Opinion
No. 1463 MDA 2020
12-15-2021
COMMONWEALTH of Pennsylvania v. Adrian Carlos PADILLA, Appellant
MEMORANDUM BY STEVENS, P.J.E.:
Appellant, Adrian Carlos Padilla, appeals from the judgment of sentence entered in the Court of Common Pleas of Berks County on September 28, 2020, imposing a split sentence of three (3) to six (6) months’ incarceration and an aggregate eighteen (18) months of probation for his convictions of one count each of simple assault, harassment, and disorderly conduct following a jury trial. We affirm.
18 Pa.C.S.A. §§ 2701(a)(3), 2709(a)(1), and 5503(a)(1), respectively.
The jury returned a verdict of guilty on the simple assault charge, and the trial court found Appellant guilty of the harassment and disorderly conduct charges.
The trial court summarized the pertinent facts here in as follows:
On August 2, 2019, [Appellant] was arguing with his girlfriend at the intersection of Court Street and Madison Avenue in Reading, Berks County, PA. When [Appellant] slapped his girlfriend across the face, a male teenage bystander who was crossing the street with his grandmother, verbally confronted [Appellant]. [Appellant] responded by telling him not to get involved and not to ‘make me pull this out’ while reaching into his pocket or waistband. [Appellant] then repeated his threat to ‘pull this cannon out’ at which point the teenager backed away into a nearby church.
Trial Court Opinion, 11/6/20, at 2.
Appellant was sentenced on September 28, 2020, and he filed a post-sentence motion on October 6, 2020. The trial court denied the post-sentence motion on October 8, 2020, and this timely appeal followed.
Appellant's counsel filed a notice of appeal on November 2, 2020. The notice of appeal states that the appeal is "from the Judgment of Sentence entered on this matter on September 28, 2020, and the subsequent denial of the Post-Sentence Motion on October 8, 2020."
While counsel for Appellant purports to appeal from both the September 28, 2020, judgment of sentence and the October 8, 2020, Order denying the post-sentence motion, the appeal properly lies from the judgment of sentence imposed on September 28, 2020. Commonwealth v. Shamberger , 788 A.2d 408, 410 n.2 (Pa.Super. 2001) (en banc ) (correcting caption when appellant misstates where appeal lies), appeal denied , 800 A.2d 932 (Pa. 2002).
In his brief, Appellant presents the following three questions for this Court's review:
Whether the evidence was sufficient to support a guilty verdict for simple assault by physical menace?
Were the verdicts contrary to the weight of the evidence.
Whether the refusal to have witnesses unmask their faces during their testimony, over the expressed objection of the defense was reversible error, as it was a clear violation of the Confrontation Clause of the United States Constitution and Article § 9 of the Pennsylvania Constitution?
Brief for Appellant at 13 (unnumbered).
The Pennsylvania Supreme Court recently set forth the relevant standards of review of challenges to the sufficiency and to the weight of the evidence as follows:
[W]e find it necessary to delineate the distinctions between a claim challenging the sufficiency of the evidence and a claim that challenges the weight of the evidence. The distinction between these two challenges is critical. A claim challenging the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Pennsylvania Constitution, Tibbs v. Florida , 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) ; Commonwealth v. Vogel , 501 Pa. 314, 461 A.2d 604 (1983), whereas a claim challenging the weight of the evidence if granted would permit a second trial. Id .
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Commonwealth v. Karkaria , 533 Pa. 412, 625 A.2d 1167 (1993). Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. Commonwealth v. Santana , 460 Pa. 482, 333 A.2d 876 (1975). When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Chambers , 528 Pa. 558, 599 A.2d 630 (1991).
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Commonwealth v. Whiteman , 336 Pa.Super. 120, 485 A.2d 459 (1984). Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. Tibbs , 457 U.S. at 38 n. 11, 102 S.Ct. 2211. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Brown , 538 Pa. 410, 648 A.2d 1177 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Thompson, supra . A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that "notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice." Id .
Commonwealth v. Widmer , 560 Pa. 308, 318–20, 744 A.2d 745, 751–52 (2000) (footnote omitted).
A simple assault occurs where the defendant "attempts by physical menace to put another in fear of imminent serious bodily injury[.]" 18 Pa.C.S.A. § 2701(a)(3). Serious bodily injury is injury which "creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S.A. § 2301. The act of pointing a gun at someone is sufficient to sustain a conviction of simple assault by physical menace. Commonwealth v. Reynolds , 835 A.2d 720, 726 (Pa.Super. 2003).
In this case, Appellant did not point a gun at the victim Kai Jackson, the teenaged bystander who intervened, or at Stephanie Ann Brown, his grandmother. Rather, he reached for his waist and threatened to "pull this cannon out." When Appellant uttered these words in conjunction with his action, Mr. Jackson believed he was reaching for a gun.
Appellant posits this scenario is similar to that presented in Commonwealth v. Fry , 491 A.2d 843, 844 (Pa.Super. 1985). There, an eighteen-year-old boy approached a ten-year-old girl from behind, picked her up, and began to carry her. When the girl screamed, the defendant said, "shut up, you're coming with me." Id. The incident occurred on the campus of a school, and the girl surmised that the defendant was carrying her toward a locker room. Id. The defendant put the girl down when two youngsters serving as safety patrol approached. Id. This Court held that the evidence was insufficient to sustain a conviction for simple assault under § 2701(a)(3).
