Commonwealth v. Frattarola

485 A.2d 1147, 336 Pa. Super. 411, 1984 Pa. Super. LEXIS 7012

• Court: Supreme Court of Pennsylvania
• Decided: December 12, 1984
• Docket: 347
• Status: Published

Opinions

WICKERSHAM, Judge:

In the action underlying this appeal by Philadelphia Newspapers, Inc., Westinghouse Broadcasting and Cable, Inc. and Central States Publishing, Inc. (hereinafter, “the media”), the defendants, several of whom were public officials and prominent politicians, were charged, inter alia, with illegally interfering with a Delaware County primary election in May of 1981. At the preliminary hearing, the chief Commonwealth witness, Richard T. Burke, testified extensively as to the content of conversations he had had with several of the defendants. Many of these conversations had been electronically intercepted and recorded, allegedly with the consent of Mr. Burke. The tapes themselves were not played at the preliminary hearing.

On July 30, 1982, the Commonwealth filed a motion seeking a pretrial hearing to determine the authenticity, audibility, integrity, and identification of the aforementioned tape recordings, pursuant to United States v. Starks, 515 F.2d 112 (3d Cir.1975).¹ The hearing on this motion, commencing on October 12, 1982, was closed to the press and public on the motion of defendant-appellee Catania, which motion was joined orally by the other defendants and the Commonwealth, over the objections.of Philadelphia Newspapers, Inc. and Central States Publishing, Inc. The hearing resumed on October 13, 1982, at which time Westinghouse Broadcasting and Cable, Inc. requested access, which request was denied by the court.² On October 13, 1982, Philadelphia Newspapers and Central States Publishing appealed to this court from the lower court’s order denying public access to the pretrial Starks hearing. On October 14, 1982, in a per curiam order, this court remanded the case to the lower court so that the media could request access to the transcripts of the already-concluded hearing. This court advised the lower court to consider any less restrictive alternatives before denying the media access to the transcripts.

On October 13, 1982, the lower court entered an order dismissing all charges against Donald and Leroy Frattarola and Charles P. Sexton, Jr. The court left one count each against defendants Catania and Jacono. Subsequently, on January 4, 1983, the lower court entered an order dismissing the remaining charges against Catania and Jacono under the de minimis provisions of the Crimes Code.³

On November 22, 1982, the lower court heard the media’s motion to permit access to the transcripts of the Starks hearing and the tape recordings. The court denied and dismissed the motion on January 4, 1983. The media filed a notice of appeal to this court on February 3, 1983.

MOOTNESS

Before proceeding with the merits of this appeal, we must consider a threshold question: whether this appeal is moot because of the termination of the underlying criminal prosecution.⁴

As we have already noted, all criminál charges against all defendants in the underlying action have been dismissed. Parts of the record and transcripts of the tapes remain sealed, however. Therefore, we believe that the controversy is not moot. If we reverse the order of the lower court, our decision will have the effect of granting access to the press and public to the transcripts in question. If we affirm the order of the lower court, the transcripts will remain sealed.

We are here presented with a controversy capable of repetition, yet evading review. Southern Pacific Terminal Co. v. ICC; 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 313 (1911). By their very nature, closure orders often may not be subject to review Until after the underlying action is completed. In United States v. Cianfrani, 573 F.2d 835 (3d Cir.1978), the Court of Appeals for the Third Circuit noted:

[RJeview of a closure order similar to that issued in this case generally must come after the pretrial hearing is over, and often must come after the underlying criminal proceeding is over as well. To deny review because those underlying proceedings have come to an end would make it difficult for this court ever to review orders that are of great importance to fundamental rights, yet that are by their nature often of short duration. Thus, we believe that the order of the court closing the hearing and sealing the record is one capable of repetition in other cases, yet one that evades review in the specific instance.

Id. at 846.

We agree. There is a reasonable expectation that the appellants will be subjected to similar closure orders in the future. See Globe Newspaper Company v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Commonwealth v. Buehl, 316 Pa.Super. 215, 220, 462 A.2d 1316, 1319 (1983). We conclude that this appeal is not moot and we, therefore, proceed to the merits.

