Commonwealth v. Lohman

594 A.2d 291, 527 Pa. 492, 1991 Pa. LEXIS 114

• Court: Supreme Court of Pennsylvania
• Decided: May 10, 1991
• Status: Published

Opinions

OPINION OF THE COURT

ZAPPALA, Justice.

This appeal, like its companion case, Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 also decided today, raises the issue of whether a child sex abuse victim, without appearing in the courtroom, may testify against a defendant via closed-circuit television without violating the confrontation clauses of the United States Constitution and the Pennsylvania Constitution. Since the procedure used in this case, like that used in Commonwealth v. Ludwig, supra, is violative of the appellant’s right of confrontation guaranteed by Article 1 § 9 of our State Constitution, we reverse.

The appellant, John Richard Lohman, was charged in two separate complaints with raping his fourteen-year-old stepdaughter and with committing involuntary deviate sexual intercourse and incest with his fourteen-year-old son. In separate jury trials, he was convicted of these offenses.

In the trial of the first case, because the girl “was reluctant to testify against her stepfather,” Commonwealth v. Lohman, 370 Pa.Super. 404, 409, 536 A.2d 809, 811 (1988), she was permitted to give her testimony without facing the defendant in the courtroom during the trial. Instead, she testified in the judge’s chambers in the presence of the judge, the prosecuting attorney, and the defense attorney. A camera operator was also present to run video and audio equipment which transmitted the proceedings to the jury in the courtroom. “The appellant, unbeknownst to the jury, was sequestered in another room and was able to communicate with counsel via direct telephone line,” Id., while he saw and heard the proceedings through the closed-circuit television setup.

The trial of the second case was conducted in identical fashion. The appellant’s fourteen-year-old son and his thirteen-year-old brother, a material witness, testified in the judge’s .chambers in the presence of the judge, the prosecutor, and defense counsel, while the jury observed the proceedings on a video monitor, as did the appellant in a separate room. A videotape recording of the testimony in both trials was made part of the record, and has been reviewed by this Court. »

In Commonwealth v. Ludwig, supra, we held that the confrontation clause of the Pennsylvania Constitution does not permit the use of closed-circuit television testimony by an alleged child abuse victim because it infringed upon a defendant’s constitutional rights to meet a witness face-to-face. Although the result may be harsh, we cannot permit such a result to cause us to ignore the plain meaning of Article I, Section 9 of our State Constitution. As we stated in Ludwig:

We are cognizant of society’s interest in protecting victims of sexual abuse. However, that interest cannot be preeminent over the accused’s constitutional right to confront the witnesses against him face to face. The record in this case does not disclose any conduct by the appellant during the proceedings that would give rise to the need to isolate the witness.

Accordingly, we reverse the orders affirming the appellant’s judgments of sentence and remand for new trials.

FLAHERTY, J., files a concurring opinion. McDERMOTT, J., files a concurring and dissenting opinion. NIX, C.J., files a dissenting opinion.