J-A12009-15

2015 PA Super 153

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID EDWARD RICKER

Appellant No. 1693 MDA 2014

Appeal from the Order Entered October 1, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0003601-2014

BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

OPINION BY BOWES, J.: FILED JULY 17, 2015

David Edward Ricker appeals from the October 1, 2014 order denying 

his pre-trial writ of habeas corpus. We affirm. 

The Commonwealth charged Appellant with attempted murder, assault 

of a law enforcement officer, and aggravated assault after he exchanged 

gunfire with a Pennsylvania State Police trooper at Appellant’s residence. 

Specifically, Trooper Michael Trotta had responded to a dispatch regarding 

loud and fast driving on Green Hill Road in West Hanover Township. Trooper 

Trotta drove the length of that road and, after turning around, observed a 

small group of people standing by the roadway at the end of a driveway. 

The trooper pulled over and the group directed him to a damaged mailbox 

and a lawn ornament sign which had been run over by a light colored pickup 
J-A12009-15

- 2 -

truck. The group informed Trooper Trotta that they knew the individual who 

struck the mailbox because he was their neighbor. They directed Trooper 

Trotta to Appellant’s driveway.

Trooper Trotta then appeared at the entrance of Appellant’s gated 

driveway in full uniform in an unmarked patrol car. The driveway was 

approximately 100 yards long. Trooper Trotta pressed a call button at the 

bottom of the driveway and saw a sport utility vehicle come to the top of the 

driveway. Appellant’s wife exited that vehicle and walked down to the gate. 

She initially refused to permit Trooper Trotta to enter. According to Trooper 

Trotta, Appellant’s wife indicated that her husband was drunk and carried a 

gun. Ultimately, however, Appellant’s wife opened the gate and waved 

Trooper Trotta past her. He then drove his car to the top of the driveway.

Trooper Trotta saw Appellant walk towards his vehicle with a large 

German Shepard. The trooper initially remained in his car. Trooper Trotta 

told Appellant that his neighbors had reported that he sideswiped their 

mailbox. Appellant became irate and belligerent at that point, and the 

trooper was able to discern that Appellant’s eyes were bloodshot and his 

breath smelled of an alcoholic beverage. Appellant demanded, in a profanity 

laced manner, that Trooper Trotta get off his property. Appellant’s wife then 

raised her voice at her husband, who struck his wife and threw her to the 

side. Trooper Trotta asked Mrs. Ricker to take the dog and go inside, and he 

attempted to exit his car. Appellant slammed the car door shut. Trooper 
J-A12009-15

- 3 -

Trotta also had drawn his taser. Appellant reached inside the car and 

attempted to take the taser from the trooper. Appellant’s wife again 

interceded, but Appellant continued to direct the trooper to leave. After 

Trooper Trotta exited his vehicle, he saw Appellant remove a small gun from 

the back of his pants. Appellant informed the officer that he had a permit to 

carry and told Trooper Trotta to “get the fuck off my property.” Exhibit 1, 

7/10/14, at 8.

Trooper Trotta drew his own weapon and instructed Appellant’s wife to 

move away and go inside the house. Instead, she stepped in front of her 

husband. Trooper Trotta called for backup and Appellant continued to wave 

his firearm. Appellant then began to walk toward his home. Trooper Trotta 

told him that he was under arrest and followed him. Appellant entered an 

open three-car garage bay. Soon thereafter, a young female child exited the 

home. Trooper Trotta directed her to go to her mother’s car away from the 

area. By this time, another trooper, Trooper Dana Gingerich, had arrived 

and was in the vicinity of that car. 

Trooper Trotta next went around the front of the house while Trooper 

Gingerich advised the police barracks to send a specialized unit similar to a 

SWAT team. Trooper Trotta heard Trooper Gingerich yell to Appellant to 

come out and let him see Appellant’s hands. Accordingly, Trooper Trotta ran 

toward the yelling and came back to the garage bay. At this point, he saw 

Appellant holding an assault rifle in his right hand and peering around the 
J-A12009-15

- 4 -

garage door toward Trooper Gingerich. Trooper Trotta demanded that 

Appellant drop the weapon. According to Trooper Trotta, Appellant then 

grabbed the front part of the rifle and began to level it at him. At that point, 

Trooper Trotta opened fire, striking Appellant twice. Appellant hit the 

ground and returned fire, hitting the trooper multiple times. 

The case proceeded to a preliminary hearing. Trooper Trotta did not 

testify nor did Trooper Gingerich. Instead, the lead investigator into the 

incident, Trooper Douglas Kelley, testified regarding his investigation, and 

played for the magisterial district court a tape of an interview with Trooper 

Trotta. That tape outlined the facts set forth above. Appellant objected to 

the use of the hearsay evidence and also requested a continuance to call 

Troopers Trotta and Gingerich on his behalf. The court overruled the 

objection, declined to continue the matter, and bound the case over for trial. 

Appellant then filed a pre-trial writ of habeas corpus. Therein, Appellant 

argued that it was improper to find a prima facie case against him based 

entirely on hearsay evidence. The trial court denied the writ without a 

hearing or the presentation of argument. This appeal ensued.

The trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. That same date, this Court 

issued a rule to show cause why the appeal should not be quashed as an 

interlocutory appeal. Appellant responded, and the issue was deferred to 

this panel. The trial court also filed its Rule 1925(a) decision. The matter is 
J-A12009-15

- 5 -

now ready for our consideration. Appellant presents three issues for our 

review. 