In doing so, this Court found that the only evidence of physical menace was that Fry had put his arms around the child and picked her up. Significantly, Fry did not strike or attempt to subdue her by physical means, nor did he threaten to inflict bodily injury upon her. Also, there was no evidence that serious bodily injury was imminent or that Frye intended to put the child in fear thereof. Id .
This Court acknowledged the evidence did show that Frye had told the girl to "shut up" and that he was taking her with him. The child speculated that Frye intended to take her toward the steps leading to the locker room, which was likely alarming and frightening to a young child. However, that is not the conduct which was made criminal by 18 Pa.C.S.A. § 2701(a)(3), for the statute required a specific intent on the part of Frye to put the child in fear of imminent serious bodily injury, and the Commonwealth failed to prove such intent. Id. at 845 (citations omitted; emphasis added).
In the matter sub judice, Appellant stresses that he was found in possession of pepper spray but not a gun, and that the "cannon" reference could have been to the pepper spray. However, Appellant's argument ignores the standard of review under which we must draw inferences in favor of the Commonwealth. The evidence before us, read in a light most favorable to the Commonwealth, clearly supports an inference that Appellant threatened the Mr. Jackson with imminent serious bodily injury. As the trial court wrote:
Contrary to the assertions of [Appellant], more than just words were involved. It was not merely a verbal threat. There was testimony that [Appellant] placed his hand in his pants physically implying that he had a gun while making a verbal statement about not having to pull ‘this’ out and referencing "this" as a "cannon." The actions coupled with the statements were intended to intimidate the victim into stopping his intervention on behalf of [Appellant's] girlfriend whom he had just slapped in the face. The threat was effective as the victim did in fact disengage and proceed to a church with his grandmother.
Trial Court Opinion, 11/6/20, at 3.
Appellant argues that because the evidence was insufficient in Fry it is insufficient here. Appellant's Brief at 30. Finding a significant distinction between Fry and the instant case, we disagree. The Fry Court noted the defendant never threatened bodily harm, whereas Appellant expressly threatened to pull a gun on Mr. Jackson while reaching for his waistband, thus intentionally putting Mr. Jackson in fear of imminent serious bodily injury. Appellant's challenge to the sufficiency of the evidence fails.
Appellant next challenges the weight of the evidence to sustain his convictions. Before we consider the merits of this issue, we first must determine whether Appellant has preserved it four our review. In this regard, we are guided by the Pennsylvania Supreme Court's analysis:
In all events, it bears noting that the purpose of Rule 1925 is to facilitate appellate review and to provide the parties and the public with the legal basis for a judicial decision. See Commonwealth v. Parrish, ––– Pa. ––––, ––––, 224 A.3d 682, 692 (2020) (quoting Commonwealth v. DeJesus , 581 Pa. 632, 638, 868 A.2d 379, 382 (2005) ). If that basis is evident from the record, the trial court need not issue an opinion explaining it. See Pa.R.A.P. 1925(a) (requiring an opinion only where "the reasons for the order [appealed from] do not already appear of record"). The function of the concise statement is to clarify for the judge who issued the order the grounds on which the aggrieved party seeks appellate review – so as to facilitate the writing of the opinion. See Pa.R.A.P. 1925(b) ("If the judge entering the order giving rise to the notice of appeal ... desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record ... a concise statement of the errors complained of on appeal[.]").
In Commonwealth v. Laboy , 594 Pa. 411, 936 A.2d 1058 (2007) (per curiam ), this Court faced a situation comparable to the present controversy. The defendant's Rule 1925(b) statement was exceedingly brief in setting forth an evidentiary-sufficiency claim. Nevertheless, the common pleas court issued a Rule 1925(a) opinion resolving the claim on its merits. The Superior Court found the claim waived due to its brevity and did not address its merits. This Court held that the Superior Court should have afforded the requested sufficiency review, as the trial transcript was short, it was fairly evident from context that the sole legal issue was whether the defendant was vicariously liable for his co-defendant's actions, and "the common pleas court readily apprehended Appellant's claim and addressed it in substantial detail." Id . at 415, 936 A.2d at 1060.17
Here, the trial transcript is admittedly much longer than in Laboy . Nevertheless, the weight-of-the-evidence claim was readily understandable from context. Appellant's theory, for which he provided his own supporting testimony, was that he was innocent of all charges in relation to the three adult victims because he did not physically attack or steal from any of them, and his intercourse with all of them was consensual. Further, and as noted, in his post-sentence motion Appellant articulated the evidentiary-weight claim at some length as to the three adult victims, and those were the same individuals he mentioned in his Rule 1925(b) statement. The common pleas court summarized the victims’ credited testimony contradicting Appellant's theory and determined that the verdicts were not contrary to the weight of the evidence. Thus, as in Laboy , the trial court had no difficulty apprehending the claim as set forth in the concise statement and addressing its substance.
