Commonwealth v. Contakos

*342OPINION

FLAHERTY, Justice.

On March 13, 1979 Samuel C. Contakos was convicted in the Court of Common Pleas of the Fourteenth Judicial District, by a jury, of first degree murder and criminal conspiracy. The next day, after hearing evidence as to aggravating and mitigating circumstances, the jury returned a verdict of life imprisonment as the sentence for the murder conviction. Contakos also received a consecutive sentence of five to ten years on the conspiracy conviction. An appeal was taken to this Court, and on February 4,1981, we vacated the judgment of sentence and remanded the case for a determination as to whether the nondisclosure of certain written records of interviews with Commonwealth witnesses who testified at trial was harmless error. On March 25,1982 the trial court issued an order reinstating the judgment of sentence and ruling that the error was harmless. Following the trial court’s reinstatement of judgment of sentence, the instant appeal was taken to this Court, which appeal was specifically allowed by our February 4, 1981 order.

Appellant raises eight assignments of error, but because we agree that reversible error was committed when the trial court cleared the courtroom during part of the trial, we do not address the other matters complained of.1

*343The factual setting of appellant’s claim that reversible error was committed when the trial court closed the trial to the public is as follows. Immediately before the Commonwealth’s chief witness was to testify, the trial judge was notified by the Pennsylvania State Police that an attempt might be made on the life of the next witness. Over defense objection, the trial judge closed the courtroom during the testimony of this one witness, except that members of the media were allowed to be present. It is unclear from the record whether all media personnel were permitted to be in the courtroom, or whether only certain media personnel were admitted. In any event, the trial was closed to the public, including members of appellant’s family, during the testimony of the Commonwealth’s main witness. The question raised on this appeal is whether a segment of a criminal trial may be closed to the public in order to protect the life of a witness, upon reliable information that an attempt might be made on that person’s life.

Appellant asserts the abridgment of his right to a public trial under the First, Sixth and Fourteenth Amendments to the United States Constitution, and under Art. I Sect. 9 of the Pennsylvania Constitution. Because we hold that the closure in this case was violative of the Pennsylvania Constitution, we do not address the federal claim.

The Pennsylvania Constitution at Article I, section 9, provides: “In all criminal prosecutions the accused hath a right to ... a speedy public trial by an impartial jury of the vicinage,” and Article I, section 11 provides: “All courts shall be open.” Section 11, mandating open courts, has been the law of Pennsylvania for three hundred years. It was present in the Pennsylvania Frame of Government of 1682 and was reaffirmed in § 26 of the Constitution adopted by Pennsylvania in 1776. See Richmond Newspapers v. Virginia, 448 U.S. 555, 568, 100 S.Ct. 2814, 2822, 65 L.Ed.2d 973, 984 (1980), citing Sources of Our Liberties, ed. R. Perry, 217 (1959), 1 B. Schwartz, The Bill of Rights: A Documentary *344History, 140 (1971). Section 9, providing for a “speedy public trial,” was adopted in the Pennsylvania Declaration of Rights in 1776. Schwartz, Id., 265.

The historical basis for public trials and the interests which are protected by provisions such as Pennsylvania’s open trial mandate have been well researched and discussed in two recent opinions of the United States Supreme Court, Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), and Richmond Newspapers, Inc. v. Virginia, supra, and can be briefly summarized as follows: generally, to assure the public that justice is done evenhandedly 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.

These considerations, which were applied by the United States Supreme Court in its analysis of the First and Sixth Amendments in Gannett and Richmond Newspapers apply equally to our analysis of Pennsylvania’s constitutional mandate that courts shall be open and that an accused shall have the right to a public trial. We are mindful, as was the Court in Richmond Newspapers, of our virtually unbroken history of public trials and openness in criminal trials. Justice Hugo Black has well expressed the pervasiveness of this tradition:

[W]e have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star *345Chamber in 1641, and whether that court ever convicted people secretly is in dispute....
This nation’s accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial.

In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 504, 92 L.Ed. 682 (1948), cited in Richmond Newspapers, supra, 448 U.S. at 573, n. 9, 100 S.Ct. at 2825, n. 9, 65 L.Ed.2d at 987, n. 9.