A. Whether the court should hear this interlocutory appeal from 

the denial of Appellant’s habeas corpus petition under the 

“exceptional” or extraordinary” circumstances exception to 

the general rule because it entails a matter of great public 

interest, e.g., whether hearsay evidence alone may prove a 

prima facie case at a preliminary hearing, an issue which is 

likely to evade review because appellate review would not 

normally occur until the criminal case was finally resolved?

B. Whether the Commonwealth may prove a prima facie case at 

the preliminary hearing exclusively through hearsay evidence, 

which is what the trial and magisterial district courts 

concluded in Appellant’s case?

C. Whether Pa.R.Crim.P. 543(e), which provides that hearsay 

evidence shall be sufficient to establish any element of an 

offense, violates the state and federal constitutional 

confrontation rights of defendants, including Appellant, as 

well as long-standing Pennsylvania and U.S. Supreme Court 

precedent?

Appellant’s brief at 5. 

Preliminarily, we must determine whether we have jurisdiction over 

this interlocutory appeal. Generally, the denial of a pre-trial writ of habeas 

corpus based on a lack of sufficient prima facie evidence does not constitute 

an appealable order. Commonwealth v. Hess, 414 A.2d 1043, 1047-1048 

(Pa. 1980); see also Commonwealth v. Jackson, 849 A.2d 1254 

(Pa.Super. 2004). Where exceptional circumstances exist, an appeal from 

such an interlocutory order may be considered. Hess, supra at 1047-1048 

(“Although it has been deemed appropriate to permit immediate review by 
J-A12009-15

- 6 -

the court of common pleas of the finding of a prima facie case by the district 

magistrate, a balancing of the further disruption of the trial process against 

the harm to the accused weighs in favor of barring immediate appellate 

review unless ‘exceptional circumstances’ are present.”).

Appellant argues that exceptional circumstances are present. First, he 

notes that, should he be acquitted or convicted, the issue of whether 

hearsay evidence alone may establish a prima facie case at a preliminary 

hearing would become moot. Indeed, it is well-settled that errors at a 

preliminary hearing regarding the sufficiency of the evidence are considered 

harmless if the defendant is found guilty at trial. Commonwealth v. 

Sanchez, 82 A.3d 943, 984 (Pa. 2013); Commonwealth v. Tyler, 587 

A.2d 326 (Pa.Super. 1991). Thus, Appellant maintains that any challenge to 

a procedure allowing hearsay evidence alone to establish a prima facie case 

would be capable of repetition and likely to evade review if this Court were 

to await a final order. Appellant, therefore, suggests that exceptional 

circumstances exist. 

In addition, Appellant submits that this matter involves an issue of 

great public interest and the safeguarding of basic human rights. See

Commonwealth v. Bernhardt, 519 A.2d 417, 419 (Pa.Super. 1986). He 

contends that whether it is constitutional to hold over a defendant for trial 

based solely on hearsay evidence after the 2011 addition of Pa.R.Crim.P. 

542(E) is an issue of first impression. Pa.R.Crim.P. 542(E) reads, 
J-A12009-15

- 7 -

E) 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 

requiring proof of the ownership of, non-permitted use of, 

damage to, or value of property.

The Comment to the Rule also provides in pertinent part, 

Paragraph (E) was amended in 2013 to reiterate that 

traditionally our courts have not applied the law of evidence in 

its full rigor in proceedings such as preliminary hearings, 

especially with regard to the use of hearsay to establish the 

elements of a prima facie case. See the Pennsylvania Rules of 

Evidence generally, but in particular, Article VIII. Accordingly, 

hearsay, whether written or oral, may establish the elements of 

any offense. The presence of witnesses to establish these 

elements is not required at the preliminary hearing. But compare 

Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 

A.2d 172 (Pa. 1990) (plurality) (disapproving reliance on 

hearsay testimony as the sole basis for establishing a prima facie 

case). See also Rule 1003 concerning preliminary hearings in 

Philadelphia Municipal Court. 

Comment to Pa.R.Crim.P. 542.

In Appellant’s view, the current procedural rule is unconstitutional 

because it violates his federal and state confrontation rights. The 

Commonwealth counters that no extraordinary circumstances exist because 

Appellant will be afforded an opportunity to confront the witness against him 

at trial. It maintains that Appellant was required to seek an interlocutory 

appeal by permission and that this appeal should be quashed.

Initially, we note that exceptional circumstances are not automatically 

created because an issue is capable of evading review. Indeed, every denial 
J-A12009-15

- 8 -

of a pre-trial habeas corpus motion that alleges insufficient evidence results 

in an inability to review whether the Commonwealth established its prima 

facie case, unless permission to appeal is granted. If the defendant is 

acquitted, then no review is necessary. Further, if the defendant is found 

guilty at trial or pleads guilty, then no prejudice exists. Thus, in order to 

establish exceptional circumstances, more is required than the issue 

becoming moot. We find that this case presents such a circumstance. Not 

only is Appellant’s claim capable of evading review, it presents an important 

constitutional question regarding whether a powerful state governmental 

entity violates federal and state constitutional principles in allowing a 

defendant to be restrained of his liberty and bound over for trial based solely 

on hearsay evidence. Accordingly, we hold that, under the precise facts 

herein, we have jurisdiction to consider the merits of Appellant’s substantive 

claims. 

