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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 Reed be withdrawn, and that the court be closed to spectators during Mr.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. Amend. 6; U.S. Const. Amend. 14; Pa. Const. Art. 1, sec. 7; Pa. Const. Art. 1, sec. 9; Pa. Const. Art. 1, sec. 11.

In the instant case, appellant only raised a federal Sixth Amendment claim at trial. He has waived any separate claims under other provisions of the United States or Pennsylvania Constitutions relating to the right to a public trial. In noting this fact we do not imply that other constitutional provisions would be construed to provide different protection

[ 386 Pa. Super. Page 139]

    or require different analysis. Rather, we merely note that the issue preserved and the analysis which follows are limited to the consideration of appellant's Sixth Amendment rights.

In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the United States Supreme Court noted the particular interests of criminal defendants which the openness of criminal proceedings mandated by the Sixth Amendment was designed to protect:

The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions . . . .

In addition to ensuring the judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.

467 U.S. at 46, 104 S.Ct. at 2215, 81 L.Ed.2d at 38. The Supreme Court stated further that "there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and the public." Id.

Though the right to an open public trial is central to our system of criminal justice, the right is not absolute. In Waller v. Georgia, supra, the Supreme Court explained:

The right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.

467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed.2d at 38.

Courts have generally held that limitations on public access to criminal proceedings may also be justified by: courtroom capacity limitations; the need to preserve order and decorum; the need to protect victims, witnesses, or jurors from serious embarrassment, trauma or intimidation;

[ 386 Pa. Super. Page 140]

    and, the need to protect youthful spectators from exposure to testimony which might shock, distress, or tend to corrupt morals. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510-12 & n. 10, 104 S.Ct. 819, 824-25 & n. 10, 78 L.Ed.2d 629, 638-39 & n. 10 (1984) (serious embarrassment of jurors during voir dire); Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 600 & n. 5, 100 S.Ct. at 2840 & n. 5, 65 L.Ed.2d at 1005 & n. 5 (capacity limitations, serious embarrassment of youthful victim of a sex crime); Gannett Co. v. DePasquale, supra, 443 U.S. at 388 n. 19, 99 S.Ct. at 2910 n. 19, 61 L.Ed.2d at 626 n. 19 (serious trauma, embarrassment or intimidation of adult or juvenile witnesses or victims; juvenile spectators; order and decorum); Commonwealth v. Berrigan, 509 Pa. 118, 128-33, 501 A.2d 226, 232-34 (1985) (courtroom capacity; juror intimidation; order and decorum); Commonwealth v. Knight, supra, 364 A.2d at 906 & nn. 6-9 (trauma to child witness, order and decorum, juvenile spectators); Commonwealth v. Burton, 459 Pa. 550, 557-59, 330 A.2d 833, 837 (1975) (intimidation of an adult witness); Commonwealth v. Trinkle, 279 Pa. 564, 569-71, 124 A. 191, 193 (1924) (capacity of temporary courtroom at witness' sick bed).*fn1

[ 386 Pa. Super. Page 141]

This case involves an order which directed the court to be cleared during the testimony of a witness who was reported to have claimed that he was intimidated by unnamed persons who sought to prevent or alter his testimony against appellant. In appropriate cases, full or partial closure of criminal proceedings may properly be granted in response to witness intimidation. See Gannett Co. v. DePasquale, supra, 443 U.S. at 388 n. 19, 99 S.Ct. at 2910 n. 19, 61 L.Ed.2d at 626 n. 19 (collecting cases); Commonwealth v. Berrigan, supra, 501 A.2d at 232 (intimidation of jurors during voir dire); Commonwealth v. Burton, supra, 330 A.2d at 837 (defendant's wife and other identified spectators were removed during the testimony of a particular witness to prevent intimidation); Commonwealth v. Principatti, 260 Pa. 587, 598, 104 A. 53, 57-58 (1918) (trial court was held to have erred in holding that it had no power to clear the court during testimony of witness who feared intimidation and retaliation); Commonwealth v. Wright, supra, 388 A.2d at 1086 (courtroom was properly cleared during cross-examination of a visibly traumatized rape victim who had been threatened by members of the defendant's family).

