Commonwealth v. Bourgeon

OLSZEWSKI, Judge,

concurring:.

I concur in the result reached by the majority in this case. I write separately only to further clarify the trial court’s discussion of the unavailability of the child witness.

For purposes of using a witness’s former testimony, the witness is unavailable if he or she is dead, out of the jurisdic *364 tion, cannot be found, or is sick or insane. Shields v. Larry Construction Co., 370 Pa. 582, 585-87 , 88 A.2d 764, 766 (1952); Mackintosh-Hemphill Div. v. Unemployment C.B. of R., 205 Pa.Super. 489, 493-95 , 211 A.2d 23, 26 (1965). The trial court here found that the child witness was unavailable under the illness prong, based on the trauma that the child would suffer as a result of being forced to testify again. While the illness prong of the unavailability test is not well developed in the case law, it seems that a witness’s subjective fear of testifying at trial does not constitute an illness. See Commonwealth v. Ludwig, 366 Pa.Super. 361, 400-02 , 531 A.2d 459, 479 (1987), appeal granted, 518 Pa. 617 , 541 A.2d 744 (1988), reversed, 527 Pa. 472 , 594 A.2d 281 (1991) (Cirillo, J., dissenting). A trial is stressful by nature, and a person should not be excused for having a normal reaction to the judicial proceedings. Id.

We have found illness, and therefore unavailability, however, if the stress of trial aggravates a pre-existing medical condition. See Commonwealth v. Stasko, 471 Pa. 373 , 370 A.2d 350 (1977). In Stasko , the trial court found a witness to be “ill,” and therefore unavailable, based upon evidence that she previously had numerous abdominal operations for ulceric conditions and the emotional strain of appearing for trial would have greatly aggravated her existing medical condition. On appeal, our Supreme Court held that the witness was properly found unavailable and the testimony did not violate the defendant’s confrontational rights. Id.

In the instant case, an expert testified that the child would suffer severe emotional distress if he were forced to testify at the second trial. The illness required for unavailability, however, was not found on the basis of a subjective fear of testifying at trial. The requisite illness was found in the fact that the child witness was traumatized by testifying at the first trial, and now had a pre-existing medical condition which would be aggravated by the stress of being forced to testify at the second trial. 1 This case falls squarely within the scope of *365 Stasko , and the majority opinion cannot be interpreted as creating any general category of unavailability based solely on subjective fears of testifying at trial.

In addition to the illness prong of unavailability, which applies to all witnesses, special considerations also exist in this case that militate against finding a confrontation right violation. This child witness has been the victim of a neighbor’s sexual abuse. The child testified at the defendant’s first trial, under oath and in the defendant’s presence. At that first trial, the defendant had a full and fair opportunity for live cross-examination. Additionally, an expert testified about the real physical symptoms that this child experienced, such as vomiting and diarrhea, in anticipation of testifying' again.

Unlike the child witness videotape cases in recent years that have been found to violate the Pennsylvania Constitution, this defendant did have the opportunity to confront his child accuser face-to-face, and this child witness suffered real physical symptoms and not just a subjective fear of testifying. Cf. Commonwealth v. Louden, 536 Pa. 180, 187-89 , 638 A.2d 953, 957 (1994) (finding 42 Pa.C.S. §§ 5984 and 5985 unconstitutional because they raise subjective fears of child witness above the rights of a defendant to confront his accuser face to face); Commonwealth v. Ludwig, 527 Pa. 472, 480-82 , 594 A.2d 281, 285 (1991) (finding child witness’s subjective fears about testifying not sufficient to override defendant’s right to a face-to-face confrontation with his accuser). In a case such as this, the state’s interest in protecting the child outweighs the very limited infringement on the defendánt’s confrontational rights.

Based on the foregoing, I concur in the majority’s conclusion that appellant’s right to confrontation was not violated.

. A child psychology expert testified that after the trauma of testifying in the first trial, the threat of testifying again caused the child to suffer vomiting, diarrhea, and thoughts of suicide. N.T. 5/26/93 at 26.