Com. v. Ludwig

• Decision Date: 08 September 1987
• Docket Number: No. 2883,2883
• Citation: 366 Pa.Super. 361,531 A.2d 459
• Parties: , 56 USLW 2168 COMMONWEALTH of Pennsylvania, Appellee, v. Paul LUDWIG, Appellant. Phila. 1985.
• Court: Pennsylvania Superior Court

Page 459

531 A.2d 459

366 Pa.Super. 361, 56 USLW 2168

COMMONWEALTH of Pennsylvania, Appellee, v. Paul LUDWIG, Appellant.

No. 2883 Phila. 1985.

Superior Court of Pennsylvania.

Argued March 9, 1987.

Filed Sept. 8, 1987.

William K. Sayer, Asst. Public Defender, Stroudsburg, for appellant.

E. David Christine, Jr., Asst. Dist. Atty., E. Stroudsburg, for Com., appellee.

Before CIRILLO, President Judge, and BROSKY, WIEAND, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, POPOVICH and JOHNSON, JJ.

WIEAND, Judge:

The significant issue in this appeal is whether the constitutional right of confrontation is violated when a child abuse victim is permitted to testify against his or her alleged abuser via closed circuit television.

On August 9, 1984, Paul Ludwig was arrested and charged with sexually abusing his six year old daughter. A preliminary hearing was held on August 28, 1984. Prior to the start of the hearing the victim was interviewed by the assistant district attorney and was able to discuss the details of the abuse in a manner which was consistent with prior reports which she had given. When she was called upon to give testimony at the preliminary hearing, however, the child froze emotionally and was unable to testify in the presence of her father. The preliminary hearing was continued, and leave of court was obtained to present the child's testimony via closed circuit television. At trial, the child was also permitted to testify via closed circuit television. By this procedure, the child was able to give testimony in a separate room, from where her testimony was captured and transmitted by closed circuit television to the courtroom. Thus, the defendant was able to observe the witness fully as she testified, and his right of cross-examination was preserved inviolate. The jury, moreover, was able to observe the witness fully as she answered questions put to her during direct and cross-examination. The only difference between the procedure adopted by the trial court in this case and the customary means of receiving testimony from a witness in a courtroom was that the child victim was situated in a separate room and was not required to look at the defendant as she testified.

Ludwig was found guilty of rape, ¹ involuntary deviate sexual intercourse, ² incest, ³ corruption of minors, ⁴ and endangering the welfare of a child. ⁵ Post-trial motions were denied; Ludwig was sentenced; and this direct appeal followed. Ludwig's primary contention on appeal is that the right to confront his accuser, as guaranteed by the United States and Pennsylvania Constitutions, was violated when his accuser was permitted to testify at trial via closed circuit television. We reject this argument. ⁶

The Sixth Amendment of the Constitution of the United States provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him..." Similarly, the Pennsylvania Constitution, in Article 1, § 9, guarantees a person accused in a criminal prosecution the right "to meet witnesses face to face." Confrontation " '(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 discovered for the discovery of truth"; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility.' " Lee v. Illinois, 476 U.S. 530, ----, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526 (1986), quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970) (footnote omitted).

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court explained the purpose for confrontation as follows:

"The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." ... 5 J. Wigmore, Evidence, § 1395, p. 123 (3rd ed. 1940).

Id. at 315-316, 94 S.Ct. at 1110, 39 L.Ed.2d at 353 (emphasis omitted). See also: California v. Green, supra 399 U.S. at 166, 90 S.Ct. at 1939, 26 L.Ed.2d at 501 ("[T]he right of cross-examination ... provides substantial compliance with the purposes behind the confrontation requirement."). A secondary purpose of the confrontation clause is that:

the judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness... This secondary advantage, however, does not arise from the confrontation of the opponent and the witness; it is not the consequence of those two being brought face to face. It is the witness' presence before the tribunal that secures the secondary advantage...

