Commonwealth v. Ludwig

594 A.2d 281, 527 Pa. 472, 1991 Pa. LEXIS 111

• Court: Supreme Court of Pennsylvania
• Decided: May 10, 1991
• Docket: 34 E.D. Appeal Docket 1988
• Status: Published

Opinions

OPINION

ZAPPALA, Justice.

We granted review in this case and the companion case, Commonwealth v. Lohman, 527 Pa. 492, 594 A.2d 291, to determine whether the use of closed circuit television testimony by an alleged child victim violates the confrontation clauses of the United States and Pennsylvania Constitutions.¹ We hold that the confrontation clause of the Pennsylvania Constitution does not permit such infringement of a defendant’s constitutional right to meet a witness face to face. The use of closed circuit television to transmit the testimony of the witness in this case violates the constitutional protection given to the defendant under Article I, § 9 of the Pennsylvania Constitution. Consequently, we reverse the Order of the Superior Court upholding appellant’s conviction and sentence.²

On August 9, 1984, appellant was charged with rape, involuntary deviate sexual intercourse, incest, indecent assault, corrupting the morals of a minor, and endangering the welfare of children. The alleged victim of these crimes was appellant’s five year old daughter. At the preliminary hearing, the victim testified that she did not remember what happened with appellant. The victim was unresponsive to further questioning, and the Commonwealth requested a continuance so that it could prepare a petition to the court seeking to use videotaped testimony at the preliminary hearing. The petition was filed by the Commonwealth, and a hearing held. At the hearing, the Commonwealth presented testimony of a psychologist to the effect that the victim had undergone “emotional freezing” at the preliminary hearing and that the condition could occur again. The psychologist also testified that the victim had become withdrawn following the incident, but was now making psychological progress. The psychologist was concerned that the progress might be impaired if the child was forced to testify in court in the physical presence of her father.

The court granted the Commonwealth’s petition to the extent that it allowed the child to testify by way of closed circuit television. At the second preliminary hearing, the alleged victim did testify on closed circuit television and the evidence was deemed sufficient to hold the appellant for trial. Notwithstanding appellant’s objection, the trial court allowed the same closed circuit television procedures to be employed during the trial itself.

A jury trial began on March 7, 1985. The child testified at the trial via closed circuit television from another room. The child’s foster mother was permitted to sit next to the child while the child testified. Also in the room where the child was located was the video camera operator. The courtroom where the judge, prosecutor, defense counsel, appellant and jury were located, was linked to the child by microphone. Although the child could not see the people in the courtroom, she could hear them and respond to their questions.

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

Article I, § 9 of our state constitution guarantees an accused the right to meet his accusers:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusations against him, to meet the witnesses face to face ... (emphasis added)

This language is unlike its federal counter-part, the Sixth Amendment, which provides that a defendant in a criminal case “shall enjoy the right ... to be confronted with the witnesses against him.”

In Maryland v. Craig, supra, the United States Supreme Court was presented with a challenge to a Maryland statute which permitted closed circuit testimony if a judge determined that the child victim’s testimony in the courtroom would result in serious emotional distress and the child’s inability to communicate. The trial court rejected the defendant’s objection to the procedure as violative of the confrontation clause of the Sixth Amendment to the United States Constitution. The Maryland Court of Appeals reversed, holding that the State did not present sufficient evidence to meet the requirements set forth in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The United States Supreme Court reversed in a five to four decision.

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

Reviewing federal case law, the majority held that the purpose of the confrontation clause was to insure that witnesses give testimony under oath, submit to cross-examination and permit observations of witness’s demeanor to assist in the assessment of credibility. Thus, federal case law reflects a preference for face to face confrontation, not an absolute guarantee. However, a face to face confrontation may only be dispensed of where denial is necessary to further an important public policy and where the reliability of the testimony is otherwise assured. The Court concluded that a state’s interest in the physical and psychological well being of child abuse victims may be sufficiently important to outweigh face to face confrontation.

In a stinging dissent, Justice Scalia, joined in by Justices Brennan, Marshall and Stevens, chastised the majority for applying an interest balancing analysis when the text of the Constitution does not permit it. The Defendant was not requesting an expansive interpretation of the scope of the Sixth Amendment but rather a strict adherence to its words. When a Constitutional guarantee is clear and explicit, as in this instance, an interest balancing analysis is the wrong approach. The confrontation clause does not guarantee reliable evidence but rather it guarantees specific trial procedures that were thought to assure reliable evidence. In effect, the majority subordinated an explicit constitutional protection to “current favored public policy.”

Unlike the Sixth Amendment to the United States Constitution, Article 1, Section 9 of the Pennsylvania Constitution specifically provides for a “face to face” confrontation. We have long held that in interpreting our Constitution we are not bound by the United States Supreme Court’s interpretation of similar federal constitutional provisions. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983).

