PA Superior Court: Preliminary Hearing Based on Pure Hearsay Does Not Violate Due Process

Does a Preliminary Hearing Based Entirely on Hearsay Violate Due Process? 

The Pennsylvania Superior Court has just held that constitutional due process requirements do not prevent a magistrate or Municipal Court judge from holding a defendant for court following a preliminary hearing at which the Commonwealth introduces only hearsay evidence. The issue of how much hearsay is permitted at a preliminary hearing has been heavily contested. For many years, the Commonwealth has been permitted to introduce some hearsay at a preliminary hearing. For example, where the defendant has been pulled over in a stolen car, the owner of the car is typically not required to come to court to testify that the defendant did not have permission to steal the car. However, courts have generally held that the Commonwealth may not make out its case at the preliminary hearing based on hearsay alone.

Preliminary Hearing Hearsay Litigation in the Pennsylvania Supreme Court

More recently, in Commonwealth v. Ricker, the Pennsylvania Superior Court held that it does not violate the confrontation clauses of the Pennsylvania or United States Constitutions for a defendant to be held for court and ordered to stand trial at a preliminary hearing based on hearsay alone. However, the Ricker court did not reach the issue of whether a pure hearsay preliminary hearing would violate a criminal defendant’s right to due process. Although Ricker is still on appeal in the Pennsylvania Supreme Court, the Superior Court has now addressed the due process issue, as well.   

Commonwealth v. McClelland

In Commonwealth v. McClelland, a three-judge panel of the Superior Court held that it does not violate due process rights for a defendant to be held for court at a preliminary hearing based on hearsay alone. In McClelland, the defendant was charged by a Pennsylvania State Trooper with various sex offenses allegedly committed against an eight-year-old child. The charges included indecent assault, indecent exposure, and corruption of minors. The child’s parents made a complaint to the State Police, and the Police arranged for the child to be interviewed by a “specialist” from the Children’s Advocacy Center. The Trooper observed the interview and then filed charges against the defendant.   

At the preliminary hearing, the prosecution did not call the complainant to testify or even play the video-taped interview. Instead, the prosecution called the State Trooper as its only witness. The Trooper testified entirely to hearsay. He testified that he personally witnessed, through video, the interview of the child. He told the magistrate what the child said in the interview, and the magisterial district justice held the case for court and ordered the defendant to stand trial.       

The defendant filed a Petition for Writ of Habeas Corpus (commonly referred to as a Motion to Quash in Philadelphia) in the Court of Common Pleas asking the trial court to dismiss the charges. The defendant argued that holding the charges for court based on pure hearsay violated both the defendant’s confrontation rights and right to due process under both the Pennsylvania and United States Constitutions. The trial court denied the Petition, and the defendant filed an interlocutory appeal to the Superior Court.

The Exceptional Circumstances Doctrine for Interlocutory Appeal

A criminal defendant may not ordinarily appeal the denial of a Motion to Quash (or Petition for Writ of Habeas Corpus) prior to trial. In this case, however, the Superior Court permitted the pre-trial, interlocutory appeal under the exceptional circumstances doctrine. The exceptional circumstances doctrine permits an interlocutory appeal when the appellate court finds that appeal is warranted due to the important constitutional questions raised therein. Because the Superior Court permitted an interlocutory appeal in Ricker under similar circumstances, the court found it appropriate to address the unresolved issues from that case before trial.

The McClelland court then found that the admission of hearsay at a preliminary hearing does not violate a defendant’s right to due process. The court noted that the admissibility of hearsay at a preliminary hearing is governed by Pennsylvania Rule of Criminal Procedure 542. Rule 542(E) provides: “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, nonpermitted use of, damage to, or value of property.” Thus, the rule explicitly applies to the stolen car example above, but it does not really suggest that an entire case of child abuse may be made out through hearsay alone.

Because Ricker already held that introducing hearsay alone at a preliminary hearing does not violate confrontation clause rights, McCllelland addressed only the issue of whether the same procedure would violate the defendant’s right to due process. The court found that there is no constitutional right to a preliminary hearing at all, and so there is essentially no right to have the preliminary hearing conducted in any particular manner. Thus, the prosecution does not violate the defendant’s right to due process by asking a police witness to testify to someone else’s statements.   

Problems with Preliminary Hearings Based Entirely on Hearsay

This opinion leaves few procedural safeguards in place for a criminal defendant prior to trial. If the decision is upheld, prosecutors will essentially be able to dispense with the preliminary hearing altogether by doing little more than asking a police officer to read a police report into evidence. If the police report alleges the elements of a crime, then the defendant will be held for court and ordered to stand trial. This is problematic due to the fact that if a defendant cannot make bail, the defendant could be held in custody for years without a trial or even a live witness being required to appear for a preliminary hearing. Unfortunately, the Superior Court has simply found that there is no right to pre-trial cross examination of a complaining witness despite the fact that such cross-examination is critical both in making sure that there will ever be actual witnesses against the defendant and in developing inconsistencies which could affect the witness's credibility at trial. 