This latter circumstance is particularly salient because, as explained, the concise statement's purpose is to assist the trial judge in apprehending the issues and authoring an opinion accordingly for the benefit of the parties, the appellate court, and the public. If a concise statement's explanation of a particular issue is overly long, moreover, the appellant runs the risk of invoking the waiver rule on that basis. See Pa.R.A.P 1925(b)(4)(iv) (prohibiting "lengthy explanations as to any error"); 1925(b)(4)(vii) (providing, among other things, that failure to raise issues in accordance with paragraph (b)(4) results in waiver); 1925(b)(4)(ii) (mandating issues be stated concisely); cf. Eiser v. Brown & Williamson Tobacco Corp. , 595 Pa. 366, 384 n.19, 938 A.2d 417, 428 n.19 (2007) (plurality) (observing that Rule 1925 as revised "now explains that frivolous or redundant issues continue to provide grounds for waiver, and clarifies that a lengthy explanation of the claimed error(s) should not be provided in the statement").
In light of these principles, we find that the brevity of Appellant's weight-of-the-evidence claim as set forth in his concise statement represents a good-faith attempt to comply with Rule 1925 ’s concision requirement, and that it did not prevent meaningful appellate review. That being the case, the intermediate court should have considered the claim on its merits. Accord Commonwealth v. Smyser , 195 A.3d 912, 916 (Pa. Super. 2018) (applying Laboy to reach an issue set forth in a "boilerplate" concise statement where the trial court readily apprehended the issue).
Commonwealth v. Rogers , 250 A.3d 1209, 1224-25 (2021) (footnote omitted).
Unlike the situation presented in Rogers , herein Appellant stated merely that "the verdicts were against the weight of the evidence" in both his post-sentence motion and concise statement. Clearly, the lack of detail in Appellant's allegation created a situation wherein the issue was not readily discernable to the trial court from the context. This is reflected in the fact that the trial court does not address in its Rule 1925(a) Opinion the specific averments pertaining to the weapon or alleged inconsistencies between the witnesses’ statements to police and their trial testimony that Appellant raises in his appellate brief. As such, we find Appellant has waived this claim.
Finally, Appellant posits the trial court denied him his right to a face-to-face confrontation under the Confrontation Clause of the United States Constitution and Article I, § 9 of the Pennsylvania Constitution when it permitted Mr. Jackson and Ms. Brown to testify wearing COVID masks.
The federal confrontation clause guarantees an accused the right "to be confronted with the witnesses against him." U.S. CONST. AMEND. VI. Article I, Section 9 of the Pennsylvania Constitution uses identical language.
The global COVID-19 pandemic resulted from the spread of a virus known as SARS-CoV-2, commonly known as coronavirus, which causes the disease known as COVID-19. We use the term "COVID mask" to refer to the cloth masks commonly worn over the mouth and nose to help prevent the spread of the coronavirus.
To preserve a claim of error for appellate review, a party must make a specific objection to the alleged error before the trial court in a timely fashion and at the appropriate stage of the proceedings; failure to raise such an objection results in waiver of the underlying issue on appeal. Commonwealth v. May , 584 Pa. 640, 887 A.2d 750 (2005), cert. denied , 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d 54 (2006) (reiterating absence of specific and contemporaneous objection to error waives issue on appeal); Commonwealth v. Arroyo , 555 Pa. 125, 723 A.2d 162 (1999) (explaining if ground upon which objection is based is specifically stated, all other reasons for its exclusion are waived).
Additionally, it is well-settled that this Court "will not consider a claim which was not called to the trial court's attention at a time when any error committed could have been corrected." Fillmore v. Hill , 665 A.2d 514, 516 (Pa.Super. 1995) ). "The principle [sic] rationale underlying the waiver rule is that when an error is pointed out to the trial court, the court then has an opportunity to correct the error ... By specifically objecting to any obvious error, the trial court can quickly and easily correct the problem and prevent the need for a new trial." Id. (citations omitted). see also Commonwealth v. Montalvo, 434 Pa.Super. 14, 641 A.2d 1176, 1184 (Pa.Super. 1994) (citation omitted) (to preserve an issue for review, a party must make a timely and specific objection at trial, for this Court will not consider claim on appeal not called to trial court's attention at a time purported error could have been corrected).
Importantly, "the law is clear that issues, even those of constitutional dimension, are waived if not raised in the trial court. A new and different theory of relief may not be successfully advanced for the first time on appeal." Commonwealth v. Cline , 177 A.3d 922, 927 (Pa.Super. 2017), appeal denied , 646 Pa. 735, 187 A.3d 210 (2018) ; Pa.R.A.P. 302(a).
Here, during trial counsel objected to Stephanie Ann Brown being masked by stating that she would "prefer " that Ms. Brown "be unmasked during testimony." N.T. Trial, 8/6/20, at 37 (emphasis added). In addition, counsel objected "to not being able to see [Kai Jackson's] face." Id . at 43-44. The examination of these witnesses proceeded without further discussion of COVID masks.
When the Commonwealth rested, the jury returned to the jury room. Id . at 63. The trial court asked defense counsel if she had any motions, at which time she moved for a directed verdict, but expressed no argument that Appellant's federal and/or state constitutional right to confront his witnesses had been violated due to their wearing COVID masks while they testified. Id . at 64. The trial court proceeded to colloquy Appellant to ensure he understood his right to testify in his own defense. Id . at 64-67. Defense counsel next indicated her intention to rest when the jury returned to the courtroom, and the defense did rest at that time. Id . at 67.
