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GEORGE BORDEN. APPEAL GEORGE BORDEN (01/13/88)

filed: January 13, 1988.

IN THE INTEREST OF GEORGE BORDEN. APPEAL OF GEORGE BORDEN, COMMONWEALTH OF PENNSYLVANIA


Appeal from the Order Entered on April 24, 1986, in the Court of Common Pleas of Philadelphia County, Juvenile Division at No. 6376-85-8.

COUNSEL

John Packel, Assistant Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Del Sole, Montemuro and Hester, JJ. Del Sole, J., files a concurring & dissenting opinion.

Author: Hester

[ 376 Pa. Super. Page 470]

This is a direct appeal from a juvenile disposition. Appellant, an eleven-year-old boy, was adjudicated delinquent for committing involuntary deviate sexual intercourse, indecent exposure and indecent assault upon a six-year-old boy. A disposition of "intensive" probation with psychological counseling was entered. Appellant argues that his constitutional rights to confrontation and due process were violated during his adjudicatory hearing. We agree in part and remand for a new hearing.

On January 9, 1986, appellant's adjudicatory hearing commenced. Following the court's ruling that the child victim was competent to testify, the victim began to have difficulty relating the details of the incident and simply stated that he "forgot." Notes of Testimony, 1/9/86, at 12-13. The trial court questioned the victim about his fear of testifying in front of appellant, then sua sponte ordered the hearing to be continued so that a closed circuit television could be used in the proceedings.

On January 30, 1986, the adjudicatory hearing resumed. Appellant was placed alone in a room outside the courtroom while the victim testified in the courtroom. Appellant was provided with a closed circuit television to watch and listen to the testimony, as well as an audio device through which he could speak to his counsel. Following the victim's testimony, appellant was brought back into the courtroom and the remainder of the proceedings took place entirely in appellant's presence.

Appellant was adjudicated delinquent at the conclusion of the hearing and his disposition was entered on April 24, 1986. Appellant filed this appeal on May 23, 1986.

[ 376 Pa. Super. Page 471]

The record establishes that on August 11, 1985, appellant and two other boys physically forced the child victim to perform fellatio upon them. Appellant also threatened the victim with physical harm if he told anyone of the incident.

Appellant's sole argument is that the trial court erred when it removed him from the courtroom and required him to observe the victim's testimony over closed circuit television, thereby violating his constitutional rights of confrontation and due process.

The United States Supreme Court decided in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that "a juvenile has a constitutional right to notice of the charges, to counsel, to confrontation and cross-examination of witnesses, and to the privilege against self-incrimination." In re Bonner, 301 ...


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