Commonwealth v. Ludwig

1991), the Order of Superior Court on entered Novem- ber 1990 No. Pittsburgh is hereby reversed part order of the Court of Common Pleas Allegheny County, Division, Civil is reinstated with respect to Count Complaint. Two Superior Order of the affirming the trial court’s dismissal of Count One of the is Complaint affirmed. The Cross-Petition for Allowance of Appeal de- hereby nied.

594 A.2d 281 Pennsylvania, Appellee, COMMONWEALTH of LUDWIG, Appellant. Paul Pennsylvania. Court of Argued 3,May 1989. Resubmitted Jan. 1991. May Decided 1991. Defender, appellant. Public for Sayer, William K. Defender, N. Packel, Leonard Dep. Public John W. Chief Ass’n. of Sosnou, for amicus curiae Defenders’ Philadelphia, Philadelphia. Christine, Atty., appellee.

E. Dist. David Asst. Cox, Marianne McLaughlin, Deputy Atty., Dist. Gaele Dist. Office Phila- Atty. for amicus curiae Philadelphia, delphia. FLAHERTY, LARSEN, NIX, C.J., and

Before ZAPPALA, CAPPY, McDERMOTT, and JJ. PAPADAKOS

OPINION ZAPPALA, Justice. in this case and the granted companion

We review Lohman, case, Commonwealth 594 A.2d Pa. 291, to determine the use of circuit tele whether closed testimony by alleged vision child victim violates confrontation clauses of the United States Pennsylvania We hold that the Constitutions.1 confrontation clause in Constitution does not such Pennsylvania permit of a fringement defendant’s constitutional to meet a The use witness face face. of closed circuit television to transmit the witness this case violates the constitutional protection given defendant under I, Article 9 of the Pennsylvania Constitution. Conse § reverse Order of quently, Superior Court uphold ing appellant’s conviction sentence.2 9, 1984,

On August appellant rape, was with charged intercourse, incest, involuntary deviate sexual as- indecent sault, minor, corrupting the morals of a and endangering the welfare of The alleged children. victim of these crimes appellant’s old year daughter. preliminary was five At the hearing, the victim testified that she did not remember what happened appellant. unresponsive with The victim was further the questioning, requested Commonwealth a continuance so that it could prepare petition the court seeking use videotaped testimony at the preliminary procedure employed repugnant 1. Because we hold that the here was Constitution, unnecessary to our State it is to address the Federal Constitutional issue raised. However, cognizant recently Supreme we the States United Court addressed this issue the same under Sixth Amendment the United States Constitution and held the confrontation clause the require Sixth Amendment not "face did to face" confrontation. — U.S.-, Maryland Craig, See 110 S.Ct. L.Ed.2d (1990). For the reasons set forth hereinafter decline to follow the United States Court on this issue. case, After Assembly adopted the trial in this the General a statute 2. authorizing testimony upon good the closed circuit television cause 5985(a). constitutionality provision shown. 42 Pa.C.S. The § of that not at issue here. Commonwealth, and filed the petition The was hearing. the Commonwealth hearing, held. At the hearing to the effect that of a psychologist presented freezing” prelimi- at the undergone “emotional victim had again. The could occur hearing and that condition nary had become with- also testified that victim psychologist making incident, psycho- now following the but was drawn concerned that the psychologist was progress. logical testify was forced to if the child might impaired progress her presence of father. in the physical in court petition granted The court Commonwealth’s of closed testify by way it allowed child extent that hearing, preliminary At second circuit television. on circuit television and testify did closed alleged victim appellant to hold the deemed sufficient evidence was the trial court Notwithstanding objection, appellant’s trial. procedures to be closed circuit television allowed the same during the trial itself. employed child testified began A on 1985. The jury trial March from another room. the trial via closed circuit television sit next to permitted The child’s foster mother was in the room where the child while the child testified. Also operator. camera child was located was the video counsel, defense judge, prosecutor, courtroom where the located, linked to the child jury were appellant Although people the child could see microphone. courtroom, them and to their respond she could hear questions. trial, all was convicted of