Counsel waited until the jury was in a lunch recess to ask for a mistrial. In doing so counsel for the first time indicated Appellant's "due process rights" "6th Amendment right" had been violated and, following additional questioning from the trial court, opined that as the bottom half of one's face was its "most expressive part," the witnesses were "not visible to the jury." Id . at 69-71.
The aforesaid objections during trial pertained to defense counsel's own preference to see the witnesses’ faces. At no time did counsel frame her objection in terms of a violation of Appellant's constitutional right to confront his witnesses until after the defense had rested. As such, Appellant waived his claim that the trial court denied him his rights under the Confrontation Clause for failure to make a timely and specific objection during trial.
Even if Appellant's objections could be deemed to have preserved this issue for appellate review, we would hold that the trial court's allowing the witnesses to testify while wearing a facemask in furtherance of an important public policy regarding the potential spread of COVID-19 did not infringe upon Appellant's rights under the Confrontation Clause of either the United States or the Pennsylvania constitution to meet his witnesses face-to face.
While recognizing the accused's right to confrontation under those provisions, the Pennsylvania Supreme Court has carved out exceptions in certain circumstances, recognizing that the right is not absolute. See Commonwealth v. McCloud , 457 Pa. 310, 322 A.2d 653 (1974). For instance, the United States Supreme Court cited statutes in Pennsylvania, among other states, as evidence of the widespread belief in the importance of protecting child abuse victims. See Maryland v. Craig , 110 S.Ct. 3157, 67–68 n. 2, 111 L.Ed.2d 666, 683 n. 2 (1990). Therein, the Supreme Court found that the use of the one-way closed-circuit procedure, where necessary to further an important state interest of ensuring the physical and psychological well-being of child abuse victims, did not impinge upon the purposes of the Confrontation Clause and was sufficient to outweigh, in some cases, the defendant's right to face-to-face confrontation. Maryland v. Craig , supra , at 110 S.Ct. at 3166–67, 111 L.Ed.2d at 682.
In the midst of a global pandemic, Ms. Brown and Mr. Jackson testified in person before Appellant in the courtroom. As the learned trial court succinctly observed:
Allowing the witness to wear a facemask was necessary to further an important public policy regarding the potential spread of the novel Corona virus [sic] 19. This is an individualized finding of necessity in unprecedented time to assure for the comfort and safety of both witness, jurors and others present in the courtroom. If the witness had been required to unmask, the discomfort from the feeling of being at risk for exposure, could have affected the demeanor of the witness. The reliability of the testimony from the witness was otherwise assured.
The jury was amply able to observe the demeanor of the witness. The witness was physically present in front of [Appellant] during testimony made under oath. The witness was subject to cross-examination. The jury was present when the witness indicated he would prefer to remain masked, as all persons in the courtroom were required to be masked pursuant to CDC guidelines. The jury was able to sufficiently view the witness's demeanor, being located within close proximity to the witness while still remaining socially distant from the witness and each other. They could view the witness's outward appearance or behavior including tone of voice, cadence, posture, gestures and other body language. The jury could see any hesitation or readiness to answer questions as well as observe nervousness, frustration or hostility. The jury was also able to view the witness's eyes. The witness's mouth and nose were the only features that may not have been visible to the jury. Finally, the jury was instructed to indicate to the court if there was difficulty hearing any testimony.
The principles of the right to confrontation- testimony given under oath, facing the penalty of perjury, subject to cross-examination, and with the jury's observation of the witness's demeanor- were amply preserved. The right to confrontation under the federal and state constitutions was not infringed, and a new trial is not warranted.
Trial Court Opinion, filed 11/6/20, at 7-8 (footnote omitted).
In light of the foregoing, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed.
Judge Kunselman joins.
Judge Stabile files a Dissenting Memorandum.
DISSENTING MEMORANDUM BY STABILE, J.:
I believe that Appellant raises a properly preserved and meritorious argument under the Confrontation Clause. To address the Majority's finding of waiver, I must begin with an overview of a criminal defendant's right to confront adverse witnesses. The federal confrontation clause guarantees an accused the right "to be confronted with the witnesses against him." U.S. CONST. AMEND. VI. Article I, section 9 of the Pennsylvania Constitution uses identical language. The United States Supreme Court has addressed the Confrontation Clause as follows:
The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word ‘confront,’ after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:
‘The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’ Mattox [ v. United States , 156 U.S. 237, 242–243 [...] (1895)].
As this description indicates, the right guaranteed by the Confrontation Clause includes not only a ‘personal examination,’ 156 U.S. at 242 [...], but also "(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 invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." [ California v. ] Green , [399 U.S. 149, 158, [...] (1970)] (footnote omitted).
The combined effect of these elements of confrontation—physical presence, oath, cross-examination, and observation of demeanor by the trier of fact—serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo–American criminal proceedings.
Commonwealth v. Atkinson , 987 A.2d 743, 746 (Pa. Super. 2010) (quoting Maryland v. Craig , 497 U.S. 836, 845-46 (1990) ), appeal denied , 8 A.3d 340 (Pa. 2010).