ACCESS TO THE TRANSCRIPT OF THE STARKS HEARING

The first substantive issue with which we are faced is the existence and extent of the right of the press and public to have access to the transcripts of the pretrial Starks hearing. The lower court ordered closed the portions of the Starks hearing dealing with the contents of the tape recordings in order to assure that defendants’ rights to a fair trial would not be prejudiced. In this appeal, however, we are not concerned with the propriety of the closure order. Rather, we must determine whether, after all. the charges have been dismissed, the press and public have a right of access to the transcript of the closed Starks hearing.⁵ Since all the charges have been dismissed, the defendants’ fair trial rights are no longer in jeopardy. Thus, we must decide if there are any other factors that would limit appellants’ access to the transcripts of the hearing.

Appellee asserts that both Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. and the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5726⁶ prohibit the disclosure of the contents of the tape recordings in the instant case.

Title III is a comprehensive statute designed to regulate strictly the interception and disclosure of wire and oral communications. It “has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of [such communications] may be authorized.” S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in [1968] U.S. Code Cong. & Admin.News, pp. 2112, 2153. The legislative history of Title III makes it clear, as do the elaborate authorization and disclosure provisions of the statute itself, that “the protection of privacy was an overriding congressional concern” of the act. Gelbard v. United States, 408 U.S. 41, 48, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972) (footnote omitted) (decided together with a case on certiorari to this circuit, United States v. Egan, id. [408 U.S. 922, 92 S.Ct. 2479, 33 L.Ed.2d 332]).

Indeed, Title Ill’s complex provisions regulate both interception and disclosure of communications in great detail. The statute legalizes interceptions conducted pursuant to the authorization provisions of § 2516 and § 2518. In addition, it specifically exempts from those provisions only certain limited categories of interceptions. One of those exempted categories comprises interceptions “where one of the parties to the communication has given prior consent to [the] interception,” which the statute declares “shall not be unlawful,” § 2511(2)(c). Any interceptions other than those authorized by § 2516 and § 2518 or excepted by § 2511 are declared illegal.

* * * * * sfc

Title III affirmatively provides for the disclosure of intercepted communications only in certain carefully limited instances. Public disclosure with limited exceptions, is authorized only in accordance with § 2517(3):

Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.

18 U.S.C. § 2517(3). The legislative history explains that what may be disclosed within § 2517(3) are those communications that were not “unlawfully intercepted” within the meaning of § 2518(10)(a). S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 2112, 2195.

Title III thus authorizes the disclosure only of certain communications at a suppression and Starks hearing: those intercepted in accordance with the authorization procedures of § 2516 and § 2518, or else those intercepted under one of the exceptions to § 2516 and § 2518 contained in § 2511.

United States v. Cianfrani, 573 F.2d 835, 855-56 (3d Cir. 1978) (footnotes omitted).

Thus, Congress’ interest in protecting the privacy of communications can, in some instances, limit the public’s right of access to criminal proceedings.

Instantly, appellee Catania filed a petition for a writ of habeas corpus alleging that the tapes and transcript of the intercepted communications violated both the federal and the state wiretapping statutes. The Commonwealth then petitioned for a Starks hearing in order to determine the “lawfulness” of the wiretap. The court below never ruled on the Commonwealth’s Starks motion. Rather, all of the charges against the defendants were dismissed without the court determining whether the communications were lawfully intercepted.

We believe that prior to a determination by a court that communications were lawfully intercepted, Title III requires limitations on disclosure. See Cianfrani, supra at 857, n. 10.⁷ There can be no disclosure of intercepted communications until a court has ruled that the interception was lawful. In this case, no court has ever ruled on the lawfulness of the subject tape recorded communications. Thus, Title III prohibits disclosure of the contents of the tape recordings in the instant case.

The Pennsylvania wiretapping statute, 18 Pa.C.S.A. §§ 5701-5726, contains disclosure provisions similar to those found in Title III. The state act also limits disclosure until a determination of the lawfulness of the interception is made.⁸ Thus, the state statute, like the federal statute, prohibits public access to those portions of the transcript of the Starks hearing in which the contents of the tape recordings are discussed.

