Petition for Writ of Certiorari — Donia v. Cerebral Palsy Collingswood Activity Center

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Suprema Court, U.S.

4 , BRLRED

MO. JAN § 1991

JOSEPH F. SPANIOL, JR.

clerk

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

CORREALE F. STEVENS, District

Attorney of Luzerne County,

M. RUSSELL BUCHANAN,

Petitioner

Vv.

Respondent

PETITION

TO THE SUPREME COURT OF PENNSYLVANIA

FOR WRIT OF CERTIORARI

January 8, 1991

RONALD EISENBERG

Special Assistant District

Attorney for Luzerne County

(Counsel of Record)

GEORGE S. LEONE

Special Assistant District

Attorney for Luzerne County

1421 Arch Street

Philadelphia, PA 19102

(215) 686-5730

MARI M. VAN WIE

Assistant District Attorney

for Luzerne County

Luzerne County Courthouse

Wilkes-Barre, PA 18711

Counsel for Correale F.

Stevens, District Attorney

of Luzerne County

a aay

QUESTION PRESENTED

Do the sixth and fourteenth amend-

ments, through the confrontation and due

process clauses, compel the total or

partial exclusion of hearsay from state

preliminary hearings?

y > . _ a

S. “Pemdegeodéeses

LIST OF PARTIES

In the courts below, this case was

captioned "Commonwealth of Pennsylvania ex

rel. M. Russell Buchanan v. District Jus-

tice Edward Verbonitz and the District

Attorney of Luzerne County." District Jus-

tice Edward Verbonitz, as a purely titular

party, has no interest in the outcome of

this petition and is thus not included in

its caption.

» 44 «

4 c > ry A ’ eae |

TABLE OF CONTENTS

PAGE

Question Presented i

List of Parties ii

Table of Authorities v-x

Opinions Below

Statement of Jurisdiction

Constitutional Provisions

Involved 2-3

Statement of the Case 3-13

Reasons for Granting the Writ

The confrontation and

due process clauses of

the sixth and fourteenth

amendments do not compel

the total or partial

exclusion of hearsay

from state preliminary

hearings. 14-35

Conclusion 36

Appendix A:

Judgment and Opinion

of the Supreme Court

of Pennsylvania 1A-27A

Appendix B:

Letter Order of the

Superior Court of

Pennsylvania 1B

- iii -

-_.

Serpe: oe

PAGE

Appendix C:

Opinion and Orders of

the Court of Common

Pleas of Luzerne

County, Pennsylvania 1¢-8C

- iv -

TABLE OF AUTHORITIES

Federal Cases

Adams v. Illinois, 405 U.S.

278 (1972)

Barber v. Page, 390 U.S. 719

(1968)

California v. Green, 399 U.S.

149 (1970)

Coleman v. Alabama, 399 U.S.

1 (1970)

Coleman v. Burnett, 477 F.2d

1187 (D.C. Cir. 1973)

Costello v. United States,

350 U.S. 359 (1956)

Gerstein v. Pugh, 420 U.S.

103 (1975)

Geldsby v. United States,

160 U.S. 70 (1895)

Kentucky v. Stincer, 482

U.S. 730 (1987)

Mancusi v. Stubbs, 408 U.S.

204 (1972)

McCray v. Illinois, 386 U.S.

300 (1967)

Michigan v. Long, 463 U.S.

1032 (1983)

PAGE

15,32

10-15,

26-28,

31-32,

23,28

10-11,

13-15,

24-26,

29-32,

Pennsylvania v. Ritchie, 480

U.S. 39 (1987) 32

United States ex rel. Rutz

United States v. Andrus, 775

v. Levy, 268 U.S. 390

(1925) 25

F.2d 825 (7th Cir. 1985) 33

United States v. Mitchell,

540 F.2d 1163 (3d Cir.

1976), cert. denied, 429

U.S. 1099 (1977) 33

United States v. Wade, 388

U.S. 218 (1967) 27

United States v. Wilkins,

422 F. Supp. 1371 (E.D.

Pa.), aff'd mem., 547 F.2d

1164, 1166 (3d Cir. 1976)

and 559 F.2d 1210 (3d Cir.

1977), vacated, 441 U.S.

468 (1979), aff'd men.,

601 F.2d 577, 578 (3d

Cir.), cert. denied, 444

U.S. 877 (1979) 33-34

State Cases

Commonwealth ex rel.

Buchanan v. Verbonitz,

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

Commonwealth ex rel.

Buchanan v. Verbonitz,

518 Pa. 469, 544 A.2d

447 (1988) )

- vi -

Commonwealth v. Bestwick,

489 Pa. 603, 414 A.2d

1373 (1980)

Commonwealth v. Branch, 292

Pa. Super. 425, 437 A.2d

748 (1981), appeal denied

Commonwealth v. Cartagena,

482 Pa. 6, 393 A.2d 350

(1978)

Commonwealth v. Carver, 292

Pa. Super. 177, 436 A.2d

1209 (1981)

Commonwealth v. Davis, 308

Pa. Super. 204, 454 A.2d

92 (1982), appeal denied

Commonwealth v. Genovese,

493 Pa. 65, 425 A.2d 367

(1981)

Commonwealth v. Mayberry,

459 Pa. 91, 327 A.2d 86

(1974)

Commonwealth v. McCloskey,

443 Pa. 117, 277 A.2d 764

cert. denied, 404 U.S.

1000 (1971)

Commonwealth v. Prado, 481

Pa. 485, 393 A.2d 8 (1978)

Commonwealth v. Rashed, 496

Pa. 26, 436 A.2d 134 (1981)

Commonwealth v. Rick, 244 Pa.

Super. 33, 366 A.2d 302

(1976)

- vii -

20,26

20,23

it rt

20,26

Commonwealth v. Ruza, 511 Pa.

59, 511 A.2d 808 (1986)

Commonwealth v. Scarborough,

491 Pa. 300, 421 A.2d 147

(1980)

Commonwealth v. Troop, 391

Pa. Super. 613, 571 A.2d

1084 (1990)

Commonwealth v. Wojdak, 502

Pa. 359, 466 A.2d 991

(1983)

Commonwealth, Unemployment

Compensation Board of

Review v. Ceja, 493 Pa.

588, 427 A.2d 631 (1981)

Herbert v. Superior Court,

117 Cal. App. 3d 661, 172

Cal. Rptr. 850 (1981)

Liciaga v. Court of Common

Pleas, 523 Pa. 258, 566

A.2d 246 (1989)

Nollins v. Superior Court,

224 Cal. App. 3d 1171,

274 Cal. Rptr. 487, review

granted, 1990 Cal. LEXIS

5550 (Cal. 1990)

People v. Campbell, 92 Misc.

2a 732, 401 N.Y.S.2d 152

(1978)

State v. Anderson, 612 P.2d

778 (Utah 1980)

- wail -

15,16

20,26

17,18

21,34

, PAGE

State v. Massengill, 39 N.M.

283, 657 P.2d 139 (App.

1983) 35

United States v. Edwards,

430 A.2d 1321 (D.C. App.

1981), cert. denied, 455

U.S. 1022 (1982) 34

Wilson v. State, 655 P.2d

1246 (Wyo. 1982) 21,34

Federal Constitution,

Statutes, and Rules

U.S. Const., Amend. VI i1,2-3,

rm Pet P

U.S. Const., Amend. XIV = * -

18 U.S.C. §3060 16

28 U.S.C. §1257 2

Fed. R. Crim. P. 5 16,19

Fed. R. Crim. P. 5.1 16-20

Fed. R. Evid. 1101 20

Pennsylvania Constitution,

Statutes, and Rules

Pa. Const., Art. I, #9 11

42 Pa. Cons. Stat. Ann.

§3112 23

- 1x -

Other Authorities

Note, Confrontation Rights

and Preliminary Hearings,

1986 Utah L. Rev. 75 ys Oe

ee = eee ee - eer Se a

9 el ee a ye ae Fed reais yee ee ee ee a

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

CORREALE F. STEVENS, District

Attorney of Luzerne County,

Petitioner

Vv.

M. RUSSELL BUCHANAN,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

Petitioner, Correale F. Stevens,

District Attorney of Luzerne County,

respectfully prays that a writ of certio-

rari issue to review the judgment and

opinion of the Supreme Court of Pennsyl-

vania, entered in this matter on October

10, 1990.

= ee

“as, 4

OPINIONS BELOW

The opinion of the Supreme Court of

Pennsylvania is reported at 581 A.2d 172,

and reprinted in Appendix A at 2A-27A. The

unpublished letter order of the Superior

Court of Pennsylvania is reprinted in |

Appendix B at 1B. The unpublished opinion

of the Court of Common Pleas of Luzerne

County is reprinted in Appendix ¢€ at 2C-7C.

STATEMENT OF JURISDICTION '

The judgment to be reviewed was

entered by the Supreme Court of Pennsyl-

vania on October 10, 1990. The jurisdic-

tion of this Court is invoked pursuant to

28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United

States Constitution, which 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 defence.

