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filed: July 7, 1989.


Appeal from the Judgment of Sentence entered January 28, 1987 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 84-08-1593-1595.


Athena M. Dooley, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Cirillo, President Judge, and Beck and Kelly, JJ.

Author: Kelly

[ 386 Pa. Super. Page 135]

In this case we are called up to determine whether the trial court abused its discretion and committed reversible error in closing a trial to the public during the testimony of a Commonwealth witness who alleged that he had been threatened and harassed by unidentified persons who did not want him to testify against appellant at his murder trial. For the reasons which follow, we reverse and remand for a new trial.

[ 386 Pa. Super. Page 136]

The relevant facts may be accurately summarized as follows. Appellant was arrested and brought to trial on murder charges relating to the shooting death of his estranged common-law wife in Philadelphia on August 4, 1984. Mr. Theodore Reed, a security guard and friend of appellant, was subpoenaed to testify against appellant regarding a full and detailed confession of the crime made by appellant to Mr. Reed shortly after the murder. Mr. Reed failed to appear in compliance with the subpoena and so a bench warrant was issued for his arrest.

Prior to the start of the afternoon session on the second day of the trial, the prosecutor informed the court that Mr. Reed had voluntarily presented himself at the prosecutor's office and was now prepared to comply with the subpoena. The prosecutor informed the court further that Mr. Reed had explained his failure to appear as the result of his fear following the breaking of several windows at his home and the receipt of several anonymous calls on the previous evening which threatened injury to him and his four children if he testified against appellant at trial, as well as being accosted outside the courtroom that morning by persons he could not or would not identify, who also requested that he change his testimony. The prosecutor indicated that Mr. Reed was "perfectly willing to testify, but that he was very intimidated about testifying in front of a full courtroom." (N.T. 9/10/86 at 89). The prosecutor moved that the bench warrant against Mr. Reed be withdrawn, and that the court be closed to spectators during Mr. Reed's testimony.

Counsel for appellant agreed that anyone who was attempting to intimidate a witness or suborn perjury should be identified and prosecuted. Counsel indicated that there were numerous defense witnesses and supporters present for the trial and requested that Mr. Reed be brought in to view those present and then have him identify anyone who intimidated him, or of whom he was afraid. Counsel noted that Mr. Reed was an adult male who was employed as a security guard, and not a child witness or a victim of a sex

[ 386 Pa. Super. Page 137]

    crime for whom special consideration might be appropriate. Finally, counsel objected to the motion to clear the courtroom of all spectators during Mr. Reed's testimony on the basis of appellant's Sixth Amendment right to a public trial.

The trial court granted the motion to close the courtroom during Mr. Reed's testimony and denied appellant's motion for a mistrial on the basis of the closure. After Mr. Reed's testimony, the public was again admitted into the courtroom.

Appellant was convicted of murder in the first degree and possession of an instrument of crime. Post-verdict motions were filed, briefed, argued, and denied. On January 28, 1987, appellant was sentenced to life imprisonment on the murder conviction and a concurrent two and one-half to five year term of imprisonment on the possession of an instrument of crime conviction. This timely appeal followed.

On appeal, appellant challenges the partial closure of the trial and raises three other claims of trial court error and fourteen allegations of ineffective assistance of counsel. Because we find merit in appellant's Sixth Amendment denial of a public trial claim, we decline to address his other assertions of error.

Appellant argues that reversal is mandated by our Supreme Court's decision in Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578 (1982) (plurality). The Commonwealth notes that because Contakos was a plurality opinion it is not binding on this Court, and argues instead that a trial court has inherent discretionary authority to clear the court during the testimony of a witness who has been threatened. The Commonwealth cites Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976) and Commonwealth v. Wright, 255 Pa. Super. 512, 388 A.2d 1084 (1978) as controlling precedent. While each of the cases cited by the parties is relevant to our decision, our course lies between the two extremes urged and is guided by other authorities as well.

"Criminal trials in the United States have, by historical tradition, and under the First Amendment, been deemed

[ 386 Pa. Super. Page 138]

    presumptively open to public scrutiny and this '. . . presumption of openness inheres in the very nature of the criminal trial under our system of justice.'" Commonwealth v. Fenstermaker, 515 Pa. 501, 506, 530 A.2d 414, 417 (1987), quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973, 987 (1980). The purposes of openness have been summarized as follows:

Commonwealth v. Fenstermaker, supra, 530 A.2d at 417, citing Richmond Newspapers, Inc. v. Virginia, supra and Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The openness of criminal trials and the purposes which this openness is intended to serve, are protected not only by tradition, but by provisions in both the United States and the Pennsylvania Constitutions as well. See U.S. Const. Amend. 1; U.S. Const. ...

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