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Luzerne County assistant district attorneys will have to go back to old school prosecution by presenting victims of crime to testify at preliminary hearings.
The state Supreme Court in a 30-page majority opinion issued Tuesday overturned the 2015 state Superior Court’s ruling in Commonwealth v. Ricker that allowed hearsay testimony to be solely presented before a magisterial district judge who decides if a criminal case should proceed, called legally as prima facie.
The Superior Court’s ruling was known as the “Ricker Rule,” which was widely contested by defense attorneys and quietly by several district judges.
It became routine at preliminary hearings for prosecutors to present only hearsay evidence arguing the Ricker Rule was in their favor that resulted in criminal cases being rubber stamped to the next level, defense attorneys have argued.
“Under the Ricker decision, it sort of made preliminary hearings obsolete and a waste of time,” explained Luzerne County Chief Conflict Attorney John Hakim. “It wasn’t just a waste of time, it violated due process. There was no way to defend yourself, you can’t confront witnesses against you. The commonwealth tried to differentiate between confront the accuser and confront the witness by having the arresting officer testify when the arresting officer most likely didn’t witness a crime happening.”
Hakim said the Supreme Court’s reversal of the Ricker Rule restores rights to defendants.
“It’s not giving them a new right, it’s giving them the constitutional right they have always had up until 2015,” Hakim said.
Tuesday’s ruling has a wide impact across the state including criminal cases in Luzerne County, most notable the child corruption charge against Luzerne Intermediate Unit teacher Amy Burke.
Kingston police charged Burke, of Dallas, three times before her case was sent to county court.
Prosecutors in the Burke case used hearsay evidence from a Kingston police detective who testified at two preliminary hearings.
Burke stands accused of suggesting to a female student at West Side Career and Technology Center to send “nude” pictures to a boyfriend, according to court records.
Her attorney, Frank Nocito, has appealed the case citing insufficient and hearsay evidence with the state Superior Court after Luzerne County President Judge Michael T. Vough in March opted not to dismiss the case citing the Ricker ruling in his opinion.
When told of the Supreme Court’s ruling Tuesday morning, Nocito felt relieved.
“We felt strongly it would come out that way,” a joyful Nocito said.
Ironically, the majority opinion strongly uses an appeal Nocito filed in 1990’s Buchanan v. Verbonitz regarding a sexual assault case in West Hazleton where the Supreme Court held hearsay evidence alone is insufficient to establish a case at the preliminary hearing level.
“Upon careful review, we hold the Superior court erred to the extent it concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing. Accordingly, we reverse the Superior Court’s decision in this matter and disapprove the Superior Court’s prior decision in Ricker, which similarly concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing,” the Supreme Court opined.
“The decision returns us to the status of preliminary hearings prior to Ricker. Hearsay remains admissible so long as it is not the only evidence,” District Attorney Stefanie Salavantis stated. “The decision resolves a long-standing, highly debated question among prosecutors, defendants and even the judiciary about hearsay’s use at this early stage of proceedings. While it makes cases more difficult in sometimes subjecting victims to repeated appearances and sometime attacks from defendant counsel, we successfully prosecuted preliminary hearings for 22 years prior to the Superior Court’s change in the law.”