Following appellant Court, taken the and that charges. Appeal Superior court, banc, of sitting judgment en affirmed the sentence. a test balancing weighing In so that doing, employed Court against appellant’s right of the child the the welfare Finding protection the child’s wel- confrontation. the outweighed imposed upon appel- the restriction fare the right, Superior constitutional the Court affirmed lant’s court, trial procedure circuit television used the closed disagree ox Because with the lower courts’ resolution this and their use a balancing matter test under these facts, we must reverse. I,

Article 9 of our guarantees state constitution § right accused the to meet his accusers: In all prosecutions criminal accused a right hath to be counsel, heard himself and his to demand the nature him, against cause accusations to meet the added) (emphasis witnesses ... face face language This is unlike its counter-part, federal the Sixth Amendment, which provides that a in a defendant criminal case enjoy “shall ... to be confronted with the against witnesses him.”

In Maryland United States Craig, supra, Supreme Court was presented challenge Maryland with a to a statute which permitted closed circuit testimony judge if deter- mined child victim’s in the courtroom would result serious emotional and the distress child’s inability to The trial rejected communicate. court the de- objection fendant’s violative confrontation clause of the Sixth Amendment to the United States Constitution. The Maryland Court of Appeals re- versed, holding that did present State sufficient evidence to meet the set requirements Iowa, forth Coy v. 487 U.S. L.Ed.2d 857 United States Court reversed in a five to four decision.

Writing for Justice majority, O’Connor held that in Iowa, Coy did construe confronta- tion clause as guaranteeing defendant face to face meeting with witnesses. there Since had no finding been that the particular child special protection, witness needed no reason disallowing existed for face to face confrontation. However, the Court specifically reserved the issue of whether the confrontation clause guarantees an absolute right to meeting. a face face law,

Reviewing federal case held purpose confrontation clause towas insure that

477 oath, cross-exami- submit to under give testimony witnesses demeanor of witness’s permit observations nation and Thus, federal case credibility. of in the assessment assist confrontation, not for face a face to preference reflects law confronta- However, a face face guarantee. an absolute necessary to of denial is dispensed where only tion be may reliability and where the important public policy further an concluded is assured. otherwise well in the physical psychological a interest state’s important sufficiently being may child abuse victims face to face confrontation. outweigh Scalia, dissent, by Justices stinging joined In Justice a Stevens, Brennan, majority chastised the Marshall and text of the balancing analysis interest when the applying an does not it. The Defendant was not permit Constitution expansive interpretation scope an requesting rather strict adherence its Sixth Amendment but is clear ex- guarantee words. When Constitutional instance, balancing analysis in this an interest plicit, as does not wrong approach. The confrontation clause guarantees specific it guarantee reliable evidence but rather reliable evi- procedures thought trial that were to assure effect, explicit dence. In subordinated protection public policy.” to “current favored constitutional Unlike the Sixth Amendment to the United States Consti- 1, tution, Pennsylvania Article Section 9 of the Constitution provides for a “face to face” confrontation. We specifically long interpreting have held that our Constitution interpreta- Supreme States Court’s bound United Com- provisions. tion of similar federal constitutional See 374, (1991); Edmunds, 526 887 v. Pa. A.2d monwealth Melilli, 521 Pa. A.2d 1254 v. Commonwealth Sell, Pa. 470 A.2d 457 (1989); Commonwealth Sell, 470 A.2d In 504 Pa. at Commonwealth Brennan the admonitions of Justice we embraced Court: United States not, decisions of the be, Court are and should not [T]he dispositive of questions regarding rights guaranteed by counter-part provisions of State Law. such Accordingly, decisions are not mechanical applicable to state is- law sues, and state judges court and the of members the bar err if seriously they Rather, so treat them. state court judges, practitioners, also do well to scrutinize consti- tutional courts, decisions federal if only they found to be logically persuasive and well-reasoned, pay- ing regard due precedent and the policies underlying specific guarantees, constitutional may they properly persuasive claim weight guide posts when interpreting counter-part guarantees. state We then refused to adopt the United States Court’s abolition of “automatic standing” under the Fourth Amendment of the United States Constitution reaffirming Tate, our Commonwealth v. holding 158, 169, 495 Pa. 1382, 432 A.2d (1981) that the: 1387 may provide State through its constitution a basis for the rights and liberties of its citizens independent from that provided by constitution, the federal and that rights so guaranteed may expansive be more than their federal (Citations counter-parts omitted).

