Petition for Writ of Certiorari — Tyler Herndon, Petitioner v. Pennsylvania

Supreme Court briefJul 2, 2020

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No. __________________

IN THE

SUPREME COURT OF THE UNITED STATES

TYLER HERNDON

Petitioner

COMMONWEALTH OF PENNSYLVANIA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF

PENNSYLVANIA

PETITION FOR A WRIT OF CERTIORARI

MATTHEW NESS, ESQ.

Worgul, Sarna & Ness,

Criminal Defense Attorneys, LLC

429 Fourth Avenue,

Pittsburgh, PA 15219

Office: (412) 862-0347

Fax: (412) 402-5000

mattness@mvwlaw.com

*Counsel of Record

Counsel for Petitioner

QUESTIONS PRESENTED

A. Whether the Pennsylvania Supreme Court’s refusal to review the Trial Court’s

Denial Order on a Petition for Habeas Corpus Relief, in a case where adjudication

was based solely on hearsay evidence, is immediately appealable to the United

States Supreme Court under the Collateral Order Doctrine.

B. Whether Pennsylvania Rule of Criminal Procedure 542(E) violates a defendant’s

fundamental right to Due Process, in that it directly conflicts with this Court’s

decision in Gerstein v. Pugh, 420 U.S. 103, 119 (1975), which held that “the

determination of probable cause must be accompanied by the full panoply of

adversary safeguards – counsel, confrontation, cross-examination, and

compulsory process for witnesses.”

C. Whether Pennsylvania Rule of Criminal Procedure 542(E) denies a defendant his

Sixth Amendment Right to Counsel, despite counsel’s physical presence at a

preliminary hearing, when counsel is denied the ability to meaningfully crossexamine witnesses with first-hand knowledge of the evidence against the accused

and where the Commonwealth relies solely upon hearsay evidence to establish a

prima facie case.

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................

TABLE OF AUTHORITIES ............................................................................

iii

OPINIONS BELOW ........................................................................................

JURISDICTION...............................................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .........

STATEMENT OF THE CASE ........................................................................

SUMMARY OF THE ARGUMENT ................................................................

REASONS FOR GRANTING THE WRIT ......................................................

A. THE PENNSYLVANIA SUPREME COURT’S REFUSAL

TO REVIEW THE DENIAL ORDER ON MR. HERNDON’S

PETITION FOR HABEAS RELIEF IS IMMEDIATELY

APPEALABLE TO THIS COURT UNDER THE

COLLATERAL ORDER DOCTRINE ..............................................

B. PENNSYLVANIA RULE OF CRIMINAL PROCEDURE

542(E) VIOLATES THE UNITED STATES CONSTITUTION’S

FIFTH AMENDMENT RIGHT TO DUE PROCESS WHEN

THE COMMONWEALTH ESTABLISHES PRIMA FACIE

EVIDENCE SOLELY BASED ON HEARSAY TESTIMONY .......

C. PENNSYLVANIA RULE OF CRIMINAL PROCEDURE

542(E) DENIES A DEFENDANT THE FUNDAMENTAL

RIGHT TO COUNSEL, DESPITE COUNSEL’S PHYSICAL

PRESENCE AT A PRELIMINARY HEARING, WHEN

COUNSELIS DENIED THE ABILITY TO MEANINGFULLY

CROSS-EXAMINE WITNESSES WITH FIRST-HAND

KNOWLEDGE OF THE EVIDENCE AGAINST THE ACCUSED,

IN VIOLATION OF THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION ...............................................

CONCLUSION.................................................................................................

APPENDIX.......................................................................................................

A. PETITION FOR HABEAS CORPUS ...............................................

B. PRELIMINARY HEARING TRANSCRIPT ...................................

17A

C. TRIAL COURT OPINION REGARDING

PETITION FOR HABEAS CORPUS RELIEF ...............................

47A

D. TRIAL COURT ORDER ....................................................................

51A

E. PETITION FOR ALLOWANCE TO APPEAL TO THE

SUPERIOR COURT OF PENNSYLVANIA ....................................

53A

F. DENIAL OF PETITION FOR ALLOWANCE TO APPEAL .........

77A

G. PETITION FOR ALLOCATUR TO THE

SUPREME COURT OF PENNSYLVANIA .....................................

79A

H. DENIAL OF PETITION FOR ALLOCATUR .................................

107A

CERTIFICATE OF COMPLIANCE ................................................................

109A

PROOF OF SERVICE .....................................................................................

110A

iii

TABLE OF AUTHORITIES

Cases

Abney v. United States, 431 U.S. 651 (1977) ..................................................

Coleman v. Alabama, 399 U.S. 1 (1970) ......................................................... 6, 8, 9

Commonwealth ex rel. Buchanan v. Verbonitz,

581 A.2d 172 (Pa. 1990) ...................................................................................

1, 7

Commonwealth v. Ricker, 170 A.3d 494 (Pa. 2017) ........................................

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ......................................

3, 4

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) .................

Gerstein v. Pugh, 420 U.S. 103 (1975) ............................................................ i, 3, 6, 8

Gideon v. Wainwright, 372 U.S. 335 (1963)....................................................

Johnson v. Jones, 515 U.S. 304 (1995) ............................................................

5, 6

Los Lobos Renewable Power, L.L.C. v. Americulture, Inc.,

885 F.3d 659 (10th Cir. 2018) ...........................................................................

Mitchell v. Forsyth, 472 U.S. 511 (1985) ......................................................... 4, 5, 6

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) ................................

Powell v. Alabama, 287 U.S. 45 (1935) ........................................................... 3, 6, 8

Swint v. Chambers County Comm’n, 514 U.S. 35 (1995) ...............................

United States v. Wade, 388 U.S. 218 (1967) ...................................................

3, 8

Will v. Hallock, 546 U.S. 345 (2006) ...............................................................

5, 6

Constitution and Statutes

Constitutional Provisions

U.S. Const. amend. V. ......................................................................................

U.S. Const. amend. VI .....................................................................................

Statutory Provisions

Pa.R.Cr.P. 542(C) ............................................................................................. iv, v, 7

Pa.R.Cr.P. 542(E) ............................................................................................. passim

CITATION OF OPINIONS BELOW

The opinion of the Pennsylvania Supreme Court is reported as Commonwealth

v. Herndon, 7 WM 2020 (Feb. 7, 2020); petition for allowance of appeal, denied (Jun.

2, 2020). The opinion of the Pennsylvania Superior Court is reported as

Commonwealth v. Herndon, 153 WDM 2019 (Nov. 18, 2019); petition for permission

to appeal denied (Jan. 8, 2020) (per curiam). The opinion of the Mercer County Court

of Common Pleas is reported as Commonwealth v. Herndon, CP-43-CR-00569-2019;

order denying petition for habeas corpus (Oct. 16, 2019).

STATEMENT OF JURISDICTION

The Supreme Court of Pennsylvania entered its order on June 2, 2020. This

Court has jurisdiction, this petition being timely, under the collateral order exception

(“Collateral Order Doctrine”) to 28 U.S.C. § 1291.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides, in relevant

part:

No person shall . . . be deprived of life, liberty, or property, without due

process of law.

U.S. Const. amend. V.

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

U.S. Const. amend. VI.

Pennsylvania Rule of Criminal Procedure 542(C) provides:

The defendant shall be present at any preliminary hearing except as

provided in these rules, and may: be represented by counsel; cross-examine

witnesses and inspect physical evidence offered against the defendant; call

witnesses on the defendant's behalf, other than witnesses to the defendant's

good reputation only; offer evidence on the defendant's own behalf, and

testify; and make written notes of the proceedings, or have counsel do so, or

make a stenographic, mechanical, or electronic record of the proceedings.

Pa.R.Crim.P. § 542(C).

Pennsylvania Rule of Criminal Procedure 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.

Pa.R.Crim.P. § 542(E).

STATEMENT OF THE CASE

On or about March 18, 2019, Tyler Herndon (“Mr. Herndon”) was charged with

one (1) count of Rape Forcible Compulsion, 18 Pa. C.S.A § 3121(A)(1), one (1) count of

Involuntary Deviate Sexual Intercourse Forcible Compulsion, 18 Pa. C.S.A §

3123(A)(1), one (1) count of Aggravated Assault, 18 Pa. C.S.A § 2702(A)(1), one (1)

count of Strangulation, 18 Pa. C.S.A § 2718(A)(1), one (1) count of Aggravated

Indecent Assault Forcible Compulsion, 18 Pa. C.S.A § 3125(A)(5), one (1) count of

Unlawful Restraint Serious Bodily Injury, 18 Pa. C.S.A § 2902(A)(1), one (1) count of

Indecent Assault Forcible Compulsion, 18 Pa. C.S.A § 3126(A)(2), one (1) count of

Indecent Assault without Consent of Other, 18 Pa. C.S.A § 3126(A)(1), one (1) count

of Simple Assault, 18 Pa. C.S.A § 2701(A)(1), and one (1) count of Recklessly

Endangering Another Person, 18 Pa. C.S.A § 2705.

A preliminary hearing was held before the Honorable Magisterial District

Judge D. Neil McEwen on or about March 27, 2019. At the preliminary hearing, Mr.

Herndon’s charges were held over for trial on evidence that was exclusively hearsay

in nature. The alleged victim did not testify. Rather, the Commonwealth, in reliance

on Pennsylvania Rule of Criminal Procedure 542(E), presented its evidence solely

through the testimony of Pennsylvania State Trooper Zachary Julian (“Tpr. Julian”)

the only witness, which constitutes hearsay evidence. At the hearing, Tpr. Julian

testified that on or about March 17, 2019, he was dispatched to the Grove City

Medical Center, in Grove City, Pennsylvania for a reported sexual assault involving

a woman later identified as Tanya Mae Osborn (“Ms. Osborn”).

Tpr. Julian testified that in response to his questions Ms. Osborn had said she

had gone to Mr. Herndon’s residence to do laundry when Mr. Herndon proceeded to

rape her. Tpr. Julian also indicated Ms. Osborn had told him that when she was in

the basement of Mr. Herndon’s residence, the lights were turned off and she had been

pushed face down into the bed.

At that point, according to Tpr. Julian, Ms. Osborn said Mr. Herndon had “put

some type of strap across her mouth and nose…He tied her wrists and legs with an

unknown item to her…essentially connecting her wrists to her ankles.” Ms. Osborn

then indicated to Tpr. Julian that Mr. Herndon had inserted an “unknown item to

her inside of her vagina.” Tpr. Julian further testified Ms. Osborn indicated Mr.

Herndon penetrated her vagina without her consent. At some point during the

interaction, Tpr. Julian indicated Ms. Osborn said Mr. Herndon “choked her out with

just his hands.”

Mr. Herndon, through defense counsel, objected to the Commonwealth’s use of

hearsay, through Rule 542(E), contending that Rule 542(E) directly conflicts with the

Pennsylvania Supreme Court’s decision in Commonwealth ex rel. Buchanan v.

Verbonitz, 581 A.2d 172, 174 (Pa. 1990), and violated his fundamental right to Due

Process. Defense counsel further objected contending that the court’s reliance on

Rule 542(E) effectively denies Mr. Herndon his Right to Counsel. Magisterial District

Judge McEwen overruled both objections, and held all charges for the Court of

Common Pleas of Mercer County. Subsequently, on or about June 24, 2019, Mr.

Herndon, through defense counsel, filed a Petition for Habeas Corpus challenging

Magisterial District Judge McEwen’s decision to bind the matter over to the Court of

Common Pleas.

On or about October 16, 2019, a hearing was held before the Honorable Robert

G. Yeatts, President Judge, of the Court of Common Pleas of Mercer County. At this

hearing, the parties stipulated to the transcript of the preliminary hearing, and to

Commonwealth’s Exhibit 1, a DNA Analysis Report, dated July 23, 2019, from the

Pennsylvania State Police Bureau of Forensic Services. The Commonwealth argued

it did not rely solely upon hearsay evidence to establish a prima facie case. Mr.

Herndon, through defense counsel, countered that the Commonwealth had relied

solely on hearsay, in violation of his right to Due Process. Mr. Herndon also requested

that if the trial court were to deny his Petition for Habeas Corpus, that the court

include the statement prescribed by 42 Pa. C.S.A. § 702(B) and Pennsylvania Rule of

Appellate Procedure 1311(B).

On or about October 16, 2019, President Judge Yeatts issued an Opinion and

Order of Court denying Mr. Herndon’s Petition for Habeas Corpus relief. The trial

court did, however, include the statement prescribed by 42 Pa. C.S.A. § 702(B). On

October 18, 2019, the Commonwealth filed a Motion to Reconsider. On November 12,

2019, Mr. Herndon filed his Response to the Commonwealth’s Motion to Reconsider.

