Borden, In Interest of

• Decision Date: 13 January 1988
• Citation: 376 Pa.Super. 468,546 A.2d 123
• Parties: In the Interest of George BORDEN. Appeal of George BORDEN, Commonwealth of Pennsylvania.
• Court: Pennsylvania Superior Court

Page 123

546 A.2d 123

376 Pa.Super. 468

In the Interest of George BORDEN.

Appeal of George BORDEN, Commonwealth of Pennsylvania.

Superior Court of Pennsylvania.

Submitted June 22, 1987.

Filed Jan. 13, 1988.

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

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

Before DEL SOLE, MONTEMURO and HESTER, JJ.

HESTER, Judge:

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.

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 Pa.Super. 431, 434-35, 447 A.2d 1043, 1045 (1982). However, we recently held that

[t]he right to confront does not confer upon an accused the right to intimidate. The reliability of an abused child's testimony does not depend upon his or her ability to withstand the psychological trauma of testifying in a courtroom.... The reliability of the child's testimony can be assured in such cases by requiring the child to submit to cross-examination while the jury and the accused observe the demeanor of the witness as he or she responds to questions. In the case sub judice, this was accomplished by closed circuit television.

Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (Pa.Super., 1987) at 463.

Although the victim in Ludwig had previously described the sexual acts her father had perpetrated upon her to social workers and law enforcement officials, she was fearful of testifying in her father's presence. Therefore, the trial court granted a Commonwealth request to remove the victim from the courtroom and present her testimony via closed circuit television. We held that the trial court in Ludwig did not abuse its discretion, since it "did nothing more than adopt modern technological means to allow the jury to hear testimony which otherwise would have been unavailable. The use thereof did not violate the defendant's right to confront the witnesses against him. It served only to enhance the fact-finding process." Ludwig, supra, at 464. Therefore, appellant's argument that the use of a closed circuit television during a criminal proceeding violates his constitutional rights of confrontation and cross-examination of witnesses is meritless.

Appellant also argues that he was denied his right to due process in that the trial court ordered the use of closed circuit television and removed him from the courtroom sua sponte. We agree.

Pa.R.Crim.P. 1117(a) provides:

Rule 1117. Presence of the Defendant

(a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict.

It is well settled that "a defendant charged with a felony has a constitutionally protected right to be present at every stage of a trial, i.e., from the arraignment to the rendition of the verdict." Commonwealth v. McLaurin, 292 Pa.Super. 392, 395, 437 A.2d 440, 442 (1981), citing Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892). Nevertheless, this "right can be relinquished, e.g., it can be waived by one's words or actions." McLaurin, supra, 292 Pa.Super. at 396, 437 A.2d at 442. In other words, "a defendant may be removed from the courtroom during his trial when his conduct is so disruptive that the trial cannot proceed in an orderly manner." Commonwealth v. Henderson, 275 Pa.Super. 350, 356, 418 A.2d 757, 760 (1980).

The United States Supreme Court has long recognized that a defendant needs to be present at any proceeding that "bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend." Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), quoted in McLaurin, supra, 292 Pa.Super. at 397, 437 A.2d at 443. Therefore, a defendant's right to be present at all stages of his trial does not extend to all procedural matters in preparation for trial such as preliminary pretrial motions and arguments on matters of law, especially where his absence causes no prejudice, but his presence is required when the testimony of witnesses is being given. Id.

Although appellant is a juvenile and is not guaranteed all of the same rights as adult criminal defendants, e.g., trial by jury, we are guided by the principle in Gault which establishes that "[a] proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution." Gault, supra, 387 U.S. at 37, 87 S.Ct. at 1448. Therefore, we hold that a juvenile subject to delinquency proceedings has the right to be present throughout his adjudicatory hearing. ¹

Inasmuch as appellant was ordered sua sponte by the trial court to be removed from the courtroom without any misconduct on his part, we hold that he has been denied his right to due process. Initially, we note that Ludwig does not require a different result. In Ludwig, it was the child witness who was removed from the courtroom, not the accused. Secondly, appellant's removal did not afford him a full opportunity to maintain unrestricted communication with his counsel. The record is not clear as to what type of audio device was provided to allow appellant to communicate with his counsel, although a reference in the record suggests it may have been a telephone. Whatever device was used, however,...