Com. v. Atkinson

• Decision Date: 10 December 2009
• Docket Number: No. 1531 MDA 2008,1531 MDA 2008
• Citation: 2009 PA Super 239,987 A.2d 743
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jaquil ATKINSON, Appellant.
• Court: Pennsylvania Superior Court

987 A.2d 743

2009 PA Super 239

COMMONWEALTH of Pennsylvania, Appellee v. Jaquil ATKINSON, Appellant.

No. 1531 MDA 2008

Superior Court of Pennsylvania.

Argued August 19, 2009.

Filed December 10, 2009.

Reargument Denied February 16, 2010.

Joseph M. Cosgrove, Forty Fort, for appellant.

Frank P. Barletta, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

BEFORE: GANTMAN and FREEDBERG, JJ., and McEWEN, P.J.E.

OPINION BY FREEDBERG, J.:

¶ 1 This matter is before the Court on Jaquil Atkinson's appeal from an order entered by the Court of Common Pleas of Luzerne County on August 30, 2007, which denied Appellant's pre-trial motion for suppression of evidence and to quash the information. We affirm the suppression court's order.

¶ 2 A criminal complaint charging manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance; use or possession with intent to use drug paraphernalia; conspiracy to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance; possession of a controlled substance; and tampering with or fabricating physical evidence was filed against Appellant on January 31, 2005. After various delays and continuances for over a year, a hearing on Appellant's pre-trial motion was held June 28, 2007. At the hearing, the Commonwealth presented testimony from an alleged co-conspirator, who was incarcerated in state prison, by use of a two-way videoconferencing system. During the hearing, Appellant objected because the witness was not present in the courtroom to testify. He renewed his objection when the witness was allowed to identify Appellant.

¶ 3 On August 30, 2007, the suppression court denied Appellant's motion. On September 7, 2007, the suppression court certified for immediate appeal Appellant's issue regarding the use of the videoconferencing system to present testimony, finding that it was a "controlling question of law as to which there is a substantial question for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter." Suppression Court Order, 9/7/2007, citing 42 Pa.C.S.A. § 702(b). On November 21, 2007, this Court denied Appellant's petition for permission to appeal. Appellant appealed to the Pennsylvania Supreme Court, which granted his petition for allowance of appeal on July 11, 2008. The Supreme Court remanded the matter to this Court, ordering us to address the following issue: "Whether the trial court erred in finding that testimony of a prosecution witness and his identification of [Appellant] at a suppression hearing via videoconferencing equipment was not prejudicial to [Appellant's] right to confrontation and was thus constitutional?"

¶ 4 The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ..."¹ Article 1, Section 9 of the Pennsylvania Constitution provides: "In all criminal prosecutions the accused hath a right ... to be confronted with the witnesses against him. ..."² With regard to the Confrontation Clause, the Pennsylvania Constitution provides a criminal defendant with the same protection as the Sixth Amendment; thus, we will address Appellant's challenges under each Constitution simultaneously. See Commonwealth v. Geiger, 944 A.2d 85, 97 n. 6 (Pa.Super.2008), appeal denied 600 Pa. 738, 964 A.2d 1 (2009). When reviewing a question of law, 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).

¶ 5 The United States Supreme Court has described the purpose of the Confrontation Clause as follows:

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. The word "confront," after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:

"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox [v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 39 L.Ed. 409 (1895)].

As this description indicates, the right guaranteed by the Confrontation Clause includes not only a "personal examination," 156 U.S. at 242 , but also "(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the `greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." [California v.] Green, [399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)] (footnote omitted).

The combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.

Maryland v. Craig, 497 U.S. 836, 845-846, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). See also Commonwealth v. Robins, 571 Pa. 248, 812 A.2d 514, 521 (2002).

¶ 6 The right to confrontation applies at a suppression hearing, as in the instant matter. In Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990) (plurality opinion), cert. denied, 499 U.S. 907, 111 S.Ct. 1108, 113 L.Ed.2d 217 (1991), it was stated that "the Pennsylvania Constitution mandates a criminal defendant's right to confrontation and cross-examination at the preliminary hearing." Id. at 175. See also Commonwealth v. Hanawalt, 419 Pa.Super. 411, 615 A.2d 432, 436 (1992) (discussing Verbonitz). The Verbonitz plurality relied on Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), in which the United States Supreme Court found that while the rights to confrontation and cross-examination do not apply in a pre-trial detention hearing, "when a pretrial hearing takes the form of a preliminary hearing and thus, adversary procedures are used, `[t]he importance of the issue to both the State and the accused justifies the presentation of witnesses and full exploration of their testimony on cross-examination'." Verbonitz, 581 A.2d at 175, citing Pugh, 420 U.S. at 120, 95 S.Ct. 854.

¶ 7 As with a preliminary hearing, a suppression hearing is an adversarial proceeding and a critical stage in a criminal proceeding. "A critical stage is a point in the proceeding at which substantive rights may be preserved or lost. There is no doubt that a suppression hearing is a critical stage since, if the suppression court determines that evidence is admissible, that determination is final, conclusive and binding at trial." Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101, 105 (1978) (internal citations omitted). Numerous constitutional guarantees apply to a suppression hearing because of its critical nature, including the right of the defendant to be present, Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440, 445 (1981), the right of the public to attend, Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and the right to counsel, Holzer, 389 A.2d at 105. In reviewing a case concerning the right of the defendant to be present, this Court stated that identification testimony given at a suppression hearing "was testimony which tended to show that the appellant had done the acts for which he was being tried, and therefore, a critical stage in the adjudicatory process for the accused." McLaurin, 437 A.2d at 444. The Court emphasized that the "denial of a motion to suppress evidence is a crucial step in a criminal prosecution: it may often spell the difference between conviction or acquittal." Id. at 445 (citations omitted). A suppression hearing is clearly an adversarial and critical stage of the criminal process, and it has many similarities to a bench trial. Commonwealth v. Murray, 348 Pa.Super. 439, 502 A.2d 624, 626-629 (1985). Because of the significance of the issues involved and their impact on the outcome of the prosecution, a defendant's confrontation clause rights apply during a suppression hearing.

¶ 8 In Maryland v. Craig, the United States Supreme Court considered whether the Confrontation Clause of the Sixth Amendment prohibited permitting child victims to testify by one-way closed circuit television. Id. at 840, 110 S.Ct. 3157. The defendant argued that the Sixth Amendment required face-to-face confrontation and that anything less failed to satisfy the constitutional guarantee. However, the majority stated:

We observed in Coy v. Iowa [487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988)] that "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." This interpretation derives not only from the literal text of the Clause, but also from our understanding of its historical roots.

We have never held, however, that the Confrontation Clause guarantees criminal...