Neither the federal nor the Pennsylvania statute, however, requires that the entire Starks hearing transcript remain sealed; rather, only those portions of the transcript that refer to the contents of the tape-recorded conversations are to be protected from public disclosure.⁹ Thus, the order of the lower court denying appellants access to those portions of the transcript of the Starks hearing dealing with the contents of the tape recordings is affirmed.¹⁰

BILL OF PARTICULARS

Subsequent to the filing of this appeal, appellant Central States Publishing, Inc. was denied access by the court administrator of the Court of Common Pleas of Delaware County to the Commonwealth’s Bill of Particulars which was filed in July 1982 in response to appellee Catania’s request therefor. The Bill of Particulars contained exhibits that quoted extensively from the tape recordings. The newspapers filed in this court a petition for access to the Bill of Particulars. Appellee Catania filed a response to that petition. On June 30, 1983, this court entered a per curiam order¹¹ continuing the sealing of the Starks transcript, including the Commonwealth’s Bill of Particulars, during the pendency of this appeal.

In this appeal, appellants argue that they are entitled to access to the Bill of Particulars.¹² However, I am of the opinion that we cannot grant appellants access to the Bill of Particulars for the same reasons that we could not grant them access to the complete transcript of the Starks hearing. Both Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. and the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5726 prohibit the disclosure of the contents of the tape recordings. By permitting appellants to have access to the Bill of Particulars we would, in effect, be handing a copy of the transcript of the tape recordings to them. We have held that, since no court has ruled on the lawfulness of the interceptions, we cannot disclose the contents of those recordings. If we were to require the lower court to divulge the contents of the Bill of Particulars to appellants, we would eviscerate the purpose of our own ruling.

Of course, the limitation on appellants’ access to the record in this case must be as narrow as possible. Thus, only those portions of the Bill of Particulars and its accompanying exhibits that deal with the contents of the electronically intercepted communications must be sealed. The federal and state wiretapping statutes require that the contents of such tape recordings not be disclosed until a determination is made that the communications were lawfully intercepted. Thus, I would hold that all portions of the record of this case dealing with or referring to the contents of the electronic surveillance must be sealed. Appellants and other members of the press and public must be granted access to all other parts of the record.

Order affirmed.

WIEAND, J., filed a concurring opinion. LIPEZ, J., filed a dissenting opinion.

1 . In United States v. Starks, 515 F.2d 112 (3d Cir.1975), the Court of Appeals for the Third Circuit held that a party intending to offer recordings into evidence at trial must "produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings.” Id. at 121, quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir.1967), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967).

2 . The order closing the hearing to the press and public was entered on October 13, 1982 and reads as follows:

AND NOW, to with[sic], this 13th day of October, 1982, having considered the Motion for Closure of certain aspects of proceedings undertaken in connection with the Commonwealth’s Motion for Hearing in Limine;

And it appearing that the prejudice to defendants from media coverage disseminated to potential jurors in this case is substantial, and would likely result in the inability of defendants to be tried before a fair and impartial jury;

And it further appearing that the purpose of the Starks hearing is merely to determine questions separate and apart from the relevance, materiality, and ultimate admissibility of any of the electronically intercepted recordings at any trial on the merits, should one be held;

It shall be and hereby is ORDERED, ADJUDGED and DECREED that (1) those aspects of the Starks hearing dealing with the playing of tape recordings, provision of transcriptions allegedly made therefrom, and any testimony relating to the content of those recordings shall be and hereby are closed to the public; (2) the record of those proceedings which deals with the content of the tapes, transcriptions allegedly made therefrom, and any testimony respecting the content of the tapes shall be and hereby is sealed; and (3) this Order shall remain in full force and effect until further Order of this Court.

3 . Act of December 6, 1972, P.L. 1482, No. 334, § 1. As amended, Act of June 22, 1978, P.L. 494, No. 73, § 1; 18 Pa.C.S.A. § 312.