The Due Process Clause of Section 1

of the Fourteenth Amendment to the United

States Constitution, which provides:

nor shall any State deprive any

person of life, liberty, or property,

without due process of law

STATEMENT OF THE CASE

Subject to proof at trial, the facts

of this case are as follows: On Saturday,

April 26, 1986, Demita E., a seven-year-old

girl, was alone with respondent in Demita's

house in Wilkes-Barre Township, Luzerne

County, Pennsylvania. Respondent, then the

paramour of Demita's mother, was

responsible for babysitting Demita that

weekend. Early on the morning of April

26th, Demita, who was still in her pajamas,

went into respondent's bedroom and asked if

he was going to take her to her swimming

lessons. Respondent called her over to his

bed. - He then grabbed her and pulled her

into the bed. Respondent held one hand

over Demita's mouth, and used the other

hand to remove her pajama shorts. Respon-

dent, who was already naked, then turned

the frightened child sideways and inserted

his penis into her anus from the rear. He

went in and out of Demita at least five

times, causing her great pain. Following

these acts, respondent sent Demita to her

room for the remainder of the day. He also

told the child that he would always be

around, and that he would beat or whip her

if she ever told anyone of the incident

(8.2. 7/13/67, 7, 9-12).

ee he en ae ne 6 EE A eh ek Te ay a gn ee, > ies a eo ae a * “<= =

Demita and her mother subsequently

moved from Wilkes-Barre to Charleston,

West Virginia. On January 30, 1987, they

reported the attack to a West Virginia

State agency, the Family Service Program

of Kanawha Valley. Representatives of that

agency interviewed Demita several times.

The West Virginia agency contacted the

Luzerne County District Attorney's Office,

which assigned Detective Lieutenant Daniel

Yursha to investigate. The detective twice

interviewed respondent, who denied the

incident. Detective Yursha also, on June

19, 1987, interviewed Demita. The detec-

tive subsequently swore out a complaint

averring that respondent's actions consti-

tuted statutory rape and other crimes. On

June 24, 1987, respondent was arrested. He

was immediately released on bail, and has

remained on bail throughout these proceed-

ings (N.T. 7/13/87, 3, 5-7, 13-16, 20-23,

aay OT)

A preliminary hearing was held on July

13, 1987, before a magistrate, District

Justice Edward Verbonitz. At that prelim-

inary hearing, Detective Yursha testified

as to che events leading up to his June 19,

1987 interview with Demita. Because Demita

was then living in West Virginia and was

not present to testify, the assistant dis-

trict attorney requested the magistrate's

permission for Detective Yursha to testify

regarding the facts Demita had related to

him. Upon receiving the on-record assur-

ance of both the assistant district attor-

ney and the detective that Demita would be

present to testify at trial,2 the hearing

magistrate permitted Detective Yursha to

testify to the facts as above stated (N.T.

7/13/87, 3-4, 15).

lpetective Yursha testified that

Demita's mother had agreed that the child

would be present at trial (N.T. 7/13/87,

Ro).

Respondent's counsel objected to this

testimony by Detective Yursha, stating |

that it was hearsay, and complaining that

because Demita was not present he was

unable to confront or cross-examine her as

“guaranteed under the constitution" (N.T.

7/13/87, 30). The magistrate overruled the

objection, relying on established Pennsyl-

vania law permitting hearsay which would be

inadmissible at trial to be used in prelim-

inary hearings. Respondent's counsel

then cross-examined Detective Yursha. The

magistrate held the case for court (N.T.

7/13/87, 3-4, 7-12, 18-20, 28, 30, 32-33).

On August 25, 1987, respondent filed

in the Court of Common Pleas of Luzerne

County a petition for writ of habeas cor-

pus. In his petition, respondent claimed

that Detective Yursha's testimony violated

his federal constitutional rights under the

sixth amendment to confrontation and to

2See note 21, intra.

> «

counsel, and demanded that the charges

against him be dismissed. At a hearing

before Judge Bernard C. Brominski of the

Court of Common Pleas, the district attor-

ney again confirmed that Demita's mother

had agreed Demita would be present for

trial (N.T. 9/9/87, 1, 8). On September

14, 1987, the Court of Common Pleas denied

the petition for habeas corpus. ?

After the Common Pleas Court rejected

respondent's demand that it certify the

question for appeal, respondent nonetheless

obtained a stay of proceedings and filed a

petition for review to the Supreme Court of

Pennsylvania, the highest state court. In

his petition for review, respondent renewed

his claim that he had been denied his rights

under the sixth and fourteenth amendments

of the United States Constitution. The

3In support of the September 14, 1987

order, the court on February 19, 1988,

issued an opinion, accompanied by an order

reaffirming the denial of respondent's

petition for habeas corpus (App. 2C-8C).

» @ «

Supreme Court of Pennsylvania received and

considered briefs on the merits, and then,

on jurisdictional grounds, transferred the

petition for review to the intermediate

appellate court, the Superior Court of

Pennsylvania. 4 The Superior Court denied

the petition for review on October 3, 1988.

Respondent sought discretionary review

by the seven-member Pennsylvania Supreme

Court. The Supreme Court granted dis-

cretionary review, received briefs and

argument, and later ordered the case resub-

mitted to permit its consideration by a

newly-seated justice. On October 10, 1990,

the Pennsylvania Supreme Court over two

dissents reversed the Superior Court,

dismissed the charges and discharged the

respondent.

Three justices, speaking through

Justice Larsen, held that the use of

4the Supreme Court's order transfer-

ring the petition is published at 518 Pa.

469, 544 A.2d 447 (1988).

» 9 «

iti

hearsay at a preliminary hearing violated

respondent's right to confrontation. In

reaching that conclusion, the three jus-

tices emphasized that this Court in Coleman

v. Alabama, 399 U.S. 1 (1970), had "held

that a preliminary hearing is a ‘critical

stage' of the prosecution so as to consti-

tutionally require representation by coun-

sel," and had discussed the importance of

counsel for cross-examination (App. at 7A-

SA). The three justices also emphasized:

While the United States Supreme

Court has not specifically held that

the full panoply of constitutional

safeguards (ie. [sic], confrontation,

cross-examination, and compulsory

process) must attend a preliminary

hearing, it has inferred as much in

Gerstein v. Pugh, 420 U.S. 103, 95

S.Ct. 854, 43 L.Ed.2d 54 (1975).

(App. at 10A-11A). Based on the language

of Pugh and Coleman, the three justices

found that respondent "was denied the right

- 1D «

to confront and cross-examine the witnesses

against him" (App. at 11A).°

Two other justices, speaking through

Justice Flaherty, concurred in the result

but based their analysis on the due process

clause. The two justices stated that this

Court's precedent provided the framework

for their opinion, noting that this Court

in Coleman had found a constitutional right

to counsel at preliminary hearings, and

that this Court had implied in Pugh that

the rights to confrontation and cross-exam-

ination were constitutionally protected <.

a preliminary hearing. The two justices

then went on to rule that "[f£]Jundamental

due process requires that no adjudication

be based solely on hearsay evidence" (App.

at 16A). The two justices reasoned that

this principle a fortiori applied to a

Justice Larsen, without citing any

other authority, also found a correlative

right under Art. I, §9, of the Pennsylvania

Constitution.

- ll -

ices

preliminary hearing because under Coleman

it was a critical stage of a criminal

proceeding. ©

Chief Justice Nix, joined by Justice

McDermott, dissented, saying, "I am con-

strained to disagree with the holding that

the Sixth Amendment of the United States

Constitution which provides the accused

with the right of confrontation in criminal

proceedings was offended by the procedures

followed in the instant matter" (App. at

19A-20A). The dissenting justices vigor-

ously disagreed with the other justices'

conclusion that the protection afforded

defendants at this preliminary Stage of the

criminal prosecution encompassed the sixth

amendment right to confront and

6The three justices speaking through

Justice Larsen agreed that this principle

of due process must apply to preliminary

hearings (App. at 5A-6A).

« 42 «

cross-examine potential Commonwealth

witnesses.” Justice McDermott ase filed

a separate dissenting opinion to emphasize

the limited function of a preliminary

hearing.

Because the majority of the Supreme

Court of Pennsylvania mistakenly deter-

mined, based on Coleman and Pugh, that the

United States Constitution forecloses the

instant use of hearsay testimony at prelim-

inary hearings, petitioner, Correale F.

Stevens, District Attorney of Luzerne

County, files this petition for writ of

certiorari.

7 The dissenting justices also noted

that the other justices' conclusion con-

flicted with "the overriding interest this

Commonwealth has shown in protecting child

witnesses in abuse cases" (App. at 22A).

— ae

- 13-

REASONS FOR GRANTING THE WRIT

THE CONFRONTATION AND DUE PROCESS

CLAUSES OF THE SIXTH AND FOURTEENTH

AMENDMENTS DO NOT COMPEL THE TOTAL

OR PARTIAL EXCLUSION OF HEARSAY

FROM STATE PRELIMINARY HEARINGS.

This Court has never held that the

right of confrontation which applies in

criminal trials extends to preliminary

hearings. Nor has this Court ever inti-

mated that states were not free to allow

hearsay in their preliminary hearings.

