Case Information
*1 [J-78-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. COMMONWEALTH OF PENNSYLVANIA, : No. 2 WAP 2018
: Appellee : Appeal from the Order of the Superior : Court entered May 26, 2017 at No. : 633 WDA 2016, affirming the Order of v. : the Court of Common Pleas of Erie : County entered April 4, 2016 at No. : CP-25-CR-0003575-2015.
DONALD J. MCCLELLAND, :
: ARGUED: October 24, 2018 Appellant :
OPINION
JUSTICE DOUGHERTY DECIDED: JULY 21, 2020
I. Background
In Commonwealth ex rel. Buchanan v. Verbonitz , 581 A.2d 172 (Pa. 1990)
(plurality) (“ Verbonitz ” ) , a five-Justice majority of this Court held hearsay evidence alone
is insufficient to establish a case at a preliminary hearing. In the present case,
a divided Superior Court recognized the Verbonitz holding, but did not follow it, despite
acknowledging “the facts of Verbonitz are virtually indistinguishable from the case sub
judice .” Commonwealth v. McClelland ,
We accepted review of the following issue:
[W]hether the Superior Court panel failed to properly apply and follow the legal precedent set forth in Commonwealth ex rel. Buchanan v. Verbonitz , 581 A.2d 172, 174-76 (Pa. 1990) in which five (5) Justices held that fundamental due process requires that no adjudication be based solely on hearsay evidence.”
Commonwealth v. McClelland ,
Upon careful review, we hold the Superior Court erred to the extent it concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing. Accordingly, we reverse the Superior Court’s decision in this matter and disapprove the Superior C ourt’s prior decision in Ricker I , which similarly concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing.
A. Verbonitz
In , the defendant (Buchanan) was arrested and charged with statutory rape, corruption of a minor and endangering the welfare of a child. At Buchanan’s preliminary hearing, the seven-year-old female victim did not testify. Over defense objection, the Commonwealth presented the investigating officer who recounted what the victim told him about what Buchanan had allegedly done to her. On the basis of this hearsay alone, District Justice Edward Verbonitz determined a case had been established and boun d the matter over for trial. Buchanan’s subsequent writ of habeas *3 corpus was denied by the trial court, the Superior Court denied Buchanan’s petition for review, and this Court granted allowance of appeal. The issue upon which we granted review was whether hearsay evidence alone is sufficient to establish a prima facie case.
This Court reversed in a plurality decision. ,
Accordingly, although was a plurality decision, a five-Justice majority of the Court concluded the presentation of hearsay evidence, without more, is insufficient to establish a prima facie case at a preliminary hearing. The five-Justice majority also agreed, in determining hearsay alone was insufficient to establish a prima facie case, that fundamental due process requires that no adjudication be based solely on hearsay evidence.” at 174 (Larsen, J., lead opinion); id. at 176 (Flaherty, J., concurring). [1]
B. Pennsylvania Rule of Criminal Procedure 542(E)
Paragraph (E) and the comments thereto were first promulgated by Order of January 27, 2011, and were amended by Order of April 25, 2013. [2] Initially, Paragraph (E) provided:
(E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a case has been established. Hearsay evidence shall be sufficient to establish any element of an offense requiring proof of the ownership of, non-permitted use of, damage to, or value of property.
Pa.R.Crim.P. 542(E) (2011 version). At that time, the comment to the rule explained:
Paragraph (E) was added to the rule in 2011 to clarify 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, *5 hearsay, whether written or oral, may establish the elements enumerated in paragraph (E). That enumeration is not comprehensive and hearsay is admissible to establish other matters as well. The presence of witnesses to establish these elements is not required at the preliminary hearing. See also Rule 1003 concerning preliminary hearings in Philadelphia Municipal Court.
Pa.R.Crim.P. 542(E), cmt. (2011 version).
In 2013, the second sentence of Paragraph (E) was amended, and the rule currently reads as follows:
(E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a 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.
Pa.R.Crim.P. 542(E) (amending language emphasized). Concurrently, the comment to Paragraph (E) was also amended as follows:
Paragraph (E) was added to the rule amended in 2011 2013 to clarify 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 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. enumerated in Paragraph (E). That enumeration is not comprehensive and hearsay is admissible to establish other matters as well. 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.
Pa.R.Crim.P. 542 (E), cmt. (deletions shown by strikethrough, additions in bold).
