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COMMONWEALTH PENNSYLVANIA v. PAUL LUDWIG (09/08/87)

filed: September 8, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
PAUL LUDWIG, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Monroe County, No. 791-1984.

COUNSEL

William K. Sayer, Assistant Public Defender, Stroudsburg, for appellant.

E. David Christine, Jr., Assistant District Attorney, E. Stroudsburg, for Com., appellee.

Cirillo, President Judge, and Brosky, Wieand, Olszewski, Del Sole, Montemuro, Tamilia, Popovich and Johnson, JJ. Brosky, J., joins this opinion. Montemuro, J., joins the majority opinion and files a separate concurring opinion. Tamilia, J., joins the majority opinion and files a separate concurring opinion. Del Sole, J., joins the majority opinion, the concurring opinion by Montemuro, J., and files a separate concurring statement. Johnson, J., joins the majority opinion and the concurring opinion by Montemuro, J. He also joins Parts I, II, III, IV and V of the dissenting opinion by Cirillo, President Judge. Cirillo, President Judge, files a dissenting opinion in which Popovich, J., joins. Olszewski, J., joins the dissenting opinion by Cirillo, President Judge, and files a separate dissenting opinion.

Author: Wieand

[ 366 Pa. Super. Page 362]

The significant issue in this appeal is whether the constitutional right of confrontation is violated when a child abuse victim is permitted to testify against his or her alleged abuser via closed circuit television.

On August 9, 1984, Paul Ludwig was arrested and charged with sexually abusing his six year old daughter. A preliminary hearing was held on August 28, 1984. Prior to the start of the hearing the victim was interviewed by the assistant district attorney and was able to discuss the details of the abuse in a manner which was consistent with prior reports which she had given. When she was called upon to give testimony at the preliminary hearing, however, the child froze emotionally and was unable to testify in the presence of her father. The preliminary hearing was continued, and leave of court was obtained to present the

[ 366 Pa. Super. Page 363]

    child's testimony via closed circuit television. At trial, the child was also permitted to testify via closed circuit television. By this procedure, the child was able to give testimony in a separate room, from where her testimony was captured and transmitted by closed circuit television to the courtroom. Thus, the defendant was able to observe the witness fully as she testified, and his right of cross-examination was preserved inviolate. The jury, moreover, was able to observe the witness fully as she answered questions put to her during direct and cross-examination. The only difference between the procedure adopted by the trial court in this case and the customary means of receiving testimony from a witness in a courtroom was that the child victim was situated in a separate room and was not required to look at the defendant as she testified.

Ludwig was found guilty of rape,*fn1 involuntary deviate sexual intercourse,*fn2 incest,*fn3 corruption of minors,*fn4 and endangering the welfare of a child.*fn5 Post-trial motions were denied; Ludwig was sentenced; and this direct appeal followed. Ludwig's primary contention on appeal is that the right to confront his accuser, as guaranteed by the United States and Pennsylvania Constitutions, was violated when his accuser was permitted to testify at trial via closed circuit television. We reject this argument.*fn6

The Sixth Amendment of the Constitution of the United States provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

[ 366 Pa. Super. Page 364]

    the witnesses against him . . . ." Similarly, the Pennsylvania Constitution, in Article 1, § 9, guarantees a person accused in a criminal prosecution the right "to meet witnesses face to face." Confrontation "'(1) insures that the witness will give his statements under oath -- thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever discovered for the discovery of truth"; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility.'" Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526 (1986), quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970) (footnote omitted).

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court explained the purpose for confrontation as follows:

"The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." . . . 5 J. Wigmore, Evidence, § 1395, p. 123 (3rd ed. 1940).

Id. at 315-316, 94 S.Ct. at 1110, 39 L.Ed.2d at 353 (emphasis omitted). See also: California v. Green, supra 399 U.S. at 166, 90 S.Ct. at 1939, 26 L.Ed.2d at 501 ("[T]he right of cross-examination . . . provides substantial compliance with the purposes behind the confrontation requirement."). A secondary purpose of the confrontation clause is that:

     the judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness . . . . This secondary advantage,

[ 366 Pa. Super. Page 365]

    however, does not arise from the confrontation of the opponent and the witness; it is not the consequence of those two being brought face to face. It is the witness' presence before the tribunal that secures the secondary advantage . . . .