Remaining Restrictions on the Use of Hearsay

The Superior Court did note some minor limitations on the use of hearsay at a preliminary hearing. First, the court suggested that its opinion should not be read to say that hearsay-within-hearsay should be freely admitted. The court noted, “[a]s 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 citizen called to report that a defendant committed a series of acts that met the material elements of some charged crime.” Apparently, that situation would present too much hearsay for the court.

Second, the Superior Court suggested that magistrates and Municipal Court judges should consider whether the offered hearsay is reliable. Of course, cross-examination is the normal method for testing whether testimony is reliable, so it is unclear exactly what the Superior Court is suggesting. Further, judges are required by law to accept the Commonwealth’s evidence as true at a preliminary hearing. Nonetheless, the court seems to suggest that defense counsel may argue that too much hearsay is simply unreliable.

Third, the court suggested in a foot note that these hearsay exceptions at the preliminary hearing should not really apply to run-of-the-mill cases involving police officer testimony. Instead, magistrates should limit cross-examination of the complainant only in cases of domestic violence, witness intimidation, and child abuse.

McClelland is unlikely to have much impact in the short term as the Pennsylvania Supreme Court has not yet ruled on the appeal in Commonwealth v. Ricker. Prior Pennsylvania Supreme Court opinions have held that prosecutions may not be based entirely on hearsay without violating due process, and the Superior Court simply cannot overrule the Supreme Court. Therefore, most prosecutors continue to call live witnesses at preliminary hearings, particularly in Philadelphia, and McClelland seems unlikely to change that fact until the Supreme Court has ruled. However, the potential impact of the decision as it stands is tremendous as the preliminary hearing is an absolutely critical opportunity for the defense to get some or all of the witnesses on the record and evaluate whether they are telling the truth. Certainly, the amount of hearsay permitted at a preliminary hearing will continue to be an issue until the Pennsylvania Supreme Court rules, and even then, the litigation will likely continue.

Award-Winning Philadelphia Criminal Defense Lawyers

Criminal Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges, we can help. Our Philadelphia criminal defense attorneys have successfully represented thousands of clients in preliminary hearings, pre-trial motions, and at trial in the Municipal Court and Court of Common Pleas. We can help with any type of state and federal criminal charges in Pennsylvania and New Jersey. Call 267-225-2545 to speak with an experienced and understanding criminal defense lawyer today. 

PA Superior Court Issues Gentle Reminder That Courts May Not Punish Defendants For Being Poor

Can a judge punish a DUI defendant for not being able to afford a drug and alcohol evaluation? 

The Superior Court has just decided the case of Commonwealth v. Dennis. In Dennis, the court  held that a trial court may not revoke an indigent DUI defendant's bail and incarcerate the defendant for failure to obtain a pre-sentence drug and alcohol evaluation. Although the Superior Court found that Dennis had no remedy because he had already served his sentence for DUI and had not spent any extra time in jail, the case should hopefully end the somewhat common practice of judges putting defendants in jail to obtain their evaluations in cases where the defendant cannot afford the evaluation.

What is a CRN evaluation? 

Pennsylvania's complicated DUI law requires defendants to obtain a Court Reporting Network ("CRN") evaluation upon conviction for DUI. The CRN investigates both whether the defendant has prior DUI convictions which could lead to increased mandatory minimum sentences for the conviction and whether the defendant has a drug or alcohol problem requiring additional treatment. The sentencing judge is then supposed to consider the CNR evaluation during sentencing, but in the majority of DUI cases that do not involve an accident, the defendant typically does not receive more than the mandatory minimum because DUI mandatory minimums are extremely high in Pennsylvania.

Of course, the CRN evaluation is not free. Instead, depending on the county, the court typically requires the defendant to pay approximately $100 in order to have the evaluation done by a provider which has contracted with the county. Further, although courts impose significant fines and costs for DUI convictions, they have not been willing to collect the fee for the CRN evaluation as part of the court costs after sentencing. Although $100 may not seem like a lot, this can be a substantial amount for someone who is out of work. 

Unlike defendants who are on pre-sentence bail, defendants who are incarcerated will have the CRN conducted from custody without having to pay money up front. Therefore, judges in Philadelphia and other counties have a tendency to revoke the bail of defendants who show up to sentencing without having their CRN evaluation completed. Then, the CRN will be done from custody, and the judge can impose sentence. In cases involving second or subsequent offenses, this may not make a huge difference for the individual defendant as the defendant may be facing ninety days in jail or more and may not spend any additional time in jail. But for defendants who are facing a sentence for a first offense, the difference may be huge as the first offense conviction may not require any jail time at all depending on the tier of the offense. Therefore, a defendant who is facing a probationary sentence could spend weeks in jail waiting for a CRN evaluation and sentencing hearing.  

What happens if I can't afford the CRN evaluation? 

