*1 A.2d Pеnnsylvania, Appellee, COMMONWEALTH LUDWIG, Appellant. Paul Pennsylvania. Superior Court of 9, 1987. Argued March Sept. Filed 1987. *2 K. Sayer, Defender,
William Assistant Public Strouds- burg, appellant. for Christine,
E. Jr., David Assistant District Attorney, E. Stroudsburg, Com., for appellee. CIRILLO,
Before Judge, BROSKY, President and WIEAND, OLSZEWSKI, SOLE, DEL MONTEMURO, TAMILIA, JOHNSON, POPOVICH and JJ.
WIEAND, Judge: significant
The issue in this appeal whether the consti- tutional of confrontation is violated when a child permitted abuse victim is to testify or against his her alleged abuser via closed circuit television. August 9, 1984,
On Paul Ludwig was arrested and with charged abusing sexually year his six daughter. old A preliminary hearing August 28, was held on 1984. Prior to the start of the hearing the victim was by interviewed assistant district attorney and was able to discuss the details in abuse a manner which was consistent with prior given. she had reports which When she was called give testimony however, preliminary hearing, the child froze and emotionally was unable to testify presence of her father. The preliminary hearing was con- tinued, and leave of present court was obtained to trial, At television. via circuit closed child’s via closed circuit tele- permitted was child also give testi- was able procedure, this child vision. By testimony was room, from where separate mony to the circuit television transmitted closed captured and Thus, able observe the defendant was courtroom. testified, cross-exami- she as fully witness moreover, jury, inviolate. preserved nation was questions she fully answered to observe witness able The only during to her direct cross-examination. put the trial court procedure adopted by difference between receiving testimo- customary and the means in this case child was that the victim from a witness a courtroom ny required was not in a room and separate was situated she testified. look at the defendant as rape,1 involuntary devi Ludwig guilty was found *3 minors,4 incest,3 intercourse,2 and corruption of ate sexual of a motions the welfare child.5 Post-trial endangering sentenced; denied; Ludwig appeal and this direct were was appeal on Ludwig’s contention primary followed. accuser, guaranteed by as the right to confront his
the Constitutions, was violated Pennsylvania States and United via his at trial closed permitted when accuser was argument.6 We this reject circuit television.
The Amendment of the Constitution Sixth prosecutions, all criminal provides United States “[i]n to be confronted with enjoy the accused shall the ... 1. 18 Pa.C.S. 3121. § §
2. 18 Pa.C.S. 3123.
3. 18 Pa.C.S. 4302. § 6301. §
4. 18 Pa.C.S.
5. 18 Pa.C.S. 4304. § remaining by appellant suggests raised An examination of the issues 6. to sustain the a lack of therein. The evidence sufficient merit discharged appellant on 1100 guilty findings; is not entitled to be Rule incompetent age grounds; not rendered because of the child was alone; evidentiary rulings jury court’s nor its and neither the trial Moreover, require granting of a new trial. the of- the instructions involuntary rape of sexual intercourse did not fenses merge deviate sentencing purposes. for 364 him____” against Similarly, Pennsylva-
the witnesses the 9, Constitution, 1, guarantees nia in Article a person § prosecution accused in a the “to criminal meet wit- “ ‘(1) nesses face face.” Confrontation insures that the give under impress- witness will his statements oath —thus ing him the guarding with seriousness of the matter and against (2) lie by possibility the the of a for penalty perjury; cross-examination,' forces the witness to submit the “greatest legal ever the engine discovery discovered for of truth”; (3) is to permits jury that decide defendant’s fate to observe the demeanor making of witness statement, aiding assessing thus jury his credibili- ” Illinois, Lee v. ty.’ 530, 476 540, 2056, U.S. 106 S.Ct. 2062, 514, v. (1986), 90 526 quoting L.Ed.2d California Green, 149, 158, 399 U.S. 90 S.Ct. 26 L.Ed.2d 489, (footnote (1970) omitted). 497 Alaska, Davis U.S. 94 S.Ct. (1974), L.Ed.2d Supreme Court explained pur- for pose confrontation follows:
“The main and purpose essential of is to confrontation secure for the opponent opportunity cross-examina- confrontation, tion. opponent demands not for the witness, idle purpose gazing or being him, gazed for upon by purpose but of cross-examina- tion, which cannot had except by person- direct and al questions putting obtaining immediate an- Evidence, 5 Wigmore, J. (3rd swers.” p. ... § 1940). ed.
Id.
315-316,
1110,
at
94
at
S.Ct.
the judge and the are jury enabled to the elusive obtain of incommunicable evidence a deportment witness’ while testifying, and certain moral is subjective effect witness____ produced upon the secondary This advan-
365 of from the however, arise confrontation does not tage, witness; consequence not is and the opponent It face to face. brought being of two those secures tribunal that presence witness’ before secondary advantage____ rev. (Chadbourn at Evidence, 1395 153-154 Wigmore,
5 J.
§
237, 242-
States, 156 U.S.
1974).
v. United
See: Mattox
(1895);
339-340,
409, 411
United
337,
L.Ed.
244,
39
15 S.Ct.
Cir.1985).
944,
(3d
F.2d
950
758
v. Caputo,
States
has
States
said
of the United
Supreme Court
for a face
preference
reflects a
Amendment
while the Sixth
trial;
is not
preference
absolute
to face confrontation
clause
contrary, the confrontation
On the
and inelastic.
example,
For
exceptions.
recognized
well
several
permits
States Constitution
clause of the United
the confrontation
evidence
criminal
hearsay
use of
preclude the
does not
render such
otherwise
under circumstances which
trials
reliable, i.e.,
sufficient “indicia
it bears
where
evidence
66,
56,
Roberts, 448
100 S.Ct.
U.S.
reliability.” Ohio v.
(1980) (involving former
2531, 2539,
597, 608
L.Ed.2d
65
witness).
v.
See: United States
of unavailable
(1986)
387,
1121,
Similarly, appellate guarantees an accused Constitution Pennsylvania “[t]he Common- witnesses.” and cross-examine right to confront Pa; McCloud, 322 A.2d wealth *5 366
(1974).
Coldsmith,
See also: Commonwealth v.
176 Pa.Su
649,
(“The
per.
(1954)
106 A.2d
650
‘to
right meet
witnesses face
face’
intended to secure
right
of
cross-examination.”). “Although
right,
a fundamental
this
of
right
confrontation is not absolute.” Commonwealth v.
McCloud,
312,
Thus,
of a statute which victims of abuse. child sexual presenting contained that confrontation clause The observed Court constitution, in the like that contained Kentucky in the constitution, a guaranteed to defendant Pennsylvania held that to meet “face to face.” Court right witnesses not did right guaranteed by Kentucky Constitution the guaranteed exceed of confrontation by the federal constitution. The Court said:
There is no constitutional eyeball eyeball The choice of the words “face to face” confrontation. may have resulted from an inability technologi- foresee cal developments con- permitting cross-examination and frontation physical presence. without Centuries,
In the Eighteenth and Nineteenth live testi- mony only way was the jury a could observe demeanor of a tapes witness. The use of video not does represent significant a from departure be- tradition goal cause the of providing a view of the witness’s demeanor jury to the is still achieved.
The intervention a video or one-way screen *7 mirror infringe upon does not right defendant’s There is a between confrontation. difference confron- tation and intimidation. It would be unconstitutional for the government to take evidence secret and outside defendant, of the presence of the but there is no right eyeball presence. to eyeball added). (emphasis
Id.
230-231.
upholding
Other cases
the use of
videotaped testimony
despite
of
child victim
constitutional or statutory provisions
guaranteeing
right “to meet witnesses face to face” include
v.