Pennsylvania, however, has a concern with public trials that goes beyond even the unbroken history of public trials to which Justice Black refers. In Pennsylvania it is specifically and constitutionally mandated that courts shall be open. In other words, the public shall not be excluded from trials, the courts shall not be closed. That members of the media were present during the closure in this case does not satisfy the requirement of openness. While it is true that attendance at a criminal trial is subject to reasonable time, place and manner restrictions, Cf. Richmond Newspapers, supra, at 581, n. 18, 100 S.Ct. at 2829, n. 18, 65 L.Ed.2d at 992, n. 18, the openness mandated by our constitution is not satisfied if only representatives of the media are present in the courtroom. Exclusion of the public would strike at the essence and meaning of our mandate for an open court, for the public counterbalances what might otherwise become a tyranny of the media, and the public and the media together counterbalance the possible emergence of a corrupt or biased judiciary.

In order to understand the especially important place that openness of trials has in Pennsylvania, it is well to remember that William Penn was himself the victim of a trial conducted without regard for due process. In 1670 William Penn and William Mead were tried before a jury at the Old Bailey in London on an indictment of unlawful assembly, disturbing the peace, and “causing a great concourse and tumult.” Penn, The Tryal of William Penn and William Mead for Causing a Tumult (1719, 1919 Boston) 2. Penn had *346addressed a group of three hundred Quakers in Grace Church Street, London, after the Quakers had found their meeting house locked by order of the crown. At the trial which followed, the jury found that Penn spoke in the street, but refused to find him guilty of any criminal offense. The judges directed the jury to find the defendants guilty as charged, but the. jury refused, whereupon the court directed that they be confined without food or amenities until they complied.

The jury, however, refused to comply, and the trial was abruptly ended after the jury had been confined to the jury chamber for two days. The court’s displeasure with the verdict was reflected in its fining of the jurors forty Marks each and imprisoning them until the fines were paid. Although Penn was found not guilty, he too was imprisoned for fines based on contempt of court. The jurors were released, however, after Chief Justice Sir John Vaughan of the Court of Common Pleas issued a writ of habeas corpus. The Chief Justice held that judges may not compel a verdict in a criminal case against the convictions of the jury. See “The Trial of William Penn,” 6 Litigation (Winter 1980), 35, 49.

This trial is likely to have left an impression on Penn. He considered the charges against him to be in violation of the Great Charter of 1225 and the earlier version, the Magna Carta; he was repeatedly removed from the courtroom by force and held in the “bayl dock,” a cage-like structure; and the tone of the trial was one of bullying and even open threat.2

*348It seems not unduly speculative that Penn had this trial in mind when, in 1682, he wrote by his own hand in his Frame Of Government that all courts shall be open. The Frame of Government was a contract between the proprietor, Penn, and the citizens of his colony, expressing his political philosophy and proposed laws for the governance of the colony. Illick, Colonial Pennsylvania: A History 14 (1976). The language employed by Penn has remained unchanged in the respective constitutions of our Commonwealth. It is, of course, unthinkable to us that a contemporary defendant in a criminal case could be treated as was Penn. But our assurance of fairness derives, at least in part, from our knowledge that our courts are open. Closed trials are the mechanics of tyranny.

The public and representatives of the press alike enjoy the constitutional right in Pennsylvania to attend trials. Neither may be excluded because the other is present. Cf. Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543, 549 (1965), (representatives of the media have the same right as the public to attend criminal trials). This right of the public to attend criminal trials and of the accused to be assured of the freedom of the public to attend these trials and to monitor what goes on there has been abridged in this case. The trial court failed to preserve the appellant’s constitutional right to an impartial public trial. Accordingly, we reverse the judgment of sentence and remand for a new trial.

*349ROBERTS, J., files a concurring opinion in which O’BRIEN, C.J., joins. NIX, J., files a dissenting opinion in which HUTCHINSON, J., joins. McDERMOTT, J., files a dissenting opinion.

. The other claims raised are (1) the lower court erred in ruling that the Commonwealth’s failure to produce certain written records concerning witness interviews was harmless error; (2) it was error to deny certain points for charge and instructions to the jury; (3) the sentence is illegal and the applicable sentencing provision is unconstitutional; (4) it was error to deny the pretrial motion for change of venue; (5) the lower court erred in evidentiary rulings on rebuttal testimony and dates of a fingerprint analysis; (6) the lower court erred in failing to dismiss the informations because of violation of constitutional and speedy trial rights. We decline to discuss these issues because of our decision to award a new trial on the public trial-open court issue. Other claims, viz., that the lower court erred in refusing to admit appellant’s evidence concerning statements made by the deceased victim to certain family members; that the lower court erred in denying evidence of routine and habit as part of an alibi defense; and that the court erred in failing to instruct on the *343intoxication defense, are likely to arise again in a new trial and will require close scrutiny by the trial court on remand.

