution, the words
“criminal prosecution” did not include a preliminary hearing. Id. at 2010-
2011 (Burger, C.J., dissenting).




                                           - 21 -
J-A12009-15



preliminary hearing. Three justices based their rationale on a constitutional

confrontation right, whereas two justices grounded their decision on due

process.5 As noted, Appellant has not forwarded a due process argument.

         In Verbonitz, police arrested the defendant and charged him with

statutory rape, corruption of a minor, and endangering the welfare of a

child.    The victim was a seven-year-old-child.            At the preliminary hearing,

the victim did not testify.          The Commonwealth presented the victim’s

testimony     through     the   investigating      police   officer.   The   defendant,

Buchanan, objected, but the objection was overruled. The Commonwealth

did not present any other evidence. The district justice bound the case over

for trial.

         Buchanan filed a writ of habeas corpus and the Commonwealth

submitted the transcript of the preliminary hearing as the only evidence to

be considered. The trial court denied the motion and declined to certify the

case for purposes of permission to appeal an interlocutory order. Buchanan

sought review with the Pennsylvania Supreme Court, which transferred the


____________________________________________


5
  Justice Larsen, joined by Justices Zappala and Papadakos, held that there
was a constitutional right to confrontation at a preliminary hearing. Justice
Flaherty, joined by Justice Cappy, opined that it was a violation of due
process to allow only hearsay evidence to satisfy the Commonwealth’s low
burden of proof at a preliminary hearing. Chief Justice Nix and Justice
McDermott dissented, both disagreeing with the plurality that a
constitutional right to confrontation existed at a preliminary hearing.



                                          - 22 -
J-A12009-15



case to this Court.       After this Court denied his petition for review, our

Supreme Court granted allocatur.

       The plurality opinion in Verbonitz opined that in order to establish a

prima facie case, “the Commonwealth must produce legally competent

evidence, Commonwealth v. Shain, 493 Pa. 360, 426 A.2d 589 (1981),

which demonstrates the existence of each of the material elements of the

crime charged and legally competent evidence to demonstrate the existence

of facts which connect the accused to the crime charged.”           Verbonitz,

supra at 174.6       The lead opinion continued that the evidence in question

was inadmissible hearsay and therefore not legally competent evidence.

       The plurality asserted, “[a]dditionally, a criminal defendant has a right

to confront and cross-examine the witnesses against him: this right being

secured by the United States Constitution; the Pennsylvania Constitution;

and the Pennsylvania Rules of Criminal Procedure.” Id. (footnotes omitted).

In support, it relied on Coleman, supra and Gerstein, supra. The plurality

concluded that because a preliminary hearing is a critical stage of a criminal

proceeding, and Gerstein inferred a right to confront witnesses at such a

hearing, the United States Constitution guaranteed a right to confront

____________________________________________


6
  The citation to Commonwealth v. Shain, 426 A.2d 589 (Pa. 1981), is
somewhat curious because its reference to legally competent evidence
therein pertained to trial. Shain had no bearing on a preliminary hearing
proceeding.



                                          - 23 -
J-A12009-15



witnesses at a preliminary hearing.       It also construed the term “criminal

prosecutions”   in   the   Pennsylvania    Constitution   as   encompassing   a

preliminary hearing, thus providing for a right to confront witnesses. Since

the defendant was not afforded an opportunity to cross-examine the child

victim, it discharged the defendant.      The Verbonitz Court undertook no

significant detailed confrontation clause analysis.

      Justice Flaherty in his concurring opinion agreed with the plurality that

the defendant should be discharged.       However, he reasoned that this was

required by due process.       Relying on one of his own prior concurring

decisions, he set forth, “fundamental due process requires that no

adjudication be based solely on hearsay evidence.”        Verbonitz, supra at

176 (Flaherty, J., concurring).     He concluded that because the hearsay

statement would not have been admissible at trial, and it was the only

evidence introduced at the preliminary hearing, Buchanan was entitled to be

discharged.

