[J-40-2023]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

      TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.


 COMMONWEALTH OF PENNSYLVANIA,                   :   No. 31 EAP 2022
                                                 :
                      Appellant                  :   Appeal from the Judgment of
                                                 :   Superior Court entered on January
                                                 :   3, 2022 at No. 1981 EDA 2020,
               v.                                :   affirming the Order entered
                                                 :   September 16, 2020 in the Court of
                                                 :   Common Pleas, Philadelphia
 RONALD HARRIS,                                  :   County, Criminal Division at No. CP-
                                                 :   51-CR-0005166-2019.
                      Appellee                   :
                                                 :   ARGUED: September 12, 2023


       Justice Dougherty delivers the Opinion of the Court with respect to Parts I-
       III, and announces the Judgment of the Court. Justice Wecht joins the
       opinion in full. Justices Donohue and Brobson join the opinion with respect
       to Parts I-III, and join the plain-text analysis in Part IV.

OPINION

JUSTICE DOUGHERTY                                               DECIDED: May 13, 2024
       This Court in recent years has sought to clarify when the Commonwealth may

properly use hearsay evidence to establish a prima facie case at a preliminary hearing.

See Commonwealth v. McClelland, 

 (Pa. 2020); Commonwealth v. Ricker,

 (Pa. 2016) (per curiam), appeal dismissed as improvidently granted, 

 (Pa. 2017) (per curiam). In this appeal by allowance, we consider another

question in this field: whether Pennsylvania Rule of Criminal Procedure 542(E) permits

the use of hearsay alone to prove the defendant’s identity. After careful review, we hold

the plain text of the rule does not permit the use of hearsay for this purpose.
                                  I. Legal Background

       Before recounting the facts, a brief review of the law is helpful. Rule 542, titled

“Preliminary Hearing; Continuances,” along with Pa.R.Crim.P. 543, titled “Disposition of

Case at Preliminary Hearing,” govern preliminary hearings in this Commonwealth.1 Rule

542 provides in pertinent part:

       (A) The attorney for the Commonwealth may appear at a preliminary
           hearing and:

              (1) assume charge of the prosecution; and

              (2) recommend to the issuing authority that the defendant be
                  discharged or bound over to court according to law.

                                       ....

       (D) At the preliminary hearing, the issuing authority shall determine from
           the evidence presented whether there is a prima facie case that (1) an
           offense has been committed and (2) the defendant has committed it.

       (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.
Pa.R.Crim.P. 542. Moreover, Rule 543 explains: “If the issuing authority finds that the

Commonwealth has established a prima facie case that an offense has been committed

and the defendant has committed it, the issuing authority shall hold the defendant for

court on the offense(s) on which the Commonwealth established a prima facie case.”

Pa.R.Crim.P. 543(B). Alternatively, “[i]f there is no offense for which a prima facie case

has been established, the issuing authority shall discharge the defendant.” 

 These


1 There is a counterpart to Rule 542 that applies to preliminary hearings in Philadelphia

Municipal Court. See Pa.R.Crim.P. 1003 (“Procedure in Non-Summary Municipal Court
Cases”). Moving forward, we refer only to Rule 542 since the text of the two provisions
is essentially identical with respect to the hearsay issue presently before us. Compare
Pa.R.Crim.P. 542(E) with Pa.R.Crim.P. 1003(E)(2).


                                     [J-40-2023] - 2
rules reflect a preliminary hearing’s “principal function”: “to protect an individual’s right

against unlawful detention.” Commonwealth v. Mullen, 

 (Pa. 1975).

       Our focus in this appeal is on Pa.R.Crim.P. 542 — more specifically, subsections

(D) and (E). These subsections and their associated comments were promulgated by

this Court on January 27, 2011. It has been observed that the changes were “publicly

premised on an effort, spearheaded by several former Justices, to address criticisms of

the Philadelphia criminal court system, including those about high dismissal rates due to

the absence of fact witnesses at preliminary hearings.” Ricker, 

 n.20

(Saylor, C.J., concurring); see McClelland, 233 A.3d at 733 (observing paragraph (E)’s

initial purpose was to “relieve[ ] victims of property offenses from attending an accused’s

preliminary hearing simply to establish facts about the ownership of, nonpermissive use

of, damage to, or value of stolen property”). Presumably for similar reasons, on April 25,

2013, the Court amended subsection (E) and its comment to their present form. The rule

now states in relevant part: “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.” Pa.R.Crim.P. 542(E) (emphasis

added to show amended language).

