J-S99001-23
2024 PA Super 39
IN RE: SEALED ARREST WARRANTS : IN THE SUPERIOR COURT OF PURSUANT TO PA. R.CRIM.513.1 : PENNSYLVANIA : : APPEAL OF: THE HERALD : STANDARD-UNIONTOWN : NEWSPAPERS, INC, MON VALLEY : INDEPENDENT, AND OBSERVER : REPORTER : No. 21 WDA 2023
Appeal from the Order Entered December 14, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No: 801 MD 2022
BEFORE: STABILE, J., DUBOW, J., and KING, J.
OPINION BY STABILE, J.: FILED: MARCH 6, 2024
Presently before us is the appeal of Appellants, The Herald Standard-
Uniontown Newspapers, Inc., Mon Valley Independent, and Observer Reporter
from the trial court’s order of December 14, 2022, denying their petition to
intervene and unseal arrest warrant information that had been sealed
pursuant to Pa.R.Crim.P. 513.1.1 As explained in more detail below, we issued
an order on February 8, 2022, affirming in part and reversing in part the trial
court’s sealing order. Specifically, we reversed the order insofar as it denied
Appellants’ petition to intervene and insofar as it sealed the public dockets.
We affirmed the trial court’s order insofar as it sealed other arrest warrant
information. Given the sensitivity of the Commonwealth’s ongoing
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1 Rule 513.1 is titled “Sealing of Arrest Warrant.” We will address the pertinent subsections throughout this opinion. J-S99001-23
investigation, we awaited the expiration of the sealing order prior to issuing
this opinion in support of the order.
This matter arises from the criminal prosecution of Keven Van Lam,
currently pending in Westmoreland County.2 On November 6, 2022, in
response to a petition from the Westmoreland County District Attorney, the
trial court issued an order pursuant to Rule 513.1 sealing the arrest warrant
information for 60 days. Pursuant to that order, local media outlets were
denied access to any information pertaining to the Van Lam case, including
the public dockets.
On November 22, 2022, Appellants filed an emergency petition to
intervene and unseal the criminal record, arguing that the prosecution,
involving a fatal shooting in Rostraver Township, was of public interest and
that the media could not monitor and report on the case with the entire record
sealed. The trial court conducted a hearing on Appellants’ petition on
December 14, 2022. At the hearing, Appellants asked, at a minimum, that a
public docket be made available. N.T. Hearing, 12/14/22, at 5, 13-15. For
its part, the Commonwealth indicated that it would not object to the release
2 This sealed arrest warrant proceeding is docketed at Westmoreland County Court of Common Pleas number CP-65-MD-0000801-2022. The criminal proceeding against the defendant was docketed at Magisterial District Court docket number MJ-10103-CR-0000479-2022. Now that the preliminary hearing has been held and the charges bound over for court, the Magisterial District Court docket is closed and the criminal prosecution is pending at Westmoreland County Court of Common Pleas docket number CP-65-CR- 0003527-2023.
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of a public docket so long as the docket did not include arrest warrant
information as defined under Rule 513.1. Id. at 18-19. The trial court denied
all requested relief at the conclusion of the hearing:
I am going to state on the record that, as the presiding judge over this matter and the one who signed the order to seal the record to maintain the integrity of the Commonwealth’s investigation, I find that it is absolutely imperative that the arrest record warrant, the information contained in my order of November 6th and 7th, that that information continue to remain sealed by virtue of the arguments made at the hearing today.
Id. at 22. The trial court advised Appellants of the date and time of the
preliminary hearing and directed the prosecutor to advise Appellants’ counsel
of any continuance(s). Id. at 23.
Appellants timely appealed3 to this Court on December 28, 2022. They
filed a motion to expedite the appeal on January 5, 2023. This Court granted
the motion on January 13, 2023. On February 8, 2023, after an in camera
review of the sealed information, this Court issued an order affirming in part
and reversing in part as set forth above. Order, 2/8/23. Meanwhile, the
preliminary hearing in the Van Lam matter was continued seven times, with
the consent of the defendant, until it finally occurred on October 18, 2023. At
the conclusion of the preliminary hearing, the charges against Van Lam of
first-degree murder, criminal homicide, and evidence tampering were held for
3 The trial court’s order in this matter is immediately appealable. Commonwealth v. Fenstermaker, 530 A.2d 414, 421 (Pa. 1987).