Nonetheless, in this case the Pennsylvania

Supreme Court, relying on language in this

Court's opinions in Coleman v. Alabama, 399

U.S. 1 (1970), and Gerstein v. Pugh, 420

U.S. 103 (1975), ruled that the sixth and

fourteenth amendments to the United States

Constitution require the total or partial

exclusion of hearsay evidence in prelimi-

nary hearings under the confrontation and

due process clauses. This dramatic misin-

terpretation of the Constitution distorts

- 14 «

Disiinits

Coleman and Pugh, and is inconsistent with

this Court's repeated pronouncement that

confrontation is a trial right. Further,

the decision is in conflict with numerous

federal and state courts. Because this

drastic extension of trial strictures to

the preliminary hearing threatens its

ability to serve the important function

assigned to it under both state and federal

procedure, this Court should grant review

of this far-reaching constitutional issue.

In Pennsylvania, as elsewhere, the

preliminary hearing performs a limited but

vital function -- to protect against arrest

and detention without cause by providing a

prompt post-arrest assessment by a neutral

magistrate. 8 Of necessity, the procedure

is streamlined. The Pennsylvania Rules of

8 commonwealth, v. Ruza, 511 Pa. 59,

64, 511 A.2d 808 71986); Commonwealth v.

Rashed, 496 Pa. 26, 32, 436 A.2d 134

(1981); accord Barber v. Page, 390 U.S.

719, 725 (1968).

e 1$ «

’

;

= sed _)

: - = en a ee ee piel Tits sit ee ee

Criminal Procedure, ? like the federal

rules,/9 provide that the preliminary

hearing must be held within ten days of the

post-arrest preliminary arraignment.1}1 It

is held before a magistrate, +2 who deter-

mines only whether the accused should be

held for trial./3 The prosecution need

not establish guilt beyond a reasonable

Isee Pa. R. Crim. P. 140-49. These

rules establish and define the preliminary

hearing in Pennsylvania. There is no state

constitutional right to a preliminary hear-

ing, Commonwealth v. Ruza, 511 Pa. at 64;

Commanwealth v. Mayberry, 459 Pa. 91, 103,

327 A.2d 86 (1974), and the rules supersede

the prior statutory provisions, Common-

weaith v. Mayberry, 459 Pa. at 103.

10redq. R. Crim. P. 5, 5.1.

llpa. R. Crim. P. 140(d); see Fed. R.

Crim. P. 5(d) (ten days in custody, twenty

days if not in custody); 18 U.S.C. §3060.

The preliminary arraignment, in turn, must

be held “without unnecessary delay" (usu-

ally within hours) after the arrest. Pa.

R. Crim. P. 122, 130; accord Fed. R. Crim.

Pp. Sta).

l2see Pa. R. Crim. P. 141(d), 3(k);

accord Fed. R. Crim. P. 5.1.

l3pa. R. Crim. P. 141(d), 143(a);

accord Fed. R. Crim. P. 5.l(a), (b).

- 16 «

doubt, but must show only "a prima facie

case of the defendant's guilt."14 The

actual guilt or innocence of the accused,

the credibility of witnesses, and the

weight of the evidence are not before the

magistrate.1° Rather, if the requisite

l4pa. R. Crim. P. 143(a), 141(d).

Federal Rule of Criminal Procedure 5.1 uses

the phrase "probable cause to believe that

an offense has been committed and that the

defendant has committed it." Fed. R. Crim.

P. 5.1(a), (b). Judicial interpretations

of the Pennsylvania rules use the phrases

“prima facie" and “probable cause" inter-

changeably. E.g., Commonwealth v. Wojdak,

502 Pa. 359, 367-68, 466 A.2d 991 (1983)

(the Commonwealth must present "sufficient

probable cause to believe that the person

charged has committed the offense stated;

in other words, it should make out a prima

facie case of guilt" (plurality opinion;

Citations and quotation marks omitted) );

Commonwealth v. Prado, 481 Pa. 485, 489,

393 A.2d 8 (1978) (the Commonwealth must

show “at least prima facie that a crime

has ‘been committed and the accused is the

one who committed it. This does not mean

that the prosecution must prove the

accused guilty beyond a reasonable doubt

but rather, the prosecution must establish

sufficient probable cause that the accused

has committed the offense." (citations and

quotation marks omitted)).

15Liciaga v. Court of Common Pleas,

3923 Pa. 258, 263-64, 270, 566 A.2d 246

(continued...)

o 49 «

bal sd

showing is made, the magistrate must bind

the accused over for trial.!® 1I£ the

showing is not made, the defendant is not

acquitted but merely discharged, subject to

rearrest for me same or different charges,

on the same or different evidence.!’

Given the limited scope and lack of

finality of the preliminary hearing, the

lavish procedural protections afforded

defendants at trial are not extended at a

preliminary hearing. The Pennsylvania

rules specify that the accused shall be

present, and may, if he desires, be

13( .. continued)

(1989); Commonwealth v. Wojdak, 502 Pa. at

369; Commonwealth v. Cartagena, 482 Pa. 6,

14, 393 A.2d 350 (1978).

16pa. R. Crim. P. 143(a); accord Fed.

R. Crim. P. 5.1(a).

17pa. R. Crim. P. 141(d); Liciaga v.

Court of Common Pleas, 523 Pa. at 266, 267;

Commonwealth v. Genovese, 493 Pa. 65, 69

n.7, 425 A.2d 367 (1981); Commonwealth v.

Cartagena, 482 Pa. at 14-15; accord Fed.

R. Crim. P. 5.1(b) ("The discharge of the

defendant shall not preclude the government

from instituting a subsequent prosecution

for the same offense").

» 16

represented by counse1/8

and call wit-

nesses to a limited extent.!? Like the

federal rules, the Pennsylvania rules also

permit the accused to "cross-examine wit-

nesses ... offered against him."29 Nota-

bly, the Pennsylvania rules, like the

federal rules, do not require application

of the rules of evidence governing trials;

instead, until the decision below, the

Pennsylvania Rules of Criminal Procedure

were interpreted to allow hearsay evidence

to be used in Pennsylvania »>reliminary

18pa. R. Crim. P. 141(c)(1); see Pa.

R. Crim. P. 140 (providing for the

appointment of counsel at the preliminary

arraignment); accord Fed. R. Crim. P. 5.

19ba. R. Crim. P. 141(c)(3) (the

accused may "call witnesses on his own

behalf other than witnesses to his good

reputation only"); see Fed. R. Crim. P. 5.1

(the defendant "may introduce evidence").

20ba. R. Crim. P. 141(c)(2); accord

Fed. R. Crim. P. 5.1(a) ("The defendant may

cross-examine adverse witnesses").

» 19 «

just as hearsay can be used

hearinss,

in federal preliminary hearings and in

2lcommonwealth v. Troop, 391 Pa.

Super. 613, 621-22, 571 A.2d 1084 (1990)

(admitting hearsay testimony by officer

that an accomplice had implicated the

defendant in the crime); Commonwealth v.

Davis, 308 Pa. Super. 204, 213-14, 454 A.2d

92 (1982), appeal denied (admitting hearsay

autopsy report to establish death and cause

of death); Commonwealth v. Branch, 292 Pa.

Super. 425, 430, 437 A.2d 748 (1981) (en

banc), appeal denied (admitting hearsay

testimony by officer that a witness had

seen the defendant shoot the victim); Com-

monwealth v. Rick, 244 Pa. Super. 33, 36-

37, 366 A.2d 302 (1976) (en banc) (admit-

ting hearsay blood test report to show that

the defendant was intoxicated); see Common-

wealth v. McCloskey, 443 Pa. 117, 137-39,

277 A.2dad 764, cert. denied, 404 U.S. 1000

(1971) (arguing that a preliminary hearing

provides only illusory benefit to the

accused vis a vis a grand jury presentment,

despite the right to cross-examine in the

former, because both can be based solely on

hearsay testimony); Commonwealth v. Best-

wick, 489 Pa. 603, 614, 414 A.2d 1373

(1980) (same).

22red. R. Crim. P. 5.1 ("The finding

of probable cause may be based upon hearsay

evidence in whole or in part"); see Fed. R.

Evid. 1101(d)(3) (federal rules of evidence

are inapplicable in preliminary hearings).

e 20 -

the preliminary hearings of the majority of

the other states. 7?

The decision below challenges the

constitutional power to permit the use of

hearsay at preliminary hearings. In so

doing, it imperils the operation of the

preliminary hearing.

To serve its function of providing a

speedy release from unfounded arrest and

detention, the preliminary hearing itself

must be speedily held. The application of

the confrontation clause to exclude hearsay

from preliminary hearings would destroy

that ability. To require that witnesses,

whose evidence might normally be presented

through affidavit or report, must be

23Note, Confrontation Rights and Pre-

liminary Hearings, 1986 Utah L. Rev. 75,

78; Wilson v. State, 655 P.2d 1246, 1250

(Wyo. 1982). In California, a ballot

initiative recently amended the state's

constitution and laws expressly to permit

the use of hearsay at preliminary hearings.

See Nollins v. Superior Court, 224 Cal.

App. 3d 1171, 274 Cal. Rptr. 487, 493,

review granted, 1990 Cal. LEXIS 5550 (Cal.