Most Edmunds, Commonwealth v. recently, this Court was again requested to blindly adopt federal jurisprudence support a “good faith” exception to the rule exclusionary as articulated by the United States Su Leon, United States v. preme Court 897, 468 U.S. 104 3405, 82 L.Ed.2d There, 677 after an extensive 1, review the history Article precedents Section our and policy considerations, we determined that adoption federal jurisprudence was unwarranted.

Unlike its counter-part, federal Article Section Pennsylvania Constitution does not “preference” reflect a but clearly, emphatically and unambiguously requires a “face to face” confrontation. This distinction alone would require that we decline to adopt the United States Supreme Court’s analysis reasoning in Maryland v. Craig. addition, our own case law which However, we have confrontation. a “face to face” mandates 462, 470-471, Russo, 388 Pa. In Commonwealth v. the “face to face” (1957) addressed A.2d Constitution, stating: I, of our of Article requirement § or being tongued loose the trait Many people possess they back that something person’s willing say behind face or under oath to his truthfully say not or cannot dare reason, as for this well probably in courtroom. It was to cross-examine his the accused the give as to determine jury to better thereby accusers and enable witnesses and the of the Commonwealth’s credibility case, this added important truth of its strength and accused of crime. given every person protection erode disregard (unintentionally) no to or right We have constitution, especially provision distort any or here, its where, simple language its make plain clear; indeed, of the times because meaning unmistakably than ever before higher duty in live we have a which we the constitution. protect safeguard zealously to importance about the Although quite emphatic we were Indeed, to con right the right, right this no is absolute. In Common exception. front an accuser is not without (1977), 435, 372 A.2d 771 472 Pa. Rodgers, wealth v. hearing testi preliminary to use permitted prosecution the that witness was unavail of a witness at trial when mony 373, 370 A.2d Stasko, In 471 Pa. able. Commonwealth v. videotape use a (1977), permitted was to prosecutor In in for trial. both of a witness unavailable deposition stances, presence in the original given was testimony having opportunity to defendant with the defendant However, in each and cross-examine his accuser. face in reaction to instance, testifying subjective witnesses not a consideration. of the accused were presence exceptions right Although recognized we have witness, those underlying reasons policy confront The witness in this case decisions are absent this case. to cross-examination subjected was neither unavailable nor during in the of the accused. prior testimony given presence fact, In judge jury trial instructed the victim totally unaware of the existence of the trial itself.

We want her to be as relaxed and casual and [the child] normal as and she doesn’t possible really you know that setting, really are here this she doesn’t understand that trial, this is all it has little actually probably signifi- cance to her.

Having diluted the of her significance extent, it is questionable whether victim would be proper under the aura. testifying recognized exceptions While we have the constitutional confrontation, right only we have done so those instances in the accused has had the already opportu- which him nity against to confront the witnesses face to face. We instances, satisfied that in those limited were constitu- right tional to confront the witness had been afforded to the interpreted permit accused. Those decisions cannot be restrictions on face to face confrontation right where confront the witness has never been afforded to the ac- cused. cognizant society’s protecting

We interest However, victims of sexual abuse. that interest cannot be preeminent over the accused’s constitutional to con front the him face to face. The record in against witnesses this case does not disclose conduct any appellant during proceedings give that would rise to the need to witness, isolate the witness. The fears of the subjective more, important without are insufficient restrict this constitutional the trial court relied right. exclusively Since fears, upon these its actions cannot affirmed. The appellant is entitled to face his accusers and the failure to that protect appellant was error. is therefore to a trial during entitled new which time the victim must in the courtroom and testify judge, jury appel before lant. affirming the Order Superior of the

The Order is reversed.3 County Pleas of the Court of Common Monroe McDERMOTT, J., concurring dissenting files a opinion.