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court, and the sealing order expired. We now issue the following opinion in
support of our order of February 8, 2023.
“As a preliminary matter, we note that the determination of whether an
item will be considered a public judicial record or document subject to the
common law right of access is a question of law, for which the scope of review
is plenary.” Commonwealth v. Upshur, 924 A.2d 642, 647 (Pa. 2007)
(plurality). “However, the trial court’s decision regarding access to a particular
item will be reviewed for abuse of discretion.” Id. “Regarding the
constitutional right of access, at least, the court should issue individualized,
specific, particularized findings on the record that closure is essential to
preserve higher values and is narrowly tailored to that interest.”
Commonwealth v. Curley, 189 A.3d 467, 473 (Pa. Super. 2018).
Rule 513.1 permits the sealing of “arrest warrant information” for “good
cause shown.” Pa.R.Crim.P. 513.1(A), (B). Arrest warrant information is “the
criminal complaint in cases which an arrest warrant is issued, the arrest
warrant, any affidavit(s) of probable cause, and documents or information
related to the case.” Pa.R.Crim.P. 513.1(A). The judge and clerk of courts
may not make arrest warrant information available for public inspection until
the sealing order expires. Pa.R.Crim.P. 513.1(G). Per its official comment,
Rule 513.1 was adopted to codify the Pennsylvania Supreme Court’s opinion
in Commonwealth v. Fenstermaker, 530 A.2d 414, 420 (Pa. 1987). There,
our Supreme Court set forth some principles guiding our analysis of the issue
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before us. Most significantly, our criminal courts operate under a presumption
of openness. Id. at 417, 420.
The importance of the public having an opportunity to observe the functioning of the criminal justice system has long been recognized in our courts. Criminal trials in the United States have, by historical tradition, and under the First Amendment, been deemed presumptively open to public scrutiny and this “... presumption of openness inheres in the very nature of the criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980).
Id. at 417. The presumption of openness is enshrined in Article I, § 9 of the
Pennsylvania Constitution, which guarantees the right to a “speedy public
trial,” and Article I, § 11 begins with the phrase, “[a]ll courts shall be open.”
Id.; PA. CONST. art I, §§ 9, 11. Likewise, Article I, § 7 of the Pennsylvania
Constitution guarantees a right of access to criminal proceedings and judicial
records. Curley, 189 A.3d at 472; PA. CONST. art I, § 7. “‘It is clear that the
courts of this country recognize a general right to inspect and copy public
records and documents, including judicial records and documents.’ There is a
‘presumption—however gauged—in favor of public access to judicial records.’”
Fenstermaker, 530 A.2d at 418 (quoting Nixon v. Warner
Communications, Inc., 435 U.S. 589, 602 (1978)).
Public inspection of arrest warrant information discourages perjury on
the part of the affiant, encourages police and prosecutors to ensure they have
sufficient cause, serves as a check on the discretion of issuing authorities, and
promotes a public perception of fairness regarding arrest warrants. Id. at
418. “More generally, the public right to review and copy judicial records and
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documents provides an important check on the criminal justice system,
ensuring not only the fair execution of justice, but also increasing public
confidence and understanding.” Upshur, 924 A.2d at 647 (citing Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980)). But the
presumption of openness is rebuttable for reasons such as unfair prejudice
arising from pretrial publicity, the need to protect the safety of informants,
the need to preserve the integrity of an ongoing investigation, and alternative
means to protect the interests threatened by disclosure. Fenstermaker, 530
A.2d at 420. Thus, to show good cause under Rule 513.1, the Commonwealth
must rebut the presumption of openness.
In its petition to seal the arrest warrant information, the Commonwealth
alleged that victim Boyke Budiarachman was killed in an “execution style
murder-for-hire.” Petition to Seal Arrest Warrant, 11/7/2022, at ¶ 3. The
defendant had confessed to paying a third party, who in turn hired a gunman
to kill the victim. Id. As of the filing of the sealing petition, these potential
codefendants were unidentified and the Commonwealth asserted that release
of the arrest warrant information “would expose investigative details, which
could lead to the destruction of evidence and/or the intimidation or retaliation
against other involved and uninvolved witnesses.” Id. at ¶ 4. Further, the
Commonwealth alleged that “the integrity of the investigation and the safety
of witnesses and/or co-conspirators depend on the sealing of the instant arrest
warrant information.” Id. at ¶ 6.
