Com. v. Ludwig

Citation527 Pa. 472,594 A.2d 281
Decision Date03 May 1989
Docket NumberNo. 34,34
CourtUnited States State Supreme Court of Pennsylvania
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Paul LUDWIG, Appellant. . E.D. 1988

William K. Sayer, Public Defender, for appellant.

John W. Packel, Chief Dep. Public Defender, Leonard N. Sosnou, Philadelphia, for amicus curiae Defenders' Ass'n. of Philadelphia.

E. David Christine, Asst. Dist. Atty., for appellee.

Gaele McLaughlin, Deputy Dist. Atty., Marianne Cox, Philadelphia, for amicus curiae Dist. Atty. Office of Philadelphia.

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

OPINION

ZAPPALA, Justice.

We granted review in this case and the companion case, Commonwealth v. Lohman, --- Pa. ---, 594 A.2d 291, to determine whether the use of closed circuit television testimony by an alleged child victim violates the confrontation clauses of the United States and Pennsylvania Constitutions. 1 We hold that the confrontation clause of the Pennsylvania Constitution does not permit such infringement of a defendant's constitutional right to meet a witness face to face. The use of closed circuit television to transmit the testimony of the witness in this case violates the constitutional protection given to the defendant under Article I, § 9 of the Pennsylvania Constitution. Consequently, we reverse the Order of the Superior Court upholding appellant's conviction and sentence. 2

On August 9, 1984, appellant was charged with rape, involuntary deviate sexual intercourse, incest, indecent assault, corrupting the morals of a minor, and endangering the welfare of children. The alleged victim of these crimes was appellant's five year old daughter. At the preliminary hearing, the victim testified that she did not remember what happened with appellant. The victim was unresponsive to further questioning, and the Commonwealth requested a continuance so that it could prepare a petition to the court seeking to use videotaped testimony at the preliminary hearing. The petition was filed by the Commonwealth, and a hearing held. At the hearing, the Commonwealth presented testimony of a psychologist to the effect that the victim had undergone "emotional freezing" at the preliminary hearing and that the condition could occur again. The psychologist also testified that the victim had become withdrawn following the incident, but was now making psychological progress. The psychologist was concerned that the progress might be impaired if the child was forced to testify in court in the physical presence of her father.

The court granted the Commonwealth's petition to the extent that it allowed the child to testify by way of closed circuit television. At the second preliminary hearing, the alleged victim did testify on closed circuit television and the evidence was deemed sufficient to hold the appellant for trial. Notwithstanding appellant's objection, the trial court allowed the same closed circuit television procedures to be employed during the trial itself.

A jury trial began on March 7, 1985. The child testified at the trial via closed circuit television from another room. The child's foster mother was permitted to sit next to the child while the child testified. Also in the room where the child was located was the video camera operator. The courtroom where the judge, prosecutor, defense counsel, appellant and jury were located, was linked to the child by microphone. Although the child could not see the people in the courtroom, she could hear them and respond to their questions.

Following the trial, appellant was convicted of all charges. Appeal was taken to the Superior Court, and that court, sitting en banc, affirmed the judgment of sentence. In so doing, that Court employed a balancing test weighing the welfare of the child against the appellant's right to confrontation. Finding that protection of the child's welfare outweighed the restriction imposed upon the appellant's constitutional right, the Superior Court affirmed the closed circuit television procedure used by the trial court. Because we disagree with the lower courts' resolution of this matter and their use of a balancing test under these facts, we must reverse.

Article I, § 9 of our state constitution guarantees an accused the right to meet his accusers:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusations against him, to meet the witnesses face to face ... (emphasis added)

This language is unlike its federal counter-part, the Sixth Amendment, which provides that a defendant in a criminal case "shall enjoy the right ... to be confronted with the witnesses against him."

In Maryland v. Craig, supra, the United States Supreme Court was presented with a challenge to a Maryland statute which permitted closed circuit testimony if a judge determined that the child victim's testimony in the courtroom would result in serious emotional distress and the child's inability to communicate. The trial court rejected the defendant's objection to the procedure as violative of the confrontation clause of the Sixth Amendment to the United States Constitution. The Maryland Court of Appeals reversed, holding that the State did not present sufficient evidence to meet the requirements set forth in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The United States Supreme Court reversed in a five to four decision.

Writing for the majority, Justice O'Connor held that in Coy v. Iowa, supra, the Court did construe the confrontation clause as guaranteeing the defendant a face to face meeting with witnesses. Since there had been no finding that the particular child witness needed special protection, no reason existed for disallowing face to face confrontation. However, the Court specifically reserved the issue of whether the confrontation clause guarantees an absolute right to a face to face meeting.