1990).

» 91 «

available before a hearing can be held, no

matter how distant or hard to get the wit-

nesses might be, will inevitably produce

substantial delay.24 To require live

testimony on every point, and by applica-

tion of the confrontation clause to remove

the strictures normally placed on cross-

examination at preliminary hearings, *>

24rhe facts of this case -- the

essential witness who moves out of state

after the crime -- show only one aspect of

the difficulties involved in assembling

live witnesses to replace hearsay in pre-

liminary hearings. The tourist whose car

was stolen on a brief visit to a major city

and whose simple and generally irrefutable

testimony regarding ownership and non-per-

mission is now submitted by affidavit, the

forensic pathologist who prepares autopsy

reports for ten rural counties and whose

reports are currently admitted in prelimi-

nary hearings hundreds of miles part, the

urban police chemist whose reports are now

used in over a thousand preliminary hear-

ings a year, all must now be present before

a preliminary hearing can be held. To

obtain such a witness risks substantial

delay; to coordinate such a witness with

ethers in a multi-witness preliminary hear-

ing guarantees substantial delay.

25tn Pennsylvania, as elsewhere, pre-

liminary hearing magistrates do not permit

as extensive cross-examination ina

(continued...)

» 22 «

will lengthen the hearings, causing back-

logs and additional delays. °® To require

the resolution of intricate confrontation

clause/hearsay issues at the preliminary

hearings might force the hearings to be

conducted, not by non-lawyers as is now

often the case, but by already-over-

stretched trial judges and prosecutors,

causing even more delay. Imposing such

25( .. continued)

preliminary hearing as is permitted at

trial. See Commonwealth v. Scarborough,

491 Pa. 300, 319, 421 A.2d 147 (1980); see

also Commonwealth v. McCloskey, 443 Pa. at

136; accord Coleman v. Burnett, 477 F.2d

1187, i201 (D.C. Ciz. 1973).

26nelay due to backlog is a very real

concern. There are over 50,000 preliminary

hearings per year in an urban county such

as Philadelphia.

27tn Pennsylvania, as in other states,

preliminary hearings may be held before

quasi-judicial officers -- magistrates,

justices of the peace, aldermen or district

justices -- who need not be lawyers, see

Pa. R. Crim. P. 141(d), 3(k); 42 Pa. Cons.

Stat. Ann. §3112, and the Commonwealth's

case is frequently presented by the "affi-

ant," i.e., a police officer, rather than

by an attorney for the Commonwealth, Pa. R.

Crim. PB. 141(b).

o 23 «

| delays on the preliminary hearing will

prevent it from providing the swift review

which is its sole justification. See Ger-

- stein v. Pugh, 420 U.S. at 120, 122 n.23

(complexity and delay argue against impos-

ing additional procedural requirements on

preliminary determinations) .28

28tmposing the confrontation clause on

preliminary hearings also increases the

high costs already imposed on victims and

non-governmental witnesses, whose partici-

pation is indispensable to the functioning

of the criminal justice system. These lay

witnesses already have to appear repeatedly

for trials which are repeatedly postponed.

Requiring such lay witnesses to appear also

at a preliminary hearing, which itself can

be repeatedly postponed -- by unscrupulous

defense counsel seeking to discourage the

witnesses, by scrupulous defense counsel

who need to prepare for what now is a mini-

trial, or by the sheer difficulty of assem-

bling all the witnesses -- is an invitation

to non-participation. Also, requiring lay

witnesses of fragile physical or emotional

makeup, such as children, to undergo the

trauma of testifying not once but twice,

erects a substantial deterrent to partici-

pation. In addition, formalizing, length-

ening and backlogging preliminary hearings

will tax the resources of already badly-

strapped prosecutorial agencies and lower

courts.

» 24 «

The cost exacted by imposing the trial

right of confrontation on preliminary hear-

ings is all the more unjustifiable because

it is unnecessary. A preliminary hearing

"is not a trial in any sense of the |

word."*2 It is at trial that the

accused's guilt or innocence will be

determined, and at trial the confrontation

clause will shield him from improper out-

of-court evidence and enable him to cross-

examine his accusers. °° By contrast, the

preliminary hearing's function is merely to

protect against arrest and detention with-

out cause. In that limited determination,

this Court stated in Pugh, the value of

29 commonwealth v. Rashed, 496 Pa. at

32 (citation omitted); see United States ex

rel. Rutz v. Levy, 268 U.S. 390, 393 (1925)

(a preliminary hearing "is not a trial in

any sense").

30see Goldsby v. United States, 160

U.S. 70, 73 (1895) (summarily rejecting the

Claim that an accused was denied his right

to confront the witnesses due to the

absence of a preliminary hearing, because

the witnesses were later present at trial).

« 26 @

ea ite Lae iw

wun ake

confrontation and cross-examination "would

be too slight to justify holding, as a

matter of constitutional principle, that

these formalities and safeguards designed

for trial must also be employed." 420 U.S.

at 121-22.31

The justices below imposed these

unnecessary risks to the functioning of the

preliminary hearing by misinterpreting the

language of Coleman and Pugh. The justices

primarily relied on this Court's holding in

Coleman that a preliminary hearing is a

“critical stage" of a criminal prosecution

31the only conceivable instance in

which the preclusion of hearsay from the

preliminary hearing would prevent unwar-

ranted detention would be in the rare case

where the declarant would never be avail-

able and the only evidence the prosecution

would ever have for trial is inadmissible

hearsay. To guard against that remote

possibility, the Pennsylvania courts look

to the prosecution to provide some assur-

ance that the absent declarant will be

present for trial. Commonwealth v. Troop,

391 Pa. Super. at 622; Commonwealth v.

Branch, 292 Pa. Super. at 429; Commonwealth

v. Rick, 244 Pa. Super. at 37 n.1l. The

prosecution gave that assurance in this

case.

o 26 «

at which counsel is required. Coleman v.

Alabama, 399 U.S. at 9-10, 12.3% This

Court has never held, however, that con-

frontation or other trial rights must

attend every "critical stage" of a pros-

ecution.22 Just because counsel's pres-

ence might be helpful at various stages in

32tndeed, Coleman's holding was piv-

otal to the constitutional rulings of the

three justices speaking through Justice

Larsen, and of the two justices speaking

through Justice Flaherty. The three jus-

tices not only relied on it in interpreting

the federal constitution, but also hinged

their finding of a correlative right under

the state constitution on Coleman's hold-

ing. The state confrontation clause

applied, they stated, because a preliminary

hearing "is a critical stage in a criminal

prosecution" (App. at 10A). Similarly, the

two justices hinged their due process argu-

ment on Coleman's holding, saying that the

due process principles applicable to final

adjudications applied a fortiori to a pre-

liminary hearing because it is "a critical

Stage of a criminal proceeding" (App. at

15A).

33Ror example, this Court has held

that counsel is required at a post-indict-

ment lineup because it is a "critical ~

stage," United States v. Wade, 388 U.S.

218, 237 (1967), but it could not be

Claimed that at the lineup the defendant

or his counsel could confront and cross-

examine the witness.

* 27 «

;

a criminal prosecution does not require

that each such stage be conducted as a

mini-trial.

Second, the justices relied on lan-

guage in Justice Brennan's plurality opin-

ion in Coleman. Justice Brennan argued

that the presence of counsel might be help-

ful at a preliminary hearing to fashion an

impeachment tool for use at trial, and to

discover the prosecution's case. 399 U.S.

at 9 (plurality opinion, Brennan, J.). The

raison d'etre of a preliminary hearing,

however, is not to generate incidental

discovery or impeachment tools for trial,

but to provide speedy relief from unlawful

detention. Indeed, pursuit of discovery

and impeachment for trial is antithetical

to that goal, as it lengthens and delays

the preliminary hearing. °4 This Court

34se6 Coleman v. Burnett, 477 F.2d at

1199-200 (cross-examination seeking discov-

ery may be curtailed because discovery is

not a legitimate end in itself at a

(continued...)

« 36 =

ahi r 7

has never held that the Constitution

requires the states to restructure their

preliminary hearings to produce the harmful

side effects at the expense of the cure.

Third, the justices below believed

that this Court in Pugh implicitly held

that the full panoply of constitutional

safeguards, including confrontation, must

attend a preliminary hearing (App. at 8A-

9A).3° They cite language in Pugh which

34( |. continued)

preliminary hearing); Pa. R. Crim. P. 141,

Official Comment (to preserve the limited

function of a preliminary hearing, the

accused may not examine witnesses merely

for the purpose of discovering the Common-

wealth's case); Commonwealth v. Rashed, 496

Pa. at 31-32 (same). Moreover, because the

preliminary hearing is necessarily limited

in scope, and because it is held at an —.

early stage when the information gathered

by the prosecution may be incomplete, the

preliminary hearing is at best a dubious

discovery tool. See Adams v. Illinois, 405

U.S. at 278, 282 (1972) (plurality opinion,

Brennan, J.).

35while all the Pennsylvania justices

acknowledged that this Court had not

specifically held that these trial rights

also governed preliminary hearings, the

three justices stated that this Court had

(continued...)

