Com. v. Padilla, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ADRIAN CARLOS PADILLA
Appellant No. 1463 MDA 2020
Appeal from the Judgment of Sentence September 28, 2020
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0004011-2019
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY STABILE, J.:FILED: December 15, 2021
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,
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* Former Justice specially assigned to the Superior Court.
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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
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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.
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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.1 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.
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1 Thus, certain hearsay statements can be admitted even though the
defendant cannot confront the declarant. Id. at 847-48.
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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 Clause2 rights were
compromised without justification. Id. at 751.
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2 The Atkinson Court noted that the Pennsylvania Confrontation Clause
provides the same protection as its federal counterpart. Atkinson, 987 A.2d
at 745.
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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.
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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 sponte3 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
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3 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).
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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.
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),4 the government requested that testifying witnesses wear
transparent face shields or remain behind plexiglass screens.
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
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4 I cite unpublished and/or extra-jurisdictional case law for illustration and
persuasive authority.
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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
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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.
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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
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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 *2.5 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.6
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5 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.
6 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.
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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).
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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.7 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
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7 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.
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contingent on whether the county was able to obtain and install plexiglass
barriers prior to his trial date.
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
The attorneys were permitted to remove their
2
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.
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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.
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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.8 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.
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8 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.
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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.
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Based on the foregoing, I would vacate the judgment of sentence and
order a new trial.9 I respectfully dissent.
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9 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.
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