A case that could have determined whether a defendant has a constitutional right to confront a prosecution witness at a preliminary hearing, and whether hearsay evidence alone is sufficient to establish a prima facie case, has been dismissed as improvidently granted by a split Pennsylvania Supreme Court. The case had been raised by Bill Cosby in an attempt to confront his accuser during the preliminary hearing in his sexual-assault trial earlier this year.

The prosecution in Commonwealth v. Ricker did not build its case solely through hearsay, Pennsylvania Supreme Court Chief Justice Thomas G. Saylor said in his concurring statement dismissing the matter.

“I have determined that this appeal does not present a suitable vehicle by which to resolve the questions presented and that it should be dismissed,” Saylor said in the Sept. 28 ruling, which let stand a Superior Court decision denying David Ricker’s request for a new preliminary hearing in his trial for the alleged attempted murder of a Pennsylvania state trooper.

Cosby had argued that he was denied his constitutional right to confront his accuser during his preliminary hearing. Following a hearing in July 2016, Montgomery County Court of Common Pleas Judge Steven T. O’Neill denied Cosby’s habeas corpus motion, finding that prosecutors properly relied on the Superior Court precedent from Ricker that hearsay alone can be used to establish a prima facie case in a preliminary hearing.

At Ricker’s preliminary hearing, the prosecution presented live testimony from an investigating officer regarding the incident at issue in his case, as well as a recording of an interview with the trooper whom Ricker shot, Saylor said.

At the time of the hearing, Ricker’s attorney indicated that he found it to be unsatisfactory that the trooper’s statement was introduced via hearsay without an opportunity for cross-examination. Ricker later filed a petition for writ of habeas corpus, acknowledging that hearsay evidence is admissible, but arguing that it alone cannot suffice to meet the prosecution’s burden of establishing a prima facie case. The trial court denied the petition, finding that the state did not rely exclusively on hearsay, and the Superior Court affirmed.

Saylor said he agreed with the state’s argument that the prosecution did not rely exclusively on hearsay because the live testimony confirmed elements of the case. Because the prima facie case was advanced through hearsay evidence alone, however, the case was unsuitable to address the question the court had granted — whether the state can rely exclusively upon hearsay.

Regarding the confrontation issue, Saylor said the court must resolve ambiguity about what is required of the state during a preliminary hearing before the justices can determine whether the constitutional right to confrontation applies. He referenced the U.S. Supreme Court’s indication that the more a pretrial procedure resembles a trial, the more likely it is that trial rights apply.

“This consideration, however, is not sharply developed in the briefing, and the court presently is divided concerning the appropriate approach,” Saylor said. “For these reasons, I elect not to proceed further at the present with the confrontation clause analysis in this case.”

Despite dismissing the case, Saylor made it a point to “emphasize that the commonwealth is not obliged to present particular witnesses or all of its witnesses, but, rather, must merely establish a prima facie case.”

Justice David N. Wecht issued a dissenting statement saying that Ricker should have been granted a new preliminary hearing because “the commonwealth’s prima facie case was premised upon, and for all practical purposes constructed entirely by “the taped interview.”

William Costopoulos of Costopoulos, Foster & Fields in Lemoyne, who represented Ricker, did not return a call for comment. Dauphin County District Attorney Edward Marsico Jr., whose office prosecuted Ricker, also did not return a call for comment.