» 29 «-

notes that, in the preliminary hearing

procedure in many states,

adversary procedures are customarily

employed. The importance of the issue

tc both the State and the accused jus-

tifies the presentation of witnesses

and full exploration of their testi-

mony on cross-examination.

420 U.S. at 119-20. To derive from this

description of customary procedures in the

states an implicit holding that the federal

confrontation clause must govern state

preliminary hearings is absurd. Pugh

expressly held that it is constitutional to

detain an accused pending trial using a

non-adversarial hearing without according

the accused any trial rights -- counsel,

compulsory process, confrontation or cross-

examination. 420 U.S. at 119-22. 36 Pugh

35(. . continued)

“inferred as much" in Pugh (App. at 9A),

and the two justices stated that this Court

had so “implied in dictum" in Pugh (App. at

14A).

36accord Costello v. United States,

350 U.S. 359, 361-63 (1956) (a defendant

can be held for trial on an indictment

based solely on hearsay evidence).

= 36 «

nowhere holds or implies that states have

only two options -- grant only this bare

bones procedure or grant the accused every

trial right -- here, both cross-examination

and exclusion of hearsay. To the contrary,

this Court in Pugh emphasized that "[t]here

is no single preferred pretrial procedure,"

and recognized "the desirability of flexi-

bility and experimentation by the states."

420 U.S. at 123; see id. at 127 (Stewart!

J., concurring). The justices below thus

misinterpreted Pugh as well as Coleman. 2’

37The cited portions of Coleman and

Pugh form the sole constitutional basis for

the decision of the three justices speaking

through Justice Larsen. They cite no other

constitutional case save Commonwealth v.

Carver, 292 Pa. Super. 177, 179, 436 A.2d

1209 (1981), which itself relies on Cole-

man. Similarly, Coleman and Pugh formed

the framework of the decision of the two

justices speaking through Justice Flaherty.

They cite no other constitutional authority

save for the concurring opinions in Common-

wealth, Unemployment Compensation Board of

Review v. Ceja, 493 Pa. 588, 427 A.2d 631

(1981), which rely on the general "consti-

tutional right of confrontation," 493 Pa.

at 618 (Roberts, J., concurring), and on

"(£Jundamental due process," 493 Pa. at 619

(continued...)

» 3 =»

The ruling below does not merely

misinterpret Coleman and Pugh. It also

conflicts with this Court's repeated

pronouncements that the right of confron-

tation is a trial right. 38 Extension of

the right of confrontation beyond its trial

context to a preliminary hearing setting is

37( , . continued)

(Flaherty, J., concurring). See generally

Michigan v. Long, 463 U.S. 1032, 1040-41

(1983) (this Court may review a state court

decision which rests primarily on federal

law or is interwoven with federal law).

38parber v. Page, 390 U.S. 719, 725

(1968) ("The right of confrontation is

basically a trial right"); California v.

Green, 399 U.S. 149, 157-58 (1970) ("it

is this literal right to 'confront' the

witness at the time of trial that forms

the core of the values furthered by the

Confrontation Clause"); Pennsylvania v.

Ritchie, 480 U.S. 39, 52-54 & n.10 (1987)

("The opinions of this Court show that the

right to confrontation is a trial right")

(plurality opinion; emphasis in original);

see Kentucky v. Stincer, 482 U.S. 730, 737

n.9 (1987); Gerstein v. Pugh, 420 U.S. at

121-22 (confrontation and cross-examination

are “formalities and safeguards designed

for trial"); Mancusi v. Stubbs, 408 U.S.

204, 211 (1972); see also McCray v. Illi-

nois, 386 U.S. 300, 313-14 (1967) (summar-

ily rejecting claim of confrontation clause

violation at pre-trial hearing as "abso-

lutely devoid of merit").

| - 32 -

itself a dramatic reinterpretation of the

Constitution. It also necessarily impli-

cates other pre-trial settings (e.g., grand

jury proceedings) and other trial rights

(e.g., compulsory process), threatening an

even larger disruption of pre-trial proce-

dures. This Court should not allow such a

drastic constitutional change to be imposed

without review.

| The decision below also conflicts with

the repeated pronouncements by the federal

courts and numerous state courts that the

federal confrontation clause does not apply

‘¢

to preliminary hearings. >? Such conflict,

39R.g., United States v. Andrus, 775

F.2d 825, 836 (7th Cir. 1985) ("the sixth

amendment does not provide a confrontation

right at a preliminary hearing"); United

States v. Mitchell, 540 F.2d 1163, 1165 n.1

(3d Cir. 1976), cert. denied, 429 U.S. 1099

(1977) (the confrontation clause does not

forbid the use of hearsay at a preliminary

hearing); United States v. Wilkins, 422 F.

Supp. 1371, 1374-75 (E.D. Pa.), affi'd mem.,

547 F.2d 1164, 1166 (3d Cir. 1976)*and 559

F.2d 1210 (3d Cir. 1977), vacated, 441 U.S.

468 (1979) (to allow a timely petition for

certiorari), aff'd mem., 601 F.2d 577, 578

(contznued...)

=» 33 =

- ee ee ee een, eet en sed

conflict, made more pressing by the other

courts that have adopted similarly

misguided interpretations of the Federal

39( |. continued)

(3d Cir.), cert. denied, 444 U.S. 877

(1979) (the sixth amendment is not Violated

by the failure of the victim to appear at

the preliminary hearing); Nollins v. Super-

ior Court, 224 Cal. App. 3d 1171, 274 Cal.

Rptr. 487, 495-500, review granted, 1990

Cal. LEXIS 5550 (Cal. 1990) (there is no

sixth amendment right of confrontation at a

preliminary hearing); Wilson v. State, 655

P.2d 1246, 1252 (Wyo. 1982) (there is no

constitutional bar to use of hearsay evi-

dence at a preliminary hearing); United

States v. Edwards, 430 A.2d 1321, 1337-38

(D.C. App. 1981), cert. denied, 455 U.S.

1022 (1982) (there is no constitutional

right to confrontation at a pre-trial

detention hearing); People v. Campbell, 92

Misc. 2d 732, 401 N.Y.S.2d 152, 155 (1978)

(there is no sixth amendment requirement of

confrontation at a preliminary hearing) ;

see Note, Confrontation Rights and Prelimi-

nary Hearings, 1986 Utah L. Rev. 75, 83 &

n.54 (citing cases).

’

oe 34 «

ws ene re Sa Late en ror, | GON

Constitution, 49 should not be left

unresolved.

40 g., State v. Massengill, 99 N.M.

283, 657 P.2d 139, 140 (App. 1983) (there

is a sixth amendment right to confrontation

at the preliminary hearing); Herbert v.

Superior Court, 117 Cal. App. 3d S61, 172

Cal. Rptr. 850, 852 & n.3 (1981) (same,

relying on language in Pugh); see State v.

Anderson, 612 P.2d 778, 785 & n.28 (Utah

1980) (relying on Coleman in finding that

the right of confrontation applies tc

preliminary hearings under state consti-

tution).

= 36 «

: | CONCLUSION

For all these reasons, petitioner

respectfully requests that a Writ of

Certiorari issue to review the decision

below.

Respectfully submitted,

2b <

RONALD EISENBERG

Special Assistant District

Attorney for Luzerne

County

(Counsel of Record)

GEORGE S. LEONE

Special Assistant District

Attorney for Luzerne

County

1421 Arch Street

Philadelphia, PA 19102

(215) 686-5700

MARI M. VAN WIE

Assistant District Attorney

for Luzerne County

Luzerne County Courthouse

Wilkes-Barre, PA 18711

Counsel for Correale F.

Stevens, District Attorney

of Luzerne County

- $36 «

APPENDIX

Supreme Court of Pennsylvania

Eastern District~

Commonwealth of Penn- : No. 63 E.D. Appeal

sylvania ex rel. M. : Docket 1989

Russell Buchanan, :

Appellant

Vv.

District Justice

Edward Verbonitz

and The District

Attorney of Luzerne

County

JUDGMENT

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court

that the order of the trial court is

reversed, the charges are dismissed and

the appellant is discharged.

/s/

Bernice G. LaBoo

Chief, Clerk

Dated: October 10, 1990

- 1A -

[J-141-1990]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENN- : No. 63 Eastern

SYLVANIA ex rel. M. : District Appeal

RUSSELL BUCHANAN, : Docket 1989

Appellant :

: Petition for

Allowance of

Appeal from the

Order of the

Superior Court,

: entered on October

Vv. : 3, 1988, at No.

: 343 Misc. Dkt. No.

: 15, Denying the

: Petition for

: Review of the

Order of the Court

of Common Pleas of

Luzerne County,

: entered on Septem-

DISTRICT JUSTICE : ber 14, 1987, at

EDWARD VERBONITZ and : No. 4299 C 1987.

THE DISTRICT ATTORNEY : |

OF LUZERNE COUNTY, : SUBMITTED:

Appellees : September 24, 1990

OPINION OF THE COURT

JUSTICE ROLF LARSEN

FILED: October 10, 1990

The issue presented in this case is

whether hearsay testimony presented at a

preliminary hearing regarding a victim's

account of an alleged criminal incident,

o 2A «

which is the sole evidence presented by the

Commonwealth, is sufficient to establish a

prima facie case.

