The Volokh Conspiracy
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Criminal Conviction Based on "Only Women Can Be Mothers" and "'Transing' Kids Is Abuse and Homophobia" Signs, …
displayed on defendant's car and on her fence facing neighbors who have a transgender child; an appellate court reverses the conviction on procedural grounds, without resolving the First Amendment issue.
Last Wednesday's decision of a Pennsylvania appellate court in Commonwealth v. Balcom (by Judge Alice Beck Dubow, joined by Judges Deborah Kunselman & Carolyn Nichols) involved a dispute between neighbors. O'Donnell and Collier, a gay couple, lived with their sons "and their daughter, K.H., who is transgender"; Balcom lived next door, "and she and Victim's [O'Donnell's] family have had an acrimonious relationship for several years. Appellant's backyard abuts Victim's backyard, with a fence along the shared property line."
Mr. Collier was parking his car on the street near their home after picking up their sons when Appellant [Balcom], who was in her car, displayed a sign in the rear window of her car that said, "only women can be mothers." The next evening, Victim and his family returned home to find that Appellant had placed a large sign on the fence facing their back yard, and K.H.'s bedroom window, that said "'transing' kids is abuse and homophobia[.]" The sign was only visible from Victim's house or yard and to anyone walking their dogs in the adjacent alley if they "crane[d] their necks."
Victim filed a private criminal complaint against Appellant, in which he referenced the backyard sign and stated that Appellant had been "harassing [his family] for 2 years." Accordingly, the Commonwealth charged Appellant with Harassment, a summary offense.
The Magisterial District Court convicted Appellant and sentenced her to pay a fine of $200. Appellant appealed and proceeded pro se to a de novo bench trial in the Court of Common Pleas ….
Early in the trial, Appellant asked the court if she could object. The court responded "[n]o, you're not an attorney[,]" then reiterated, "[y]ou're not an attorney. You don't get to object[,]" but assured Appellant that the court would "give [her] the opportunity to present [her] side."
Victim then testified in accordance with the above facts, and also explained Appellant's history of making social media posts directed at his family. K.H.'s therapist, Susan Cherian, then testified about the effect that the sign had on K.H.
Appellant chose not to cross-examine Ms. Cherian but told the court that she had a "long list" of questions for Victim, including questions about his role in their conflict, and claimed that Victim had harassed her for years. The court instructed Appellant to "[f]orget the cross-examination, tell me your side of the story." During her testimony, Appellant admitted to posting the yard sign.
The same day, the court convicted Appellant and sentenced her to pay a fine of $200 and court costs.
The appellate court overturned the conviction on Confrontation Clause grounds:
"[T]he Sixth Amendment guarantees criminal defendants the right to confront and cross-examine adverse witnesses" to ensure a fair trial…. It is well-settled that a defendant has the right to confront witnesses through cross-examination, subject to reasonable limitations. The court erred when it prevented Appellant from cross-examining Victim, the Commonwealth's primary witness. If the trial court were concerned that Appellant's cross examination would become repetitive or focus on irrelevant topics, the trial court could impose reasonable limitations. Precluding Appellant, however, from engaging in any cross-examination of the Victim undisputedly violates Appellant's constitutional right to confront witnesses….
Furthermore, this error was not harmless because the Commonwealth's case rested on Victim's testimony, as he was the only fact witness, and the trial court's limitation prevented Appellant from challenging the veracity of his testimony. Accordingly, we are constrained to vacate Appellant's judgment of sentence and remand for a new trial….
The court didn't consider Balcom's claim that her speech was protected by the First Amendment, and didn't qualify as harassment under Pennsylvania law; presumably those will be considered again on appeal if she is retried and convicted again.