5 J. Wigmore, Evidence, § 1395 at 153-154 (Chadbourn rev. 1974). See: Mattox v. United States, 156 U.S. 237, 242-244, 15 S.Ct. 337, 339-340, 39 L.Ed. 409, 411 (1895); United States v. Caputo, 758 F.2d 944, 950 (3d Cir.1985).

The Supreme Court of the United States has said that while the Sixth Amendment reflects a preference for a face to face confrontation at trial, the preference is not absolute and inelastic. On the contrary, the confrontation clause permits several well recognized exceptions. For example, the confrontation clause of the United States Constitution does not preclude the use of hearsay evidence in criminal trials under circumstances which otherwise render such evidence reliable, i.e., where it bears sufficient "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980) (involving former testimony of unavailable witness). See: United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (statement of co-conspirator); Ohio v. Roberts, supra (former testimony); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (statement of co-conspirator); Mattox v. United States, supra (former testimony); Williams v. Melton, 733 F.2d 1492 (11th Cir.) (out-of-court statements of witnesses falling under res gestae exception), cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 508 (1984); Haggins v. Warden, 715 F.2d 1050 (6th Cir.1983) (excited utterance), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984); United States v. Peacock, 654 F.2d 339 (5th Cir.1981) (statement of co-conspirator), cert. denied, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 344 (1983).

Similarly, appellate courts in Pennsylvania have held that "[t]he Pennsylvania Constitution guarantees an accused the right to confront and cross-examine witnesses." Commonwealth v. McCloud, 457 Pa. 310, 311, 322 A.2d 653, 655

[ 366 Pa. Super. Page 366]

(1974). See also: Commonwealth v. Coldsmith, 176 Pa. Super. 283, 286, 106 A.2d 649, 650 (1954) ("The right 'to meet the witnesses face to face' is intended to secure the right of cross-examination."). "Although a fundamental right, this right of confrontation is not absolute." Commonwealth v. McCloud, supra 457 Pa. at 312, 322 A.2d at 655. Thus, the right of confrontation does not prevent the use of videotape depositions of a witness who is unavailable for trial, where the depositions were taken in the presence of the accused and the witness was subjected to cross-examination. Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977). Similarly, because the right of confrontation is not absolute, certain hearsay evidence has been held admissible when supported by sufficient indicia of reliability. See: Commonwealth v. Thomas, 443 Pa. 234, 279 A.2d 20 (1971). See also: Commonwealth v. Pinkins, 514 Pa. 418, 525 A.2d 1189 (1987) (statement made by co-conspirator during course of conspiracy); Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981) (same); Commonwealth v. Ehrsam, 355 Pa. Super. 40, 512 A.2d 1199 (1986) (excited utterance). So also, business records, if properly verified, are admissible against an accused even though he does not have the right to confront the person who was the source of the information therein contained. See: Commonwealth v. Scatena, 332 Pa. Super. 415, 438, 481 A.2d 855, 866-867 (1984), rev'd on unrelated grounds, 508 Pa. 512, 498 A.2d 1314 (1985). Public records have also been held admissible under certain circumstances without violating the confrontation clause of the Pennsylvania Constitution. See: Commonwealth v. Coldsmith, supra. And finally, testimony of witnesses who are deceased or otherwise unavailable may be received if given at a prior trial where the witness was subjected to cross-examination. See: Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977); Commonwealth v. Jones, 344 Pa. Super. 420, 496 A.2d 1177 (1985). These decisions disclose that the courts of this Commonwealth have never embraced the view that the right of confrontation unconditionally mandates that all witnesses offering

[ 366 Pa. Super. Page 367]

    evidence against an accused be required to testify in his presence or confront him eyeball to eyeball.

The courts in other jurisdictions have also rejected such a restrictive view. In State v. Sheppard, 197 N.J.Super. 411, 484 A.2d 1330 (1984), the New Jersey Superior Court upheld the use of videotape testimony by a ten year old sexual abuse victim against her alleged abuser. In concluding that the use of videotaped testimony had not violated the accused's right of confrontation, the Court said:

The Confrontation Clause is not implacable in its demands. Nearly every authority agrees that it is subject to exceptions. In reaching the conclusion, as this court has, that the use of videotaped testimony in this case of child abuse is permissible, it is accepted as a fact that only a modest erosion of the clause, if any, will take place. The child, through the use of video, will not be obliged to see the defendant or to be exposed to the usual courtroom atmosphere. Nevertheless, the defendant as well as the judge, the jury, and the spectators, will see and hear her clearly. Adequate opportunity for cross-examination will be provided. This is enough to satisfy the demands of the confrontation clause. If it is not, it represents a deserved exception . . . . Everything but "eyeball-to-eyeball" confrontation will be provided. No case has held eye contact to be a requirement. It is not demanded when a witness "confronts" a defendant in the courtroom. No court rule requires eye contact and courtroom distances sometimes make such contact impossible.

