Com. v. Jordan, D. ( 2019 )

J-S14036-19
2019 PA Super 173COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANTE T. JORDAN, :
:
Appellant : No. 545 EDA 2017
Appeal from the Judgment of Sentence January 13, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008738-2015,
CP-51-CR-0008739-2015
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.
CONCURRING OPINION BY NICHOLS, J.: FILED MAY 29, 2019
I agree with the majority that the trial court erred by closing the
courtroom during voir dire without considering Jordan’s reasonable alternative
of permitting entry for his mother and stepfather only. I write separately to
emphasize that trial judges must adhere to the processes prescribed by the
United States and Pennsylvania Supreme Courts before deciding that closure
of a courtroom is warranted.
“[T]he right to a public trial is not absolute; rather, it must be considered
in relationship to other important interests.” Commonwealth v. Conde, 822
A.2d 45, 49 (Pa. Super. 2003) (citation and footnote omitted). “Closed
proceedings, although not absolutely precluded, must be rare and only for
cause shown that outweighs the value of openness.” Press-Enterprise Co.
v. Superior Court of Cal., 464 U.S. 501, 509 (1984) (footnote omitted).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14036-19
[T]he circumstances under which the press and public can be
barred from a criminal trial are limited; the State’s justification in
denying access must be a weighty one.
* * *
The presumption of openness may be overcome only by an
overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that
interest. The interest is to be articulated along with findings
specific enough that a reviewing court can determine
whether the closure order was properly entered.
Id. at 509-10 (citation and quotation marks omitted) (emphasis added).
Here, the trial court failed to articulate adequate findings to support its
decision to close the courtroom. Specifically, the court baldly asserted its
concerns over juror privacy without any corresponding assessment of the
reasonable alternative to a total closure proffered by Jordan’s attorney.
Absent such an assessment, the court erred. See id.The majority notes that the trial court was “obligated to explain why
Jordan’s mother and stepfather, who are not ‘regular’ members of the public
vis-à-vis Jordan, were properly excluded when presented with that reasonable
alternative to closure.” Majority Slip Op. at 23 n. 15. While this proposition
is accurate under the circumstances here, I also note that our holding does
not impose a new requirement forcing a trial judge to evaluate a defendant’s
relationship to those seeking entry to the courtroom in every case.
Accordingly, I concur with the majority.
Judge Lazarus joins the concurring opinion.
-2-