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COMMONWEALTH PENNSYLVANIA v. JOHN RICHARD LOHMAN (01/25/88)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 25, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN RICHARD LOHMAN, APPELLANT

Appeal from the Judgment of Sentence March 5, 1987 in the Court of Common Pleas of Clinton County Criminal Division, No. 370-85.

COUNSEL

Craig P. Miller, Lock Haven, for appellant.

Donna L. Rae, Assistant District Attorney, Lock Haven, for Com., appellee.

Wieand, Tamilia and Cercone, JJ.

Author: Cercone

[ 370 Pa. Super. Page 405]

This is an appeal from the March 5, 1987 order of the Court of Common Pleas of Clinton County.

Appellant, John Richard Lohman, was charged with rape and simple assault of his fourteen (14) year old step-daughter. Appellant was found guilty by a jury of both charges. Post-verdict motions were timely filed and denied. Appellant was sentenced to a term of incarceration of five (5) to

[ 370 Pa. Super. Page 406]

    ten (10) years.*fn1 Appellant's timely motion to modify sentence was denied. This appeal followed.

Appellant raises a total of nineteen (19) issues on appeal.*fn2 After reviewing the record on appeal, the briefs of the parties and the lower court opinion, we find that the court below has thoroughly addressed and correctly disposed of all but one of appellant's contentions which we will address herein.*fn3

[ 370 Pa. Super. Page 407]

Appellant avers that the lower court erred in permitting a child witness to testify via closed-circuit T.V. This issue was recently addressed by an en banc panel of this court in Commonwealth v. Ludwig, 366 Pa. Super. 361, 531 A.2d 459 (1987).*fn4

[ 370 Pa. Super. Page 408]

In Ludwig, the defendant was charged with sexually abusing his six (6) year old daughter. Although the child was able to discuss the details of the case, she "froze" and was unable to testify in front of her father during the preliminary hearing. To avoid this occurrence at trial, the court permitted the daughter to testify via closed-circuit T.V. The only people present with the child while she was testifying were the child's foster mother and a camera operator. All others observed the child's testimony from the courtroom.

The defendant in Ludwig asserted that permitting his daughter to testify via closed-circuit T.V. constituted a violation of his right to confront her as a witness, a right guaranteed by the Pennsylvania Constitution in Article 1, ยง 9.*fn5

Judge Wieand, writing for the majority, espoused that the right of confrontation is not an absolute right.

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

[ 370 Pa. Super. Page 409]

    by the confrontation clause of the federal or state constitution.

Id., 366 Pa. Superior Ct. at 369, 531 A.2d at 463. (footnote omitted).

In the instant case, the child was reluctant to testify against her step-father. As long as the right of cross-examination was preserved and all interested persons could observe the child while she testified, the appellant's right of confrontation was not abridged.

In contrast to Ludwig in which the trial court permitted only the foster mother and camera operator in the room with the child while she was testifying, the trial judge, the court reporter and both counsels were all present during appellant's step-daughter's testimony. The appellant, unbeknownst to the jury, was sequestered in another room and was able to communicate with counsel via direct telephone line. The structure utilized by the trial court in the instant case went further to preserve appellant's constitutional right of confrontation than those deemed adequate in Ludwig. Thus, the lower court did not err in permitting the child to testify via closed-circuit T.V.*fn6

Accordingly, the order of the lower court is affirmed.

Disposition

Accordingly, the order of the lower court is affirmed.


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