NIX, C.J., in which dissenting opinion files a FLAHERTY, J., joins. NIX,

FLAHERTY, J., dissenting opinion files a which C.J., joins.

McDERMOTT, Justice, dissenting. concurring in these cases because counsel was majority I join from the appellants appellants from the and the separated except them no means of communication between jury with I not to hold that reasonable telephone. prepared am testimo- in cases to free the imposed restrictions cannot be intimidating presence possible of children from the ny Iowa, 487 U.S. alleged Coy their molester. 101 L.Ed.2d 857

NIX, Justice, dissenting. Chief in this expressed I am in accord with the views complete writing join in dissent and Flaherty matter Mr. Justice stated, the federal opinion. Although expressly not a face-to-face provision guarantees clearly constitutional confrontation; not ex- notwithstanding, graphically it does “face-to- phrase, the use of the press protection by Moreover, face,” Constitution. Pennsylvania as does the this upon stylistic to latch attempt by support provisions in the two basis difference dissenting opinion crimes has characterized those accused of 3. The very young before us as abuse "miscreant[s] [who] such as the one who limits his that a "craven sex offender children” and warns very young may thereby escape depredations the reach to the on those accused of such criminal law.” In an uncharacteristic attack crimes, apparently writer fails to remember that under heinous jury system justice, an accused is innocent until and unless our has crime, contrary. may spoken abhor the one While one crime, person accused of that unless the must accused condemn is, fact, adjudged guilty. 482

contention that our state constitutional provision provides of confrontation is not only superficial absolute but is indeed incorrect. demonstrably

The Amendment to the United Constitution Sixth States specifically prosecutions, mandates that all criminal “[i]n the accused shall enjoy right ... be confronted with him____” against the witnesses Const.Amend. U.S.C.A. VI. United States Court has noted that both a literal of this and reference to its interpretation language origins yield historical the conclusion that the Confrontation Clause face-to-face confrontation. requires Maryland v. — U.S.-,-, 3157, 3165, 110 111 Craig, S.Ct. L.Ed.2d 666, (1990). 677 There has never any been doubt right guaranteed is that a criminal defendant which enables face directly fact-finding body. his accusers front of a — U.S.-, id. also v. 110 Wright, See See Idaho S.Ct. 3139, (1990); Leeke, 111 L.Ed.2d 638 v. 488 U.S. 272 Perry (1989); Roberts, 56, 2531, Ohio v. 448 100 65 U.S. S.Ct. (1980); 149, Green, L.Ed.2d 597 v. 399 U.S. 90 California 1930, (1970); Allen, S.Ct. 26 L.Ed.2d 489 397 Illinois U.S. (1970); Alabama, 337 380 Douglas v. U.S. 85 S.Ct. (1965); States, 13 L.Ed.2d 934 156 Mattox United U.S. 39 L.Ed. The absence of words, “face-to-face,” the specific significant has not been a obstacle to this has interpretation. Supreme Court stated that the clause envisions

a personal examination and cross-examination of the wit- ness in which the accused has an opportunity, only of testing sifting recollection and the conscience of the witness, him to compelling but stand face-to-face with him, jury they may order that look at and judge by his demeanor upon the stand and the manner which he gives his whether he is worthy belief. 242-243, States, Mattox v. United S.Ct. at 339-340. explicit Thus even absence of the language right to face-to-face confrontation has vigorously been de- Nevertheless, fended. instances recognized have been interests, examined,” “if competing closely where have war- confrontation at trial. Ohio v. Rob- dispensing ranted with erts, at 100 at 2538. As the Court supra, U.S. S.Ct. kind, Mattox, of this supra, “general noted in rules of law in their to the operation however beneficent valuable accused, give must to considerations of occasionally way Mattox, 156 and the necessities of the case.” public policy 340. This led the Court to approach U.S. at 15 S.Ct. at a statute establish- uphold Maryland as constitutional which identical to that used es a closed-circuit Thus the Maryland Craig, supra. instant matter. See cognizable herein under the presented issue would federal constitution. strong constitution reflects no less a