On November 20, 2019, President Judge Yeatts denied the Commonwealth’s Motion

to Reconsider.

On or about November 18, 2019, Mr. Herndon filed a Petition for Permission

to Appeal with the Superior Court. On or about December 2, 2019, the

Commonwealth filed an Answer to Mr. Herndon’s Petition for Permission to Appeal.

On or about January 8, 2020, the Superior Court denied Mr. Herndon’s Petition. On

or about February 7, 2020, Mr. Herndon filed a Petition for Permission to Appeal with

the Supreme Court. On or about February 14, 2020, the Commonwealth filed an

Answer to Mr. Herndon’s Petition for Permission to Appeal. On or about June 2, 2020,

the Supreme Court denied Mr. Herndon’s Petition.

SUMMARY OF THE ARGUMENT

This Court has jurisdiction to review the Denial Order for Mr. Herndon’s

Petition for Habeas Relief under the Collateral Order Doctrine exception to 28 U.S.C.

§ 1291. Furthermore, Mr. Herndon’s Petition for Habeas Relief was incorrectly denied

given that Pennsylvania Rule of Criminal Procedure 542(E) unconstitutionally

deprives Mr. Herndon of his rights to Due Process and Counsel.

This Court has jurisdiction to review the Denial Order for Mr. Herndon’s

Petition for Habeas Relief because the Collateral Order Doctrine offers an exception

to the final decision requirement of 28 U.S.C. § 1291 where an interlocutory

judgement (1) conclusively determines a disputed question, (2) resolves an important

issue separate from the merits of the underlying action, and (3) is effectively

unreviewable on appeal. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

Because (1) review of the Denial Order after trial would come too late to vindicate the

purpose of the Habeas Petition (avoiding unlawful imprisonment or detention), (2)

this Court would not have to settle a factual dispute to determine whether the Denial

Order was appropriately given, and (3) the Denial Order would become a moot issue

on appeal, Mr. Herndon’s case meets each of the three elements required for

jurisdiction under the Collateral Order Doctrine.

As such, Mr. Herndon argues that the Denial Order was incorrectly given

because Pennsylvania Rule of Criminal Procedure 542(E) deprives him of his

constitutional right to Due Process. While preliminary hearings are established by

the rules and statutes of individual states, this Court has held that they must adhere

to guiding constitutional principles, for example “the determination of probable cause

must be accompanied by the full panoply of adversary safeguards – counsel,

confrontation, cross-examination, and compulsory process for witnesses.” Gerstein,

420 U.S. at 119. Because Rule 542(E) allows adjudication to be based solely on

hearsay evidence and, as in Mr. Herndon’s case, reduces the preliminary hearing to

a mere functionless formality, the Rule directly contradicts this Court’s view of

constitutional rights at preliminary hearings.

Similarly, Rule 542(E) unconstitutionally inhibits Mr. Herndon’s Right to

Counsel in light of the fact that this Court has held that “the principle of Powell v.

Alabama and succeeding cases requires that we scrutinize any pretrial confrontation

of the accused to determine whether the presence of his counsel is necessary to

preserve the defendant's basic right to a fair trial as affected by his right

meaningfully to cross-examine the witnesses against him and to have effective

assistance of counsel at the trial itself.” United States v. Wade, 388 U.S. 218, 227

(1967) (emphasis added). Since there were no witnesses at Mr. Herndon’s preliminary

hearing who had any first-hand knowledge of his alleged criminal act, Mr. Herndon

was deprived of any chance to engage in meaningful cross-examination.

Thus, this Court should find that they have jurisdiction to review Mr.

Herndon’s Denial Order under the Collateral Order Doctrine and, subsequently,

should find that the Order was incorrectly given in that it violates Mr. Herndon’s

constitutional rights to Due Process and Counsel.

REASONS FOR GRANTING THE WRIT

A. THE PENNSYLVANIA SUPREME COURT’S REFUSAL TO REVIEW THE

DENIAL ORDER ON MR. HERNDON’S PETITION FOR HABEAS RELIEF

IS IMMEDIATELY APPEALABLE TO THIS COURT UNDER THE

COLLATERAL ORDER DOCTRINE.

Courts of appeals typically only have jurisdiction over final decisions of district

courts. 28 U.S.C. § 1291. However, this Court has held that “final decisions” can

encompass both judgments that terminate actions as well as “a ‘small class’ of

prejudgment orders that are ‘collateral to’ an action’s merits and ‘too important’ to be

denied immediate review.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 100

(2009). The latter of these judgments fall under the Collateral Order Doctrine.

To qualify for an exemption from the final decision rule under the Collateral

Order Doctrine, interlocutory judgments must meet three elements. Coopers &

Lybrand, 437 U.S. at 468. These elements are as follows: the judgement must (1)

conclusively determine the disputed question, (2) resolve an important issue separate

from the merits of the underlying action, and (3) be effectively unreviewable on

appeal. Id. The party asserting jurisdiction under the Collateral Order Doctrine bears

the burden on each element. Los Lobos Renewable Power, L.L.C. v. Americulture, Inc.,

885 F.3d 659, 664 (10th Cir. 2018).

With respect to the first element, conclusive determination, the Court

considers whether appellate review is needed on a certain issue in order to avoid some

harm, usually where “there are simply no further steps that can be taken” to avoid

that harm. Abney v. U.S., 431 U.S. 651, 659 (1977). In Mitchell, for example, the Court

found that the denial of a defendant’s motion for summary judgment on the issue of

qualified immunity was “conclusive” because review after trial would have come too

late to vindicate the purpose of the issue: protecting public officials from liability and

the need to stand trial. Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). Since the Denial

Order settled the question of the defendant’s immunity from suit, the Court found

that it satisfied the conclusivity element of the Collateral Order Doctrine. Id.

Assessing the second element, whether the issue is separate from the merits of

the action, this Court has held that the issue may, to an extent, be “practically

intertwined with the merits,” so long as it “raises a question that is significantly

different from the questions” presented in the underlying claim on the merits.

Johnson v. Jones, 515 U.S. 304, 314 (1995). Phrased differently, this Court has held

that separability exists where the issue sought to be appealed is conceptually

distinct from the merits of the underlying claim. Mitchell, 472 U.S. at 527 (emphasis

added). This typically occurs where the issue is a question of law. Id. at 528. To

illustrate, the Court in Mitchell concluded that the denial of summary judgment on

the qualified immunity issue was “conceptually distinct from the merits of the

plaintiff’s claim that his rights had been violated,” largely because the appellate court

reviewing the denial of the defendant’s immunity claim did “not need to consider the

correctness of the plaintiff’s version of the facts” in order to decide that issue. Id. It

merely needed to determine whether the defendant’s conduct, in light of the agreedupon facts, was proscribed by the law or violated the law in some way. Id.

Finally, this Court has held that the last element, whether the issue will be

effectively unreviewable, is satisfied where post-judgment appeal would be moot. See

Swint v. Chambers County Comm'n, 514 U.S. 35, 42 (1995). If the appeal is not

mooted, the requirement has been satisfied where delay “would imperil a substantial

public interest” or “some particular value of a high order.” Will v. Hallock, 546 U.S.

345, 352–53 (2006). To determine this, the Court focuses on the “entire category to

which a claim belongs,” without regard to the whether the litigation at hand might

be speeded by a prompt appellate decision. Digital Equip. Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 868 (1994). The Mitchell Court demonstrated that effective

unreviewability was present where the district court conclusively denied a

defendant’s motion for summary judgment with respect to qualified immunity

because “there [would] be nothing in the subsequent course of the proceedings that

[could] alter the court’s conclusion that a defendant is not immune.” Mitchell, 472

U.S. at 527.

Mr. Herndon’s case meets each of the three elements warranting an immediate

appeal under the Collateral Order Doctrine. The issue in Mr. Herndon’s case relates

to whether Mr. Herndon’s Petition for Habeas Corpus Relief was appropriate in a

case where adjudication was based solely on hearsay evidence.

With respect to the first element, conclusive determination, appellate review

of the Denial Order on Habeas Corpus Relief in Mr. Herndon’s case is necessary to

avoid a significant harm, namely the harm related to Mr. Herndon’s constitutional

rights to Due Process and Counsel. Similar to the circumstances in Mitchell, any

review after trial in Mr. Herndon’s case would come too late to vindicate the purpose

for which his Petition for Habeas Corpus Relief was initially filed: the avoidance of

unlawful imprisonment or detention. See Mitchell, 472 U.S. at 527. Without

immediate review of the denial of Habeas Corpus Relief, Mr. Herndon will be forced

to face trial. Because no further steps can be taken to avoid trial without immediate

appellate review of the Denial Order, that Denial Order is conclusive in accordance

with the first element of the Collateral Order Doctrine.

Considering the second element, whether the issue is conceptually distinct

from the underlying merits, the issue in Mr. Herndon’s case of whether Habeas

Corpus Relief was appropriately denied is a question of law that this Court has

previously recognized as satisfying the element of separability. See Mitchell, 472 U.S.

at 528. Much like the Court in Mitchell, this Court would not need to resolve a factual

dispute in order to decide whether or not the Denial Order was appropriate. Id. The

Court would merely need to address the question of whether, in light of the agreedupon facts, Habeas Corpus Relief was appropriate in a case where adjudication was

based solely on hearsay evidence. Aside from the fact that Mr. Herndon’s case

involves a question of law, the Habeas issue also “raises a question that is

significantly different from the questions” in the underlying merits of his case, which

namely involve the nature of the charges against Mr. Herndon, not his constitutional

rights as a defendant. See Johnson, 515 U.S. at 314.

Finally, with respect to the effective unreviewability of the issue, it is clear that

the issue of whether or not the Denial Order on Mr. Herndon’s Habeas Petition was

appropriate will become moot without immediate appellate review. As previously

noted, any review of the Denial Order after trial will counteract the purpose for which

the Petition for Habeas Relief was filed: preventing unlawful imprisonment or

detention. Aside from mootness, Mr. Herndon’s issue is also one “imperiling a value

of high order,” namely the value of a defendant’s constitutional rights, which our

justice system works diligently to protect. See Hallock, 546 U.S. at 352–53.

Because Mr. Herndon’s case meets each of the three elements of the Collateral

Order Doctrine, this Court has jurisdiction to immediately review the denial of his

Petition for Habeas Corpus Relief.

B. PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 542(E) VIOLATES

THE UNITED STATES CONSTITUTION’S FIFTH AMENDMENT RIGHT TO

DUE PROCESS WHEN THE COMMONWEALTH ESTABLISHES PRIMA

FACIE EVIDENCE SOLELY BASED ON HEARSAY TESTIMONY.

Preliminary hearings, though established by the rules and statues of the

individual states, must, when implemented, comport with the basic values of the

United States Constitution, such as the right to counsel and the right to confront

witnesses. See Gerstein, 420 U.S. at 122 (holding that “as a matter of constitutional

principle… formalities and safeguards designed for trial must also be employed in

making the Fourth Amendment determination of probable cause” at a preliminary

hearing); Coleman v. Alabama, 399 U.S. 1, 3 (1970) (arguing that “Alabama’s failure

to provide [petitioners] with appointed counsel at the [preliminary] hearing therefore

unconstitutionally denied them the assistance of counsel”); Powell v. Alabama, 287

U.S. 45, 69 (1935) (noting that a person accused of crime “requires the guiding hand

of counsel at every step in the proceedings against him”).

With respect to the specific laws of Pennsylvania on this matter, Pennsylvania

Rule of Criminal Procedure 542(C) explicitly establishes a statutory right to be

present at any preliminary hearing, to be represented by counsel, to cross-examine

witnesses and inspect physical evidence, to call witnesses on the defendant’s behalf,

and to offer evidence on the defendant’s own behalf. Moreover, the Pennsylvania

Supreme Court has held that “[f]undamental Due Process requires that no

adjudication be based solely on hearsay evidence.” Verbonitz, 581 A.2d at 174. As

such, “[t]he testimony of a witness as to what a third party told him about an alleged

criminal act is clearly inadmissible hearsay.” Id. Due Process instead “requires the

conclusion that the hearsay statement of [a] police officer was insufficient, vel non, to

establish a prima facie case against appellant.” Id. at 176. Verbonitz, therefore, is a

majority opinion in Pennsylvania as it pertains to the Due Process prohibition against

using only hearsay evidence to establish a prima facie case at a preliminary hearing.

