*1
v. Larry LOUDEN, Appellee. E. Pennsylvania, Appellant, COMMONWEALTH of LOUDEN, Appellee. Helen Supreme Pennsylvania. Court of
Argued May 1991. Decided March *2 Charles, Atty., appellant. H. Dist. Bradford Lebanon, appellee. Keys, Barr Robert FLAHERTY, LARSEN, NIX, C.J., and Before jj. CAPPY, McDERMOTT, ZAPPALA, PAPADAKOS OPINION PAPADAKOS, Justice* left unresolved we must address issue appeal,
In
v.
of Commonwealth
Ludwig,
Pa.
our recent decisions
Lohman,
(1991)
addressed the of 42 constitutionality §§ 5984 Pa.C.S. 5985(a) since both adopted sections were subsequent to the in Ludwig and Lohman. This appeal presents us with trials opportunity to address specifically constitutionality 5985(a) provisions. §§ both Because we find that 5984 and fail to limit the use of video closed circuit television to those instances which the accused’s right face to face satisfied, confrontation has been otherwise we must hold both witness, Subjective unconstitutional. fears of the provisions more, without are insufficient restrict the accused’s consti- Furthermore, tutional to confront a witness face to face. right light disposition requiring our constitutional issue Appellees, a new trial for the we must address the issue raised regarding the Commonwealth of the tapes adjacent Appellees’ recorded from the residence residence. (hereinafter 1986, Appellee-wife, In Helen Louden July wife), applied granted referred to as for and was state certifi- *3 care center in her home. At the time operate day cation to certification, Appellee-husband, Larry of wife resided with her (hereinafter husband), Louden, referred to in one- as E. Sr. a common party a double house with wall. half of (Kuloviches) resided the step-father husband’s mother and ill, Because Mrs. Kulovich was half of double house. other the sister, Wolfe, Kulovich home frequented the husband’s Carol visiting the Kulovich July of while daily. Beginning house, home, adjoining from the began hearing, Ms. Wolfe partic- at language, directing obscenities using adults obscene Fur- children, explicit over sexual issues. arguing and ular made at the thermore, being hear threats would Ms. Wolfe and crying and children smacking noises by children followed time, children of point undetermined At some screaming. began to misbe- care center day Appellees’ attended the who clingy also became violently. Children and to act have chil- of adult males. Some withdrawn, extremely wary nightmares. also experienced dren concerned very became Wolfe fall of Ms. During the center day care visiting the children about welfare In addi- employees. agencies state contacted various
183 of the North Cornwall tion, police three officers she contacted Tomkins, Bastí and Department, Police Officers Township no could advised that action Because Ms. Wolfe was Wlazlak. complained or a parents unless against Appellees taken hurt, tape player to use a Ms. decided child was Wolfe would her com- evidence which substantiate obtain additional hallway such, tape her recorder placed As she plaints. occasions when she heard her mother’s home on those for the welfare activity to become concerned which caused her center. attending day care Appellees’ of the children Thereafter, observations and inde- based Ms. Wolfe’s upon observations, were arrested pendent Appellees police child, § 4304. Both of a 18 Pa.C.S. endangering the welfare pre-trial filed motions. Appellees and the Commonwealth motion, requested that the record- Appellees In their while Common- suppressed, Wolfe be ings made Ms. testify by have witnesses means sought wealth three child 42 Pa.C.S. videotape depositions under motion, court initially the trial Appellees’ suppression As light but reconsideration and denied the motion Henlen, 368 Superior Court’s decision (1987), judge suppressed the trial Pa.Super. 457 not appeal The Commonwealth did tape recordings. effectively determination did not ruling judge’s since the trial v. Dug- out of court. Commonwealth put the Commonwealth (1985). ger, A.2d 382 A PART §§ 5984 and OF PA.C.S. CONSTITUTIONALITY *4 to request the video respect With Commonwealth’s witnesses, ages 7 to the testimony three child tape the 26,1988. April During on hearing trial court conducted a children as well as child hearing, parents the of those three therapist that their chil parents complained testified. The testify jury dren should not have to at trial before their would be intimidated Appellees because children presence jury as well strangers, spectators, such as Appellees.
as the The therapist, treating who was at least one witnesses, of the child testified that if required testify court, open great children would have difficulty speaking large many in a room with strangers. The therapist opined jurors strangers, that since the would be closing the court to spectators all would not alleviate the difficult time the children testifying essence, would have In jury. therapist before testified that: do not presence people they might know and who chil-
challenge opinions feelings might make the extremely dren anxious.