C. Ricker On July 2, 2014, Pennsylvania State Troopers Michael Trotta and Dana Gingerich were dis patched to David Edward Ricker’s residence to investigate reports of a disturbance. Ricker engaged Trooper Trotta in an exchange of gunfire, witnessed by *6 Trooper Gingerich. Trooper Trotta and Ricker shot each other multiple times, but each survived. Ricker was arrested and charged with attempted murder, assault of a law enforcement officer and aggravated assault. At Ricker’s preliminary hearing, neither trooper testified. Instead, the lead investigator, Douglas A. Kelley, testified regarding his investigation of the charges and played an audiotape of his interview with Trooper Trotta for the court. Ricker objected to the use of this hearsay evidence and requested a continuance to call Trooper Trotta and Trooper Gingerich on his behalf. The court overruled the objection, denied the request for a continuance, and bound the matter over for trial.
Ricker filed a pre-trial writ of habeas corpus . Therein, he argued it was improper
for the court to conclude a prima facie case was established based only on hearsay
evidence. The writ was denied and the Superior Court permitted Ricker’s interlocutory
appeal. The Superior Court subsequently affirmed the order of the trial court. The panel
first noted, although some non-hearsay evidence was presented at Ricker ’s preliminary
hearing, “ none of that evidence was sufficient to establish the elements of the crimes
charged. ” Ricker I ,
*7 Noting its conclusion did not resolve the case, the court considered Ricker’s claim that the preliminary hearing procedure violated his confrontation rights under the United States and Pennsylvania Constitut ions. The court reviewed “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,” and ultimately concluded it could find no “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.” at 362-63. Additionally, the court noted Ricker “has not alleged that his due process rights were infringed[.]” at 355.
Regarding Verbonitz , the court correctly observ ed “a majority of justices agreed that hearsay evidence alone was insufficient to establish a prima facie case at a preliminary hearing.” Id . at 360. The court then noted, “[t]hree justices based their rationale on a constitutional confrontation right, whereas two justices grounded their decision on due process.” Id. A cknowledging “[t] he comment to Rule 542 recognizes the tension between the rule and [,] ” the panel nevertheless determined “is not binding and is valuable only insofar as its rationale can be found persuasive.” at 361.
This Court initially granted allowance of appeal in Ricker to consider whether a defendant does not have a state and federal constitutional right to confront the witness against him at a preliminary hearing” and whether “a case may be proven by the Commonwealth through hearsay evidence alone[? ]” Commonwealth v. Ricker , 135 with Chief Justice Saylor’s salient observation (in the context of discussing confrontation rights), “[d]efining the prima facie standard is not without its complications, particularly given the varying express ions of this Court.” Ricker II , 170 A.3d at 503 (Saylor, C.J., concurring).
A.3d 175 (Pa. 2016) ( per curiam ). Ultimately, however, as noted, this Court dismissed
the appeal as improvidently granted. Ricker II ,
D. McClelland The present appeal arises out of a criminal complaint filed by State Trooper Christopher Wingard, which accused appellant, Donald J. McClelland, of committing indecent assault, indecent exposure and corruption of minors against A.T., an eight-year- old child. Specifically, the complaint provided that, on August 3, 2015, A.T.’s parents reported to State Police that A.T. told them McClelland touched her face with his penis several months earlier. A.T. later provided additional details about the incident during an interview wi th a Children’s Advocacy Center specialist, which le d to the criminal charges. Relevant to the present appeal, the Commonwealth called Trooper Wingard as its sole witness at the preliminary hearing. Specifically, Trooper Wingard explained that he personally witnessed A.T. ’s interview with the child specialist via a video link, and he recounted the contents of the interview to the magistrate, who bound the charges over for trial. McClelland filed a motion seeking a writ of habeas corpus , arguing that allowing the case to proceed to trial based solely on hearsay evidence violated his rights to confrontation and due process under the Pennsylvania and United States Constitutions. The trial court denied the motion, and McClelland filed an interlocutory appeal to the Superior Court, which that court permitted. [4]
The Superior Court affirmed. McClelland ,
Next, noting appellant did not specify whether he was raising a procedural or a substantive due process claim, the court considered each type of due process and found substantive due process to be inapplicable, requiring the claim to be analyzed under the rubric of procedural due process. Specifically, the court emphasized that substantive due process under the Fourteenth Amendment to the United States Constitution “‘r equires state criminal trials to provide defendants with protections implicit in the concept of ordered liberty.’” Id. at 27, quoting Danforth v. Minnesota , 552 U.S. 264, 270 (2008) (emphasis omitted). As the United States Constitution does not require the United States government to hold a preliminary hearing for criminal defendants, the court reasoned the right to a preliminary hearing was not “implicit in the concept of ordered liberty,” and, thus, it concluded substantive due process does not apply. Id . at 28, citing Albright , supra *10 (majority of the Court finding no substantive due process right to be free from criminal prosecution except upon probable cause).