       Not long after the 2013 amendment to Rule 542(E), questions arose regarding its

breadth and impact. We attempted to resolve one of those issues — whether “a prima

facie case may be proven by the Commonwealth through hearsay evidence alone” — in

Ricker, 

 (Pa. 2016) (per curiam), but we ultimately dismissed that appeal as

improvidently granted. See Ricker, 

 (Pa. 2017) (per curiam). Then, a few

years later, we granted review in McClelland.

       Our task in McClelland was twofold. First, we had to determine whether the

Superior Court “failed to properly apply and follow the legal precedent set forth” by




                                      [J-40-2023] - 3
Commonwealth ex rel. Buchanan v. Verbonitz, 

 (Pa. 1990) (plurality).

Commonwealth v. McClelland, 

 (Pa. 2018) (per curiam). Significantly,

Verbonitz presented the same issue we hoped to settle in Ricker before dismissing that

case as improvidently granted — that is, whether the use of hearsay evidence alone “is

sufficient to establish a prima facie case.” Verbonitz, 

. In McClelland, we

clarified that the Verbonitz Court answered this question in the negative decades before

Ricker. See McClelland, 233 A.3d at 733 (“it is clear that a five-member majority of the

Court held hearsay alone is insufficient to establish a prima facie case at a preliminary

hearing because to do so violates principles of fundamental due process”).

       But we did not stop there. We proceeded in McClelland to consider whether Rule

542(E), as adopted in 2011 and expanded in 2013, “supplant[ed] Verbonitz” by permitting

“all elements of all offenses to be established at a preliminary hearing solely on the basis

of hearsay evidence.” Id. at 734 (emphasis in original). We held it did not. See, e.g., id.

(“We determine Rule 542(E), though not the model of clarity, does not permit hearsay

evidence alone to establish all elements of all crimes for purposes of establishing a prima

facie case at a defendant’s preliminary hearing.”); id. at 735 (“As the foregoing analysis

reveals, the amended rule does not evince an articulated intent to overrule Verbonitz[.]”).

                                II. Factual Background

       Having explained this legal context, we now turn to the facts of this case as

presented at appellee’s preliminary hearing. Around 7:50 p.m. on March 23, 2017,

Philadelphia Police Officer Ryan Waltman was on duty when he received a radio dispatch

for a male shot on the street. Officer Waltman met the victim, Nishied Stewart, at a home

located two to three blocks from the corner of North 33rd Street and West Allegheny

Avenue, where the shooting occurred. See N.T. Preliminary Hearing, 7/19/19, at 5-6, 21.

Officer Waltman noticed the victim was bleeding from gunshot wounds to his right wrist




                                      [J-40-2023] - 4
and left thigh. The officer accompanied the victim to the emergency room within “less

than ten minutes[.]” Id. at 7. At the hospital, the victim, who was “scared and . . . in

pain[,]” told Officer Waltman he had been shot and supplied information on three males

involved. Id. at 6-8.

       Detective John Drudin arrived at the hospital around 9:10 p.m. The victim then

provided “nickname[s], physical description[s,] and some biographical information” for the

two shooters, plus an address. Id. at 12, 20.2 Detective Drudin left the hospital after

speaking with the victim and went to the scene. There he observed five fired cartridge

casings from a 9-millimeter firearm. Using police databases and the information provided

by the victim, Detective Drudin developed two suspects: appellee and his brother,

Rasheed Harris. See id. at 13, 19-20. When the detective returned to the hospital the

next day, the victim “identified Rasheed and [appellee]” as his shooters from photographs,

which the victim signed. Id. at 14. The victim also provided a written statement in which

he asserted he saw “Sheed and Ron walking down the block. They said, did you steal

my shit[?] They both started firing guns at me. I heard eight shots.” Id. at 27.

       The Commonwealth charged appellee with eleven crimes, including attempted

murder, aggravated assault, and weapons offenses. The victim did not appear for the

first two scheduled preliminary hearings. When he failed to show for a third time, the

Commonwealth proceeded with the testimony of Officer Waltman and Detective Drudin.

As recounted above, Officer Waltman provided testimony regarding his response to the

police dispatch and his firsthand account of the victim’s injuries. For his part, Detective

Drudin described the ballistics evidence he observed at the scene of the shooting and

relayed portions of the victim’s hospital statement and identification of appellee as one of


2 The victim also implicated a third person named “Kevin” who, he claimed, “set him up.”

N.T. Preliminary Hearing, 7/19/19, at 26.


                                      [J-40-2023] - 5
his shooters. Appellee’s counsel repeatedly objected to any mention of the victim’s out-

of-court statements, but the trial court overruled them all. See id. at 6-8, 11, 29. At the

end of the hearing, the Commonwealth urged the preliminary hearing judge to hold

appellee for court on all charges. It explained that, under Ricker, which was still good law

at that time, “hearsay alone can establish all of the elements of the charges.” Id. at 30.