On June 24, 1987, Appellant, M. Rus-

sell Buchanan, was arrested and charged

with statutory rape, corruption of a minor

and endangering the welfare of a child. A

preliminary hearing was held before Dis-

trict Justice Edward Verbonitz, Luzerne

County At the hearing the Commonwealth,

over defense counsel's objection, presented

the hearsay testimony of the investigating

police officer, who recounted the alleged

criminal incident as it was alleged to have

been related to him by the victim, a seven

year old child. The victim did not tes-

tify, nor was any other evidence presented

at the preliminary hearing. The district

justice ruled that the Commonwealth had

established a prima facie case and bound

Buchanan over for trial.

Thereafter, Buchanan filed a writ of

habeas corpus in the court of common pleas.

At Buchanan's habeas corpus hearing the

Commonwealth, over defense counsel's objec-

tion, put into evidence the transcript of

the preliminary hearing. No additional

evidence was presented. The trial court

entered an order denying habeas corpus

relief and upon the motion of Buchanan,

refused to amend its order to include cer-

tification language, to provide permission

to appeal the interlocutory order (Pa.

R.A.P. 1311). Buchanan filed a petition

for review in the Supreme Court which was

transferred to the Superior Court. The

Superior Court denied the petition for

review, and Buchanan petitioned the Supreme

Court for allowance of appeal. We granted

allocatur and now reverse.

In Pennsylvania, a person accused of a

crime, with certain exceptions not

- 4A -

applicable to this case,+ has a right to a

preliminary hearing. Commonwealth ex rel.

Fitzpatrick v. Mirarchi, 481 Pa. 385, 392

A.2da 1346 (1978). The principal reason for

a preliminary hearing is "to protect an

individual's right against unlawful arrest

and detention." Commonwealth ex rel. Mais-

enhelder v. Rundle, 414 Pa. 11, 198 A.2d

565, 567 (1964). The preliminary hearing:

seeks to prevent a person from being

imprisoned or required to enter bail

for a crime which was never committed

or for a crime with which there is no

evidence of his connection.

Id. At the preliminary hearing it is

incumbent on the Commonwealth to establish

“at least prima facie that a crime has been

committed and that the accused is the one

lthe exceptions to the rule that

an accused has a right to a preliminary

hearing are where: 1) the accused is a

fugitive from justice; 2) there is a pre-

sentment of an investigating grand jury

directly to an indicting grand jury; and

3) an indicting grand jury makes a present-

ment based on personal knowledge of the

jurors. See, Commonwealth ex rel. Fitz-

patrick v. Mirarchi, 481 Pa. 385, 392 A.2d

1346 fn. 7 (1978).

e SA «

” aa a. =: ee. eee - 4 a. m —"e a a ees san

, : ; eo eS ee ae dN reer eb eRe ee ee ee SR a mS

— eres et i. - = S Pa

peeentied

eee eee eee ee

who committed it." Commonwealth v. ([Mul-

len], 460 Pa. 336, 341, 333 A.2a 755, 757

(1975) (emphasis added), [sic] See also,

Commonwealth v. Prado, 481 Pa. 485, 393

A.2d 8 (1978). In order to satisfy this

burden of establishing a prima facie case,

the Commonwealth must produce legally com-

petent evidence, Commonwealth v. Shain, 493

Pa. 360, 426 A.2d 589 (1981), which demon-

strates the existence of each of the mate-

rial elements of the crime charged and

legally competent evidence to demonstrate

the existence of facts which connect the

accused to the crime charged. See, Common-

wealth v. Wodjak [sic], 502 Pa. 359, 466

A.2a 991 (1983).

In this case it is clear that the

Commonwealth did not meet its burden. As

Justice Flaherty stated in his concurring

opinion in Commonwealth, Unemployment Com-

pensation Board of Review v. Ceja, 493 Pa.

588, 619, 427 A.2d 631, 647 (1981)

- 6A -

"“[f£lundamental due process requires that no

adjudication be based solely on hearsay

evidence." If more that [sic] "rank hear-

say" id. is required in an administrative

context, the standard must be higher in a

criminal proceeding where a person may be

deprived of his liberty. The testimony of

a witness as to what a third party told him

about an alleged criminal act is clearly,

inadmissible hearsay, Commonwealth v. May-

bee, 429 Pa. 222, 239 A.2d [332] (1968),

Commonwealth v. Whitner, 444 Pa. 556, 281

A.2d 870 (1971) and thus, does not consti-

tute legally competent evidence. In this

case the Commonwealth has failed to estahb-

lish prima facie that a crime has been

committed and that Buchanan committed that

crime.

Additionally, a criminal defendant has

a right to confront and cross-examine the

witnesses against him: this right being

» 2A «

seaniiciaeiaiaiaemeaa sia

secured by the United States Constitu-

tion;2 the Pennsylvania Constitution; 2

and the Pennsylvania Rules of Criminal

Procedure. 4 In Coleman v. Alabama, 399

U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387

(1970) the United States Supreme Court held

that a preliminary hearing is a "critical

stage" of the prosecution so as to consti-

tutionally require representation by

2r"JIn all criminal prosecutions,

the accused shall enjoy the right ... to

be confronted with the witnesses against

him ...." U.S. Const. amend. VI.

3f"JIn all criminal prosecutions the :

accused hath a right ... to meet the wit-

nesses face to face, ...." Pa. Const.

Art[{.] 1 §9.

4the defendant shall be present at any

preliminary hearing except as provided

by these rules, and may, if he

desires; [sic]

(1) be represented by counsel[; ]

(2) cross-examine witnesses

and inspect physical evidence

[offered] against him;

* * +

Pa. R. Crim. Pro. 141(c).

—'

counsel. See also, Commonwealth v. Carver,

292 Pa. Super. 177, 436 A.2d 1209 (1981).

Justice Brennan in his "Opinion Announcing

the Judgment of the Court," in Coleman,

listed four purposes for requiring the

"guiding hand” of ccunsel at a preliminary

hearing:

First, the lawyer's skilled examina-

tion and cross-examination of wit-

\ nesses 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 wit-

nesses at the trial, or preserve tes-

timony 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.

Id. at 10, 90 S. Ct. at 2003, 26 L. Ed.2d

at 397.

= 9A -

While the United States Supreme Court

has not specifically held that the full

panoply of constitutional safeguards

(ie. [sic], confrontation, cross-examina-

tion, and compulsory process) must attend a

preliminary hearing, it has inferred as

much in Gerstein v. Pugh, 420 U.S. 103, 95

S. Ct. 854, 43 L. Ed.2d 54 (1975). In

Pugh, the court held that the right [sic]

to counsel, confrontation, cross-examina-

tion and compulsory process are not essen-

tial for a pre-trial detention hearing held

pursuant to the Fourth Amendment because

such a hearing is not adversarial in

nature. The court stated, however, that

when a pretrial hearing takes the form of

a preliminary hearing and thus, advers&ry

procedures are used, "[t]he importance of

the issue to both the State and the accused

justifies the presentation of witnesses and

full exploration of their testimony on

°- IGA -

ssieneeiiineielininae iain ti ie

cross-examination." Id. at 120, 95 S. Ct.

at 866, 43 L. Ed. 2d 69.

The Pennsylvania Constitution provides

that "in all criminal prosecutions" the

accused has a right to meet the witnesses

against him -- “face to face." Pa. Const.

Art. 1 §9. This right necessarily includes

the right to confront witnesses and explore

fully their testimony through cross-exami-

nation. A preliminary hearing is an adver-

Sarial proceeding which is a critical stage

in a criminal prosecution. It is nota

sidebar conference at which offers of proof

are made. Thus, the Pennsylvania Constitu-

tion mandates a criminal defendant's right

to confrontation and cross-examination at

the preliminary hearing. In this case,

Buchanan was denied the right to confront

and cross-examine the witnesses against

*~im.

- LIA -

Accordingly, the order of the trial

court is reversed, the charges are dis-

missed and the appellant is discharged.

Mr. Justice Flaherty files a

concurring opinion which Mr.

Justice Cappy joins.

Mr. Chief Justice Nix files a

dissenting opinion which Mr.

Justice McDermott joins.

Mr. Justice McDermott files a

dissenting opinion.

- 12A -

[J-141-1990]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENN- : No. 63 E.D.

SYLVANIA ex rel. M. : Appeal Docket

RUSSELL BUCHANAN, : 1989

Appellant :

Petition for

: Allowance of

: Appeal from the

: Order of the

Superior Court,

: entered om October

Vv. : 3, 1988, at No.

> 343 Misc. Dkt. No.

15, Denying the

Petition for

Review of the

Order of the Court

of Common Pleas of

Luzerne County,

: entered on Septem-

DISTRICT JUSTICE : ber 14, 1987, at

EDWARD VERBONITZ and : No. 4299 C 1987.

THE DISTRICT ATTORNEY :

OF LUZERNE COUNTY, : SUBMITTED:

Appellees : September 24, 1990

CONCURRING OPINION

MR. JUSTICE FLAHERTY

FILED: October 10, 1990

I concur in the result, but reach the

same conclusion through an analysis some-

what different from that employed by the

plurality.