Having determined the “appeal sounds in procedural due process[,]” the court next
examined whether the procedures afforded to appellant in connection with his preliminary
hearing were sufficient. Id . at 29. In so doing, the court noted the government may not
deprive individuals of life, liberty, or property without due process, including, inter alia ,
“‘ adequate notice, the opportunity to be heard, and the chance to defend oneself before
a fair and impartial tribunal having jurisdiction over the case. ’” , quoting Commonwealth
v. Turner ,
The court also addressed appellant ’s argument based upon Justice Flaherty’s
concurring opinion in , which opined the hearsay statement of a police officer
was insufficient by itself to establish a case because it violated notions of due
process. The court interpreted Justice Flaherty’s concurrence as expressing a view that
“due process requires an adversarial probable cause determin ation in order to hold a
person for trial,” which the court characterized as sounding in substantive due process.
McClelland ,
In light of the foregoing, the court concluded appellant’s due process rights were
not violated. However, the court emphasized its decision was “predicated on the facts,
with consideration of [a]ppellant’s ability to cross -examine the primary investigator .” The court noted appellant was able to cross-examine the investigator, who witnessed
A.T.’s interview, re garding the circumstances of that statement, and appellant “was free
to challenge the plausibility and reliability of the hearsay when addressing the question.” The court stressed its decision “does not suggest that the Commonwealth
may satisfy its burden by presenting the testimony of a mouthpiece parroting multiple
levels of rank hearsay[,] ” clarifying “there is no reason to think that magistrates do not
already apply the similar Fourth Amendment probable cause standard used in other
*12
contexts where decisions are made on the basis of hearsay.” Id. at 32-33, citing
Commonwealth v. Smith ,
J udge Strassburger dissented, opining that procedural “due process requires the
Commonwealth to produce something more than just hearsay at a preliminary hearing[.] ”
at 33. (Strassburger, J., dissenting). In reaching this conclusion, Judge Strassburger
first considered the liberty interests at stake and observed that, although the only restraint
on liberty in the instant case was requiring appellant to stand trial, the liberty interest
implicated in other similar cases may be more substantial, such as where a defendant is
held without bail or cannot afford bail. Judge Strassburger contemplated the sufficiency
of the procedure afforded to appellant and agreed squarely with the position advanced in
Justice Flaherty’s concurring opinion in Verbonitz that a “‘ prima facie case cannot be
established at a preliminary hearing solely on the basis of hearsay testimony. ’” at 34,
quoting ,
II. Arguments
A. Appellant
Appellant’s bedrock assertion is that the five-Justice holding — that
hearsay alone is insufficient to establish a case at a preliminary hearing — is
*13
binding precedential authority from this Court, which the Superior Court had neither the
prerogative to ignore nor the power to overrule. Appellant begins by quoting the Verbonitz Court’s statement of the issue upon which it granted review: “‘ The issue presented in this
case is whether hearsay testimony presented at a preliminary hearing regarding a victim’s
account of an alleged criminal incident, which is the sole evidence presented by the
Commonwealth, is sufficient to establish a case. ’” Appellant’s Brief at 9 -10,
quoting Verbonitz ,
Appellant asserts the Verbonitz holding was not dicta but an “‘ actual
determination[] in respect to litigated and necessarily decided questions[. ]’” Id. , quoting
In re L.J. ,
Appellant also claims the Superior Court erred in concluding the holding
was expressly overruled by this Court’s adoption of amended Rule 542(E). Appellant
asserts the Superior Court here and in Ricker incorrectly determined Rule 542(E)
provides that hearsay can be used to prove
all
elements of a prima facie case and thus,
that hearsay evidence alone is sufficient to establish a case. Appellant argues
the rule addresses when hearsay may be admissible, but by its plain terms, does not
address “if and when hearsay evidence , by itself, may be sufficient to establish a prima
facie case. ” at 14-15 (emphasis omitted). Appellant acknowledges the language of
the rule may be ambiguous, see id. at 16, citing Ricker II ,
Appellant lastly maintains the Superior Court here and in Ricker I failed to properly consider and apply the rules of statutory construction in determining that Rule 542 permits all hearsay to be admissible and that hearsay alone is sufficient to establish a case. [5] Among other things, appellant argues the court in both cases erred to the extent it failed to properly interpret the phrase “ [h] earsay as provided by law” in Rule 542(E) as “a limiting principle, referring to other statutes and past decisions.” at 20. According *15 to appellant, [c]learly, the most significant past decision is Verbonitz which specifically held that a case may not be based entirely on hearsay.” Id.