Clearly, federal preference for face-to-face confrontation than does our The presence state constitution. words “face-to- face” in our state’s confrontation clause is a merely stylistic difference; to right protected the substantive is identical Indeed, analysis that found the Sixth Amendment.1 our em- of the state’s confrontation clause has mirrored that ployed interpreting the federal constitution. While recognizing right the accused’s to confrontation under that exceptions have out provision, nevertheless carved circumstances, certain is not recognizing right Kentucky, 1. Of interest is the discussion of the Court of guarantees right whose state constitution also the defendant to Willis, meet the witnesses “face-to-face.” In Commonwealth v. (Ky.1986), S.W.2d 224 the Court said: right eyeball eyeball There is no constitutional confrontation. may The choice of the words “face to face” have resulted from an inability technological developments permitting to foresee cross- physical presence. examination and confrontation without Centuries, Eighteenth In the and Nineteenth live only way jury could observe the demeanor of a witness. tapes represent significant departure The use of video does not goal providing from that tradition because the a view of the jury witness’s achieved. demeanor is still one-way The intervention a video screen or a mirror does not infringe upon right There is a defendant’s confrontation. between and intimidation. It would be difference confrontation government unconstitutional for the to take evidence in secret and defendant, presence outside of the but there is no eyeball eyeball presence. added.) (Emphasis Id. at 230-231. McCloud, 457 Pa. Commonwealth absolute. See assertion that face-to- majority’s 322 A.2d 653 circumstances, rather in all mandatory face confrontation is 478-479, is undercut its op. see at preferential, than just If the exceptions previously adopted. of those recognition “emphatic” were as for face-to-face confrontation concern hear- suggest, any seems to majority as the unyielding of the state constitution. run afoul exception would say Roberts, at 448 U.S. Ohio v. See concedes that this result is not 2537. Even at 479. Op. intended. policies underlying insistence majority’s in in- present are not the hearsay exceptions

adoption The furthered the policy by is ludicrous. plainly stant case the exceptions saving prosecu- is that of hearsay various reason, is, for a live witness whatever tion’s case when McCormick on Evi- to testify. generally unavailable See dence, 246, (3d. Ed.) certainly This cannot be policy §§ protecting than that of greater importance accorded years a minor of tender who well-being of psychological Clearly the Commonwealth claims to have been abused. children, of its development in the healthy has an interest for the relative- ample justification interest that provides an to confrontation. right minor curtailment of defendant’s ly Moreover, suggestion by any implicit carry in this case did not “indicia reliabili- testimony 2538-39, 65, 100 at Roberts, at ty,” see Ohio v. requirement to the confrontation justify exception testimony, of the fact that the with rejected light must be equipment, of the use of the closed-circuit exception the sole if the had the same manner as witness given exactly to fully courtroom. The defendant was able been witness; argued it therefore can be cross-examine greater “guarantees of the child bore even testimony trustworthiness,” than see id. at 100 S.Ct. of, co-conspirator for or a example, the statement would through has not tested decedent whose statement been process. adversarial to confron- approach flexible traditionally