- 13A -

There is no federal or state constitu-

tional right to a preliminary hearing.

Commonwealth v. Ruza, 511 Pa. 59, 511 A.2d

808 (1986). The right is statutory, embod-

ied in Pa.R.Crim.P. 141, 42 Pa.C.S.A.,

which sets forth the purpose and procedure

of the preliminary hearing. The purpose is

to determine whether there is a prima facie

case of the defendant's guilt. Pa.R.Crim.

P. 141(d). To establish a prima facie

case, the Commonwealth must produce evi-

dence which presents "sufficient probable

cause to believe that the person charged

has committed the offense stated." United

States v. Johns, 4 U.S. (4 Dall.) 412, 413,

1 L.Ed. 888 (1806). The evidence must be

such that "if presented at the trial in

court, and accepted as true, the judge

would be warranted in allowing the case to

go to the jury." Commonwealth v. Wojdak,

502 Pa. 359, 368, 466 A.2d 991, 996 (1983)

(emphasis in original).

* 418A =

' Though there is no constitutional

right to a preliminary hearing, inasmuch as

state law provides the hearing, assigns to

it the functions it serves, and attaches to

it the consequences which presently exist,

there is a constitutional right to be

represented by an attorney at the hearing.

Coleman v. Alabama, 399 U.S. 1, 90 S.Ct.

1999, 26 L.Ed.2d 387 (1970). The United

States Supreme Court has implied in dictun,

but has not held, that other rights, such

as the right to confrontation and the right

to cross-examination, are constitutionally

protected at the preliminary hearing. Ger-

stein v. Pugh, 420 U.S. 103, 95 S.Ct. 854,

43 L.Ed.2d 54 (1975).

These principles provide a framework

for our decision, but do not answer the

question presented to us: whether hearsay

testimony, standing alone, may constitute

sufficient evidence to establish a prima

- LSA -

facie case at a preliminary hearing. I

conclude that it cannot.

I deem this to be a requirement of due

process. In Commonwealth, Unemployment

Compensation Board of Review v. Ceja, 493

Pa. 588, 616, 427 A.2d 631, 645 (1981), a

plurality of this Court referred to "this

Commonwealth's long-standing requirement

that administrative findings must be sup-

ported by some evidence that would be

admissible over objection in a court of

law." This author expressed the view that

"(£jJundamental due process requires that no

adjudication be based solely on hearsay

evidence." Id. at 619, 427 A.2d at 647.

The reference in Ceja was to a final adju-

dication of property rights, but the prin-

ciple a fortiori applies with equal force

in a preliminary hearing -- a critical

stage of a criminal proceeding in which

life, death, liberty, and property are all

at issue.

- 16A -

Applying this principle to this case

requires the conclusion that the hearsay

statement of the police officer was insuf-

ficient, vel non, to establish a prima

facie case against appellant. It was a

hearsay statement which could not be admit-

ted over objection in a criminal trial and

thus, standing alone, it was insufficient

to establish a prima facie case, which,

according to Wojdak, supra, must be based

on evidence which could be presented at the

trial in court. I therefore concur in the

judgment that the Commonwealth's evidence

at appellant's preliminary hearing failed

to establish a prima facie case, and that

appellant is entitled to discharge.

This analysis does not require us to

address issues not squarely presented by

the facts of this case, viz., the applica-

bility and implementation of the constitu-

tional rights of confrontation and cross-

examination of witnesses who testify at the

- 1L7A -

preliminary hearing in a criminal prosecu-

tion. In this case the declarant did not

testify, and we need not offer an opinion

as to what would have happened had she done

so. It is sufficient to hold that a prima

facie case cannot be established at a pre-

liminary hearing solely on the basis of

hearsay testimony.

Accordingly, I concur in the result.

Mr. Justice Cappy joins this opinion.

- 18A -

{.3J-141-1990]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENN- : No. 63 E.D.

SYLVANIA ex rel. M. : Appeal Docket

RUSSELL BUCHANAN, : 1989

Appellant

Petition for

Allowance of

Appeal from the

Order of the

Superior Court,

: entered on October

Vv. : 3, 1988, at No.

: 343 Misc. Dkt. No.

15, Denying the

Petition for

Review of the

Order of the Court

cf Common Pleas,

Criminal Division,

of Luzerne County,

entered on Septem-

: ber 14, 1987, at

DISTRICT JUSTICE >: No. 4299 C 1987.

EDWARD VERBONITZ and =:

THE DISTRICT ATTORNEY : SUBMITTED:

OF LUZERNE COUNTY : September 24, 1990

DISSENTING OPINION

NIX, C. J.

FILED: October 10, 1990

I am constrained to disagree with the

holding that the Sixth Amendment of the

Federal Constitution which provides the

- 19SA -

accused with the right of confrontation in

criminal prosecutions was of fended by the

procedures followed in the instant matter.

I also must take issue with the conclusion

that Article I, section 9 of our state con-

stitution required the appearance of this

seven-year-old child who was allegedly the

victim of sexual assault and abuse by the

instant petitioner for cross-examination

during this preliminary stage of the pro-

ceedings.

Under our long-standing law, the test

of sufficiency of the evidence to hold a

defendant for trial upon charges has been

the showing of prima facie evidence that

a crime has been committed and that the

defendant was the perpetrator of that

offense. Commonwealth v. Ruza, 511 Pa. 59,

511 A.2d 808 (1986); Commonwealth v. Woj-

dak, 502 Pa. 359, 466 A.2d 991 (1983); Com-

monwealth v. Prado, 481 Pa. 485, 393 A.2d 8

(1978); Commonwealth ex rel. Maisenheider

- 20A -

v. Rundel [sic], 414 Pa. 11, 198 A.2d 565

(1964). To satisfy this requirement the

evidence presented by the Commonwealth must

show that the existence of each of the

material elements of the charge is present.

The evidence should be such that, if pre-

sented at the trial in court and accepted

as true, the judge would be warranted in

allowing the case to go to the jury. Com-

monwealth v. Wojdak, supra; Commonwealth v.

Prado, supra. However, the weight and

credibility of the evidence are not factors

at this stage, and the Commonwealth need

only demonstrate sufficient probable cause

to believe the person charged has committed

the offense. Commonwealth v. Wojdak, supra

at 369, 466 A.2d . As the Superior

Court has noted in several opinions in

which they sustained a trial court's pre-

liminary finding of prima facie evidence

based on hearsay evidence:

The question at a preliminary hearing

is not whether there is sufficient

- 21A -

evidence to prove the defendant guilty

beyond a reasonable doubt; rather, the

question is whether the prosecution

must be dismissed because there is

nothing to indicate that the defendant

is connected with the crime.

See Commonwealth v. Rick, 244 Pa. Super.

33, 36, 366 A.2d 302 [(1976)]; see also,

Commonwealth v. Davis, 308 Pa. Super. 204,

454 A.2d 92 (1982); Commonwealth v. Branch,

292 Pa. Super. 425, 437 A.2d [748] (1981).

The fact that this child of tender

years was abused was established at the

preliminary hearing, and that issue is not

- being challenged. The present carp of

petitioner is that he was denied the oppor-

tunity to confront the victim and cross-

examine her as to petitioner's involvement

in the molestation. That the victim iden-

tified her abuser was established by the

testimony of the police officer involved.

The question is whether the defendant's

right to confrontation required that the

identification be made by the victim at

- 242A -

the time of the preliminary hearing. The

instant constitutional issue being raised

is whether petitioner was entitled to a

face-to-face confrontation at the prelimi-

nary stage of the "criminal prosecution."

The protection afforded defendant at this

preliminary stage does not encompass the

right to confront and cross-examine poten-

tial Commonwealth witnesses. See, e.g.,

Commonwealth v. Prado, supra; Commonwealth

ex rel. Maisenhelder v. Rundel [sic],

Supra.

The majority's application of the

stringent evidentiary standards guaranteed

by the defendant's right to confront the

witnesses against him is unwarranted in the

setting of a preliminary hearing and here

conflicts with the overriding interest this

Commonwealth has shown in protecting child-

witnesses in abuse cases. Therefore, I

must vigorously disagree with the major-

ity's conclusion that either the Sixth

- 23A -

Amendment of the Federal Constitution or

Article I, section 9 of the constitution of

this Commonwealth dictates such a result.

Mr. Justice McDermott joins this

dissenting opinion.

- 24A -

J-141-90

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENN- : No. 63 E.D.

SYLVANIA ex rel. M. : Appeal Docket

RUSSELL BUCHANAN, : 1989

Appellant :

Appeal from the

Order of the

Superior Court,

entered on October

: 3, 1988, at No.

Vv. : 343 Misc. Dkt. No.

: 15, Denying the

Petition for

Review of the

Order of the Court

of Common Pleas of

Luzerne County,

: entered on Septem-

DISTRICT JUSTICE : ber 14, 1987, at

EDWARD VERBONITZ and : No. 4299 C 1987.