In Coy v. Iowa , 487 U.S. 1012 (1988), the prosecution used a screen between defendant and sexual assault victims that blocked the defendant completely from the victims’ sight but allowed the defendant to see the victims dimly and hear them. Id. at 1015. The prosecutor acted in accord with a state statute; there had been no individualized findings that the witnesses in Coy needed special protection. Id. at 1021. The defendant claimed the screen violated his right to a face-to-face confrontation. The Supreme Court held that the defendant's right to a face-to-face confrontation was violated. "A witness ‘may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts.’ " Id. at 1019 (quoting Jay v. Boyd , 351 U.S. 345, 375-76 (1956) (Douglass, J. dissenting)). "That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs." Id. at 1020.
In Maryland v. Craig , 497 U.S. 836 (1990), as in Coy , the witnesses were children testifying that the defendant sexually assaulted them. A Maryland statute permitted the children to testify by closed circuit television, outside the presence of the defendant, if the trial court determined that courtroom testimony would cause serious emotional distress to the point that the child could not communicate. Craig , 497 U.S. at 841. Unlike Coy therefore, the record in Craig contained individualized findings as to the necessity of the special arrangement. The Maryland statute at issue in Craig required such findings, whereas the Iowa statute at issue in Coy did not. Pursuant to the statute and the trial court's findings, the prosecutor, defense attorney, and child witness went to a separate room while the judge, jury, and defendant remained in court and observed by closed-circuit television. Id.
The Craig Court found that this arrangement satisfied the Confrontation Clause. The Confrontation Clause does not guarantee criminal defendants "an absolute right to a face-to-face meeting with witnesses against them at trial." Id. at 844 (italics in original). Face-to-face confrontation will reduce the risk of a witness wrongfully implicating an innocent person, and therefore it "forms the core of the values furthered by the Confrontation Clause[.]" Id. at 846-47 (quoting Delaware v. Fensterer , 474 U.S. 15, 22 (1985) (per curiam )). But it is not "the sine qua non of the confrontation right[,]" which is "generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony." Id. The elements of a full and fair opportunity to confront an adverse witness include the witness's physical presence in the court room, testimony under oath, subjection to cross-examination, and observation of the witness's demeanor by the fact finder. Id. at 846.
Thus, certain hearsay statements can be admitted even though the defendant cannot confront the declarant. Id. at 847-48.
The Craig Court concluded that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial.’ " Id. at 849 (quoting Ohio v. Roberts , 448 U.S. 56, 63 (1980) ) (emphasis added in Craig ). This preference "must occasionally give way to considerations of public policy and the necessities of the instant case." Id. (quoting Mattox v. United States , 156 U.S. 237, 243 (1895) ).
In Atkinson , this Court applied the Craig test to the trial court's decision to permit the Commonwealth to use two-way videoconferencing to present the testimony of an incarcerated witness. Atkinson , 987 A.2d at 745. The Atkinson Court noted that video testimony had been used for child witnesses (as in Craig ), international witnesses, and witnesses too ill to travel. Id. at 748. In Atkinson , however, the Commonwealth advanced no reason for the video testimony other than expeditious resolution of the case. Id. at 749-50. Thus, there was no important policy rationale for diverging from the in person, face-to-face confrontation that the defendant would ordinarily receive. Further, there was no hearing and no case-specific findings regarding the necessity of videoconferencing. For these reasons, the Atkinson Court concluded that the defendant's Confrontation Clause rights were compromised without justification. Id. at 751.
The Atkinson Court noted that the Pennsylvania Confrontation Clause provides the same protection as its federal counterpart. Atkinson , 987 A.2d at 745.
Against this backdrop, I turn to the Appellant's objections:
THE COURT: Thank you. If you would state your name for the record.
THE WITNESS: Stephanie Ann Brown.
THE COURT: Okay. You may be seated. You may proceed.
[THE PROSECUTOR]: Thank you. Ma'am, if you want to, you can remove your mask but you don't have to.
THE WITNESS: Okay.
[THE PROSECUTOR]: Okay.
DIRECT EXAMINATION
Q. How do you know Kai Jackson?
A. He is my grandson.
[DEFENSE COUNSEL]: Your Honor, I am going to object. I would prefer that the witnesses be unmasked during the testimony.
THE COURT: Overruled. Overruled.
N.T. Trial, 8/6/20, at 36-37 (emphasis added). Brown's examination went on without further discussion of her mask.
The testimony of Kai Jackson began in similar fashion:
THE COURT: Thank you. You may be seated. State your full name.
THE WITNESS: Kai Jackson.
THE COURT: How do you spell the first name?
THE WITNESS: K-a-i.
THE COURT: Thank you. You may proceed.
[THE PROSECUTOR]: Thank you.
DIRECT EXAMINATION
Q. Kai, if you want to remove your mask, you can, but you don't have to. Kai, how old are you today?
A. Seventeen.
Q. So last August, you're obviously 16.
[DEFENSE COUNSEL]: Again, Your Honor, objection to not being able to see the witness's face.
THE COURT: Overruled.
N.T. Trial, 8/6/20, at 43-44 (emphasis added). Jackson's examination went on without further discussion of the mask.
Thus, Appellant lodged timely objections based on his inability to see the witness's faces. As the Majority acknowledges, he followed up those objections up with a motion for mistrial, complaining of the face coverings and citing the Sixth Amendment. As I have explained above, the federal Confrontation Clause and Article I, section 9 of the Pennsylvania Constitution both guarantee the right to a face-to-face confrontation. Despite this, the Majority sua sponte concludes that Appellant waived his Confrontation Clause argument, finding his objections insufficiently specific. Majority Memorandum, at 9-12. I disagree. I believe Appellant's contemporaneous objections—that the COVID masks partially obscured witness's faces—left no doubt as to the basis of his objection. The trial court could have, and in my view should have, corrected the problem before permitting the trial to continue. In straining to find waiver here, the Majority evades a difficult and important issue that deserves this Court's attention.
