COMMONWEALTH OF PENNSYLVANIA

vs

BRADLEY KELLY

	Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CRIMINAL DIVISION

CASE NO: 357 OF 2000

APPEARANCES:

ANTHONY J. McDONALD, ESQUIRE, Attorney for the Commonwealth of Pennsylvania
PETER T. CAMPANA, ESQUIRE, Attorney for the Defendant

February 28, 2001.  JAMES, J.

OPINION

This case is before the court as a result of a Petition for Writ of Habeas Corpus filed by defendant.  Defendant alleges that Commonwealth’s evidence presented at the preliminary hearing on April 17, 2000, is not sufficient to establish a prima facie case on the charges against him, i.e., Criminal Attempt to Deliver a Controlled Substance. Commonwealth and defendant presented the case to this court based on the written transcript of the preliminary hearing.
The Pennsylvania Superior Court in Commonwealth ex rel. Lagana v. Commonwealth Office of Attorney General, 443 Pa.Super. 609, 613, 662 A.2d 1127, 1129 (1995), citing Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985), discussed the purpose of a preliminary hearing and the concept of a “prima facie case”:  
A creature of statute, the preliminary hearing is intended to protect the accused from unlawful detention.  To that end, the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it.  The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt.  The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury.  Case law provides a mechanical standard of review. Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct.  If the proven facts fit the definition of the offenses with which the [defendant is] charged, then a prima facie case was made out as to such… offenses.  If the facts do not fit the statutory definitions of the offenses charged against [the defendant] the [the defendant] is entitled to be discharged.

With this in mind, we need to examine the definition of the crime in this case and the proven facts.  The charge of “Criminal attempt” is defined as follows:  “A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.”  18 Pa.C.S. § 901.  The crime that defendant is alleged to have attempted is not specified by citation, but is apparently 35 P.S. § 780-113(a)(1) which prohibits the “manufacture, sale or delivery, holding, offering for sale, or possession of any controlled substance, other drug, device or cosmetic that is adulterated or misbranded.”  
     Two police officers testified at the preliminary hearing.  Most of their testimony involves hearsay from a confidential informant who did not testify. The proved facts show that defendant took $400.00 from the confidential informant.  One of the officers asked defendant when he would get his “stuff.”  Defendant said the he was going to get a “good half.” The police officer testified that the confidential informant had made arrangements with defendant to deliver to the officer a half-ounce of cocaine for the $400.00.  According to the confidential informant, defendant was going to New York City to get the cocaine and would bring it to defendant later. Apparently, the sale never materialized and the money was returned.
     The element of the crime at issue here is whether the Commonwealth proved that defendant committed an act which constituted a substantial step toward the commission of an unlawful drug delivery.  See 18 Pa.C.S. § 901(a).  The Commonwealth is asking the court to connect the proven facts by inferences largely derived from hearsay evidence presented at the preliminary hearing.
     Defendant contends that the hearsay evidence presented at the preliminary hearing is incompetent to prove a prima facie case.  “At the preliminary hearing it is incumbent on the Commonwealth to establish ‘at least prima facie that the accused is the one who committed it.’ … In order to satisfy this burden of establishing a prima facie case, the Commonwealth must produce legally competent evidence, ... , 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.”  Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 416-417, 581 A.2d 172, 173-174 (1990)(citations omitted).
     “[H]earsay evidence alone may not be the basis for establishing a prima facie case in a preliminary hearing.”  Commonwealth v. Tyler, 402 Pa. 429, 434, 587 A.2d 326, 328 (1991), appeal quashed 533 Pa. 39, 617 A.2d 1263 (1992), citing Commonwealth ex rel. Buchanan v. Verbonitz, supra.  However, the Pennsylvania courts have determined that there is no requirement to establish a prima facie case at a preliminary hearing by all evidence that would also be admissible at trial. Commonwealth v. Troop, 391 Pa.Super. 613, 621-622, 571 A.2d 1084, 1088-1089, (1990), appeal denied 526 Pa. 634, 584 A.2d 317 (1990).  Citing Commonwealth v. Rick, 244 Pa.Super. 33, 866 A.2d 302 (1976), the Troop court also stated:
     The distinction between a preliminary hearing and the trial itself is well settled.  While a trial determines guilt or innocence, the “preliminary hearing is held primarily to prevent the detention of a person for a crime which was never committed or of a crime with which there is no evidence of his connection.”  …
     The question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt; rather, the question is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with a crime.  … Certainly the difference in purpose between a preliminary hearing and a trial dictates a different enforcement of the rules of evidence.
Id.
     As set forth above, a test for a prima facie case is whether the court would permit the case to go to a jury based on the facts presented as a prima facie case.  The police officer’s conversations with defendant coupled with the evidence provided by the statements of the confidential informant establish a case for attempted illegal drug delivery that would be permitted to go to a jury.1  A prima facie case was established.  The Petition for Writ of Habeas Corpus must be dismissed.   

COMMONWEALTH OF PENNSYLVANIA

vs

BRADLEY KELLY

	Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CRIMINAL DIVISION

CASE NO: 357 OF 2000

ORDER

	AND NOW, this 28th day of February 2001, defendant’s Petition for Writ of Habeas Corpus is DISMISSED.

			BY THE COURT:

			_________________________________ 
			HONORABLE THOMAS A. JAMES, JR., J.