Commonwealth v. Selenski

996 A.2d 494, 38 Media L. Rep. (BNA) 1786, 2010 Pa. Super. 68, 2010 Pa. Super. LEXIS 333, 2010 WL 1643260

• Court: Superior Court of Pennsylvania
• Decided: April 23, 2010
• Docket: 989 MDA 2008
• Status: Published

Opinions

OPINION BY

McEWEN, P.J.E.

¶ 1 Appellant, The Times Leader, appeals from the order that denied its motion to open a proceeding, held pursuant to Pennsylvania Rule of Criminal Procedure 500, to preserve the testimony of a witness in anticipation of the criminal trials of appellee-defendants, Hugo M. Selenski and Paul Weakley. We affirm.

¶ 2 The procedural history relevant to this appeal originated on May 19, 2006, when the Commonwealth charged appellees Selenski and Weakley with multiple counts of homicide, robbery, theft, conspiracy, and solicitation for the killing of Michael Kerkowski and Tammy Fasset. The Commonwealth, on February 27, 2008, filed a motion to preserve the testimony of a third party witness, Robert Steiner, in anticipation of trial. The Times Leader promptly filed motions to intervene and open the proceeding to preserve the testimony of Steiner. The Commonwealth and defendant Selenski both opposed the motion of The Times Leader to open to the public the testimony preservation proceeding.¹ The trial court, following a hearing, entered an order which directed that the proceeding be closed and that the “[tjape of proceedings [remain] under lock and key in the district attorney’s office.” Order, May 21, 2008. The proceeding to preserve the testimony of Steiner was held immediately following the entry of the May 21, 2008, order, and this appeal followed.²

¶ 3 The Times Leader, together with the Pennsylvania Newspaper Association as an asserted amicus curiae, presently argue that the trial court erred in closing the Rule 500 proceeding because (1) there exists a common law or constitutional right of public access to proceedings to preserve testimony in anticipation of criminal trial, (2) the trial court improperly placed a burden of proof upon the press to justify the opening of the proceeding to the public, and (8) appellees, the Commonwealth and defendant Selenski, failed to proffer sufficient justification to rebut the presumption of public access.³ The Times Leader further argues that the transcript or recording of the proceeding constitutes a public judicial record, the disclosure of which would provide a proper alternative mode of relief.

¶ 4 While the arguments presented by The Times Leader and its amicus — that the trial court erred in closing the proceeding in light of a presumptive right of the public to attend a Rule 500 proceeding, and that the public is entitled to pretrial access to the materials memorializing that proceeding — raise interrelated issues, they nonetheless require separate consideration. Accordingly, we first consider the contention that the press and the public were entitled to attend the Rule 500 proceeding.

¶ 5 The threshold consideration of whether there exists a common law or constitutional right of public access to a judicial proceeding raises a pure question of law. Our standard of review, therefore, is de novo, and our scope of review is plenary. See: Commonwealth v. Upshur, 592 Pa. 273, 280, 924 A.2d 642, 647 (2007) (Opinion Announcing the Judgment of the Court); Commonwealth v. Long, 592 Pa. 42, 50, 922 A.2d 892, 897 (2007).

¶ 6 We need not tarry long with the question of whether the public enjoys a common law right to attend a pretrial proceeding to preserve testimony, for it is well established that such a privilege has not been held to flow from the public’s right of access to attend a trial. See: Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 387-391, 99 S.Ct. 2898, 2909-2911, 61 L.Ed.2d 608, 626-628 (1979). Thus, we turn to the question of whether constitutional principles guaranteeing public access to judicial proceedings create such a right.

¶ 7 It is well settled that the First Amendment to the United States Constitution,⁴ and Article I, Sections 7 and 11⁵ of the Pennsylvania Constitution secure a general right of public access to criminal proceedings, as well as to judicial records.⁶ See: Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1, 10 (1986); Commonwealth v. Fenstermaker, 515 Pa. 501, 506, 530 A.2d 414, 417 (1987); Commonwealth v. Penn, 386 Pa.Super. 133, 562 A.2d 833, 835 (1989), appeal denied, 527 Pa. 616, 590 A.2d 756 (1991), cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991). To resolve the critical question of whether those constitutional provisions guarantee public access to a particular pretrial criminal proceeding, we must focus upon the factors of “experience and logic” attendant the subject proceeding. Commonwealth v. Long, supra, 592 Pa. at 55, 922 A.2d at 900, citing Press-Enterprise Co. v. Superior Court, supra, 478 U.S. at 8-9, 106 S.Ct. at 2740, 92 L.Ed.2d at 9-10 (1986).