People
Johnson,
640,
330,
146 Ill.App.3d
100 Ill.Dec.
497 N.E.2d
(1986),
351,
308
v. Cooper,
State
291 S.Ct.
353 S.E.2d
(1987). Indeed,
451
those courts which have considered the
use of
procedures
alternative courtroom
to shield a child
from
witness
the traumatic
testifying
effects of
within the
physical presence
his or
of
her abuser have almost uniform
ly found no
of
guarantees.
violation
confrontational
See:
In re
in Pinal
Appeal
County Juvenile Action Nos. J-
302,
1123 &
147 Ariz.
J-1124,
The decided give way to considerations occasionally may required A of a case. limitation policy and the necessities public confrontation, however, only right on the placed can be interest; and compelling it is because of a necessary where as minimally possi- must be as intrusive any infringement ble. cases, in child use of closed circuit television abuse testify against reluctant an the child is unable or
where in- minimally is a intrusive family, adult member of the on the of confrontation. Considerations fringement alleged from the victim require public policy psychological injury without further of abuse be received of cross-examination long the child. So persons interested can in such cases preserved all testifies, she the use of alleged victim as he or observe the confronta- prohibited by circuit television is not closed constitution.7 clause of the federal or state tion *8 eyeball contact between Ludwig argues eyeball the trustworthi- necessary and accused is to insure witness any testimony and that testimony ness of the witness’s unrelia- inherently in of such contact is given the absence does not confer right The to confront disagrеe. ble.8 We case, legislature provided by has statute for the trial of this 7. Since by receiving testimony victims closed circuit tele- of child abuse 5985(a). good See: 42 Pa.C.S. § vision for cause shown. adjunct to confront one’s is to be deemed an 8. If this test accuser, upon by courts of law will be much of the evidence relied trials, per- courts would not be In criminal rendered inadmissible. depositions, testimony given testimony via recorded mitted to receive declarations, trial, conspirator prior dying of a made statements at a an accused the to intimidate. The reliability testimony depend upon an abused child’s does not his or her trauma ability psychological testifying to withstand who, unwavering gaze in a courtroom under the of a parent abuser, provider, a has also been although possible protec- tor, The of the child’s can parent. reliability and by requiring be assured such cases the child to submit to cross-examination while the and the accused observe jury of the witness as he or she responds demeanor In the case this was questions. judice, accomplished by sub closed circuit television. cause for the good procedure evidence established
utilized the trial court. This evidence showed that the by describe, detail, had the sexual acts victim been able had her father to social perpetrated upon by which been prior prelimi- and law enforcement officials to the workers hearing. hearing, At the when asked to nary preliminary father, the sexual acts in the of her she presence describe could not the events and initially stated she remember into silence further were asked. questions then fell when said that the child present appeared Others who were preliminary hearing After the had been re- frightened. cessed, explained ques- she that she had not answered the A tiоns asked of her she was afraid of her father. because psychiatric approximately evaluation of the child conducted had, fact, psycho- one week later revealed that she been attempt her brief and unsuccessful logically injured presence During in the of her father. this evalua- tion, signs apprehension the victim showed of increased result, and, referred for therapy. fear as a a Chupella, psychologist employed by Dr. Robert Mental Health/Mental Retardation De- Carbon-Monroe-Pike and had testified that he had examined victim partment, the victim preliminary hearing at the when present been public during conspiracy, records. This is not the and business law, by Ludwig would also nor should it be. The test advanced respect potential problems wit- present confrontational with to blind witnesses, nesses, physically who some disabled and witnesses refuse giving testimony. an accused while to look at *9 testify. opined was unable to He that the reason the child had said she could not remember and had refused to answer because, questions during preliminary hearing had been father, physical presence when in the of her she had frozen testified, In his he emotionally. opinion, victim would again traumatized if she were to in court required be presence in the of her father. physical Specifically doctor said:
I think this would exacerbate a of the fears number she to in a pretty significant that has been able resolve fashion; adults, individuals, relating fears of fears of which I in anxiety, depression, believe was evident this placement. child at the time of her regress believe that she could to that pre-morbid and that is one of personality personality withdrawal given muteness stress of having testify against parents face-to-face.
I also that there is a chance strong believe that academic in school progress suffering was because her, testing circumstances she was in. she Upon involved average certainly tested intellectual did have a ability good progress given chance of academic her intellectual So, standing. possibility regres- there is also a of some performance. sion school terms of academic I believe that there would be a likelihood that and, fact, proper progress would be stunted that she regress could with the of emotional arousal that she type undergoing reliving, would be those by reexperiencing episodes in a I think that relatively scary environment. can stress have her certainly enough regress (N.T. she first entered foster point when into care. 50, 52). 10/23/84 at circumstances, court
Under these the trial determined the use closed circuit television equipment of the child. The trial necessary protect welfare court acted and within its discretion. The court properly modern means to nothing adopt technological did more than *10 allow the to hear which jury otherwise would have been unavailable. The use thereof did not violate the against defendant’s to confront the witnesses him. It fact-finding process. served to enhance the judgment of sentence is affirmed. BROSKY, J., joins opinion. this MONTEMURO, J., majority opinion and files joins separate concurring opinion. J., TAMILIA, joins majority opinion and files a separate concurring opinion. SOLE, J., opinion,
DEL joins majority MONTEMURO, J., and files a concurring opinion by concurring statement. separate JOHNSON, J., opinion and the joins majority MONTEMURO, concurring opinion by joins J. He also I, II, III, dissenting opinion by Parts IV and V of the CIRILLO, Judge. President
CIRILLO, dissenting opinion President files a Judge, POPOVICH, J., joins. in which OLSZEWSKI, J., dissenting opinion joins by CIRILLO, and files a Judge, separate President dissenting opinion.
MONTEMURO, Judge, concurring:
opinion
sepa-
Wieand’s excellent
and write
join Judge
As has
been
rаtely only
emphasize
already
one matter.
out,
subject
the ideal of face to face confrontation is
pointed
depending upon the adverse interest
to be
adjustment
departure
as
as there is “no material
from
protected,
long
Massachusetts,
Snyder
rule.”
general
the reason of the
330, 333,
54 S.Ct.
Moreover, suggest by there is evidence to that doctrinaire contact, opposite to “eyeball eyeball” insistence on is, achieved, the notion that with effect is that actually witnesses, influences memo- “anxiety especially susceptible n. 21. with focused attention.” Id. ry by interfering witnesses, children, can operate stress particularly In such passage Child Protective Services 1. Not until the of the amended accepted dispelled child abuse was a wisdom Law was the agencies, problem by rather than a social service to be addressed Attorney General’s requiring law enforcement intervention. crime (1987). Against Children Family Report, Violence Violence Task Force generated by the extent the increased tension face decrease to face confrontation would rather than increase Melton, Procedural Reforms to Protect Child probity. G.B. Offense Proceedings, Sex Child Victim/Witnesses Abuse The Law Since a trial Sexual truth, technological advances which facil- process seeking preserving intact all of the process itate that while interests lightly disregarded. not are to be involved JOHNSON, JJ., DEL join. SOLE TAMILIA, concurring: Judge, join Opinion I Wieand’s and write Judge majority vote concerning views separately express my complexity matter. fact that there no of this am troubled here and procedure adopted for the statutory authority only upon application exceptions is viable proceeding that a has the to confrontation and party the rule both him. The against majority of a witness cross-examination overwhеlming for fact exceptions, yet finds such but victim, I are with a child would be com- dealing that we do not need the or join the dissent. We pelled that, experts to treatises of behavioral science establish witness, victim, is such a who is not to qualitatively, also average with or adult. Such a witness equated a normal disadvantage in the courtroom search is at a considerable *12 truth, justice scales of mythical for and to assure that balanced, given evenly consideration be special are must country a child is a victim. This proceedings wherein trial in California dismayed by shocked and recently alleged by day child molestation school involving victims case, the Regardless fact of the merits of personnel. is lasted seventeen months preliminary hearing legal all science by virtually considered and behavioral judicial perversion as an abomination and a experts (and proba- in the it has done to children harm process well). many of adults bly century, present, the late nineteenth to the From the era perceived most to be clearly time authorities in the enlightenment care and treatment of children. To illustrate where we have been and how far we have traveled children, in our treatment of the following excerpt from a law review article -by written this writer is illuminating.