As Appellant’s arguments for his second and third issues are 

intertwined, we consider them together. Appellant begins by pointing out 

that, after the filing of a criminal complaint or a grand jury presentment, a 

defendant is entitled by Pennsylvania criminal procedural rule to a 

preliminary hearing. In order for a case to be held for trial, the 

Commonwealth is required to make a prima facie showing that each element 

of the crimes charged is present and that the defendant committed the act 

or acts in question. Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 
J-A12009-15

- 9 -

1991) (“In order to meet its burden at the preliminary hearing, the 

Commonwealth is required to present evidence with regard to each of the 

material elements of the charge and to establish sufficient probable cause to 

warrant the belief that the accused committed the offense.”); 

Commonwealth v. Mullen, 333 A.2d 755, 757 (Pa. 1975) (“[I]t is the 

burden of the Commonwealth at a preliminary hearing to establish at least 

prima facie that a crime has been committed and the accused is the one who 

committed it.”).1 

Prior to the promulgation of the applicable version of Rule 542(E), 

hearsay evidence was admissible at a preliminary hearing, but several cases 

indicated it could not solely be used to establish a prima facie case. 

Commonwealth v. Carmody, 799 A.2d 143, 146 n.2 (Pa.Super. 2002)

(“[I]f the hearsay testimony offered at the preliminary hearing is the only

____________________________________________

1

Pennsylvania courts have used the terms “prima facie” and sufficient 

“probable cause” interchangeably in the context of modern preliminary 

hearings. Commonwealth v. Karetny, 880 A.2d 505, 514 (Pa. 2005) (“A 

prima facie case exists when the Commonwealth produces evidence of each 

of the material elements of the crime charged and establishes probable 

cause to warrant the belief that the accused committed the offense.”); 

Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003); 

Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991); 

Commonwealth v. Prado, 393 A.2d 8, 10 (Pa. 1978); Commonwealth ex 

rel. Scolio v. Hess, 27 A.2d 705 (Pa.Super. 1942) (citing the early 

Pennsylvania federal district court decision in United States v. Johns, 4 

Dall. 412, 413 (1806)); but see Stewart v. Abraham, 275 F.3d 220 (3rd

Cir. 2001) (reasoning that the “prima facie” and “probable cause” standards 

in Pennsylvania may not be identical).
J-A12009-15

- 10 -

basis for establishing a prima facie case, it fails to meet the criteria for 

evidence upon which the preliminary hearing judge may rely.”); Tyler,

supra at 328–29.

Appellant argues that this remains the law even considering Rule 

542(E). Relying primarily on this Court’s footnote in Carmody, our opinion 

in Tyler, and our Supreme Court’s plurality decision in Commonwealth ex 

rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), Appellant asserts 

that hearsay evidence alone cannot establish a prima facie case. 

Continuing, Appellant avers that his state and federal confrontation clause 

rights were infringed at the preliminary hearing because he was unable to 

cross-examine Trooper Trotta. 

Appellant has not alleged that his due process rights were infringed 

because the magisterial district court violated Rule 542 to the extent it 

denied him the opportunity to present non-character witnesses. However, 

he does maintain that the court erred in declining to continue the case to 

permit him to subpoena Trooper Trotta and Trooper Gingerich. This 

argument, nevertheless, is undeveloped and was not included in his 

statement of issues or in his 1925(b) statement of errors complained of on 

appeal. Therefore, this latter argument is waived. 

Appellant acknowledges that the Pennsylvania Supreme Court 

promulgated the rule in question, but asserts that this fact is not dispositive 

of whether the rule violates his confrontation rights. He adds that the 
J-A12009-15

- 11 -

comment to the rule even recognizes that the rule is in conflict with the 

Pennsylvania Supreme Court’s plurality decision in Verbonitz. In 

Appellant’s view, allowing hearsay evidence alone to establish a prima facie

case of criminal wrongdoing renders a preliminary hearing “an empty, 

ceremonial formality in which the judge simply rubber stamps the uncrossexaminable testimony of the affiant[.]” Appellant’s brief at 40.

The Commonwealth responds that Rule 542(E) permits a magisterial 

district judge to use hearsay evidence alone to find sufficient prima facie

evidence of a crime. It adds that the Pennsylvania Supreme Court enacted 

the rule in question and therefore it should be presumed constitutional. The 

Commonwealth further highlights that Verbonitz was a plurality decision in 

which only three justices agreed that binding over a defendant for trial 

based solely on hearsay violated the confrontation clause of the 

Pennsylvania Constitution. It also points out that the Superior Court 

decisions cited by Appellant were decided before the recent applicable 

amendment to Rule 542. 

Next, the Commonwealth posits that the court did not rely only on 

hearsay evidence. It contends that evidence of the victim’s wounds, the 

seizure of marijuana, and Appellant’s own statements were also introduced. 

It submits that it presented testimony regarding the number of firearms 

seized and that cartridge cases that had been recovered from a weapon 

discharged at the scene. Finally, the Commonwealth argues that the right to 
J-A12009-15

- 12 -

confront witnesses against oneself is a trial right that does not apply at a 

preliminary hearing.

We begin first with a determination of whether, in fact, hearsay 

evidence alone was used to establish the elements of the crimes charged. 

While the Commonwealth is correct that it introduced non-hearsay evidence 

at the preliminary hearing, none of that evidence was sufficient to establish 

the elements of the crimes charged. The seizure of weapons and marijuana 

was immaterial to the charges. The fact that bullet casings were discovered 

also is insufficient. Here, the evidence used to meet the material elements 

of the crimes charged came from the taped statement of Trooper Trotta. 