See Commonwealth v. Ricker, 170 A.3d 494, 517 (Pa. 2017) (“Far from lacking

persuasive value, the Verbonitz opinions should together be recognized as a holding

that due process prohibits the Commonwealth from depriving a person of liberty upon

nothing more than inadmissible hearsay”) (Wecht, J., dissenting statement).

Resultingly, the Pennsylvania Trial Court’s denial of Mr. Herndon’s Petition

for Habeas Corpus Relief and the Pennsylvania Superior and Supreme Courts’

refusals to review the Denial Order directly conflict with both this Court’s established

precedent on constitutional rights at preliminary hearings and the prior majority

decision of the Pennsylvania Supreme Court on this issue. For a prima facie case to

rest upon nothing more than inadmissible hearsay is to offend traditional notions of

Due Process. At such an illusory proceeding, the interests, purposes, rights and

benefits of a preliminary hearing are stripped of substance or meaning. Mr. Herndon

was deprived of the ability to gain a fair assessment of the strength of the case against

him; was stripped of a fair opportunity to test the Commonwealth’s case via his right

to cross examination, to direct his pretrial investigation, to exercise his constitutional

right to an attorney in a meaningful fashion (as discussed in-depth below), and to

consider intelligently his options to challenge the seizure or the acquisition of

evidence in a suppression motion, or to plead guilty or proceed to trial. The practical

effect of Rule 542(E), in the instant matter, was to reduce Mr. Herndon’s preliminary

hearing to a mere functionless formality.

C. PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 542(E) DENIES A

DEFENDANT THE FUNDAMENTAL RIGHT TO COUNSEL, DESPITE

COUNSEL’S PHYSICAL PRESENCE AT A PRELIMINARY HEARING,

WHEN COUNSEL IS DENIED THE ABILITY TO MEANINGFULLY CROSSEXAMINE WITNESSES WITH FIRST-HAND KNOWLEDGE OF THE

EVIDENCE AGAINST THE ACCUSED, IN VIOLATION OF THE SIXTH

AMENDMENT TO THE UNITED STATES CONSTITUTION.

The Sixth Amendment Right to Counsel is a fundamental protection afforded

by the United States Constitution and one that this Court has recognized through its

holdings in a number of cases. This Court recognized counsel’s integral role in all

criminal proceedings in Gideon, held that the Right to Counsel attaches at a

preliminary hearing, when states employ such hearings, in Coleman, and implied

that a right to effective cross-examination is constitutionally protected at a

preliminary hearing in Gerstein. See Gerstein, 420 U.S. at 119 (“the determination of

probable cause must be accompanied by the full panoply of adversary safeguards –

counsel, confrontation, cross-examination, and compulsory process for witnesses”);

Coleman, 399 U.S. at 9; Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963).

This Court has held that the Right to Counsel is not merely limited to the

presence of counsel at trial. Powell, 287 U.S. at 69. As stated in Wade, “the principle

of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial

confrontation of the accused to determine whether the presence of his counsel is

necessary to preserve the defendant's basic right to a fair trial as affected by his right

meaningfully to cross-examine the witnesses against him and to have effective

assistance of counsel at the trial itself.” Wade, 388 U.S. at 227 (emphasis added).

This Court has very clearly outlined four meaningful ways that counsel may

effectively assist an accused at a preliminary hearing:

“First, the lawyer's skilled examination and cross-examination of

witnesses may expose fatal weaknesses in the State's case that

may lead the magistrate to refuse to bind the accused over.

Second, in any event, the skilled interrogation of witnesses by an

experienced lawyer can fashion a vital impeachment tool for use

in cross-examination of the State's witnesses at the trial, or

preserve testimony favorable to the accused of a witness who does

not appear at the trial.

Third, trained counsel can more effectively discover the case the

State has against his client and make possible the preparation of

a proper defense to meet that case at the trial.

Fourth, counsel can also be influential at the preliminary hearing

in making effective arguments for the accused on such matters as

the necessity for an early psychiatric examination or bail.”

Coleman, 399 U.S. at 9.

At Mr. Herndon’s preliminary hearing, there were no witnesses called who

possessed first-hand knowledge of any criminal act committed by Mr. Herndon. The

testimony of Tpr. Julian, as it related to the charges levied against Mr. Herndon, was

unequivocal hearsay. The bulk of his testimony simply recounted the statements

made to him by the alleged victim. In fact, on cross examination, Tpr. Julian

indicated that, among other things, it was unknown to him whether the contact

between Mr. Herndon and the victim was even consensual. This is not surprising,

however, because Tpr. Julian did not and does not possess first-hand

knowledge as to whether a crime was actually committed. As a result, the

cross-examination of Tpr. Julian cannot be deemed effective or meaningful because

cross-examining him could not (1) expose any fatal weakness in the Commonwealth’s

case, (2) be used as an impeachment tool at trial, or (3) help trained counsel more

effectively discover the Commonwealth’s case against the defendant and prepare a

case for trial.

CONCLUSION

Because the issue in Mr. Herndon’s case, whether a Denial Order for a Petition

for Habeas Relief was appropriately granted, meets all three elements of the

Collateral Order Doctrine, this Court has jurisdiction to review that Denial Order.

Moreover, the Denial Order was inappropriately given in Mr. Herndon’s case because

in relying solely on hearsay evidence, Mr. Herndon’s constitutional rights to Due

Process and Counsel were violated.

ResPect9 Sub

Matthew Ness

Coufnset for Petitioner

APPENDIX

Table of Contents

APPENDIX .....................................................................................................

A. Petition for Habeas Corpus ..................................................................

B. Preliminary Hearing Transcript ..........................................................

17A

C. Trial Court Opinion Regarding

Petition for Habeas Corpus Relief ........................................................

47A

D. Trial Court Order ..................................................................................

51A

E. Petition for Allowance to Appeal to the

Superior Court of Pennsylvania ...........................................................

53A

F. Denial of Petition for Allowance to Appeal ..........................................

77A

G. Petition for Allocatur to the

Supreme Court of Pennsylvania ...........................................................

79A

H. Denial of Petition for Allocatur ............................................................

107A

APPENDIX A

(Petition for Writ of Habeas Corpus Filed in the Court of Common Pleas Of Mercer

County, Pennsylvania)

4WY

LJ IN

tfCER Cot’

2OI9JUN21, .HIO:’

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY,

CLE1d

PENNSYLVANIA

COMMONWEALTH Of PENNSYLVANIA,

CRIMINAL DIVISION

Docket No.

OTN:

CP-43-CR-569-2019

X245$11-6

TYLER HERNDON,

PETITION FOR WRIT OF HABEAS

CORPUS

DEFENDANT

Before the Honorable

JOHN C. REED, SENIOR JUDGE

Filed on Behalf of:

Defendant, Tyler Herndon

Counsel of Record:

Matthew Ness, Esquire

PA I.D. No. 208026

WORGUL, SARNA & NESS,

CRIMINAL DEFENSE ATFORNEYS, LLC.

429 FOURTH AVENUE, STE 1700

PITfSBURGH, PENNSYLVANIA 15219

(412) 737-7314 PHONE

(412) 402-5000 FAX

HLEO

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY,

FCER COUNTY

2019 JUN 2L, AM 10: 5?

PENNSYLVANIA

LLEFr ND RCS1E

COMMONWEALTH Of PENNSYLVANIA,

CRIMINAL DIVISION

Docket No.

OTN:

CP-43-CR-569-2019

X 245811-6

TYLER HERNDON,

DEFENDANT

PETITION FOR A WRIT OF HABEAS CORPUS

AND NOW comes the Defendant, Tyler Herndon, by and through his attorney,

Matthew Ness, Esquire, and the law firm of WORGUL, SARNA & NESS, CRIMINAL DEFENSE

ATTORNEYS, LLC., who respectfully requests this Honorable Court grant the relief

requested, and, in support thereof, states as follows:

On or about March 18,2019, Tyler Herndon (“Mr. Herndon”) was charged with

one (1) count of Rape Forcible Compulsion, 18 Pa. C.S.A § 3121(A)(1), one (1)

count of Involuntary Deviate Sexual Intercourse Forcible Compulsion, 18 Pa.

C.S.A § 3123(A)(1), one (1) count of Aggravated Assault, 18 Pa. C.S.A

2702(A)(1), one (1) count of Strangulation, 18 Pa. C.S.A § 2718(A)(1), one (1)

count of Aggravated Indecent Assault Forcible Compulsion, 18 Pa. C.S.A

3125(A)(5), one (1) count of Unlawful Restraint Serious Bodily Injury, 18 Pa.

C.S.A § 2902(A)(1), one (1) count of Indecent Assault Forcible Compulsion, 18

Pa. C.S.A § 3126(A)(2), one (1) count of Indecent Assault without Consent of

Other, 18 Pa. C.S.A § 3126(A)(1), one (1) count of Simple Assault, 18 Pa. C.S.A

§ 2701(A)(1), and one (1) count of Recklessly Endangering Another Person, 18

Pa. C.S.A § 2705.

The matter is set before this Honorable Court for Call of the List on or about

July 2, 2019.

A preliminary hearing was held before the Honorable Magisterial District

Judge D. Neil McEwen on or about March 27, 2019.1

Following testimony and argument by the undersigned, Magisterial District

Judge McEwen held all charges for court.

Without stipulating to these facts, the following was presented at the

preliminary hearing:

a. On or about March 17, 2019, Pennsylvania State Police Trooper Zachary

Julian (“Tpr. Julian”), was dispatched to the Grove City Medical Center, in

Grove City Pennsylvania for a reported sexual assault involving a woman

later identified as Tanya Mae Osborn (“Ms. Osborn”). Notes of Testimony

(“NT”), Preliminary Hearing, 3/29/19 at pages 7-8.

b. Tpr. Julian testified that in response to his questions Ms. Osborn had said

she had gone to Mr. Herndon’s residence to do laundry when Mr. Herndon

proceeded to rape her. NT at 10-11.

A transcript of said hearfrig is attached hereto as Defense Exhibit “A” and made a part hereof by this

reference.

c. Tpr. Julian also indicated Ms. Osborn had told him when in the basement

of Mr. Herndon’s residence, the lights at been turned off and she had been

pushed face down into the bed. NT. at 11.

d. At that point, according to Tpr. Julian, Ms. Osborn said Mr. Herndon had

“put some type of strap across her mouth and nose. He tied her wrists and

. .

legs with an unknown item to her.. essentially connecting her wrists to her

ankles.” Id.

e. Ms. Osborn then indicated to Tpr. Julian that Mr. Herndon had inserted an

“unknown item to her inside of her vagina.” Id.

Tpr. Julian further testified Ms. Osborn indicated Mr. Herndon penetrated

her vagina without her consent. NT. at 12-13.

g. At some point during the interaction, Tpr. Julian indicated Ms. Osborn said

Mr. Herndon “choked her out with just his hands.” NT. at 13.

Mr. Herndon challenges Judge McEwen’s decision to hold the charges over to

the Mercer County Court of Common Pleas. Mr. Herndon argues that the

Commonwealth failed to present evidence sufficient to establish a prima fade

case for the charges as follows:

a. At the preliminary hearing, Mr. Herndon’s charges were bound over for

trial on evidence that was exclusively hearsay in nature. Ms. Osborn did

not testify. Rather, the Commonwealth, in reliance on Pennsylvania Rule of

Criminal Procedure 542(E), presented its evidence solely through the

testimony of Trooper Julian, the only witness, which constitutes hearsay

evidence.2 (See, generally, P.1-LI. at 4-28).

b. Pa.R.Crim.P. 542(E) as amended in 2013 states that “Hearsay as provided

by law shall be considered by the issuing authority in determining whether

a prima fade 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 us of, damage to, or

value of property.”

c. Mr. Herndon respectfully submits Pennsylvania Rule of Criminal

Procedure 542(E) violates Petitioner’s fundamental right to Due Process, in

that it directly conflicts with our Supreme Court’s

decision

Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172, 174 (Pa. 1990).

d. First, Magisterial District Judge McEwen’s decision that, hearsay evidence,

alone, may establish a prima fade case is contrary to our Supreme Court’s

long-standing precedence. In Verbonitz, five justices would have held that

a prima fade case may not be based entirely on hearsay, as “[f]undamental

due process requires that no adjudication be based solely on hearsay

evidence.”

Magisterial District Judge McEwen noted on the record defense counsel’s “standing hearsay objection to

all hearsay testimony that is presented for the duration of the hearing all forms, the objection will be

overruled.” P.1-IT. at4.

e. The issue presented in Verbonitz is the same issue now advanced by Mr.

Herndon

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

prima fade case.

While the Superior Court has chosen to view Verbonitz as neither binding

nor persuasive,3 a majority of the Supreme Court would have held that

constitutional principles of due process apply at preliminary hearings.