¶ 8 The inquiry into the “experience” factor underlying a particular proceeding is directed principally to “whether the place and process have historically been open to the press and general public.” Commonwealth v. Long, supra, 592 Pa. at 55, 922 A.2d at 900 (internal citations and quotations omitted). The United States Supreme Court has also emphasized that the proper focus of this inquiry rests upon “the experience in that type or kind of hearing throughout the United States[,]” and not solely upon the particular practice of a jurisdiction. El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 150, 113 S.Ct. 2004, 2006, 124 L.Ed.2d 60, 65 (1993) (internal citations and quotations omitted) (emphasis in original) (holding that the national experience of convening open preliminary hearings compelled finding a presumptive constitutional right of public access to such hearings despite local rules permitting closure).

¶ 9 This Commonwealth has had in place, for more than a century, the practice of providing for the preservation of testimony in criminal matters:

• The Pennsylvania General Assembly, in 1909, authorized criminal defendants to take depositions of witnesses who lived outside the Commonwealth but within the United States. Act of April 27,1909, P.L. 258, § 1.

• The Pennsylvania Supreme Court, in 1977, recognized that there existed a general common law right for the Commonwealth to take a deposition of a witness. Commonwealth v. Stasko, 471 Pa. 373, 379-382, 370 A.2d 350, 353-355 (1977).

• Shortly after the Stasko decision, the General Assembly, in 1978, enacted section 5919 of the Judicial Code, which authorizes the use, in a criminal trial, of depositions taken in compliance with the law governing a deposition taken outside the Commonwealth by either the defense or the Commonwealth. See: 42 Pa.C.S. § 5919.⁷

¶ 10 It was against this historical background that the Pennsylvania Supreme Court, in November of 1982, promulgated former Pennsylvania Rule of Criminal Procedure Rule 9015 (current Rule 500) to regulate the preservation of testimony, and, seven years later, added former Rule 9015A (current Rule 501) to govern the video recording of such proceedings.⁸ Current Rule 500 states in relevant part:

Rule 500. Preservation of Testimony After Institution of Criminal Proceedings

(A) By court order.

(1)At any time after the institution of a criminal proceedings, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for trial or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness’ testimony be preserved.

(2) The court shall state on the record the grounds on which the order is based.

(3) The court’s order shall specify the time and place for the taking of the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony.

(4) The testimony shall be taken in the presence of the court, the attorney for the Commonwealth, the defendants), and defense counsel, unless otherwise ordered.

(5) The preserved testimony shall not be filed of record until it is offered into evidence at trial or other judicial proceediny.

Pa.R.Crim.P. 500(A) (emphasis supplied). Moreover, subsection (B) of Rule 500 authorizes parties, based upon an agreement filed of record and without prior court approval, to conduct a proceeding to preserve testimony. Pa.R.Crim.P. 500(B). Rule 501, in turn, contains additional requirements for such proceedings that must be incorporated in the court order or the agreement of the parties to preserve the testimony when the proceeding is videotaped. Pa.R.Crim.P. 501.

¶ 11 It is apparent from the above recited text that while a Rule 500 proceeding may share certain formalities reminiscent of a formal judicial proceeding,⁹ a proceeding to preserve testimony retains several fundamental features of the common law deposition. Specifically, Rule 500(1) permits the parties to agree to convene a proceeding without an order of the court,¹⁰ (2) permits the parties to agree to waive the presence of the judge at the proceeding,¹¹ (3) withholds from the record any recording of the proceeding until it is admitted at trial or other “judicial proceeding,” ¹² and (4) vests custody of the recording of the proceeding with the party seeking to take the deposition.¹³ Thus, there is no historical support for the asserted right of the public to attend a testimony preservation proceeding, nor a textual basis to suggest that the Pennsylvania Supreme Court, in its promulgation of Rules 500 and 501, intended to transform the historical practice of taking a deposition to preserve testimony for trial into a public judicial proceeding.

¶ 12 Nor does a review of the case law of other jurisdictions reveal any impression of a national experience to permit the general public to attend a proceeding to preserve testimony in criminal matters.¹⁴ Indeed, neither The Times Leader, nor its amicus, call attention to, or discuss the import of, case law adverse to their position, namely, In re Associated Press, 162 F.3d 503 (7th Cir.1998), Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987), cert. denied, 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987), and People v. Pelo, 384 Ill.App.3d 776, 323 Ill.Dec. 648, 894 N.E.2d 415 (2008) — decisions in which courts found no right of public attendance at a deposition taken in criminal eases. Simply put, the “experience” factor upon which a court might rely to recognize a right of public access, is not to be found.