Thus, we agree with Appellant that hearsay alone was used to prove a prima 

facie case of attempted murder, aggravated assault against a law 

enforcement officer, and aggravated assault. 

Having resolved that preliminary issue, we proceed to consider 

whether Rule 542(E) and the use of hearsay evidence alone may establish a 

prima facie case. In Carmody, the Commonwealth appealed to this Court 

after the trial court granted in part the defendant’s pre-trial habeas corpus

motion. Therein, the defendant alleged that the magisterial district court 

erred in finding a prima facie case as to simple assault, harassment, and 

terroristic threats. Specifically, he averred that the district justice erred in 

binding over the charges based only on hearsay evidence. The habeas court 

concluded that sufficient evidence existed to establish prima facie evidence 
J-A12009-15

- 13 -

of simple assault and harassment. However, it determined that the 

Commonwealth failed to prove a prima facie case of terroristic threats. The 

hearsay evidence at issue were statements provided by the defendant’s 

girlfriend to police. The girlfriend appeared at the preliminary hearing but 

recanted her allegations. One of the officers who took a statement then 

relayed her earlier account. 

This Court held that the habeas court erred in determining that the 

girlfriend’s prior inconsistent statement was inadmissible hearsay. Since the 

girlfriend’s statement had been reduced to writing and signed, and the 

parties were able to question her regarding her change in story, we held that 

the habeas court erred. In a footnote, we opined that, while hearsay is 

admissible at a preliminary hearing, it cannot be the only evidence used to 

establish a prima facie case. The footnote was not necessary to the 

disposition of the case since the hearsay in question was ultimately 

determined not to be inadmissible hearsay. Accordingly, the Carmody

footnote is dicta. 

That footnote relied on Tyler, supra. In Tyler, police arrested the 

defendant after he sold crack cocaine to a confidential informant (“CI”). At 

the preliminary hearing, the CI did not testify. Instead, over objection, the 

Commonwealth introduced the CI’s statement via a police officer. The 

defendant next requested to call the CI to testify at the hearing. The 

Commonwealth objected, and the district justice refused to permit the 
J-A12009-15

- 14 -

defendant to call the CI. The defendant filed a writ of habeas corpus and a 

motion to quash the information on the basis that the magistrate erred in 

using hearsay evidence alone and declining to permit him to question the CI. 

The trial court denied those motions, and a jury found the defendant guilty 

of various drug charges.

On appeal, this Court initially ruled that because the jury determined 

that Tyler was guilty beyond a reasonable doubt, it was immaterial if the 

Commonwealth did not establish a prima facie case at the preliminary 

hearing. The panel did note that the plurality decision in Verbonitz had set 

forth that a prima facie case could not be met by hearsay evidence alone if it 

would be inadmissible at trial. Nevertheless, it reasoned that Verbonitz did 

not apply because non-hearsay evidence established the prima facie case 

against Tyler, no trial occurred in Verbonitz, and, relatedly, Tyler did not 

appeal after the denial of his habeas petition. The Tyler panel also cursorily 

denied Tyler’s confrontation clause claim, citing Pennsylvania v. Ritchie, 

480 U.S. 39 (1987) (plurality), and setting forth that the confrontation right 

is a trial right. Thus, Tyler does not actually support Appellant’s hearsay or 

constitutional positions. 

Rule 542(E) is not in conflict with any binding precedent. A plain 

reading of the rule indicates that it permits hearsay evidence to be 

considered in determining any material element of a crime. Specifically, the 

rule provides in relevant part, “Hearsay as provided by law shall be 
J-A12009-15

- 15 -

considered by the issuing authority in determining whether a prima 

facie case has been established. Hearsay evidence shall be sufficient 

to establish any element of an offense.” Pa.R.Crim.P. 542(E) 

(emphases added). If hearsay evidence is sufficient to establish one or 

more elements of the crime, it follows that, under the rule, it is sufficient to 

meet all of the elements. Accordingly, we find that the rule does allow 

hearsay evidence alone to establish a prima facie case. 

This conclusion, nonetheless, does not resolve the case. Appellant 

also contends that the procedure herein violated his confrontation rights 

under both the federal and state constitutions. Although Tyler summarily 

denied a similar claim, in light of the United States Supreme Court’s 

statements in Gerstein v. Pugh, 420 U.S. 103 (1975), which we will 

discuss infra, and our Supreme Court’s plurality decision in Verbonitz, we 

believe a more complete analysis of the claim is warranted. 

The Pennsylvania Constitution provides in relevant part that, “In all 

criminal prosecutions the accused hath a right . . . .to be confronted with the 

witnesses against him[.]” Pa.Const. Art. I, § 9.2 Similarly, the Sixth 

____________________________________________

2 The 1776 Pennsylvania Constitution set forth, in pertinent part, “That in all 

prosecutions for criminal offences a man hath a right . . . . to be confronted 

with the witnesses[.]” Pa.Const. Chapt. 1, § 9 (1776). The 1790 

Constitution changed the wording slightly to read, “That, in all criminal 

prosecutions, the accused hath a right . . . . to meet the witnesses face to 

(Footnote Continued Next Page)
J-A12009-15

- 16 -

Amendment reads, “In all criminal prosecutions, the accused shall enjoy the 

right . . . . to be confronted with the witnesses against him[.]” U.S. Const. 

Amend. VI. 