Witness intimidation and retaliation against witnesses are serious crimes which the Commonwealth has clear interest in deterring, detecting, and sanctioning. First and foremost, the Commonwealth has an interest in protecting its citizens from intimidation and injury by criminal conduct. Second, the Commonwealth also has an interest in protecting victims and witnesses from intimidation or retaliation because of the indispensable role they play in the operation of the justice system. In NLRB v. Indiana & M.E. Co., 318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579 (1942), Justice Robert H. Jackson forcefully admonished:

The influence of lawless force directed toward parties or witnesses to proceedings during their pendency is so sinister and undermining of the process of adjudication itself that no court should regard it with indifference or shelter it from exposure and inquiry.

[ 386 Pa. Super. Page 142318]

U.S. at 29, 63 S.Ct. at 405, 87 L.Ed. at 592. Succinctly, if the means of justice are to be preserved and the ends of justice protected, courts must exercise their discretion so as to dispel any belief that intimidation of victims or witnesses will serve the ends to which the intimidation is directed.

Studies in the early part of this decade revealed that witness intimidation was more prevalent and more disruptive of the administration of criminal justice than had generally been assumed. See Connick & Davis, Examining the Problem of Witness Intimidation, 66 Judicature 438, 438-46 (1983); see also Hudson, The Crime Victim and the Criminal Justice System: Time For A Change, 11 Pepperdine L.Rev. 23, 52-55 (1984). Results of studies in various jurisdictions indicated that from 8% to 48% of all complaining witnesses had been subjected to some form of intimidation by the defendant or someone acting on the defendant's behalf. The studies also revealed that while most witnesses who reported intimidation attempts found the official response helpful, many felt that the response was nonetheless inadequate. Connick & Davis, supra, 66 Judicature at 45. One New York study disclosed that even after prior intimidation had been reported, 22% of the victims were again subjected to intimidation; the rate was even higher when, as here, the defendant and the witness knew each other prior to the offense pending before the court (30% versus 12% where the witness and the defendant were strangers to each other). Id.

In 1980 (shortly before the studies discussed above had been reported), Pennsylvania enacted new statutory provisions designed to empower the criminal justice system to respond more effectively to the problem of witness intimidation. See 18 Pa.C.S.A. ยงยง 4951-4956. The basic components of the new provisions were: the regrading of many forms of intimidation as a third degree felony (rather than a simple misdemeanor); providing for protective orders and contempt powers to enforce such orders; and, providing that, any pre-trial release must include conspicuous notice that the terms of the release include, as a matter of law, a

[ 386 Pa. Super. Page 143]

    condition that the defendant neither do, cause to be done, nor permit to be done any act of intimidation or retaliation against the victim or any witness to the crime charged against the defendant who had been granted the pre-trial release. This Commonwealth has thus expressly recognized its vital interest in deterring, detecting, and sanctioning attempts to intimidate victims and witnesses.*fn2

However, a bald assertion of alleged intimidation does not justify the kind of encroachment on a defendant's Sixth Amendment right to a public trial which clearing the courtroom for a witness' testimony entails. To the contrary, specific procedures designed to ensure a proper balancing of competing interests must be followed before even a partial closure for a single witness' testimony may be ordered. In Waller v. Georgia, supra, the Supreme Court held unanimously that:

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is

[ 386 Pa. Super. Page 144]

    essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed.2d at 36, quoting Press Enterprise Co. v. Superior Court, supra, 464 U.S. at 510, 104 S.Ct. at 824, 78 L.Ed.2d at 638.

In the instant case, the trial court made no findings whatsoever regarding the nature, extent, or impact of the alleged intimidation on Mr. Reed. Rather than questioning Mr. Reed himself, the trial court relied entirely on the prosecutor's second-hand, hearsay, rendition of the allegations made by Mr. Reed in explanation of his failure to comply with the court's subpoena. Indeed, the trial court specifically stated:

Let me say this for the record. The Sixth Amendment in my legal opinion, and I so find, the Sixth Amendment, the right to an open trial, has to give way in a situation where a witness claims he was threatened.

I can't determine whether or not he is actually threatened right now, and if he was by whom, but I have to give weight to that kind of statement because we cannot have any witness hurt or have his family threatened or hurt and then later we find that we should have done something.

I believe the Sixth Amendment right has a limitation as to the safety of the family and/or the witness involved.

(N.T. 9/10/86 at 93). (Emphasis added).

