# Opposition Brief — Donia v. Cerebral Palsy Collingswood Activity Center > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1514%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 498 U.S. 850 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1514%3A2. Public record. Not legal advice.