Id. at 432, 484 A.2d at 1342-1343.

In Commonwealth v. Willis, 716 S.W.2d 224 (Ky.1986) the Supreme Court of Kentucky upheld the constitutionality of a statute which permitted the use of television cameras in presenting the testimony of child victims of sexual abuse. The Court observed that the confrontation clause contained in the Kentucky constitution, like that contained in the Pennsylvania constitution, guaranteed to a defendant the right to meet witnesses "face to face." The Court held that the right guaranteed by the Kentucky Constitution did not

[ 366 Pa. Super. Page 368]

    exceed the right of confrontation guaranteed by the federal constitution. The Court said:

There is no constitutional right to eyeball to eyeball confrontation. The choice of the words "face to face" may have resulted from an inability to foresee technological developments permitting cross-examination and confrontation without physical presence.

In the Eighteenth and Nineteenth Centuries, live testimony was the only way that a jury could observe the demeanor of a witness. The use of video tapes does not represent a significant departure from that tradition because the goal of providing a view of the witness's demeanor to the jury is still achieved.

The intervention of a video screen or a one-way mirror does not infringe upon the defendant's right to confrontation. There is a difference between confrontation and intimidation. It would be unconstitutional for the government to take evidence in secret and outside of the presence of the defendant, but there is no right to eyeball to eyeball presence.

[ 366 Pa. Super. Page 369]

Id. at 230-231. (emphasis added). Other cases upholding the use of videotaped testimony of a child victim despite constitutional or statutory provisions guaranteeing the right "to meet witnesses face to face" include People v. Johnson, 146 Ill.App.3d 640, 100 Ill.Dec. 330, 497 N.E.2d 308 (1986), and State v. Cooper, 291 S.Ct. 351, 353 S.E.2d 451 (1987). Indeed, those courts which have considered the use of alternative courtroom procedures to shield a child witness from the traumatic effects of testifying within the physical presence of his or her abuser have almost uniformly found no violation of confrontational guarantees. See: In re Appeal in Pinal County Juvenile Action Nos. J-1123 & J-1124, 147 Ariz. 302, 709 P.2d 1361 (App.1985); Hochheiser v. Superior Court, 161 Cal.App.3d 777, 208 Cal.Rptr. 273 (1984); Chambers v. State, 504 So.2d 476 (Fla.Ct.App.1987); Altmeyer v. State, 496 N.E.2d 1328 (Ind.App.1986); State v. Strable, 313 N.W.2d 497 (Iowa 1981); State v. Johnson, 240 Kan. 326, 729 P.2d 1169 (1986); State Page 369} v. Warford, 223 Neb. 368, 389 N.W.2d 575 (1986); State v. Tafoya, 105 N.M. 117, 729 P.2d 1371 (Ct.App.1986); State v. Vigil, 103 N.M. 583, 711 P.2d 28 (Ct.App.1985); People v. Henderson, 132 Misc.2d 51, 503 N.Y.S.2d 238 (1986); People v. Algarin, 129 Misc.2d 1016, 498 N.Y.S.2d 977 (1986). See also: ABA Guidelines for the Fair Treatment of Child Witnesses in Cases Where Child Abuse is Alleged, Guideline No. 3(g) (1985).

The decided cases teach that the right of confrontation occasionally may be required to give way to considerations of public policy and the necessities of a case. A limitation can be placed on the right of confrontation, however, only where it is necessary because of a compelling interest; and any infringement must be as minimally intrusive as possible.