¶ 13 Turning to the “logic” factor underlying the asserted public right to attend a proceeding to preserve testimony, the Pennsylvania Supreme Court has observed:

The “logic” inquiry focuses on “whether public access plays a significant positive role in the functioning of the particular process in question.” In conducting this inquiry, a court should consider whether the process enhances the fairness of the criminal trial as well as “the appearance of fairness so essential to public confidence in the system.” These considerations are related as they “shape the functioning of governmental processes.”

Commonwealth v. Long, supra, 592 Pa. at 55, 922 A.2d at 900 (citations omitted).

¶ 14 When viewed through the interpretive lens provided in Long, it is apparent that public access would not play a positive role in the functioning of the specific proceeding to preserve testimony, the general fairness of the criminal trial, or the overall public confidence in the criminal justice system. First, as to the functioning of the specific proceeding, public access would, despite any agreement by the parties, transform an informal discovery proceeding into a potentially lengthy and costly formal judicial proceeding that would require (1) the presence of the trial judge, (2) the contemporaneous presentation of all objections, (3) innumerable sidebar conferences held beyond the hearing of the public to address those objections, and (4) eventual rulings on the record regarding each objection. Second, as to the general fairness of the trial itself, where as here, the testimony is preserved by videotape, the public will ultimately have the opportunity to hear the preserved testimony, as well as the inflections and tone attendant that testimony, and even observe the visual demeanor of the witness should the underlying case proceed to trial. Third, as for overall public confidence in the criminal justice system, the opportunity to view all admissible aspects of the video recording at trial further refutes any argument that the exclusion of the public from the pretrial proceeding would damage the perception of fairness of the criminal justice system.¹⁵ Thus, we discern no compelling logic that would justify public access to a proceeding to preserve testimony in anticipation of a criminal trial. Nor do we detect any basis upon which to conclude that public attendance at a Rule 500 proceeding would have a positive influence or effect upon the fairness of an open trial or any other judicial proceeding to adjudicate the parties’ rights.

¶ 15 Moreover, the compelling principles underlying the need for criminal trial proceedings — which the eminent author of the dissent so perceptively summarizes — provide but halting support for either a need for, or a right of, public access to proceedings which but preserve testimony. We acknowledge that this Court, in Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 (1983), held that the constitutional guarantees of open trials apply with equal, if not greater force, to pretrial proceedings, and reasoned:

For if the contraband, or the defendant’s confession, or the identification testimony is suppressed, the prosecution may be over, but if not suppressed, conviction may be so certain that a guilty plea ensues. The decisive event in a prosecution is therefore often not the trial but the pretrial proceeding. If justice is to be done, and is to be seen as done, if the courts are to fulfill their proper role as one branch in our system of government, the public must have access both to the trial and to the pretrial proceedings

Id., 462 A.2d at 1320-1321. Similarly, in United States v. Criden, 675 F.2d 550 (3rd Cir.1982), the United States Court of Appeals for the Third Circuit observed:

[A] pretrial criminal hearing often is the most critical stage of a criminal proceeding. Decisions reached at the pretrial hearings often determine whether the defendant or the Government wants to proceed to trial. In many cases, the pretrial hearing is the only adversary proceeding the accused will have in resolving his case. The public’s vital interest in evaluating the public officials who work in the criminal justice system cannot be fully vindicated unless the public and press can attend pretrial hearings. Otherwise, much of the work of prosecutors and trial judges may go unscrutinized.

Of equal importance, pretrial hearings in criminal cases typically involve objections to the propriety of police conduct. In fact, the pretrial hearing may be the only point in the trial process at which the conduct of law enforcement officers is at issue. Because such conduct frequently occurs outside the public view, beneficial public scrutiny may never take place if not at the hearing itself.

Id. at 556-557 (citations omitted).

¶ 16 However, a Rule 500 proceeding, irrespective of its characterization as a formal criminal proceeding or as a means of informal discovery, shares none of the constitutional significance of pretrial hearings, such as a preliminary hearing or a suppression hearing, particularly since a Rule 500 proceeding simply preserves testimony for use at trial, and itself yields no decision as to the disposition of the accused. Thus, a Rule 500 proceeding cannot be considered to be a decisive event in the prosecution of the accused, and, notwithstanding public interest in the evidence to be provided by a potential testifying party, we detect no basis upon which to conclude that the compelling logic of open criminal proceedings applies in even meager fashion, let alone equal force, to a proceeding to preserve testimony.