B. Commonwealth
In response, the Commonwealth first asserts the Superior Court lacked jurisdiction
to entertain the interlocutory appeal from the trial court’s denial of a request for habeas
corpus relief because
there we re no “exceptional circumstances” present. Commonwealth’s Brief at 1. The Commonwealth asserts exceptional circumstances
exist, inter alia , “‘ where an issue of great importance is involved. ’” Id. at 2, quoting
Commonwealth v. Reagan ,
The Commonwealth next argues the Superior Court correctly treated Verbonitz as
a non-binding plurality opinion. Quoting Justice Flaherty’s concurring opinion in which he
described Justice Larsen’s lead opinion as a “plurality[,]” the Commonwealth asserts
“[t]he Justices who decided the case agree that it is a plurality and no amount
of legal wrangling and twisting by the [a]ppellant will change that.” at 3, quoting
,
Moreover, in the Commonwealth’s view, appellant’s argument regarding the proper statutory interpretation of the phrase “hearsay as provided by law” is “illogical[;]” i.e. , the phrase does not mean “that hearsay can be used except for the limits placed by Verbonitz . ” Id. at 5. Instead, the Commonwealth asserts, “ the plain meaning of the words is that hearsay, as defined by the Rules of Evidence, can be used to meet the burden . . . at the preliminary hearing.” Id. The Commonwealth further argues any interpretation of Rule 542(E) that incorporates the plurality rationale would directly contradict the rule’s command that “‘Hearsay evidence shall be sufficient to establish any element of an offense.’” Id. , quoting Pa.R.Crim.P. 542(E). The Commonwealth insists, “[e] ither controls or Rule 542([E]) controls; they cannot be reconciled.” Id.
The Commonwealth maintains that , in any event, “[u]sing hearsay alone to prove a case does not violate substantive due process.” It notes that preliminary hearings are not constitutionally mandated; however, it also recognizes that once a state decides to institute suc h a proceeding “then procedural due process must apply.” at 6. The Commonwealth insists appellant received all the process that was due — he received adequate notice, the opportunity to be heard, and the chance to defend himself before a fair and impartial tribunal. Regarding cross-examination, the Commonwealth notes appellant, in fact, cross-examined Trooper Wingard at some length, and notes the language of Pa.R.Crim.P. 542(C) allows only that a defendant . . . may cross-examine witnesses [.]” at 8, quoting Pa.R.Crim.P. 542(C) (emphasis supplied by the Commonwealth). The Commonwealth suggests Rule 542 does not give an accused the right to cross-examine his accusers, but merely provides an accused the right to cross- *17 examine whatever witnesses are presented at the hearing. Finally, the Commonwealth argues that hearsay in the preliminary hearing context is similar to that permitted in the context of seeking a search warrant, and submits the information provided by Trooper Wingard was reliable since his basis of knowledge was probed and it sufficiently supported the reliability of the hearsay evidence.
C. Amici
Amici Curiae , Attorney General Josh Shapiro and the Pennsylvania District
Attorneys Association (“ amici ”) have jointly filed a brief on behalf of the Commonwealth.
They assert the due process clause permits a preliminary hearing judge to hold a case
for court and detain a defendant pending trial on the basis of hearsay evidence alone. In
support, amici first suggest Verbonitz was unmistakably a plurality decision, a point they claim Justices Larsen and Flaherty made “clear” in their separate writings acknowledging
their separate rationales — the “lead opinion” was based on “the constitutional rights of
confrontation and cross-examina tion” while the concurrence “would resolve the case on
due process grounds[.] ” Amici Brief at 5 (internal quotations and citation omitted).
Nevertheless, amici recognize Justices Larsen and Flaherty both cited due process
principles addressed in Commonwealth, Unemployment Compensation Bd. of Review v.