The judge agreed and bound all charges over for trial. See id. at 32 (“[T]his court finds a

prima facie case has been made out against you on all charges.”).3

       On August 1, 2019, appellee filed a counseled “Motion to Quash Return of

Transcript and/or Petition for Writ of Habeas Corpus.”4 In support of his request that the

charges against him be dropped and he be discharged, appellee argued the “admissible

evidence did not make out a prima facie case” against him since it “did not establish

probable cause to believe that [he] committed a crime.” Motion to Quash, 8/1/19, at ¶¶3-

4 (emphasis added). This was so, he alleged, because the Commonwealth’s prima facie

case relating to his identity was not “based on legally competent evidence that [he]

committed the crimes” but, rather, “was established solely through hearsay.” Id. at 3

(unpaginated) ¶¶5-6; see id. at ¶6 (“Hearsay is not ‘legally competent evidence’ unless it

falls within one of the recognized exceptions to the hearsay rule.”). Thus, appellee

claimed his continued detainment violated his right to be free from an unreasonable

seizure under the Fourth and Fourteenth Amendments to the United States Constitution,

and Article I, §8 of the Pennsylvania Constitution. See id. at ¶4.




3 The Commonwealth withdrew a charge of intimidation under 18 Pa.C.S. §4952(a).         See
N.T. Preliminary Hearing, 7/19/19, at 33-34.
4 A motion to quash of this nature is “the equivalent in Philadelphia practice of a pre-trial

writ of habeas corpus.” Commonwealth v. Dantzler, 

 (Pa. Super.
2016) (en banc).


                                      [J-40-2023] - 6
      On December 13, 2019, the Honorable Mia Roberts Perez granted appellee’s

motion to quash as to the attempted murder charge but denied the motion with respect to

the remaining charges. This Court decided McClelland a few months later, and on that

day, appellee filed a motion to reconsider his motion to quash. Judge Perez held a

hearing on the motion on September 16, 2020. After the victim failed to appear for a

fourth time, see N.T. Hearing, 9/16/20, at 3 (prosecutor explaining detectives “were not

able to locate” the victim despite visiting three addresses), Judge Perez quashed all

outstanding charges. She agreed with appellee there was “no non-hearsay evidence”

establishing an “actual connection between him and the crime that occurred.” Id. at 6;

see Trial Court Op., 12/28/20, at 7 (finding “no admissible evidence here which connects

[appellee] to the crimes for which he was charged”; the only evidence to that effect “came

from the out of court, oral and written statements of the [victim], none of which were

admitted as substantive evidence”). That fact, in Judge Perez’s view, “forced [her] under

McClelland to grant the motion to quash on all charges.” N.T. Hearing, 9/16/20, at 9.

      The Commonwealth appealed to the Superior Court, which affirmed. Purporting

to follow McClelland’s “textual analysis of” Rule 542(E), a three-judge panel held in a

published opinion that all “material elements of [a] criminal offense need to be proved at

a preliminary hearing by non-hearsay evidence” to avoid “violat[ing] a defendant’s

constitutional rights to due process.” Commonwealth v. Harris, 

(Pa. Super. 2022). The panel did not describe what it considered to be a “material”

element of a crime, and elsewhere in its opinion it used slightly different (but similarly

undefined) terms. See 

 (referencing “core elements” and “tangential” issues).

At the same time, the panel noted evidence regarding the value of property for grading

purposes and lab reports are immaterial matters. See 

 As well, it explained “hearsay

evidence can be introduced to corroborate direct evidence regarding an element of the




                                     [J-40-2023] - 7
crime or crimes charged.” 

 Most relevant for our purposes, the panel concluded our

decisions “in Verbonitz and McClelland preclude[ ] the Commonwealth from relying on

hearsay alone at a preliminary hearing to establish a prima facie case that the defendant

committed a crime.” 

. “To interpret [Rule 542] any other way,” said the panel,

“would violate a defendant’s constitutional rights to due process.” 

 And since “no direct

evidence was offered that [appellee] committed the crimes charged,” the panel concluded

“the Commonwealth violated [his] fundamental due process rights.” 

 The Superior

Court therefore affirmed the order granting the motion to quash all charges.5

       At the Commonwealth’s request, we granted allowance of appeal to consider the

following rephrased question:

       Whether the Commonwealth, based on constitutional or non-constitutional
       principles, is prohibited from proceeding to trial following a preliminary
       hearing where it presented non-hearsay evidence establishing elements of
       the crimes charged and established the defendant’s identity through
       hearsay evidence from officers who personally interviewed the shooting
       victim in the immediate aftermath of the crime and to whom the victim
       identified his shooters by name and in the photographs.
Commonwealth v. Harris, 

 (Pa. 2022) (per curiam).