THE DISTRICT ATTORNEY :

OF LUZERNE COUNTY, : SUBMITTED:

Appellees : September 24, 1990

DISSENTING OPINION

MR. JUSTICE MCDERMOTT

FILED: October 10, 1990

I join with the Chief Justice in dis-

sent and write only to emphasize that cred-

ibility is not in issue at a preliminary

hearing. A preliminary hearing does not

determine guilt or innocence, its function

- 25A -

is only to determine whether, if believed,

the facts offered would shesincart the ele-

ments of a legally identifiable offense.

The Commonwealth is not required to present

all the proofs at their disposal, only

those sufficient to establish a prima facie

case. To surrender, as the majority

appears willing, credibility determinations

to a preliminary hearing, is to make the

first level of judicial process the final

one.

The court has defined the purpose of a

preliminary hearing as follows:

It seeks to prevent a person from

being imprisoned or required to enter

bail for a crime which was never com-

mitted, or for a crime with which

there is no evidence of his connec-

tion. It is not a trial in any sense

of the word. It does not purport or

attempt to determine the guilt or

innocence of the accused, nor is he

required to speak, plead or offer

testimony in defense.

Commonwealth ex rel. Maisenhelder v.

Rundle, 414 Pa. 11, 15, 198 A.2d 565, 567

- 26A -

(1964); Commonwealth v. Rashed, 496 Pa. 26,

32, 436 A.2d 134, 137 (1981).

It is not a place for cracker barrel

justice, unless we wish to return to those

thrilling days of yesteryear when local

magistrates did what they pleased.

- 2/A -

THE SUPERIOR COURT OF PENNSYLVANIA

OFFICE OF THE PROTHONOTARY

2044 ROBERT N.C. NIX, SR. FEDERAL BUILDING

NINTH AND CHESTNUT STREETS

PHILADELPHIA, PENNSYLVANIA 19107

October 3, 1988

Frank W. Nocito, Esquire

63 Pierce Street

Kingston, Penna. 18704

Re: Commonwealth ex rel. M. Russell

Buchanan, Petitioner v. District

Justice Edward Verbonitz, et al.

No. 343 Miscellaneous Docket No.

Dear Mr. Nocito:

This is to advsie [sic] that the fol-

lowing Order has been entered in the above-

captioned matter:

“AND NOW, this 3rd day of October,

1988, the petition for review at No.

343 Miscellaneous Docktet [sic] No.

15 is denied.

s/ Per Curiam"

Very truly yours,

David A. Szewczak

PROTHONOTARY

DAS: rk

cc: Joseph C. Giebus, Esq.

Asst. Dist. Atty.

cc: Hon. Bernard C. Brominski

cc: Clerk of Court, Criminal, Luzerne

« 1B «

COMMONWEALTH OF PENN-

SYLVANIA ex rel. M.

RUSSELL BUCHANAN,

IN THE COURT OF

COMMON PLEAS OF

LUZERNE COUNTY

Petitioner

HABEAS CORPUS

Vs.

: NO. 4299-C of

DISTRICT JUSTICE $ 1987

EDWARD VERBONITZ $

AND THE DISTRICT

ATTORNEY OF LUZERNE

COUNTY,

Before:

Brominski, J.

Defendants Misc. Court Judge

NOW, this 14[th] day of September,

1987, at 2:50 o'clock P.M., it is hereby

ORDERED, ADJUDGED and DECREED that the

Petition for Writ of Habeas Corpus filed on

August 25, 1987, is DENIED and DISMISSED.

BY THE COURT,

/s/ Brominski, J.

Frank W. Nocito, Esq.

Attorney for Petitioner

Bernard A. Podcasy, D.A.

Virginia J. Murtha, A.D.A.

Attorneys for Defendants

- 1c -

COMMONWEALTH OF PENN- : IN THE COURT OF

SYLVANIA, ex rel., M. : COMMON PLEAS OF

RUSSELL BUCHANAN, : LUZERNE COUNTY

Petitioner =:

CIVIL DIVISION

Vs.

: NO. 4299-C of

DISTRICT JUSTICE : 1987 .-

EDWARD VERBONITZ :

and THE DISTRICT :

ATTORNEY OF LUZERNE : Before:

COUNTY, : Brominski, J.

Respondent : Misc. Court Judge

DECISION

This decision is written in support of

the Order of this Court dated September 14,

1987.

That Order was precipitated by a writ

of habeas corpus filed by M. Russell

Buchanan on August 25, 1987.

Mr. Buchanan was charged with statu- |

tory rape, corruption of minors and endan-

gering the welfare of children.

At the hearing on the writ of habeas

corpus, the only witness called by the Com-

monwealth was Detective/Lieutenant Daniel

Yursha, and the Commonwealth indicated it

- 2C -

would be the same testimony as at the pre-

liminary hearing. ;

At the preliminary hearing, the

Commonwealth established that the victim

currently tives in West Virginia and was

not present. However, the Commonwealth

assured the Court that the victim will be

available at the time of trial.

Detective/Lieutenant Yursha testified

that he is employed in the District Attor-

ney's Office, and he investigated the com-

plaint against Mr. Buchanan filed from

information he received from the Family

Service out of West Virginia; that he

interviewed the victim in this case. She

was nine years old, and at the time of the

offense she was seven years old. Over

objection from defense counsel, he testi-

fied the victim told the investigator that

in the early morning hours of April 26,

1986, she went into the bedroom of the

Defendant; that Mr. Buchanan was already

- 3c -

nude in bed ana cailed the victim over to

the bed and grabbed her right into the bed;

that the victim did have a set of shorty

pajamas on, a two-piece pajama set. Mr.

Buchanan then proceeded to hold the vic-

tim's mouth with one hand and removed the

bottoms of her pajamas with the other hand,

where he turned her sideways and put him-

self against the back of her, inserting his

penis into her anus. The victim told him

that the Defendant went in and out of her

at least five times and that it hurt very

much; that she didn't know what was happen-

ing; that when she related the story she

indicated that the penis was a weiner and

that her anus was a booty-hole; that Mr.

Buchanan told her that he would always be

around and that he would beat her or whip

her if anything was mentioned; that Mr.

Buchanan was the paramour of the victim's

mother, and the three of them lived

together at the same address in

- 4C -

Wilkes-Barre Township; that at the time of

the alleged offense Mr. Buchanan and the

victim were the only two people living at

the residence; he was a babysitter for a

two-week period.

On cross-examination he testified that

he did not have a written statement from

the mother that she'll be present at the

trial, only a verbal agreement; that he did

not have a written statement from Ms. Rag-

hib of Kanawha Valley, West Virginis [sic]

Family Service Association that the child

or mother will be present at trial or

Detective Vance of the Charleston Police

Department; that he did not secure a sub-

poena from District Justice Court 11-3-07

to compel the appearance of Demita or her

mother today; that he did not attempt to

secure their presence by use of the Uniform

Witness Act; his investigation did not

reveal any witnesses to the alleged

offense; that he had no medical testimony;

that the only person who could testify to

the act was the victim; that he talked with

Mr. Buchanan twice, once on March 26, 1987

at the Children & Youth Center; he was read

his constitutional warning; he appeared

voluntarily for the interview and denied

the charges; that he was told that if coop-

erative, the charges may not have been so

severe, and he still denied the charges.

The second interview was June 8, 1987, and

he again denied the charges; that the date

of the alleged incident was April 26, 1986,

and was reported to the West Virginia

authorities on June 30, 1987.

The Defendant's contention is that

although hearsay testimony has been allowed

at the preliminary hearing and hearings on

writs of habeas corpus, the hearsay testi-

mony was improperly admitted in case sub

judice in that the hearsay testimony went

right to the corpus of the crime, rape.

- 6C -

This argument was considered in Com-

monwealth v. James, 38 [Pa.] D. & C. 3d 311

[(1984)]. Judge Brown in reviewing the

progeny of the hearsay rule in these cir-

cumstances, in discussing Vedan, Jochen,

Branch, Rick and Banks held that even

though the witness testified as to the

hearsay testimony, even if it went to the

corpus of the crime, it was admissible if

the witness was available at trial. Here,

we have the assurance of the Commonwealth

that the alleged victim will be available

at trial.

Therefore, the reason above warrants

the following:

END OF DECISION

Order on Separate Page - [8C]

« J@ «

COMMONWEALTH OF PENN- : IN THE COURT OF

SYTUVANIA, ex rel., M. : COMMON PLEAS OF

RUSSELL BUCHANAN, : LUZERNE COUNTY

Petitioner =:

CIVIL DIVISION

Vs.

: NO. 4299-C of

DISTRICT JUSTICE : 1987

EDWARD VERBONITZ :

and THE DISTRICT :

ATTORNEY OF LUZERNE : Before:

COUNTY, : Brominski, J.

Respondent : Misc. Court Judge

ORDER

NOW, this 19th day of February, 1988,

at 11:15 o'clock A.M., it is hereby

ORDERED, ADJUDGED and DECREED that the writ

of habeas corpus filed on August 25, 1987,

by M. Russell Buchanan is DENIED and DIS-

MISSED.

BY THE COURT,

/s/ Brominski, J.

Frank W. Nocito, Esq.

Attorney for Petitioner

District Attorney's Office

- 8c -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.