N.T., 26, 1988, April p. at
Furthermore, 26, 1988, the wife testified at the hear- April monthly that she had seen several children at Cub ing Scout them at activities. meetings supervised pack and even pack fear, occasions, did not any On those the children demonstrate of the hostility anxiety Appellees. towards either testimony parents, therapist of the At the conclusion wife, requested for the wife that the trial counsel child witness an in individually prospective interview each determine, what, any, if harm specific proceeding camera court. any testifying open a result of child would occur as request. grant The trial court declined failure to interview or Notwithstanding the trial court’s witness, trial court found child prospective observe each §§ of the Act to under 5984 and 5985 cause” as defined “good circuit by videotape or closed testify the children to permit television. and after the trial ruling trial court’s
In with the accordance by videotape child was taken commenced, testimony of each Services and Youth County Children at the Lebanon a room clerk, a court child, a court one parent, only offices with and trial counsel, attorney the district defense stenographer, themselves Appellees Although judge present. room. The child adjacent in an they were seated present, could Appellees Appellees but could not see witness circuit from a closed and the events the child witness observe *5 times, were able to Appellees the Finally, at all television. attorneys. videotapes The then communicate with their in case chief. the Commonwealth’s jury during the shown to 8, 1988, endanger- for Appellees convicted jury On the May a motion in arrest Appellees a filed the of child. ing welfare the Concluding videotape for trial. judgment and new of upon the infringed the trial court followed procedure accusers, the trial court to confront” their “right Appellees’ jurisdiction then accepted a trial. We Appellees new granted 722(6) § trial declared an because the court under 42 Pa.C.S. to be unconstitutional. Assembly act the General 21, 1986, provi- the enacted two February legislature On closed circuit relating videotaped depositions sions a a child or child material witness. Both testimony of victim direct, testimony live the avoidance provisions permitted cause upon “good shown”. Videotaped depositions
(a) a child victim any prosecution involving Depositions —In witness, may, good for cause or child material the of a of the shown, taking videotaped deposition order on of the child his victim or material witness motion where the child’s advocate parent guardian, applicable, or or videotaped Commonwealth. Such attorney or the for the hearing, may if use at the depositions, preliminary taken for at in lieu only preliminary hearing used If videotaped deposition such testimony of child. trial, only the trial lieu may taken use at it be used at for depositions shall be testimony of the child. of the facility special taken the court chambers before Only designed depositions children. taking Commonwealth, for the attorneys defendant and necessary operate equipment, qualified persons any person presence whose would reporter shorthand child, well-being of the includ- contribute to welfare ing persons designated (relating under section 5983 services), the room with the rights may present permit child his The court shall during deposition. testimony and hear the of the child defendant observe person but shall ensure that the child cannot hear or see defendant. Examination and cross-examination child proceed shall in the same manner permitted at trial. The court shall make certain that the defendant and defense *6 counsel adequate opportunity have to for the communicate purposes of an providing effective defense. §
42 Pa.C.S. 5984. by § 5985. Testimony closed-circuit television (a) Closed-circuit television.—The child victim material or witness, or, parent guardian, applica- his or where ble, the attorney child’s advocate for the Common- move, shown, may good testimony wealth cause that the of a child taken a room other than the courtroom and be by by televised closed-circuit to be equipment viewed Only and finder of in the proceeding. court fact Commonwealth, for the attorneys the defendant and judge, operate reporter, persons necessary court con- equipment any person presence and whose would child, including of the well-being tribute to the welfare rights (relating under section 5983 persons designated services), in the room the child may present -with permit his The court shall the defendant during testimony. but testimony person hear the of the child to observe and child cannot hear or see the defendant. shall ensure that the defense certain that the defendant and shall make for the opportunity communicate adequate counsel have Examination an effective defense. providing of purposes same proceed shall cross-examination child at trial. as permitted manner 42 Pa.C.S. I, of Article as a violation challenged are provisions
Both Ap- Specifically, Constitution. Pennsylvania 9 of the Section these en the court banc successfully before argued pellees aof guarantee state constitutional violated our provisions “face-to-face” confrontation. challenge, cognizant we are addressing
In this constitutional SEPTA, 505 Pa. In James v. review. of our standard (1984), we stated: A.2d 1302 at- course, presumption constitutionality a is, There lawfully legislation. Should taching any enacted the chal- legislation challenged, constitutionality of such rebutting presumption the burden of must meet lenger clear, demonstra- by palpable plain constitutionality provision. violates constitutional tion that the statute (Citations omitted.) A.2d at 1304.