                                      III. Arguments

       The Commonwealth first contends “McClelland does not mandate the Superior

Court’s sweeping ruling.” Commonwealth’s Brief at 6. According to the Commonwealth,

“[w]hile McClelland clarified some of the questions that followed the Verbonitz plurality

decision and the promulgation and amendment of Rule 542(E), its holding was limited.”

Id. at 13. More to the point, the Commonwealth argues the “only limit this Court has

recognized to protect the defendant’s due process rights is that the Commonwealth may

not establish every element of every offense with hearsay alone.” Id. at 24 (emphasis in

5 Given its holding, the panel did “not address whether the Commonwealth also violated

[appellee]’s constitutional right to confrontation[.]” Harris, 

 n.8. We
likewise do not reach the issue.


                                      [J-40-2023] - 8
original). But the Commonwealth stresses that, in this case, it did not rely exclusively on

hearsay; it “presented non-hearsay evidence that a shooting occurred, and relied only

partially on hearsay to establish some elements of the” crimes charged. Id. at 27. It

submits “that difference demands a different analysis.” Id.; see id. at 29 (“McClelland

does not control the result where, as here, the Commonwealth also presents non-hearsay

evidence.”).

       The Commonwealth additionally takes issue with the panel’s interpretation of Rule

542. It faults the panel for not defining “core” or “material” elements of a crime or

differentiating them from “non-core,” “immaterial,” or “tangential” matters — terms that are

all absent from the rule.    As the Commonwealth sees it, “this novel formulation” is

“unworkably vague” and “fundamentally inconsistent with the preliminary hearing judge’s

central task: to decide whether the Commonwealth has presented a prima facie case as

to every element of a charged crime to allow that charge to be held for trial.” Id. at 36

(emphasis omitted). It explains that “[e]very statutory element is by definition ‘core,’ since

a failure to establish any element renders the Commonwealth’s proof inadequate.” Id.

(emphasis in original); see id. at 35 (since credibility and weight are irrelevant at

preliminary hearings, reasoning “there would simply be no reason for the Commonwealth

to introduce the type of immaterial, corroborative, or extraneous evidence . . . the Superior

Court held is the only hearsay that Rule 542(E) allows”). In sum, the Commonwealth

alleges the panel’s decision “neuters Rule 542(E)’s explicit allowance of hearsay at

preliminary hearings.” Id. at 36; see id. at 20 (arguing Rule 542(E)’s “plain language”

permits it to establish “one or more elements of the crime charged, or that the defendant

was the person who committed the crime, through hearsay alone”).6

6 As they did in McClelland, see McClelland, 233 A.3d at 729-30, the Office of Attorney

General (“OAG”) and the Pennsylvania District Attorneys Association filed an amicus
curiae brief on behalf of the Commonwealth broadly urging us to use this case as a vehicle
(continued…)

                                       [J-40-2023] - 9
       Appellee advocates that we resolve this case in his favor on non-constitutional

grounds. He assails the Commonwealth for supposedly dodging the issue before us by

ignoring the import of Rule 542(D). That subsection, according to appellee, leaves “no

doubt that” this Court “considers proof of the elements of an offense as being distinct from

proof that the defendant was the one who committed the offense.” Appellee’s Brief at 15,

citing Pa.R.Crim.P. 542(D) (requiring Commonwealth to prove a prima facie case “that

(1) an offense has been committed and (2) the defendant has committed it”). Appellee

claims this “was an affirmative choice in 2011 to explicitly distinguish the two separate

requirements for establishing a prima facie case[.]” Id. at 16. And, when considered

along with subsection (E), which permits “a limited right of hearsay evidence only for

establishing some elements of an offense[,]” id. (emphasis in original), appellee believes

“it is clear that the Commonwealth may not establish a prima facie case that the defendant

committed the crime through hearsay, as it did in this case.” Id. at 17. According to

appellee, this straightforward reading of the rule renders it unnecessary to engage with

the panel’s “core elements” theory. See id. at 17-18.

       In reply, the Commonwealth claims Rule 542(D) supports its position. It argues

subsection (D) “defines the prima facie case as being ‘that (1) an offense has been

committed and (2) the defendant has committed it,’ Rule 542(D) (emphasis added), and

then says that hearsay ‘shall be considered by the issuing authority in determining

whether a prima facie case has been established,’ Rule 542(E).” Commonwealth’s Reply

Brief at 2. The Commonwealth takes the position these “two provisions together show

“to articulate proper parameters for admission of hearsay in preliminary hearings.” OAG’s
Brief at 4. From the amici’s perspective, this “should be a qualitative question, not a
quantitative one[,]” because the “due process concern is a matter of reliability, not math.”
Id.; see id. at 17 (“when hearsay is admitted under circumstances providing indicia of
reliability and a level of confidence that the Commonwealth will be able to produce
admissible evidence at trial consistent with the evidence presented at the hearing, a
defendant’s due process rights are respected”).


