The preliminary hearing is a critical first step in fighting the charges against you. We have had countless cases and charges thrown out at the preliminary hearing.
The Pennsylvania Superior Court has decided the case of Commonwealth v. Wyatt, holding that the trial court properly dismissed involuntary manslaughter, homicide by vehicle, and related charges stemming from a fatal motor vehicle accident where the Commonwealth was able to show only that the defendant caused the accident without explaining how or why.
Is Hearsay Admissible at a Preliminary Hearing?
The Pennsylvania Supreme Court has just dismissed the appeal in Commonwealth v. Ricker, thereby failing to decide the issue of how much hearsay may be admitted at a preliminary hearing in order for the Commonwealth to establish a prima facie case. The use of hearsay by the prosecution at a preliminary hearing has long been a heavily contested issue. For years, the rule was that the prosecution could introduce some evidence via hearsay testimony in order to establish a prima facie case, but the prosecution could not have a defendant held for court and a case sent to the Court of Common Pleas for trial without at least some live testimony by a witness with personal knowledge.
The Use of Hearsay at the Preliminary Hearing and the Pennsylvania Rules of Criminal Procedure
That basic rule began to change in 2011 when the Pennsylvania Supreme Court issued new Rules of Criminal Procedure expressly allowing for the use of hearsay to prove the elements of ownership and non-permission in cases involving property crimes like Theft, Burglary, and Robbery. In order to prove Theft, the prosecution would normally have to show that the defendant took someone else’s property without permission and did not intend to give it back. This would often require two witnesses. First, the complainant who had the property stolen would have to testify that something that person owned was stolen and that the complainant did not give the person who took the property permission to take it. Second, the police officer who arrested the defendant in possession of the stolen property would testify that the officer arrested the defendant and the defendant had the stolen goods.
By permitting ownership and non-permission testimony to come in through hearsay, the rule allowed the Commonwealth to call only the professional police witness, who is more likely to appear for court because it is part of his or her job, to testify at the preliminary hearing. This allowed more cases to survive the preliminary hearing because the complaining witness would only be required for trial. Of course, many cases do not go to trial, leaving many defendants forced to decide whether or not to plead guilty without any meaningful chance to challenge the evidence against them. Before the Pennsylvania Supreme Court adopted the rule, judges would frequently dismiss cases because the owner of the property or house involved in a Burglary or Theft would fail to appear for court. The rule was an attempt to provide the defendant with a continued right to a meaningful hearing while at the same time lessening the burden on victims and witnesses to miss work and other obligations for multiple pre-trial court dates.
Shortly after enacting the 2011 rule, the Pennsylvania Supreme Court amended the rule to permit other types of testimony to come in to evidence via hearsay. The rule currently reads:
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 amended rule expanded the number of cases in which hearsay could be used to prove various elements of the charged offenses at the preliminary hearing. Nonetheless, important protections remained in effect because the rule did not state that hearsay could be used to prove every element or all elements of an offense, and the Pennsylvania Supreme Court had previously ruled that a case could not be held for court at the preliminary hearing based on hearsay alone.
Commonwealth v. Ricker and Commonwealth v. McClelland
That all changed in the recent cases of Commonwealth v. Ricker and Commonwealth v. McClelland. In Ricker, the Pennsylvania Superior Court held that the amended rule permits the Commonwealth to establish a prima facie case at a preliminary hearing based on hearsay alone. Ricker did not address whether the Pennsylvania and United States Confrontation Clauses, which provide criminal defendants with the right to confront (meaning cross-examine) their accusers, prohibit the Commonwealth from establishing a prima facie case at a preliminary hearing based solely on hearsay. Unfortunately, in McClelland, a panel of the Superior Court again found that the Commonwealth could establish a prima facie case based solely on hearsay because the Confrontation Clause does not apply at a preliminary hearing.
