[ J
- 78 - 2018 ] [MO: Dougherty, J. ] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

DONALD J. MCCLELLAND,

Appellant : : : : : : : : : : : No. 2 WAP 2018 Appeal from the Order of the Superior Court entered May 26, 2017 at No. 633 WDA 2016, affirming the Order of the Court of Common Pleas of Erie County entered April 4, 2016 at No. CP

- 25

- CR

- 0003575

- 2015. ARGUED: October 24, 201 8

DISSENTING O PINION

JUSTICE BAER DECIDED: JULY 21, 2020 I respectfully dissent from the Majority’s holding that this Court’s decision in Commonwealth ex rel. Buchanan v. Verbonitz , 581 A.2d 172 (Pa. 1990), constitutes binding precedent for the proposition that the Commonwealth cannot establish a prima facie case at a preliminary hearing based exclusively on hearsay evidence. Indeed, for
thi rty years, courts in this Commonwealth , including this Court, have consistently viewed
Verbonitz as a plurality decision . The lack of a majority expression is unmistakable as the author of the concurring opinion in Verbonitz did not join the lead opinion , expressly concurred only in the result based upon a distinct legal theory , and explicitly referr ed to the lead opinion as a “ plurality

. ” Id. , 581 A.2d at 175. It is well

- settled in this Commonwealth that a plurality opinion is not binding precedent. Commonwealth v. A.R. , 80 A.3d 1180 , 1183 (Pa. 2013). Thus, I cannot join the Court’s pronouncement , decades after Verbonitz was decided , that the opinion is now suddenly imbued with authoritative value

.[ J

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I agree , however, that th e question of whether the Commonwealth can rely solely on hearsay evidence at the preliminary hearing is not answered by this Court’s promulgation and subsequent amendment to Pa.R.Crim.P. 542(E) , as the text of the rule
does not address the exclusive use of hearsay at preliminary hearings

. 1 Viewing the issue as an open one, I would proceed to examine the legal i nquiry anew . Because there
is indisputably no constitutional right to a preliminary hearing and because Appellant was afforded all the process to which he was due at that proce e ding , I agree with the Superior Court that Appellant’s due process rights were not violated by the Commonwealth’s
exclusive reliance on hearsay evidence to demonstrate a prima facie case that a crime ha d been committed and that Appellant was probably the person who committed that crime

. Further, a lthough not constitutionally required, just as this Court has established a
rule

- based right to a preliminary hearing, it may , and in my view should, create reasonable parameters for the admission of only those types of hearsay evidence that are the most

r eliable, such as, for example, audio and video recordings of the victim’s statements. The crafting of these parameters, however, is outside the scope of this appeal and is better left for the Criminal Procedural Rules C ommittee ’s evaluation upon considera tion of our decision herein

. Accordingly, I would affirm the Superior Court’s judgment, which affirmed the trial court’s order denying Appellant’s pretrial motion for habeas corpus relief . Additionally, I

1 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, including, but not limited to, those requi ring proof of the ownership of, non

permitted use of, damage to, or value of property. Pa.R.Crim.P. 542(E).[ J

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would refer this matter to the Criminal Procedural Rules Committ e e for further
consideration

. I. The Verbonitz Decision The crux of the Majority’s holding rises and falls on its interpretation of Verbonitz

. There, similar to the instant case , t he only evidence the Commonwealth presented at the preliminary hearing was that of an investigating police officer who recounted the alleged
criminal incident , i.e. , the 1987 rape of a seven - year - old child, as it was related to the officer by the victim. The victim did not testify, nor w as any other evidence presented. At that time, the district justice ruled that the Commonwealth had established a prima facie case and bound the defendant over for trial. The defendant thereafter filed a writ of habeas corpus in the common pleas court, a lleging that he could not be bound over for trial based solely on hearsay evidence. The trial court denied habeas corpus relief , and
t he defendant then filed a petition for review, which the Superior Court denied. This Court reversed in multiple opinion s