Throughout history the child was considered chattel and Law, even Roman “The Law of the Twelve Tables” granted father the to sell his During child. Ages
Middle the lot of the child was harsh with numerous children being abandoned as at an early age. newborns or position father, The child’s in the family came after the cattle and mother—in A that order. note found in an early writing indicated that five to six thousand aban- children, Paris, doned mostly were brought yearly the house founded by Vincent DePaul. Because of the value placed on children and the lack of insight into their needs, child as a psychiatry, discipline, could not have existed the 20th century. before It was not until the end of the 18th century that laws were instituted for the prevention against of crimes children—in particular, the newborn, destruction of the easily practiced in the ab- sence compulsory registration France, of births. the edict of 1556instituted severe penalties for infanticide effect, but with little and infanticide in- progressively creased, reaching a peak the 18th century. Prussion existing law in 1230 included the statement: women,
Be a children, brothers, man laden with sick domestics, himself, sisters or or be he sick then let lie, them where they praise and we him if too he person. would burn himself or the feeble witchcraft, The child was a common victim of and the Children’s Crusades resulted in mass death marches of children in a caught up religious state of neither hysteria, protected by controlled nor their parents society. or bright spots Renaissance saw in Italy, Eng- France and enlightened land where families placed wives and mothers roles, children, in prominent educated their condemned love, corporal punishment controlled children with however, rather techniques, than fear. These were limit- *13 very ed to a small elite class with the of major portion utilizing dealing a most dismal barbarism in with
society homes) practice (foundling children. The of nourrices in the sentence to in resulted death children France. From 1776 to one hundred thousand children were in foundling hospital. received a Of these 15 thou- children An fee unpaid nursing sand survived. left a fortunes, child to his own and often to die from the neglect. outcry greater of Rousseau led to a interest practices fully in children and the cruel came to more noticed. 1890, 142 out of every
Between 1881 and one thousand children died within their first 12 months. In the English six from 1870-1877 the school board had removed years 8,508 homeless, from the streets of London lawless and In destitute children. three thousand children were in London half under 17 imprisoned jails, years. various rule, general was the and a certain factory Child labor a House of Lords employer reported before Committee he did not children under ten employ years 1817 that of he more than age enlightened was most. —and America, the lot of children difficult colonial was but degradation did not suffer abuse child European counterpart. puritanism required Colonial ab- respect, heavy solute and the child was made to assume at a He was considered a responsibilities very early age. years age expected small adult and at 14 or 16 assume an adult role. The American child benefited from pioneer family the closeness of the and his economic high. European reports early in the 1800’s value was children, emancipation criticized the which devel- early life, the closer and the Ameri- oped unity family from This is not approach revolutionary. can was considered in American child that there were no dark areas say treatment, century great upheaval but the 19th did see society. attitude toward children American omitted.) (Footnotes Tamilia, J., and the Between Neglect Proceedings Conflict Review, Work, 579-581 Duquesne Law
Law and Social *14 In this we century, have turned away labor, from child infanticide, children, abandonment or sale of crippling chil- dren to exploit them as beggers, incarcerating them and trying them as adults or granting immunity to abuse by parents. We provided have exceptions to being their equat- ed as adults in every manner, conceivable throwing a pro- tective law, blanket over them by practice and treatment. We have denied them protection constitution many ways, both in court proceedings and in their status as persons, in their best interest. It requires no expert testimony to establish that a child in room, an adult court subject to most creative and stressful means of getting truth, will react not as an adult but as a child. While this procedure is calculated to arrive at the truth with an adult, a child can only be expected to respond with emotion- al and physical reactions derived from terror. For a child not to “freeze” is unusual present and to a clear unequivo- cal statement of the occurrence is even more If unusual. the constitution may be interpreted broadly enough deny them the rights of adults for their protection and in their (denial trial, best interest of jury denial of emancipation, contract, etc.), it can also be (not extended to soften eliminate) the harshness of their testifying court and for the same reasons. acts, The juvenile from dating universally adopted throughout the country, are testimony to this recognition. To do otherwise provide is to a defend- ant charged with sexual or other child abuse with an overwhelming advantage inconsistent equal with justice. perceive can of no case person where a is more subject to terrifying pressure than a child testifying her against father in a sexual abuse criminal situation, case. In such a assuming the claim is valid and she has already hurt been physically and emotionally, she has been threatened himby silent, to remain she has punished been by removal from home, her she believes that she guilty of breaking up her family, frequently she is unsupported by mother or relatives, other or after their initial support, is withdrawn and she prospect faces the if she testifies and is not believed, she returns to the same environment to face Regardless of and, most further abuse. likely,
retribution case, our will not tolerate society we do in this what this process. of children to abandonment providing a can balanced justice The scales of evidence to be videotaping, permit procedure, such either from otherwise be crushed presented, which would intimidation. externally or created internally generated fear adopting in this are country and most others legislature Our recognition here in of a to that utilized procedures similar *15 such This does not have the benefit of grave problem. case resilient to sufficiently I believe the law is but legislation, it, constitutional the defendant his permit denying without rights. enjoy- the of and expounds on loss freedom
Judge Cirillo and imprisonment innocent man who suffers ment of the in all possibility We all tremble this the horrors thereof. however, thousands of He the countless ignores, cases. adult and who in terror of an abusive daily children who live the life, to mirror frequently the carry throughout scars and killers themselves. Our by becoming abusers abuse children, prostitutes child runaway with are filled streets find only escape drug youngsters who and addicted a streets and these to run situations such as from dissent, law, it is interpreted by as living death. in the Society requires balancing a protect not them. does videotap- as techniques, and modern such for truth search say so. One cannot opportunity an do ing, provide confrontation, of way in the prevents, constitution A to exist. could have conceived the framers never which state, permit wire- constitution, enough federal or broad surveillance, on the intruding and electronic tapping home, certainly of is most sanctity of privacy confrontation, such permit a means enough broad in story tell his/her a child to videotaping, which allows preventing exacerbating injury his/her without court stifles es- advantage an which having from the defendant in testimony large sential number of cases.1 SOLE, DEL Judge, concurring:
I join Opinion colleague, filed Donald by my Judge E. Wieand and concurring statement Frank J. Montem uro, Jr. I seрarately suggest write to the trial courts an alternative utilizing proceed method of televised ings. necessity utilizing When faced with the televised witness, of a child courts explore should possibility keeping the witness the courtroom before jury. The defendant can observe the via trial closed circuit If possible, television. the jury should be able to witness, through observe the not the eyes of a television See: Matter Appeal camera, Pinal person. but Action, County Juvenile 147 Ariz. P.2d Abuse, Arthur, Child Sexual (App.1985); Vol. No. pp. Juv. & Fam.Ct.J. 32-33.