In view of our holding of the I would embrace problems, tation clause Craig, supra, Court in Supreme Maryland United States right of the prior interpretation with our being consistent constitu- federal and state under both the to confrontation permits procedure Craig sanctioned tions. finding by upon a child testimony of witness closed-circuit in “the child will result testimony by that live judge distress, that the child such suffering child severe emotional — U.S. at communicate.” Id. reasonably Craig, cannot n. 1. 1,n. 111 L.Ed.2d at 675 -, n. 110 S.Ct. at statute, given testimony the child’s Maryland Under the any person sides and who attorneys in front of the both child, well-being with contributes courtroom, into the closed-circuit television transmitted via Id. present. and the are to be judge where the defendant preserved. confrontation All other elements of the This at-, 3166-67, 111 L.Ed.2d at 682. 110 S.Ct. at Id. case; in the instant employed is identical to that procedure our state indeed, has codified the same been 5985(a).2 legislature. Pa.C.S. § one-way use of the found that the im- to further an procedure, necessary closed-circuit where Testimony television 2. 5985. closed-circuit § (a) or television. —The child victim material wit- Closed-circuit or, ness, applicable, through parent guardian, where the his or move, may attorney for the Commonwealth child’s advocate or the shown, testimony good of child be taken in a for cause a by closed-circuit than the courtroom and televised room other viewed; by equipment the court and the finder of fact in the to be proceeding. Only attorneys the defendant and for the Commonwealth, necessary reporter, judge, persons the court any presence operate equipment person whose would con- and child, well-being including persons tribute to the welfare and services), rights may designated (relating under section 5983 and during testimony. present with child his be in the room permit shall the defendant to observe and hear the court person that the child cannot hear or of the child in but shall ensure defendant The court shall make certain that the see defendant. adequate opportunity to communicate for and defense counsel have purposes providing an effective defense. Examination and of proceed of the child shall in the same manner cross-examination permitted at trial. 486 interest, purposes impinge upon did not

portant state supra, at Maryland Craig, v. Clause. the Confrontation 3166-67, In ascertain- 111 L.Ed.2d at 682. -, 110 S.Ct. at furthered, state interest was ing important whether interest compelling noted that the state’s Court well-being of child abuse victims psychological physical cases, in some a defendant’s outweigh, sufficient may be Id.3 Accordingly, confrontation. to face-to-face following: stated the that, adequate showing if the makes an hold State [W]e in protecting the state interest child witness- necessity, case is trauma of a child abuse testifying es from the of a special the use sufficiently important justify cases to a child witness such procedure permits in the of face- against trial a defendant absence testify at the defendant. to-face confrontation with course finding necessity must of requisite one: the trial court must hear evidence case-specific closed circuit tele- one-way determine whether use of protect the welfare of the necessary vision See Globe seeks to testify. child witness who particular Superior Court], Co. Newspaper [596], 457 U.S. at [v. 2620-2622, 73 L.Ed.2d 248 608-609 [102 child victims protecting interest (1982)] (compelling justify mandatory Coy, rule); 487 trial closure does not id., at 1025 U.S., S.Ct. at 2803]; at 1021 S.Ct. at [108 [108 Supe- see also Hochheiser v. (concurring opinion); 2805] Court, rior 777, 793, Cal.Rptr. 208 Cal.App.3d the child (1984). The trial court must also find that traumatized, the courtroom witness would be See, of the defendant. generally, presence but Wilhite, 160 Ariz. v. e.g., State (1989); 772 P.2d 582 Bonello, State v. (1989); State 554 A.2d 277 Conn. Davidson, Common- 731 (Mo.App.1989); 764 S.W.2d Ludwig, wealth v. 361, 531 A.2d 459 Pa.Super. among Significantly, Pennsylvania whose statutes 3. those states widespread importance belief in the were cited as evidence of the — U.S.-, Maryland Craig, protecting child abuse victims. See 2, 666, -, 2, (1990). 111 L.Ed.2d n. 2 n. 110 S.Ct. 31572167-68 n. Denial of face-to-face confrontation is not needed to fur- ther the in protecting state interest the child witness from presence trauma unless it is the of the defendant that words, causes the trauma. In other if the state interest were the interest in merely protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be because unnecessary the child could permitted be in less testify intimidating sur- roundings, albeit with the defendant present. Finally, trial court must find that the emotional distress suffered by the child in presence witness of the defendant is minimis, i.e., more than de more than “mere nervous- ness or excitement or some reluctance to testify,” Wilder- State], 524, muth 310 Md. [496], at 530 A.2d [275], at [v. 289 (1987)]; see also Mannion, State v. 19 Utah 511-512, (1899). 57 P. 543-544 — at-, Id. U.S. 110 S.Ct. at 111 L.Ed.2d at 685. In the instant case the evidence is more than sufficient to justify finding of necessity. When interviewed an hour before the preliminary hearing the five-year old victim was able to describe detail the sexual acts which had been committed upon father, her her yet the preliminary hearing she was unable to or respond remember to any questions relating to the incident. The victim was subse- quently examined Dr. Chupella, who testified that she had suffered “emotional freezing” the presence of her father, and that might she if permanently traumatized she were required again to testify the physical presence of her father. Commonwealth v. Ludwig, Pa.Super. 361, 371, 531, A.2d This evidence meets the standards set forth in Craig, such that a finding of necessi- ty could be made which would use of justify the closed- procedure. circuit

Accordingly, I would affirm the order of the Superior Court.