Ceja ,
Amici then pivot to this Court’s authority to “create sensible rules for the use of hearsay evidence at preliminary hearings .” Id. at 10. Acknowledging “the role of hearsay has proved to be a vexing problem in Pennsylvania jurisprudence” that “remains unresolved after decades of litigatio n and rulemaking[,]” and that previous approaches have “too often tried to be quantitative[,]” amici suggest “the question should be addressed qualitatively: what specific kinds of hearsay are reliable enough to move the case forward to trial?” at 10-11. Amici then propose “three types of evidence that are easily defined and offer elements of reliability that justify their admission for preliminary hearing purposes”: 1) audio/video recordings; 2) testimony by an officer who actually participated in the interview of a witness; and 3) expert reports. at 11-14. Amici ask this Court to amend the rules specifically to permit hearsay evidence of this nature.
Amicus Curiae , the Defender Association of Philadelphia (“DAP”) , has filed a brief on behalf of appellant. DAP asserts that both the lead and concurring opinions in opined that hearsay does not constitute legally competent evidence and thus, five Justices agreed hearsay alone, as a matter of due process, cannot be sufficient to make out a prima facie case at a preliminary hearing. DAP argues is precedential under each of three separate doctrines: 1) “result” stare decisis ; 2) *19 “narrowest ground of agreement” stare decisis ; and 3) “false plurality” analysis. DAP’s Brief at 6.
DAP explains “result” stare decisis requires any “ result espoused by a majority of
this Court (no matter how many separate opinions are issued to establish this) should be
controlling in substantially identical cases.” Id . at 8 (emphasis deleted), citing Linda
Novak, Note, The Precedential Value of Supreme Court Plurality Decisions , 80 C OLUM .
L. R EV . 756, 779 (1980); Rappa v. New Castle County ,
DAP further claims is actually a case in which, as a result of Justice
Larsen’s Opinion and Justice Flaherty’s Opinion, a majority of the Court
did
agree both
on the result ( i.e. the Commonwealth cannot establish a case based solely on
hearsay evidence)
and
one common rationale supporting the result ( i.e. due process
protections).” Id . at 9 (emphasis supplied by DAP). DAP argues “[this] circumstance
triggers the more commonly invoked stare decisis ‘ narrowest grounds of agreement ’ doctrine, which treats a case as binding authority on the narrowest of grounds upon which
a majority of the Court agree on both a result and its supporting rati onale.” , citing
Marks v. United States ,
DAP also advances the argument that can be seen as “what some legal commentators refer to as a ‘false plurality’.” at 11, citing Plurality Decisions and Judicial Decision Making , 94 H ARV . L. R EV . 1127 (1981).
The key characteristic that makes plurality decisions troublesome is the presence of at least two distinct rationales that will justify the result reached in a case, neither of which commands a majority. In some cases that are nominally plurality decisions, however, a majority of the Court does support a rationale sufficient to justify the holding. Such cases take the form of plurality decisions only because some justices go on to state additional ideas. Thus, when proposition A is sufficient to justify the holding, and either the plurality opinion supports A while the minority opinion supports both A and B , or the plurality opinion supports A and B while the minority opinion supports A , a ‘false plurality’ decision results. , quoting Plurality Decisions and Judicial Decision Making , 94 H ARV . L. R EV . at 1130.
DAP argues a “false plurality” decision is more akin to a majority decision than a plurality decision, but due to the structure of the opinion, the majority agreement is somewhat hidden. According to DAP, [f]or stare decisis purposes, the structure of a *21 ‘false plurality’ should be pierced,” and its points of agreement should be seen as a majority decision of the Court. Id. at 12. DAP contends Verbonitz is just such a decision because “ five Justices agreed (although spread across two Opinions) that a preliminary hearing case b ased solely on hearsay evidence violates due process.”
Moreover, DAP disagrees with the Superior Court’s suggestion that the continuing validity of Verbonitz has been undercut by the current version of Rule 542(E) and the Comment thereto. First, DAP notes the conclusions of Justices Larsen and Flaherty in Verbonitz are constitutionally-based, not rule-based. In any event, DAP observes the Comment includes specific reference to Verbonitz as “ disapproving ” of “ reliance on hearsay testimony as the sole basis for establishing a case .” at 14, citing Pa.R.Crim.P. 542(E), cmt. Thus, DAP concludes, “ [r]ather than being undercut by Rule [542(E)], ” has been “included in” and “fortified by” the rule.