CIRILLO, President Judge, dissenting: dissent. respectfully Though my colleague learned has masterfully I am expressed position, unable to concur in his judgment the procedure employed in this case was constitutionally sufficient. *16 suggestion question by Judge
1. I
the
Del Sole that the courtroom
appropriate
environment is more
the child
for
witness and the
victim
jury
person
should be able to
witness
observe the
in
rather than on
videotape.
authority,
The case cited
Appeal
for
Matter
in Pinal
of
Action,
302,
County
(App.1985),
Juvenile
147 Ariz.
On specific made claims girl Mrs. that the had told Kuchinski by her father. Mrs. Kuchinski then regarding sexual abuse who stated: interviewed the child me, my put penis dad had sex with too. He My keep mouth, he mouth real wide. tried to my open held *17 closed, my I on it didn’t want cream pried open. аnd he choking, my I felt like I was I breathed out mouth. nose. He He my belly. held me hands by down pulled my clothes my down around feet. He licked over, me all tongue and his had blood on it. He turned butt, me over and his put fingers in my hurting me. I hit him but he said he’d tell I mommy. was afraid my daddy bed____ put would me to Daddy licked me all over. Daddy put penis in my vagina. I was lying on the floor, and blood came out. Daddy locked all the doors windows and was screaming. Mommy wasn’t home she was at a restaurant. Daddy went in and quick took a shower. There was blood on the rug, daddy made me clean it up with soap and water. Daddy went into kitchen and washed tongue. off his Daddy fixed supper and we ate noodles and then I took a shower. I threw the underwear away.
The girl also told of sexual contact by her mother. She then described an incident where she was abused other persons at another location and she stated that her brothers had at one time tried to have sex with her.
The Coolbaugh Township Police Department filed charges against Paul and Rose Ludwig August on 1984. The charges against Rose were later dropped due to insufficient evidence.
The preliminary hearing was held on August 1984. One hour before it was scheduled to begin, Assistant Dis- trict Attorney Christine, E. David Jr. interviewed the com- plainant in the presence of persons, several other including her foster parents.
During interview, the course of the the girl told her story in a manner consistent with report of July 1984. At no time during the interview did she say she did not remember an important However, fact or incident. an hour later when she was questioned at the preliminary hearing, she did not respond questions. Commonwealth’s She said she could not remember and refused to answer any questions concerning her alleged father’s abuse. As a result of her inability testify against the defendant at the preliminary hearing, the Commonwealth was granted a continuance to petition thе court for leave to videotape *18 petition held a on the
girl’s hearing The court testimony. 23, testi- presented on 1984. The Commonwealth October that the Chupella indicating from Dr. Robert victim mony preliminary hearing, and that frozen at emotionally had to incidents of sexual abuse another if forced relate the trial, tell the truth hearing or at her to preliminary ability approxi- Dr. testified that impaired. Chupella be would completely of all child abuse victims mately twenty percent in He about the incidents court. questioned freeze when to talk that the child’s natural reluctance about stated in He also of molester. presence is increased abuse percent of all abused children fifty that approximately said a Chupella Dr. testified that freeze to some extent. will if to testify forced might adversely child affected He this the child. said of a who had molested parent front for a child. anyone particularly for and scary experience is a may child become withdrawn The doctor stated that the previously had though He said that victim maladjusted. had improved greatly these she symptoms, suffered from He worried placement her in foster care. was since relapse destroy her cause a forcing might had the child made. psychological progress 31, 1984, granted the court Common- On October 31, 1984, preliminary On petition. December wealth’s At the Pope. hearing was held before District Justice Clara and iden- testified via closed circuit television hearing, K.L. had abused her sexually person tified her father as the who mouth. Based vagina and in her by placing penis the defend- the District Justice bound testimony, this charges. on all ant over court 26, 1984, filed a Petition the Commonwealth December On At a under Pa.R.Crim.P. 1100. of Time Extension for 10, this petition, to consider January on hearing held February the case was extended try which the time counsel, set to start and trial was by stipulation of 4, 1985, February the defendant 1985. On February on motion, several difficult pre-trial raising an omnibus filed told counsel it would and law. court of fact issues The trial then need time to resolve motions. until March postponed though Commonwealth February that it was still to trial on 5. prepared go stated 20, 1985, the defendant filed a motion to February On dismiss the case under 1100 because the trial Pa.R.Crim.P. begun by stipulated expiration February had not date of 6, 1985, one 1985. This motion was denied. March On *19 date, the scheduled trial the defendant filed a day before 1100, which second motion to dismiss under Pa.R.Crim.P. March day. the court denied on the same Also on child, the court after an in-chambers examination of the competent determined that the child was At the testify. the child indicated that she understood competency hearing, what it means to tell the truth and that she sometimes tells lies” are little that didn’t “baby things happen. which She that lies are different from baby regular said lies because lies are more regular important. She also stated that she tell a lie in court but would correct might baby herself. She testified that her foster mother had told her that she was to court to her mom and going help dad. trial,
The trial on March 1985. At the child began same circuit procedure testified via the closed television preliminary hearing. which was used at the She was seated separate a room from the actual courtroom. the room operator, speaker through with her was the camera a which hear the girl questions the could transmitted from court- room, through a which her comments could microphone courtroom, mother, transmitted to the and her foster who seated next direct and examination. during cross Commonwealth, judge, jury, attorney attorney for the defendant, for the and the in the courtroom. defendant were They could eаch hear and see the child via color testifying Commonwealth, sets. The judge, attorney television for the to the attorney speak and for the defendant were able to trial, through child victim individual At microphones. Wag- Dr. Barbara C. presented
defendant ner, she was removed who had examined victim when that she had parental Wagner from the home. Dr. testified girl’s of sexual abuse found no evidence But, also Wagner Dr. damaged. had not been genitals molestation, any physi- cases of child many testified heal. quickly is minor and will damage cal trial but during order sequestration imposed The court mother, and Jean foster Morgan, girl’s Lynn exempted coun- also limited defense Y. The court of MCC & Brown two witnesses. Counsel of these cross-examination sel’s Y had plotted MCC & Morgan and to show that wished in order to remove charge the sexual abuse fabricate The court ruled that household. her parents’ child from trial, ques- during judge Also improper. were inquiries needed clarifi- which he felt some matters K.L. as to tioned occasions, scope he also restricted cation. On two though the Common- even cross-examination counsel’s ended on The trial any objection. raised had not wealth charges. of all Ludwig guilty jury found March which were timely post-verdict filed motions The defendant Ludwig appealed. sentencing, After denied.
I. requires Procedure 1100 Rule of Criminal Pennsylvania to trial within brought must be defendant a criminal him. The against filed charges date are of the days 180 an ac- bring to diligence” “due must use Commonwealth period. Commonwealth statutory cused to trial within 388, 412, 425-26, A.2d 395 464 Colon, Pa.Super. 317 v. Rule 1100 meet the cannot (1983). If the Commonwealth efforts, may petition faith good its despite deadline Pa.R.Crim.P. period. of the See extension court for an 1100. on petition filed such a case, the Commonwealth
In this Rule parties of the 26, By agreement Decembеr 1984. 11, Appellant 1985. February to was extended period 1100 did not his trial violated because Rule 1100 was argues that 7, disagree. 1985. until March begin com- are excluded from delay periods Defense-caused Polsky, 180-day period. Commonwealth putation 385 402, 406, 610, 493 Pa. (1981); 426 A.2d 613 sec also Com- Armstead, monwealth v. 88, 91, 359 Pa.Super. 518 A.2d (1986)(defense-caused delay and period of time up earliest practicable trial date automatically excluded from Rule period). Ludwig pre-trial filed his motions 4, 1985, on February one day before the trial was due to start. The Commonwealth was ready go to trial the next day. Court rescheduled the trial so that it could resolve the issues raised defendant’s motions. The earli- possible est trial date then available was March 1985. Therefore, the delay from February to March 7 was caused defendant and was properly excluded from the Rule 1100 period.
II. law, Under Pennsylvania case a child witness is compe- tent to testify if the court determines (1) that she has: communicate, capacity to including an ability understand questions and express answers; intelligent (2) the mental capacity observe and occurrence; remember the (3) an understanding of duty to speak the truth. Com- Hart, monwealth v. 501 Pa. 460 A.2d (1983). Decisions concerning competency of a witness are within the discretion of the trial court and will not be disturbed upon appeal, absent an abuse of discretion. Id. A review of the transcript of the preliminary hearing shows that the court did not abuse its discretion in determining that Karen competent under the three-part Hart test.