                                     [J-40-2023] - 10
that the allowance of hearsay in 542(E) applies to both the defendant’s identity and the

commission of the crime.” Id. at 2-3; see id. at 3 (“Nothing in the rule, nor the cases

interpreting it, suggests that hearsay cannot be used to establish defendant’s identity.”)

(emphasis omitted). In any event, the Commonwealth observes that “the rule states that

hearsay ‘shall be sufficient to establish any element of an offense,” and it claims “our

courts have spoken of the defendant’s identity as an ‘element’ of the offense.” Id., citing

Commonwealth v. Bronshtein, 

 (Pa. 1997).

                                        IV. Analysis

       We have explained that, ordinarily, “an appellate court will review a grant or denial

of a petition for writ of habeas corpus for abuse of discretion, but for questions of law, our

standard of review is de novo, and our scope of review is plenary.” McClelland, 233 A.3d

at 732 (internal quotations and citation omitted). Here we are presented with a question

of law regarding the scope of Pa.R.Crim.P. 542. See Commonwealth v. Lopez, 

, 894 (Pa. 2022) (“The proper interpretation of a rule of criminal procedure is a

question of law[.]”). In construing the Rules of Criminal Procedure, “the principles set

forth in Pa.R.J.A. 104 to 115 shall be observed.” Pa.R.Crim.P. 101(C). “The object of all

interpretation and construction of rules is to ascertain and effectuate the intention of” this

Court. Pa.R.J.A. 108 (a). “In construing the language, and giving it effect, we should not

interpret the rule’s words in isolation, but must read them with reference to the context in

which they appear.” Lopez, 280 A.3d at 897 (internal quotation marks, ellipses, brackets,

and citation omitted).    Moreover, “we may consult the explanatory comment of the

committee which worked on the rule in determining the proper construction and

application thereof.” Commonwealth v. Harth, 

, 617 (Pa. 2021); see also

Pa.R.J.A. 108(c) (when the words of a rule are not explicit we may consider, among other




                                      [J-40-2023] - 11
things, this Court’s precedent interpreting the current rule, commentary accompanying

the rule, and the rulemaking history).

       As noted at the outset, our focus in this appeal is on subsections (D) and (E) of

Rule 542. Subsection (D) states: “At the preliminary hearing, the issuing authority shall

determine from the evidence presented whether there is a prima facie case that (1) an

offense has been committed and (2) the defendant has committed it.” Pa.R.Crim.P.

542(D). Contrary to the Commonwealth’s assertion this subsection “defines the prima

facie case[,]” Commonwealth’s Reply Brief at 2, it merely sets the applicable burden: to

bind a defendant over for court, the Commonwealth must prove “a prima facie case” both

with respect to the elements of the crimes and the defendant’s identity. In this way, the

rule reflects what has long been regarded as the primary reason for preliminary hearings

in this Commonwealth: “It 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.” Commonwealth ex rel. Maisenhelder v. Rundle, 

 (Pa. 1964) (emphasis added). These are independent requirements, as the rule

plainly sets forth, and failure to prove a prima facie case as to either prong is fatal to the

Commonwealth’s case.7

7 We recognize our caselaw has created some uncertainty regarding whether “the rule-

based delineation of a prima facie standard [is] meant in whole or in part to connote
probable cause[.]” Commonwealth v. Perez, 

, 1106 (Pa. 2021) (Saylor, J.,
concurring). Over the years there have been “varying expressions of this Court” and,
“[f]rom some of this Court’s formulations, one might [ ] infer that the prima facie burden
attaches only to the facet of the Commonwealth’s obligation to prove that a crime has
been committed, and that a separate probable cause standard pertains to demonstrating
that the defendant was the perpetrator.” Ricker, 

 (Saylor, C.J.,
concurring), citing, e.g., Commonwealth v. Huggins, 

 (Pa. 2003) (“A
prima facie case exists when the Commonwealth produces evidence of each of the
material elements of the crime charged and establishes sufficient probable cause to
warrant the belief that the accused committed the offense.”). Nevertheless, we cannot
ignore that the “Rules of Criminal Procedure do not distinguish between abstract crime
commission and identity in terms of the applicable standard at preliminary hearings.” 