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During the December 14, 2022 hearing, however, the parties appeared
to agree that basic docketing information would not compromise the
Commonwealth’s investigation. The prosecutor had little to say against the
availability of a public docket:
THE COURT: Hold on a second. Isn’t there a criminal complaint file?
[PROSECUTOR]: Yes, but the criminal complaint is filed at 801 MD 2022 at the Clerk of Court’s Office here at the courthouse.
THE COURT: And you are saying on the record that that’s the only number under which any charges have been filed would be under this miscellaneous file?
[PROSECUTOR]: That’s the only way that we are permitted to file when we pursue a sealed arrest warrant. Whether or not the magistrate has created a docket number that’s associated with that for the purposes of scheduling a preliminary hearing, I don’t have that information and that’s all I’m saying.
THE COURT: Let’s assume that he did.
[PROSECUTOR]: Okay.
THE COURT: The magistrate created a separate docket with the entries, what’s your position as to whether the press would be entitled to have access to that information?
[PROSECUTOR]: As long as the information does not include the arrest warrant information as defined under 513.1, we have no problem with that. That would include the charges that shouldn’t be released, names of the victim are often included in the secure docket, that shouldn’t be included.
We don’t have any – we didn’t ask for a specific ruling that a docket be sealed. But what I am suggesting to the Court is that the Court doesn’t have enough information other than the allegations of the intervenors that there is a docket and that it was sealed.
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N.T. Hearing, 12/20/22, at 18-19. In other words, the prosecutor did not
specifically ask that the docket be sealed and he was unaware of whether a
docket had been created.4 The prosecutor did not want the pending charges
and the identity of the victim to be revealed, but he did not explain why.
Counsel for Appellants explained her position as follows:
So, journalists don’t have access to whatever private login information that the District Attorney’s Office would have or court staff. So, on the public-facing portal, the information would be as Your Honor articulated, you know, the attorney’s name, the MDJ in charge, if there’s a preliminary hearing scheduled, when that would be, when the arraignment was, bail amount, is the person still in custody, I believe the defendant’s date of birth and partial home address are available, and most importantly, the charges.
So, when someone is incarcerated, arrested, and held, we typically have the very basic information to know, you know, Bob Smith has been picked up for attempted murder or what have you, because we live in a democracy where we believe in, you know, understanding why someone has been taken into a custodial setting. So, right now, because there is none of that very basic information, we literally don’t know – other than through these proceedings where we learned who defense counsel was, you know, up until this point, defense counsel was unknown. The bail status remains unknown. If and when an arraignment was held, that’s unknown. If and when a preliminary hearing will occur, none of that is available.
Id. at 19-20.
For its part, the trial court reasoned as follows:
4 In its brief to this Court, the Commonwealth argued that Appellants were not entitled to relief because they failed to produce evidence that a docket existed. Commonwealth’s Brief at 15. This argument is not well taken because it ignores the Commonwealth’s burden to overcome the presumption of openness and because it places Appellants in the impossible position of proving the existence of a criminal proceeding that had been entirely walled off from public access.
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When I think of the docket, somebody looking at a docket on the UJS portal, I’m thinking of things like what magisterial district the case is going to be heard in, what’s the date of the preliminary hearing, counsel of record, things like that. […] No identifying information about any ongoing investigation. It’s really just informational factors concerned with where the hearing is going to be, what’s the date, what’s the time of the hearing, who is counsel of record.
Id. at 16.
Nonetheless, the trial court entered an order effectively sealing the
entire record in this case, including the docket, reasoning that doing so was
necessary to maintain the integrity of the Commonwealth’s investigation:
When presented with a request to seal and extend [the sealing of] the arrest warrant information, the Court was made aware by the Commonwealth attorneys that there is an active, ongoing investigation for two potential co-defendants, involved in this matter, who they are attempting to identify and locate. The defendant, Keven Van Lam, is charged with homicide and related offenses, and there is significant concern for the safety of others and the integrity of this ongoing investigation if the potential co- defendants are to become aware of this pending investigation and leave Westmoreland County’s jurisdiction.
