PA Supreme Court: Commonwealth May Not Use Hearsay Alone to Prove Identity of Perpetrator at Preliminary Hearing
Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esq.
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Harris, holding that the Commonwealth may not meet its burden of proving that the defendant committed the crimes charged at a preliminary hearing through the use of hearsay alone. The issue in this case was whether Pennsylvania Rule of Criminal Procedure 542(E) permits the use of hearsay alone to establish a defendant’s identity at a preliminary hearing. The Supreme Court and Superior Court have both struggled with how much hearsay is allowed at a preliminary hearing. Under Rule 542, it is clear that the Commonwealth may use some hearsay to meet its burden at a preliminary hearing. But ultimately, as the Supreme Court held in Commonwealth v. McClelland, due process protections prohibit the Commonwealth from proving a prima facie case solely through hearsay, and following this decision, the Commonwealth may not prove the defendant’s identity as the perpetrator through the use of hearsay alone. The Commonwealth may prove elements such as ownership and non-permission for theft and property offenses using hearsay, and it may often introduce the observations of other police officers who were in constant radio contact with the testifying officer as well as lab reports, but Harris re-affirms the principle that preliminary hearings are an important part of the process at which the Commonwealth must introduce actual evidence to justify the filing of charges against a defendant and the potential detention of a defendant who cannot make or is not eligible for bail.
The Issue in Harris
Pa.R.Crim.P. 542 governs preliminary hearings in Pennsylvania, and it does provide for a number of situations in which the Commonwealth may introduce hearsay at a preliminary hearing. Specifically, Pa.R.Crim.P. 542(E) allows “hearsay to establish any element of an offense.” At the same time, Supreme Court case law like Commonwealth v. McClelland preclude the Commonwealth from proving an entire case using hearsay alone. This case, however, focused on the issue of whether the Commonwealth may meet its burden by proving that a crime occurred through non-hearsay and then proving the defendant’s identity as the perpetrator of the crime using hearsay.
The Facts of Harris
A Philadelphia Police Officer responded to a report of a shooting and found that complainant had been shot in the wrist and thigh. At the hospital, the complainant in a state of distress, identified the defendant and his brother as the shooters. The complainant made statements and identified the brothers from photographs. The Commonwealth then charged Harris with attempted murder, aggravated assault, and other related charges.
The complainant did not appear for multiple listings of the preliminary hearing. The Commonwealth proceeded with only the testimony of the responding officer as well as that of a detective. The detective also confirmed the complainant’s hearsay identification. The defendant objected to the hearsay, but the Municipal Court judge held the case for court.
The defendant filed a motion to quash, arguing that the Commonwealth’s case against him was based solely on hearsay and thus insufficient to establish his identity as the perpetrator. The Common Pleas Judge held a hearing on the motion to quash. She quashed the attempted murder charge but upheld the remaining charges. At the time. the Superior Court had ruled in Ricker and McClelland that the Commonwealth could establish a prima facie case at a preliminary hearing using hearsay alone. While the case was pending, however, the Pennsylvania Supreme Court overruled those cases in Commonwealth v. McClelland. Following the Supreme Court's decision in McClelland, the defendant filed a motion to reconsider. The trial judge granted the motion and dismissed all of the charges against him because the Commonwealth relied entirely on hearsay to prove his identity as the shooter.
The Commonwealth appealed, and the Superior Court affirmed the trial court’s decision. The Pennsylvania Superior Court emphasized that all material elements of a crime, including the defendant's identity, must be proven through by non-hearsay evidence to satisfy the requirements of due process which apply to a preliminary hearing.
The Supreme Court’s Decision
The Commonwealth appealed again, seeking review in the Pennsylvania Supreme Court. The Pennsylvania Supreme Court granted allocatur, heard the appeal, and ultimately affirmed. The Court ruled that Rule 542(E) does not permit the use of hearsay alone to establish a defendant’s identity. The Court emphasized the distinction between the elements of a crime and the identification of the defendant, holding that the latter cannot be proven solely through hearsay. Therefore, the Commonwealth must introduce some form of non-hearsay or admissible hearsay evidence to establish a defendant’s identity at a preliminary hearing. The Court also suggested in a footnote that the Commonwealth may be able to instead use an indicting grand jury in cases involving witness intimidation, although whether the Commonwealth may rely entirely on hearsay at an indicting grand jury is potentially an open question.
The Takeaway
Ultimately, Rule 542 is a mess. It states that the Commonwealth may use hearsay to establish any element of an offense at a preliminary hearing. At the same time, the Supreme Court’s precedent limits the Commonwealth’s ability to do so as the Supreme Court has now held that a defendant may not be held for court based on hearsay alone or held for court based on an identification that is entirely made up of hearsay. Certain types of hearsay are clearly admissible. For example, ownership and non-permission testimony, lab reports, and the testimony of other narcotics officers during a narcotics surveillance generally comes in. But the Superior Court’s recent case holding that the out-of-court statement of a confidential informant that the defendant sold the drugs in question is admissible is probably effectively overruled by this case. In an ideal world, the Court would draft a clearer rule that would continue to protect a defendant’s due process rights. For now, the situation will likely remain fuzzy, and the amount of hearsay allowed at a preliminary hearing will depend heavily on the judge hearing the case. The appellate courts have held that a preliminary hearing based entirely on hearsay is not acceptable, but they have not really clarified how much hearsay is too much.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Criminal Defense Lawyer Zak T. Goldstein, Esquire
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
