Com. v. Penn

• Decision Date: 31 August 1989
• Citation: 562 A.2d 833,386 Pa.Super. 133
• Parties: , 16 Media L. Rep. 2439 COMMONWEALTH of Pennsylvania v. Meredith PENN, Appellant. 617 PHILA. 1987
• Court: Pennsylvania Superior Court

Page 833

562 A.2d 833

386 Pa.Super. 133, 16 Media L. Rep. 2439

COMMONWEALTH of Pennsylvania v. Meredith PENN, Appellant.

617 PHILA. 1987

Superior Court of Pennsylvania.

Submitted Dec. 7, 1988.

Filed July 7, 1989.

Reargument Denied Aug. 31, 1989.

Athena M. Dooley, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Before CIRILLO, President Judge, and BECK and KELLY, JJ.

KELLY, Judge:

In this case we are called up to determine whether the trial court abused its discretion and committed reversible error in closing a trial to the public during the testimony of a Commonwealth witness who alleged that he had been threatened and harassed by unidentified persons who did not want him to testify against appellant at his murder trial. For the reasons which follow, we reverse and remand for a new trial.

The relevant facts may be accurately summarized as follows. Appellant was arrested and brought to trial on murder charges relating to the shooting death of his estranged common-law wife in Philadelphia on August 4, 1984. Mr. Theodore Reed, a security guard and friend of appellant, was subpoenaed to testify against appellant regarding a full and detailed confession of the crime made by appellant to Mr. Reed shortly after the murder. Mr. Reed failed to appear in compliance with the subpoena and so a bench warrant was issued for his arrest.

Prior to the start of the afternoon session on the second day of the trial, the prosecutor informed the court that Mr. Reed had voluntarily presented himself at the prosecutor's office and was now prepared to comply with the subpoena. The prosecutor informed the court further that Mr. Reed had explained his failure to appear as the result of his fear following the breaking of several windows at his home and the receipt of several anonymous calls on the previous evening which threatened injury to him and his four children if he testified against appellant at trial, as well as being accosted outside the courtroom that morning by persons he could not or would not identify, who also requested that he change his testimony. The prosecutor indicated that Mr. Reed was "perfectly willing to testify, but that he was very intimidated about testifying in front of a full courtroom." (N.T. 9/10/86 at 89). The prosecutor moved that the bench warrant against Mr. Reed be withdrawn, and that the court be closed to spectators during Mr. Reed's testimony.

Counsel for appellant agreed that anyone who was attempting to intimidate a witness or suborn perjury should be identified and prosecuted. Counsel indicated that there were numerous defense witnesses and supporters present for the trial and requested that Mr. Reed be brought in to view those present and then have him identify anyone who intimidated him, or of whom he was afraid. Counsel noted that Mr. Reed was an adult male who was employed as a security guard, and not a child witness or a victim of a sex crime for whom special consideration might be appropriate. Finally, counsel objected to the motion to clear the courtroom of all spectators during Mr. Reed's testimony on the basis of appellant's Sixth Amendment right to a public trial.

The trial court granted the motion to close the courtroom during Mr. Reed's testimony and denied appellant's motion for a mistrial on the basis of the closure. After Mr. Reed's testimony, the public was again admitted into the courtroom.

Appellant was convicted of murder in the first degree and possession of an instrument of crime. Post-verdict motions were filed, briefed, argued, and denied. On January 28, 1987, appellant was sentenced to life imprisonment on the murder conviction and a concurrent two and one-half to five year term of imprisonment on the possession of an instrument of crime conviction. This timely appeal followed.

On appeal, appellant challenges the partial closure of the trial and raises three other claims of trial court error and fourteen allegations of ineffective assistance of counsel. Because we find merit in appellant's Sixth Amendment denial of a public trial claim, we decline to address his other assertions of error.

