Com. v. Louden

• Decision Date: 11 March 1994
• Citation: 536 Pa. 180,638 A.2d 953
• Parties: , 62 USLW 2600 COMMONWEALTH of Pennsylvania, Appellant, v. Larry E. LOUDEN, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Helen LOUDEN, Appellee.
• Court: Pennsylvania Supreme Court

Page 953

638 A.2d 953

536 Pa. 180, 62 USLW 2600

COMMONWEALTH of Pennsylvania, Appellant, v. Larry E. LOUDEN, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. Helen LOUDEN, Appellee.

Supreme Court of Pennsylvania.

Argued May 7, 1991.

Decided March 11, 1994.

[536 Pa. 181] Bradford H. Charles, Dist. Atty., for appellant.

Robert Barr Keys, Lebanon, for appellee.

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

OPINION

PAPADAKOS, Justice. ^*

In this appeal, we must address the issue left unresolved in our recent decisions of Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991) and Commonwealth v. Lohman, 527 Pa. 492, 594 A.2d 291 (1991). In both Ludwig and Lohman, we held that the use of closed circuit television to transmit the testimony of a witness violated Article I, Section 9 of the Pennsylvania Constitution. However, neither of those appeals addressed the constitutionality of 42 Pa.C.S. §§ 5984 or 5985(a) since both sections were adopted subsequent to the trials in Ludwig and Lohman. This appeal presents us with the opportunity to address specifically the constitutionality of both provisions. Because we find that §§ 5984 and 5985(a) fail to limit the use of video tape in closed circuit television to those instances in which the accused's right to face to face confrontation has been otherwise satisfied, we must hold both provisions unconstitutional. Subjective fears of the witness, without more, are insufficient to restrict the accused's constitutional right to confront a witness face to face. Furthermore, in light of our disposition of the constitutional issue requiring a new trial for the Appellees, we must address the issue raised by the Commonwealth regarding the suppression of the tapes recorded from the residence adjacent to Appellees' residence.

In July of 1986, Appellee-wife, Helen Louden (hereinafter referred to as wife), applied for and was granted state certification to operate a day care center in her home. At the time of certification, wife resided with her Appellee-husband, Larry E. Louden, Sr. (hereinafter referred to as husband), in one-half of a double house with a common party wall. The husband's mother and step-father (Kuloviches) resided in the other half of the double house. Because Mrs. Kulovich was ill, husband's sister, Carol Wolfe, frequented the Kulovich home daily. Beginning in July of 1986, while visiting the Kulovich home, Ms. Wolfe began hearing, from the adjoining house, adults using obscene language, directing obscenities at particular children, and arguing over explicit sexual issues. Furthermore, Ms. Wolfe would hear threats being made at the children followed by smacking noises and children crying and screaming. At some undetermined point of time, the children who attended the Appellees' day care center began to misbehave and to act violently. Children also became clingy and withdrawn, and extremely wary of adult males. Some children also experienced nightmares.

During the fall of 1986, Ms. Wolfe became very concerned about the welfare of the children visiting the day care center and contacted various state agencies and employees. In addition, she contacted three police officers of the North Cornwall Township Police Department, Officers Tomkins, Basti and Wlazlak. Because Ms. Wolfe was advised that no action could be taken against the Appellees unless parents complained or a child was hurt, Ms. Wolfe decided to use a tape player to obtain additional evidence which would substantiate her complaints. As such, she placed her tape recorder in the hallway of her mother's home on those occasions when she heard activity which caused her to become concerned for the welfare of the children attending Appellees' day care center.

Thereafter, based upon Ms. Wolfe's observations and independent police observations, the Appellees were arrested for endangering the welfare of a child, 18 Pa.C.S. § 4304. Both the Commonwealth and the Appellees filed pre-trial motions. In their motion, the Appellees requested that the tape recordings made by Ms. Wolfe be suppressed, while the Commonwealth sought to have three child witnesses testify by means of videotape depositions under 42 Pa.C.S. § 5985.