5 J. Wigmore, Evidence, § 1395 at 153-154 (Chadbourn rev. 1974). See: Mattox v. United States, 156 U.S. 237, 242-244, 15 S.Ct. 337, 339-340, 39 L.Ed. 409, 411 (1895); United States v. Caputo, 758 F.2d 944, 950 (3d Cir.1985).

The Supreme Court of the United States has said that while the Sixth Amendment reflects a preference for a face to face confrontation at trial, the preference is not absolute and inelastic. On the contrary, the confrontation clause permits several well recognized exceptions. For example, the confrontation clause of the United States Constitution does not preclude the use of hearsay evidence in criminal trials under circumstances which otherwise render such evidence reliable, i.e., where it bears sufficient "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980) (involving former testimony of unavailable witness). See: United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (statement of co-conspirator); Ohio v. Roberts, supra (former testimony); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (statement of co-conspirator); Mattox v. United States, supra (former testimony); Williams v. Melton, 733 F.2d 1492 (11th Cir.) (out-of-court statements of witnesses falling under res gestae exception), cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 508 (1984); Haggins v. Warden, 715 F.2d 1050 (6th Cir.1983) (excited utterance), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984); United States v. Peacock, 654 F.2d 339 (5th Cir.1981) (statement of co-conspirator), cert. denied, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 344 (1983).

Similarly, appellate courts in Pennsylvania have held that "[t]he Pennsylvania Constitution guarantees an accused the right to confront and cross-examine witnesses." Commonwealth v. McCloud, 457 Pa. 310, 311, 322 A.2d 653, 655 (1974). See also: Commonwealth v. Coldsmith, 176 Pa.Super. 283, 286, 106 A.2d 649, 650 (1954) ("The right 'to meet the witnesses face to face' is intended to secure the right of cross-examination."). "Although a fundamental right, this right of confrontation is not absolute." Commonwealth v. McCloud, supra 457 Pa. at 312, 322 A.2d at 655. Thus, the right of confrontation does not prevent the use of videotape depositions of a witness who is unavailable for trial, where the depositions were taken in the presence of the accused and the witness was subjected to cross-examination. Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977). Similarly, because the right of confrontation is not absolute, certain hearsay evidence has been held admissible when supported by sufficient indicia of reliability. See: Commonwealth v. Thomas, 443 Pa. 234, 279 A.2d 20 (1971). See also: Commonwealth v. Pinkins, 514 Pa. 418, 525 A.2d 1189 (1987) (statement made by co-conspirator during course of conspiracy); Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981) (same); Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986) (excited utterance). So also, business records, if properly verified, are admissible against an accused even though he does not have the right to confront the person who was the source of the information therein contained. See: Commonwealth v. Scatena, 332 Pa.Super. 415, 438, 481 A.2d 855, 866-867 (1984), rev'd on unrelated grounds, 508 Pa. 512, 498 A.2d 1314 (1985). Public records have also been held admissible under certain circumstances without violating the confrontation clause of the Pennsylvania Constitution. See: Commonwealth v. Coldsmith, supra. And finally, testimony of witnesses who are deceased or otherwise unavailable may be received if given at a prior trial where the witness was subjected to cross-examination. See: Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977); Commonwealth v. Jones, 344 Pa.Super. 420, 496 A.2d 1177 (1985). These decisions disclose that the courts of this Commonwealth have never embraced the view that the right of confrontation unconditionally mandates that all witnesses offering evidence against an accused be required to testify in his presence or confront him eyeball to eyeball.

The courts in other jurisdictions have also rejected such a restrictive view. In State v. Sheppard, 197 N.J.Super. 411, 484 A.2d 1330 (1984), the New Jersey Superior Court upheld the use of videotape testimony by a ten year old sexual abuse victim against her alleged abuser. In concluding that the use of videotaped testimony had not violated the accused's right of confrontation, the Court said:

The Confrontation Clause is not implacable in its demands. Nearly every authority agrees that it is subject to exceptions. In reaching the conclusion, as this court has, that the use of videotaped testimony in ...