Therefore, Verbonitz is a majority opinion as it pertains to the due process

prohibition against using only hearsay evidence to establish a printa fade

case at a preliminary hearing. See Ricker 170 A.3d at 517 (“Far from lacking

persuasive value, the Verbonitz opinions should together be recognized as

a holding that due process prohibits the Commonwealth from depriving a

person of liberty upon nothing more than inadmissible hearsay.”) (Wecht,

J., dissenting statement).

g. Although not constitutionally mandated, when, by law, the state creates a

preliminary hearing, certain rights, such as the right to counsel and the right

to confront witnesses,

necessarily attach.

Rule 542(C)

specifically

establishes a statutory right to be present at any preliminary hearing, to be

See Commonwealth v. Rick, 120 A.3d 349, 361 (Pa. Super. Ct. 2015), appeal dismissed, 170 A.3d. 494, (Pa.

2017). (“[Verhonitzj, nonetheless, is not binding and is valuable only insofar as its rationale can be found

persuasive.”).

represented by counsel, cross-examine witnesses and inspect physical

evidence, call witnesses on the defendant’s behalf, and offer evidence on

the defendant’s own behalf.

h. For a prima fade case to rest upon nothing more than inadmissible hearsay

is to offend traditional notions of due process. At such an illusory

proceeding, the interests, purposes, rights and benefits of a preliminary

hearing are stripped of substance or meaning. Mr. Herndon lost the ability

to gain a fair assessment of the strength of the case against him; was

stripped of a fair opportunity to test the Commonwealth’s case via his right

to cross examination, to direct his pretrial

investigation,

exercise

his

constitutional right to an attorney in a meaningful fashion,4 and to consider

intelligently his options to challenge the seizure or the acquisition of

evidence in a suppression motion, or to plead guilty or proceed to trial. The

In Coleman v. Alabama, 399 U.s. 1 (1970), the Supreme Court held that a preliminary hearing is a “critical

stage” of the prosecution so as to constitutionally require representation by counsel. Concluding the

presence of counsel was “essential” to protect defendant against “erroneous or improper prosecution,” the

Court listed four reasons for requiring counsel at a preliminary hearing:

‘

first, the lawyers skilled examination and cross-examination of witnesses may expose

fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the

accused over. Second, in any event, the skilled interrogation of witnesses by an

experienced lawyer can fashion a vital impeachment tool for use in cross-examination of

the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness

who does not appear at the trial. Third, trained counsel can more effectively discover the

case the State has against his client and make possible the preparation of a proper defense

to meet that case at the trial. fourth, counsel can also be influential at the preliminary

hearing in making effective arguments for the accused on such matters as the necessity for

an early psychiatric examination or bail.

Colemai, 399 U.S. at 10.

practical effect of Rule 542(E), in the instant matter, was to reduce Mr.

Herndon’s preliminary hearing to a mere funcfionless formality.

Second, Rule 542(E) “was not intended to convey that the Commonwealth

could meet its burden at a preliminary hearing entirely through hearsay

evidence.” Ricke, 170 A.3d at 517 (Saylor, C.J., concurring statement)

(emphasis added).

Moreover, Chief Justice Saylor noted in Commonwealth v. Ricker, 170 A.3d

494 (Pa. 2017) (per curiam) that the Court did not intend to overrule

Verbonitz with the 2013 Amendment to Rule 542 by stating, “[f]rom my

perspective, the 2013 amendment to the rule.

was not intended to convey

that the Commonwealth could meet its burden at a preliminary hearing

entirely through hearsay evidence. Rather, I believe the revision served

only as an attempt to clarify that the 2011 amendment to the rule had not

restricted the Commonwealth’s ability to adduce hearsay evidence at

preliminary hearings solely to offense elements requiring proof of

ownership, non-permitted use, damage, or value of property.” Id. at 507.

k. While the Commonwealth maintains the Ricker decision is controlling, Mr.

Herndon contends the holding was limited to only deny that a

constitutional right to confront an accuser existed at a preliminary hearing.

The Superior Court expressly noted its decision did “not decide the distinct

question of whether there exists a constitutional due process right to

10A

confront witnesses because Rule 542(C) authorizes limited confrontation

rights.” Ricker, 120 A.3d. at 362 n.7. Thus, Ricker is neither controlling nor

dispositive on the issue of fundamental due process that Mr. Herndon now

raises.

Mr. Herndon notes that our Supreme Court has granted Allocatur on the

very issue he advances in this Petition for a Writ of Habeas Corpus. See

Commonwealth v. McClelland, 2 WAP 2018 (“AND NOW, this 11th day of

January, 2018, the Petition for Allowance of Appeal is GRANTED. The

issue, slightly rephrased for clarity, is: [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.3d 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.”). Oral

arguments were held on October 24, 2018 and a decision is impending.

m. Lastly, on January 2, 2019, the Supreme Court of Pennsylvania Criminal

Procedure Rules Committee proposed an amendment of Rule 542(E), which

specifically dictates that hearsay alone cannot establish all elements of a

crime.

n. In the Official Report accompanying the proposed amendment of Rule

542(E), the committee stated that “establishment of a prima fade case by

hearsay alone, as held by the Superior Court in Ricker, was not

11A

appropriate” and

“Verbonitz.

is still good law and stands for the

proposition that a prima facie case may not be found exclusively on hearsay

evidence.” Report: Use of Hearsay at Preliminary Hearing, Proposed

Amendment of Pa.Rs.Crim.P. 542, 543, and 1003, (published January 2,

2019), page 31.

o. While the proposed amendment to Rule 542(E) has not yet been adopted,

its very existence, along with the Supreme Court’s decision to grant review

in McClelland, should cast a long shadow over the use of the 2013

amendment and the Ricker decision to permit hearsay evidence, alone, to

establish a prima fade case at a preliminary hearing. As such, any reliance

upon 542(E) to deny Mr. Herndon his fundamental due process right to

cross examine witnesses and his accuser at this “critical stage” of

prosecution, is misplaced, and will necessitate further and immediate

appellate review.

Mr. Herndon respectfully requests a hearing on this matter.

WHEREFORE, for the reasons stated herein, Mr. Herndon moves this Honorable

Court to grant the foregoing Petition for a Writ of Habeas Corpus, and order the Court

A copy of the Criminal Procedural Rules Committee Notice of Proposed Rulemaking, Proposed

Amendment of Pa.R Crim.P. 542, dated January 2, 2019, is attached as Defense Exhibit “B” and made a part

hereof by this reference.

12A

Administrator to remand the above captioned matter to Magisterial District Court # 353-02 for a new preliminary hearing consistent with this Court’s decision.

Respectfully Submitted:

WORGUL, SARNA & NESS, LLC

By:____

Ma ew Ness, Esquire

PAID. 208026

13A

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY,

PENNSYLVANIA

COMMONWEALTH Of PENNSYLVANIA,

CRIMINAL DIvIsIoN

Docket No.

OTN:

CP-43-CR-569-2019

X245811-6

TYLER HERNDON,

Defendant.

PRELIMINARY ORDER Of COURT

AND NOW, to-wit this

day of

upon

consideration of the foregoing Defendant’s Petition for a Writ of Habeas Corpus, it is

hereby ORDERED, that there shall be a hearing on the

2019, at_________

day of

.M., before the Honorable

Mercer County

Courthouse, Mercer, Pennsylvania, 16317.

BY THE COURT.

‘S.’.

Hon. John C. Reed

14A

IN THU COURT OF COMMON PLEAS OF MERCER COUNTY,

PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

CRIMINAL DIVISION

Docket No.

OTN:

CP-43-CR-569-2019

X245811-6

TYLER HERNDON,

DEFENDANT.

ORDER OF COURT

AND Now, this

day of

20__, upon consideration

of the foregoing Petition for Habeas Corpus Relief, it is hereby ORDERED, ADJUDGED,

and DECREED, that the Petition is GRANTED. The Mercer County Court Administrator

shall remand the above captioned case to Magisterial District Court # 35-3-02, the

Honorable D. Neil McEwen, for a new preliminary hearing.

BY THE COURT,

‘S.’.

Hon. John C. Reed

15A

CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the provisions of the Public Access Policy of

the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that

require filing confidential information and documents differently than non-confidential

information and documents.

Respectfully Submitted:

WORGUL, SARNA & NESS, LLC

Ma4’ew Ness, Esquire

PHI.D. No. 208026

16A

APPENDIX B

(Preliminary Hearing Transcript)

17A

COMMONWEALTH OF PENNSYLVANIA

)

vs.

)

OTN:

X-245811-6

)

TYLER HERNDON,

)

Defendant.

)

H E A R I N G

held before Magisterial District Judge McEwen.

18A

A P P E A R A N C E S

FOR THE COMMONWEALTH:

Daniel Gleisner, Esq.

Assistant District Attorney

Mercer County Courthouse

Room 209

Mercer, Pa

FOR THE DEFENDANT:

16137

Michael Worgul, Esq.

Law & Finance Building

429 Fourth Ave., 1700

Pittsburgh, PA

19A

15219

I N D E X

WITNESS

TROOPER JULIAN

DIRECT

CROSS

20A

REDIRECT

RECROSS

THE COURT:

This is the Commonwealth of

Pennsylvania vs. Tyler William Herndon, we're

here for the purposes of the preliminary hearing.

Is the Commonwealth ready to proceed?

MR. GLEISNER:

THE COURT:

Yes, Your Honor.

There will be a standing hearsay

objection to all hearsay testimony that is

presented for the duration of the hearing and all

forms, the objection will be overruled.

THE COURT:

MR. GLEISNER:

May it please the Court, Daniel Gleisner for

the Commonwealth.

Zachary Julian.

Call your first witness.

Thank you, Your Honor.

The Commonwealth calls Trooper

(Whereupon, the witness was first duly sworn.)

MR. WORGUL:

Your Honor, there is another

objection that has to be raised besides the hearsay

objection.

THE COURT:

Go ahead.

MR. WORGUL:

Thank you.

Your Honor, we're also objecting that the

nature of the hearing day is depriving my client

of his right to counsel at a critical stage, a

preliminary hearing.

The United States Supreme Court, the United

21A

States vs. Holeman, Justice Brennan delineated

four different reasons why an attorney is necessary

at a preliminary hearing why it's a critical stage,

and one of those reasons talks about the attorney

being able to cross examine witnesses that are --

THE COURT:

He's deprived of his right to

counsel, aren't you his counsel?

MR. WORGUL:

Yes.

But when there's no witness

with first hand knowledge testifying at a

preliminary hearing and that is now subjugated to

a person who does not have first hand knowledge,

you're now depriving the counsel essentially of

cross examining that witness with first hand

knowledge at the preliminary hearing, and the fact

and the result of that is that really what's a

counsel going to do at that point when there's no

one with first hand knowledge testifying at a

preliminary hearing.

objection.

So, that is the nature of my

I'm making it for the record.

THE COURT:

Okay.

MR. WORGUL:

So, I'm getting it on the record

now so that we have it and I'll let you rule on that

objection.

THE COURT:

You may proceed.

22A

Objection overruled.

MR. GLEISNER:

Thank you, Your Honor.

And,

I'll just note for the record as the Court pointed

out, I don't think that's an argument as to

depriving of counsel.

words, it's more then a confrontation clause.

Pennsylvania Appellate Courts have said that the

confrontation clause also does not prohibitive

hearsay at a preliminary hearing.

Counsel has just spoke those

MR. WORGUL:

In response --

THE COURT:

I've already ruled on it, so,

The

any further comment you can save, if you chose to

challenge my ruling.

Is the Commonwealth ready to proceed?

MR. GLEISNER:

THE COURT:

MR. GLEISNER:

The Commonwealth calls Trooper Julian.

Yes, Your Honor.

You may proceed.

Thank you.

(Whereupon, the witness was sworn).

THE COURT:

I think that I've already sworn

you in, now you've been sworn twice.

You can stay seated there.

MR. GLEISNER:

Your Honor, you would like the

trooper to stay seated here?

THE COURT:

doesn't matter to me.

23A

If you prefer.

I don't care.

DIRECT EXAMINATION

BY MR. GLEISNER:

Sir, please state your name.

My name is Trooper Zachary Julian.

How are you currently employed?

I'm employed with the Pennsylvania State Police out of

Mercer, the Criminal Investigation Unit.

How long have you been a state trooper?

I've been a state trooper since April of 2016.

Were you working in your capacity as a Pennsylvania State

Trooper, specifically with crimes on March 17, 2019?

Yes.

At approximately 9:20 p.m. were you responding to any

sort of dispatch at that time?

At approximately 9:23 hours the call did come in and

I responded a little bit after 10 o'clock.