505 Pa. at state Furthermore, interpreting our we have held Supreme not bound the United States we are constitution provi- of similar federal constitutional interpretation Court’s Edmunds, 526 Pa. 586 A.2d sions. See Commonwealth Melilli, Commonwealth v. (1991); 521 Pa. *7 Sell, v. 46, 504 470 A.2d and Commonwealth (1989); Pa. 1254 (1983). to Instead, provide the broader “power we have 457 minimum floor which is estab- standards, go beyond Edmunds, 526 Pa. at federal constitution.” lished A.2d at 894. 586 Ludwig, v. Pa. 594 Commonwealth in 527
Recently, (1991), to opportunity apply princi 281 had the these A.2d we this a similar to that now before Court. to fact situation ples of our state Ludwig, we In held that the confrontation clause use of close-circuit television to permit did not constitution such testimony alleged of an child victim because transmit right a defendant’s constitutional procedure infringed a conclusion, In reaching a this we to meet witness face-to-face. Maryland v. dissent in approval cited with Justice Scalia’s (1990). Craig, 497 U.S. 836, 110 666 S.Ct. L.Ed.2d I, our Article Section 9 of state constitution does reflect requires a confrontation. “preference” but “face-to-face” in our requirement This is rooted belief that framers state constitution were of the that: opinion our or Many people possessed being loose-tongued the trait of willing say something they that person’s behind back truthfully
dare not or cannot to his or say face under oath reason, probably a courtroom. It was for this as well as to give right the accused the to cross-examine his accusers and better thereby jury credibility enable determine the and the strength of the Commonwealth’s witnesses case, its that added important protection truth of was every right accused of crime. have no given person We disregard (unintentionally) any provi- erode or distort constitution, where, here, plain as its especially sion clear; meaning unmistakably make its simple language indeed, live, because of the times which we we have a and safe- higher duty zealously protect than ever before to the constitution. guard Russo, 462, 470-471, 131
(1957). Ludwig, exceptions do arise to recognized
In we also I, However, excep- of Article Section application the strict testimony given only original after permissible tions are having with the defendant of the defendant presence In such his accuser. to face and cross-examine opportunity to confront instances, opportunity accused has had the him, to face. face against witnesses of a subjective fears Ludwig, we held Finally, to restrict a defendant’s are insufficient more witness without confrontation. of face-to-face right important Ludwig objections raised addressed principles and 5985 appeal. in this Sections equally applicable are accus- *8 confront his right the defendant’s guarantee fail to provide are intended provisions that these It is clear ers. motive legislature’s While child witness. to a protection specif- our constitution that laudable, forget cannot we may accused to an guarantees unambiguously clearly and ically, accuser. Such with his confrontation to face-to-face right enunciated. clearly more not be could right constitutional face are 5985 on their §§ 5984 and hold that we Accordingly, invalid. are and therefore state constitution to our repugnant issue, the of disposition the constitutional of our Because result, important As a it is a new trial. will receive Appellees issue.1 the suppression to address us PART B EVIDENCE OP TAPE RECORDED SUPPRESSION of October Ms. suppression hearing At the leading to her up to the circumstances testified as Wolfe purpose in her mother’s home tape recorder placing a within their own Appellees’ conversations recording of center, day care opening Prior their Appellees home. arguments loud sexual explicitly Ms. would hear Wolfe This not concern Ms. Wolfe did Appellees. between arguing Appellees’ problem was the because she believed However, Appellees after impact her. and did center, continu Ms. Wolfe believed the day care opened changed in front of children her attitude ing arguing small At this testified that she arguments. point, towards those she licensing of a de representative contacted police as well as several officers partment Harrisburg, Department. Ms. Wolfe Township the North Cornwall Police any investigation could not testified that she was advised injured. parents complained unless a child was started Therefore, embarked on her own course of action to Ms. Wolfe authorities proper obtain evidence convince harmful acts to the Appellees committing regard with Thus, present children their care. whenever Ms. Wolfe was home arguments, her mother’s and heard loud she would had placed activate a recorder she in her mother’s house At no did Appellees’ and record the voices. time Ms. Wolfe arguments standing that she heard these while outside testify Appellees’ present home nor did the Commonwealth Although, jurisdiction we have the constitutional issue as a matter 722(6), right, see 42 Pa.C.S. the second issue raises no constitu- pronouncement mandating tional the trial automatic our However, light judicial economy, review. because we did not previously disposition, remand this issue to court for dispose we opinion. of it in this *9 190 from any standing
evidence
other witnesses
outside of the
home who heard
Appellees’
Appellees’ arguments.
Initially,
court refused to
these
suppression
suppress
However,
tapes.
Superior
reconsideration
and after
Henlen,
handed down its decision in Commonwealth v.
Court
1,
(1987),
Pa.Super.
suppression
368
Most (1989), application proper we addressed the Henlen, by being interrogated was prison guard Act. In a the in- following the theft of an Pennsylvania a State Trooper the interrogation, the personal property. During mate’s recording interrogation. Subse- guard secretly tape was the a guard complaint against to filed quent interrogation, the the him harassment and trooper interrogated the who had Affairs Division of gave the Internal copy guard charged was then Pennsylvania State Police. of oral violating prohibits interception Act which communications. failed to unanimously held that the Commonwealth
We justifiable expectation prove trooper possessed interception. subject be Under his words would not trooper that the appeal, facts of that the evidence established more if but have taken meeting took some notes would which could have been used heard more information he as Furthermore, acknowledged it was defendant. against the are rou- practice interrogations that these kinds of common Therefore, the tinely by recorded law enforcement officials. circumstances, justified, expect- trooper was not under subject interception. that his conversations would ing us, home In the the Louden case before conversations enough loud heard the wall of their home to be invitees, home. The Kulovichs and their into Kulovich’s Wolfe, in the including Ms. could hear adults daughter, over using language, arguing explicit Louden home obscene issues, children, directing particular sexual obscenities at threatening care, the children under their and smacking them followed crying the children and screaming. whether,
The question
circumstances,
becomes
under these
justifiable
the Loudens had a
expectation that
their secret
conversations,
door,
subject
audible next
were not
being
intercepted. We think not. As we
noted Commonwealth v.