FLAHERTY, J., joins this dissenting opinion.

488

FLAHERTY, Justice, dissenting. the Penn-

I cannot the conclusion that accept majority’s prohibits the which was Constitution sylvania in of this utilized the trial case. in Supreme The of the United States Court reasoning — v. -, 110 111

Maryland Craig, U.S. (1990), though interpreting federal Consti- L.Ed.2d in issue Penn- tution, analyzing is under the instructive well, suggests as and that the latter sylvania Constitution permit also the use of closed-circuit television. In would in addition, of Penn- majority’s analysis there are flaws admission out-of-court precedents permitting the sylvania rule. Such exceptions hearsay under statements to an in- exceptions right demonstrate that a defendant’s not his is court, face-to-face confrontation with accusers use of the despite Pennsylvania Constitution’s absolute closed- using “face need for words to face.” societal evident, is has been during circuit television some trials and public of this recognized by legislature policy is I fear that decision of the a majority Commonwealth. very young miscreant to abuse any virtual license who, children unable to accuse the predictably, will be A craven sex offender limits his criminal his face. who escape very young may thereby depredations is, I repugnant law. result reach criminal Such believe, under our Constitution. unnecessary terms, I clauses in analytical

In believe the confrontation identical, are and the federal and state Constitutions procedures. The permit use of closed-circuit television both Craig, v. in opinion Maryland States Court Supreme United equally the rationale is this case and helpful Pennsylvania Constitu- pertinent analysis under Iowa, Coy tion. The federal Court stated (1988), U.S. 108 S.Ct. 101 L.Ed.2d Constitution, Constitution, guar- like Pennsylvania’s federal confrontation, though federal Con- antees a face-to-face does not include the “face to face.” With- stitution words Maryland abandoning interpretation, out right held that the to face-to-face Craig confrontation is absolute, give way but will some circumstances In imperative respect, more ends. this the state federal indistinguishable. Constitutions Superior criticizes the using Court for test, balancing stating that the Pennsylvania Constitution “clearly, emphatically unambiguously requires a ‘face confrontation,” concedes, to face’ but inconsistently as it must, that “no right is absolute” and that “the confront a accuser is not exception.” without The obvious exceptions are the admission of hearsay under testimony variety exceptions against however, to the rule hearsay; concludes incorrectly that all such exceptions under Pennsylvania prior law involve testimony under oath in a judicial proceeding in the presence of the defendant where the defendant had been to able face and cross- examine fact, his accuser. In this recognized Court has declarations, admissibility dying utterances, excited and statements of co-conspirators exceptions to the rule against hearsay even when there prior has been no opportu- nity for cross-examination and the prior where statements not See, were made under oath. e.g., Commonwealth v. 418, Pinkins, 425-28, 514 Pa. 1189, 525 A.2d (1987) 1192-93 (statements admissible, of co-conspirators under what is apparently most frequently exception used to the hear- rule); say Commonwealthy 40-42, v. 465 Pa. Cooley, (1975) 348 A.2d 106-07 (hearsay statements admissible under the gestae res exception spontaneous for or excited utterance); 32, 34-35, Commonwealth v. Speller, Pa. (1971) 282 A.2d (hearsay statement admissible as a declaration). dying None of the foregoing in- examples volves statements made in court or under oath or under circumstances allowing an opportunity for cross-examina- tion.