Where did you respond to?

I responded to Grove City Medical Center, Grove City,

Pennsylvania.

What was the nature of the dispatch?

The nature of the dispatch was that there was a 33 year

old female, she had reported that she was sexually

assaulted and raped and she could identify the male

individual, the individual responsible.

Did you respond to Grove City Medical Center?

24A

Yes.

Did you make contact with the individual per the

dispatch?

Yes.

Who was that individual?

It would be Tanya Mae Osborn.

Did you make personal contact with her?

Yes.

What was her appearance and/or demeanor like at that

time?

She was very emotionally distraught, it was very

difficult to interview her at that time.

further details but she was very articulate everything

that we had talked about.

She gave

What was going on at Grove City Medical Center when you

were there as far as you could see?

She was in a room, they were in the process of starting

a sexual assault evidence collection kit, and I had

spoken with her prior to them doing it.

To your knowledge, was a sexual assault examination

performed?

Yes.

Was that documented?

Yes.

Will the individual who performed the examination be

25A

available for trial?

Yes.

To your knowledge, was statements taken by medical

personnel from Ms. Osborn concerning what happened?

Yes, they were.

Were medical personnel interviewed be available for

trial?

Yes, they will.

Do you have the name of the individual who performed

the examination?

Do you have the name of the individual who performed

the sex assault examination -A

I don't have it with me today.

MR. GLEISNER:

I will just note, Your Honor,

as part of this case going further, I will ensure

to subpoena the medical records and will have all

of that information available.

THE COURT:

BY MR. GLEISNER:

Thank you.

Did you have a chance to speak with Ms. Osborn at the

Grove City Medical Center?

Yes.

What did she tell you concerning the dispatch?

She had said that she was able to identify the male

individual for starts, which was Tyler William Herndon.

26A

She proceeded to inform me that they had prior contact

prior to that date, but on March 17th at approximately

4:30 in the afternoon she went over to his house where

they had hung out it was only those two at the residence

at that time.

Did she relay anything concerning the extent of her

relationship, if any, and why she was there?

No.

Did she tell you anything that happened at the residence?

Yes, she did.

Whose residence was this?

It would be Tyler William Herndon.

In the course of your investigation, were you able to

use law enforcement resources to identify this individual?

Yes.

Do you see him here in the courtroom today?

Yes.

Can you please tell me where he is and --

MR. WORGUL:

identification.

THE COURT:

BY MR. GLEISNER:

Your Honor, we'll stipulate to

Stipulation to ID.

What were you told by Ms. Osborn concerning what happened

at the residence on March 17th?

She was at the residence, downstairs portion of the

27A

residence, she was doing some laundry and was looking at

the defendant's computer.

informed her that there were some of his ex-girlfriend's

clothing in his room.

them, if there was anything that she wanted because his

ex-girlfriend did not want them.

room, she had tried on some of the clothing, while she

was in the process of doing so the lights went out.

Ms. Osborn proceeded to tell me that when the

lights went off she was pushed face down onto the bed.

Mr. Herndon put some type of strap across her mouth and

nose.

During that time he had

He told her that she could have

She walked into the

Where was that in the residence?

In a bedroom, in the downstairs portion.

What happened after the lights went out?

He pushed, Mr. Herndon had pushed her face down on to

the bed, she explained that he put some type of strap

across her mouth and nose.

to breathe.

item to her however she believed it was some type of

rope.

connecting her wrists to her ankles.

ankles towards her back.

Mr. Herndon inserted an unknown item to her inside of

her vagina.

She described as difficult

He tied her wrists and legs with an unknown

She explained that it was connected, essentially

28A

He pushed her

She then explained that

Was she able to describe that item at all?

She was.

as it was pumped it got bigger and bigger in size.

She said that, she described to it had a pump,

Did she describe any other objects that were used during

this assault?

She did tell me that there was another item that was

used but she was unable to give me specifics due to the

room being dark.

When you say another item used, used in what way?

It was used to penetrate her.

Was there any other items used for any other things

during this assault?

Yeah.

She had said, aside from these were the only two

actual physical items aside from his penis that he had

used to rape her.

Did she describe if anything was used orally concerning

her mouth?

No, she did not.

Aside from she had a strap that was

around her face.

There was a metal ring that was, you

know, up against her mouth, she also did describe that

there were metal clips to her nose.

Did she describe what happened when the defendant

inserted his penis into her?

He just began to rape her.

Was this vaginally or anally?

29A

It was vaginally.

She had said also that he was

choking her out at one point.

she thought she was going unconscious.

asked her why she was crying during the course of

this.

began to cry and he had gotten down looking at her face

and told her that he wanted to look at her face while

she cried.

She explained to me that she became terrified,

When you say that it was relayed to you by Ms. Osborn

She had said that he had choked her out with just his

hands.

He had also

that the defendant choked her out, how did that occur?

She described it that

What happened after the comments were made about

Ms. Osborn crying?

After she was crying he just continued to rape her to

where she eventually begged for him to stop, essentially

at some point that is what happened, and when he did

stop, a condom was lodged inside of her vagina.

I'm sorry, what?

A condom.

When Ms. Osborn was describing the defendant choking her,

did she give you any specific information about how her

breathing was affected at all?

Yes.

She said she had a difficult time breathing, aside

from the fact that she did feel like she was going

30A

unconscious.

To elaborate further she described it in a

way that she said that she felt that everything was going

purple.

And which part of her body was tied up or restrained?

It would be her wrists, her ankles, which were attached

together, and also there was a strap of some type around

her head.

Were you made aware from Ms. Osborn if she was ever able

to, or if she was ever released from these restraints?

Yes, after he had finished raping her he did start to

untie her before going upstairs, and then she had

managed to untie herself the rest of the way by removing

the strap and metal clip.

What happened next?

Upon being free, she got up, she explained to me that

she had pulled a condom out of her vagina, it was lodged

in there.

described to me that she was in a state of shock, she

just sat there and stared and after she had gathered her

laundry up she was terrified, spoke to Mr. Herndon and

asked him if he could drive her home, he proceeded to

drive her home.

After doing that she got dressed and she

Trooper, how much time had elapsed from when Ms. Osborn

went to the defendant's residence and when she went to

Grove City Medical Center?

31A

It would be approximated to be within one to two hours,

however, I don't know the exact duration.

Maybe my question wasn't clear.

From the time that she arrived at the defendant's

residence originally to the time that she went to the

hospital?

That would be four or five hours.

How much time per the information that you have from

when she was taken home and then until she went to the

hospital?

That's unknown at this time.

Was Ms. Osborn able to describe any of these objects,

or was it dark per your information?

She was unable to describe any type of colors, however

she was able to describe the item did have a pump

attached to it.

Was the description based on feel, to your knowledge?

Yes.

Did she describe any part of the defendant's body,

She could hear the item being pumped.

other then his penis going into her body?

No.

When you were receiving this information, what was her

appearance or demeanor like?

She was very emotionally distraught.

Is that the sum and substance of what occurred at Grove

32A

City Medical Center at that time?

Yes.

After receiving that information from Ms. Osborn, what

did you do next?

I applied for a search warrant through this district

magistrate.

Where was the search warrant for?

It was for 2495 Mercer Street, which is Mr. Herndon's

residence.

Was that search warrant approved?

Yes.

Did you and/or any other troopers execute that search

warrant?

Yes, myself, Trooper McGarret, Trooper Lesko, Trooper

Kaufer and later assisted by Corporal Armagost out

of PSP Butler.

What time was the search warrant executed?

Approximately 1:30 hours.

Would that be the next day then?

Yes, it would be March 18th.

March 18th approximately 1:30 in the morning?

That's correct.

Did you enter the defendant's residence per the search

warrant?

Yes.

33A

Did you conduct a search on the inside of the residence?

I did.

Did you find anything of evidentiary value per the prior

information that you had?

Yes.

What was that?

I located a used latex condom, various sexual restraints,

various sexual toys, there were an abundance of items

that were consistence with the statements that she had

made at the hospital.

was accounted for and seized and lodged into evidence.

Everything that she had described

When you say everything as described, did you find

something consistent with the pump type item?

That's correct, I did.

And the rope or restraints that were done to her wrists

and feet or ankles?

Correct.

I found a restraint that would be consistent

with that statement.

What about the item that was placed into her mouth,

the metal ring?

Yes.

You found that also?

I did.

Did you find anything else that she described being in

the residence?

34A

Again, as previously stated, there was an abundance of

items.

women's clothing in there that was consistent with the

request for her to try on that clothing, but everything

else, like I had said that was involved in the actual

assault that she had explained it was seized and logged

into evidence.

One important note is there was a lot of

What type of residence was this, can you describe the

layout?

Yeah.

It was a single story that went into a downstairs

portion of the residence.

the residence that I described that is where the bedroom

where this incident did occur was located.

The downstairs portion of

When Ms. Osborn related to you that she had retrieved a

used condom from inside of her body, did she tell you

what she did with it?

Yes.

She explained that as she removed it she described

the condom to be dripping down her legs.

What did she do with it then?

That's unknown.

The condom that you recovered, where was that at?

It was in a trash can next to the bed.

Was this also in the downstairs bedroom area?

That's correct.

Did you search the rest of the residence?

35A

I did.

Did you find anything else along the line of sex toys

or anything like that?

No.

When you spoke with Ms. Osborn, did she relate to you

Everything was contained to the bedroom.

if she desired or consented for this type of act?

That's unknown.

Did she relay to you, you said something about crying?

Yes.

What was that?

She had said that she was terrified and had began to

cry during the assault and she continued to tell me that

she had begged and yelled for him to stop just prior to

him stopping, and that was during the rape.

When you say rape, be specific.

That was him putting his penis inside of her vagina.

Trooper, the various items of evidence that was recovered

from the residence, the used condom, the sex toys, things

like that, will it be submitted for laboratory testing?

Yes.

There have been items that have been submitted

right now, I can go into detail if need be.

Just roughly what items?

The used latex condom, the item that was described to

have had the pump was seized, her sexual assault

evidence collection kit, and additionally the underwear

36A

that she had worn after she dressed herself after she

had been raped.

Did she provide you her underwear at the hospital?

She had provided it to the hospital, which we seized.

And all of those items have been submitted for testing?

Yes.

Once the testing has been completed and the reports

that you receive, will you insure that those are sent

to the district attorney's office to provide in

discovery?

Yes.

MR. GLEISNER:

Your Honor, at this time I'm

going to move to amend, before I offer for Cross,

so that these charges can also be cross examined

appropriately, one count of aggravated assault,

Title 18, PACSA, section 2702 A1, that's a felony

of the first degree.

assault, title 18, PACSA, section 2701 A1 a

misdemeanor of the second degree.

indecent assault, title 18, PACSA, section 3126 A2

graded as a misdemeanor of the first degree, that

would be by forcible compulsion, and also one

count of recklessly endangering another person,

Title 18, PACSA, Section 2705 a misdemeanor of the

second degree.

37A

Also one count of simple

One count of

Your Honor, I would just note that the

aggravated assaults, simple assaults are for the

same acts that constitute the strangulation and

the indecent assault is for the sex acts and the

REAP also goes towards the acts that would

constitute the strangulation.

MR. WORGUL:

I just have one comment for

the record.

Just so I'm clear, these new charges that

we're amending and adding, all are based on the

same facts and circumstances that were alleged in

the original complaint, correct?

MR. GLEISNER:

THE COURT:

Anything for the record?

MR. WORGUL:

I'm sorry?

THE COURT:

Anything for the record on the

Yes.

amendments?

MR. WORGUL:

No, not at this time.

THE COURT:

Okay.

Those will be accepted, the

complaint will be amended to reflect that, and at

the conclusion as to whether or not they will go

forward will be made until after the hearing.

MR. GLEISNER:

With that, I would offer the trooper for

Thank you, Your Honor.

Cross Examination at this time.

38A

THE COURT:

You may Cross.

MR. WORGUL:

Thank you.

CROSS EXAMINATION

BY MR. WORGUL:

Trooper, just so we're clear.

court today, is that correct?

That's correct.

Why isn't she here?

She just isn't here.

Is there a reason?

Ms. Osborn is not in

THE COURT:

What's the relevance, counsel?

She doesn't have to be here.

MR. WORGUL:

I'll explain.

I was waiting for

somebody to ask me what the relevance was.

relevance is this, Your Honor.

before this case concludes ultimately there is a

high likelihood that there's going to be a change

in the rules of criminal procedure that is going

to require at least circumstance an explanation as

to why someone is not here as well as presentation

written statements by that person that are signed.