Reviewing federal case law, the majority held that the purpose of the confrontation clause was to insure that witnesses give testimony under oath, submit to cross-examination and permit observations of witness's demeanor to assist in the assessment of credibility. Thus, federal case law reflects a preference for face to face confrontation, not an absolute guarantee. However, a face to face confrontation may only be dispensed of where denial is necessary to further an important public policy and where the reliability of the testimony is otherwise assured. The Court concluded that a state's interest in the physical and psychological well being of child abuse victims may be sufficiently important to outweigh face to face confrontation.

In a stinging dissent, Justice Scalia, joined in by Justices Brennan, Marshall and Stevens, chastised the majority for applying an interest balancing analysis when the text of the Constitution does not permit it. The Defendant was not requesting an expansive interpretation of the scope of the Sixth Amendment but rather a strict adherence to its words. When a Constitutional guarantee is clear and explicit, as in this instance, an interest balancing analysis is the wrong approach. The confrontation clause does not guarantee reliable evidence but rather it guarantees specific trial procedures that were thought to assure reliable evidence. In effect, the majority subordinated an explicit constitutional protection to "current favored public policy."

Unlike the Sixth Amendment to the United States Constitution, Article 1, Section 9 of the Pennsylvania Constitution specifically provides for a "face to face" confrontation. We have long held that in interpreting our Constitution we are not bound by the United States Supreme Court's interpretation of similar federal constitutional provisions. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983).

In Commonwealth v. Sell, supra at 49, 470 A.2d at 459, we embraced the admonitions of Justice Brennan of the United States Supreme Court:

[T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counter-part provisions of State Law. Accordingly, such decisions are not mechanical applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guide posts when interpreting counter-part state guarantees.

We then refused to adopt the United States Supreme Court's abolition of "automatic standing" under the Fourth Amendment of the United States Constitution reaffirming our holding in Commonwealth v. Tate, 495 Pa. 158, 169, 432 A.2d 1382, 1387 (1981) that the State may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the federal constitution, and that the rights so guaranteed may be more expansive than their federal counter-parts (Citations omitted).

Most recently, in Commonwealth v. Edmunds, supra, this Court was again requested to blindly adopt federal jurisprudence to support a "good faith" exception to the exclusionary rule as articulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). There, after an extensive review of the history of Article 1, Section 8, our precedents and policy considerations, we determined that adoption of federal jurisprudence was unwarranted.

Unlike its federal counter-part, Article 1, Section 9, of the Pennsylvania...

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33 cases
  • State v. Foster
    • United States
    • United States State Supreme Court of Washington
    • June 11, 1998
    ......9. 6 .         [957 P.2d 738] The case of Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991) provides particular support for the idea that Wash. Const. art. I, § 22 has a different meaning than the Sixth ......
  • Com. v. Amirault
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 24, 1997
    ...... See Commonwealth v. Ludwig, 527 Pa. 472, 473, 594 A.2d 281 (1991) (the use of closed-circuit television which allowed the defendant to see the witness but kept the witness from seeing the defendant did not comport with Pennsylvania Constitution's call for face-to-face confrontation); People v. Fitzpatrick, 158 Ill.2d 360, ......
  • Saldana v. State
    • United States
    • United States State Supreme Court of Wyoming
    • January 28, 1993
    ...... For recognition where a separate federal court order was used, see Van Buren v. State, 823 P.2d 1258 (Alaska App.1992); Com. v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (rejecting application of the United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 ... See also Beyer, 822 P.2d 519. For example, 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 ......
  • People v. Phillips
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    • Court of Appeals of Colorado
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    ...not be tried without the presence, in a court of law, of both himself and the witnesses testifying against him.”); Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281, 284 (1991); cf. State v. Stephenson, 195 S.W.3d 574, 591 (Tenn.2006); but see Brady v. State, 575 N.E.2d 981, 988 (Ind.1991) ......
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3 books & journal articles
  • The Green Mountain boys still love their freedom: criminal jurisprudence of the Vermont Supreme Court.
    • United States
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    • August 6, 1997
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  • State constitutional amendments and individual rights in the twenty-first century.
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    ...draws on Dinan, Foreword, supra note 59, at 1012-13. (80) PA. CONST. art. I, [section] 9 (amended 2003). (81) Commonwealth v. Ludwig, 594 A.2d 281,281-82 (Pa. (82) PA. CONST. art. I, [section] 9 (amended 2003). (83) PA. CONST. art. V, [section] 10(c) (amended 2003). (84) In fact, passage of......

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