COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA :
v. : 14 Criminal 2000
DANIEL FOTIATHIS :
On May 29, 1999, Daniel Fotiathis, the defendant, was arrested and charged with Simple Assault and Harassment. The Commonwealth alleges that the defendant assaulted his wife April. On January 6, 2000, a preliminary hearing was held before District Justice Claypool.
At the hearing, April wished to invoke the husband B wife privilege and not testify, but this was denied and she took the stand for the Commonwealth. She then testified that there was no physical contact between the defendant and herself.
The Commonwealth then called Officer Lutz, who, over defense counsel=s objection, testified about statements made to him by April Fotiathis and played a A911@ tape in which a voice identified as April requested that a trooper come to her house because Amy husband and I are fighting. I want him to leave the house.@
The district judge ruled that the Commonwealth had established a prima facie case and bound all charges over for trial.
IS HEARSAY TESTIMONY PRESENTED AT A PRELIMINARY HEARING REGARDING A VICTIM=S ACCOUNT OF AN ALLEGED CRIMINAL INCIDENT INSUFFICIENT TO ESTABLISH A PRIMA FACIE CASE?
Suggested Answer: YES.
A. HEARSAY TESTIMONY PRESENTED AT A PRELIMINARY HEARING REGARDING A VICTIM=S ACCOUNT OF AN ALLEGED CRIMINAL INCIDENT IS INSUFFICIENT TO ESTABLISH A PRIMA FACIE CASE.
The Commonwealth, over defense counsel=s objection, presented the hearsay testimony of the investigating police officer who recounted the alleged criminal incident as it was alleged to have been related to him by the victim. Reliance upon the investigating officer=s hearsay testimony is insufficient to establish a prima facie case.
The principal reason for a preliminary hearing is Ato protect an individual=s rights against unlawful arrest and detention.@ Commonwealth ex rel. Fitzpatrick v. Mirarchi, 481 Pa. 385, 392 A.2d 1346 (1978). At the preliminary hearing it is incumbent on the Commonwealth to establish at least prima facie that a crime has been committed and that the defendant 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, Commonwealth v. Shain, 493 Pa.360, 426 A.2d 589 (1981), 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 v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983).
A[F]undamental due process requires that no adjudication be based solely on hearsay evidence.@ Commonwealth, Unemployment Compensation Board v. Ceja, 493 Pa. 588, 619, 427 A.2d 631, 647 (1981). The testimony of a witness as to what a third party told him about an alleged criminal act is clearly inadmissible hearsay. Commonwealth v. Maybee, 429 Pa. 222, 239 A.2d 332 (1968); Commonwealth v. Whitner, 444 Pa. 556, 281 A.2d 879 (1971).
In Commonwealth ex rel. Buchanaan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990), our Supreme Court held that the Commonwealth failed to satisfy its burden of establishing a prima facie case, where the only evidence relied upon at the preliminary hearing was hearsay testimony of the investigating police officer. Some independent evidence of corpus delecti must be offered before hearsay statements can be admitted. Commonwealth v. Perschini, _____ Pa. _____, 663 A.2d 699 (1999); Commonwealth v. Lugowski, 1513 Cr 1999, C.P. Monroe, Miller, J. (1999).
In the present case, the alleged victim testified that the defendant did not make any physical contact with her. The only evidence indicating that a crime had been committed and that the defendant committed it was the hearsay testimony of the investigating officer.
In this case it is clear that the Commonwealth did not meet its burden. The Commonwealth failed to establish that a crime has been committed and that Mr. Fotiathis committed it. District Justice Claypool relied solely on hearsay evidence which is insufficient to establish a prima facie case.
The Commonwealth is trying to proceed with a victimless prosecution at the expense of the defendant=s constitutional and statutory rights. On its paternal quest, the Commonwealth has overlooked the Rules of Evidence and fundamental principles of due process. The investigating police officer=s recount of alleged events is clearly inadmissible hearsay. The Commonwealth failed to present legally competent evidence and failed to meet its burden. For all the foregoing reasons, the defendant respectfully requests that the charges against him be dismissed.
Michael A. Ventrella