The trial court's opinion addressed Appellant's argument on the merits, and the Commonwealth did not assert waiver in its brief to this Court. Our Supreme Court recently reversed this Court for sua sponte finding waiver of a constitutional issue. Commonwealth v. Wolfel , 233 A.3d 784 (Pa. 2020).
Moving on to the merits, the following considerations lead me to conclude that the trial court erred. Several courts have addressed the applicability of the Confrontation Clause where the witness wears a COVID mask. In United States v. Crittenden , 2020 WL 4917733 (M.D. Ga. 8/21/2020), the government requested that testifying witnesses wear transparent face shields or remain behind plexiglass screens.
I cite unpublished and/or extra-jurisdictional case law for illustration and persuasive authority.
Here, the mask requirement is necessary to further an important public policy: ensuring the safety of everyone in the courtroom in the midst of a unique global pandemic. Without this procedure, everyone in the courtroom would face the risk of being infected with a lethal virus. The Court's masking requirement is based upon the best available scientific information and advice. The Centers for Disease Control and Prevention ("CDC") strongly recommends that to avoid infection from the dangerous coronavirus, individuals should practice social distancing and wear masks over the nose and mouth. Considerations for Wearing Masks , Ctrs. for Disease Control and Prevention (updated Aug. 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html. The wearing of the mask not only protects the wearer of the mask, but more significantly, protects others who may be in the same room with the person. These precautions are particularly important inside of a building. The CDC also makes a distinction between "masks" and "face shields," which is what the Government recommends here. The CDC finds that face shields are not as effective as masks, and it does not recommend substituting face shields for masks. Given the CDC recommendations, which are based on the best available science in this area, the Court finds that its social distancing and mask protocols are necessary and essential to protect the courtroom participants during a trial. The Court further finds that face shields and plexiglass screens are not an adequate substitute and standing alone do not provide reasonable protection for the trial participants. Thus a compelling policy reason exists for the mask requirement—protection of the health and safety of the trial participants and members of the public who may attend the trial.
Id. at *6 (footnote omitted). Thus, the Crittenden Court found an important policy justification and case-specific necessity for the COVID masks.
Regarding the Craig Court's elements of a full and fair confrontation (that witnesses should be present in the courtroom, testify under oath, and undergo cross examination, all while the fact finder can observe their demeanor), the only issue was the jury's observation of the witness's demeanor. Id. The Court concluded that masks covering the witness's mouth and nose did not deprive the defendant or the jury of the witness's demeanor. Much of a witness's demeanor is observable with a COVID mask covering the mouth and nose. Jurors can observe the eyes, posture, tone of voice, pace of speech, and any variances in any of these during testimony. In the words of the Crittenden Court, jurors "will be able to see the witnesses blink or roll their eyes, make furtive glances, and tilt their heads." Id. at *7; see also United States v. James , 2020 WL 6081501 (D. Az. 10/15/2020) (relying on Crittenden to hold that COVID masks satisfy an important policy and do not significantly interfere with the jury's ability to observe demeanor); State v. Jesenya O. , 493 P.3d 418 (Ct. App. N.M. 2021) (concluding that, while observations of facial expressions are important in determining veracity the jurors’ ability to observe a witness's body language and hear a witness's speech were sufficient to facilitate observation of the witness's demeanor).
Crittenden , James , and Jesenya O. found support in pre-pandemic cases permitting some obstruction of a witness's face. See United States v. Jesus-Castenada , 705 F.3d 1117 (9th Cir. 2013) (holding that the Confrontation Clause was satisfied even though the witness, a confidential informant, donned a wig and fake mustache); Morales v. Artuz , 281 F.3d 55 (2d Cir. 2002) (holding that the Confrontation Clause was satisfied where the witness, claiming she was nervous and shy, refused to remove a pair of dark sunglasses); People v. Ketchens , 2019 WL 2404393 (Cal. Ct. App. 6/7/2019) (holding that the Confrontation Clause was satisfied where the witness's religious headdress exposed both eyes and her nose). Other courts have found Confrontation Clause violations based on excessive obstruction of a witness's face. See Romero v. State , 173 S.W.3d 502 (Tex. Crim. App. 2005) (holding that no face-to-face confrontation occurs where the witness wears a disguise that conceals nearly all the witness's face); People v. Sammons , 478 N.W.2d 901 (Mich. Ct. App. 1992) (holding that a witness wearing a ski mask does not satisfy the Confrontation Clause).
In a pre-pandemic unpublished memorandum, this Court considered whether a scarf covering the witness's face, except for her eyes, violated the Confrontation Clause. Commonwealth v. Smarr , 179 WDA 2018, (Pa. Super. 7/3/2019) (unpublished). The witness, who was the sole eyewitness to the murder, testified that she covered her face in observance of her Muslim religion. The witness said she "wears a face covering on Fridays, when she goes to a religious service, and ‘whenever [she] feels like [she] want[s] to.’ " Id. at *1 (brackets in original). In opposing the defendant's motion for a mistrial, the Commonwealth argued that jurors could observe the witness's demeanor "through her body actions, through her arm movements, her voice, frustration, lack of frustration, all of that came out with her when she testified on the stand. I think at different times on the stand she broke down into tears, she got upset. All of that was visible." Id. at *2. The trial court noted that the defendant and the jurors were seated "only feet" from the witness. Id. at *3.