. The lead opinion, drafted by Justice Larsen and joined by Justice s Zappala and Papadakos (“Larsen p lurality”) , opined that to establish a prima facie case, the Commonwealth must produce legally competent
evidence to demonstrat e the existence of each of the material elements of the crime charged , as well as the existence of facts which connect the accused to the crime charged. Verbonitz

, 581 A.2d at 174. The Larsen p lurality, speaking for three Justices, found that hearsay test imony of what the seven - year - old sexual abuse victim told the officer was not legally competent evidence.
Th is expression was based upon an analysis of the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylv an ia Con stitution , which guarantee defendants the right to confront and cross

- examine witnesses against them

. Observing that the preliminary hearing is a critical stage of a criminal prosecution, t he[ J

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Larsen plurality found that a defendant possess es the right to confront and cross

- examine witnesses who testify against him at a preliminary hearing. 2 Verbonitz , 581 A.2d at 174

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. Accordingly the Larsen p lurality concluded that the Superior Court erred in affirming the denial of habeas corpus relief, dism issed the charges against the defendant , and discharged him. As noted, Justice Flaherty filed a responsive opinion (“Flaherty c oncurrence”) , in which Justice Cappy joined , that concurr ed only in the result of the Larsen p lurality and “reach[ed] the same conclusion, through an analysis somewhat different from that employed by the plurality.” Id. at 175 (Flaherty, J., concurring)

. Recognizing that there

was no federal or state constitutional right to a preliminary hearing, the Flaherty

c oncurrence acknowledged , nevertheless, that our criminal procedural rules afford a defendant a preliminary hearing to determine w hether there is a prima facie case of the defendant’s guilt , and that the defendant is entitled to counsel at that hearing

. Id. Justice Flaherty then reiterated his prior sentiment , set forth in a responsive opinion in a n unemployment compensation case , that “fundamental due process requires that no adjudication be based solely on hearsay evidence.” Id. at 176 (citing Commonwealth, Unemployment Comp

. Bd

. of Review v. Ceja , 427 A.2d 63 1 , 647 (Pa. 1981) (Flaherty, J., Concurring) )

. Without examining whether a ny final adjudication is, in fact, rendered at a preliminary hearing , Justice Flaherty opined that his pr evious e xpression regarding due process and hearsay evidence applied with equal force to a preliminary hearing in a criminal matter where one’s liberty interest is at sta ke. Verbonitz , 581 A.2d at 176.

2 This appeal does not involve a claim based upon the constitutional right to confrontation. Moreover, the right to confrontation has been characte rized as a “trial right.” See Pennsylvania v. Ritchie , 480 U.S. 39 , 52 (1987) (providing that “[t]he opinions of this Court show that the right to confrontation is a trial right ” ) (emphasis in original).[ J

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Applying this principle to the facts presented , the Flaherty c oncurrence opined t hat the hearsay statement of the police officer was insufficient to demonstrate a prima facie case against the defendant as a matter of due process

. 3 Id. I acknowledge that the Larsen p lurality recognized the Flaherty c oncur rence ’ s argument in this regard, Verbonitz , 581 A.2d at 174, and that the Majority herein relies upon such reference to support its conclusion that there were five votes supporting the due process rationale. I do not agree, however, that the basis of the Larsen p lurality’s analysis was grounded in due process, as that opinion did not mention the constitutional provisions guaranteeing that right or engage in any substantive discussion as to how due process was violated by the Commonwealth’s exclusive reliance on hearsay evidence to
demonstrate a prima facie case that a crime was committed and that the defendant was the individual who probably committed the crime

. If the Larsen plurality’s fleeting reference to due proc ess invoked that doctrine as

a basis for its decision, Justice Flaherty would have surely joined that portion of the opinion, as his entire concurrence was based solely on a due process legal theory. As noted throughout , Justice Flaherty did not join any portion of the Larsen plurality and

3 Chief Justice Nix filed a dissenting opinion in V erbonitz , joined by Justice McDermott , in which he disagreed with the Larsen plurality’s determination that the right to confront witnesses, as guaranteed by both the Sixth A mendment to the United States Constitution and Article I, Section 9 of the Pennsyl vania Constitution, required the appearance at the preliminary hearing of the seven

