concurring.
For the reasons stated in the prior panel decision of Vescuso v. Commonwealth, 4 Va. App. 32, 354 S.E.2d 68 (1987), I concur in the judgments reversing the convictions and remanding the cases for new trials.
Koontz, C.J., with whom Baker, J. and Hodges, J., join, dissenting.
I cannot join the majority in this case and respectfully dissent. While seemingly acknowledging the case-by-case analysis required by the “freedom of access” test, the majority has effectively adopted a “per se” rule that trials held within the perimeter wall of a prison are not public trials. To the extent that the majority finds that these trials were not public without evidence in the record supporting that conclusion, I believe the majority has abandoned the settled law in this Commonwealth.
The record upon which the majority relies consists solely of “the transcript and admissions of the parties . . . that the trials were held in a courtroom located within the perimeter walls of a medium security prison rather than in a courtroom of the Nottoway County Courthouse.” The record is devoid of evidence that the public was excluded or intimidated from attending the trials.
In Dammerau v. Commonwealth, 3 Va. App. 285, 349 S.E.2d 409 (1986), a panel of this court in reviewing an almost identical record reaffirmed the “freedom of access” test for public trials established by the Virginia Supreme Court in Jones v. Peyton, 208 Va. 378, 158 S.E.2d 179 (1967) and Caudill v. Peyton, 209 Va. 405, 164 S.E.2d 674 (1968). In Dammerau, the panel carefully specified the proper appellate standard for review of denial of public trial claims:
[T]he surroundings and circumstances of each situation must be examined to determine if the public was inhibited from attending the trial so that “freedom of access” was effectively denied. In order to make such a finding, however, an appellate court such as this one must have before it a record *71containing ample evidence of the surroundings and circumstances of the trial proceedings.
Id. at 289-90, 349 S.E.2d at 411.
The record before the court in the instant cases contains no such evidence and only by effectively adopting a per se rule that all trials held within a prison are not public can the result reached by the majority be supported. Accordingly, I would reject a per se rule and on the record in these cases hold that the appellants have not established that they were denied a public trial.