When considering the Pennsylvania Constitution, “‘great regard should 

be paid to spirit and intention’ and it is important to examine the ‘probable 

intent of the makers.’” Commonwealth v. Rose, 81 A.3d 123, 

127 (Pa.Super. 2013), allowance of appeal granted on other ground, 95 

A.3d 274 (Pa. 2014) (emphases removed). In performing this examination, 

we keep in mind that “[a] constitution is made, not particularly for the 

inspection of lawyers, but for the inspection of the million, that they may 

read and discern in it their rights and their duties; and it is consequently 

expressed in the terms that are most familiar to them.” Monongahela 

Navigation Co. v. Coons, 6 Watts & Serg. 101, 114 (Pa. 1843). 

Thus, we construe words in their plain and natural meaning, unless the 

words themselves denote a technical sense. Id. “Concomitantly, a 

fundamental precept in interpreting our constitution is that the language 

‘must be interpreted in its popular sense, as understood by the people when 

they voted on its adoption. Our ultimate touchstone is the actual language 

of the Constitution itself.’” Rose, supra at 127 (quoting Stilp v. 

(Footnote Continued) _______________________

face[.]” Pa.Const. Art. 9, § 9 (1790). The 1790 language was amended in 

2003 to its current formulation. 
J-A12009-15

- 17 -

Commonwealth, 905 A.2d 918, 939 (Pa. 2006)). In short, we consider 

“the original public meaning of the text at issue, giving due regard to both 

its spirit and the intent of the framers of the clause.” Rose, supra at 127.

At the time of the ratification of the early Pennsylvania Constitutions, 

preliminary hearings were held, but not constitutionally mandated. See e.g. 

Commonwealth v. O'Brien, 124 A.2d 666, 669-671 (Pa.Super. 1956) 

(discussing the Marian bail and committal statutes, which were in force in 

Pennsylvania following the Declaration of Independence, and the history of 

preliminary hearings). Preliminary hearings began in England to prevent 

justices of the peace from indiscriminately releasing persons arrested for a 

crime. See id. The initial purpose of early English preliminary hearings was 

also for purposes of inquisition. That is, the justice of the peace would 

examine the felony suspect and certify the results of that examination for 

the court. Id. at 670; see also Crawford v. Washington, 124 S.Ct. 1354 

(2004). Information gleaned from these proceedings subsequently came to 

be used in criminal trials, causing “frequent demands by the prisoner to 

have his ‘accusers,’ i.e. the witnesses against him, brought before him face 

to face.” Crawford, supra at 1359 (quoting 1 J. Stephen, History of the 

Criminal Law of England 326 (1883)). 

“Through a series of statutory and judicial reforms, English law 

developed a right of confrontation that limited these abuses. For example, 

treason statutes required witnesses to confront the accused ‘face to face’ at 
J-A12009-15

- 18 -

his arraignment.” Crawford, supra at 1361. Nonetheless, it was not until 

1848 that English statutory law permitted an accused to confront or call 

witnesses during a preliminary hearing proceeding. See Gary L. Anderson, 

The Preliminary Hearing—Better Alternatives or More of the Same?, Missouri 

L.Rev. Vol. 35, Issue 3, Summer 1970, at 284 n.13 (citing 1 W. Holdsworth, 

History of English Law, 297 (5th Ed. 1931)) (hereinafter, “Anderson, The 

Preliminary Hearing”).3 

Early American preliminary hearings, it appears, were not inquisitorial 

of the accused due to the prohibition against self-incrimination. See

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. 

Rev. 547, 750 n.574 (1999); see also Anderson, The Preliminary Hearing, 

at 285 n.15; compare Ex Parte Schultz 1841 WL 3999, *3 (Pa. 1841) 

(“In England, and perhaps in Pennsylvania, justices of the peace have 

authority, in certain cases, to take inquisitions by the examination of 

witnesses[.]”). 

Rather, a committing magistrate was limited to determining whether a 

crime was committed and whether the defendant was the culprit. See 5 

Tucker’s Blackstone, 296 (Philadelphia, 1803) (“The justice, before whom 

____________________________________________

3

It should be noted that English case law had, by 1791, applied a crossexamination rule to testimony before a justice of the peace in felony cases 

for purposes of usage at trial. See Crawford v. Washington, 124 S.Ct. 

1354, 1361 (2004). 

 
J-A12009-15

- 19 -

such prisoner is brought, is bound immediately to examine the 

circumstances of the crime alleged . . . . If upon this inquiry it manifestly 

appears, either that no such crime was committed, or that the suspicion 

entertained of the prisoner was wholly groundless, in such cases only it is 

lawful totally to discharge him. Otherwise he must either be committed to 

prison or give bail[.]”).

The typical practice at the time of the founding was for an affiant to 

appear before a justice of the peace and be placed under oath. See

U.S.Const. Am. IV; Pa.Const. Chapt. 1, § 10 (1776); Pa.Const. Art. 9, § 10 

(1790); William Waller Hening, The New Virginia Justice, 597 (Richmond, 2nd

ed. 1810). Affiants were not ordinarily law enforcement officials, but the 

victims. See Hening, supra at 80, 156, 161, 474 (providing sample 

warrants for assault, burglary, arson, and rape in Virginia). The justice of 

the peace would then determine if probable cause existed and issue a 

warrant. Id. at 76, 80, 208; see also Commonwealth v. Green, 17 A. 