- year - old victim of sexual assault and abuse. Id. at 176. Chief Justice Nix reasoned that w hile the Commonwealth at the preliminary hearing must show the existence of each of the material elements of the charge, the weight and credibility of the evidence are not factors at this stage and the Commonwealth need only demonstrate sufficient probable cause that the person charged committed the offense. Accordingly, the dissent concluded that a trial court may find a prima facie case based solely upon hearsay evidence. In addition to joining Chief Justice Nix’s dissent, Justice McDermott also filed a separate dissent ing opinion , emphasizing that credibility is not at issue at a preliminary hearing. Id. at 177.[ J

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expressly concurred in the result only. 4 Consequently , the Larsen plurality in Verbonitz did not receive sufficient votes to garner a majority view and create binding precedent. See B LACK ’ S L AW D ICTIONARY (11 th ed. 2019 ), at 1882 (defining a “ majority opinion ” as

“ an opinion joined in by more than half of the judges considering a given case ” ) ; A.R. , 80 A.3d at 1183 ( explaining that “plurality opinions, by definition, establish no binding precedent for future cases”) (citing Commonwealth v. Brown , 872 A.2d 1139, 1165 (Pa. 2005) (Castille, J., concurring) (citations omitted) )

. W here the j ustices participating in the Verbonitz decision d id not view the basis of the lead opinion as sounding in due process
and chara c teriz ed that decision as a plurality , this Court should not , decades later , stray from the presiding justices ’ understanding of th e ir own expressions

. 5
II

. Pa.R.Crim.P. 542(E) As noted, also at issue in this appeal is whether Pa.R.Crim.P. 542(E ), set forth
supra at n.1, which was promulgated after this Court’s decision in Verbonitz , permits the trial court to find a prima facie case at a preliminary hearing based solely on hearsay
evidence. As also concluded by the Majority , I find that Rule 542(E) is not d ispositive of
the issue , as it does not address the exclusive use of hearsay evidence to establish a prima facie case

.

4 Further, the two dissenting members of the Court in Verbonitz also did not view the Larsen plurality as being based upon a due process rationale, as they specifically expressed their disagreement with th at opinion’s “holding” that the right to confront witnesses as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution , was offended by the procedures followed in that case

. Verbonitz , 581 A.2d at 1 76.

5 Additionally, this Court has previously characteriz ed Verbonitz as a plurality opinion in our criminal rule commentary

. See Pa.R.Crim.P. 542 Comment (providing that hearsay, whether written or oral, may establish the elements of any offense, but con trasting Verbonitz as a plurality decision that disapprov ed of the Commonwealth’s reliance on hearsay testimony as the sole basis for establishing a prima facie case).[ J

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- 7 I II. Due Process As the important legal question remains unanswered , I would examine the i nquiry

anew . Upon careful consideration, I agree with the Superior Court’s thoughtful analysis, which concluded that due process is not violated whe n the Commonwealth establishes a prima facie case at a preliminary hearing exclusively through the use of he arsay evidence

. 6 The Superior Court observe d that due process has both a substantive and a procedural component . Pro cedural due process is at issue here , as it is undisputed that neither the federal n or state constitution provide s an accused with a constituti onal right to a preliminary hearing , which would serve as the basis for a substantive due process claim

. See Washington v. Glucksberg, 521 U.S. 702, 720

- 21 (1997) (holdi n g that subst a ntive due proces s protects those fundamental rights that are deeply rooted objectively in the nation’s history and tradition).