In Commonwealth v. Sell, supra, 504 Pa. at 49, 470 A.2d at 459, we embraced the admonitions of Justice Brennan of the United States Supreme Court:

[T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counter-part provisions of State Law. Accordingly, such decisions are not mechanical applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guide posts when interpreting counter-part state guarantees.

We then refused to adopt the United States Supreme Court’s abolition of “automatic standing” under the Fourth Amendment of the United States Constitution reaffirming our holding in Commonwealth v. Tate, 495 Pa. 158, 169, 432 A.2d 1382, 1387 (1981) that the:

State may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the federal constitution, and that the rights so guaranteed may be more expansive than their federal counter-parts (Citations omitted).

Most recently, in Commonwealth v. Edmunds, supra, this Court was again requested to blindly adopt federal jurisprudence to support a “good faith” exception to the exclusionary rule as articulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). There, after an extensive review of the history of Article 1, Section 8, our precedents and policy considerations, we determined that adoption of federal jurisprudence was unwarranted.

Unlike its federal counter-part, Article 1, Section 9, of the Pennsylvania Constitution does not reflect a “preference” 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 and reasoning in Maryland v. Craig. However, in addition, we have our own case law which mandates a “face to face” confrontation.

In Commonwealth v. Russo, 388 Pa. 462, 470-471, 131 A.2d 83, 88 (1957) we addressed the “face to face” requirement of Article I, § 9 of our Constitution, stating:

Many people possess the trait of being loose tongued or willing to say something behind a person’s back that they dare not or cannot truthfully say to his face or under oath in a courtroom. It was probably for this reason, as well as to give the accused the right to cross-examine his accusers and thereby enable the jury to better determine the credibility of the Commonwealth’s witnesses and the strength and truth of its case, that this important added protection was given to every person accused of crime. We have no right to disregard or (unintentionally) erode or distort any provision of the constitution, especially where, as here, its plain and simple language make its meaning unmistakably clear; indeed, because of the times in which we live we have a higher duty than ever before to zealously protect and safeguard the constitution.

Although we were quite emphatic about the importance of this right, no right is absolute. Indeed, the right to confront an accuser is not without exception. In Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977), we permitted the prosecution to use preliminary hearing testimony of a witness at trial when that witness was unavailable. In Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977), the prosecutor was permitted to use a videotape deposition of a witness unavailable for trial. In both instances, the original testimony was given in the presence of the defendant with the defendant having the opportunity to face and cross-examine his accuser. However, in each instance, the witnesses subjective reaction to testifying in the presence of the accused were not a consideration.

Although we have recognized exceptions to the right to confront a witness, the policy reasons underlying those decisions are absent in this case. The witness in this case was neither unavailable nor subjected to cross-examination during prior testimony given in the presence of the accused. In fact, the trial judge instructed the jury that the victim was totally unaware of the existence of the trial itself.

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

Having diluted the significance of her testimony to that extent, it is questionable whether the victim would be testifying under the proper aura.

While we have recognized exceptions to the constitutional right of confrontation, we have done so only in those instances in which the accused has already had the opportunity to confront the witnesses against him face to face. We were satisfied that in those limited instances, the constitutional right to confront the witness had been afforded to the accused. Those decisions cannot be interpreted to permit restrictions on face to face confrontation where the right to confront the witness has never been afforded to the accused.

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. The subjective fears of the witness, without more, are insufficient to restrict this important constitutional right. Since the trial court relied exclusively upon these fears, its actions cannot be affirmed. The appellant is entitled to face his accusers and the failure to protect that right was error. The appellant is therefore entitled to a new trial during which time the victim must testify in the courtroom before the judge, jury and appellant.

The Order of the Superior Court affirming the Order of the Court of Common Pleas of Monroe County is reversed.³

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

1 . Because we hold that the procedure employed here was repugnant to our State Constitution, it is unnecessary to address the Federal Constitutional issue raised.

However, we are cognizant that recently the United States Supreme Court addressed this same issue under the Sixth Amendment of the United States Constitution and held that the confrontation clause of the Sixth Amendment did not require "face to face" confrontation. See Maryland v. Craig, — U.S.-, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). For the reasons set forth hereinafter we decline to follow the United States Supreme Court on this issue.

2 . After the trial in this case, the General Assembly adopted a statute authorizing the closed circuit television testimony upon good cause shown. 42 Pa.C.S. § 5985(a). The constitutionality of that provision is not at issue here.

3 . The dissenting opinion has characterized those accused of crimes such as the one before us as "miscreant[s] [who] abuse very young children” and warns that a "craven sex offender who limits his depredations to the very young may thereby escape the reach of the criminal law.” In an uncharacteristic attack on those accused of such heinous crimes, the writer apparently fails to remember that under our system of justice, an accused is innocent until and unless the jury has spoken to the contrary. While one may abhor the crime, one must not condemn the person accused of that crime, unless the accused is, in fact, adjudged guilty.