878, 879 (Pa. 1889) (discussing later 19th century Pennsylvania practice). A 

constable or sheriff would then be charged with placing the suspect under 

arrest. Hening, supra at 72. Upon arresting the accused, the constable 

would bring the suspect before a magistrate or justice of the peace who 

would commit him to prison, provide for bail, or discharge the individual if 

there was no probable cause to believe the accused committed the crime. 

Gerstein, supra at 114 (citing 2 M. Hale, Pleas of the Crown, 77, 81, 95, 
J-A12009-15

- 20 -

121 (1736); 2 W. Hawkins, Pleas of the Crown, 116-117 (4

th ed. 1762)); 

Green, supra. 

A prisoner could seek relief via habeas corpus if he believed he was 

being detained unlawfully. See Ex Parte Bollman, 4 Cranch 75 (1807). If 

not granted the writ, a grand jury of the accused’s peers would determine 

whether sufficient probable cause existed to warrant the case proceeding to 

a jury trial. If the grand jury so concluded, a true bill would issue and the 

defendant would then elect to go to trial or admit to the crimes. 

The Pennsylvania legislature’s first significant foray into governing 

preliminary hearings did not occur until 1915. That statute declared,

Hereafter, upon a preliminary hearing before a magistrate for 

the purpose of determining whether a person charged with any 

crime or misdemeanor against the laws, except murder, 

manslaughter, arson, rape, mayhem, sodomy, buggery, robbery, 

or burglary, ought to be committed for trial, the person accused, 

and all persons on behalf of the person accused, shall be heard if 

the person accused shall so demand.

Act of May 14, 1915, P.L. 499, 42 P.S. § 1080 (as cited by O’Brien, supra

at 671). Thus, relative to serious crimes outlined, an accused did not have a 

right to be heard or to confront witnesses.4 See O’Brien, supra at 671. 

____________________________________________

4 As of 1930, no state even mandated appointment of counsel for such a 

preliminary hearing. Gary L. Anderson, The Preliminary Hearing—Better 

Alternatives or More of the Same?, Missouri L.Rev. Vol. 35, Issue 3, Summer 

1970, at 285 n.19. Concomitantly, fifteen states in 1930 required 

confrontation of the witness and authorized cross-examination. Id. at 286 

n.22. That number had risen to forty-two by 1969, with three of the eight 

(Footnote Continued Next Page)
J-A12009-15

- 21 -

Indeed, the O’Brien Court held that a defendant “has no constitutional right 

to face his accusers at a preliminary hearing.” Id. at 674 (italics in original); 

see also Commonwealth v. Burger, 171 A.2d 599, 602 (Pa.Super. 1961) 

(“The defendant is not entitled, at a preliminary hearing, to be confronted 

with all the Commonwealth witnesses and evidence.”). 

Pursuant to Pa.R.Crim.P. 542(C), a defendant at a preliminary hearing 

is entitled to counsel, to cross-examine witnesses, inspect physical evidence, 

call non-character witnesses, and present his own evidence. Hence, the law 

of the land in Pennsylvania provides a limited rule-based right to confront 

witnesses at the preliminary hearing level.

In Verbonitz, supra, a majority of justices agreed that hearsay 

evidence alone was insufficient to establish a prima facie case at a 

(Footnote Continued) _______________________

remaining states requiring witnesses to be examined in the presence of the 

suspect. Id. Interestingly, by 1969, one year before the United States 

Supreme Court in Coleman v. Alabama, 90 S.Ct. 1999 (1970), held that 

counsel was required at a preliminary hearing, all but three states permitted 

an accused to have counsel. Anderson, The Preliminary Hearing, supra at 

285 n.18. The Supreme Court in Coleman v. Alabama, 90 S.Ct. 1999 

(1970), determined that a preliminary hearing is a “critical stage” of the 

criminal prosecution and that counsel was therefore required. The dissent 

by Chief Justice Burger agreed that, as a policy matter, counsel should be 

afforded at such a hearing, but set forth that almost two centuries of 

American practice refuted that it was constitutionally mandated. He opined 

that, at the time of ratification of the federal constitution, the words

“criminal prosecution” did not include a preliminary hearing. Id. at 2010-

2011 (Burger, C.J., dissenting). 
J-A12009-15

- 22 -

preliminary hearing. Three justices based their rationale on a constitutional 

confrontation right, whereas two justices grounded their decision on due 

process.5 As noted, Appellant has not forwarded a due process argument. 

In Verbonitz, police arrested the defendant and charged him with 

statutory rape, corruption of a minor, and endangering the welfare of a 

child. The victim was a seven-year-old-child. At the preliminary hearing, 

the victim did not testify. The Commonwealth presented the victim’s 

testimony through the investigating police officer. The defendant, 

Buchanan, objected, but the objection was overruled. The Commonwealth 

did not present any other evidence. The district justice bound the case over 

for trial. 

Buchanan filed a writ of habeas corpus and the Commonwealth 

submitted the transcript of the preliminary hearing as the only evidence to 

be considered. The trial court denied the motion and declined to certify the 

case for purposes of permission to appeal an interlocutory order. Buchanan 

sought review with the Pennsylvania Supreme Court, which transferred the 

____________________________________________

5

Justice Larsen, joined by Justices Zappala and Papadakos, held that there 

was a constitutional right to confrontation at a preliminary hearing. Justice 

Flaherty, joined by Justice Cappy, opined that it was a violation of due 

process to allow only hearsay evidence to satisfy the Commonwealth’s low

burden of proof at a preliminary hearing. Chief Justice Nix and Justice 

McDermott dissented, both disagreeing with the plurality that a 

constitutional right to confrontation existed at a preliminary hearing. 
J-A12009-15

- 23 -

case to this Court. After this Court denied his petition for review, our 

Supreme Court granted allocatur. 