6 The Due Process Clause of the Fourteenth Amendment to the United States Constitution p revents states from depriving “any person of life, liberty, or property, without due process of law . . . .” U.S

. C ONST

. amend XIV, § 1. Additionally, the Pennsylvania Constitution provides due process protection in Article I, Section 9, which provides: In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the jud gment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself. P A

. C ONST

. art. I, § 9. These two due process provisions have been treated as largely coextensive. Commonwealth v. Sims , 919 A.2d 931, 941 n.6 ( Pa. 2007).[ J

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Critical to a due process inquiry, “ the government is prohibited from depriving individuals of life, liberty or property, unless it provides th e process that is due. ” Commonwealth v. Turner , 80 A.3d 754 , 764 (Pa. 2013). “While not capable of an exact definition, the basic elements of procedural due process are adequate notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.” Id. While I agree with the Superior Court that these attributes of due process apply to
the rule

- based right to a preliminary hearing , t hat does not mean that the full panoply of procedu ral safeguards present at trial must be afforded at a preliminary hearing, which involves a different stage of the criminal prosecution

. 7 See Fisher , 481 U.S. at 552 (holding that although states’ collateral review procedures must comply with due process, they need not provide post

- conviction petitioners with “the full panoply of procedural protections that the Constitution requires be given to defendants who are i n a fundamentally different position at trial”). The concept of procedural due process is a

“ flexible notion which calls for such protections as demanded by the individual situation

. ” Comm. Dep’t of Transp., Bureau of Driver Licensing v. Clayton , 684 A.2d 1060, 1064 (Pa. 1996). While a preliminary hearing is a critical stage of a criminal proceeding where the right to counsel attaches, Coleman v. Alabama , 399 U.S. 1, 9

- 10 (1970) (plurality), it is
not a trial. T he principle function of a preliminary hearing is to “protect an individual’s right

7 The right to a preliminary hearing is akin to the right to collateral review of a criminal conviction in that neither right is constitutionally based but, rather, was granted voluntarily by the state. As the High Court has held that a state’s process for collateral review, if enacted, must comply with due process, so should the rule

- based right to a prel iminary hearing include due process protections. See Pennsylvania v. Finley , 481 U.S. 551, 557 (1987) (holding that although states do not have a constitutional obligation to provide for collateral review of a conviction, if states nevertheless provide fo r collateral review, the procedures for doing so must comport with due p rocess).[ J

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against an unlawful arrest and detention” by placing on the Commonwealth the burden of establishing “a prima facie case that a crime has been committed and that the accused is probably the one who committed it.” Commonwealth v. Weig le , 997 A.3d 306, 311 (Pa. 2010) (quoting Commonwealth v. McBride , 595 A.2d 589, 591 (Pa. 1991)). The evidence supporting a prima facie case need not establish the defendant’ s guilt beyond a reasonable doubt, but must only demonstrate that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to proceed to a jury. Commonwealth v. Karenty , 880 A.2d 505, 514 (Pa. 2005). Although a prelimina ry hearing “ may permit capable defense counsel to lay the groundwork for a trial defense, its intended purpose is not primarily to provide defense counsel with the opportunity to assess the credibility of Commonwealth witnesses, or to prepare a defense the ory for trial, or to design avenues for the impeachment of witnesses
at trial. ” Commonwealth v. Sanchez , 82 A.3d 943, 984 (Pa. 2013). S ignificantly , once the defendant has gone to trial and has been convicted, “ any defect in the preliminary hearing is re ndered immaterial. ” Id. Considering these meaningful distinctions between a preliminary hearing and a trial, I agree with the Superior Court that the process due at the preliminary hearing need
not be identical to th at afforded to a defendant at trial. Hence, I agree with the Superior Court’s holding that permitting a prima facie case to be established based on pure hearsay evidence satisfies the requisites of due process. I reach this conclusion because Appellant had adequate notice of the charges against him through the criminal complaint, and the use of hearsay in no way affected this notice. He further had an adequate opportunity to be heard. Rule 542 affords d efendant s the right to “ be represented by
counsel ,” to “ cross - examine witnesses and i nspect physical evidence offered against ”[ J

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him , and to call witnesses and offer physical evidence on his or her own behalf. Pa.R.Crim.P. 542(C)( 1 )

- (4). Further, Appellant was able to challenge the evidence presented in support of a prima faci

e case by as king the lead investigator questions about the contents of the statements made by the eight

