Comment to Proposed Amendment of Pa.Rs.Crim.P. 542, 543 and 1003
This Comment is provided in response to the Committee’s proposed amendment of Rules 542, 543 and 1003 of the Pennsylvania Rules of Criminal Procedure. It focuses on the Committee’s proposition that there is “no material difference between the level of evidence that constitutes a prima facie case and that constitutes probable cause.” This Comment expresses concern regarding this proposition, because Pennsylvania law clearly establishes substantive distinctions between prima facie and probable cause standards of proof. Support for this Comment’s concern is provided for under (1) the manner in which the Rules are construed, and (2) case law expressly distinguishing prima facie and probable cause standards of proof both (a) generally and (b) specifically when defining the prima facie standard.
The Rules themselves and the manner in which they are construed militate against equating prima facie and probable cause standards. See generally Pa.R.Crim.P. 101(C) (“[T]hese rules shall be construed in consonance with the rules of statutory construction”). For example, the Rules refer to the probable cause standard as required for instituting proceedings, but they refer to the prima facie standard as required for binding defendants over to court at a later stage of the proceedings. See Pa.R.Crim.P. 502, 513, 542, 543. This demonstrates that as a matter of overall design, the Rules establish distinct burdens of proof that are applicable at distinct and correlating stages of criminal proceedings.
The Rules do not reference the prima facie and probable cause standards in the alternative or even in the same Rule. In light of the linguistic cannon Expressio unius est exclusio alterius, this further demonstrates that equating the prima facie and probable cause-standards is a dubious proposition at best. See Commonwealth v. Charles, 411 A.2d 527, 530 (1979) (“An intrinsic aid to statutory construction is found in the maxim Expressio unius est exclusio alterius. The maxim establishes the inference that, where certain things are designated in a statute, ‘all omissions should be understood as exclusions.’ The maxim is one of longstanding application, and it is essentially an application of common sense and logic”).
It also comes to mind that equating and replacing the term “prima facie” with “probable cause” improperly reduces the former to surplusage. Commonwealth v. Tome, 737 A.2d 1239, 1241 (Pa. Super. 1999) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit… The principles of statutory construction indicate that ‘[w]henever possible each word in a statutory provision is to be given meaning and not to be treated as surplusage.’”) (internal citations omitted). It cannot be gainsaid that these terms are ambiguous. Again and as further described below, they are distinct and hold their own well-established definitions.
When the Supreme Court of the United States discussed preliminary hearings at length in Gerstein v. Pugh, 420 U.S. 103 (1975), it pointed out that “[t]he standard of proof required of the prosecution is usually referred to as ‘probable cause,’ but in some jurisdictions it may approach a prima facie case of guilt.” Id. at 119. This observation further demonstrates a substantive distinction between the prima facie and probable cause standards. The Court clearly compares and does not equate jurisdictions that require the probable cause standard of proof at the preliminary hearing, with jurisdictions that require the prima facie standard of proof at the preliminary hearing.
The Court drew the same distinction in when it defined and discussed the contours of the probable cause standard in Illinois v. Gates, 462 U.S. 213 (1983), noting “it is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’” Id. at 235 (internal citation omitted), see also Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citing the identical phrase in Gates). Generally speaking there is a well-established substantive distinction between prima facie and probable cause standards of proof.
The distinction between these two standards has been articulated with greater specificity by Pennsylvania courts in our efforts to define the prima facie standard. Most recently in Commonwealth v. Ricker, 170 A.3d 494 (Pa. 2017), Chief Justice Saylor keenly observed that “the prima facie burden attaches only to the facet of the Commonwealth’s obligation to prove that a crime has been committed, and  a separate probable cause standard pertains to demonstrating that the defendant was the perpetrator.” Id. at 504. (citing Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) (emphasis added), see also Commonwealth v. Hilliard, 172 A.3d 5, 10 (2017) (“At [the preliminary hearing] the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it”) (internal citation omitted).
It should be noted that the Chief Justice insightfully identified the need to reconcile the “varying expressions” of our High Court regarding the definition of the prima facie standard. Id. Of course, more precisely articulating the prima facie standard is far from the same as equating it with probable cause, where the two standards clearly are distinct under Pennsylvania law. In light of all of the foregoing, this Comment encourages the Committee to reconsider the proposed amendment, insofar as it would alter long-standing Pennsylvania law by equating prima facie and probable cause standards of proof.
Mikhail N. Pappas, MDJ