(continued…)

                                      [J-40-2023] - 12
       This understanding of subsection (D)’s dual burdens informs our construction of

subsection (E). See McClelland, 233 A.3d at 734 (“[W]e read the sections of Rule 542

together, and we construe them to give effect to all of the rule’s provisions.”); accord

Pa.R.J.A. 108(b). Beginning with subsection (E)’s first sentence, it states: “Hearsay as

provided by law shall be considered by the issuing authority in determining whether a

prima facie case has been established.”        Pa.R.Crim.P. 542(E).      In McClelland, we

observed the phrase “hearsay as provided by law” is less than clear, but that it “could

reasonably mean hearsay as defined by law, i.e.[,] an out-of-court statement presented

as evidence of the truth of the matter asserted.” 233 A.3d at 735. Upon closer review,

we now adopt this interpretation.

       Read in context, the first sentence of subsection (E) is a codification of the precept

that, “[t]raditionally, our courts have not applied the law of evidence in its full rigor in

proceedings such as preliminary hearings[.]” Pa.R.E. 101, Cmt. Indeed, it authorizes the

Commonwealth to present, and requires the preliminary hearing judge to consider, what

would otherwise be inadmissible hearsay evidence. See Pa.R.E. 802 (“Hearsay is not

admissible except as provided by these rules, by other rules prescribed by the

Pennsylvania Supreme Court, or by statute.”). Stated differently, the sentence operates

as an exception to Pa.R.E. 802’s general bar against the use of hearsay, as indicated in

that rule’s comment. See Pa.R.E. 802, Cmt. (“In preliminary hearings in criminal cases,




at 503 n.11, citing Pa.R.Crim.P. 542(D). We also observe that the apparent incongruity
between our various articulations of the applicable burden and the actual text of Rule
542(D) may be easily explained: perhaps “a prima facie case” simply “entails a mere
determination of probable cause.” Commonwealth v. Talley, 

, 517 (Pa.
2021). Some of our cases support this interpretation. See, e.g., Petition of McNair, 

 (Pa. 1936) (equating prima facie case with probable cause). However, since
this issue is not squarely before us, we do not opine on it further.


                                      [J-40-2023] - 13
the court may consider hearsay evidence pursuant to Pa.R.Crim.P. 542(E) and

1003(E).”).8

       Even though Rule 542(E)’s first sentence requires the preliminary hearing judge to

consider hearsay in determining whether a prima facie case has been established —

which, as discussed above, means a prima facie case as to both the commission of a

crime and the identity of the defendant — it says nothing about the sufficiency of such

evidence to meet the applicable burden. Rather, that separate issue is governed by the

sentence that immediately follows. The second sentence explains, “[h]earsay 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.” Pa.R.Crim.P. 542(E).

       By its plain terms, this sentence speaks only to “element[s] of an offense,” 

which pertain solely to Rule 542(D)’s first requirement that the Commonwealth prove a

prima facie case that “an offense has been committed[.]” Pa.R.Crim.P. 542(D). Notably,

there is no mention whatsoever in subsection (E) of subsection (D)’s second and equally

important burden on the Commonwealth to prove a prima facie case that “the defendant

has committed it.” 

 This strongly suggests hearsay relating to the identity of the


8 It is important to recognize Rule 542 is not concerned with non-hearsay — i.e., a
statement the declarant makes while testifying at the current trial or hearing or an out-of-
court statement that is admissible for some relevant purpose other than to prove the truth
of the matter asserted — or with admissible hearsay — i.e., hearsay falling under a
hearsay exception. It instead governs “inadmissible hearsay” which, unlike non-hearsay
and admissible hearsay, “does not constitute legally competent evidence.” Verbonitz,

. Thus, while Rule 542 uses the word “hearsay,” it more accurately refers
to “inadmissible hearsay,” since it is the use of legally incompetent, inadmissible hearsay
evidence that raises due process concerns. Cf. Commonwealth v. Riggins, 

 (Pa. 1978) (where hearsay statement identifying defendant was admitted under dying
declaration exception, “[t]his evidence alone . . . was sufficient in law to sustain the
verdict”).

                                     [J-40-2023] - 14
offender is insufficient to prove a prima facie case under Rule 542. See generally

Pa.R.J.A. 110(c) (“[e]xceptions expressed in a rule shall be construed to exclude all

others”).

       What the text of the rule suggests, its comment confirms. It begins by echoing

Pa.R.E. 101’s observation that “traditionally our courts have not applied the law of

evidence in its full rigor in proceedings such as preliminary hearings,” but then specifically

adds: “especially with regard to the use of hearsay to establish the elements of a prima

facie case.” Pa.R.Crim.P. 542, Cmt. (emphasis added). “Accordingly,” it continues,

“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.” 

