PA Superior Court: Hearsay from Confidential Informant Admissible at Preliminary Hearing if Commonwealth Asserts CI Will Testify at Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Sutton, holding that the Commonwealth may introduce hearsay evidence as to what a confidential informant (“CI”) told the police at the preliminary hearing so long as the Commonwealth certifies that the CI will be available to testify at trial. This case presents two major issues: 1) the Commonwealth almost never actually calls a CI to testify at trial, and there is no mechanism in place to ensure that the Commonwealth does not simply say the CI will be available to testify and then that they have changed their minds about that when the case gets to the trial level, and 2) the Pennsylvania Supreme Court has clearly held that hearsay may not be used to establish a prima facie case of the defendant’s guilt at the preliminary hearing. Nonetheless, the Superior Court dismissed these concerns and reversed the trial court’s order dismissing the case against the defendant.

The Facts of Sutton

The Commonwealth charged the defendant with two counts of possession with the intent to deliver. At the preliminary hearing, the Commonwealth called one witness, Detective Michael Lamana of the Bradford County Drug Taskforce. Detective Lamana testified that on two dates in February and March of 2022, he worked with a confidential informant to purchase drugs from someone inside of the defendant’s house. Specifically, he went to the house with a CI, searched the CI for drugs and money, and after finding nothing on the CI, gave the CI pre-recorded buy money. He then sent the CI into the house to buy drugs. He could not see inside the house, so he obviously had no way of seeing what occurred inside, if the defendant was even present at the time, or if someone else could have sold drugs to the CI. The CI then returned with methamphetmaine and no money, suggesting the CI had purchased drugs inside.

The problem with this evidence, however, is that it establishes only that the CI probably bought drugs at the defendant’s house; it does not establish that the defendant in fact sold the drugs. Accordingly, this evidence would be insufficient to hold the defendant for court at a preliminary hearing. Recognizing this fact, the magisterial district justice allowed the detective to testify that the CI told him that they had bought the drugs from the defendant. With this hearsay testimony in evidence, the district justice was able to hold the case for court and send it to the Court of Common Pleas.

The Motion to Quash

The defendant filed a motion to quash (also known as a petition for writ of habeas corpus outside of Philadelphia) and asked the Court of Common Pleas to dismiss the charges because the Commonwealth improperly relied entirely on hearsay in getting the case held for court. Ultimately, the evidence that the CI bought drugs from inside of the defendant’s house was not enough to identify the defendant as actually selling the drugs. Someone else could have been living there or selling drugs from that location. And the hearsay obviously should not have been admitted given that the Supreme Court held in McClelland and the Superior Court held in Harris that prima facie case may not be established solely through hearsay. The Court of Common Pleas followed this binding precedent and dismissed the charges.

The Appeal

The Commonwealth appealed the trial court's decision. On appeal, the prosecution argued that it had presented some non-hearsay evidence in the form of the detective’s actual observations, it had certified that the CI would be available to testify at trial, and the rules limiting the use of hearsay at a preliminary hearing only prevent the Commonwealth from getting a case held for court based solely on hearsay. They do not prevent the Commonwealth from using some hearsay to get the case held for court or require the Commonwealth to disclose the identity of a CI by putting the CI on the witness stand at such an early stage in the proceedings. Therefore, the Commonwealth essentially argued for an exception to the rule that hearsay alone may not be used to establish the identity of the perpetrator of a crime at the preliminary hearing.

Superior Court's Decision

The Superior Court reinstated the charges on appeal. A divided panel of the Superior Court agreed. One judge concurred only in the result, opining that the evidence that drugs have been sold to the CI from the defendant’s home on two occasions was enough to establish a prima facie case for preliminary hearing purposes even without the hearsay from the CI. The other two judges, however, ruled that the Commonwealth may properly introduce the hearsay statements of a confidential informant at a preliminary hearing without violating the decisions in McClelland and Harris so long as the Commonwealth agrees to make the CI available for trial.

The court emphasized that the preliminary hearing’s purpose is to determine whether sufficient evidence exists to proceed to trial, not to establish guilt beyond a reasonable doubt. It highlighted that the Commonwealth's use of the CI’s statements through Detective Lamana’s testimony, alongside direct evidence of the controlled buys, sufficed to establish a prima facie case for the charges to proceed to trial.

Moreover, the court addressed the qualified privilege to protect the CI's identity, noting that disclosure at the preliminary hearing stage was not mandated. The ruling underscored that the CI's identity and the details of their statements could be protected, provided that the CI would be available to testify at trial. In the court’s view, this would balance the interests of law enforcement in prosecuting drug crimes and the defendant's right to a fair defense. Therefore, the court reinstated the charges.

Conclusion and Implications

This case is a disaster for maintaining due process protections at the preliminary hearing level. Those protections were only recently re-established by the Supreme Court’s decision in Commonwealth v. McClelland. For years, the Superior Court had ruled that the Commonwealth need not present any non-hearsay evidence at a preliminary hearing at all. The Supreme Court eventually reversed that line of cases in McClelland, holding that the rule against hearsay does apply at the preliminary hearing with limited exceptions, and the Superior Court went even further in Harris by holding that even where the Commonwealth establishes that a crime occurred through non-hearsay evidence, it must introduce real evidence to prove the identity of the perpetrator of the crime. These protections are absolutely critical. The preliminary hearing happens early in the proceedings - generally within a few weeks or months of a defendant’s arrest. And in a serious case such as a shooting, homicide, or drug or gun case where a defendant is on probation or parole, the defendant is likely in custody and may remain in custody until the case is resolved. The final resolution of a case may not occur for years in some instances. Therefore, the right to a meaningful preliminary hearing is critical as it prevents people from being held for years based on cases that the Commonwealth will never be able to actually prove in court with real evidence.

This decision, however, completely eliminates those protections for any defendant who is charged with a drug or gun offense based on an investigation involving a confidential informant. The Supreme Court’s case law and the Superior Court’s other case law does not support such a broad holding, so hopefully the defendant will appeal further and ask the Superior Court for re-argument or the Supreme Court to grant allocatur. Finally, at least in Philadelphia, the Commonwealth never actually makes the CI available for trial. Indeed, the Commonwealth will typically withdraw charges if they lose a motion to reveal the identity of the confidential informant rather than actually allow the defense to call that person to testify. Therefore, the case may be of limited impact in many places. It nonetheless poses a huge risk of the exception swallowing the general rule and reverse significant progress that has occurred over the last few years in terms of making sure that the preliminary hearing is a meaningful hearing and opportunity to test the evidence so that an innocent or over-charged defendant does not remain in custody for years waiting for trial without any chance to challenge the evidence.

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