criminal defense

The Pennsylvania Preliminary Hearing: Witnesses Optional (well almost).

Pennsylvania’s legislature and courts target the rights of those accused of crimes with all the ferocity of a coyote chasing down a fawn. In the recent case of Commonwealth of Pennsylvania v. David Edward Ricker (2015 PA Super 153), the Superior Court decisively ruled that the prosecution need not present any actual witness testimony at preliminary hearings. At the preliminary hearing, the Commonwealth’s task is (and has been) to make out a prima facie case that a crime occurred and that the accused is the culprit. While the Commonwealth still has to do just that, the Superior Court just made the job easier.

Prima facie does not mean proof beyond a reasonable doubt. One way of thinking about is to ask yourself whether a jury could convict the accused of the crime charged if that jury were to believe all the evidence the prosecution presented. If your answer is yes, then the prosecution has made out a prima facie case and the magisterial district judge “binds” over the charge or charges. For the Commonwealth, making out a prima facie case, in most situations, has never been a particularly difficult task. So why is the Commonwealth’s job even easier now?

Well, instead of having to present testimony by complaining witnesses and other fact witnesses, the Superior Court has ruled that the prosecutor only has to produce the witnesses’ out of court statements, which is to say “hearsay”. That means a police officer can simply tell the judge whatever the alleged victim told him or her. No need for the actual victim, or alleged victim, to testify. This also means, of course, that the accused has no right to confront his accusers at a preliminary hearing. Recent changes in the Pennsylvania Rules of Criminal Procedure made it all but inevitable that hearsay, alone, would eventually be enough for the prosecution to carry the day at a prelim. The Ricker case simply removed all doubt.

Prelims, though, are still important. A skillful criminal defense attorney will use every opportunity to build or bolster a defense. Even a preliminary hearing consisting only of hearsay testimony can provide a valuable opportunity for the lawyer to gauge the strength of the Commonwealth’s case, to test the evidence, to develop suppression issues, and to spot weaknesses. And, because the rules permit the criminal defendant to call witnesses on his or her behalf, it may be possible for the defense attorney to call the witnesses the Commonwealth didn’t want to call.

A Great Day for an Innocent Man

For one of my clients, the nightmare is finally over. He is a gentleman in in his 70’s with no criminal history at all. His life has been characterized by military service and hard work. I can’t imagine how sick he must have felt when, out of the blue, the Pennsylvania State Police charged him with the indecent assault of an 8 year boy, felony unlawful contact with a minor, and assorted other Megan’s Law offenses.

By the time he came to me, Children & Youth had already founded the abuse claim against him. Eventually, the district attorney offered a plea to misdemeanor that would have carried no jail time. My client, though, was innocent. Therefore, he chose to go to trial and face the possibility of becoming a convicted felon and going to prison rather than plead guilty to something he did not do.

Happily, the hard work and preparation for trial brought the best possible result. Indeed, it took the jury less than 10 minutes to return not guilty verdicts across the board. Next up was the Children & Youth matter. Because I had filed an appeal of the C&Y determination that abuse had occurred C&Y was in the position of either opposing the appeal or throwing in the towel. C&Y threw in the towel when it refused to fight my client’s appeal. It was only a matter of time, then, before the abuse finding was expunged. And that’s exactly what happened.

I was proud to defend my client and fight for his rights at trial. I am proud that I was able to secure the not guilty verdicts and the expungement of his Children & Youth record. My client got his life back.

It’s important to know that know two cases are alike and that past results are no guarantee of future success. Indeed, no attorney can guarantee a result. However, I offer all my clients the hard work, diligent preparation, years of experience, and the wealth of legal knowledge needed to put them in the best position to win.

If you are charged with a crime, feel free to contact the Law Office of Sean Potter, PC to learn how I can help you. You may use the form below, send an email, or phone my office. I welcome your inquiries.

Sean A. Potter, Attorney and Counselor at Law | Serving Central Pennsylvania including the counties of Cumberland, Dauphin, Franklin, Juniata, Perry, Snyder, and Mifflin.
The Law Office of Sean Potter, PC   –  Criminal Law | Family Law | Wills & Estates | Probate and more.
15 E. Main St.
P.O. Box 121
New Bloomfield, PA 17068
Phone: 717-582-0400
Fax: 717-582-0401