 (emphasis added). The comment clearly discusses hearsay only in the

context of proving the elements of offenses; it makes no reference to using such evidence

as a legitimate or legally competent means of proving a prima facie case as to a

defendant’s identity. The silence is telling.

       Presumably recognizing neither the plain text of the rule, its comment, nor any

caselaw supports its proposed reading of Rule 542(E), the Commonwealth makes one

last-ditch attempt. It argues subsection (E) permits the use of hearsay to prove a prima

facie case with respect to identity because “the rule’s reference to ‘elements’ applies to

the defendant’s identity, which our courts have treated as an element like any other in the

Commonwealth’s evidentiary burden.”             Commonwealth’s Brief at 27 n.5; see

Commonwealth’s Reply Brief at 3 (“our courts have spoken of the defendant’s identity as

an ‘element’ of the offense”). But we are unpersuaded.

       It is generally true “that a crime conceptually consists of three elements: ‘First, the

occurrence of the specific kind of injury or loss . . .; secondly, somebody’s criminality (in

contrast, e.g., to accident) as the source of the loss, — these two together involving the




                                      [J-40-2023] - 15
commission of a crime by somebody; and, thirdly, the accused’s identity as the doer of

this crime.’”   Commonwealth v. Ware, 

 (Pa. 1974), quoting 7 J.

WIGMORE, EVIDENCE §2072, at 401 (3d ed. 1940) (emphasis removed). Along these lines,

we have broadly referred to identity as an element of a crime in limited circumstances —

namely, when discussing the admissibility of other crimes evidence. See Bronshtein, 

 (“The existence of a common scheme is relevant to establish any element

of a crime (e.g. the identity or intent of the perpetrator) so long as it does not merely

indicate the defendant’s propensity to commit similar crimes.”). Here, however, we are

not concerned with the conceptual elements of crimes and we are not dealing with other

crimes evidence.     Instead, our task is limited to determining whether “identity” is

considered an “element” for purposes of Rule 542. It is not.

       Nothing in the rule or its comment suggests an intent to shoehorn identity as an

element of the offense under Rule 542. On the contrary, all signs point the other way.

As discussed, Rule 542(D) deliberately assigns to the Commonwealth a burden of proving

a prima facie case in two different respects. The listing of dual requirements in subsection

(D) strongly implies one is not a subset of the other. Moreover, as noted in McClelland,

when Rule 542(E) was first promulgated in 2011, it “was of limited scope” — its primary

purpose was to ease the Commonwealth’s burden in “establish[ing] elements of property

offenses.” 233 A.3d at 733. Although the 2013 amendment expanded the rule’s reach

beyond property offenses, the expansion still was limited to elements of crimes, with no

indication that identity was ever considered to be one for this purpose. Indeed, even the

Crimes Code does not portray identity as an element of an offense in the sense the

Commonwealth advocates. See 18 Pa.C.S. §103 (defining “[e]lement of an offense”). All




                                     [J-40-2023] - 16
told, we find no support for the proposition that identity is an element of a crime for

purposes of Rule 542(E) such that hearsay alone may be used to establish it. 9

       To summarize the state of the law regarding the use of hearsay at preliminary

hearings, Rule 542(E) “is intended to allow some use of” otherwise inadmissible hearsay

by the Commonwealth to establish a prima facie case that an offense has been

committed. McClelland, 233 A.3d at 735. But “[t]he plain language of the rule does not

state a prima facie case may be established solely on the basis of hearsay[,]” and to do

so would violate due process in any event. Id. Finally, we now hold, based on the plain

language of Rule 542, that inadmissible hearsay alone may not be used to prove a prima

facie case as to the defendant’s identity. This means the Commonwealth at a preliminary

hearing is required to produce some non-hearsay or admissible hearsay evidence to

sustain its prima facie burden as to the defendant’s identity. See Verbonitz, 

 (“In order to satisfy [its] burden of establishing a prima facie case, the Commonwealth

must produce . . . legally competent evidence to demonstrate the existence of facts which

connect the accused to the crime charged.”).

       Despite affirming the Superior Court’s holding, we disapprove its rationale in three

respects. See, e.g., Commonwealth v. Chisebwe, 

, (Pa. 2024) (“because

we review not reasons but judgments,” we may uphold a lower court order for any valid

reason appearing from record) (internal quotation marks and citations omitted). First, we

do not endorse its discussion of “core” elements and the like, terms which do appear in


9 The dissent accuses us of “creat[ing] an artificial distinction between the elements of the

offense and the defendant’s identity.” Dissenting Opinion at 1. Respectfully, as we have
explained, it is Rule 542’s plain text that creates the distinction. And while it may be true
that there is “no reason to treat identity differently from the statutory elements of the crime”
at a preliminary hearing, the fact remains that “the current [r]ule does so.” Concurring
Opinion (Wecht, J.) at 10. In the present adjudicatory context, we are “bound to interpret
the rule as currently written[.]” Id. at 11; but see infra n.10 (referring matter to Criminal
Procedural Rules Committee).