. At one point in the trial, the following exchange occurred between the foreman of the jury, the juror Bushel, and the Lord Mayor Samuel Starling, who was the presiding judicial officer:

CLERK. What say you? Look upon the Prisoners at the Bar. Is William Penn Guilty of the Matter whereof he stands indicted, in Manner and Form as aforesaid, or Not guilty?
FOREMAN. William Penn is guilty of Speaking in Grace Church-Street.
MAYOR. To an unlawful Assembly?
BUSHEL. No, my Lord, we give no other Verdict than what we gave last Night; we have no other Verdict to give.
*347MAYOR. You are a factious Fellow, I’ll take a Course with you.
SECOND JUDGE. I knew Mr. Bushel would not yield.
BUSHEL. Sir Thomas, I have done according to my Conscience.
MAYOR. That Conscience of yours would cut my Throat.
BUSHEL. No, my Lord, it never shall.
MAYOR. But I will cut yours so soon as I can.

The Tryal of William Penn, supra, 26-27.

Penn’s response to these events, in part, is recorded in his “Exceptions Against the Procedure of the Court”:
[Six exceptions preceded the following:]
7th I cannot but except agt yr Illegal Proceedings in not suffering me to plead for myself, or to be fully heard either by way of Question, or Answer: nor yet to make, nor offer those material, & necessary Demands, & Objections; which is my undoubted Right. As (1st) That you of the Bench should be my Council; & not with harsh menaces, & scornful Repartees to prevent or silence my legal & sober Offers. Nor yet (2d) When I asked Oyr of the Law (you pretend I have broken) that you should deny it me, as a motion agt the honour of the Court; though the known Common rights of every Englishman. Neither (3d) should you hale me by violence from the Barr into the Bayl dock & then to give the Jury Charge in my Absence: which is notoriously agt the Law. Nor, when I called upon you to signifie as much; immediately to send me into the stinking Hole, & then to say your pleasure of me to the Jury. And when they agreed not upon their Verdict; to minace & abuse them with severe Reflections. Nay, when the Verdict was agreed upon; you utterly refused it, and swore certain persons, to keep them locked up all night, in order to obtain your ends; although I asked a Record of the Verdict, & that the Sentence of the Bench ought to wait upon, & be pursuant to the Verdict of the Jury.
These Exceptions above written I make, as good in Law, if you deny me the Benefit of them, as being agt Law: & my Right, as an Englishman, I require you to give it me under your Hands & Seals, as you in the Like case ought to do.

The Papers of William Penn, ed. Dunn & Dunn (1981), 175-76.

Adding to Penn’s troubles, the trial occurred when his father was near death. Penn wrote to his father describing the trial as follows:

Dear Father:
Because I cannot come, I write. These are to lett thee know that this morning about 7 we were remanded to the Sessions. The Jury after two nights & two days being locked up, came down & offerr’d their former verdict, but that being refused as not so positive, they explained themselves in answering not Guilty. Upon which the Bench were amazed, & the whole Court so satisfyed that they made a Kinde of Hymne — but th[at] the Mayor Recorder Robinson & might add to their Malice, they fined us to the number of about 12 of us, for not pulling off our hatts & [kept] us prisoners for the mony An injurious trifle [which] will blow over, or we shall bring it to the Common Pleas because it was against Law & not by a Jury sessed. How Great a dissatisfaction three of their actions have begott may very reasonably be conjectured from the bare Mention of them (1) That the Jury was about 6 times rejected in their verdict & besides vaine fruitless illegal menaces, were kept two *348days & two nights without bed, tobacco provisions & (2) that a Sessions should be held on the first day [Sunday] (the designe we know) (3) that the Jury, [the] only judges by law should be fined 40 Marks each. & to be prisoners till they have paid it and that without any Jury to pass upon [t]hem. However their verdict is accepted for us. because they did not dare deny it. This is the Substance. The Circumstances I shall personally relate if the Lord will. I am more concerned at thy distemper & the pains that attend it than at my own [mere] Imprisonment which workes for the best.
I am Dear Father.
Thy obt Sonne.
Wm Penn.

Id., 177, Letter of September 5, 1670.