4 . Appellants state this threshold issue as follows:

Is the denial of the constitutional right of the press and public of access to judicial records in this case one which is capable of repetition yet evading review and thus not subject to the mootness doctrine although the charges against the defendants have been dismissed?

Brief for Appellants at 3.

5 . Specifically, appellants state the issue as follows:

Did the court below err in refusing appellants access to the transcript of a pretrial proceeding in a criminal case where:

(a) Defendants’ rights to fair trials were not at issue, all charges against them having been dismissed;

(b) Defendants’ asserted privacy interests were insufficient to outweigh the constitutional right of access to judicial records; and

(c) No statutory provisions required denial of access to the transcript?

6 . Act of October 4, 1978, P.L. 831, No. 164, § 2.

7 . Our decision is supported by the Cianfrani opinion:

Title III requires such limitations even where interceptions allegedly obtained by consent are at issue. Intervenors argue that Title III does not govern the disclosure of consensually intercepted communications. They assert that the explicit exemption of consent interceptions from the authorization requirements of the act contained in § 2511(2)(c) implicitly exempts such interceptions from disclosure restrictions as well. We express no opinion on whether interceptions obtained by consent are exempt from the disclosure restrictions of the act once they have already been determined to have been intercepted by consent____ But we do believe that prior to that determination, Title III requires limitations on disclosure in order to insure that nonconsent — and therefore illegal — interceptions are not disclosed.

Cianfrani, supra at 857, n. 10 (emphasis added).

8 . See 18 Pa.C.S.A. § 5717(b):

(b) Evidence. — Any person who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of this Commonwealth or of another state or of the United States or before any state or federal grand jury or investigating grand jury.

Act of October 4, 1978, P.L. 831, No. 164, § 2, 18 Pa.C.S.A. § 5717(b) (emphasis added). The language of this provision indicates that only those intercepted communications that are authorized may be disclosed pursuant to this section.

9 . Appellants aver that the lower court improperly closed the entire Starks hearing. As we read the lower court order (see note 2), the closure was properly limited to those aspects of the Starks hearing dealing with the tape recordings and their contents. The denial of access to the transcripts of the Starks hearing should likewise be limited to those portions of the transcripts that refer to the contents of the tape-recordings.

10 . In his dissenting opinion, Judge Lipez argues that we should either remand with a direction to the lower court to determine whether the interceptions were legally made, or make that determination ourselves on the basis of the record before us. Judge Lipez favors the latter approach. I am of the opinion, however, that even should the lower court or this court decide that the interceptions were lawfully made, the Pennsylvania Wiretapping and Electronic Surveillance Control Act, Act of October 4, 1978, P.L. 831, No. 164, § 2, 18 Pa.C.S.A. §§ 5701-5726, precludes disclosure of the contents of the tapes.

As previously stated, both the federal and Pennsylvania statutes prohibit disclosure until a determination has been made that the communications were lawfully intercepted. Even after that determination has been made, disclosure is permitted only under limited circumstances.

The applicable federal provision states:

Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.

18 U.S.C. § 2517(3) (emphasis added).

The applicable section of the Pennsylvania statute provides:

(b) Evidence. — Any person who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of this Commonwealth or of another state or of the United States or before any state or federal grand jury or investigating grand jury.

18 Pa.C.S.A. § 5717(b) (emphasis added).

The underlined portions indicate the major difference between the two statutes. The federal statute permits disclosure "in any proceeding", while the Pennsylvania statute limits disclosure to testimony given "in any criminal proceeding.” Thus, the state statute is more narrowly drawn.

In its original version, the federal statute authorized disclosure only at "criminal proceedings.” Thus, the original version was almost identical to the present state statute. Under the more restrictive original version of the federal statute, the district court in United States v. Cianfrani, 573 F.2d 835 (3d Cir.1978), interpreted the statute to mean that public disclosure was authorized only at a full trial, in order to afford maximum protection to the privacy interests involved. Id. at 859 n. 13. Thus, the district court in Cianfrani refused to grant access to the transcript of a Starks hearing because it was not “a full trial.” The circuit court in that case reversed the district court because the statute had been amended to read "in any proceeding", thus broadening the circumstances under which legally intercepted communications could be divulged in court. Id.