III. Analysis
Our Court has articulated the following standard and scope of review: Ordinarily,
an appellate court will review a grant or denial of a petition for writ of habeas corpus for
abuse of discretion, but for questions of law, our standard of review is de novo , and our
scope of review is plenary. ” Commonwealth v. Judge ,
A. Precedential Value of Verbonitz
*22
In , the Court determined the Commonwealth failed to establish a prima
facie case at a preliminary hearing. We have little difficulty in stating with certainty that
five Justices in agreed a case cannot be established by hearsay
evidence alone, and the common rationale among those Justices involved due process
considerations. In the lead opinion, styled as the “Opinion of the Court,” Justice Larsen
wrote: “In this case it is clear that the Commonwealth did not meet its burden. As Justice
Flaherty stated in his concurring opinion in [ Ceja ,] ‘fundamental
due process
requires
that no adjudication be based solely on hearsay evidence.’” See Verbonitz , 581 A.2d at
174, quoting Ceja ,
In his concurring opinion, Justice Fla herty opined he “reach[ed] the same conclusion through an analysis somewhat different from that employed by the plurality.” at 175 (Flaherty, J. concurring). Justice Flaherty observed that to “establish a prima *23 facie case, the Commonwealth must produce evidence which presents sufficient probable cause to believe that the person charged has committed the offense stated. ” (internal quotation marks and citation omitted). Noting the United States Supreme Court has “implied in dictum, but has not held, that other rights, such as the right to confrontation and the right to cross-examination, are constitutionally protected at the preliminary hearing[,]” Justice Flaherty opined those considerations “do not answer the question presented to us: whether hearsay testimony, standing alone , may constitute sufficient evidence to establish a prima facie case at a preliminary hearing.” (emphasis in original). Justice Flaherty “ conclude[d] that it cannot[,]” and “deem [ed] this to be a requirement o f due process.” Id. Justice Flaherty then cited his Ceja concurrence for the proposition that “fundamental due process requires that no adjudication be based solely on hearsay.” at 176 (emphasis added). Accordingly, we conclude that although is nominally a plurality decision, it is clear that a five-member majority of the Court held hearsay alone is insufficient to establish a case at a preliminary hearing because to do so violates principles of fundamental due process.
B. The Validity of Following Adoption of Rule 542(E) While the subsequent promulgation of Rule 542(E) in 2011 permitted the use of hearsay in preliminary hearings, appellant challenges the instant panel’s interpretation of the rule as permitting unlimited use of hearsay, as announced in Ricker I , as long as such use is not in the nature of layers of rank hearsay. We begin by observing that we apply the Statutory Construction Act, 1 Pa.C.S. §§1501-1991, when interpreting the Rules of Criminal Procedure. See Pa.R.Crim.P. 101(C) (“To the extent practicable, these rules shall be construed in consonance with the rules of statutory construction.”).
Turning to the interpretation of Rule 542(E) as set forth in Ricker I , we first note the rule, as origi nally set forth in 2011, expressly stated hearsay as provided by law “shall be sufficient to establish any element of an offense requiring proof of the ownership of, non- permitted use of, damage to, or value of property.” See Pa.R.Crim.P 542(E) (2011 vers ion). The rule, by its plain language, was of limited scope. It permitted “ [h]earsay as provided by law” to be “considered” and offered primarily to establish elements of property offenses. The rule, in part, relieved victims of property offenses from attending an accused’s preliminary hearing simply to establish facts about the ownership of, non - permissive use of, damage to, or value of stolen property. Notably, at that time, the rule was in essential harmony with the Verbonitz lead and concurring opinions, which concluded legally competent evidence, and not hearsay alone, was required to establish the elements which must be proven at a preliminary hearing. Thus, initial promulgation of subsection (E), to an extent, formalized a procedure many preliminary hearing courts were already following — allowing some hearsay to prove some elements when other legally competent, non-hearsay evidence was also presented, in accordance with the conclusion of the five justices who opined hearsay evidence alone is not sufficient to establish a case. See, e.g. Commonwealth v. O'Shea-Woomer , 8 Pa.D.&C.5th 178, 184 (Lanc. Co. 2009) (admitting hearsay medical report at preliminary hearing where other non-hearsay evidence was presented to establish case, and noting “hearsay evidence alone may not be the basis for establishing a prima facie case in a preliminary hearing”) (emphasis in original). See also Commonwealth v. Camacho , 2007 Pa.Dist.&Cnty. (Ches. Co.) (granting pre-trial writ of habeas corpus on *25 basis Commonwealth presented hearsay evidence alone, concluding “the Commonwealth has failed to present a case by competent evidence”) .