This Court held that the Confrontation Clause was satisfied given that the defendant and the witness "were in the same room, sitting within a few feet of each other." Id. at *6. "No precedent has established that a witness's clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness's eyes, and we decline to do so under the facts of this case." Id. Likewise, protection of the witness's ability to wear her scarf in accordance with her religious practice furthered an important public policy. Id. at *7. The trial court conducted a hearing on that point and made a specific, individualized finding that the mask was necessary, in accord with the Supreme Court's opinion in Coy .
In other pandemic-era cases, courts have chosen not to permit cloth COVID masks, relying on see-through plastic face shields and/or plexiglass barriers. In United States v. Robertson , 2020 WL 6701874 (D.N.M. Nov. 13, 2020), the District Court granted the defendant's unopposed motion to require testifying witnesses to remove their facemasks. The Court reasoned, "requiring testifying witnesses to remove their face masks in lieu of clear face shields does not create an unacceptable health risk given that they will be situated apart from other trial participants on the witness stand and given that they will be testifying from behind plexiglass." Id. at *2. Similarly, in United States v. Auzenne , 2020 WL 6065556, (S.D. Miss. Oct. 14, 2020), witnesses were required to wear a cloth mask or plastic face shield except while speaking.
I observe that the Jesenya O. Court, on the other hand, refused to allow witnesses to substitute plastic face shields for cloth masks, noting the CDC's admonition that the face shields were less safe. Jesenya O. , 493 P.3d at 432.
In a pandemic-era case not involving masks, the Montana Federal District Court in United States v. Casher , 2020 WL 3270451 (D. Mont. June 17, 2020) declined to quash several subpoenas, reasoning that the defendant's rights under the Confrontation Clause outweighed the witness's understandable reluctance to travel (one witness lived in Madison, Wisconsin and the other in Denver, Colorado). Id. at *1-3. The Court also declined to permit testimony by videoconference, concluding that it was not necessary to further a public policy under the Craig test. Id. at *2-3.
Instantly, the trial court's opinion provides the following description of the circumstances in the courtroom:
Berks County, being ever cognizant of the right of the defendant to a speedy trial and prompt resolution of cases for victims, was one of the earliest counties to resume jury trials (on June 15, 2020). For the safety of all involved, jury selection was moved to an auditorium where potential jurors could be seated in a socially distant manner. For trial itself, only the largest courtrooms were utilized, which allowed for the jurors to be seated outside of the traditional jury box, so social distancing could be achieved. The jury was seated in the viewing gallery of the courtroom and spaced to allow for at least six feet between each juror and any participant. The witness was placed in the seat traditionally assigned to juror number 6 in the jury box to put them in a better viewing position for the jury, the defendant and defense counsel and the prosecution team. The witness is seated 11 (eleven) feet from the closest juror. The tables for the parties were repositioned to allow for social distance and to still give room for movement in the well of the courtroom to allow for evidence presentation and movement of attorneys during questioning or argument to the jury while still maintaining appropriate spacing. While seated, the tables had been turned so the attorneys and the defendant had a straight on view of the witness as well as the ability to view the jury during the trial.
[Appellant's] trial was held on August 6, 2020 and procedures were evolving after each trial based on feedback from participants, jurors, and staff. Although ordered, a plexiglass barrier between the witness and jurors was not yet available at the time of [Appellant's] trial. Plexiglass barriers have since been installed. The witness was asked by the assistant district attorney to unmask if they felt comfortable. The witness indicated he felt uncomfortable unmasking. A contemporaneous objection was made by counsel and overruled. The witness testified with a mask over his nose and mouth. A microphone was placed directly in front of the witness and there were no indications that he could not be heard during his testimony.
Trial Court Opinion, 11/6/20, at 5-6 (emphasis added).
I make several observations based on the transcript of Appellant's objections (quoted above regarding the Majority's finding of waiver) and the portion of the trial court's opinion quoted immediately above. First, the witnesses were given a choice as to whether to remove their COVID masks. If COVID masks were necessary to protect the health of the witnesses or others present in the courtroom, no choice should have been given. Next, I take at face value the trial court's finding that a witness indicated that he was uncomfortable unmasking (see the bolded portion of the trial court's opinion quoted above). But the record contains no explanation of the basis for his discomfort, what led the trial court to believe he was uncomfortable, and whether anything could have been done to make him comfortable removing his mask. Finally, the trial court noted the need for speedy trials and prompt resolution of cases for victims, and that plexiglass barriers had been ordered but were not installed as of the time of Appellant's trial. I find this rationale problematic. This Court explained in Atkinson that the expeditious resolution of a case does not, in and of itself, justify a constraint on the defendant's right to confront witnesses. Atkinson , 987 A.2d at 749. I do not believe that Appellant's ability to confront unmasked witnesses should have been contingent on whether the county was able to obtain and install plexiglass barriers prior to his trial date.