We know that this change in law is highly likely,

but to the extent that is coming down the pike,

The

I expect that

I'm only asking the question, I know it will

be objected to, but to preserve down the road

39A

when, if, in fact, that law gets passed I can say,

I asked for these things at the preliminary hearing

and they were not provided.

THE COURT:

Okay.

You have a record of it.

The Court summarily is indicating that it's not

relevant for the purposes of the preliminary hearing

today, unless the Commonwealth wishes to put

anything additional on the record, we will move

forward.

MR. GLEISNER:

The Commonwealth is not,

Your Honor.

I am not going to speculate on the

future of the law on anything.

THE COURT:

Okay.

MR. WORGAL:

Thank you, Your Honor.

BY MR. WORGUL:

We'll move forward.

How well did Ms. Osborn and Mr. Herndon know each other

prior to this evening, or the day of the incident?

They had known each other, it's not a hundred percent.

Do you know how well they knew each other?

I knew that they knew each other, but, no, I do not

know --

You don't know the extent of it?

No.

You were asked if these acts were consensual, and you

said, that is not one hundred percent certain.

40A

Am I

correct of my recollection to your testimony?

It's unknown.

Unknown for the purposes of today's hearing whether or

not these acts were consensual?

Well, she employed* that she was raped, a rape is not

consensual.

Your indication on the record though is that you were

not a hundred percent certain whether or not these acts

were consensual, was it not?

It was not consensual.

Was that not your testimony that you weren't one hundred

percent sure whether or not these were consensual acts?

Unknown was my testimony.

So, you're not sure as you stand today testifying whether

or not these acts were --

MR. GLEISNER:

Objection, Your Honor.

Asked

and answered.

THE COURT:

Yes, he's answered your question

that he said that it is not to a hundred percent

certainty that this was not consensual.

what was asked, that was what was answered.

That is

We'll move on. you got what you wanted on

the record.

BY MR. WORGUL:

There's no need to ask again.

Did Ms. Osborn provide you with a written statement?

41A

No.

So, you take her report as you testified on Direct

and you get a search warrant for Mr. Herndon's house,

correct?

Yes.

Do you have a copy of that warrant with you?

I do not.

I'm not sure -- I think the District

Attorney's office does.

Correct me if I'm wrong, the subject of the warrant was

to go to his residence and recover devices used in the

commission of this alleged rape, correct?

Yes.

Not included in that warrant was Mr. Herndon's cell

phone, correct?

That's correct.

Did you seize his cell phone?

Yes.

You have that in your custody right now, correct?

Yes.

Do you have any experience -- let me back up.

When you executed the warrant, did you photograph

the scene?

Yes.

Was that you or somebody else?

It was me.

42A

How many other officers, troopers I should say, were

with you at the time you executed the warrant?

There was three.

Is there any particular reason why nobody but you

witnessed the warrant and the inventory sheet?

MR. GLEISNER:

Objection, Your Honor,

relevance.

THE COURT:

We're not going to have a

suppression hearing relative to any issue here

today.

The objection is sustained.

BY MR. WORGUL:

The sex toys that you say were in there, the items that

you recovered, correct me if I'm wrong, are all capable

of being used in a non criminal consensual manner,

correct?

MR. GLEISNER:

Calls for speculation.

MR. WORGUL:

Objection, Your Honor, relevance.

If he knows.

He might know.

he says he doesn't know, then he doesn't know.

THE COURT:

Counsel, you can say that any item

in his entire house can be used lawfully, that's

not why we're here.

allegations of the items that were used unlawfully.

MR. WORGUL:

43A

We're here because of the

Right.

And I'm asking him if

the items that are alleged to have been used

unlawfully could also be used lawfully.

THE COURT:

Are we going to do that for every

MR. WORGUL:

No, just all of the items that

you've recovered.

item?

THE COURT:

TROOPER JULIAN:

BY MR. WORGUL:

Just answer the question.

Yes.

As you sit here, you're unaware how long Mr. Herndon and

Ms. Osborn knew each other or conversations that they

had or anything along those lines, correct?

That's correct.

Have you recovered any information from Ms. Osborn

concerning her cell phone records and communications

that she may have had with Mr. Herndon?

MR. GLEISNER:

relevance.

MR. WORGUL:

Most of this is to make point

when we get down the road as to --

Objection, Your Honor,

THE COURT:

We're not down the road, we're

MR. WORGUL:

I know, but if I don't ask the

here.

question they've objected to, I can't make the

argument down the road, so I have to.

44A

THE COURT:

Objection sustained.

BY MR. WORGUL:

You said that you recovered a condom, correct?

That's correct.

And that condom was recovered from where?

The trash can near the bed.

MR. WORGUL:

Nothing further.

THE COURT:

Redirect?

MR. GLEISNER:

THE COURT:

MR. GLEISNER:

No, Your Honor, thank you.

Next witness.

The Commonwealth rests for

the purposes of the preliminary hearing.

THE COURT:

Anything for today, counsel?

MR. WORGUL:

No.

THE COURT:

Argument?

MR. WORGUL:

No, sir.

THE COURT:

Any argument for today?

MR. GLEISNER:

the amendments.

THE COURT:

No, Your Honor, just to note

Relative to the original complaint

and the amendments, I believe the purpose of the

preliminary hearing the Commonwealth has met its

burden.

All charges will be held for court.

(Whereupon, the hearing concluded.)

45A

C E R T I F I C A T E

I, Phyllis M. Machel, a Notary Public - Court

Reporter for the Commonwealth of Pennsylvania, do

hereby certify that the said hearing was taken, and that

the said hearing was recorded and then reduced to

transcript form under my direction, and constitutes a

true record to the best of my ability and belief of the

testimony given at the time of the hearing.

________________________

Phyllis M. Machel

46A

APPENDIX C

(Trial Court Opinion Regarding the Petition for Habeas Corpus Relief)

47A

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA

CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

-vs-

569 Criminal 2019

TYLER WILLIAM HERNDON

ADJUDICATION

AND NOW, this 16th day of October, 2019, this

matter coming before the Court on the defendant’s Motion for

Habeas Corpus Relief, and after consideration of the motion

and attachments, including the transcript from the

preliminary hearing, which the parties stipulated to, and

the Commonwealth’s Exhibit 1; and after further

consideration of argument, THE COURT FINDS as follows:

FACTUAL BACKGROUND:

On or about March 18, 2019 the defendant was charged

with one count of rape, one count of involuntary deviate

sexual intercourse, one count of aggravated assault, one

count of strangulation, one count of aggravated indecent

assault, one count of unlawful restraint, two counts of

indecent assault, one count of simple assault, and one count

48A

of recklessly endangering another person.

The preliminary hearing was held before a

Magisterial District Judge on or about Match 27, 2019.

The

Commonwealth called one witness, that being Pennsylvania

State Police Trooper Zachary Julian.

Trooper Julian had

been dispatched to the Grove City Medical Center for a

reported sexual assault involving the victim.

Trooper

Julian testified that he met the victim at the hospital

which time she provided certain information.

Trooper Julian

testified at the preliminary hearing as to the statements

given by the victim.

The victim did not testify, nor was

she present at the preliminary hearing.

As a result of the statement, Trooper Julian

obtained a search warrant for the defendant’s home.

Trooper

Julian executed that search warrant and located and seized

certain items, including but not limited to a used condom,

sex toys, and other items, all having been described by the

victim.

These items were not produced at the preliminary

hearing.

Defense argues that the Commonwealth cannot rely

solely on hearsay evidence at a preliminary hearing to

establish a prima facia case.

Defense argues further that

should the Court deny his petition, that the Court should

authorize an interlocutory appeal pursuant to 42 Pa. C.S.A.

§702.

49A

The Commonwealth argues that it did not rely

solely on hearsay evidence, but also on the items found and

seized pursuant to the search warrant, which corroborates

the statement of the victim.

The Commonwealth also argues

that it now has a DNA report from the Pennsylvania Crime

Lab.

THE COURT NOTES that the Commonwealth relies on

the case of Commonwealth vs. Ricker, 170 A.3d 494 (Pa.

2017)

THE COURT FINDS that although the Commonwealth did

produce testimony regarding certain items seized at the

defendant’s home, which tend to corroborate the statement

given by the victim to the police officer, the Commonwealth

is solely relying on hearsay to establish the consent

element for the sexual offenses and the mens tea element for

the offenses of simple assault and recklessly endangering

another person.

However, THE COURT FINDS that the

Commonwealth did establish a prima facia case and the

defense motion will be denied.

The Court does note that the

issue raised in this matter is pending before the

Pennsylvania Supreme Court and does involve a controlling

question of law as to which there is substantial ground for

difference of opinion, and that an immediate appeal from the

order may materially advance the ultimate termination of the

matter, and the Court will enter an appropriate order.

50A

APPENDIX D

(Trial Court Order)

51A

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA

CR1 MI NAL

COMMONWEALTH OF PENNSYLVANIA

-vs-

569 Criminal 2019

TYLER WILLIAM HERNDON

ORDER

AND NOW, this 16th day of October, 2019, IT IS THE

ORDER OF COURT that the defendant’s Petition for Habeas

Corpus Relief is DENIED.

Pursuant to 42 Pa. C.S.A. §702 it is this Court’s

opinion that this order involves a controlling question of

law as to which there is substantial ground for difference

of opinion, and that an immediate appeal from the order may

materially advance the ultimate termination of the matter.

BY THE COURT:

Robert G. Yeatts,

President Judge

52A

APPENDIX E

(Petition for Allowance to Appeal to the Superior Court of Pennsylvania)

53A

Received 11/18/2019 2:58:56 PM Superior Court Western District

Filed 11/18/2019 2:58:00 PM Superior Court Western District

153 WDM 2019

IN THE SUPERIOR COURT OF PENNSYLVANIA

WESTERN DISTRICT

_ _ _ MD 2019

COMMONWEALTH OF PENNSYLVANIA,

Appellee

TYLER HERNDON,

Appellant

PETITION FOR PERMISSION TO APPEAL

Appeal from the Opinion and Order entered October 16, 2019 in the Court of

Common Pleas of Mercer County, Pennsylvania, at CP-43-CR-569-2019, denying

Mr. Herndon’s Petition for Habeas Corpus Relief.

Counsel of Record for the Appellant

Matthew Ness, Esquire

PA I.D. No. 208026

WORGUL, SARNA & NESS,

CRIMINAL DEFENSE ATTORNEYS, LLC.

429 Fourth Avenue

Suite 1700

Pittsburgh, Pennsylvania 15219

Phone: 412-862-0347

Fax: 412-402-500

54A

STATEMENT OF JURISDICTION

The Superior Court has jurisdiction over this case pursuant to Pa. R.A.P. 701,

concerning appeals authorized from interlocutory orders; and 42 Pa. C.S.A. § 702(b),

concerning interlocutory appeals by permission. Additionally, the Superior Court

has jurisdiction over interlocutory orders where exceptional circumstances exist.

Commonwealth v. Ricker, 120 A.3d 349, 353 (Pa. Super. 2015).

55A

ORDER IN QUESTION

“AND NOW, this 16th day of October, 2019, IT IS THE ORDER OF COURT

that the defendant’s Petition for Habeas Corpus Relief is DENIED.

“Pursuant to 42 Pa. C.S.A. § 702 it is this Court’s opinion that this order

involves a controlling question of law as to which there is substantial ground for

difference of opinion, and that an immediate appeal from the order may materially

advance the ultimate termination of the matter.”

BY THE COURT,

/s/ Robert G. Yeatts

President Judge

56A

CONCISE STATEMENT OF THE CASE

On or about March 18, 2019, Tyler Herndon (“Mr. Herndon”) was charged

with one (1) count of Rape Forcible Compulsion, 18 Pa. C.S.A § 3121(A)(1), one

(1) count of Involuntary Deviate Sexual Intercourse Forcible Compulsion, 18 Pa.

C.S.A § 3123(A)(1), one (1) count of Aggravated Assault, 18 Pa. C.S.A §

2702(A)(1), one (1) count of Strangulation, 18 Pa. C.S.A § 2718(A)(1), one (1) count

of Aggravated Indecent Assault Forcible Compulsion, 18 Pa. C.S.A § 3125(A)(5),

one (1) count of Unlawful Restraint Serious Bodily Injury, 18 Pa. C.S.A §

2902(A)(1), one (1) count of Indecent Assault Forcible Compulsion, 18 Pa. C.S.A §

3126(A)(2), one (1) count of Indecent Assault without Consent of Other, 18 Pa.

C.S.A § 3126(A)(1), one (1) count of Simple Assault, 18 Pa. C.S.A § 2701(A)(1),

and one (1) count of Recklessly Endangering Another Person, 18 Pa. C.S.A § 2705.