- year - old victim, the time of the alleged incident, what other people may have been involved, and when the incident was first reported. Preliminary Hearing Transcri pt, at 12

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. T he nature of the evidence admitted against Appellant via the lead investigator’s testimon y did not deny him the opportunity to defend himself before a fair and impartial tribunal having jurisdiction over the case. Because credibility is not at issue in a preliminary hearing and the Commonwealth need not establish the defendant’s guilt beyond a reasonable doubt, Appellant received at his preliminary hearing the process to which he was due

. Finally, I agree with the Superi or Court that the Flaherty concurrence in Verbonitz , while facially appealing, i s unpersuasive. As noted, Justice Flaherty opined that because due process may require that no adjudication be based solely on hearsay evidence in an unemployment compensation context, the same is true for a preliminary hearing. In discounting this theory, t he Superior Court held that while life, liberty, and property may all be at issue if an accused is ultimately convicted at trial, “the preliminary hearing is obviously not a final adjudication of those issues.” McClelland , 165 A.3d at 31 (emphasis in original). Acknowledging the significant liberty restraints resulting from requiring an accused to stand trial, the Superior Court reasoned that pretrial restraint is governed by the Fourth Amendment and not due process. Id. at 32 (citing Gerstein v. Pugh , 420 U.S. 103 (1975) (holding that a person arrested and held for trial under a prosecutor’s information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint on liberty); Manuel v. City of Joliet, Illinois , 137 S.Ct. 911, 917

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(recognizing that the Fourth Amendment, “standing alone, guaranteed a fair and reliable determination of probable cause as a condition for any significant pretrial restraint”) ( internal quotation marks and citations omitted) )

. This view is consist ent with the decisions of f e deral courts of appeal , which have long held that determination s regarding pretrial restraints on liberty may be made solely on the basis of hearsay evidence

. See, e.g., United States v. Delker , 757 F.2d 1390 (3 rd Cir. 1985) (r ejecting a claim that hearsay may not be employed at a pretrial detention hearing to demonstrate that a defendant committed the crime charged); United States v.
Winsor , 785 F.2d 755, 756 (9th Cir. 1986) ( holding that “[a ] s in a preliminary hearing for prob able cause, the government may proceed in a detention hearing by proffer or hearsay ” ); United States v. Gavria , 828 F.2d 667 , 669 (1 1th Cir. 1987) ( holding that a government may proceed at a pretrial detention hearing by way of proffer rather than live testimony); and United States v. Smith , 79 F.3d 1208 , 1210 (D.C. Cir. 1996) ( holding that

a defendant had no due process right to require the government to produce its witnesses against him at a pretrial detention hearing). Accordingly, I would hold that Appellant’s due process rights were not violated by the Commonwealth’s exclusive reliance on hearsay evidence at his preliminary hearing.

IV. Recrafting our Rules of Criminal Procedur e Although not constitutionally required, this Court can certainly create sensible rules for the use of hearsay at preliminary hearings. As suggested in the amicus brief filed by the Office of Attorney General and the Pennsylvania District Attorneys Association,
i ns tead of focusing on how much hearsay can be admitted, this Court should focus on what kinds of hearsay are reliable and, thus, sufficiently safe to be admitted for the limited purpose of h olding one over for trial. Amici s uggest three general categories o f hearsay that are easily defined and offer elements of reliability that justify their admission for[ J

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preliminary hearing purposes: (1) audio and video recordings of the victim’s statements; (2) testimony by police officers regarding interviews in which the y personally participated upon certification that the victim/witness will be available at trial; and (3) expert reports based on scientific analysis or specialized knowledge upon certification that the expert
will be available at trial. While I do not today endorse a particular procedure, I find at least superficial appeal to th ese categories

. I would refer this matter to the Criminal Procedural Rules Committee to consider , inter alia , these suggestions and mak e recommendations to this Court regarding the potential amendment of our current criminal rules.
Justice Mundy joins this dissenting opinion

.