We find that the trial court abused its discretion in failing to examine Mr. Reed for itself, in camera if necessary, in order to access his credibility and to determine the nature, extent, and impact of any attempts to intimidate Mr. Reed and prevent or alter his testimony, or to otherwise make specific factual determinations based upon sufficiently reliable information which would support a conclusion that important interests existed which would justify the partial closure ordered. While the right to a public trial may

[ 386 Pa. Super. Page 145]

    certainly bow to interests in protecting witnesses from injury or intimidation in some cases, such an encroachment on a defendant's rights requires, at a minimum, that the trial court first determine whether or not the threat of injury or intimidation in fact exists. See Waller v. Georgia, supra.

Likewise, we find that the trial court abused its discretion in failing to consider alternatives to closure and explain on the record why alternatives would be impractical or inadequate to serve the interest(s) that closure of the trial during Mr. Reed's testimony was intended to protect. See Commonwealth v. Buehl, 316 Pa. Super. 215, 226, 462 A.2d 1316, 1322 (1983). In the instant case, the trial court failed entirely to explain why ordinary or augmented courtroom security measures would not be sufficient to ensure Mr. Reed's safety while he testified in open court, or how closure of the court during his testimony would protect Mr. Reed or his children from retaliation outside of the courtroom.

Closure of the courtroom to the public is not the only, nor necessarily the most effective, response to victim intimidation. In response to reports of intimidation a trial court may, among other options: act to have the parties involved identified and prosecuted; enter appropriate protective orders; issue appropriate admonitions to the defendant and any courtroom spectators regarding applicable criminal sanctions as well as the court's contempt powers which would be invoked in response to any attempt to injure or intimidate a witness; and, direct that appropriate security measures be taken to ensure safety within the courthouse.*fn3 While deference to law enforcement personnel with

[ 386 Pa. Super. Page 146]

    expertise and experience in witness protection would certainly be appropriate in making findings as to what measures are necessary in a particular case to ensure the safety of a witness and to protect a witness from intimidation, closure of the courtroom, nevertheless, should remain the last option considered or employed.

As indicated above, we are well aware of the Commonwealth's vital interests in protecting the safety of witnesses and ensuring the integrity of the criminal justice system. Our conclusion that closure of the court in this case was improper is in no way intended to minimize those interests or suggest that full or partial closure as to some or all members of the public would not be appropriate in response to victim or witness intimidation in other cases. To the contrary, there are certainly circumstances where such drastic measures may be necessary, and therefore constitutionally permissible.*fn4 We simply hold that in the instant case the findings required to justify such an order were not made.*fn5

[ 386 Pa. Super. Page 147]

The denial of a defendant's Sixth Amendment right to an open public trial during the testimony of a Commonwealth witness at trial requires reversal and remand for a new trial. See Waller v. Georgia, supra, 467 U.S. at 49-50, 104 S.Ct. at 2217, 81 L.Ed.2d at 40-41; Commonwealth v. Contakos, supra, 453 A.2d at 582 (per Flaherty, J; Larsen, J, joined); id. (per Roberts, J; O'Brien, C.J, joined); Commonwealth v. Knight, supra, 364 A.2d at 906; Commonwealth v. Johnson, 309 Pa. Super. 367, 376, 455 A.2d 654, 658 (1982). But see Waller v. Georgia, supra, 467 U.S. at 49-50, 104 S.Ct. at 2217, 81 L.Ed.2d at 40-41 (a new trial is not automatically required for improper closure of a suppression hearing, rather a new open suppression hearing must be held, and a new trial will be granted only if the new open suppression hearing results in the suppression of evidence not suppressed in the closed hearing which might reasonably have altered the outcome at trial); Commonwealth v. Murray, supra, 502 A.2d at 629-31 (despite improper closure of the preliminary hearing neither a new trial nor a new preliminary hearing were required; rather, the defect was cure by a fair and open trial, and the availability of an interlocutory appeal would prevent repetition of the error in subsequent proceedings).*fn6

[ 386 Pa. Super. Page 148]


Based upon the foregoing, judgment of sentence is reversed and the case is remanded for a new trial. Jurisdiction relinquished.



Based upon the foregoing, judgment of sentence is reversed and the case is remanded for a new trial. Jurisdiction relinquished.

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