The child’s answers were intelligently phrased in full sentences. Her descriptions of the alleged incidents were complete. detailed and She also demonstrated that she understood the importance of telling the truth. She stated it was wrong to tell a lie and that she would be *21 punished if she did. She said she try would аnd tell truth. The child did say that she sometimes told baby lies but she stated that it would be wrong trial, to do during so so, and if she did Thus, she would correct the mistake.
trial court properly found her to competent to testify.
386
III. court, evaluating in appellate It is axiomatic that an whether, evidence, must determine view sufficiency in the to the light the entire record most favorable ing making winner and all as verdict reasonable Commonwealth favor, evidence find inferences its there was sufficient crime reasonable beyond element of the a doubt. every 455, 462, 714, A.2d 504 Pa. 475 Stoyko, Commonwealth v. 361, denied, 469 U.S. L.Ed.2d cert. S.Ct. (1984). was testimony the victim’s not Appellant argues testimony by and that it was contradicted credible claims that Dr. stated that Wagner. Ludwig Wagner Dr. However, rape. no evidence of physical there was abuse, also testified that cases of child there is doctor slight A physical pen- no evidence molestation. usually vagina have healed rubbing etration or could time of examination. trier of properly are left to the fact. credibility
Issues Smith, 502 Pa. 467 A.2d Commonwealth if reviewing A court reverse may contradictory any is so verdict based testimony not the situation in pure must be Id. That is conjecture. this case. consistent the first time she story
The child’s was from In view of her testimony told it at trial. through Her age, she did well under cross-examination. testi- very pre-trial chilling mony portrayed statements that a story six-year-old in detail would have perverse herself fantasizing. girl did contradict on difficulty However, of her story she stuck the essentials occasion. during confusing almost hours of cross-examination. three what again, Time and she told essence same her father. was not so story horrible about Her conjecture. contradictory jury’s pure as make the verdict IV.
Ludwig rights process that his to due were next claims (1) sequester court: refused to violated because the trial
387 witnesses; (2) two of the Commonwealth’s improperly ques- victim; (3) tiоned and improperly limited the cross-exam- of two ination Commonwealth I agree witnesses. with the majority each of these contentions is meritless.
Witnesses may sequestered prevent one witness shaping from his or her accordance with testi mony given other by witnesses. Commonwealth v. Al brecht, 764, 510 Pa. (1986), 511 A.2d 772 cert. — —, 1617, (1987). denied U.S. 107 94 S.Ct. L.Ed.2d 801 Appellant argues that the trial court should have seques mother, However, tered the victim’s foster Lynn Morgan. Morgan’s testimony did not concern any of the matters testified to by the child. The child testified about the alleged acts of abuse committed by her father. Morgan testified about how she became aware that the girl had been abused and about whether she had motive to any coach girl to lie. Their testimony did not overlap, so there was no danger of shaping no need for sequestra tion.
The trial judge always has the right interrogate wit- long nesses as as he does not do so in an unbiased manner. Hammer, 88, 100-01, Commonwealth v. 508 Pa. 494 A.2d 1054, (1985). case, 1060 In this the judge questioned the girl in order to clarify some ambiguous matters for benefit of the jury. He did not demonstrate bias for or any against Ludwig.
Appellant also claims that his Lynn cross-examination of Morgan and Jean Brown was limited interrupted trial court to such an extent that he was deprived of a fair However, trial. a trial court may limit cross-examination based upon concerns of efficiency and confusion. Com- Lee, monwealth Pa.Super. 292-93, v. 262 396 A.2d case, 761 In this judge limited cross-examina- tion appellant’s because counsel wished to pursue irrelevant inquiries Morgan’s fitness as a foster mother. This issue may affect the child placement, victim’s future but it wholly irrelevant as to question of her father’s guilt or innocence.
V. deviate involuntary crimes of asserts that the Appellant merge sentencing for rape should intercourse and sexual Adams, Pa.Super. Commonwealth purposes. whеn a victim (1982), court stated that A.2d sex, the criminal to commit oral then forced raped and *23 merge do not offenses which separate involves two incident 29, 442 Id., Pa.Superior 296 Ct. sentencing purposes. for in stated Commonwealth As the court A.2d at 280. 674, 678, 426 A.2d Pa.Super. 285 Wojciechowski, A.2d 674 denied, Pa.Super. 426 appeal allowance of (Pa.1981): woman, having raped, that a once been
It is unthinkable her in can then abuse her attacker position is in the where her anus penetrating such as sexually, fashion other any further sanc- incurring without penis, or mouth with his and distinct crimes. separate these tions for merely be- escape liability criminal “Defendant cannot kind possible to every the victim subject cause he chose abusive, in his sexual behavior aggressive, physically of arsenal.” depraved in penis his her placed that her father
The testified victim finding in vagina. jury justified The was mouth and crimes and the court separate two Ludwig committed offense. him for each sentencing separately in justified VI. trial court committed argues that the appellant
Lastly, out daughter testify by allowing error constitutional that the Ludwig claims Constitu- presence. physical of his court, face to open accuser to requires tion an his assertion accused. He bases face with the to the United States Constitution sixth amendment The I, Constitution. Pennsylvania section 9 of the article pro- of “confrontation” right that the argues prosecution long as the accused is satisfied provisions those tected his accuser. Because to cross-examine opportunity has the necessary it is differently, are worded these clauses state law. federal and separately issue under analyze this constitution “In all provides pertinent part: Our state the accused hath prosecutions criminal ... to meet face____” Const, I,. the witnesses face tо Pa. art. 9.§ This clause and similar provisions other state constitu- as the sixth amendment to tions as well the United States in the firmly history Anglo-Saxon Constitution are rooted jurisprudence. of confrontation genesis protected by
The to the against these has been traced reaction provisions See, Raleigh. the trial of Sir Walter infamous abuses at Graham, and the e.g., Right Hearsay of Confrontation One, Raleigh Loses Another 8 Crim.L. Rule: Sir Walter Heller, (1972); Bull. 99 The Sixth Amendment to the (1951); the United States 104-05 J. Ste- Constitution of A phen, History the Criminal Law England (1883); Holdsworth, W. A History English Law Raleigh,
On Novémber Sir Walter founder of *24 Roanoke, colony the lost went on trial in Elizabethan convicted, for He England high though treason. was against evidence him was a containing document Cobham, alleged confession of Lord an This co-conspirator. document was obtained members of the by prosecution Raleigh when neither nor his present. counsel were Sir Walter’s eloquent plea justice precursor for was a of the confrontation clause:
But it is strange you press to see how me still with my Cobham, him; Lord and will not yet produce it is not for this; of gaining prolonging time or life that I he my urge hither; is in the house hard soon by, may brought be him produced, let and if me yet he will accuse or avow his, this confession of it shall convict me and ease you proof. further
Sir Walter’s anguished conclusion was: proof
“The jury; Common Law is witness and here, let him speak my Cobham be let it. Call accuser face, before and I my have done.” Phillimore, the Law Evidence History Principles
Thus,
right
demonstrates that the
of confronta-
history
justice requires
born from a belief that
tion was
accuser meet face to face
the courtroom.
accused and
recog-
has
been
importance
right
traditionally
of this
Furthermore, Pennsylva-
case law.
Pennsylvania
nized
of confron-
consistently
right
nia courts have
held that
of cross-examination.
right
tation is broader than
Russo,
462,
388 Pa.
Many people possess
willing
say something
person’s
they
behind
back
his face
under oath
truthfully say
dare not or cannot
or
reason, as well
probably
in a
room. It was
for this
Court
right
the accused the
to cross-examine his
give
as to
to better determine
thereby
jury
accusers and
enable
and the
of the Commonwealth’s witnesses
credibility
case, that this
added
strength
important
and truth of its
a crime.
given
every person
accused of
protection
Id.,
“The
Constitution
to confront and cross-examine witnesses.”
added).
