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filed: December 20, 1985.


Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 83-08-3322, 3325, 3328.


Carole Kafrissen, Philadelphia, for appellant.

Ram I. Djerassi, Assistant District Attorney, Philadelphia, for Com., appellee.

Wickersham, Brosky and Tamilia, JJ. Tamilia, J., concurs in the result.

Author: Brosky

[ 348 Pa. Super. Page 441]

This appeal is from judgment of sentence imposed subsequent to conviction for one count of aggravated assault and two counts of simple assault. Appellant raises four issues on appeal, one of which we find meritorious.*fn1 This case presents the question of whether a criminal defendant's right to a public trial under the Pennsylvania and Federal Constitutions attaches during a preliminary hearing. The issue of whether a defendant's right to a public trial applies to a preliminary hearing is a case of first impression in this Commonwealth. We agree that this constitutional right applies to the preliminary hearing and that the closure of appellant's preliminary hearing was unconstitutional. However, we also find that the error was cured during appellant's trial and, accordingly, we affirm.


Appellant was tried with four co-defendants, one of whom pleaded guilty during trial. All were fellow inmates at Holmesburg State Correctional Institution, and all were convicted on various charges of assaulting prison guards during an altercation which occurred at Holmesburg on July 30, 1983. Their preliminary hearing was held on

[ 348 Pa. Super. Page 442]

August 29, 1983, within Holmesburg State Correctional Institution, instead of at City Hall in a courtroom open to the public. This was apparently because of "security problems related to the transportation of the defendants to City Hall," according to the Commonwealth's brief, paraphrasing the rather cryptic explanation given by the court at the preliminary hearing after defense counsel objected to closure:

THE COURT: There are certain reasons for security that this case is being held here. I think we all know that. That they don't have to transport them and they don't have to stop their normal activities at Holmesburg. There's many other rational reasons why we are here today.

No explanation for the pre-trial closure was given in the trial court's opinion, despite the defendant's objection to the closure in his post verdict motions.

For whatever reason, appellant's preliminary hearing was held within the prison. Although members of the public with notice of the event might have been able to obtain admittance, had they known where and when to seek such permission, we think that this was essentially a closed hearing; it was not freely open to the public. Appellant contends that the closure of the preliminary hearing over defense objection violated due process and his right to a public trial under the Sixth and Fourteenth Amendments to the Constitution of the United States, and violated Article One, Sections 9 and 11, of the Pennsylvania Constitution.*fn2

Pennsylvania Constitution

A. Article One, Section 11.

Appellant contends that his right under Article One, Section 11 of this Commonwealth's Constitution was violated

[ 348 Pa. Super. Page 443]

    by the holding of his preliminary hearing in the prison rather than in a courtroom open to the public. Section 11 provides that "[a]ll courts shall be open." Logically, the next question is whether a preliminary hearing is a "court" proceeding. Just two years ago, this Court answered that question in the affirmative. Re: Petition of Daily Item, 310 Pa. Super. 222, 456 A.2d 580 (1983) (Brosky, J.).

In Daily Item, this Court considered whether the press and public had a right to insist upon access to pretrial judicial proceedings, independent of the defendant's right to a public trial. In that case, the District Justice denied public access to the preliminary hearing held to determine whether the defendant should be tried on criminal homicide charges. The trial court upheld the District Judge's exclusion of the public from the hearing and denial of access to the transcript. We reversed, granting the petitioner access to the transcript. The defendant in that case had requested that the press and public be excluded from the hearing, thus waiving his right to a public trial at that stage. We, therefore, did not address the defendant's constitutional right, only that of the press and the public of access to a preliminary hearing.

For our purposes here, the critical point is that we held in that case, as we do today, that the Pennsylvania Constitutional provision in Article One, Section 11, that "[a]ll courts shall be open," applies to a preliminary hearing.

Daily Item involved the assertion of that constitutional right by the public. The issue before us differs only in that here it is the criminal defendant -- not the public -- who is claiming the benefit of this constitutional provision. Since Section 11 grants a right that accrues to the public, it is inconceivable that it could not also be relied upon by a party to a case. There is no language in Section 11 which would justify such a restriction of standing to assert its violation -- and we do not intend to fabricate it. It follows that Section 11 of Article One of the Pennsylvania Constitution was violated by the manner in which the preliminary hearing in this case was conducted.

[ 348 Pa. Super. Page 444]

B. Article One, Section 9.

This provision of the Pennsylvania Constitution accords the criminal defendant the right to a "public trial." We have concluded above that a preliminary hearing is a "court" proceeding. This would seem to imply that a preliminary hearing is part of a "trial." However, in order to resolve the issue of whether or not this type of "court proceeding" is a "trial", we will examine the nature and importance of the preliminary hearing in Pennsylvania and consider whether it is an integral part of the trial, such that the Section 9 right attaches.

Judge Beck's concurring opinion in Daily Item is instructive for our present concern:

The preliminary hearing has a common law and statutory rather than a constitutional origin. Its history extends for a period of nearly 500 ...

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