Opposition Brief — Donia v. Cerebral Palsy Collingswood Activity Center

G) Supreme Court, U.S.

FILED

No. 90-1115 FEB 6 1991

In The OFFICE OF THE CLiitd {

re eee

Supreme Court of the Gnited States

Se

October Term, 1990

CORREALE F. STEVENS, District Attorney

of Luzerne County,

Petitioner,

vs.

M. RUSSELL BUCHANAN,

Respondent

On Petition for Writ of Certiorari to the Supreme Court of

Pennsylvania

RESPONDENT’S BRIEF IN OPPOSITION

JAMES T. LESHO

Counsel of Record

121 South Main Street

Pittston, Pennsylvania 18640

(717) 654-0373

FRANK W. NOCITO

63 Pierce Street

Kingston, Pennsylvania 18704

(717) 283-0509

Attorneys for Respondent

Oo

QUESTION PRESENTED

Whether the United States Supreme

Court has jurisdiction to review a state

determination of the evidentiary require-

ments of a state preliminary hearing?

ii

TABLE OF CONTENTS

Page

Question Presented.......csceceeseess i

Table Of Contents... .cccccccccccccee Ai

Table of Authorities..............2.- iii

Opinion Below......... cdeonvecocucsees 1 >

Statement of Jurisdiction........... 2

Constitutional Provisions Involved . 2

Counterstatement of the Case........ 2

a.

Reasons for Denying the Writ........ 3

I. The United States Supreme

Court should not review a

state determination of the

evidentiary requirements of

a state preliminary hearing

as no federal question is

presented therein..........++-. 3

CORE, i ok 6 0664004008 evr recrT rr 6

iii

TABLES OF AUTHORITIES

Cases Cited:

Alberton v. Millard, 345 U.S. 242,73

S.Ct. 600,97 L.Ed.983 (1953).......5

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

1999, 26 L.Ed. 2d 387 (1970).....4,5

Commonwealth v. Mayberry, 459 Pa. 91,

327 A.2d 86 (1974)..... eeecces Terr |

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

S.Ct. 854, 43 L.Ed.2d 54 (1975)....4

Federal Constitution

and Statutes Cited:

Da Se. Cc ees coccecceoceecece 2

POE WEB ci ceccccccvcccoes 2

Pennsylvania statutes

and Ruies Cited:

ee PL cee cece seeecescese 4

Pa. R. Crim. P. BE3cce e*eeeeenste#e#ee#e#ee#e#e#e¢ 4

Wis Ms GEEMs BP. 168-249. oc cccccccccccece 4

i

No. 90-1115

In The

Supreme Court of the United States

October Term 1990

CORREALE F. STEVENS, District

Attorney of Luzerne County,

Petitioner

Vv.

M. RUSSFLL BUCHANAN,

Respondent

Petition for Writ of Certiorari

to the Supreme Court of Pennsylvania

RESPONDENT'S BRIEF IN OPPOSITION

The Respondent, M. Russell Buchanan,

respectfully requests that this Honorable

Court deny the Petition for Writ of

Certiorari, seeking review of the Penn-

sylvania Supreme Court's opinion in this

case. That opinion is reported at 581

A.2d 172.

7

2

STATEMENT OF JURISDICTION

The judgment to be reviewed was entered

by the Supreme Court of Pennsylvania on

October 10, 1990. The jurisdiction of

this Court is not invoked pursuant to 28

U.S.C. § 1257 (a).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution

Fourth Amendment:

The right of the people to be secure

in their persons, houses, papers,and

effects, against unreasonable seiz-

ures, shall not be violated,and no

Warrants shall issue, but upon prob-

able cause, supported by Oath or

affirmation, and particularly

describing the place to be searched

and the persons or things to be

seized.

COUNTERSTATEMENT OF THE CASE

On June 24, 1987, the Respondent, M.

Russell Buchanan, was arrested and charged

with committing the offenses of statutory

rape, corruption of minors and endangering

the welfare of children. At the prelim-

inary hearing, the Commonwealth, over

defense counsel's objection, presented the

hearsay testimony of the investicating

police officer, who recounted the alleged

3

criminal incident as it was alleged to

have been related to him by the purported

victim, a seven year old child. The

alleged victim did not testify, nor was

any other evidence presented at the hear-

ing. The sole evidence presented was the

investigating officer's hearsay rendition

of the alleged incident. The District

Justice ruled that the Commonwealth had

established a prima facie case and bound Mr.