Trial Court Opinion, 2/6/23, at 4.5 The trial court confirmed that a docket
existed and remained under seal: “The language of the relevant court orders
does not specifically state that the criminal dockets, themselves, are to be
sealed; however, as the arrest warrant information contained in the dockets
is sealed, no criminal docket relevant to the matter is accessible to the public.”
5 The trial court issued this supplemental opinion under seal in accordance with a directive from this Court.
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Id. at 3. In essence, then, the trial court concluded that dockets are “arrest
warrant information” as defined in Rule 513.1(A).
Appellants argue to this Court, without citation to authority, that Rule
513.1 does not apply to dockets. The Commonwealth and the trial court
apparently assume, also without citation to authority, that public dockets may
be “documents or information related to the case” under Rule 513.1(A). We
find little guidance on this issue in our caselaw, other than to note that docket
entries in a criminal proceeding are public records. Curley, 189 A.3d at 473.
And public judicial records “must be available for inspection and copying
unless the party seeking to seal the materials demonstrated compelling
reasons to preclude access[.]” Upshur, 924 A.2d at 646 (citing
Fenstermaker, 530 A.2d at 420-21).
Dockets serve many purposes, such as notifying the public of the
identity of parties and counsel, as the trial court explained during the hearing.
In particular, dockets are a means of notifying the public (and the news media)
of upcoming hearing dates. In this case, given the absence of a docket, the
trial court left Appellants with no means of learning the potential continuance
and rescheduling of a preliminary hearing other than directing the prosecutor
to provide a courtesy call. And the court left the public at large with no means
of monitoring the prosecution of Van Lam. Constitutionally mandated open
courtroom proceedings are of little value if the public has no means of learning
where and when they will occur, or if the public is entirely unaware that a
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prosecution is pending. In Doe v. Public Citizen, 749 F.2d 246, 268 (4th
Cir. 2014), the Fourth Circuit explained the problem with sealed dockets:
By sealing the entire docket sheet during the pendency of the litigation, as the district court permitted in this case, courts effectively shut out the public and the press from exercising their constitutional and common-law right of access to civil proceedings. But there is a more repugnant aspect to depriving the public and press access to docket sheets: no one can challenge closure of a document or proceeding that is itself a secret.
Id. at 268 (emphasis added). Thus, a sealed docket violates the First
Amendment right of access, a right that can be restricted only based on a
compelling interest. Id.
Ultimately, this case does not require the announcement of a blanket
rule as to whether a public docket, or some portion thereof, can be sealed as
arrest warrant information for good cause under Rule 513.1, or under any
other potentially applicable standard. We dispose of this case on narrower
grounds—the lack of an express request for the docket to be sealed and the
trial court’s failure to offer specific findings on the need for sealing the docket
(and effectively secreting the existence of the criminal prosecution of Van
Lam6).
As noted above, the prosecutor conceded that the Commonwealth did
not initially ask for the docket to be sealed. For that reason alone, the docket
6 Courts of other jurisdictions have held that the burden on the proponent of closure increases with the extent of the requested closure. United States v. Doe, 63 F.3d 121, 129 (2d Cir. 1995).
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should have remained available for public inspection. To overcome the
presumption of openness as to public judicial documents, be it by a showing
of good cause under Rule 513.1 or any other applicable burden, the
Commonwealth must specify exactly which documents it wishes the trial court
to seal. Then it must explain why. The Commonwealth cannot simply file a
motion tracking the language of Rule 513.1(A) and leave it to the trial court
to discern, at some later time in the event of an objection to its sealing order,
which documents were sealed. Likewise, the order itself must leave no
question as to which documents are to be withheld from public scrutiny by the
court’s administrative staff. Rule 513.1(G) forbids the clerk of courts to
release sealed documents until a sealing order expires. The staff at a clerk of
courts office should not be left to guess which documents are sealed, nor
should they be forced to err on the side of caution by withholding the entire
record, including the docket.