                                       [J-40-2023] - 17
the text of Rule 542. We also reject the panel’s opinion to the extent it implies due process

“require[s] direct evidence that the defendant was the person who committed the crime[.]”

Harris, 

 (emphasis added). It has long been the law that “[d]irect evidence

of identity is, of course, not necessary and a defendant may be convicted solely on

circumstantial evidence.” Commonwealth v. Hickman, 

 (Pa. 1973); see

Commonwealth v. Lovette, 

 (Pa. 1982) (“The fact that the evidence

establishing a defendant’s participation in a crime is circumstantial does not preclude a

conviction where the evidence coupled with the reasonable inferences drawn therefrom

overcomes the presumption of innocence.”). Put simply, circumstantial evidence and

hearsay evidence are not opposite sides of the same coin, and Rule 542(E) only

precludes the latter from serving as sufficient evidence to bound a case over for court.

Third and finally, both the preliminary hearing judge and the panel seemed to believe that

only non-hearsay evidence could suffice to establish a prima facie case as to appellee’s

identity. See N.T. Hearing, 9/16/20, at 6 (referencing lack of “non-hearsay evidence”);

Harris, 

 (same). To reiterate, what matters to establish identity — what

Rule 542 demands — is the use of legally competent evidence, such as non-hearsay

evidence or admissible hearsay evidence falling under a hearsay exception. Accord

supra note 8; see McClelland, 233 A.3d at 738 (Wecht, J., concurring) (“the result of a

hearing so intertwined with one’s liberty interests cannot rest exclusively upon evidence

that is unreliable, inadmissible, and provides no assurances as to the future viability of a

particular prosecution”).




                                      [J-40-2023] - 18
       Order affirmed.10, 11


Justice Wecht joins the opinion, Justices Donohue and Brobson join the opinion with
respect to Parts I-III, and join the plain-text analysis in Part IV.
Justice Donohue files a concurring opinion in which Justice Brobson joins.
Justice Wecht files a concurring opinion.
Justice Mundy files a dissenting opinion in which Chief Justice Todd joins.




10 Our repeated entanglements with Rule 542 over the last few years have convinced us

that “the hearsay-related amendments were not promulgated under ideal circumstances
and that further reflection and refinement in the rulemaking arena is warranted.” Ricker,

 (Saylor, C.J., concurring); see also Perez, 249 A.3d at 1106 (Saylor, J.,
concurring) (highlighting “view that additional clarification of the ‘prima facie’ standard
governing preliminary hearings . . . is needed”); McClelland, 233 A.3d at 742 (Wecht, J.,
concurring) (opining that “hearsay should be eliminated from preliminary hearings as a
substitute for eyewitness testimony, police testimony, or other testimony bearing upon the
establishment of the material elements of a prima facie case”); id. at 749 (Baer, J.,
dissenting) (advocating “reasonable parameters for the admission of only those types of
hearsay evidence that are the most reliable”). Consequently, we once more refer this
matter to the Criminal Procedural Rules Committee for it to make recommendations to
this Court regarding potential amendment of the rule.
11 Should the Commonwealth determine it can carry its burden of proof consistent with

this opinion, it remains free to “bring the matter again before any other officer empowered
to hold a preliminary hearing.” Commonwealth v. Prado, 

 (Pa. 1978); see
McClelland, 233 A.3d at 736 n.11 (discharging defendant “without prejudice to the
Commonwealth to refile charges and proceed with a new preliminary hearing”). We also
remind the Commonwealth that, where intimidation is at issue, as it may have been here,
see Commonwealth’s Brief at 42 (asserting “intimidation was likely a factor here, where
the victim told police that [appellee]’s brother contacted him while he was in the hospital
after the shooting, offered to pay him to keep quiet, and told the victim he would kill him
if he talked to police”), it can utilize the indicting grand jury. See Pa.R.Crim.P. 556(A)
(permitting Commonwealth to “proceed with an indicting grand jury . . . in cases in which
witness intimidation has occurred, is occurring, or is likely to occur”); Pa.R.Crim.P.
556.11(A)(2) (authorizing grand jury to indict “based upon evidence it has received,
including hearsay evidence as permitted by law, or upon a presentment issued by an
investigating grand jury, if the grand jury finds the evidence establishes a prima facie case
that (1) an offense has been committed and (2) the defendant has committed it”).


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