Argued Nov. 27, 2012.
Resubmitted Dec. 17, 2013.
Appeal From the order of the Superior Court entered
May 13, 2011, reconsideration denied on 7-21-2011, at No. 1357 MDA 2010
which Reversed and Remanded the order of the Court of Common Pleas of Berks
County, Criminal Division, at No. CP-06-MD-0000961-2010, dated August 13,
2010. Trial Court Judge: Stephen B. Lieberman, Judge; Mary Jane Bowes,
Sallie Mundy, William Platt, Judges.
Roarke Thomas Aston, Esq., Glenn D. Welsh, Esq., Berks County Public Defender's Office, for Gordon Charles Williams.
John T. Adams, Esq., Kelly S. Kline, Esq., Melissa Joy Noyes, Esq., Ellen Rebecca West, Esq., Berks County District Attorney's Office, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
In this interlocutory matter, Gordon Charles Williams (Appellant) appeals from the Superior Court's order reversing the trial court's determination that he had the
right to present testimony of an expert witness to rebut the Commonwealth's evidence in support of its motion, pursuant to 42 Pa.C.S. § 5985, to allow a child victim to testify at a preliminary hearing via contemporaneous alternative method. We affirm.
On July 1, 2010, the Commonwealth charged Appellant with rape of a child, indecent assault, corruption of minors, endangering the welfare of children, and indecent exposure. The charges all stemmed from Appellant's alleged acts toward an eight-year-old girl, K.H., on January 8, 2010. The Commonwealth immediately filed a motion requesting that the preliminary hearing and courtroom testimony be presented by closed-circuit television, pursuant to 42 Pa.C.S. § 5985, which provides in pertinent part:
Testimony by contemporaneous alternative method.
(a.1) Determination.— Before the court orders the child victim or the child material witness to testify by a contemporaneous alternative method, the court must determine, based on evidence presented to it, that testifying either in an open forum in the presence and full view of the finder of fact or in the defendant's presence will result in the child victim or child material witness suffering serious emotional distress that would substantially impair the child victim's or child material witness's ability to reasonably communicate. In making this determination, the court may do all of the following:
(1) Observe and question the child victim or child material witness, either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting.
(a.2) Counsel and confrontation.
(2) If the court hears testimony under subsection (a.1)(2), the defendant, the attorney for the defendant and the attorney for the Commonwealth have the right to be present.
42 Pa.C.S. § 5985.
In its motion, the Commonwealth averred that K.H. had indicated that she
would be too afraid of Appellant to talk about what had happened to her if he were present in the courtroom. At a hearing on the motion, the trial court stated that it " need[ed] to talk to a professional." Notes of Testimony (" N.T." ), 7/19/10, at 3; see also id. at 5 (wherein the court clarified that " it would be beneficial to have ... professional psychological or psychiatric testimony as well as observations of the alleged victim" ). The court continued the hearing until July 28, 2010, at which time the Commonwealth proffered as its only witness Dr. Allison Hill, a licensed psychologist and counselor who had been working weekly with K.H. since January 2010. N.T., 7/28/10, at 6, 10. Dr. Hill opined that the child would not be able to testify in the presence of Appellant, basing her opinion on her conversations with K.H. and on her observations that K.H. had been unable to talk about what had happened to her or about the case for months, even in a non-threatening situation. Id. at 9-10.
Following cross-examination of Dr. Hill, defense counsel sought the opportunity to have his own expert review Dr. Hill's testimony. Id. at 15. Even though the trial court concluded that Dr. Hill's testimony was " extremely credible," and found that testifying in Appellant's presence would be " a traumatic experience [and] would be extremely harmful to [K.H.]," it nevertheless granted the defense motion and continued the hearing. Id. at 15-16. Subsequently, Appellant filed a motion to allow for a psychological examination of K.H. by his expert, Dr. Richard Small, in order to enable Dr. Small to render an opinion as to K.H.'s ability to testify in open court. Specifically, Appellant claimed that, by invoking Section 5985, the Commonwealth had " placed [K.H.'s] psychological status at issue and just as the Commonwealth would be entitled to seek an evaluation by [its] own expert if [Appellant] alleged incompetency or lack of criminal responsibility[,] so too [Appellant's] expert should be given access to [K.H.] in this circumstance." Motion to Allow for Psychological Examination of the Alleged Victim, filed 8/12/10, at ¶ 8.
At a hearing on August 13, 2010, the court inquired as to whether Dr. Small could obtain the information he needed by meeting with Dr. Hill. N.T., 8/13/10, at 3; see id. at 5 (wherein the court stated that it did not " see why [Dr. Small] can't get the information he wants directly from [Dr.] Hill. Of course for her to be able to talk to [Dr.] Small it'll have to be a proper waiver and consent by the mother to release the information." ). The court did not grant the defense motion to allow Dr. Small to meet with K.H., but instead issued the following order:
[T]he court directs the District Attorney's Office to discuss with the alleged victim's mother that she provide all appropriate releases and authorization for the child's treating psychologist [Dr. Hill] to discuss all aspects of the child's diagnosis, prognosis and treatment to date with Dr. Richard Small.
Trial Court Order, dated 8/13/10; N.T., 8/13/10, at 7.
In the trial court's subsequent written expression, it further explained its order as follows:
[I]n an effort to perhaps avoid the necessity of Dr. Small personally interviewing the child, this court entered an Order compelling the child's mother to authorize Dr. Hill to provide documents, as well as discuss her diagnosis with the defense expert [Dr. Small].
Trial Court Statement in lieu of Opinion, dated 9/23/10, at 1-2.
The trial court concluded that Appellant had the right to present expert testimony to rebut the Commonwealth's evidence, based upon its incorrect understanding of
the nature and extent of Appellant's right to confront witnesses. As stated by the court:
The right of the accused to confront witnesses against him is a right with roots dating back to English common law and Roman law. It is inconceivable to this court that a defendant could be denied that right without at least being given the opportunity to present his own expert testimony concerning a complainant's psychological state, especially where the Commonwealth is the very party putting that psychological state at issue.
Id. at 4.
The Commonwealth appealed to the Superior Court, which reversed based on its reading of the statute. Appellant then filed a petition for allowance of appeal in this Court, which we granted, on the following issue:
Whether a Defendant has a right to present informed expert testimony to rebut the Commonwealth's evidence in support of its motion pursuant to 42 Pa.C.S.A. § 5985 to allow a child witness to testify in a room separate from courtroom proceedings?
616 Pa. 353, 47 A.3d 1173 (2012).
The issue presented is a question of law, and hence our standard of review is de novo and our scope of review is plenary. Commonwealth v. Crawley, 592 Pa. 222, 924 A.2d 612, 614 (2007).
Under both the United States Constitution and the Pennsylvania Constitution, the right to confrontation specifically guarantees a person accused of a crime the right " to be confronted with the witnesses against him." United States Constitution, Sixth Amendment; Pennsylvania Constitution, Art. I, § 9. As the United States Supreme Court has explained, the right to confrontation is basically a trial right, and includes both the opportunity for cross-examination of the witnesses and the occasion for the jury to consider the demeanor of the witnesses. Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). " The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).
The high Court has held that, although the Confrontation Clause of the Sixth Amendment reflects a preference for face-to-face confrontation, face-to-face confrontation is neither an absolute nor an indispensable requirement. Id. at 844-50, 110 S.Ct. 3157. When necessary to further an important public policy and where the reliability of the testimony in question is otherwise assured, the preference for face-to-face ...