Henlen,
(1989),
522 Pa.
Applying principles these conversation, argu- threats and are satisfied that once the screams of the children between the Loudens and ments Kulovichs, wall in dividing to the became audible home, expectation privacy lost whatever their the Loudens discussions and conversations would had that their secret they overheard, posterity and memorialized for intercepted not be chose to broadcast device the listeners tape on or whatever conversations. Loudens’ secret not “oral com- since these conversations Accordingly, in Act, trial court erred under the protected munications” and to Ms. Wolfe recordings made suppressing extent, is its order reversed. Pleas of Lebanon Common the Court of The order of however, trial, is af- new Appellees County granting firmed. JJ., not in the McDERMOTT, participate did and
LARSEN of this case. decision CAPPY, JJ., opinion. A join Part of this and
ZAPPALA FLAHERTY, J., opinion. B of this NIX, C.J., join Part and FLAHERTY, dissenting opinion J., concurring files a and (cid:127)° C.J., NIX, joins. which J., dissenting opinion ZAPPALA, concurring files a and CAPPY, J., joins. which Justice,
FLAHERTY, concurring dissenting. and holds A the court which opinion I from Part dissent 5985(a) 5984(a) unconstitutional §§ are that 42 Pa.C.S. Constitution, I, Pennsylvania 9 of the under Article section Chief opinion of Mr. dissenting in the the reasons set forth opinion, Nix, joined, my dissenting I which Justice Ludwig, justice, the chief joined by (1991). Furthermore, I 481-92, 285-90 constitutionality of a improper it to review believe is case, viz. 42 Pa.C.S. implicated which was statute 5985(a), testimony was as no live closed-circuit inasmuch equally logic apply seems to Although trial. at presented unnecessary improper it statutory provisions, to both about it statute, any and I believe statement the latter address is dictum. which with, majority opinion Part B of join,
I concur tape-recordings trial court’s reverses the no Loudens could have Wolfe. I think the by Ms. made loud conversa- unreasonably expectation reasonable *12 neighbors’ in their language, clearly audible tions and obscene from home, interception. such protected would be opinion. NIX, C.J., concurring dissenting joins Justice, ZAPPALA, concurring dissenting. of the Opinion
I with to the issue join Majority respect 5985(a) §§ but must constitutionality of 42 5984 and Pa.C.S.A. issue. disposition dissent to the 194
To its support determination that the trial in court erred suppressing tape recordings Wolfe, made by Ms. majority concludes that the Loudens lost “whatever expecta- privacy tion of they had that secret discussion and overheard,” 959, conversation would not be maj. op. p. when the volume of those conversations became audible party they wall which shared with the only Kulovichs. Not does the majority’s depend determination on the thickness and party acoustical soundness of a wall but more importantly infringes an in upon right privacy individual’s to one’s own home. in
Implicit
any discussion of an
that a communi-
expectation
recorded,
cation
right
will
is
discussion of the
Henlen,
In Commonwealth v.
514,
privacy.
522 Pa.
564 A.2d
Commonwealth v.
(1989),
905
we relied
our decision
cert,
(1988)
450,
To determine whether first, has Appellant must examine: whether privacy, we second, whether privacy: an expectation exhibited society prepared recognize is one expectation omitted.) (Citations as reasonable. A.2d at 87. Pa. at Henlen, tak- conversations the instant case involves
Unlike else, If an home. nowhere sanctity in the of one’s ing place private to hold a ability in his must feel secure individual right For the of his home. the four walls conversation within to an guarantee privacy must anything, it to mean privacy stated then Roberts home. As Justice individual his own Shaw, 543, 550, 383 A.2d 476 Pa. (1978): *13 world, a to the outside closing the door of one’s home
Upon highest degree priva- of person may legitimately expect (Citations omitted). society. cy known to our affairs on Shaw, in his own engaged was In defendant admit- family’s police floor his home. The of the second of recent knowledge his a family’s inquire to his home ted shooting had to the killing. eyewitness An robbery a friend was police perpetrators that one of informed the entered police When by of a man name “Shaw.” defendant, heard a detective called out to the the house and did floor. Because the defendant shuffling feet on the second call, officers ran police three respond not the detective’s We held that permission. warrant or upstairs without a intrusion was unreasonable governmental instance his expectation privacy given legitimate defendant’s intrusion violated the defendant’s home and therefore the own searches and seizures. While right against unreasonable us, appeal from the now before facts of Shaw differ a An individual has constitu- principle involved identical. protected right to be secure his home. tionally then, recognizes that an individual can Clearly case law our reasonably privacy that his will not violated expect right surveillance. any home the use electronic his instance, had no believe that In this reason to appellees taping their neighbor secretly electronically was no Unlike officer in Henlen who had rea- conversation. record- that his conversation would expectation sonable ed, expect their to be appellees had no reason to conversation Wolfe. by recorded record, I appellees
Based this would conclude the had would not be legitimate expectation their conversations Therefore, subject to electronic surveillance. to intro- properly permit refused to the Commonwealth any tapes ruling,
duce recorded Ms. Wolfe. Such howev- er, preclude testifying would not Ms. from about the Wolfe from emulating appellees’ conversations and sounds residence. CAPPY, J., joins dissenting concurring opinion.