The plurality opinion in Verbonitz opined that in order to establish a 

prima facie case, “the Commonwealth must produce legally competent 

evidence, Commonwealth v. Shain, 493 Pa. 360, 426 A.2d 589 (1981), 

which demonstrates the existence of each of the material elements of the 

crime charged and legally competent evidence to demonstrate the existence 

of facts which connect the accused to the crime charged.” Verbonitz, 

supra at 174.6 The lead opinion continued that the evidence in question 

was inadmissible hearsay and therefore not legally competent evidence. 

The plurality asserted, “[a]dditionally, a criminal defendant has a right 

to confront and cross-examine the witnesses against him: this right being 

secured by the United States Constitution; the Pennsylvania Constitution; 

and the Pennsylvania Rules of Criminal Procedure.” Id. (footnotes omitted). 

In support, it relied on Coleman, supra and Gerstein, supra. The plurality 

concluded that because a preliminary hearing is a critical stage of a criminal 

proceeding, and Gerstein inferred a right to confront witnesses at such a 

hearing, the United States Constitution guaranteed a right to confront 

____________________________________________

6 The citation to Commonwealth v. Shain, 426 A.2d 589 (Pa. 1981), is 

somewhat curious because its reference to legally competent evidence 

therein pertained to trial. Shain had no bearing on a preliminary hearing 

proceeding. 
J-A12009-15

- 24 -

witnesses at a preliminary hearing. It also construed the term “criminal 

prosecutions” in the Pennsylvania Constitution as encompassing a 

preliminary hearing, thus providing for a right to confront witnesses. Since 

the defendant was not afforded an opportunity to cross-examine the child 

victim, it discharged the defendant. The Verbonitz Court undertook no 

significant detailed confrontation clause analysis. 

Justice Flaherty in his concurring opinion agreed with the plurality that 

the defendant should be discharged. However, he reasoned that this was 

required by due process. Relying on one of his own prior concurring 

decisions, he set forth, “fundamental due process requires that no 

adjudication be based solely on hearsay evidence.” Verbonitz, supra at 

176 (Flaherty, J., concurring). He concluded that because the hearsay 

statement would not have been admissible at trial, and it was the only 

evidence introduced at the preliminary hearing, Buchanan was entitled to be 

discharged. 

The comment to Rule 542 recognizes the tension between the rule and 

Verbonitz decision. That case, nonetheless, is not binding and is valuable 

only insofar as its rationale can be found persuasive. The same is true of 

the United States Supreme Court decision in Gerstein, supra as it relates to

the present issue. In Gerstein, the question before the High Court was 

whether the Fourth Amendment required a “judicial determination of 

probable cause for pretrial restraint of liberty.” Gerstein, supra at 105. 
J-A12009-15

- 25 -

The case arose out of Florida. Under Florida procedure, the defendants were 

arrested and charged by criminal information. At the time, Florida law 

permitted a prosecutor to charge an individual with a crime via criminal 

information without a prior preliminary hearing. Statutory law and case law 

in Florida also combined to allow a person to be “detained for a substantial 

period solely on the decision of a prosecutor.” Id. at 106. 

The Gerstein Court held that “the Fourth Amendment requires a 

judicial determination of probable cause as a prerequisite to extended 

restraint of liberty following arrest.” Id. at 114. In dicta, the Court added 

that where a state uses a full preliminary hearing, similar to Pennsylvania’s 

current procedure, to meet this probable cause standard, “[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 cross-examination.” Id. 

at 120. The High Court added that, where the probable cause determination 

was made at a less than full preliminary hearing,

This is not to say that confrontation and cross-examination 

might not enhance the reliability of probable cause 

determinations in some cases. In most cases, however, their 

value 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 in making the Fourth 

Amendment determination of probable cause.

Id. at 122. Gerstein, therefore, suggests but does not hold that a federal 

constitutional right to confront witnesses exists at the type of preliminary 

hearing used in Pennsylvania. 
J-A12009-15

- 26 -

After review of the historical underpinnings of the preliminary hearing, 

the reasons for the creation of the Pennsylvania and federal confrontation 

clauses, and the original public meaning of the respective confrontation 

clauses, we find that an accused does not have the right to confront the 

witnesses against him at his preliminary hearing under those provisions.7 

See Tyler, supra; O’Brien, supra; Burger, supra; see also McCullough 

v. Commonwealth, 67 Pa. 30 (1870) (asserting that the right to meet 

witnesses face-to-face attached after a true bill was found by a grand jury); 

compare also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality 

opinion) (“[T]he right to confrontation is a trial right.”); Barber v. Page, 

390 U.S. 719, 725 (1968); (“The right to confrontation is basically a trial 

right.”); cf. Crawford, supra at 68 (Confrontation Clause precludes 

introduction at trial of testimony from a preliminary hearing unless there was 

a prior opportunity to cross-examine the original declarant of the 

statements).8

____________________________________________

7 Since Appellant does not argue the position, we do not decide the distinct 

question of whether there exists a constitutional due process right to 

confront witnesses because Rule 542(C) authorizes limited confrontation 

rights. 