The situation in the instant case is similar to that in Cianfrani. Thus, under the amended version of the federal statute, and pursuant to the analysis in Cianfrani, it would seem that, if the interceptions were lawfully made, we should grant access to the transcript of the Starks hearing since the testimony was given under oath in a court proceeding. We need not decide, however, whether the federal statute would permit disclosure in this case, since we hold that the Pennsylvania statute prohibits such disclosure.

Whereas the wording of the federal statute was changed in 1970, the state statute still contains the more restrictive “in any criminal proceeding” language. The district court in Cianfrani held that the Starks hearing was not included under the language "in any criminal proceeding” and that disclosure was limited to testimony given in a full trial. We agree. The purpose of the Starks hearing was to determine the authenticity, audibility, integrity, identification, and legality of the tape recordings of the intercepted communications. There was no adversarial process as to the contents of the tapes with regard to the actual crimes charged. The restrictive state statute authorizes disclosure only at a full trial. Even if the lower court were to determine that the interceptions were lawfully made, the Pennsylvania statute would prohibit disclosure. Thus, a remand would be neither useful nor appropriate.

11 . The order entered by this court reads as follows:

ORDER

AND NOW, this 30th day of June, 1983, upon consideration of the petition seeking access to the District Attorney’s response to the Bill of Particular's filed below in this matter, and upon consideration of the responses, memoranda and argument of parties, it is ordered that, for the purpose of preserving the status quo of the parties during the pendency of this appeal: (1) the oral order of The Honorable Edmund B. Spaeth, Jr. of June 2, 1983, continue in effect; and (2) the materials sought by petitioners remain sealed and be made part of the sealed record in this appeal.

Are appellants entitled to access to the Bills of Particulars filed by the Commonwealth in this case where said Bills are a part of the record of this case and are not subject to the sealing order of the court below?

12 Brief for Appellants at 4.

Appellee Catania argues that we should not reach this issue because access to the Bill of Particulars was not the subject of the order of Judge Cherry from which this appeal was taken. This appeal was taken from Judge Cherry’s order of January 4, 1983 refusing access to the transcript. Appellee Catania argues that the Bill of Particulars was sealed under Judge Cherry’s earlier order of October 13, 1982 which closed the Starks hearing to the public and sealed the record of that hearing. Therefore, appellee argues, since appellants did not appeal from the order of October 13, they cannot now ask for a review of the Bill of Particulars issue in this appeal.

It must be pointed out, however, that Judge Cherry’s order sealing certain parts of the record was vague; it was not clear whether Judge Cherry intended to seal the Bill of Particulars. It is true that Judge Cherry’s opinion in support of the October 13 order seems to indicate that he intended to seal all portions of the record having to do with the contents of the tape recordings; this would include the Bill of Particulars. Nevertheless, I feel that whether the Bill of Particulars was part of the sealed record was unclear. Therefore, I would not hold that appellants waived this issue by failing to appeal from the order of October 13.

Alternatively, appellee Catania argues that we cannot address this issue because the lower court was never given the opportunity to rule on the matter. That is, if the Bill of Particulars was not sealed by the October 13 order, then the appellants should have sought redress in the Court of Common Pleas of Delaware County when the court administrator refused them access to the Bill of Particulars. They did not do so. Therefore, appellee argues, since appellant did not raise the issue before the lower court, this court lacks jurisdiction over this aspect of the appeal.

I note that the appellants’ attempt to secure access to the Bill of Particulars was made subsequent to the filing of the instant appeal. Thus, appellants may have thought that the lower court no longer had jurisdiction to rule on the matter.

I admit that it is not clear whether appellants’ Bill of Particulars issue is properly before us. Nevertheless, a mere reiteration of appellee's alternative arguments indicates the confusion as to what course the appellants should have taken in order to properly perfect their appeal of the Bill of Particulars issue. Given this procedural confusion and the ambiguity of Judge Cherry’s sealing order, I feel we should give appellants the benefit of the doubt and address the issue.