Furthermore, even though the hearing seemed to clarify that Appellants’
primary concern was access to a public docket, the trial court never made
specific, individualized findings, as contemplated in Curley, justifying its
decision to keep the docket under seal. That is, the trial court never explained
how sealing the docket would help maintain the integrity of the investigation
and/or protect the safety of any individual, especially in light of public
knowledge of the shooting and of Van Lam’s arrest. By the time of the
December 14, 2022 hearing, local media already had reported that Van Lam
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was arrested in connection with the fatal shooting of Budiarachman. See,
e.g., Karen Mansfield (contributing), Suspect Revealed in Case Involving Fatal
Rostraver Township Shooting, Observer Reporter Nov. 16, 2022
(www.observer-reporter.com/news/2022/nov/16/suspect-revealed-in-case-
involving-fatal-rostraver-township-shooting/) (last visited 2/1/2024). Thus,
any desire the Commonwealth had to maintain the secrecy of the victim’s
identity and/or Van Lam’s arrest in connection with the shooting had already
been thwarted. Given the vital importance of a public docket and the
presumption of openness applicable to it, nothing in the record before us
supports the trial court’s decision to keep the docket sealed and keep the
criminal proceeding against Van Lam entirely walled off from public view.
The trial court’s order also sealed the arrest warrant, probable cause
affidavit, and complaint, in accord with the express terms of Rule 513.1. The
trial court’s rationale for sealing items other than the docket—protecting the
integrity of the Commonwealth’s ongoing investigation of two possible co-
defendants in a murder-for-hire case, and concern for the personal safety of
those involved—are expressly in accord with the official comment to Rule
513.1:
The rule establishes a standard of ‘good cause’ for sealing the arrest warrant information. When determining whether good cause exists to seal the arrest warrant information, the justice or judge must consider whether the presumption of openness is rebutted by other interests that include, but are not limited to, whether revealing the information would allow or enable flight or resistance, the need to protect the safety of police officers executing the warrant, the necessity of preserving the integrity of
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ongoing criminal investigations, and the availability of reasonable alternative means to protect the interest threatened by disclosure.
Pa.R.Crim.P. 513.1, cmt.
On this issue, Appellants’ brief asserts that the trial court failed to
articulate the factors it took into consideration and/or consider alternative
means to protect the interest threatened by disclosure, as per the official
comment to Rule 513.1.7 Appellants’ Brief at 29-31. We agree that the trial
court’s original sealing order and opinion in support thereof could and should
have been more thorough. But the trial court's ability to explain itself more
fully was somewhat cabined by the need to avoid revealing sensitive
information pertaining to the ongoing investigation. For that reason, we
directed the trial court to file a supplemental opinion under seal to this Court.
Based on that supplemental opinion and our in camera review of the arrest
warrant affidavit, we concluded that the trial court did not err in sealing arrest
warrant information in a case that involved the Commonwealth’s continued
pursuit of two as yet unidentified individuals believed to be part of a murder-
for-hire. The trial court’s supplemental opinion was based on the
Commonwealth’s allegations that alerting Van Lam’s alleged co-conspirators
to the ongoing investigation into their identity and whereabouts could lead to
the destruction of evidence and threats to the safety of potential witnesses.
7 As explained in the main text above, the hearing clarified that Appellants’ primary concern was access to a public docket.
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Petition to Seal Arrest Warrant, 11/7/2022. These circumstances are
sufficient to support the temporary sealing of arrest warrant information, as
all of them are vitally related to the integrity of the Commonwealth’s
investigation, as per the official comment to Rule 513.1. As such, the
Commonwealth sufficiently overcame the presumption of openness with
regards to arrest warrant documents revealing sensitive information
pertaining to the underlying investigation. See Fenstermaker, 530 A.2d at
420 (“Where the presumption of openness attached to a public judicial
document is outweighed by circumstances warranting closure of the document
to public inspection, access to the document may be denied.”). Further, these
circumstances leave no viable alternative to the temporary sealing of the
arrest warrant documents.
For the reasons explained above, we conclude that the trial court abused
its discretion in denying Appellant’s motion to intervene and in sealing the
public docket. We affirm the remainder of the trial court’s order.
Order affirmed in part and reversed in part. Jurisdiction relinquished.
DATE: 3/6/2024
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