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National Crime Victim Law Institute

Commonwealth v. Tighe, 224 A.3d 1268 (Pa. 2020)

July 09, 2020

Defendant was charged with sexual offenses committed against a child-victim and elected to proceed pro se, with appointed stand-by counsel. When released on bail, defendant was ordered to have no contact with the child-victim, but shortly after release, the child-victim reported to law enforcement that defendant had phoned her multiple times in the same day. The government filed a petition to revoke defendant’s bail, and the court held a bail revocation hearing at which defendant appeared pro se and the child-victim was scheduled to testify as a witness for the government. The government moved to restrict defendant’s ability to personally question the child-victim at the bail revocation hearing, arguing that defendant forfeited his ability to proceed pro se in this respect by violating the terms of his release and contacting the child-victim. The court granted the government’s request, ruling that for purposes of the bail revocation hearing, defendant could write down any questions he wanted asked of the child-victim and have either the court or stand-by counsel ask the questions for him. Following a revocation hearing using this procedure, during which the child-victim testified that she was “shocked” and “scared” by the calls, defendant’s bail was revoked. At a pretrial hearing, defendant sought clarification regarding his ability to cross-examine the child-victim at trial, with defendant seeking the ability to proceed pro se and personally conduct cross-examination and the government maintaining that defendant forfeited that right by violating the conditions of bail. The court determined at the final pretrial conference that defendant would not be permitted to personally cross-examine the child-victim, relying on defendant’s violation of the terms of his release, along with the age of the child-victim and defendant’s “position of trust” vis-à-vis the child-victim. At trial, defendant objected again and the court reiterated its ruling; the jury received an instruction that stand-by counsel, “as a procedural matter, may take a more active role at some point in the proceedings” but that the jury was to draw no negative inferences against defendant as a result. Stand-by counsel conducted cross-examination of the child-victim during the state’s case and also conducted a direct examination of the child-victim as part of the defense case, using questions prepared by defendant. Following conviction on all charges and sentencing by the court, defendant filed a post-sentence motion and ultimately appealed alleging, inter alia, that the trial court violated his constitutional right to self-representation by refusing to allow him to personally question the child-victim. On review, the Pennsylvania Supreme Court held that “misbehavior affecting the right to self-representation is not restricted to the courtroom” and that misconduct that occurs outside of the courtroom may determine whether forfeiture is warranted. The Pennsylvania Supreme Court further held that “threatening or intimidating a potential trial witness” constitutes obstructionist misconduct which, if demonstrated, can properly result in the “complete or partial forfeiture of [a defendant’s] pro se status.” The Pennsylvania Supreme Court further found that the record in this case supported a finding that defendant’s purpose in contacting the child-victim was to influence her participation in the criminal proceedings and that the child-victim felt threatened and/or intimidated by the contact. Because defendant’s “serious and obstructionist misconduct compromised the core truth-determining function of a trial,” he “forfeited his right to personally cross-examine” the child-victim, and the court found no constitutional violation. A number of justices filed separate opinions, concurring in and/or dissenting from the Opinion Announcing Judgment of the Court and articulating differing rationales underlying the ultimate outcome.