In Dennis, the defendant pleaded guilty to a second offense DUI. The trial court ordered him to obtain a CRN evaluation. When he returned to court without the results of the evaluation, the judge informed him that he could either have a week to come up with the $100 and get the evaluation or go to jail and have it done from the jail. The defendant told the judge that he was not working and could not come up with $100 in a week. The court told the defendant that that was his only option, so the defendant said he would rather go into custody and get it over with. Of course, the judge revoked the defendant's bail, ordered the CRN evaluation to be completed from custody, and eventually sentenced the defendant to the mandatory minimum for the offense. Notably, the judge did find the defendant's statement that he could not come up with $100 to be credible, meaning there was no dispute as to whether the defendant could actually afford the evaluation and simply did not wish to pay. 

The defendant appealed to the Superior Court on the issue of whether the judge could revoke the defendant's bail for failure to obtain the CRN in a case where the defendant cannot afford the evaluation. The Superior Court recognized that the DUI statute requiring the CRN evaluation is silent as to what should happen to a defendant who cannot afford the evaluation, but Pennsylvania law simply does not permit punishment to be imposed on a defendant solely because that person is indigent or poor. Further, the statute allows the probation and parole departments to collect the fines and costs after conviction based on the defendant's ability to pay, and therefore, the costs of the CRN evaluation should be handled in the same manner. Thus, the Superior Court issued a reminder that a trial court may not revoke a defendant's bail for failure to pay a fine or cost in cases where the defendant truly cannot afford to pay.

Goldstein Mehta LLC: Philadelphia DUI Defense Attorneys

Philadelphia Criminal Lawyers for DUI Charges

If you are facing DUI charges, call one of our Philadelphia criminal defense lawyers today. We have handled countless DUI cases, and we know that DUI is far more complicated than it would seem. We know the defenses to DUI charges, and we will fight to protect your driver's license, reputation, and freedom. Call 267-225-2545 for a free DUI defense consultation.  

PA DUI Update: New Ignition Interlock Law Changes Driver’s License Suspensions in DUI Cases

About a year ago, Governor Wolf signed new legislation into law which will change the way a DUI conviction will affect your driver’s license. The new law, which focuses primarily on ignition interlock devices, goes into effect in August. The law requires many DUI offenders to obtain ignition interlock devices for their vehicles even for a first offense DUI conviction. At the same time, it will also allow many people to keep their driver’s licenses who would have otherwise lost their licenses for a year. The intended effect is that the law will prevent DUI offenders from driving drunk while at the same time allowing them to keep their licenses so that they do not lose employment.

Under the previous DUI law, a judge could not order a defendant convicted of DUI to obtain an ignition interlock device for his or her car for a first offense. Further, a first-offense DUI conviction for driving under the influence of alcohol would result in a mandatory one-year license suspension for BACs above .10. Once the law goes into effect, motorists convicted of DUI will have to obtain an ignition interlock for their cars for at least one year. The devices require the driver to blow into a tube that measures the driver’s blood alcohol content (“BAC”). If the driver’s BAC is too high, then the car will not start. However, if the driver submits proof that he or she obtained the ignition interlock device to PennDOT, then the driver will be permitted to drive with an ignition interlock driver’s license instead of having their license suspended for a year. This means that it will be possible to completely avoid the previously-mandatory driver’s license suspension for a first-offense DUI conviction. The law also shortens the mandatory suspension for second and subsequent offenses as it allows the defendant to apply for the ignition interlock license after serving a portion of the license suspension.   

These ignition interlock devices will be expensive. PennDOT has contracted with a number of companies which will install the devices in an offender’s car. The cost to the driver will range from $650 to $1100 for the ignition interlock. However, PennDOT does offer a program for defendants who are unable to afford the device. If the defendant can show that they are below a certain income level, then the state will pay for the ignition interlock. Additionally, if the defendant drives an employer-owned vehicle for work, the defendant may submit the appropriate documentation to PennDOT in order to apply for a waiver of the ignition interlock requirement for the employer-owned vehicle.  

The devices will not be required for first-time offenders who are accepted into the ARD program. Under the terms of the ARD program, the defendant must complete a period of probation, pay fines and costs, attend classes, and the defendant may have his or her driver’s license suspended for up to two month depending on the BAC level at the time of the offense. However, if the defendant successfully completes the program, then the case will be dismissed and the record of the arrest can be expunged.   

The chart below shows the effect of the law on DUI offenders based on the nature of the offense.  

As always, if you are facing DUI charges or any other criminal charges, call 267-225-2545 to speak with an award-winning Philadelphia criminal defense lawyer today.  

What is Recklessly Endangering Another Person?

We just updated our section on misdemeanor crimes in Pennsylvania and the Philadelphia Municipal Court to include a discussion of Recklessly Endangering Another Person. Recklessly Endangering Another Person, often referred to as REAP, is commonly charged along with Simple Assault and Aggravated Assault. Prosecutors typically bring this charge whenever the defendant is alleged to have been involved in any kind of fight or assault. However, there may be defenses to a Reckless Endangerment charge. Click here to learn more.