8 Our conclusion is consistent with a large body of other precedent. State v. 

Lopez, 314 P.3d 236 (N.M. 2013); State v. Randolph, 933 A.2d 1158, 

1191 n.15 (Conn. 2007); Blevins v. Tihonovich, 728 P.2d 732, 734 (Colo. 

1986); State v. Sherry, 667 P.2d 367, 376 (Kan. 1983) (“There is no 

constitutional right to allow the accused to confront witnesses against him at 

(Footnote Continued Next Page)
J-A12009-15

- 27 -

We also note that it is presumed that a state legislature, when 

enacting law, acts constitutionally. Commonwealth v. Swinehart, 664 

A.2d 957 (Pa. 1995). We agree with the Commonwealth that no less of a 

standard applies when it is our High Court that promulgates a rule of 

procedure.9 This is not to say that the Pennsylvania Supreme Court could 

not pass an unconstitutional rule; only that there is a strong presumption 

against it. 

We acknowledge that one of the primary harms sought to be 

remedied by the federal and Pennsylvania confrontation clause was the 

English practice of using statements taken pre-trial to establish guilt at trial 

without affording the accused an opportunity to cross-examine the witness. 

Thus, the very reason for the constitutional right was because an accused 

could not confront those witnesses during the earlier proceedings. The 

constitutional right, therefore, offered the protection of ensuring the right to 

(Footnote Continued) _______________________

the preliminary hearing.”); Sheriff v. Witzenburg, 145 P.3d 1002, 1005 

(Nev. 2006); State v. Woinarowicz, 720 N.W.2d 635, 641 (N.D. 2006) 

(“right to confrontation is a trial right, which does not apply to pretrial 

suppression hearings”); State v. Jones, 259 S.E.2d 120, 122 (S.C. 1979); 

Wilson v. State, 655 P.2d 1246, 1250 (Wyo. 1982) (“The use of hearsay 

testimony to establish probable cause at a preliminary hearing is practically 

a universally approved practice.”).

9 The Pennsylvania Supreme Court’s power to prescribe rules is limited to 

those that do not abridge, enlarge, or modify substantive rights. Pa.Const. 

Art. V, § 10(c). Appellant does not allege that the rule abridges any other 

substantive right than his confrontation rights. 
J-A12009-15

- 28 -

confront the witness at his trial. Appellant has not provided, nor have we 

been able to uncover, any binding precedent that constitutionally mandates 

an accused be afforded the opportunity to confront and cross-examine a 

witness against him at a preliminary hearing based on the federal or state 

confrontation clause. 

Moreover, at the time of the ratification of the federal and early 

Pennsylvania Constitutions, the phrase “criminal prosecutions” did not 

encompass a preliminary hearing. It is beyond cavil that an accused did not 

have a constitutional right to confront witnesses at a grand jury proceeding, 

which occurred after the preliminary hearing. See McCullough, supra; cf. 

Respublica v. Shaffer, 1 U.S. 236 (Pa.Ct. Oyer and Terminer 1788) (Chief 

Justice McKean opining that a defendant does not have right to call 

witnesses before a grand jury). A grand jury was considered a bulwark of 

liberty by those who framed the early constitutions, but it was not 

considered part of the criminal prosecution for purposes of the Sixth 

Amendment. It would be incongruous to find that the phrase “criminal 

prosecution” did not encompass the constitutionally-required grand jury 

proceeding, but did include the earlier non-constitutionally-mandated 

preliminary hearing proceeding. 

In Ex Parte Bollman, supra, Chief Justice John Marshall, writing 

while on circuit, permitted the use of an affidavit during a pre-trial 

proceeding. He opined, 
J-A12009-15

- 29 -

To decide that an affidavit made before one magistrate would 

not justify a commitment by another, might in many cases be 

productive of great inconvenience, and does not appear 

susceptible of abuse if the verity of the certificate be established. 

Such an affidavit seems admissible on the principle that before 

the accused is put upon his trial all the proceedings are ex parte. 

Bollman, supra at 129-130. That same year, Justice Bushrod Washington, 

also on circuit, declared that cross-examination of a prosecution’s witness at 

a bind-over proceeding was “certainly improper.” United States v. White, 

28 F. Cas. 588, 588 (C.C. Pa. 1807); see also In re Bates, 2 F.Cas. 1015, 

1018 (D.C.S.C. 1858) (“[T]hese constitutional rights, which are supposed to 

be invaded by this construction, are rights which are not contemplated by 

the constitution in connection with preliminary proceedings; that the 

privilege of confronting the witness is a privilege which pertains to the trial 

in court; that it does not extend to all periods in the proceeding, is manifest 

in the fact that it cannot be claimed before the grand jury: a period, when, if 

allowed, it would be far more available for the accused than in the 

preliminary proceedings before the magistrate.”).

Hence, the probable intent of the makers of the respective 

confrontation clauses and the original meaning placed on the text by those 

who ratified the provisions in question did not constitutionally guarantee a 

right to confront witnesses before trial. Appellant’s confrontation clause 

arguments, therefore, fail. We add that we are cognizant that there does 

appear to be some tension between Rule 542(C) and 542(E) since 
J-A12009-15

- 30 -

defendants do have a rule-based right to confront witnesses and call 

witnesses on their own behalf to refute the Commonwealth’s prima facie

evidence. Appellant has not explored this issue and, as noted, did not 

develop any argument relative to the district justice’s decision not to permit 

him to call Trooper Trotta or Trooper Gingerich. Thus, we do not opine on 

those matters. For all of the aforementioned reasons, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015