But if even the majority were correct in concluding that the Pennsylvania Constitution only permits exceptions to the literal “face-to-face” requirement when the right of cross-examination untrammeled, such a conclusion would during employed appellant’s act vitiate complete- to cross-examine the victim was ability

trial. His Thus can said that the essence of unimpaired. it be ly protected. confrontation was trial, appellant’s like procedure employed case, all of con- preserved essential elements Maryland protect. seeks to frontation which Constitution competent testify the witness procedure required oath, oppor- under the defendant retained full testify and to cross-examination, contemporaneous tunity able to view the demeanor and defendant were judge, jury, This as she testified. assured body of the witness subject rigorous “both reliable and equivalent testing functionally a manner adversarial live, testimony.” in-person Maryland that accorded — 3166, 111 at-, 110 S.Ct. at L.Ed.2d U.S. Craig, 577, 593, 568 Smith, 523 Pa. 682. See Commonwealth rule (1989) (“The exceptions hearsay A.2d surrounding making circumstances premised upon reliability which assure the utterances would considerations, to contents.”) distinguish In of these view is sophistic. the federal and state Constitutions between permits statute now television Finally, the which clearly trial1 evinces procedure employed appellant’s 5985(a) subsequent Although was enacted to the trial § 1. 42 Pa.C.S. case, during permit procedure appears which was utilized this the trial. it to provides: statute Testimony by closed-circuit television § 5985. (a) child victim or material wit- television.—The Closed-circuit ness, or, parent guardian, through applicable, the his or where move, attorney may or the for the Commonwealth child’s advocate shown, good testimony of a child be taken in for room cause by than the courtroom and televised closed-circuit other by equipment proceeding. Only the court the finder of fact in to be viewed and attorneys defendant for the and Commonwealth, necessary reporter, judge, persons to the court any person presence operate equipment con- and whose would child, well-being including persons tribute designated welfare of the and services), rights may (relating under section 5983 to present during testimony. The be with the child his room permit to hear court the defendant observe and shall or person ensure that the child cannot hear child in but shall that judgment legislature public policy considerations mandate this minor limitation on the a literal right to have guaranteed “face-to-face” confrontation as the Constitu- by tion. refer elaborating, Without to the facts recounted Iowa, Coy supra. the federal well-documented, widespread perverted now incidence of upon adults defenseless preying children has caused a need provide protection realistic for the in our society. children Between 1976 and 1985 there was a threefold increase in abuse, nationwide, reported child so that almost two million cases reported. prosecution were “The of these child poses sex-abuse cases substantial difficulties because of the emotional trauma frequently suffered child wit- nesses must testify who about the sexual assaults they Id., suffered.” 487 U.S. at 108 S.Ct. at (Blackmun, J., L.Ed.2d at 873-74 dissenting). This situation has led to a public general statement of our policy by assembly children who are material to or witnesses victims of crimes need “additional consideration and differ- ent treatment from rights adults” and “additional protections during their involvement the criminal with I justice system.” Pa.C.S. 5981. wholeheartedly § agree with the that it is legislature important a matter of state, parens patriae, public policy for the protect who, such children youth, due to their under a labor disabili- ty upon when called I testify regarding sexual abuse. regard this policy sufficiently imperative justify trial, used during appellant’s despite the Consti- guarantee tution’s of face-to-face confrontation with his earlier, I accusers. As observed the opposite interpretation leads to de facto license of sexual of the very abuse children, youngest who are most in need of obviously pro- tection. see the defendant. The court shall make certain that the defendant adequate opportunity and defense counsel have to communicate for purposes providing an effective defense. Examination and proceed cross-examination of the child shall in the same manner as permitted at trial. dissent, affirm the order reasons, I and would

For these appellant’s judgment upholding Court Superior sentence. dissenting opinion.

NIX, C.J., in this joins 594 A.2d Pennsylvania, Appellee, COMMONWEALTH (Two Cases). LOHMAN, Appellant Richard John Pennsylvania. Argued May 1989. Jan. 1991. Resubmitted May Decided 1991.

Case Details

Case Name: Commonwealth v. Ludwig

Court Name: Supreme Court of Pennsylvania

Date Published: May 10, 1991

Citation: 594 A.2d 281

Docket Number: 34 E.D. Appeal Docket 1988

Court Abbreviation: Pa.