Commonwealth v. Louden

4 Pa. D. & C.4th 97, 1989 Pa. Dist. & Cnty. Dec. LEXIS 122
CourtPennsylvania Court of Common Pleas, Lebanon County
DecidedSeptember 8, 1989
Docketno. 87-10696
StatusPublished

This text of 4 Pa. D. & C.4th 97 (Commonwealth v. Louden) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lebanon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Louden, 4 Pa. D. & C.4th 97, 1989 Pa. Dist. & Cnty. Dec. LEXIS 122 (Pa. Super. Ct. 1989).

Opinion

EBY, J.,

This case comes before the court on defendants’ post-verdict motions in arrest of judgment or, in the alternative, for a new trial. They shall receive a new triad.

[98]*98Defendants are Larry E. Louden Sr. and Helen Louden, husband and wife. They were convicted on separate counts of endangering the welfare of a child (18 Pa.C.S. §4304) on May 9, 1988 following a jury trial.

The cumulative trial testimony elicted the following facts surrounding the charges brought against defendants. In July 1986 defendant Helen Louden applied for and received state certification to operate a day-care center in her home. The home was one-half of a double home, housing two separate families and divided by a common wall. In the other half of the house lived Margaret and Eli Kulovich, defendant Larry Louden’s mother and step-father.

This day-care center remained in operation from July 1986 through July 20, 1987. Beginning in July 1986, Carol Wolfe, defendant Larry Louden’s sister, began to hear yelling and other noises through the wall in the Kulovich’s home adjoining the Louden household. She heard these noises on her visits to the Kulovich’s, which occurred at least on a daily basis. Mrs. Wolfe thus became extremely concerned about the events occurring in the Louden home, knowing they operated a day-care center. She heard adults using obscene language, arguing over explicit sexual issues, directing obscenities at particular children, threats and smacking noises followed by children crying and screaming. Mrs. Kulovich heard identical noises.

Meanwhile, several parents who took their children to the Louden’s day care became concerned as well. Their children had begun resisting going to the Loudens’. The children had also begun to misbehave, act violently, become clingy and withdrawn, have nightmares and became extremely wary of adult males. In fact, some of these parents took [99]*99steps to remove their children from the Louderis care even prior to the defendants’ arrest.

Ultimately, Mrs. Wolfe’s concern escalated to such a degree she contacted the appropriate authorities about the daily events in the Louden home. As a result of the information she supplied, along with independent police observation, the Loudens were arrested and each charged with endangering the welfare of a child.

Defendants were arrested on July 20, 1987. A pretrial hearing was held on April 26, 1988. At the conclusion of the pretrial hearing, over objections by defendants’ attorney, the court determined pursuant to 42 Pa.C.S. §5985, which permits testimony via closed-circuit television, the commonwealth’s child witnesses would be permitted to testify either on videotape or by closed-circuit television.

After jury selection but before opening statements, the videotaped testimony of each of the three child witnesses was taken. The witnesses were between ths ages of seven and nine years old at the time they testified. The testimony of each witness was taken in a room at the Children and Youth Services offices with the following individuals present: the child witness, one parent, the court clerk, the court stenographer, defense counsel, the district attorney and the trial judge. Defendants were not present; however, they were seated in a room next door. While the child witness was completely separated from and unable to view defendants, defendants could view the events in their entirety on closed-circuit television. They were able to communicate with defense counsel at all times. The children’s testimony was videotaped by Detective Wahman (also present during the testimony) and the tapes were shown to the jury during the course of the trial.

[100]*100In addition, many other witnesses testified at trial in open court, on behalf of both the commonwealth and defendants, including defendants’ sons, Larry Jr. and Scott, ages 10 and seven years respectively. No extraordinary precautions were taken prior to the testimony of either of these children. At the close of trial, a guilty verdict was returned by the jury against each defendant.

While defendants address several errors which they assert were made by the court, in support of their motion for a new trial, no assertions have been presented alleging the verdict was not sufiiciently supported by the evidence. Because defendants have failed to articulate any arguments in support of their motion in arrest of judgment, we will focus our consideration only upon whether a new trial shall be granted. A new trial will be awarded when the trial court has committed a clear abuse of discretion, or an error of law. Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974).

Defendants have raised three issues for our determination. First, they claim the trial court erred by allowing the three commonwealth child witnesses to testify via closed-circuit television and on videotape. Next, defendants allege the court erred in refusing to declare a mistrial upon the occurrence of two separate trial events: first, during Margaret Kulovich’s testimony and second, during the prosecution’s closing argument. Because our basis for awarding defendants a new trial rests upon their initial contention, we need not go on to consider any remaining issues.

The question of the constitutionality of permitting young witnesses to testify outside the courtroom either on' videotape or by closed-circuit television has recently been :an arena for much debate. Indeed, the issue has successfully perplexed many [101]*101courts in this commonwealth and throughout the United States. In 1986, two Pennsylvania statutes were enacted by the legislature which permitted use of videotape or closed-circuit television for good cause:

“§5984. Videotaped depositions
“(a) Depositions — In any prosecution involving a child victim or child material witness, the court may, for good cause shown, order the taking of a videotaped depostion of the victim or material witness on motion of the child through his parent or guardian, or where applicable, the child’s advocate or the attorney for the commonwealth. Such videotaped depositions, if taken for use at the preliminary hearing, may be used only at the preliminary hearing in lieu of the testimony of the child. If such videotaped deposition is taken for use at trial, it may be used only at the trial in lieu of the testimony of the child. The depositions shall be taken before the court in chambers or in a special facility designed for taking the depositions of children. Only the attorneys for the defendant and for the commonwealth, persons necessary to operate the equipment, a qualified shorthand reporter and any person whose presence would contribute to the welfare and well-being of the child, including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his deposition. The court shall permit the defendant to observe and hear the testimony of the child in person but shall ensure that the child cannot hear or see the defendant. Examination and cross-examination of the child shall proceed in the same manner permitted at trial. The court shall make certain that the defendant and defense counsel have adequate opportunity to Communicate for the purposes of providing an éffective defense.”
[102]*102“§5985. Testimony by closed-circuit television

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Bluebook (online)
4 Pa. D. & C.4th 97, 1989 Pa. Dist. & Cnty. Dec. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-louden-pactcompllebano-1989.