The use of closed circuit television in child abuse cases, where the child is unable or reluctant to testify against an adult member of the family, is a minimally intrusive infringement on the right of confrontation. Considerations of public policy require that testimony from the alleged victim of abuse be received without further psychological injury to the child. So long as the right of cross-examination is preserved in such cases and all interested persons can observe the alleged victim as he or she testifies, the use of closed circuit television is not prohibited by the confrontation clause of the federal or state constitution.*fn7

Ludwig argues that eyeball to eyeball contact between witness and accused is necessary to insure the trustworthiness of the witness's testimony and that any testimony given in the absence of such contact is inherently unreliable.*fn8 We disagree. The right to confront does not confer

[ 366 Pa. Super. Page 370]

    upon an accused the right to intimidate. The reliability of an abused child's testimony does not depend upon his or her ability to withstand the psychological trauma of testifying in a courtroom under the unwavering gaze of a parent who, although a possible abuser, has also been provider, protector, and parent. The reliability of the child's testimony can be assured in such cases by requiring the child to submit to cross-examination while the jury and the accused observe the demeanor of the witness as he or she responds to questions. In the case sub judice, this was accomplished by closed circuit television.

The evidence established good cause for the procedure utilized by the trial court. This evidence showed that the victim had been able to describe, in detail, the sexual acts which had been perpetrated upon her by her father to social workers and law enforcement officials prior to the preliminary hearing. At the preliminary hearing, when asked to describe the sexual acts in the presence of her father, she initially stated that she could not remember the events and then fell into silence when further questions were asked. Others who were present said that the child appeared to be frightened. After the preliminary hearing had been recessed, she explained that she had not answered the questions asked of her because she was afraid of her father. A psychiatric evaluation of the child conducted approximately one week later revealed that she had, in fact, been psychologically injured by her brief and unsuccessful attempt to testify in the presence of her father. During this evaluation, the victim showed signs of increased apprehension and fear and, as a result, was referred for therapy.

Dr. Robert Chupella, a psychologist employed by the Carbon-Monroe-Pike Mental Health/Mental Retardation Department, testified that he had examined the victim and had been present at the preliminary hearing when the victim

[ 366 Pa. Super. Page 371]

    was unable to testify. He opined that the reason the child had said she could not remember and had refused to answer questions during the preliminary hearing had been because, when in the physical presence of her father, she had frozen emotionally. In his opinion, he testified, the victim would be traumatized again if she were required to testify in court in the physical presence of her father. Specifically the doctor said:

I think this would exacerbate a number of the fears that she has been able to resolve in a pretty significant fashion; fears of adults, fears of relating to individuals, anxiety, depression, which I believe was evident in this child at the time of her placement.

I believe that she could regress to that pre-morbid personality and that personality is one of withdrawal and muteness given the stress of having to testify against the parents face-to-face.

I also believe that there is a strong chance that her academic progress in school was suffering because of the circumstances she was involved in. Upon testing her, she tested average intellectual ability and certainly did have a good chance of academic progress given her intellectual standing. So, there is also a possibility of some regression in school in terms of academic performance.

I believe that there would be a likelihood that the proper progress would be stunted and, in fact, that she could regress with the type of emotional arousal that she would be undergoing by reliving, by reexperiencing those episodes in a relatively scary environment. I think that that certainly can be enough stress to have her regress to the point when she first entered into foster care. (N.T. 10/23/84 at 50, 52).

Under these circumstances, the trial court determined that the use of closed circuit television equipment was necessary to protect the welfare of the child. The trial court acted properly and within its discretion. The court did nothing more than adopt modern technological means to

[ 366 Pa. Super. Page 372]

    allow the jury to hear testimony which otherwise would have been unavailable. The use thereof did not violate the defendant's right to confront the witnesses against him. It served only to enhance the fact-finding process.

The judgment of sentence is affirmed.

Disposition

Affirmed.

MONTEMURO, Judge, concurring:

I join Judge Wieand's excellent opinion and write separately only to emphasize one matter. As has already been pointed out, the ideal of face to face confrontation is subject to adjustment depending upon the adverse interest to be protected, as long as there is "no material departure from the reason of the general rule." Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1933). Judge Wieand has found that appellant's right of confrontation was in no way abridged by use of the closed circuit television monitor to broadcast the victim's testimony, and that there has indeed been no "departure from the reason