Appellant argues that reversal is mandated by our Supreme Court's decision in Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578 (1982) (plurality ). The Commonwealth notes that because Contakos was a plurality opinion it is not binding on this Court, and argues instead that a trial court has inherent discretionary authority to clear the court during the testimony of a witness who has been threatened. The Commonwealth cites Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976) and Commonwealth v. Wright, 255 Pa.Super. 512, 388 A.2d 1084 (1978) as controlling precedent. While each of the cases cited by the parties is relevant to our decision, our course lies between the two extremes urged and is guided by other authorities as well.

"Criminal trials in the United States have, by historical tradition, and under the First Amendment, been deemed presumptively open to public scrutiny and this '... presumption of openness inheres in the very nature of the criminal trial under our system of justice.' " Commonwealth v. Fenstermaker, 515 Pa. 501, 506, 530 A.2d 414, 417 (1987), quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973, 987 (1980). The purposes of openness have been summarized as follows:

... generally, to assure the public that justice is done even-handedly and fairly; to discourage perjury and the misconduct of participants; to prevent decisions based on secret bias or partiality; to prevent individuals from feeling that the law should be taken into the hands of private citizens; to satisfy the natural desire to see justice done; to provide for community catharsis; to promote public confidence in government and assurance that the system of judicial remedy does in fact work; to promote the stability of government by allowing access to its workings, thus assuring citizens that government and the courts are worthy of their continued loyalty and support; to promote an understanding of our system of government and courts.

Commonwealth v. Fenstermaker, supra, 530 A.2d at 417, citing Richmond Newspapers, Inc. v. Virginia, supra and Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The openness of criminal trials and the purposes which this openness is intended to serve, are protected not only by tradition, but by provisions in both the United States and the Pennsylvania Constitutions as well. See U.S. Const. Amend. 1; U.S. Const. Amend. 6; U.S. Const. Amend. 14; Pa. Const. Art. 1, sec. 7; Pa. Const. Art. 1, sec. 9; Pa. Const. Art. 1, sec. 11.

In the instant case, appellant only raised a federal Sixth Amendment claim at trial. He has waived any separate claims under other provisions of the United States or Pennsylvania Constitutions relating to the right to a public trial. In noting this fact we do not imply that other constitutional provisions would be construed to provide different protection or require different analysis. Rather, we merely note that the issue preserved and the analysis which follows are limited to the consideration of appellant's Sixth Amendment rights.

In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the United States Supreme Court noted the particular interests of criminal defendants which the openness of criminal proceedings mandated by the Sixth Amendment was designed to protect:

The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions....

In addition to ensuring the judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.

467 U.S. at 46, 104 S.Ct. at 2215, 81 L.Ed.2d at 38. The Supreme Court stated further that "there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and the public." Id.

Though the right to an open public trial is central to our system of criminal justice, the right is not absolute. In Waller v. Georgia, supra, the Supreme Court explained:

The right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.

467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed.2d at 38.

Courts have generally held that limitations on public access to criminal proceedings may also be justified by: courtroom capacity limitations; the need to preserve order and decorum; the need to protect victims, witnesses, or jurors from serious embarrassment, trauma or intimidation; and, the need to protect youthful spectators from exposure to testimony which might shock, distress, or tend to corrupt morals. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510-12 & n. 10, 104 S.Ct. 819, 824-25 & n. 10, 78 L.Ed.2d 629, 638-39 & n. 10 (1984) (serious embarrassment of jurors during voir dire ); Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 600 & n. 5, 100 S.Ct. at 2840 & n. 5, 65 L.Ed.2d at 1005 & n. 5 (capacity limitations, serious embarrassment of youthful victim of a sex crime); Gannett Co. v. DePasquale, supra, 443 U.S. at 388 n. 19, 99 S.Ct. at 2910 n. 19, 61 L.Ed.2d at 626 n. 19 (serious trauma, embarrassment or intimidation of adult or juvenile witnesses or victims; juvenile spectators; order and decorum); Commonwealth v. Berrigan, 509 Pa. 118, 128-33, 501 A.2d 226, 232-34 (1985) (courtroom capacity; juror...