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filed: December 1, 1982.


No. 15 W.D. Appeal Docket 1982, Homicide, Conspiracy, Appeal from Judgment of Sentence of the Court of Common Pleas of the Fourteenth Judicial District, Criminal Division, at Nos. 814 and 814-1/2 of 1978.


Dennis J. Clark, Pittsburgh, for appellant.

Gerald R. Solomon, Dist. Atty., Ralph C. Warman, First Asst. Dist. Atty., Uniontown, for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., files a concurring opinion in which O'Brien, C.j., joins. Nix, J., files a dissenting opinion in which Hutchinson, J., joins. McDermott, J., files a dissenting opinion.

Author: Flaherty

[ 499 Pa. Page 342]


On March 13, 1979 Samuel C. Contakos was convicted in the Court of Common Pleas of the Fourteenth Judicial District, by a jury, of first degree murder and criminal conspiracy. The next day, after hearing evidence as to aggravating and mitigating circumstances, the jury returned a verdict of life imprisonment as the sentence for the murder conviction. Contakos also received a consecutive sentence of five to ten years on the conspiracy conviction. An appeal was taken to this Court, and on February 4, 1981, we vacated the judgment of sentence and remanded the case for a determination as to whether the nondisclosure of certain written records of interviews with Commonwealth witnesses who testified at trial was harmless error. On March 25, 1982 the trial court issued an order reinstating the judgment of sentence and ruling that the error was harmless. Following the trial court's reinstatement of judgment of sentence, the instant appeal was taken to this Court, which appeal was specifically allowed by our February 4, 1981 order.

Appellant raises eight assignments of error, but because we agree that reversible error was committed when the trial court cleared the courtroom during part of the trial, we do not address the other matters complained of.*fn1

[ 499 Pa. Page 343]

The factual setting of appellant's claim that reversible error was committed when the trial court closed the trial to the public is as follows. Immediately before the Commonwealth's chief witness was to testify, the trial judge was notified by the Pennsylvania State Police that an attempt might be made on the life of the next witness. Over defense objection, the trial judge closed the courtroom during the testimony of this one witness, except that members of the media were allowed to be present. It is unclear from the record whether all media personnel were permitted to be in the courtroom, or whether only certain media personnel were admitted. In any event, the trial was closed to the public, including members of appellant's family, during the testimony of the Commonwealth's main witness. The question raised on this appeal is whether a segment of a criminal trial may be closed to the public in order to protect the life of a witness, upon reliable information that an attempt might be made on that person's life.

Appellant asserts the abridgment of his right to a public trial under the First, Sixth and Fourteenth Amendments to the United States Constitution, and under Art. I Sect. 9 of the Pennsylvania Constitution. Because we hold that the closure in this case was violative of the Pennsylvania Constitution, we do not address the federal claim.

[ 499 Pa. Page 344]

The Pennsylvania Constitution at Article I, section 9, provides: "In all criminal prosecutions the accused hath a right to . . . a speedy public trial by an impartial jury of the vicinage," and Article I, section 11 provides: "All courts shall be open." Section 11, mandating open courts, has been the law of Pennsylvania for three hundred years. It was present in the Pennsylvania Frame of Government of 1682 and was reaffirmed in ยง 26 of the Constitution adopted by Pennsylvania in 1776. See Richmond Newspapers v. Virginia, 448 U.S. 555, 568, 100 S.Ct. 2814, 2822, 65 L.Ed.2d 973, 984 (1980), citing Sources of Our Liberties, ed. R. Perry, 217 (1959), 1 B. Schwartz, The Bill of Rights: A Documentary Page 344} History, 140 (1971). Section 9, providing for a "speedy public trial," was adopted in the Pennsylvania Declaration of Rights in 1776. Schwartz, Id., 265.

The historical basis for public trials and the interests which are protected by provisions such as Pennsylvania's open trial mandate have been well researched and discussed in two recent opinions of the United States Supreme Court, Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), and Richmond Newspapers, Inc. v. Virginia, supra, and can be briefly summarized as follows: generally, to assure the public that justice is done even-handedly and fairly; to discourage perjury and the misconduct of participants; to prevent decisions based on secret bias or partiality; to prevent individuals from feeling that the law should be taken into the hands of private citizens; to satisfy the natural desire to see justice done; to provide for community catharsis; to promote public confidence in government and assurance that the system of judicial remedy does in fact work; to promote the stability of government by allowing access to its workings, thus assuring citizens that government and the courts are worthy of their continued loyalty and support; to promote an understanding of our system of government and courts.

These considerations, which were applied by the United States Supreme Court in its analysis of the First and Sixth Amendments in Gannett and Richmond Newspapers apply equally to our analysis of Pennsylvania's constitutional mandate that courts shall be open and that an accused shall have the right to a public trial. We are mindful, as was the Court in Richmond Newspapers, of our virtually unbroken history of public trials and openness in criminal trials. Justice Hugo Black has well expressed the pervasiveness of this tradition:

[W]e have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star

[ 499 Pa. Page 345]

Chamber in 1641, and whether that court ever convicted people secretly is in dispute . . . .

This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial.

In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 504, 92 L.Ed. 682 (1948), cited in Richmond Newspapers, supra, 448 U.S. at 573, n. 9, 100 S.Ct. ...

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