Commonwealth v. Sandusky

70 A.3d 886, 2013 Pa. Super. 182, 2013 WL 3486856, 2013 Pa. Super. LEXIS 1648
CourtSuperior Court of Pennsylvania
DecidedJuly 12, 2013
StatusPublished
Cited by13 cases

This text of 70 A.3d 886 (Commonwealth v. Sandusky) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Sandusky, 70 A.3d 886, 2013 Pa. Super. 182, 2013 WL 3486856, 2013 Pa. Super. LEXIS 1648 (Pa. Ct. App. 2013).

Opinion

[889]*889OPINION BY

STEVENS, P.J.

Karl E. Rominger, Esquire, appeals from the June 26, 2012 protective order entered in the Court of Common Pleas of Centre County, which was entered in response to the “leaking” of certain discovery evidence to the media following Gerald Sandusky’s criminal jury trial. The order directed, inter alia, Gerald Sandusky’s criminal defense attorneys to disclose to the trial judge and the supervising judge of the grand jury, under oath, “an inventory identifying all materials supplied to them in discovery and which was subsequently delivered to any member of the defense team ... or to any other person or entity in order to assist th[e] [lower] court and the investigating grand jury to take appropriate action to address the interests sought to be protected by [the] order.” After a careful review, we quash, in part, and affirm, in part.

The relevant facts and procedural history are as follows: On November 4, 2011, and December 7, 2011, following a grand jury investigation and presentment, the Pennsylvania Attorney General’s Office filed criminal complaints against Gerald Sandusky charging him with fifty-two counts of offenses related to the sexual abuse of teenaged and pre-teenaged boys. Attorneys Joseph Amendola and Karl E. Rominger entered their appearance on behalf of Gerald Sandusky, and discovery ensued. Following the selection of a jury, testimony commenced in Gerald San-dusky’s criminal case on June 11, 2012, and on June 22, 2012, the jury convicted Gerald Sandusky on forty-five counts related to the sexual abuse.1 The trial court revoked Gerald Sandusky’s bail and ordered a pre-sentence investigation of Gerald Sandusky.

Meanwhile, on June 26, 2012, pursuant to a request made by the Attorney General’s Office, the Honorable John M. Cleland, S.J., who presided over Gerald Sandusky’s criminal jury trial, and the Honorable Barry F. Feudale, S.J., who was the supervising judge of the grand jury, held a hearing at which members of the Attorney General’s Office, as well as Attorneys Amendola and Rominger, were present. The purpose of the hearing was to determine whether a protective order was required to assure the integrity of the ongoing criminal investigations, to protect the privacy of the victims, and to protect the privacy of others who may testify or had testified before the grand jury. During the hearing, Chief Deputy Attorney Frank G. Fina, Esquire, of the Attorney General’s Office, indicated, in relevant part, the following:

The Office of Attorney General has been contacted by the media fairly extensively over the last two to three days with information as a result of the prosecution of [Gerald] Sandusky. This information has been getting increasingly detailed ... [a]nd has involved information beyond that which was disclosed at the trial and during the proceedings.
This came to a head yesterday when the Office was contacted with specific information that the recording that was made of Matthew Sandusky’s interview with the Office of Attorney General had been disclosed to the media and that they were going to play the recording publicly.
That, in fact, has now occurred this morning on The Today Show. Excerpts of the tape-recorded interview of Mat[890]*890thew Sandusky have been played publicly-
In addition, there have been questions asked of the Office of Attorney General regarding grand jury testimony that was given, both by witnesses who testified at trial and by individuals who did not testify at the trial. The Office of Attorney General has significant concerns about, first of all, the use of grand jury information disclosure to the public or to third parties, and this is a concern that the office had — that we have had pretrial and even during the trial.
I want to be specific. I’m talking about information that was not disclosed during the trial. There is no question that grand jury information disclosed at any criminal proceeding becomes public information and that the secrecy provisions, absent some extraordinary circumstance, would no longer apply.
I’m talking about information that was not disclosed as part of the proceedings in this ease. As I think both Your Honors are aware, this concern was previously raised in at least one hearing and I believe in two hearings about the potential future use of discovery in grand jury materials in this case.
Additionally, the Commonwealth has concerns about items turned over under Rule 578 and/or under the Brady case, Maryland versus Brady, about the post-trial public disclosure of those materials which it’s certainly a novel issue and one that I can’t find any law on. But I’m aware of no provision or authority for the post-trial disclosure of discovery information of criminal investigative information that was not disclosed during the trial and yet is now being disclosed publicly. I would assert it’s outside of the rules that apply to discovery and outside of the law to do so.
I think it also raises questions that are beyond the ken of this Court perhaps in conflict of interest and issues whether or not such disclosures are in the best interests of Mr. Sandusky, an odd situation for the Commonwealth to be in to be arguing the best interests of Mr. Sandusky but nonetheless one that I think may be appropriate to raise to the Courts at this time.
It’s the Commonwealth’s desire — obviously, it’s ultimately up to the Courts, but it’s the Commonwealth’s desire that inquiry be made and about these disclosures, how they occurred, and some control, if possible, be asserted over any future disclosures of either the discovery information or grand jury information that are in the possession of the defense.
The Commonwealth is willing to provide and able to provide testimony, for example, about our procedures and the controls that we have had over the taped interview of Matthew Sandusky. We believe we can state very clearly who had copies, how our copies were maintained and secured.

N.T. 6/26/12 at 4-7.

Attorney Amendola responded to Chief Deputy Attorney Fina’s comments, in relevant part, as follows:

I can tell both Your Honors I haven’t shared the information I received from the Commonwealth with anybody. It’s still in my files.
I know that — I know that I received the [oral] tape[d] disc from the Commonwealth concerning Matt[hew] San-dusky’s [statement]. I gave that copy to Mr. Rominger to review because there was no [written] transcript. Even though the cover letter indicated there was a [written] transcript, Your Honors, there wasn’t. I didn’t have the time in the middle of trial to spend 45 minutes. I was working every night four or five, [891]*891six hours getting ready for the next day. I asked Mr. Rominger to review that to see what Matt[hew] Sandusky said. Everything that I received from the Commonwealth, besides copies that went to people involved in the defense team, stayed with me. In fact, the files are still in my vehicle.
That’s the best I can tell you. I didn’t share it with anybody. Nobody got a copy of stuff publicly other than the people on the defense team from me.

N.T. 6/26/12 at 7-8.

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Bluebook (online)
70 A.3d 886, 2013 Pa. Super. 182, 2013 WL 3486856, 2013 Pa. Super. LEXIS 1648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sandusky-pasuperct-2013.