Buchanan over for trial.

Subsequently, an interlocutory appeal of

the decision to bind the case over for

trial was perfected and the Pennsylvania

Supreme Court entered an Order dismissing

the charges and discharging the Respon-

dent. The Pennsylvania Supreme Court held

that where the sole evidence presented

against a defendant at a preliminary

hearing is hearsay evidence, the Common-

wealth has failed to establish a prima facie

case against the Defendant.

REASONS FOR DENYING THE WRIT

I.

The United States Supreme Court should

not review a state determination of the

evidentiary requirements of a state pre-

liminary hearing, as no federal question

is presented therein.

Tne Fourth Amendment to the United

States Constitution requires a judicial

determination of probable cause as a

prerequisite to extended restraint of

4

liberty following arrest. Gerstein v.

Pugh, 420 U.S. 103, 95 S. Ct. 854, 43

L.Ed. 2d 54 (1975). In Gerstein, this.

Court stated that there is no single

preferred pretrial procedure for deter- .

mining probable cause, and this Court

recognized the desirability of flexibility

and experimentation by the States in this

area. This probable cause determination

may thus, under the Fourth Amendment, be

reached in a variety of forums; Penn-

sylvania has chosen the preliminary

hearing.’ Pennsylvania Rules of Criminal

Procedure Nos. 141-149, 42 Pa. C.S.A.

With the Pennsylvania Supreme Court's

adoption of the Pennsylvania Rules of

Criminal Procedure, the right of the

accused to a preliminary hearing became a

part of the statutory law of the Common-

wealth. In addition to providing the

preliminary hearing, state law also sets

forth the procedure for the preliminary

hearing. Pa. R. Crim. P. 141, 143, 42 Pa.

C.S.A. State law further mandates that the

prosecution's burden of proof at the pre-

liminary hearing is to establish at least

a prima facie case of the defendant's guilt.

Id. As such, the right to a preliminary

hearing and the evidentiary requirements

of this hearing are purely matters of

state Law.

1. There is no constitutional

right, federal or state, to a

preliminary hearing. Coleman _ v.

Alabama, 399 U.S. 1, 90 S. Ct. 1999,

ry ae Ed. 2a 439s 3387 (1970);

Commonwealth v. Mayberry, 459 Pa.

91, 327 A.2da 86 (1974).

5

In order to resolve the issue posed

in the instant case, that is, whether

hearsay evidence alone is sufficient to

establish a prima facie case at a preliminary

hearing, the Pennsylvania Supreme Court

had to interpret the aforesaid Penn-

sylvania statutory law governing a

preliminary hearing. In Albertson v.

Millard, 345 U.S. 242, 244, 73 S. Ct. 600,

601 = 602, 97 L. Ed. 983, 985 (1953), this

Court held that the interpretation of

state legislation is the function of state

judicial and administrative authorities,

and the construction given to a state

statute by the state courts is binding

upon the federal courts. Accordingly, the

Pennsylvania Supreme Court's interpreta-

tion of state statutory law governing a

preliminary hearing is a state function,

and the construction of the state pre-

liminary hearing statutes by the Penn-

sylvania Supreme Court is binding upon the

federal courts. Further, in Coleman v.

Alabama, 399 U.S.1, 90 §&.Ct. 1999, 26 L.

Ed. 2d 387 (1970) in discussing the pre-

liminary hearing in Alabama, this Court

acknowledged that it was bound by the

Alabama Court of Appeals' construction of

the governing Alabama law-as to prelin-

inary hearings in that state. As such,

the Pennsylvania Supreme Court's ruling

that where the sole evidence presented at

a preliminary hearing is hearsay, a prima

facie case is not established is binding upon

the federal courts. Similarly, the

Pennsylvania Supreme Court's determination

of evidentiary requirements at a state

preliminary hearing is thus a Pennsylvania

preogative and ought not be disturbed by

the United States Supreme Court, for no

federal question is presented therein.

re

6

CONCLUSION

Baseag upon the foregoing law and

argument, the Respondent, M. Russell

Buchanan, prays that the Petition for Writ

of Certiorari be denied.

Respectfully submitted,

James T. Lesho, Esq.

Counsel of Record

i21 South Main St.

Pittston, PA. 18640

(717) 654-0373

Frank W. Nocito, Esq.

63 Pierce St.

Kington, PA. 18704

(717) 283-0509

Attor.ieys for Respondent