      The comment to Rule 542 recognizes the tension between the rule and

Verbonitz decision. That case, nonetheless, is not binding and is valuable

only insofar as its rationale can be found persuasive. The same is true of

the United States Supreme Court decision in Gerstein, supra as it relates to

the present issue.   In Gerstein, the question before the High Court was

whether the Fourth Amendment required a “judicial determination of

probable cause for pretrial restraint of liberty.”    Gerstein, supra at 105.

                                     - 24 -
J-A12009-15



The case arose out of Florida. Under Florida procedure, the defendants were

arrested and charged by criminal information.       At the time, Florida law

permitted a prosecutor to charge an individual with a crime via criminal

information without a prior preliminary hearing. Statutory law and case law

in Florida also combined to allow a person to be “detained for a substantial

period solely on the decision of a prosecutor.” Id. at 106.

      The Gerstein Court held that “the Fourth Amendment requires a

judicial determination of probable cause as a prerequisite to extended

restraint of liberty following arrest.” Id. at 114. In dicta, the Court added

that where a state uses a full preliminary hearing, similar to Pennsylvania’s

current procedure, to meet this probable cause standard, “[t]he importance

of the issue to both the State and the accused justifies the presentation of

witnesses and full exploration of their testimony on cross-examination.” Id.

at 120. The High Court added that, where the probable cause determination

was made at a less than full preliminary hearing,

      This is not to say that confrontation and cross-examination
      might not enhance the reliability of probable cause
      determinations in some cases. In most cases, however, their
      value would be too slight to justify holding, as a matter of
      constitutional principle, that these formalities and safeguards
      designed for trial must also be employed in making the Fourth
      Amendment determination of probable cause.

Id. at 122. Gerstein, therefore, suggests but does not hold that a federal

constitutional right to confront witnesses exists at the type of preliminary

hearing used in Pennsylvania.

                                    - 25 -
J-A12009-15



       After review of the historical underpinnings of the preliminary hearing,

the reasons for the creation of the Pennsylvania and federal confrontation

clauses, and the original public meaning of the respective confrontation

clauses, we find that an accused does not have the right to confront the

witnesses against him at his preliminary hearing under those provisions.7

See Tyler, supra; O’Brien, supra; Burger, supra; see also McCullough

v. Commonwealth, 67 Pa. 30 (1870) (asserting that the right to meet

witnesses face-to-face attached after a true bill was found by a grand jury);

compare also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality

opinion) (“[T]he right to confrontation is a trial right.”); Barber v. Page,

390 U.S. 719, 725 (1968); (“The right to confrontation is basically a trial

right.”); cf. Crawford, supra at 68 (Confrontation Clause precludes

introduction at trial of testimony from a preliminary hearing unless there was

a   prior   opportunity    to    cross-examine     the   original   declarant   of   the

statements).8

____________________________________________


7
  Since Appellant does not argue the position, we do not decide the distinct
question of whether there exists a constitutional due process right to
confront witnesses because Rule 542(C) authorizes limited confrontation
rights.
8
 Our conclusion is consistent with a large body of other precedent. State v.
Lopez, 314 P.3d 236 (N.M. 2013); State v. Randolph, 933 A.2d 1158,
1191 n.15 (Conn. 2007); Blevins v. Tihonovich, 728 P.2d 732, 734 (Colo.
1986); State v. Sherry, 667 P.2d 367, 376 (Kan. 1983) (“There is no
constitutional right to allow the accused to confront witnesses against him at
(Footnote Continued Next Page)


                                          - 26 -
J-A12009-15



      We also note that it is presumed that a state legislature, when

enacting law, acts constitutionally.             Commonwealth v. Swinehart, 664

A.2d 957 (Pa. 1995). We agree with the Commonwealth that no less of a

standard applies when it is our High Court that promulgates a rule of

procedure.9 This is not to say that the Pennsylvania Supreme Court could

not pass an unconstitutional rule; only that there is a strong presumption

against it.

       We acknowledge that one of the primary harms sought to be

remedied by the federal and Pennsylvania confrontation clause was the

English practice of using statements taken pre-trial to establish guilt at trial

without affording the accused an opportunity to cross-examine the witness.

