Commonwealth v. Atkinson

987 A.2d 743, 2009 Pa. Super. 239, 2009 Pa. Super. LEXIS 4494, 2009 WL 4725372
CourtSuperior Court of Pennsylvania
DecidedDecember 10, 2009
Docket1531 MDA 2008
StatusPublished
Cited by47 cases

This text of 987 A.2d 743 (Commonwealth v. Atkinson) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Atkinson, 987 A.2d 743, 2009 Pa. Super. 239, 2009 Pa. Super. LEXIS 4494, 2009 WL 4725372 (Pa. Ct. App. 2009).

Opinion

OPINION BY

FREEDBERG, J.:

¶ 1 This matter is before the Court on Jaquil Atkinson’s appeal from an order entered by the Court of Common Pleas of *745 Luzerne County on August 30, 2007, which denied Appellant’s pre-trial motion for suppression of evidence and to quash the information. We affirm the suppression court’s order.

¶ 2 A criminal complaint charging manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance; use or possession with intent to use drug paraphernalia; conspiracy to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance; possession of a controlled substance; and tampering with or fabricating physical evidence was filed against Appellant on January 31, 2005. After various delays and continuances for over a year, a hearing on Appellant’s pre-trial motion was held June 28, 2007. At the hearing, the Commonwealth presented testimony from an alleged co-conspirator, who was incarcerated in state prison, by use of a two-way videoconferencing system. During the hearing, Appellant objected because the witness was not present in the courtroom to testify. He renewed his objection when the witness was allowed to identify Appellant.

¶ 3 On August 30, 2007, the suppression court denied Appellant’s motion. On September 7, 2007, the suppression court certified for immediate appeal Appellant’s issue regarding the use of the videoconferencing system to present testimony, finding that it was a “controlling question of law as to which there is a substantial question for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter.” Suppression Court Order, 9/7/2007, citing 42 Pa.C.S.A. § 702(b). On November 21, 2007, this Court denied Appellant’s petition for permission to appeal. Appellant appealed to the Pennsylvania Supreme Court, which granted his petition for allowance of appeal on July 11, 2008. The Supreme Court remanded the matter to this Court, ordering us to address the following issue: “Whether the trial court erred in finding that testimony of a prosecution witness and his identification of [Appellant] at a suppression hearing via videoconferencing equipment was not prejudicial to [Appellant’s] right to confrontation and was thus constitutional?”

¶ 4 The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...” 1 Article 1, Section 9 of the Pennsylvania Constitution provides: “In all criminal prosecutions the accused hath a right ... to be confronted with the witnesses against him....” 2 With regard to the Confrontation Clause, the Pennsylvania Constitution provides a criminal defendant with the same protection as the Sixth Amendment; thus, we will address Appellant’s challenges under each Constitution simultaneously. See Commonwealth v. Geiger, 944 A.2d 85, 97 n. 6 (Pa.Super.2008), appeal denied 600 Pa. 738, 964 A.2d 1 (2009). When reviewing a question of law, our standard of review is de novo, and our scope of review is plena *746 ry. Commonwealth v. Crawley, 592 Pa. 222, 924 A.2d 612, 614 (2007).

¶ 5 The United States Supreme Court has described the purpose of the Confrontation Clause as follows:

The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word “confront,” after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox [v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 39 L.Ed. 409 (1895) ].
As this description indicates, the right guaranteed by the Confrontation Clause includes not only a “personal examination,” 156 U.S. at 242 [15 S.Ct. 337], but also “(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” [California v.] Green, [399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ] (footnote omitted).
The combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.

Maryland v. Craig, 497 U.S. 836, 845-846, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). See also Commonwealth v. Robins, 571 Pa. 248, 812 A.2d 514, 521 (2002).

¶ 6 The right to confrontation applies at a suppression hearing, as in the instant matter. In Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990) (plurality opinion), cert. denied, 499 U.S. 907, 111 S.Ct. 1108, 113 L.Ed.2d 217 (1991), it was stated that “the Pennsylvania Constitution mandates a criminal defendant’s right to confrontation and cross-examination at the preliminary hearing.” Id. at 175. See also Commonwealth v. Hanawalt, 419 Pa.Super. 411, 615 A.2d 432, 436 (1992) (discussing Verbonitz ). The Verbonitz plurality relied on Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
987 A.2d 743, 2009 Pa. Super. 239, 2009 Pa. Super. LEXIS 4494, 2009 WL 4725372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-atkinson-pasuperct-2009.