Com. v. Bowden

• Decision Date: 19 December 2003
• Citation: 838 A.2d 740,576 Pa. 151
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Mark BOWDEN and Linn Washington, Jr., Appellees. Commonwealth of Pennsylvania, v. Brian Tyson, Appeal of Mark Bowden and Linn Washington, Jr.
• Court: Pennsylvania Supreme Court

838 A.2d 740

576 Pa. 151

COMMONWEALTH of Pennsylvania, Appellant, v. Mark BOWDEN and Linn Washington, Jr., Appellees.

Commonwealth of Pennsylvania, v. Brian Tyson,

Appeal of Mark Bowden and Linn Washington, Jr.

Supreme Court of Pennsylvania.

Argued April 7, 2003.

Decided December 19, 2003.

Hugh J. Burns, Ronald Eisenberg, Karen A. Brancheau, Philadelphia, for Com.

Benjamin Charles Dunlap, Jr., Craig J. Staudenmaier, Harrisburg, amicus curiae, for Pennsylvania Association of Broadcasters.

Teri L. Henning, amicus curiae, for Pennsylvania Newspaper Association.

Robert C. Clothier, Robert C. Heim, Amy B. Ginensky, for Mark Bowden.

Simone White, Ronald A. White, Philadelphia, for Linn Washington, Jr.

Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION OF THE COURT

Justice NIGRO.

This appeal concerns the scope of the Pennsylvania Shield Law, 42 Pa.C.S. § 5942, the reach of the qualified reporters' privilege to refuse to disclose sources and materials, and the propriety of a contempt sanction imposed on two reporters for refusing to provide prosecutors with statements made by a criminal defendant while being interviewed prior to his trial.

I

During a protracted feud with local drug dealers in his North Philadelphia neighborhood, Brian Tyson shot and killed one dealer, a twenty-three year-old named Damon Millner. Tyson readily admitted to the slaying, but at some point claimed that he had acted in self-defense. Later, before his trial for killing Millner, Tyson contacted Philadelphia Inquirer staff writer Mark Bowden and spoke with him on several occasions, providing Bowden with details of the shooting and of his clash with the dealers. Based on this information, Bowden authored a series of three articles for the Inquirer in which he explained the Commonwealth's likely theory of vigilantism and Tyson's claim of self-defense. See generally Mark Bowden, Hero or Vigilante? A Man's Fight for His Neighborhood, PHILA. INQUIRER, June 21, 1998, at A01; Mark Bowden, A Frustrating Search for Help, PHILA. INQUIRER, June 22, 1998, at A01; Mark Bowden, A War of Nerves Erupts in Gunfire, PHILA. INQUIRER, June 23, 1998, at A01. After reading these articles, Philadelphia Tribune investigative journalist Linn Washington, Jr. also spoke with Tyson on numerous occasions and collected information about his case. Ultimately, Washington authored several editorial pieces for the Tribune discussing Tyson, see generally Linn Washington, Jr., City Man Trapped in `Twilight Zone' After Shooting, PHILA. TRIB., July 28, 1998, at 2A; Linn Washington, Jr., Mystery of Shotgun Magnifies a Murder Case, PHILA. TRIB., Sept. 15, 1998, at 2A; Linn Washington, Jr., If DA Calls on Thugs, Who Can Get Justice?, PHILA. TRIB., Aug. 3, 1999, at 2A; Linn Washington, Jr., Thomas Jones is Not Only Victim of Police Abuses, PHILA. TRIB., July 25, 2000, at 7A; Linn Washington, Jr., One Black Family that Badly Needs Saving, PHILA. TRIB., Oct. 10, 2000, at 7A, and also authored an article about the Tyson case on a freelance basis for the Philadelphia Weekly, see Linn Washington, Jr., Vigilante or Victim?, PHILA. WEEKLY, Sept. 8, 1999, at 9.

Commonwealth prosecutors apparently found that certain portions of these newspaper pieces were inconsistent with statements Tyson had made to authorities. As a result, on October 24, 2000, the Commonwealth directed subpoenas to both Bowden and Washington, instructing them to appear on November 30, 2000, the day before Tyson's trial was scheduled to begin, and produce to the Commonwealth "all handwritten or otherwise memorialized notes of interviews or phone conversations with Brian Tyson and or [sic] Maya Scarpitti."¹ R.R. 14a, 15a. Bowden and Washington moved to quash the subpoenas on November 29, 2000, arguing that their unpublished notes were protected from disclosure by the Pennsylvania Shield Law and a qualified privilege arising out of the First Amendment to the United States Constitution.