Thus, the very reason for the constitutional right was because an accused

could not confront those witnesses during the earlier proceedings.          The

constitutional right, therefore, offered the protection of ensuring the right to

                       _______________________
(Footnote Continued)

the preliminary hearing.”); Sheriff v. Witzenburg, 145 P.3d 1002, 1005
(Nev. 2006); State v. Woinarowicz, 720 N.W.2d 635, 641 (N.D. 2006)
(“right to confrontation is a trial right, which does not apply to pretrial
suppression hearings”); State v. Jones, 259 S.E.2d 120, 122 (S.C. 1979);
Wilson v. State, 655 P.2d 1246, 1250 (Wyo. 1982) (“The use of hearsay
testimony to establish probable cause at a preliminary hearing is practically
a universally approved practice.”).
9
  The Pennsylvania Supreme Court’s power to prescribe rules is limited to
those that do not abridge, enlarge, or modify substantive rights. Pa.Const.
Art. V, § 10(c). Appellant does not allege that the rule abridges any other
substantive right than his confrontation rights.



                                           - 27 -
J-A12009-15



confront the witness at his trial. Appellant has not provided, nor have we

been able to uncover, any binding precedent that constitutionally mandates

an accused be afforded the opportunity to confront and cross-examine a

witness against him at a preliminary hearing based on the federal or state

confrontation clause.

     Moreover, at the time of the ratification of the federal and early

Pennsylvania Constitutions, the phrase “criminal prosecutions” did not

encompass a preliminary hearing. It is beyond cavil that an accused did not

have a constitutional right to confront witnesses at a grand jury proceeding,

which occurred after the preliminary hearing. See McCullough, supra; cf.

Respublica v. Shaffer, 1 U.S. 236 (Pa.Ct. Oyer and Terminer 1788) (Chief

Justice McKean opining that a defendant does not have right to call

witnesses before a grand jury). A grand jury was considered a bulwark of

liberty by those who framed the early constitutions, but it was not

considered part of the criminal prosecution for purposes of the Sixth

Amendment.     It would be incongruous to find that the phrase “criminal

prosecution” did not encompass the constitutionally-required grand jury

proceeding,   but   did   include   the   earlier   non-constitutionally-mandated

preliminary hearing proceeding.

     In Ex Parte Bollman, supra, Chief Justice John Marshall, writing

while on circuit, permitted the use of an affidavit during a pre-trial

proceeding. He opined,

                                      - 28 -
J-A12009-15



      To decide that an affidavit made before one magistrate would
      not justify a commitment by another, might in many cases be
      productive of great inconvenience, and does not appear
      susceptible of abuse if the verity of the certificate be established.
      Such an affidavit seems admissible on the principle that before
      the accused is put upon his trial all the proceedings are ex parte.

Bollman, supra at 129-130. That same year, Justice Bushrod Washington,

also on circuit, declared that cross-examination of a prosecution’s witness at

a bind-over proceeding was “certainly improper.” United States v. White,

28 F. Cas. 588, 588 (C.C. Pa. 1807); see also In re Bates, 2 F.Cas. 1015,

1018 (D.C.S.C. 1858) (“[T]hese constitutional rights, which are supposed to

be invaded by this construction, are rights which are not contemplated by

the constitution in connection with preliminary proceedings; that the

privilege of confronting the witness is a privilege which pertains to the trial

in court; that it does not extend to all periods in the proceeding, is manifest

in the fact that it cannot be claimed before the grand jury: a period, when, if

allowed, it would be far more available for the accused than in the

preliminary proceedings before the magistrate.”).

      Hence,   the   probable   intent   of   the   makers   of   the   respective

confrontation clauses and the original meaning placed on the text by those

who ratified the provisions in question did not constitutionally guarantee a

right to confront witnesses before trial.      Appellant’s confrontation clause

arguments, therefore, fail. We add that we are cognizant that there does

appear to be some tension between Rule 542(C) and 542(E) since



                                     - 29 -
J-A12009-15



defendants do have a rule-based right to confront witnesses and call

witnesses on their own behalf to refute the Commonwealth’s prima facie

evidence.   Appellant has not explored this issue and, as noted, did not

develop any argument relative to the district justice’s decision not to permit

him to call Trooper Trotta or Trooper Gingerich. Thus, we do not opine on

those matters. For all of the aforementioned reasons, we affirm.

      Order affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




                                    - 30 -