A preliminary hearing was held before the Honorable Magisterial District

Judge D. Neil McEwen on or about March 27, 2019. At the preliminary hearing, Mr.

Herndon’s charges were bound over for trial on evidence that was exclusively

hearsay in nature. The alleged victim did not testify. Rather, the Commonwealth, in

reliance on Pennsylvania Rule of Criminal Procedure 542(E), presented its evidence

solely through the testimony of Pennsylvania State Trooper Zachary Julian (“Tpr.

Julian”) the only witness, which constitutes hearsay evidence. At the hearing, Tpr.

Julian testified that on or about March 17, 2019, he was dispatched to the Grove City

57A

Medical Center, in Grove City, Pennsylvania for a reported sexual assault involving

a woman later identified as Tanya Mae Osborn (“Ms. Osborn”). Notes of Testimony

(“NT”), Preliminary Hearing, 3/29/19 at pages 7-8.

Tpr. Julian testified that in response to his questions Ms. Osborn had said she

had gone to Mr. Herndon’s residence to do laundry when Mr. Herndon proceeded to

rape her. NT at 10-11. Tpr. Julian also indicated Ms. Osborn had told him that when

she was in the basement of Mr. Herndon’s residence, the lights were turned off and

she had been pushed face down into the bed. NT. at 11.

At that point, according to Tpr. Julian, Ms. Osborn said Mr. Herndon had “put

some type of strap across her mouth and nose…He tied her wrists and legs with an

unknown item to her…essentially connecting her wrists to her ankles.” Id. Ms.

Osborn then indicated to Tpr. Julian that Mr. Herndon had inserted an “unknown

item to her inside of her vagina.” Id. Tpr. Julian further testified Ms. Osborn

indicated Mr. Herndon penetrated her vagina without her consent. NT. at 12-13. At

some point during the interaction, Tpr. Julian indicated Ms. Osborn said Mr.

Herndon “choked her out with just his hands.” NT. at 13.

Mr. Herndon, through defense counsel, objected to the Commonwealth’s use

of hearsay, through Rule 542(e), contending that Rule 542(e) directly conflicts with

our Supreme Court’s decision in Commonwealth ex rel. Buchanan v. Verbonitz, 581

A.2d 172, 174 (Pa. 1990), and violated his fundamental right to Due Process.

58A

Magisterial District Judge McEwen overruled the objection, and held all charges for

the Court of Common Pleas of Mercer County. Subsequently, on or about June 24,

2019, Mr. Herndon, through defense counsel, filed a Petition for Habeas Corpus

challenging Magisterial District Judge McEwen’s decision that hearsay evidence,

alone, may establish a prima facie case.

On or about October 16, 2019, a hearing was held before the Honorable

Robert G. Yeatts, President Judge, of the Court of Common Pleas of Mercer County.

At this hearing, the parties stipulated to the transcript of the preliminary hearing, and

to Commonwealth’s Exhibit 1, a DNA Analysis Report, dated July 23, 2019, from

the Pennsylvania State Police Bureau of Forensic Services. The Commonwealth

argued it did not rely solely upon hearsay evidence to establish a prima facie case.

Mr. Herndon, through defense counsel, countered that the Commonwealth had relied

solely on hearsay, in violation of his right to due process. Mr. Herndon also requested

that if the trial court were to deny his Petition for Habeas Corpus, that the court

include the statement prescribed by 42 Pa. C.S.A. § 702(b) and Pennsylvania Rule

of Appellate Procedure 1311(b).

On or about October 16, 2019, President Judge Yeatts issued an Opinion and

Order of Court denying Mr. Herndon’s Petition for Habeas Corpus relief. The trial

court did, however, include the statement prescribed by 42 Pa. C.S.A. § 702(b). This

timely Petition for Permission to Appeal now follows.

59A

CONTROLLING QUESTIONS OF LAW PRESENTED FOR REVIEW

Whether Pennsylvania Rule of Criminal Procedure 542(E) violates a

defendant’s fundamental Right to Due Process, in that it directly conflicts with our

Supreme Court’s decision in Commonwealth ex rel. Buchanan v. Verbonitz, 581

A.2d 172, 174 (Pa. 1990), in which five (5) Justices held that “fundamental due

process requires that no adjudication be based solely on hearsay evidence.”

60A

CONCISE STATEMENT OF THE REASONS WHY A SUBSTANTIAL

GROUND EXISTS FOR A DIFFERENCE OF OPINION ON THE

QUESTIONS OF LAW PRESENTED FOR REVIEW

Exceptional circumstances justifying immediate appellate review on the

question now presented, specifically whether permitting solely hearsay testimony at

a preliminary hearing to establish a prima facie case violates a defendant’s

fundamental right to due process, will become moot and would be capable of

repetition and likely to evade judicial review if this Court were to await a final order.

This is of particular significance now that our Supreme Court granted allocatur on

this very issue in Commonwealth v. McClelland, 179 A.3d 2 (Pa. 2018),1 and the

high court’s impending decision highlights the likelihood that Mr. Herndon will lose

his ability to challenge the trial court’s denial of his petition if he does not seek

immediate appellate review. Thus, Mr. Herndon contends the issue presents an

important constitutional question regarding whether a powerful state governmental

entity violates federal and state constitutional principles guaranteeing due process of

law in allow a defendant to be bound over for trial based solely on hearsay evidence.

The trial court’s denial of Mr. Herndon’s Petition for Habeas Corpus Relief

directly conflicts with our Supreme Court’s decision in Verbonitz. Five Justices

(“AND NOW, this 11th day of January, 2018, the Petition for Allowance of Appeal is

GRANTED. The issue, slightly rephrased for clarity, is: [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.3d 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.’’).

61A

would have held that “[f]undamental due process requires that no adjudication be

based solely on hearsay evidence.” Id. at 174. As such, [t]he testimony of a witness

as to what a third party told him about an alleged criminal act is clearly inadmissible

hearsay.” Id. The principle of Due Process “requires the conclusion that the hearsay

statement of the police officer was insufficient, vel non, to establish a prima facie

case against appellant.” Id. at 176. Verbonitz is binding precedent as it applies to

Mr. Herndon’s Due Process claim.

Although not constitutionally mandated, when, by law, the state creates a

preliminary hearing, certain rights, such as the right to counsel and the right to

confront witnesses, necessarily attach. Rule 542(C) specifically establishes a

statutory right to be present at any preliminary hearing, to be represented by counsel,

cross-examine witnesses and inspect physical evidence, call witnesses on the

defendant’s behalf, and offer evidence on the defendant’s own behalf. While this

Court has chosen to view Verbonitz as non-binding, a majority of our Supreme Court

would have held that constitutional principles of due process apply at preliminary

hearings. Verbonitz, therefore, is a majority opinion as it pertains to the due process

prohibition against using only hearsay evidence to establish a prima facie case at a

preliminary hearing. See Commonwealth v. Ricker, 170 A.3d 494, 517 (Pa. 2017)

(“Far from lacking persuasive value, the Verbonitz opinions should together be

recognized as a holding that due process prohibits the Commonwealth from

62A

depriving a person of liberty upon nothing more than inadmissible hearsay.”)

(Wecht, J., dissenting statement).

For a prima facie case to rest upon nothing more than inadmissible hearsay is

to offend traditional notions of due process. At such an illusory proceeding, the

interests, purposes, rights and benefits of a preliminary hearing are stripped of

substance or meaning. Mr. Herndon lost the ability to gain a fair assessment of the

strength of the case against him; was stripped of a fair opportunity to test the

Commonwealth’s case via his right to cross examination, to direct his pretrial

investigation, to exercise his constitutional right to an attorney in a meaningful

fashion,2 and to consider intelligently his options to challenge the seizure or the

acquisition of evidence in a suppression motion, or to plead guilty or proceed to trial.

In Coleman v. Alabama, 399 U.S. 1 (1970), the Supreme Court held that a preliminary hearing

is a “critical stage” of the prosecution so as to constitutionally require representation by counsel.

Concluding the presence of counsel was “essential” to protect defendant against “erroneous or

improper prosecution,” the Court listed four reasons for requiring counsel at a preliminary hearing:

First, the lawyer's skilled examination and cross-examination of witnesses may

expose fatal weaknesses in the State's case that may lead the magistrate to refuse to

bind the accused over. Second, in any event, the skilled interrogation of witnesses

by an experienced lawyer can fashion a vital impeachment tool for use in crossexamination of the State's witnesses at the trial, or preserve testimony favorable to

the accused of a witness who does not appear at the trial. Third, trained counsel can

more effectively discover the case the State has against his client and make possible

the preparation of a proper defense to meet that case at the trial. Fourth, counsel can

also be influential at the preliminary hearing in making effective arguments for the

accused on such matters as the necessity for an early psychiatric examination or

bail.

Coleman, 399 U.S. at 10.

63A

The practical effect of Rule 542(E), in the instant matter, was to reduce Mr.

Herndon’s preliminary hearing to a mere functionless formality.

Moreover, Rule 542(E) “was not intended to convey that the Commonwealth

could meet its burden at a preliminary hearing entirely through hearsay evidence.”

Ricker, 170 A.3d at 517 (Saylor, C.J., concurring statement) (emphasis added).

Moreover, Chief Justice Saylor noted in Ricker, 170 A.3d 494 (Pa. 2017) that the

Court did not intend to overrule Verbonitz with the 2013 Amendment to Rule 542

by stating, “[f]rom my perspective, the 2013 amendment to the rule . . . was not

intended to convey that the Commonwealth could meet its burden at a preliminary

hearing entirely through hearsay evidence. Rather, I believe the revision served only

as an attempt to clarify that the 2011 amendment to the rule had not restricted the

Commonwealth’s ability to adduce hearsay evidence at preliminary hearings solely

to offense elements requiring proof of ownership, non-permitted use, damage, or

value of property.” Id. at 507.

While the trial court maintains this honorable court’s Ricker decision is

controlling, Mr. Herndon contends the holding was limited to only deny that a

constitutional right to confront an accuser existed at a preliminary hearing. This

court even expressly noted its decision did “not decide the distinct question of

whether there exists a constitutional due process right to confront witnesses because

Rule 542(C) authorizes limited confrontation rights.” Ricker, 120 A.3d. at 362 n.7.

64A

Thus, Ricker is neither controlling nor dispositive on the issue of fundamental due

process that Mr. Herndon now raises.

Moreover, were Mr. Herndon not permitted to litigate this interlocutory

appeal, it is highly likely this Court would never reach the merits of the important

question presented. Why? Because once his criminal case has concluded by

whatever means (acquittal, conviction, guilty or nolo contendere plea), the issue will

have been rendered moot and would be capable of repetition and likely to evade

judicial review if this Court were to await a final order. See, e.g., Commonwealth v.

Walter, 966 A.2d 560, 565 (Pa. 2009), citing Commonwealth v. Lee, 662 A.2d 645,

650 (Pa. 1995) (deeming moot claims that evidence failed to establish prima facie

case at preliminary hearing as well as that judge should have recused himself;

defendant convicted); Commonwealth v. McCullough, 461 A.2d 1229, 1231 (Pa.

1983) (concluding that Commonwealth's failure to establish prima facie case at

preliminary hearing was immaterial where it subsequently met its burden of proof

beyond a reasonable doubt at trial).

Lastly, while some may point to this Honorable Court’s decision in

Commonwealth v. McClelland, 165 A.3d 19, (Pa. Super. 2017), as controlling on

the issue Mr. Herndon raises, the uncertainty surrounding the prior opinion is

illustrated by the Supreme Court granting allowance of appeal. Rather than being

well-established precedent, the waters surrounding this issue could not be any more

65A

clouded. This is further illustrated by a proposed amendment to Rule 542(E)

currently pending. On January 2, 2019, the Supreme Court of Pennsylvania Criminal

Procedure Rules Committee proposed an amendment of Rule 542(E), which

specifically dictates that hearsay alone cannot establish all elements of a crime. In

the Official Report accompanying the proposed amendment of Rule 542(E), the

committee stated that “establishment of a prima facie case by hearsay alone, as held

by the Superior Court in Ricker, was not appropriate” and “Verbonitz. . . is still

good law and stands for the proposition that a prima facie case may not be found

exclusively on hearsay evidence.” Report: Use of Hearsay at Preliminary Hearing,

Proposed Amendment of Pa.Rs.Crim.P. 542, 543, and 1003, (published January 2,

2019), page 31.