Id.,
(emphasis
That it includes the to face one’s It is unques- also another line of case law. supported by
391
charges
tried on criminal
may not be
person
that a
tioned
304,
Doctor, 228 Pa.Super.
v.
Commonwealth
absentia.
790,
(1974). In
v. Scol-
792
Commonwealth
307,
A.2d
323
110,
(1960), the court held that
physical presence important may abridged that it be under the most extreme circumstances. concurring opinion, a Brennan Justice wrote that be- right cause the defendant’s to physically present be is so important, trial courts should take careful precautions even find that they right when has been waived. The Justice wrote that when courts eject defendant from the court- room, they should consider taking steps which will allow him to remain in contact with attorney. Id. at at 1064. This might S.Ct. include a closed circuit television hook-up permits which the defendant and his attorney remain in electronic contact. protections These would allow for effective cross-examination because thе defendant proceedings would be able to watch the in stay contact wished, with his counsel. If he he could respond to a witness’s statement. These would steps enable defendants right who have waived their physically present be at trial their preserve right to effective cross-examination. Therefore, recognizes Allen rights separable. two If right protected only cross-examination, confrontation of that right waiver would constitute waiver of the right to effective cross-examination. if Similarly, cross-examination constitutionally protect was sufficient to right of con- frontation, a trial could properly be held the defendant’s long right absence as as the to effective cross-examination preserved. procedures The extraordinary described above would then be constitutionally permissible routine cases. The defendant’s physical presence would be unnec- Yet, it essary. very right is that physically present that the court held can be waived only upon showing a serious misconduct. The court stressed the importance of right emphasizing trial very courts must be they Therefore, careful before find it to have been waived. this line of cases also supports proposition right that the of confrontation right more than the of cross-exam- includes ination. law, history, plain
Case and the our constitu- language of tion in Pennsylvania, establish that right confronta- accuser, to meet his person has the tion means denied this Ludwig was in the courtroom. Paul face to face right. Though inquiry. does not end our
But this to face Face it is not absolute. important, confrontation *27 ideal, many but' the constitutional may be confrontation constitutionally to the ideal are exceptions and adjustments McCloud, 457 Pa. 310, 312, v. permissible. Commonwealth 653, 655 322 A.2d is particular exception a determine whether
In order to the state a court must look to constitutionally permissible, allowing risks the dangers the and of asserted and interest Bradfield, Commonwealth 352 question. in (1986). The court 508 A.2d 578 Pa.Super. being offered for testimony is purpose analyze must constitutional purpose of the underlying light McCloud, A.2d 655.1 Pa. at provision. unconditionally right of confrontation I do not believe that the 1. offering against be an accused that all witnesses evidence mandates testify presence meet him face to face. As required to in his or to above, ideal but to face confrontation is the constitutional noted face permissible. proffered adjustments exceptions are Based on the permissible exception. a analysis, is such the instant situation not inflexible, advocating way my position be construed as an no should unconditional mandate. explanation why to no such that after a careful I must also note exists, "right right my colleague of confron- concedes that learned by may compelling if the intrusion is limited a state interest tation” be However, majority's Ludwig’s Mr. con- limitation of minimal. solely "compelling rights on seems to based the state’s frontation testimony, to receiving unhindered and fails interest" in the child’s truth-determining danger process to the of allow- consider either the ing testimony, underlying purpose of the or the constitutional such confrontation, right guarantee to cross-exam- as distinct from the ine. ruling, vitiating majority’s concerned that the besides am also confrontation, separate right a but will intrude on defendant’s equally important right, right of a constitutional and that is the right to represent himself at trial. The constitutional defendant right person a of the historical of an accused counsel is but reflection champion to himself in court or in the alternative to select a to defend Anglo-American justice represent The accused in the his interests. however, self-representa- relinquished system, tion, has never right protected by States and the United and it remains California, Pennsylvania 422 U.S. Faretta v. Constitutions. See The state in the asserted interest situation before is us protect the need child victim from psychological harm. Commonwealth that interest argues its hav- ing testify psychological great free harm so that is the court was justified narrowly infringing defendant’s I disagree. confrontation.
The Commonwealth has not demonstrated
the girl
that
would suffer
severe
if
psychological problems
forced to
presence.
in her father's
Dr.
testify
Chupella testified that
girl
was
well
for
very
adjusted
a child who had been
abused. He stated
sexually
general
that based on his
situations,
experience with similar
belief
that
a child
forcing
parent
in front of
might
adversely affect
the minor. He
thought
here the
might
victim
become
withdrawn
maladjusted.
This
very
Chupella
tenuous evidence. Dr.
testified
the girl
might be harmed
this
type
exposure.
He was unable
*28
to
that
definitively state
she would be
or
harmed
even that
likely
it was
she would be
scarred.
psychologically
Funda-
rights
mental constitutional
are too important
for us to
abridged
allow them to be
such
weak evidence.2
Const,
I,
(1975);
("In
S.Ct.
397 force, matter shut with the same no how doors slam prison accuser. old the that aware that numerous other states have found
I am the in this is by such as that child case given Sheppard, In 197 constitutionally pеrmissible. State v. (Law Div.1984), A.2d similar testi- NJ.Super. 1330 court that the was admissible. The held New mony held preference reflects a for face to Jersey confrontation clause trial, protected at the main interest face confrontation but is the The provision right the cross-examination. may adequate satisfy that cross-examination court stated physical in the confrontation. the clause even absence videotaped testimony court that is modest The noted the guarantees justified by clause’s and is erosion in free from testifying the child’s interest importance of stress. Id. psychological
However, the de- protects New Constitution Jersey “confrontation,” while our state constitu- right fendant’s right meeting to a “face to face” court. protects tion protects the Pennsylvania explicitly Constitution Since follows that the physical presence, logically than it is given protection more strenuous afforded must in our state’s consti- general provision the more sister under tution. holding not with the court’s that quarrel Sheppard will protected important most interest
cross-examination assuming arguendo Even by the confrontation clause. cross-examination, is less than presence important physical freely or can be unimportant it does not follow it is The court stated that cross-examina- abridged. Sheppard this satisfy making tion alone will often clause. statement, Alabama, Douglas court relied on 85 S.Ct. L.Ed.2d 934 U.S. the witness had testified the defendant’s
But Douglas, presence pre-trial deposition. at a The issue before physical con- whether the defendant was entitled to the Court was held that Douglas front the witness at trial. Court deposition constitutionally physical confrontation was sufficient because defendant given the right to cross-examine witness at that time. The Court stated *31 that cross-examination Constitution, satisfies the but it re- ferred to cross-examination where the accused and accuser are face to face.
The Sheppard court balanced the defendant’s rights against those of the witness and determined that the sys- tem should protect the witness. This is a fundamental re-ordering of the priorities set forth American constitu- tional jurisprudence. law and It is the foundation of our criminal justice system that a defendant’s fundamental rights must be protected. end, strenuously To that he is presumed innocent and can be found on guilty only proof beyond a reasonable doubt. system Our prefers that a guilty person go free before an innocent man should be A convicted. child’s stress at testifying overcome; can be in all but case, most extraordinary that child will eventually put the experience behind her. may She suffer and she may be terrified while testifying, but any emotional scars caused the experience are to unlikely perma- be nent, especially when compared with the traumatic charac- ter of However, the events themselves. a defendant who is wrongfully convicted of a heinous crime will never over- come his conviction. His name will stigmatized for the rest of his days. He will have to suffer through years of imprisonment burdened with the knowledge that he is an innocent reasons, man. For these I believe that the New Jersey court made a constitutionally impermissible choice in Sheppard.