Rule 542(E), however, was expanded in 2013. Implicit in our consideration of the Superior Court’s decision below is the scope of the expanded rule, and in particular, whether, as the Superior Court held in Ricker I and suggested here, the rule supplants , and permits all elements of all offenses to be established at a preliminary hearing solely on the basis of hearsay evidence. We determine Rule 542(E), though not the model of clarity, does not permit hearsay evidence alone to establish all elements of all crimes for purposes of establishing a prima facie case at a defendant’s prelimin ary hearing.
Initially, although the word “any” is an adjective which can mean “one, some, every,
or all,” T HE A MERICAN H ERITAGE C OLLEGE D ICTIONARY (3d ed. 1993), the precise meaning
of its usage depends largely on the context in which it is employed. See Snyder Bros. v.
Pa. PUC ,
Under Rule 542(E), hearsay shall be sufficient to prove any element. The word
“any” is used to describe an element (or elements) of an offense, including, but not limited
to, those for which proof of ownership of, non-permitted use of, damage to, or value of
property is required. Thus, contextually under the rule, the u nderstanding of “any” is
intended to mean an indefinite or unknown quantity. Nevertheless, although the rule
suggests the quantity of “any” may be indefinite, that quantity is delimited by the phrase
“ [h]earsay
as provided by law
shall be considered” cont ained in the first sentence of
subsection (E). See Rule 542 (E) (“ Hearsay as provided by law shall be considered by
the issuing authority in determining whether a case has been established. ”) (emphasis added). Some meaning must be ascribed to every word in a statute (or rule,
in the present case), and there is a presumption that disfavors interpreting language as
mere surplusage. 1 Pa.C.S. §1922(2) ( “[i]n ascertaining the intention of the General
Assembly in the enactment of a statute,” a court may presume the General Assembly
intends the entire statute to be effective and certain ”); S & H Transp., Inc. v. City of York ,
Hearsay is generally inadmissible in legal proceedings unless it falls under a
recognized exception. Commonwealth v. Ali ,
Nevertheless, appellant’s argument that the phrase “ as provided by law ” is a
limiting principle is also reasonable. Because “ as provided by law ” could alternativel y
mean contingent on ” or “ subject to ” law, the phrase can be a bulwark against reading the
rule as a sweeping pronouncement permitting hearsay alone to prove all elements of all
offenses at a preliminary hearing. Indeed, although the 2013 amendment expanded the
potential offenses for which hearsay shall be permitted, the amended comment
specifically added a comparison citation to Verbonitz, which parenthetically highlighted
the contrasting conclusion disapproving the use of hearsay alone to establish a prima
facie case at a preliminary hearing. See Rossi v. Commonwealth, Bureau of Driver
Licensing ,
As the foregoing analysis reveals, the amended rule does not evince an articulated
intent to overrule or re-affirm it; instead, subsection (E) is intended to allow
*28
some use of hearsay. The plain language of the rule does not state a case
may be established s olely on the basis of hearsay, despite the Superior Court’s contrary
interpretation. Significantly, the rule as written is open to reasonable yet opposing
interpretations. Indeed, g iven that the word “any” and the phrase “as provided by law”
are ambiguous, particularly in light of the comment citing , we now prudentially
apply the “canon of constitutional avoidance,” which instructs “we are bound to interpret
a statute, where possible, in a way that comports with the constitution’s terms.”
Commonwealth v. Veon ,
“The primary reason for the preliminary hearing is to protect an individual’s right
against unlawful arrest and detention.” Commonwealth ex rel. Maisenhelder v. Rundle ,
IV. Conclusion
We reaffirm the validity of . We therefore reverse the Superior Court’s decision below and expressly disapprove Ricker I . The appellant is discharged without prejudice. [11]
Justices Todd, Donohue and Wecht join the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Saylor files a concurring and dissenting opinion.
Justice Baer files a dissenting opinion in which Justice Mundy joins.