The defense appealed in both Ricker and McClelland, and the defense bar has been anxiously awaiting the Pennsylvania Supreme Court’s review of the Ricker decision. Unfortunately, the Pennsylvania Supreme Court just announced that it has decided to punt on the issue. Instead of determining exactly how much hearsay is allowed at a preliminary hearing, the Supreme Court dismissed the appeal in Ricker as “improvidently granted.” In a concurring opinion, Chief Justice Saylor explained that the Court simply could not agree on a result and felt that the Ricker case was not the appropriate vehicle for resolving all of the issues. In a dissenting opinion, Justice Wecht argued that the Court should have resolved the issue either way and that the Superior Court’s holding in Ricker should be reversed. Because the Court has refused to rule on the issue for now, the exact procedure which should be used at a preliminary hearing will continue to be the subject of litigation.
Despite the PA Supreme Court’s refusal to resolve the issues in Ricker, the Petition for Allowance of Appeal is still pending in McClelland. Therefore, it remains a possibility that the Court could still resolve these issues. The Court could provide an authoritative ruling on exactly how much hearsay is permitted at a preliminary hearing either by revisiting the issue in McClelland or by engaging in the rule-making process to make the Rules of Criminal Procedure clearer. In the absence of action by the Court, criminal defendants throughout Pennsylvania will remain subject to a wide variety of preliminary hearing procedures and subject to a severe disadvantage in terms of the defense’s ability to test the strength of the Commonwealth’s case at the preliminary hearing.
Most Judges in Philadelphia Require More Than Just Hearsay
In Philadelphia, most judges continue to require some level of non-hearsay testimony, and it is important to note that the rules and the case law do not require a judge to permit the Commonwealth to proceed based solely on hearsay. Instead, McClelland instructs judges to continue evaluating and analyzing the reliability of the Commonwealths’ evidence. Given the high volume of cases, it seems likely that this practice will continue for most cases. Further, many of the most serious cases in Philadelphia such as Attempted Murder and Robbery cases are now charged by way of a secret (and probably even more unfair) Indicting Grand Jury at which the defense is not present or able to cross-examine witnesses instead of by preliminary hearing. In the suburban counties, magistrates are more likely to allow the prosecution to proceed based solely on hearsay. In the short term, the practice in Philadelphia may not change dramatically. In the long term, it remains to be seen whether prosecutors will continue to call witnesses at preliminary hearings and whether the Pennsylvania Supreme Court will revisit this issue.
AWARD-WINNING PHILADELPHIA CRIMINAL DEFENSE LAWYERS
If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients against a wide variety of criminal charges in preliminary hearings and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys.
Our Philadelphia criminal defense lawyers have continued to obtain successful results on behalf of our clients in cases involving sex crimes, robbery, burglary, and Possession with the Intent to Deliver. These successful outcomes have included bail reductions, the dismissal of all charges, favorable results in pre-trial Motions to Suppress, and probationary and house arrest sentences. In the past two months alone, we have achieved a number of wins, including:
Commonwealth v. S.A. - S.A. was charged with rape, involuntary deviate sexual intercourse, sexual assault, and related charges. The magistrate initially set bail at an extremely high amount due to the seriousness of the charges, and SA was unable to make bail. Within 24 hours of being retained, Attorney Goldstein obtained a significant bail reduction, and the defendant was able to make bail. After the defendant made bail, Attorney Goldstein was also able to have all charges dismissed at the preliminary hearing.
Commonwealth v. H.S. - Our criminal defense lawyers were able to obtain a full dismissal of all charges in a burglary case against HS at the preliminary hearing.
Commonwealth v. S.V. - Our attorneys were able to obtain a sentence of house arrest and drug treatment for a defendant who was convicted of drug charges. After the defendant was convicted of Possession with the Intent to Deliver, our defense attorneys arranged for the defendant's other open matters, including a case for which the defendant was on probation, to be brought in before the sentencing judge so that the defendant could be sentenced on all of the cases at the same time and only have one back judge. This procedure is called a 701 consolidation, and it can be very helpful in terms of avoiding multiple probation judges and consecutive sentences for a defendant who has violated probation.