As to Appellees' suppression motion, the trial court initially denied the motion but upon reconsideration and in light of the Superior Court's decision in Commonwealth v. Henlen, 368 Pa.Super. 1, 533 A.2d 457 (1987), the trial judge suppressed the tape recordings. The Commonwealth did not appeal this ruling since the trial judge's determination did not effectively put the Commonwealth out of court. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

PART A

CONSTITUTIONALITY OF 42 PA.C.S. §§ 5984

and 5985

With respect to the Commonwealth's request to videotape the testimony of three child witnesses, ages 7 to 9, the trial court conducted a hearing on April 26, 1988. During that hearing, the parents of those three children as well as a child therapist testified. The parents complained that their children should not have to testify at trial before the jury and the Appellees because their children would be intimidated by the presence of strangers, such as the jury and spectators, as well as the Appellees. The therapist, who was treating at least one of the child witnesses, testified that if required to testify in open court, the children would have great difficulty speaking in a large room with many strangers. The therapist opined that since the jurors would be strangers, closing the court to all spectators would not alleviate the difficult time the children would have testifying before a jury. In essence, the therapist testified that:

The presence of people they do not know and who might challenge their opinions and feelings might make the children extremely anxious.

N.T., April 26, 1988, at p. 22.

Furthermore, the wife testified at the April 26, 1988, hearing that she had seen several children at monthly Cub Scout pack meetings and even supervised them at pack activities. On those occasions, the children did not demonstrate any fear, hostility or anxiety towards either of the Appellees.

At the conclusion of the testimony of the parents, therapist and wife, counsel for the wife requested that the trial court individually interview each prospective child witness in an in camera proceeding to determine, what, if any, specific harm would occur as a result of any child testifying in open court. The trial court declined to grant this request.

Notwithstanding the trial court's failure to interview or observe each prospective child witness, the trial court found "good cause" as defined under §§ 5984 and 5985 of the Act to permit the children to testify by videotape or closed circuit television.

In accordance with the trial court's ruling and after the trial commenced, testimony of each child was taken by videotape in a room at the Lebanon County Children and Youth Services offices with only the child, one parent, a court clerk, a court stenographer, defense counsel, the district attorney and trial judge present. Although the Appellees themselves were not present, they were seated in an adjacent room. The child witness could not see the Appellees but the Appellees could observe the child witness and the events from a closed circuit television. Finally, at all times, the Appellees were able to communicate with their attorneys. The videotapes were then shown to the jury during the Commonwealth's case in chief.

On May 8, 1988, the jury convicted Appellees for endangering the welfare of a child. Appellees filed a motion in arrest of judgment and for new trial. Concluding that the videotape procedure followed by the trial court infringed upon the Appellees' "right to confront" their accusers, the trial court granted Appellees a new trial. We then accepted jurisdiction under 42 Pa.C.S. § 722(6) because the trial court declared an act of the General Assembly to be unconstitutional.

On February 21, 1986, the legislature enacted two provisions relating to videotaped depositions and closed circuit testimony of a child victim or a child material witness. Both provisions permitted the avoidance of direct, live testimony upon "good cause shown".

§ 5984. Videotaped depositions

(a) Depositions--In any prosecution involving a child victim or child material witness, the court may, for good cause shown, order the taking of a videotaped deposition of the victim or material witness on motion of the child through his parent or guardian, or where applicable, the child's advocate or the attorney for the Commonwealth. Such videotaped depositions, if taken for use at the preliminary hearing, may be used only at the preliminary hearing in lieu of the testimony of the child. If such videotaped deposition is taken for use at trial, it may be used only at the trial in lieu of the testimony of the child. The depositions shall be taken before the court in chambers or in a special facility designed for taking the depositions of children. Only the attorneys for the defendant and for the Commonwealth, persons necessary to operate the equipment, a qualified shorthand reporter and any person whose presence would contribute to the welfare and well-being of the child, including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his deposition. The court shall permit the defendant to observe and hear the testimony of the child in person but shall ensure that the child cannot hear or see the defendant. Examination and cross-examination of the child shall proceed in the same manner permitted at trial. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense.

42 Pa.C.S. § 5984.

* * * * * *

§ 5985. Testimony by closed-circuit television

(a) Closed-circuit television.--The child victim or material witness,...