¶ 17 In sum, having found no experience or logic that warrants public attendance at proceedings to preserve testimony in criminal matters, we conclude that the general principles of public access to judicial proceedings enshrined in the First Amendment of the Constitution of the United States and Article I, Sections 7 and 11 of the Pennsylvania Constitution do not encompass a right to attend a Rule 500 proceeding. Accordingly, we detect no merit to the arguments of The Times Leader (1) that it possessed a presumptive right to attend the proceeding to preserve the testimony of Robert Steiner, and (2) that the trial court improperly shifted the burden of proof upon it to justify opening the proceeding to the public. Moreover, since the conduct of discovery rests within the sound discretion of the trial court,¹⁶ and because the record here reveals no abuse of that discretion, we detect no basis upon which to disturb the decision of the eminent, now-President Judge Chester B. Muroski to exclude the press and the public from attending the proceeding to preserve the testimony of Steiner.

¶ 18 The question remains, however, as to whether appellant is entitled to pretrial disclosure of either the transcript or the recording of the Rule 500 proceeding, notwithstanding the order of the trial court that the “[t]ape of proceedings [remain] under lock and key in the district attorney’s office.” Order, May 21, 2008. The failure of The Times Leader either (1) to request the materials memorializing the Rule 500 proceeding, or (2) to challenge that aspect of the order that placed those materials under “lock and key,” compels the conclusion that this issue was not properly raised before the trial court, and thus has not been properly preserved in this appeal. Pa.R.A.P. 302(a).¹⁷ Moreover, because no constitutional principle requires a testimony preservation proceeding to be open to the public, and in light of the express proscription of Rule 500 that “[t]he preserved testimony shall not be filed of record until it is offered into evidence at trial or other judicial proceeding[,]”¹⁸ it follows that the transcript and the tape are not documents attendant a judicial proceeding until such time as it become necessary to offer and present the preserved testimony during an adjudication of -the substantive right of parties.¹⁹

¶ 19 Therefore, we conclude that neither the First Amendment to the United States Constitution, nor Sections 7 and 11 of Article I of the Pennsylvania Constitution establish a right of the public to attend the Rule 500 proceeding, and affirm the order of the trial court that denied appellant’s motion to open the Rule 500 proceeding to the public.²⁰

¶ 20 Order affirmed.

¶ 21 FREEDBERG, J., FILES A DISSENTING OPINION.

DISSENTING OPINION BY

1 . Paul Weakley pleaded guilty to federal charges related to the incident for which the Commonwealth had charged him and appel-lee Selenski, and did not take a position before the trial court on the motion to open the proceeding filed by The Times Leader. N.T., May 21, 2008, p. 4. While Weakley was subsequently listed as an appellee in this appeal, he chose to concur and join in the appellee’s brief filed by the Commonwealth without filing a separate brief.

2 . It is well settled that an order that denies a request for public access to a criminal proceeding or judicial documents constitutes a collateral order from which an immediate appeal may be taken. See: Commonwealth v. Long, 592 Pa. 42, 50, 922 A.2d 892, 897 (2007) (citing Pa.R.A.P. 313); Commonwealth v. Fenstermaker, 515 Pa. 501, 504 n. 1, 530 A.2d 414, 416 n. 1 (1987).

3 . Specifically, The Times Leader, in the brief Sled in support of this appeal, presents the following question for review: "Should the courtroom have been opened to the public during the deposition of a witness in a highly-publicized capital murder prosecution?” Brief of Appellant, p. 2.

4 . The First Amendment to the United States Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const., Amend. I.

5 .Section 7 of Article I of the Pennsylvania Constitution provides, in relevant part:

The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

Pa. Const., Art I, § 7.

Section 11 of Article of the Pennsylvania Constitution further provides:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

Pa. Const., Art. I, § 11.

It bears noting that neither The Times Leader, nor its amicus, distinguish between the rights accorded to the press and the public under the Constitution of the United States and the Pennsylvania Constitution. However, we discern no basis upon which to conclude that the Pennsylvania Constitution provides greater rights of public access to judicial proceedings than those established under the Constitution of the United States.

6 . Since this appeal raises questions directed solely to the right of the press and public to access criminal proceedings, we will not consider the import of the trial rights of a criminal defendant set forth in the Sixth Amendment to the United States Constitution and Section 9 of Article I of the Pennsylvania Constitution.

7 . Our study reveals no evidence or suggestion that the press or the public traditionally enjoyed a right to attend the actual taking of the deposition. Moreover, commonly used definitions of the term "deposition,” both at the time of the enactment of Act of April 27, 1909, P.L. 258, § 1 and at present, reveal that such proceedings are separate from the underlying judicial proceeding. Black’s Law Dictionary, Second Edition (1910), at p. 357 (defining a deposition as "testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of a civil action or criminal prosecution.”) (emphasis supplied), quoted in United States v. Microsoft, 165 F.3d 952, 955 (D.C.Cir.1999). See also: Black’s Law Dictionary, Seventh Edition (1999), at p. 451 ("1. A witness's out-of-court testimony that is reduced to writing (usu. by a court reporter) for later use in court or for discovery purposes. 2. The session at which such testimony is recorded.”) (emphasis supplied).

