Com. v. Lohman

Decision Date10 May 1991
Citation527 Pa. 492,594 A.2d 291
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. John Richard LOHMAN, Appellant (Two Cases).
CourtPennsylvania Supreme Court

Merritt E. McKnight, Dist. Atty., Donna L. Rae, Asst. Dist. Atty., Marianne E. Cox, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

ZAPPALA, Justice.

This appeal, like its companion case, Commonwealth v. Ludwig, --- Pa. ----, 594 A.2d 281 also decided today, raises the issue of whether a child sex abuse victim, without appearing in the courtroom, may testify against a defendant via closed-circuit television without violating the confrontation clauses of the United States Constitution and the Pennsylvania Constitution. Since the procedure used in this case, like that used in Commonwealth v. Ludwig, supra, is violative of the appellant's right of confrontation guaranteed by Article 1 § 9 of our State Constitution, we reverse.

The appellant, John Richard Lohman, was charged in two separate complaints with raping his fourteen-year-old stepdaughter and with committing involuntary deviate sexual intercourse and incest with his fourteen-year-old son. In separate jury trials, he was convicted of these offenses.

In the trial of the first case, because the girl "was reluctant to testify against her stepfather," Commonwealth v. Lohman, 370 Pa.Super. 404, 409, 536 A.2d 809, 811 (1988), she was permitted to give her testimony without facing the defendant in the courtroom during the trial. Instead, she testified in the judge's chambers in the presence of the judge, the prosecuting attorney, and the defense attorney. A camera operator was also present to run video and audio equipment which transmitted the proceedings to the jury in the courtroom. "The appellant, unbeknownst to the jury, was sequestered in another room and was able to communicate with counsel via direct telephone line," Id., while he saw and heard the proceedings through the closed-circuit television setup.

The trial of the second case was conducted in identical fashion. The appellant's fourteen-year-old son and his thirteen-year-old brother, a material witness, testified in the judge's chambers in the presence of the judge, the prosecutor, and defense counsel, while the jury observed the proceedings on a video monitor, as did the appellant in a separate room. A videotape recording of the testimony in both trials was made part of the record, and has been reviewed by this Court.

In Commonwealth v. Ludwig, supra, we held that the confrontation clause of the Pennsylvania Constitution does not permit the use of closed-circuit television testimony by an alleged child abuse victim because it infringed upon a defendant's constitutional rights to meet a witness face-to-face. Although the result may be harsh, we cannot permit such a result to cause us to ignore the plain meaning of Article I, Section 9 of our State Constitution. As we stated in Ludwig:

We are cognizant of society's interest in protecting victims of sexual abuse. However, that interest cannot be preeminent over the accused's constitutional right to confront the witnesses against him face to face. The record in this case does not disclose any conduct by the appellant during the proceedings that would give rise to the need to isolate the witness.

Accordingly, we reverse the orders affirming the appellant's judgments of sentence and remand for new trials.

FLAHERTY, J., files a concurring opinion.

McDERMOTT, J., files a concurring and dissenting opinion.

NIX, C.J., files a dissenting opinion.

FLAHERTY, Justice, concurring.

I concur in the result reached by the majority, and would remand the case for new trials. I adhere, however, to the views expressed in my dissenting opinion in the companion case, Commonwealth v. Ludwig, --- Pa. ----, 594 A.2d 281 (1991), also decided today. I believe the court decided that case incorrectly.

Nevertheless, this court has now held that the Pennsylvania Constitution prohibits deprivation of a defendant's right to meet his accusers face to face, at least if the deprivation is based only on the subjective fears of the accusers. That holding clearly governs these cases. Not only were the accusers segregated from the jury which remained in the courtroom, but the defendant was segregated in a third room from both the accusers and the jury. These procedures were instituted due to mere "reluctance" of the accusers to testify against the defendant. This violates not only the Pennsylvania Constitution as interpreted in Ludwig, supra, but the United States Constitution as well. See Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

I therefore concur in the result reached by the majority.

McDERMOTT, Justice, concurring and dissenting.

I join the majority in these cases because counsel was separated from the appellants and the appellants from the jury with no means of communication between them except telephone. I am not prepared to hold that reasonable restrictions cannot be imposed in cases to free the testimony of children from the possibile intimidating presence of their alleged molester. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

NIX, Chief Justice, dissenting.

I dissent. For the reasons expressed in my dissenting opinion in Commonwealth v. Ludwig, --- Pa. ----, ----, 594 A.2d 281, ---- (1991), I would permit the closed-circuit procedure to be utilized where the trial court makes a case-specific finding of necessity for...

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7 cases
  • Saldana v. State
    • United States
    • Wyoming Supreme Court
    • 28 d4 Janeiro d4 1993
    ...regarding the right of confrontation, U.S. Const. amend. VI, see Com. v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991) and Com. v. Lohman, 527 Pa. 492, 594 A.2d 291 (1991) (closed circuit television disproved in contravention to right of confrontation). In a somewhat similar constitutional exami......
  • R. v. Com., Dept. of Public Welfare
    • United States
    • Pennsylvania Supreme Court
    • 4 d2 Janeiro d2 1994
    ...by relying, in part, on this Court's decisions in Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991), and Commonwealth v. Lohman, 527 Pa. 492, 594 A.2d 291 (1991). However, those cases do not control the instant matter because in each one discussed the constitutional protections that ......
  • Commonwealth v. Tighe
    • United States
    • Pennsylvania Supreme Court
    • 19 d3 Fevereiro d3 2020
    ...witness violated Article I, Section 9 of Pennsylvania Constitution's face-to-face confrontation right guarantee); Commonwealth v. Lohman , 527 Pa. 492, 594 A.2d 291 (1991) (same; companion case to Ludwig ); Commonwealth v. Louden , 536 Pa. 180, 638 A.2d 953 (1994) (Legislature's enactment o......
  • Commonwealth v. Shearer
    • United States
    • Pennsylvania Supreme Court
    • 15 d4 Setembro d4 2005
    ...that this Commonwealth maintains a deeply rooted public policy of protecting minor victims of crime, see, e.g., Commonwealth v. Lohman, 527 Pa. 492, 594 A.2d 291, 292 (1991) (recognizing "society's interest in protecting victims of sexual abuse"), and the Commonwealth's appeal raises potent......
  • Request a trial to view additional results

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