However, the Commonwealth has undercut its argu- own ment in this case. The prosecution claimed that the closed- circuit testimony was necessary protect the victim from the psychological harm which would if result she were forced to testify in her presence. father’s prosecu- But the tion has also asserted that she was unable to front father, of her and that she emotionally froze at prelimi- nary hearing because he was present. If she with other. are inconsistent each claims
These two could then she testify, unable froze emotionally testifying. harm from psychological suffer not possibly she would not suffer not be so testifying, She would story by repeating caused consequences adverse alleged Therefore, is actual- prosecution of her father. front exception that we create a constitutional ly requesting evidence. witness’s gain state to the benefit allow the child for urged special procedure create a being We are testify. are “unavailable” psychologically witnesses who accept prosecu- court should do not believe that this respond not assumptions. Its witness did tion’s factual hearing. De- preliminary at the initially questioned when to the there was contrary, claims spite the Commonwealth’s *32 her fail- that presented demonstrating evidence little very presence. with father’s ure to answer was connected not in front of testify could say She did not that she crimes, she questioned alleged about Ludwig. When state relies she not remember. The stated that could hearing on Octo- special on at Chupella’s testimony Dr. girl emotionally that the psychologist ber stated 23rd. his but he did not base preliminary hearing, froze at the of the child. His upon an examination findings children. general knowledge was based of abused child abuse twenty percent claimed of all Chupella Dr. in court and completely questioned freeze when victims have an ad- partially freeze. One need not fifty percent perceive degree immediately mathematics vanced partial- If prosecution’s logic. fifty percent in the weakness freeze, fifty twenty percent do not. If ly percent then freeze, impossible do It is eighty percent then not. totally girl’s from concerning conclusiоn behavior any reach very could have been easily statistics like these. She do not abused children fifty percent who among is loathe to the Commonwealth Naturally, freeze at all. its then to justify it would have point concede this because other manner. witness’s behavior some Dr. Chupella also stated that freezing is caused by trappings of a courtroom. According expert to his testimo- ny, alleged presence molester’s only increases the child’s natural Therefore, reluctance to talk. Dr. Chupella’s testimony suggests that if girl was unable to was because she upset being court. According to the psychologist, being face to face with her father may have increased her talk, natural reluctance to but he did not identify it as the main cause of the child’s reluctance.
Even if the Commonwealth had demonstrated that the girl emotionally froze because of presence, her father’s my position would be the same. Stasko, Commonwealth v. 471 Pa. 370 A.2d the court permitted the (1977), use of a videotaped deposition at trial because the deponent was medically unavailable. The witness in question produc- ed a doctor’s report stating that she had had numerous operations abdominal regional for ileitis and ulcerative coli- tis and that the emotional strain of appearing for trial would greatly aggravate her condition. The video deposi- tion which was admitted as evidence was taken in the presence of the trial judge, appellant, his attorney, and an assistant district attorney. The witness was cross-exam- ined by defense counsel. On appeal, the appellant argued that use of the deposition violated his right to physically confront the witness at trial. The court disagreed, holding the witness was unavailable for trial and prior testimony had sufficient “indicia of rеliability” to render it Id., admissible. 471 Pa. at 370 A.2d at 353.
Stasko differs from this case in several respects. Stasko, the witness claimed to be unavailable because the stress of the trial aggravate would a pre-existing medical condition. The Commonwealth argues here that its witness should be adjudged unavailable because of the stress of However, trial itself. the witness has no pre-existing medi- cal condition which testifying will inflame. As previously discussed, a trial is supposed provoke stress. Persons cannot be excused from judicial proceedings because they have a normal reaction to those proceedings. its witness really just claim is prosecution’s
The procedures under normal testifying excused from should be of her This is youth. a strain as a result it will be because rejected. above and argument discussed the same was also the trial court Stasko remedy by The devised The used in this case. wit- different than that altogether The safeguards. with strict was taken deposition ness’s cross-examined attorney and his present defendant was Therefore, of confrontation the defendant’s witness. preserved. was that where a situation also differs from present
The is admitted into and his statement forgets prior witness forget- is not same Being testify evidence. unable testify, may it person states he is unable ting. When Here, forget. not to lie. the witness did mean he is unable presence. her father’s able to out of She was courts truth-seeking process, facilitate the In order to the alternative is prior admit reliable statements when often testify. cannot See United States the witness Here, (E.D.Pa.1977). the witness F.Supp. Bailey, realized would testify, but the Commonwealth was able unless it was testimony of that unhappy be with the content Therefore, its wit- constitutional protection. delivered sans to tell merely unable ness was not unavailable. She Thus, she when story proseсution. desired sterile, designed carefully her tale under told eventually conditions, inherently it was dubious. above, testimony purpose proffered
As noted inherent in dangers and risks against must balanced Pa.Super. at 508 A.2d it. admitting Bradfield, is to Here, testimony of the witness’s purpose 578. father, Paul Lud- or innocence of guilt determine hinges on the child’s defendant’s entire future wig. case, is central to the this Because evidence. possible pro- maximum must receive the rights defendant’s tection. testi- allowing closed-circuit multiple dangers are
There It can often reality. distorts inevitably Television mony. *34 402
make the on screen seem than A person larger life. view- perceptions large part er’s are formed in the camera Also, are angles lighting employed. which the use of closed-circuit television affect may presumption of inno- jury give cence that must a defendant. It is reason- .a for a to assume that a defendant jury able must have done something truly terrible to the child if she cannot even sit in the same courtroom him. objective with Even most help swayed by specta- observer cannot but be this sort of child, cle. When the witness is a is sure to jury be even more as their prejudiced against sympathies defendant Therefore, will lie with the naturally light victim. importance testimony, danger- of the witness’s it is far too ous to allow its use at trial such a prejudicial manner. Court, Cal.App.3d Hochheiser v. Superior See (1984); Cal.Rptr. 273 v. Benfield, United States 593 F.2d (8th Cir.1979). summary, believe we should hold that under the Constitution, an accused has the to face Pennsylvania his accuser at trial. this calls for Ideally, parties both However, trial. like physically present other consti- rights, protection subject tutional this adjustment modification if warranted under the circumstances. To a particular determine whether modification is constitution- ally permissible, purpose а court must balance the of the its risks in proffered testimony light underlying with purpose protection. Allowing of the constitutional a child out attack- testify physical presence alleged impermissible very er is because it is at odds with the Further, nature of the confrontation clause. has State to demonstrate that child witnesses in general been unable need such The State has also failed to show protection. safeguards. that its here in needed these particular witness Finally, prove the Commonwealth failed to that she emo- froze tionally upon when called her father’s presence.
Though might this case have based been decided Constitution, our Federal Constitution also Pennsylvania *35 his accuser court. accused to face of an right protects “In part: all pertinent provides, amendment The sixth right ... enjoy the accused shall prosecutions, criminal him----” against the witnesses confronted with to be face” as the “face to explicit not as language This Constitution, but each Pennsylvania used language The concerns. same historical out of the grew clause that the sixth recognized traditionally has Court Supreme presence. See right physical protects amendment — 989, U.S.-,-, 107 S.Ct. Ritchie, v. Pennsylvania (1987) (confrontation protects clause 998, L.Ed.2d 40 94 face those who right physically defendant’s Therefore, find that the trial court’s him). I would against Constitu- the United States in this case also violated actions tion. right “literal has stated that the Court Supreme
The the core time of trial ... forms at the ‘confront’ the witness the Confrontation Clause.” by furthered of values Califor- 1934, 157, 1930, 26 149, Green, 90 S.Ct. 399 U.S. nia v. L.Ed.2d 489 2531, 56, Roberts, 100 S.Ct. 448 U.S. v.