Notes
[1] Chief Justice Nix wrote a dissenting opinion, joined by Justice McDermott, opining the right to confront witnesses is not afforded to defendants at the preliminary hearing stage, and to afford Buchanan such a right “conflicts with the overriding interest this Commonwealth has shown in protecting child- witnesses in abuse cases.” , 581 A.2d at 177 (Nix, C.J., dissenting). Justice McDermott also wrote a brief dissenting opinion, stating a preliminary hearing is not a trial in any sense of the word, and the majority’s view would “make the first level of judicial process the final one.” at 177 (McDermott, J., dissenting).
[2] We view Paragraph (E) in the context of Paragraph (D), which provides, “At the preliminary hearing, the issuing authority shall determine from the evidence presented whether there is a case that (1) an offense has been committed and (2) the defendant has committed it.” Pa.R.Crim.P. 542(D). Additionally, Paragraph (C) of the Rule provides a defendant shall be present at a preliminary hearing except as otherwise provided in the rules, “and may: (1) be represented by counsel; (2) cross -examine witnesses and inspect physical evidence offered against the defendant; (3) call witnesses on the defendant’s behalf, other than witnesses to the defendant’s good reputation only; (4) offer evidence on the defendant’s own behalf, and testify; and (5) make written notes of the proceedings, or have counsel do so, or make a stenographic, mechanical or electronic record of the proc eedings.” Pa.R.Crim.P. 542(C).
[3] In a footnote, the court observed “Pennsylvania courts have used the terms ‘ ’
and sufficient ‘probable cause’ interchangeably in the context of modern preliminary
hearings.” Ricker I ,
[4] The Superior Court determined it had jurisdiction because “extraordinary circumstances”
existed to justify accepting the interlocutory appeal in Ricker I , and “the issue prese nted
herein directly addresses an issue explicitly unresolved by Ricker [ I ;]” i.e. , whether
permitting hearsay alone to establish a case at a preliminary hearing violates
notions of due process. McClelland ,
[5] Neither the panel here nor in Ricker I expressly analyzed Rule 542(E) under the
principles of statutory construction and interpretation. The Ricker I court concluded,
nevertheless, that a “plain reading” of the Rule permits hearsay to establish “any material
element of a crime,” and thus, “it follows that, under the rule, [hearsay] is sufficient to meet
all of the elements.” Ricker I ,
[6] The precise language from Ceja quoted by both the Verbontiz lead and concurring
opinions was “‘[f]undamental due process requires that no adjudication be based solely
on hearsay evidence.’” , 581 A.2d at 174 (Larsen, J., lead opinion), quoting
Ceja ,
[7] DAP also relies on legal commentary to explain the doctrine: It is easy to isolate the narrowest possible ground in those situations where the plurality [lead opinion] relies on rationale A in support for the result, and the concurrence clearly agrees on the applicability of that rationale, but also goes a step further and espouses rationale B as well. In such cases the plurality rationale may be fairly regarded as the narrowest ground embodying the reasoning of a majority of the Court, and that rationale should be binding on lower courts for future cases. DAP’s Brief at 10 n.7, quoting Novak, supra at 763.
[8] An order denying or granting a writ of habeas corpus is interlocutory. See e.g.
Commonwealth v. LaBelle ,
[9] That grave and doubtful constitutional concerns are evident is beyond peradventure; however, given the limited question on which we granted review, any discussion herein of due process, confrontation rights and whether the probable cause and prima facie standards are synonymous, would, of necessity, be dicta . Moreover, notwithstanding Chief Justice Saylor’s criticisms of the due process analysis in , he agrees this case is an inappropriate vehicle for a substantive discussion of the issue and the Chief Justice would thus simply affirm the Superior Court. See Concurring and Dissenting Op. at 2. We reverse the Superior Court, however, on the issue actually raised in this appeal, which implicates that court’s prerogative to essentially ignore a prior decision from this Court which clearly articulates hearsay alone is insufficient to establish a case, and where a majority of the justices relied to some degree on due process principles to reach that conclusion.
[10] Despite Justice Baer’s contrary view in dissent, it is abundantly clear the sole issue in
Verbonitz was whether hearsay alone is sufficient to establish a prima facie case. It is
equally and perfectly clear, a five-member majority of that Court held hearsay alone is
insufficient to establish a case. Moreover, as the dissent acknowledges, those
five justices all invoked a due process rationale by quoting the exact same language from
Ceja ,
[11] Dismissal of charges and discharge of the accused for failure to establish a case at the preliminary hearing is an interlocutory order, see LaBelle ,