8 . The Pennsylvania Supreme Court, on March 1, 2000, amended former Rules 9015 and 9015A and renumbered them as Rules 500 and 501, respectively.

9 . The increased formality in the manner in which parties conduct a proceeding to preserve testimony appears to address the concerns of the Pennsylvania Supreme Court regarding the right of confrontation of a criminal defendant in the event the admission of the testimony at trial becomes necessary. See: Commonwealth v. Stasko, 471 Pa. 373, 379-382, 370 A.2d 350, 353-355 (1977).

10 . Pa.R.Crim.P. 500(B).

11 . See: Pa.R.Crim.P. 500, Comment (providing that "[u]nder paragraph (A)(4), a judge should preside over the talcing of testimony,” but that “nothing in this rule is intended to preclude counsel, the defendant(s), and the judge from agreeing on the record that the judge need not be present”). See also: Pa. R.Crim.P. 500(B)(3).

12 . Pa.R.Crim.P. 500(A)(5), (B)(5).

13 . See: Id..; Pa.R.Crim.P. 500, Comment (noting that "[tjhe party on whose motion testimony is taken should normally have custody of and be responsible for safeguarding the preserved testimony”).

14 .While some courts have held that the press and public possess a presumptive right to attend pretrial depositions in non-criminal cases, those decisions rested upon specific rights recognized under peculiar state constitutional provisions, or statutes. See: In re Thrifty Dutchman, Inc., 97 B.R. 111 (Bkrtcy.S.D.Fla.1989); United States v. Microsoft, 165 F.3d 952 (D.C.Cir.1999); Union Pacific R. Co. v. Department of Revenue, 10 Or.Tax 235 (1986). It merits further mention that the peculiar statutory provision relied upon to grant public attendance at depositions in antitrust cases discussed in United States v. Microsoft, supra, namely, the Publicity in Taking Evidence Act of 1913, 15 U.S.C. § 30, was subsequently repealed by Congress effective November 2, 2002.

15 . Even if a dispute arose over the editing of the video recording, Rule 501 requires the maintenance of an unedited original recording of the proceeding so as to resolve those disputes. Pa.R.Crim.P. 501(B)(10).

16 . See: Commonwealth v. Rucci, 543 Pa. 261, 283, 670 A.2d 1129, 1140 (1996), cert. denied, 520 U.S. 1121, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997) (noting that questions involving discovery in criminal cases lie within the discretion of the trial court and that court’s decision will not be reversed unless such discretion was abused); Crum v. Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578, 585 (Pa.Super.2006) (noting that on review of an order concerning discovery, an appellate court applies an abuse of discretion standard).

17 . Moreover, appellant, in its brief in support of its argument that the proceeding itself should be open to the public, only tangentially addresses the question of whether the transcript and videotape of the Rule 500 proceeding constitute public judicial documents to which it should have access.

¹⁸

19 . The decision of the Pennsylvania Supreme Court in Commonwealth v. Upshur, 592 Pa. 273, 924 A.2d 642 (2007) (Opinion Announcing the Judgment of the Court), does not alter our conclusion with regard to the preti'ial disclosure of the materials memorializing the Rule 500 proceeding. In Upshur, Justice Say-lor, who wrote the Opinion Announcing the Judgment of the Court, with Chief Justice Cappy and Justice Baer joining, opined that audio tapes played at a preliminary hearing constituted part of the public judicial record to which the media had a presumptive right of access under the common law. However, that decision is not relevant here since (1) the distinguished author of the Opinion Announcing the Judgment of the Court specifically noted that the conclusion in Upshur offered "no comment whatsoever concerning videotape. recordings of witness testimony[,]” (2) 'the tape at issue in that case had been played at the preliminary hearing, a proceeding to which attendance is presumptively open based upon its significance to the public adjudication of the substantive rights of the parties, and (3) the remaining four members of the Court, Justices Castille, Eakin, Baldwin, and Fitzgerald, each espoused a view that no right of public access to the original tapes existed. Id., 592 Pa. at 286-287, 291, 924 A.2d at 650-651, 653.

20 .The ruling of the trial court reflects, of course, the wisdom of The Sage: 'Twere better that 99 deadlines be missed than that the presumption of innocence of even one accused suffer taint.