The trial court heard oral argument on the reporters' motions on December 1, 2000, and then began jury selection for Tyson's trial. As jury selection was proceeding, the trial court entered an order on December 4, 2000, granting the reporters' motions in part and denying them in part. Specifically, the court found that the Pennsylvania Shield Law, as interpreted by this Court in In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963), did not protect the reporters' notes from production because such protection is afforded only where "the documents sought might reveal confidential sources." Commonwealth v. Tyson, No. 14, Oct. Term 1997, slip op. at 1 (Com.Pl.Phila.Dec.4, 2000). The court did recognize, however, that a qualified First Amendment privilege, derived from Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), provided a limited degree of protection to the confidentiality of the reporters' notes. Id. at 1, 3. Nevertheless, the trial court determined that this qualified privilege did not prevent the compelled disclosure of "verbatim or substantially verbatim statements of [Tyson] involving the incident itself or such statements of [Tyson] which speak to his relationship to drug dealers in [his] neighborhood." ²Id. at 3. In this regard, the court reasoned:

Because only the reporter and [Tyson] were privy to the conversations, these statements would not be obtainable from any other source. Indeed, in view of [Tyson's] [F]ifth [A]mendment privilege, the Commonwealth may not simply interview him, as it might with other witnesses. Certainly the statements are relevant and necessary, possibly in the Commonwealth's case in chief, but also for impeachment or rebuttal if [Tyson] decides to present a defense. For these are the statements of [Tyson] and go directly to his guilt or to impeach his defense that the killing was justified....

Id.

Bowden and Washington immediately moved the trial court for a stay of its order, but the court denied that motion from the bench on December 5, 2000. The court then commenced Tyson's trial, first issuing preliminary instructions to the jury and then allowing attorneys for the Commonwealth and Tyson to present their opening statements. Meanwhile, the reporters were seeking a stay of the trial court's order from the Superior Court, which issued a temporary stay on December 6, 2000 pending the Commonwealth's response to the reporters' motion. The trial court, having received word of the Superior Court's stay order, halted Tyson's trial.³ The following day, the Superior Court entered an order dissolving the temporary stay effective December 8, 2000. Tyson's trial then resumed, with the trial court proceeding to swear the jury and the Commonwealth presenting several of its witnesses as part of its case-in-chief. At the same time, Bowden and Washington were once again seeking a stay, this time from this Court. We issued a temporary stay order on December 11, 2000, but ultimately denied the reporters' request on December 12, 2000. By that point, the Commonwealth had completed its case-in-chief and Tyson's defense case was in progress.

Following this Court's denial of the reporters' request for a stay, the trial court held a mid-trial hearing on the morning of December 13, 2000, at which time the Commonwealth again requested that Tyson's statements be produced. As Bowden and Washington had exhausted all avenues of relief with regard to a stay of the trial court's order, the court directed the reporters to comply with its December 4, 2000 order by 12:00 p.m. on the day of the hearing or be held in contempt of court. The court reiterated that Bowden and Washington could comply with the court's edict by producing the subject statements either orally or in writing, and thus could avoid having to provide the Commonwealth with their actual notes.

Bowden and Washington declined to comply with the trial court's order by the stated deadline and thus were held in contempt. Specifically, the trial court entered what it characterized as a coercive civil contempt citation: an order that "each [reporter] must pay $100 per minute starting 12:00 noon this date until compliance or until the Commonwealth finally rests its case on rebuttal [of Tyson's defense]." Commonwealth v. Tyson, No. 14, Oct. Term 1997 (Com.Pl.Phila.Dec.13, 2000). The Commonwealth completed its rebuttal the following day, December 14, 2000, and the jury subsequently found Tyson guilty of third-degree murder. Thereafter, the court advised Bowden and Tyson that 400 minutes of trial were covered by the contempt order, and, accordingly, that each reporter's sanction totaled $40,000.

Bowden and Washington appealed to the Superior Court, which affirmed in part and remanded in part. Commonwealth v. Tyson, 800 A.2d 327 (Pa.Super.2002). The court found that the trial court had correctly interpreted the Pennsylvania Shield Law, explaining that our post-Taylor decision in Hatchard v. Westinghouse Broadcasting Co., 516 Pa. 184, 532 A.2d 346 (1987), had interpreted the Shield Law as protecting only the confidentiality of a source's identity. Tyson, 800 A.2d at 333. As Tyson had discussed only his own actions with Bowden and Washington, the court reasoned that there was no danger that disclosure of [Tyson's] unpublished statements would reveal any confidential informants. Id. Thus, the court concluded that the Shield Law did not protect Tyson's statements to the reporters from compelled disclosure. Id. at 333-34.

With respect to the reporters' qualified privilege claim, the court concluded that the Commonwealth had satisfied its burden of proving (1) that it had exhausted attempts to obtain the information from other sources, (2) that the information sought was "material[,] relevant[,] and necessary," and (3) that the information sought was "crucial" to its case. See id. at 331-32 (citing Davis v. Glanton, 705 A.2d 879, 885 (Pa.Super.1997)). Specifically, the court reasoned that the Commonwealth could not...