While the proposed amendment to Rule 542(E) has not yet been adopted, its

very existence, along with the Supreme Court’s decision to grant review in

McClelland, should cast a long shadow over the use of solely hearsay evidence,

alone, to establish a prima facie case at a preliminary hearing. These two

developments, combined with the obvious uncertainty created by the Supreme

Court’s Ricker opinions, should raise serious enough concerns about denying a

defendant his right to due process at the preliminary hearing, and demonstrate that

substantial ground exits for a difference of opinion on this issue, necessitating an

immediate appeal to advance the termination of the matter.

66A

Respectfully Submitted,

_/s/ Matthew Ness_____________

Matthew Ness, Esquire

PA I.D. # 208026

67A

APPENDIX

Order in Question

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA

CR1 MI NAL

COMMONWEALTH OF PENNSYLVANIA

-vs-

569 Criminal 2019

TYLER WILLIAM HERNDON

ORDER

AND NOW, this 16th day of October, 2019, IT IS THE

ORDER OF COURT that the defendant’s Petition for Habeas

Corpus Relief is DENIED.

Pursuant to 42 Pa. C.S.A. §702 it is this Court’s

opinion that this order involves a controlling question of

law as to which there is substantial ground for difference

of opinion, and that an immediate appeal from the order may

materially advance the ultimate termination of the matter.

BY THE COURT:

Robert G. Yeatts,

President Judge

68A

II.

Opinion in Support of Order in Question

IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA

CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

-vs-

569 Criminal 2019

TYLER WILLIAM HERNDON

ADJUDICATION

AND NOW, this 16th day of October, 2019, this

matter coming before the Court on the defendant’s Motion for

Habeas Corpus Relief, and after consideration of the motion

and attachments, including the transcript from the

preliminary hearing, which the parties stipulated to, and

the Commonwealth’s Exhibit 1; and after further

consideration of argument, THE COURT FINDS as follows:

FACTUAL BACKGROUND:

On or about March 18, 2019 the defendant was charged

with one count of rape, one count of involuntary deviate

sexual intercourse, one count of aggravated assault, one

count of strangulation, one count of aggravated indecent

assault, one count of unlawful restraint, two counts of

indecent assault, one count of simple assault, and one count

69A

of recklessly endangering another person.

The preliminary hearing was held before a

Magisterial District Judge on or about Match 27, 2019.

The

Commonwealth called one witness, that being Pennsylvania

State Police Trooper Zachary Julian.

Trooper Julian had

been dispatched to the Grove City Medical Center for a

reported sexual assault involving the victim.

Trooper

Julian testified that he met the victim at the hospital

which time she provided certain information.

Trooper Julian

testified at the preliminary hearing as to the statements

given by the victim.

The victim did not testify, nor was

she present at the preliminary hearing.

As a result of the statement, Trooper Julian

obtained a search warrant for the defendant’s home.

Trooper

Julian executed that search warrant and located and seized

certain items, including but not limited to a used condom,

sex toys, and other items, all having been described by the

victim.

These items were not produced at the preliminary

hearing.

Defense argues that the Commonwealth cannot rely

solely on hearsay evidence at a preliminary hearing to

establish a prima facia case.

Defense argues further that

should the Court deny his petition, that the Court should

authorize an interlocutory appeal pursuant to 42 Pa. C.S.A.

§702.

70A

The Commonwealth argues that it did not rely

solely on hearsay evidence, but also on the items found and

seized pursuant to the search warrant, which corroborates

the statement of the victim.

The Commonwealth also argues

that it now has a DNA report from the Pennsylvania Crime

Lab.

THE COURT NOTES that the Commonwealth relies on

the case of Commonwealth vs. Ricker, 170 A.3d 494 (Pa.

2017)

THE COURT FINDS that although the Commonwealth did

produce testimony regarding certain items seized at the

defendant’s home, which tend to corroborate the statement

given by the victim to the police officer, the Commonwealth

is solely relying on hearsay to establish the consent

element for the sexual offenses and the mens tea element for

the offenses of simple assault and recklessly endangering

another person.

However, THE COURT FINDS that the

Commonwealth did establish a prima facia case and the

defense motion will be denied.

The Court does note that the

issue raised in this matter is pending before the

Pennsylvania Supreme Court and does involve a controlling

question of law as to which there is substantial ground for

difference of opinion, and that an immediate appeal from the

order may materially advance the ultimate termination of the

matter, and the Court will enter an appropriate order.

71A

III.

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72A

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73A

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74A

CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the provisions of the Public Access

Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate

and Trial Courts that require filing confidential information and documents

differently than non-confidential information and documents.

Respectfully Submitted:

WORGUL, SARNA & NESS, LLC

By:___/s/ Matthew Ness____

Matthew Ness, Esquire

PA I.D. No. 208026

75A

IN THE SUPERIOR COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee,

vs.

NO. ____ MD 2019

TYLER HERNDON,

Appellant.

PROOF OF SERVICE

I hereby certify that I am this day serving the within attached document upon

the persons and in the manner indicated below which service satisfies the

requirements of Pa.R.App.P. 121:

Hon. Robert G. Yeatts, P.J.

Mercer County Courthouse

Mercer, PA 16137-1295

Kara Rice, Esquire

Mercer County District Attorney’s Office

209 Mercer County Courthouse

Mercer, PA 16137-1295

Peter A. Morin, Esq.

Court Administrator

3 Floor Mercer County Courthouse

Mercer, PA 16137

Kathleen M. Koos

Clerk of Courts

1112 Mercer County Courthouse

Mercer, PA 16137

Tyler Herndon

2495 Mercer Street

Stoneboro, PA 16153

_/s/ Matthew Ness_____________

Matthew Ness, Esquire

76A

APPENDIX F

(Denial of Petition for Allowance to Appeal)

77A

Filed 01/08/2020

COMMONWEALTH OF PENNSYLVANIA

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Mercer County Criminal Division

CP-43-CR-0000569-2019

No. 153 WDM 2019

TYLER WILLIAM HERNDON

ORDER

The Court hereby DENIES the petition for permission to appeal and the

answer filed thereto.

PER CURIAM

78A

APPENDIX G

(Petition for Allocatur to the Supreme Court of Pennsylvania)

79A

Received 2/7/2020 11:08:54 AM Supreme Court Western District

Filed 2/7/2020 11:08:00 AM Supreme Court Western District

7 WM 2020

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

_ _ _ WAL 2020

COMMONWEALTH OF PENNSYLVANIA,

Appellee

TYLER HERNDON,

Appellant

PETITION FOR ALLOWANCE OF APPEAL

Petition for Allowance of Appeal from the Order of the Superior Court of

Pennsylvania, entered on January 8, 2020, denying Mr. Herndon’s Petition for

Permission to Appeal from the Opinion and Order entered October 16, 2019 in the

Court of Common Pleas of Mercer County, Pennsylvania, at CP-43-CR-569-2019,

denying Mr. Herndon’s Petition for Habeas Corpus Relief.

Counsel of Record for the Petitioner

Matthew Ness, Esquire

PA I.D. No. 208026

WORGUL, SARNA & NESS,

CRIMINAL DEFENSE ATTORNEYS, LLC.

429 Fourth Avenue

Suite 1700

Pittsburgh, Pennsylvania 15219

Phone: 412-862-0347

Fax: 412-402-500

80A

TABLE OF CONTENTS

TABLE OF CASES ................................................................................................. 2

OPINIONS IN THE COURT BELOW ................................................................. 3

ORDERS IN QUESTION ....................................................................................... 4

QUESTIONS PRESENTED FOR REVIEW ....................................................... 5

STATEMENT OF THE CASE .............................................................................. 6

REASONS FOR ALLOWANCE OF APPEAL ................................................. 10

I. GIVEN THIS HONORABLE COURT’S IMMINENT DECISION IN MCCLELLAND,

MR. HERNDON NOW SEEKS TO PRESERVE APPELLATE REVIEW OF HIS CLAIM THAT

PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 542(E) VIOLATES HIS

FUNDAMENTAL RIGHT TO DUE PROCESS, WHEN THE COMMONWEALTH RELIED

EXCLUSIVELY UPON HEARSAY TESTIMONY TO ESTABLISH A PRIMA FACIE CASE. ... 11

II.

BY PERMITTING THE COMMONWEALTH TO RELY EXCLUSIVELY UPON

HEARSAY EVIDENCE TO ESTABLISH A PRIMA FACIE CASE, PENNSYLVANIA RULE OF

CRIMINAL PROCEDURE 542(E) EFFECTIVELY DENIED MR. HERNDON HIS RIGHT TO

THE EFFECTIVE ASSISTANCE OF COUNSEL AT A “CRITICAL STAGE” OF THE

PROSECUTION. ...................................................................................................... 16

PRAYER FOR RELIEF ....................................................................................... 20

CERTIFICATE OF COMPLIANCE .................................................................. 21

APPENDIX A ........................................................................................................ 22

APPENDIX B......................................................................................................... 23

PROOF OF SERVICE.......................................................................................... 26

81A

TABLE OF CASES

CASES

Coleman v. Alabama, 399 U.S. 1, 26 L.Ed.2d 387 (1970) ..................................... 17

Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990) .... 5, 7, 11,

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.1967) ............ 17

Commonwealth v. Albert, 561 A.2d 736 (Pa.1989)................................................ 17

Commonwealth v. Lee, 662 A.2d 645 (Pa. 1995) ................................................... 14

Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super. 2017)............................. 14

Commonwealth v. McClelland, 179 A.3d 2 (Pa. 2018) .................................... 10, 15

Commonwealth v. McCullough, 461 A.2d 1229 (Pa. 1983)................................... 14

Commonwealth v. Ricker, 170 A.3d 494 (Pa. 2017) ........................................ 12, 13

Commonwealth v. Walter, 966 A.2d 560 (Pa. 2009), ............................................. 14

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932) ................ 16

United States v. Wade, 388 U.S. 227, 87 S.Ct. 1926, 1932 (1967) ........................ 16

STATUTES

42 Pa. C.S.A. § 702(b) .............................................................................................. 8

OTHER AUTHORITIES

Report: Use of Hearsay at Preliminary Hearing, Proposed Amendment of

Pa.Rs.Crim.P. 542, 543, and 1003, (published January 2, 2019) ........................ 15

RULES

Pennsylvania Rule of Appellate Procedure 1311(b) ................................................. 8

Pennsylvania Rule of Criminal Procedure 542(E) ............ 5, 6, 10, 11, 13, 15, 16, 19

82A

OPINIONS IN THE COURT BELOW

On January 8, 2020, in a PER CURIAM order entered at 153 WDM 2019, the

Superior Court of Pennsylvania denied Mr. Herndon’s Petition for Allowance to

Appeal from an order entered at CP-43-CR-569-2019 by the Honorable President

Judge Robert G. Yeatts denying Mr. Herndon’s Petition for Habeas Corpus Relief.

The PER CURIAM ORDER of the Superior Court is attached hereto,

incorporated herein by this reference, and referred to hereafter as “Appendix A”.

The opinion of the Honorable President Judge Yeatts is attached hereto,

incorporated herein by this reference, and referred to hereafter as “Appendix B”.

83A

ORDERS IN QUESTION

“The Court hereby DENIES the petition for permission to appeal and the

answer filed thereto.”

PER CURIAM

Date: 1/08/2020

“AND NOW, this 16th day of October, 2019, IT IS THE ORDER OF COURT

that the defendant’s Petition for Habeas Corpus Relief is DENIED.

“Pursuant to 42 Pa. C.S.A. § 702 it is this Court’s opinion that this order

involves a controlling question of law as to which there is substantial ground for

difference of opinion, and that an immediate appeal from the order may materially

advance the ultimate termination of the matter.”

BY THE COURT,

/s/ Robert G. Yeatts

President Judge

84A

QUESTIONS PRESENTED FOR REVIEW

Whether Pennsylvania Rule of Criminal Procedure 542(E) violates a

defendant’s fundamental Right to Due Process, in that it directly conflicts with our

Supreme Court’s decision in Commonwealth ex rel. Buchanan v. Verbonitz, 581

A.2d 172, 174 (Pa. 1990), in which five (5) Justices held that “fundamental due

process requires that no adjudication be based solely on hearsay evidence” when the

Commonwealth relies solely upon hearsay evidence to establish a prima facie case.

Answered in the Negative below.

Whether Pennsylvania Rule of Criminal Procedure 542(E) denies a defendant

the fundamental Right to Counsel, despite counsel’s physical presence at a

preliminary hearing, when counsel is denied the ability to meaningfully crossexamine witnesses with first-hand knowledge of the evidence against the accused,

where the Commonwealth relies solely upon hearsay evidence to establish a prima

facie case, in violation of the Sixth Amendment to the United States Constitution

and Article 1 Section 9 of the Pennsylvania Constitution.

Answered in the Negative below.

85A