In Ohio “the Confrontation (1980), ruled that the Court L.Ed.2d 597 confrontation for face-to-face preference reflects a Clause trial____” Court, The 63, per at 2537. at 100 S.Ct. Id. at ensures reliabil- Blackmun, confrontation wrote that Justice it undoubtedly makes ... “personal presence ity because if someone, particularly against difficult to lie more 6, 63 n. trial.” Id. at present at is an accused person at 2537 n. 6. 100 S.Ct. by protected interest primary has held that
The Court Douglas of cross-examination. right is the the clause 1076, 1074, 13 L.Ed.2d Alabama, 85 S.Ct. 380 U.S. which only right from the (1965). But this is far 308, 315, 94 Alaska, S.Ct. 415 U.S. In Davis v. protects. (1974), held 1110, the Court 39 L.Ed.2d to confront being than allowed means more “Confrontation the Davis court holding The physically.” the witness physical pres- indicates that confrontation means more than ence, not less. recognition vintage;
This
is not of recent
The Court has
in court
recognized
an accused’s
to face
accuser
States,
since the 1800’s. In
v. United
156 U.S.
Mattox
(1895),
overturned a
15 S.Ct.
In
v. United
U.S.
S.Ct.
Kirby
(1899),
may
L.Ed. 890
the
held that an accused
be
Court
through
the
of “witnesses who
only
convicted
him
he can look while
confront
at the trial
whom
[and]
tried____”
55,
being
Id. at
This in our constitutional ethos that at one time ob- ingrained claimed that an accused could not even waive the servers Allen, 337, 1057, 397 90 S.Ct. 25 right. See Illinois v. U.S. discussed, held previously L.Ed.2d 353 As Court only by exceptional waived but right may that be misconduct. Id.
Therefore, case law shows that applicable a review of the the sixth amend- continually emphasized has that the Court face accuser in right of an accused to protects ment the confrontation The Court has never held that court. right of cross-exami- designed protect only clause is right physical a only protect nation. Not does the clause right important may is so presence, but circumstances. abridged only extraordinary under
405
Fensterer,
292,
In
106
Delaware v.
U.S.
S.Ct.
294,
curiam),
(1985)
However,
Illinois,
in Lee v.
476 U.S.
106 S.Ct.
(1986),
In placed Ludwig’s the case before the limitations on rights do not advance the As truth-seeking process. previ- discussed, ously abrogated the trial court a basic constitu- tional It did this the was safeguard. because victim unable or under re- unwilling traditional constitutional action, taking strictions. In this the Court admitted testi- mony constitutionally suspect. which was Unreliable testi- but instead truth-seeking process does not further the
mony goals. its is an obstacle to Court, permits
In the second situation identified if the restrictions will rights on a defendant’s restrictions Alaska, truth-seeking process. Davis v. not affect the (1974), the Court 39 L.Ed.2d 415 U.S. 94 S.Ct. trial did not judge because the overturned a. conviction credibility by counsel to attack a witness’s permit defense it may him his record. Because juvenile about questioning truth-seeking process, the Court interfered with the have rights to be consti- this restriction on the defendant’s found tutional error. have Ludwig’s rights may similarly on
The restriction noted, truth-seeking process. previously As affected may prejudice closed-circuit television itself the use of well have might very the defendant. This case against jury fully had been Ludwig’s rights result if had a different story to tell her front of girl was unable protected. Ludwig’s insisted on protecting If the Court had Ludwig. accuser, would have had jury probably right to face However, him. upon evidence which to convict insufficient right, jury this heard protect the Court did not because Thus, the effect of the restriction evidence. girl’s and apparent. confrontation is dramatic right Ludwig’s conviction and ac- difference between possibly.the It was effect than that which is a much more direct quittal. This There, the restric- rejected the Court occurred in Davis. truth-seeking may have affected they tions because Here, all but unavoidable. such an effect was process. permitted have Therefore, the court should not trial restrictions. the Court has perspectives from either of the
Viewed bear, Ludwig’s confronta- infringement brought to The trial constitutionally impermissible. tion Pennsyl- States actions violated both United court’s vania Constitutions. child recognize lightly. take this stand
I do not I also alarming magnitude. problem of is a soсietal abuse *38 truly in this case are crimes at issue alleged that the realize How decency. human all bounds of outside' harrowing and strictly obligation our only emphasize to' ever, this serves de rights. Our Constitution defendant’s protect as well as times of crisis rights during our protect signed in the caught up being guard against must Courts calm. pro constitutional casting off the moment of passions must deal with expediency. Society in the name of tections funda violating their must do so without criminals but that we do to ensure only way This is the rights. mental the innocent.4 rights eventually trample not restricting a hard long and before ponder should Courts true in is particularly This rights. fundamental defendant’s on hinges trial the entire child abuse where involving cases it is so all remember: We must credibility. questions hard to absolve. very but so to accuse easy accused, community are those there a man is Once innocent at him even if he is found doubt always will who man wrongly an innocent the torment of imagine But trial. a must sit within small crime. He of a heinous convicted concurring opinion which asserts Judge that Tamilia’s 4. I must note sociolog- expense their victims is favoring at the criminals that I am constitutionally that flawed. He claims ically, jurisprudentially and panoply of their constitutional the full providing criminal defendants young, morally with rights streets to be overrun has caused our complex analysis highly social simplistic of a decrepit criminals. This fact-based, dubious, policy tyjDe of at best. It is the problem is legislative It not a branch. is analysis handled which is better criminal rights particular class of suspend of a judge’s role problem. presents a difficult social crime because a certain defendants mandates apply which interpret and the Constitution is to Our role established, guilty. guilt proven Until is until is innocent that a man guilt proven, protection. Once entitled to full constitutional he is unflinching. As a former justice be harsh аnd should the sword I am "soft” on particular offense at the assertion judge, I take trial judge who has sentenced on this court am the criminals. years prison. Com- 20-40 approximately abuser to convicted child (C.P.1976), per Montg.Co.L.R. 226 Wojtczak, 101 monwealth v. curiam, aff'd The distinction Pa.Super. A.2d 618 Here, the defendant obvious. case is situation and this between problems guilty untainted trial. Social proven at an yet been not has expedient responses. But we politically provoke emotional and often guilty lost to us rights from the are we take that the remember must all. *39 from separate cell stare at the steel bars which him the and night lie listen society. rest of He must awake and to cellblock, cries, anguished jangle the sounds of rounds, he all the keys as makes his while guard’s he He imprisoned. that has been has knowing unjustly things cut all of each of wrongly off from that us been for a granted pleasure outside those walls takes —the walk; a game; softball drive Sunday moonlit his family; seeing his child’s school dinner with country; an man but he has condemned play. He is innocent been Every second his heart might eternity. for what well be must die a thousand deaths. this of horrible guard type tragedy
It to against is rights. must protects a defendant’s We Constitution those glibly rights before we allow remember-this “adjusted.”
Therefore, should and remand for a this court reverse I dissent. Accordingly, new trial.
JOHNSON, J., I, II, III, joins IV and V. parts JJ., POPOVICH, join. and OLSZEWSKI OLSZEWSKI, dissenting: Judge, Dissenting Opinion I agreement am with generally and, in that Judge consequently, join of President Cirillo I I am not unmindful opinion. separately write note unique considerations very problems serious child the victim abuse and when a young which arise extent, I in the To that share must court. case, however, the Com- concerns of the this majority. utilized was procedure has that the monwealth not shown child and to ensure prevent harm the necessary not Thus, justified the Commonwealth has testimony. trial face of an to an accused’s exception creation both the United States Constitu- guaranteed by accuser as reason, For this tion Constitution. Pennsylvania dissent. respectfully