Commonwealth v. Bourgeon

654 A.2d 555, 439 Pa. Super. 355, 1994 Pa. Super. LEXIS 3725
CourtSuperior Court of Pennsylvania
DecidedDecember 20, 1994
StatusPublished
Cited by10 cases

This text of 654 A.2d 555 (Commonwealth v. Bourgeon) 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. Bourgeon, 654 A.2d 555, 439 Pa. Super. 355, 1994 Pa. Super. LEXIS 3725 (Pa. Ct. App. 1994).

Opinions

CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Delaware County. We affirm.

Appellant Jose Bourgeon was charged with aggravated indecent assault, indecent assault, and corruption of minors as a result of an assault on two minor boys, Justin Z., age seven, and David S., age eleven. Both boys testified at trial. The trial resulted in a hung jury and a mistrial was declared. Bourgeon was retried and convicted of two counts of corruption of minors.

Bourgeon filed post-trial motions, which were denied. The sentencing judge sentenced Bourgeon to a total term of fifteen [358]*358to thirty-six months in the Delaware County Prison. Additionally, the court ordered Bourgeon to undergo counseling and to pay restitution for one of the victim’s counseling. This appeal followed.

Bourgeon raises the following issues for our review:

1. Did the trial judge err in finding through the weight and sufficiency of the evidence, that the Commonwealth’s ■witness was “unavailable” to testify at the second trial on May 26, 1993, and as such, admit his prior testimony into evidence from the October 28, 1992 trial, denying the appellant his constitutional right to view and cross-examine his accuser?
2. Did the trial judge abuse his discretion by qualifying Dr. George Leute as an expert based upon his testimony concerning the examination of the Commonwealth witness Justin Z. and other hearsay testimony?
3. Did the trial judge err in determining that the verdict was consistent with the weight and sufficiency of the evidence?

In his first issue, Bourgeon claims the court erred in finding that Justin Z. was unavailable to testify at the second trial. Justin testified and was cross-examined at the first trial. At the second trial, however, Justin would not testify. Justin was examined by a psychologist, Dr. George M. Leute. Dr. Leute testified that Justin was severely traumatized by the event and by having to testify at the preliminary hearing and the first trial. He stated that Justin was unable to relate the events of the case again. Dr. Leute also testified that if Justin was called again to testify, he would suffer additional trauma. Based on this testimony, the trial court ruled that Justin was unavailable to testify and admitted into the second trial the audio tape of Justin’s testimony from the first trial.

Bourgeon argues that, as a result of the court’s finding that Justin was unavailable to testify, the court denied him his constitutional right to cross-examine and confront the witnesses against him. The premise of Bourgeon’s argument, though valid, is not directly applicable in this case.

[359]*359' In Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987), this court was presented with the issue of whether use of a closed circuit television to transmit a child’s testimony violated the defendant’s state constitutional right to confront witnesses against him. The majority opinion held that it did not. Id. at 371-73, 531 A.2d at 464. The Pennsylvania Supreme Court granted Ludwig’s appeal, 518 Pa. 617, 541 A.2d 744 (1988), and reversed. Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991).

Our state constitution provides in pertinent part: “In all criminal prosecutions the accused hath a right ... to meet the witness face to face.... ” Pa. Const, art. I, § 9. This clause and similar provisions in other state constitutions as well as the sixth amendment to the United States Constitution are firmly rooted in the history of Anglo-Saxon jurisprudence____ Case law, history, and the plain language of our constitution establish that in Pennsylvania, the right of confrontation means that a person has the right to meet his accuser face to face in the courtroom.... Though the right to confrontation is important, it is not absolute. Face to face confrontation may be the constitutional ideal, but many adjustments and exceptions to the ideal are constitutionally permissible....

Commonwealth v. Ludwig, 366 Pa.Super. 361, 389-92, 531 A.2d 459, 473-475 (1987) (Cirillo, P.J., dissenting) (emphasis added).

In Ludwig, the Pennsylvania Supreme Court acknowledged that “the right to confront an accuser is not without exception.” 527 Pa. at 478-79, 594 A.2d at 284, (citing Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977) (permitting the prosecution to use preliminary hearing testimony of a witness at trial when that witness was unavailable)) and Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977) (permitting prosecution to use a videotape deposition of a witness unavailable for trial). We emphasize that Rodgers, supra, and Stasko, supra, the cases on which the Supreme Court relied, presented exceptions to the state constitutional right to face to face confrontation; both cases involved original [360]*360testimony “given in the presence of the defendant with the defendant having the opportunity to face and cross-examine his accuser.” Ludwig, 527 Pa. at 479, 594 A.2d at 284. In Ludwig, however, the exception did not apply; the Court determined that the “subjective fears of the witness,” without more, were “insufficient to restrict this important constitutional right.” Id. at 480, 594 A.2d at 285.

In the instant case, the trial court found that Justin was unavailable. The audio tape of Justin’s testimony, therefore, was admitted at the second trial. Here, as in Stasko and Rodgers, and unlike Ludwig, original testimony was given in the presence of Bourgeon and Bourgeon was given the opportunity to face and cross-examine his accuser.

Additionally, in this case, it was not simply Justin’s subjective fears on which the trial court based its finding of unavailability. Dr. Leute testified that there were both physical and psychological manifestations of Justin’s trauma at the prospect of testifying again, including vomiting, diarrhea, threatening to run away, and threatening suicide.

Next, Bourgeon argues that the trial court abused its discretion by qualifying Dr. Leute as an expert to determine if the witness, Justin, was unavailable to testify at the second trial. We find no error or abuse of discretion.

The qualification of expert testimony lies within the sound discretion of the trial court; we will not reverse absent an abuse of that discretion. Commonwealth v. Echevarria, 394 Pa.Super. 261, 575 A.2d 620 (1990). The standard of qualification is a liberal one:

If a witness “has any reasonable pretension to specialized knowledge on the subject under investigation he may testify and the weight to be given to his evidence is for the jury.”

Kuisis v. Baldwin-Lima Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974) (citations omitted). See also Commonwealth v. Bennett, 471 Pa.

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Commonwealth v. Bourgeon
654 A.2d 555 (Superior Court of Pennsylvania, 1994)

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Bluebook (online)
654 A.2d 555, 439 Pa. Super. 355, 1994 Pa. Super. LEXIS 3725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bourgeon-pasuperct-1994.