[ 366 Pa. Super. Page 373]

    of the rule". Where children are involved, as victims of (sexual) abuse, the interest adverse to that of the accused is the state's obligation as parens patriae, the ultimate parent, to protect its charges, simply because, by virtue of their age, they labor under a disability. They are, as Judge Tamilia points out, qualitatively different from adults, particularly when they have been victimized. To ignore the difference is to disregard the protective responsibility, although it is in fact the motivating factor in the recent criminalization of child abuse in Pennsylvania's legislation.*fn1 Its importance here is in the recognition that the inherent weakness of children, which allows the sort of exploitation being prosecuted, leaves the victim open to further persecution if the state's obligation to prevent additional harm is not fulfilled. Appellant capitalized upon his child's vulnerability to perpetrate the abuse, and again at the preliminary hearing to prevent her testimony. Without the court's (successful) intervention in reconciling appellant's interests with that of the child, appellant could have at trial as well used not only his presence, but the system itself to frighten his daughter into "silence or anxiety-produced confusion." Mahady-Smith, The Young Victim as Witness for the Prosecution: Another Form of Abuse?, 89 Dick.L.Rev. 721, 743 (1985). To accomplish this result with the connivance, or at least the acquiescence, of the state would override not only formalistic expressions of constitutionality, but the basic fairness such concepts as the right of confrontation are meant to preserve.

Moreover, there is evidence to suggest that by doctrinaire insistence on "eyeball to eyeball" contact, the opposite effect is actually achieved, that is, the notion that with especially susceptible witnesses, "anxiety influences memory by interfering with focused attention." Id. at 724, n. 21. In such witnesses, particularly children, stress can operate

[ 366 Pa. Super. Page 374]

    to the extent that the increased tension generated by face to face confrontation would decrease rather than increase probity. G.B. Melton, Procedural Reforms to Protect Child Victim/Witnesses in Sex Offense Proceedings, in Child Sexual Abuse and The Law (1981). Since a trial is the process of seeking truth, technological advances which facilitate that process while preserving intact all of the interests involved are not to be lightly disregarded.

TAMILIA, Judge, concurring:

I vote to join Judge Wieand's majority Opinion and write separately to express my views concerning the complexity of this matter. I am troubled by the fact that there was no statutory authority for the procedure adopted here and the proceeding is viable only upon application of exceptions to the rule that a party has the right both to confrontation and cross-examination of a witness against him. The majority finds such exceptions, yet but for the overwhelming fact that we are dealing with a child victim, I would be compelled to join the dissent. We do not need the testimony or treatises of behavioral science experts to establish that, qualitatively, such a witness, who is also a victim, is not to be equated with a normal or average adult. Such a witness is at a considerable disadvantage in the courtroom search for truth, and to assure that the mythical scales of justice are evenly balanced, special consideration must be given to proceedings wherein a child is a victim. This country was recently shocked and dismayed by the trial in California involving alleged child molestation victims by day school personnel. Regardless of the merits of that case, the fact that the preliminary hearing lasted seventeen months is considered by virtually all legal and behavioral science experts as an abomination and a perversion of the judicial process in the harm it has done to the children (and probably many of the adults as well).

From the late nineteenth century, to the present, it is a time clearly perceived by most authorities to be the era of

[ 366 Pa. Super. Page 375]

    enlightenment in the care and treatment of children. To illustrate where we have been and how far we have traveled in our treatment of children, the following excerpt from a law review article written by this writer is illuminating.

Throughout history the child was considered chattel and even in Roman Law, "The Law of the Twelve Tables" granted the father the right to sell his child. During the Middle Ages the lot of the child was harsh with numerous children being abandoned as newborns or at an early age. The child's position in the family came after the father, cattle and mother -- in that order. A note found in an early writing indicated that five to six thousand abandoned children, mostly in Paris, were brought yearly to the house founded by Vincent DePaul. Because of the value placed on children and the lack of insight into their needs, child psychiatry, as a discipline, could not have existed before the 20th century. It was not until the end of the 18th century that laws were instituted for the prevention of crimes against children -- in particular, the destruction of the newborn, easily practiced in the absence of compulsory registration of births. In France, the edict of 1556 instituted severe penalties for infanticide but with little effect, and infanticide progressively increased, reaching a peak in the 18th century. Prussion law existing in 1230 included the statement:

Be a man laden with sick women, children, brothers, sisters or domestics, or be he sick himself, then let them be where they lie, and we praise him too if he would burn himself or the feeble person.

The child was a common victim of witchcraft, and the Children's Crusades resulted in mass death marches of children caught up in a state of religious hysteria, neither controlled nor protected by their parents or society. The Renaissance saw bright spots in Italy, France and England where enlightened families placed wives and mothers in prominent roles, educated their children, condemned corporal punishment and controlled children with ...


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