Although the sentencing guidelines called for a state prison sentence and the defendant had been on probation at the time of the new arrest, our defense attorneys were able to convince the sentencing judge to give the defendant a chance to serve a house arrest sentence and obtain drug treatment. By investigating the client's background, our lawyers learned that despite being on probation for a similar offense, the defendant had never been ordered to undergo any kind of addiction treatment. Now, instead of serving time in state prison, the client will have the chance to receive treatment in the community, and the Court will also assist the client with obtaining educational and job training.
Commonwealth v S.A. - Attorney Goldstein obtained a full dismissal of all charges in a Robbery case at the preliminary hearing. In this case, the complainant alleged that the defendant had been part of a group that assaulted him and stole his tablet. After the complainant testified that he had been under the influence of prescription medication at the time of the incident and was no longer sure if the defendant had been present, Attorney Goldstein was able to convince the preliminary hearing judge to dismiss all charges. Prior to the preliminary hearing, Attorney Goldstein obtained a significant bail reduction which allowed the client to fight the case from out of custody.
Cmmonwealth v. D.S. - Our attorneys successfully moved for a bail reduction in a felony gun possession case. After the judge at the preliminary hearing refused to reduce bail, Attorney Goldstein immediately moved for a bail reduction in the Court of Common Pleas, and the Common Pleas judge reduced bail from $35,000 to $15,000.
In Re: J.W.: We negotiated an admission to Criminal Trespass in a juvenile delinquency case where the client was originally charged with felony burglary for breaking and entering into a school after hours. After hearing the defense's mitigation evidence and recommendation at disposition (sentencing), the Family Court judge found that the client was not in need of supervision and dismissed all of the charges. The defendant will not even have to be on probation, and the entire record of the case can be expunged.
Commonwealth v. E.G. - All charges dismissed prior to trial in domestic violence case involving Simple Assault and Recklessly Endangering Another Person charges.
Commonwealth v. M.M. - Client was arrested on a potential technical probation violation. Attorney Goldstein filed a motion to lift the detainer and had a hearing scheduled within a week. At the hearing, our defense attorneys convinced the judge to find that the client had not violated the terms of his probation. The client was immediately released the same day.
Commonwealth v. W.L. - The defendant was arrested on a bench warrant due to a failure to show up for court for a preliminary hearing. Our attorneys were able to have the bench warrant lifted without a finding of contempt of court and obtain Sign on Bond bail, meaning the defendant was released without an increase in bail.
Commonwealth v B.M. - We were able to successfully have Possession with the Intent to Deliver PCP and Conspiracy charges dismissed, leaving only charges related to marijuana sales for trial.
Commonwealth v. J.W. - Our defense attorneys obtained the dismissal of charges of selling crack cocaine and conspiracy at a preliminary hearing. The defendant will now face much less serious charges related only to marijuana in a trial in the Municipal Court. A conviction for Possession with the Intent to Deliver of crack cocaine may often involve jail time, whereas even a conviction for PWID of marijuana in the Municipal Court is more likely to result in probation.
Commonwealth v. M.G. - Successfully negotiated Section 17 disposition on drug possession charges. The Section 17 program requires the defendant to plead no contest and be placed on a period of probation. If the defendant successfully completes the probation, then the charges will be dismissed and can be expunged.
Commonwealth v. A.C. - Successfully negotiated for client who was facing assault charges to obtain entry into a Domestic Violence diversion program. If the client pays a small fine, completes a number of counseling sessions, and stays out of trouble for approximately four months, the entire case will be dismissed and can be expunged. Pursuant to the terms of the program, the client was not required to enter into any kind of plea or admission of guilt.
Commonwealth v. J.H. - Successfully negotiated for client's entry into drug treatment court for client facing two cases of Possession with the Intent to Deliver. If client completes the program, the charges will be dismissed and can be expunged, and client will not have a felony record.