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What If The Witness Doesn’t Show Up At My Preliminary Hearing?

  • Published: July 23, 2020
What If The Witness Doesn’t Show Up At My Preliminary Hearing?

Clients often ask me: “What if the witness doesn’t show up at the Preliminary Hearing? Will the case get thrown out?”  In Philadelphia Court of Common Pleas there is a long-standing practice of dismissing charges if a witness does not or refuses to show up at the Preliminary Hearing. The Philadelphia Courts have long recognized that a Preliminary Hearing or Probable Cause hearing is an important step in the criminal justice process.  However, the Counties surrounding Philadelphia, Pennsylvania such as Montgomery County, Bucks County, Delaware County and Chester County often treat Preliminary Hearings as nothing more than a formality and matters are often held for Court even if the witness does not show up.   In these Counties, the Magisterial District Justice will routinely allow police officers to “testify” to hearsay evidence by reading in the Affidavit of Probable Cause and hold the Defendant over for Court without requiring the eyewitness to testify.

What is a Preliminary Hearing?

A Preliminary Hearing is one of the first steps in the criminal justice process and must be scheduled within fourteen days after arrest.  A Preliminary Hearing is supposed to be a safeguard of Due Process. Its purpose is to ensure that there is probable cause for the arrest and that there is enough evidence for the charge to proceed to trial.  The Preliminary Hearing is an adversarial process. A Defendant is permitted to confront their accused, cross-examine the eye witness, and make argument regarding the sufficiency of the evidence and the proper grading of the charges. Your charges can be downgraded or entirely dismissed at a Preliminary Hearing with the assistance of a skillful lawyer and proper questioning.

Can I win my Preliminary Hearing if the Witness Doesn’t Show Up?

Yes, you have a better chance now, than ever before, to win your case at Preliminary Hearing when the witness fails to appear. However, the inquiry is not whether or not the witness appears, but whether or not the Commonwealth has sufficient competent evidence to put on their case.  Often, if the eyewitness does not appear for Court the Commonwealth lacks such evidence.   Previously in Pennsylvania, it has been unclear whether or not a Defendant can be held over for Court based solely on hearsay evidence. It has been a very specific inquiry, that varies between jurisdictions. However, on July 21, 2020, the Pennsylvania Supreme Court has given a clear definitive answer: Hearsay evidence alone is insufficient to establish a case at a Preliminary Hearing.

What is the Law for Preliminary Hearings?

In Commonwealth v. McClelland, 179 A.3d 2 (Pa. 2018), the Pennsylvania Supreme Court accepted review of the following issue:

[W]hether the Superior Court panel failed to properly apply and follow the legal precedent set forth in Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172, 174-76 (Pa. 1990) in which five (5) Justices held that “fundamental due process requires that no adjudication be based solely on hearsay evidence.”

In finding that fundamental due process requires no adjudication be based solely on hearsay evidence, the Supreme Court explicitly overruled Commonwealth v. Ricker (The Superior Court decision which stated it was permissible in certain circumstances to hold a Defendant for Court at Preliminary Hearing even though the only evidence presented is hearsay) and has held that hearsay evidence alone is insufficient to establish a prima facie case at a Preliminary Hearing. In doing so, the Pennsylvania Supreme Court has reaffirmed the importance of Preliminary Hearings in Pennsylvania jurisprudence. The Court states, “The primary reason for the preliminary hearing is to protect an individual’s right against unlawful arrest and detention.” Commonwealth ex rel. Maisenhelder v. Rundle, 198 A.2d 565, 567 (Pa. 1964). The preliminary hearing “seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection. Our precedents make clear the full panoply of trial rights do not apply at a preliminary hearing, but the hearing is nevertheless a critical stage of the proceedings, and is intended under Rule 542 to be more than a mere formality. Accordingly, competent evidence is required for an adjudication at Preliminary Hearing.

In McClelland, the Defendant was accused of sexual assaulting a minor. At the Preliminary Hearing the minor did not testify, but instead the State Trooper who investigated the matter was called as the sole witness at the preliminary hearing. Specifically, Trooper Wingard explained that he personally witnessed the interview with the child specialist via a video link, and he recounted the contents of the interview to the magistrate, who bound the charges over for trial based solely on that evidence.

McClelland filed a Writ of Habeas Corpus arguing that allowing the case to proceed to trial based solely on hearsay evidence violated his rights to confrontation and due process under the Pennsylvania and United States Constitutions.  The Trial Court denied the Writ and permitted an interlocutory appeal to the Superior Court. The Superior Court affirmed the Trial Court’s denial of the Writ of Habeas and the Supreme Court granted review. The Supreme Court re-affirmed its holding in the plurality decision of Verbonitz and has erased any ambiguity with regards to whether a Defendant can be adjudicated based solely on hearsay and affirms that a Defendant is entitled to confront their accused at a Preliminary Hearing.

What Does This Mean For Witnesses At The Preliminary Hearing?

This means that in most cases witnesses will have to appear at Preliminary Hearings and give testimony against the accused. This holding re-affirms the fact that a Preliminary Hearing is an integral part of the criminal justice process and not just a mere formality.  The McClelland decision is a strong recognition of Defendant’s rights and will drastically alter hearings in the counties surrounding Philadelphia. If you have been arrested or have a Preliminary Hearing scheduled in Philadelphia, Bucks County, Chester County, Delaware County or Montgomery County, you should call 267-225-3317 now for a free consultation. If you’d like to discuss how Troy Crichton, Esq. can use his knowledge and skill to help beat your case CONTACT him today for a free consultation.


Troy Crichton

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