I do not opine on whether and under what circumstances a witness's fear of unmasking would satisfy the necessity test under Craig , nor do I opine on whether see-through plastic face shields, if they were offered and the witnesses were willing to wear them, would have satisfied the Confrontation Clause in this case.
I now turn to the trial court's rationale for allowing the witnesses to remain masked:
Allowing the witness to wear a facemask was necessary to further an important public policy regarding the potential spread of the novel Corona virus 19. This is an individualized finding of necessity in unprecedented time to assure for the comfort and safety of both witnesses, jurors and others present in the courtroom. If the witness had been required to unmask, the discomfort from the feeling of being at risk for exposure, could have affected the demeanor of the witness. The reliability of the testimony from the witness was otherwise assured.
The jury was amply able to observe the demeanor of the witness. The witness was physically present in front of [Appellant] during testimony made under oath. The witness was subject to cross examination. The jury was present when the witness indicated he would prefer to remain masked, as all persons in the courtroom were required to be masked pursuant to [Center for Disease Control ("CDC")] guideines.2
2
The attorneys were permitted to remove their masks for, inter alia, closing arguments.
The jury was able to sufficiently view the witness's demeanor, being located within close proximity to the witness while still remaining socially distant from the witness and each other. They could view the witness's outward appearance or behavior or behavior including tone of voice, cadence, posture, gestures, and other body language. The jury could see any hesitation or readiness to answer questions as well as observe nervousness, frustration or hostility. The jury was also able to view the witness's eyes. The witness's mouth and nose were the only features that may not have been visible to the jury. Finally, the jury was instructed to indicate to the court if there was difficulty hearing any testimony.
Trial Court Opinion, 11/6/20, at 7-8.
Appellant counters that the mask was unnecessary because the witness, as per the trial court's opinion, was eleven feet away from any other person. Appellant also argues that the trial could have been held in a larger room, such as the auditorium used for jury selection, or that trial could have been delayed until the court obtained and installed plexiglass barriers in the courtroom. Appellant concludes from this that no public policy justified the trial court's decision to permit the witness to remain masked.
In apparent response, the trial court offered what it described as an "individualized finding of necessity" for the masks in accord with Coy and Atkinson . But this description does not make it so. Again, the trial court permitted the attorneys and witnesses to remove masks if they wished. And while I am sympathetic to the court's reasoning that the witness's discomfort with removing their masks might have affected their demeanor, that reasoning finds no support in the record. The witnesses in this case were asked no questions about their decisions to remain masked. The trial court's reasoning was purely speculative and could apply generally to any witness who chose to remain masked during a pandemic. Atkinson explained the need for a hearing and specific, individualized findings to support any arrangement that circumscribes the right to a face-to-face confrontation. We have no hearing transcript and no individualized findings in this case because the trial court failed to follow Atkinson .
I recognize that preventing the spread of a deadly disease is an important policy goal, and that some courts have held that COVID masks are permissible under the Confrontation Clause when they are worn as a necessity in furtherance of that goal. In this case it is apparent from the record that the trial court and counsel for both parties believed, given the precautions in place in the courtroom during Appellant's trial, that the witnesses could have removed their masks without danger to themselves or others present in the courtroom. In the end, therefore, the question is whether the unobstructed face-to-face confrontation to which a defendant is ordinarily entitled is subject to constraint based on a witness's unexplained preference. Nothing in the law supports an affirmative answer. Crittenden , James , and Jesenya O. involved case-specific findings that COVID masks were necessary. There is no indication in any of those cases that the witnesses were given a choice. In Ketchens , the witness was permitted to cover part of her face in accord with the tenets of her religious faith. Instantly, nothing in the record supports an individualized finding that masks were necessary. I would conclude that Appellant was unlawfully deprived of the right to confront the witnesses against him.
I recognize that the witness in Smarr said she wore a scarf over her face, ‘whenever [she] feels like [she] want[s] to.’ " Smarr , 179 WDA 2018, at *1. As an unpublished opinion, Smarr is not binding on this panel. Further, Smarr is distinguishable because it involved a scarf worn in accord with the tenets of the witness's religious faith. My analysis is based on the binding law on point, as articulated in Coy , Craig , and Atkinson .
I would also reject the Commonwealth's argument that any error in this case was harmless. Confrontation Clause violations are subject to harmless error analysis. Atkinson , 987 A.2d at 751-52.
We have recognized that other types of violations of the Confrontation Clause are subject to that harmless-error analysis and see no reason why denial of face-to-face confrontation should not be treated the same. An assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, ..., had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence. [ Coy 487 U.S. at 1021–1022 ].
Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis ; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Id. The Atkinson Court found harmless error because the testimony procured in violation of the Confrontation Clause was cumulative of testimony from several other witnesses. Id. at 753.
The same was not true in this case. Brown and Jackson were the only witnesses to Appellant's alleged crimes. The jury's assessment of their credibility was critical to the outcome of this case. The outcome, had Brown and Jackson testified without masks, is a matter of pure speculation. I would not find the trial court's error harmless.
Based on the foregoing, I would vacate the judgment of sentence and order a new trial. I respectfully dissent.
I note my agreement with the Majority's analysis of Appellant's sufficiency of the evidence argument. Because I would award a new trial for the Confrontation Clause violation, I would not reach the weight of the evidence argument.