Com. v. Crawford

• Decision Date: 27 December 2001
• Citation: 789 A.2d 266
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kenneth Carl CRAWFORD and David Lee Hanley and Cypress Media, d/b/a The Times Leader and Terrie Morgan Besecker. Appeal of Cypress Media, d/b/a The Times Leader and Terrie Morgan Besecker.
• Court: Pennsylvania Superior Court

789 A.2d 266

COMMONWEALTH of Pennsylvania, Appellee v. Kenneth Carl CRAWFORD and David Lee Hanley and Cypress Media, d/b/a The Times Leader and Terrie Morgan Besecker.

Appeal of Cypress Media, d/b/a The Times Leader and Terrie Morgan Besecker.

Superior Court of Pennsylvania.

Submitted August 27, 2001.

Filed December 27, 2001.

Jonathan Blum, Wilkes-Barre, for appellants.

William Ruzzo, Wilkes-Barre, for Hanley, appellee.

Peter J. Savage, Wilkes-Barre, for Crawford, appellee.

David W. Lupas, Asst. Dist. Atty., Wilkes-Barre, for the Com., appellee.

Before: DEL SOLE, President Judge, CAVANAUGH, J. and CERCONE, President Judge Emeritus. DEL SOLE, President Judge:

¶ 1 This appeal lies from two provisions of an order entered September 27, 2000, in the Court of Common Pleas of Luzerne County. The first denies the media Appellants' petition to vacate or modify a previous order which prohibited all persons connected with the underlying criminal case in any capacity from making extrajudicial statements "which are likely or might possibly interfere with the rights of the Defendants or the Commonwealth to a fair and impartial trial," and the second denies the media Appellants access to a Commonwealth brief filed after defense counsel moved to quash a notice of aggravating circumstances.

¶ 2 The underlying criminal matter which gave rise to these proceedings involves a double murder committed by two defendants, Kenneth Crawford and David Lee Hanley, during the course of a robbery. In both instances, the Commonwealth filed a Notice of Aggravating Circumstances, indicating its intention to seek the death penalty. Thereafter, in return for a plea of guilty, Hanley was sentenced to consecutive life sentences. The question then arose whether, because of Crawford's age, 15 at the time of the murder, the death penalty was applicable. The defense moved to quash the Notice, and briefs were ordered by the court for use in its deliberations on the question. At the same time, the restraining order was entered. Appellants herein, Cypress Media, d/b/a The Times Leader, and its reporter, Terrie Morgan Besecker, sought access as intervenors to the Commonwealth's brief, and petitioned to have the prior restraint order modified or vacated, alleging First and Fourteenth Amendment violations, as well as violations of the Pennsylvania Constitution, various state and federal statutes and the common law. After a hearing, the trial court refused Appellants' requests, and this appeal followed.

¶ 3 Two issues are presented challenging first, the trial court's confirmation of the restrictive order, and second, its refusal to allow Appellants access to the Commonwealth's brief in favor of applying the death penalty to a 15-year-old. Before assessing the merits of Appellants' claims, however, we must determine their appealability.

¶ 4 As to the first issue, this Court's decision in Commonwealth v. Lambert, 723 A.2d 684 (Pa.Super.1998), is controlling. There the media appellants contested a detailed and extensive "gag" order¹ as violative of the First Amendment and otherwise unconstitutionally vague. Given the nature of the order, the issues involved, that is, freedom of speech and of the press, and the potential loss of the issue by postponement of judgment, we held that the matter was appealable under the collateral order exception to the final judgment rule. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975); Pa.R.A.P. 313.² Considering the similarity of the order at issue here, we find that Lambert controls as to appealability.

¶ 5 However, our inquiry does not end there. We must also determine whether Appellants have standing to challenge the trial court's order. "The question of standing is rooted in the notion that for a party to maintain a challenge to an official order or action, he must be aggrieved in that his rights have been invaded or infringed." Franklin Township v. Commonwealth, Dep't of Envtl. Res., 500 Pa. 1, 452 A.2d 718, 719 (1982).

¶ 6 Although the issue of standing has not been discussed in previous cases involving media challenges to restrictive court orders, we note that in those cases, the media appellants were either specifically named in the order, or granted intervenor status by the trial court. See Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), cert. denied, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980); Commonwealth v. Lambert, 723 A.2d 684 (Pa.Super.1998); Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 (1983). It is important to note here that the trial court denied not only Appellants' petition to vacate or modify its "gag" order, but also their petition to intervene:

In summary, we find the Order does not apply to [Appellants] and does not infringe upon or in any way violate a constitutional, statutory or procedural right of the Times Leader or its reporter which warrants or justifies their intervention to question the validity of our Order.

Trial Court Opinion at 10. When Appellants' petition to intervene was denied, their recourse was to argue on appeal that the trial court erred in failing to grant them intervenor status. See Capital Cities Media, Inc. v. Toole, 506 Pa. 12, 483 A.2d 1339, 1344 (1984) ("An order denying leave to intervene in these sensitive circumstances is immediately appealable.") This, however, they have failed to do. Thus, any challenge to the court's denial of intervenor status is waived.³

¶ 7 Moreover, we find that Appellants have no alternate source of standing to challenge the court's "gag" order. In order to have standing to challenge a court order, an appellant must have a substantial, immediate and direct interest in the subject matter of the litigation. Ken R. on Behalf of C.R. v. Arthur Z., 546 Pa. 49, 682 A.2d 1267, 1270 (1996).

A "substantial" interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. A "direct" interest requires a showing that the matter complained of caused harm to the party's interest. An "immediate" interest involves the nature of the causal connection between the action complained of and the injury to the party challenging it, and is shown where the interest the party seeks to protect is within the zone of interests sought to be protected by the statute or constitutional guarantee in question.

South Whitehall Township Police Serv. v. South Whitehall Township, 521 Pa. 82, 555 A.2d 793, 795 (1989) (citations omitted).

¶ 8 In the present case, Appellants do not have a substantial interest in the subject matter which outweighs the interests of citizens in general. Indeed, "[a]ccess rights of the news media, and of the general public, are identical in scope." Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414, 416 n. 1 (1987). See also Stenger v. Lehigh Valley Hosp. Ctr., 382 Pa.Super. 75, 554 A.2d 954, 957 (1989) ("... the media has no greater right of access to any judicial proceeding or document than does any other citizen.") Appellants also do not have a direct interest in the subject matter as the "gag" order did not restrict media coverage of the proceedings or prevent reporters from questioning the attorneys. Moreover, it did not even restrict the attorneys from speaking to the media; it "merely prohibits extra judicial statements which are likely or might possibly interfere with the rights of the Defendants and the Commonwealth to a fair and impartial trial." Trial Court Opinion, 8/6/01, at 5. Lacking either a substantial or direct interest, Appellants also are unable to demonstrate an immediate injury caused by the order. Therefore, we conclude that Appellants have no standing to challenge the court's "gag" order.

¶ 9 With respect to the provision of the September 27 Order, denying Appellants access to the Commonwealth's pretrial brief, the conclusion of appealability remains constant. Analyzed under the precepts of Rule 313, we first note that the issue is unquestionably separate from and collateral to the underlying case, a finding supported by the criminal appellant's communication to our Court declining to file a brief in this matter. The claimed right of public access to the document, which involves an important matter of public concern, the applicability of the death penalty to juveniles, is similarly too important to evade review....