Com. v. Fenstermaker

• Decision Date: 25 August 1987
• Docket Number: Nos. 144,s. 144
• Citation: 530 A.2d 414,515 Pa. 501
• Parties: , 14 Media L. Rep. 1555 COMMONWEALTH of Pennsylvania, Appellant, v. Timothy S. FENSTERMAKER, Edward Grey and Brent A. Smith, Call-Chronicle Newspapers, Inc. (now known as the Morning Call, Inc.), Appellee. E.D. 1986, 01244 Phila. 1984, 01245 Phila. 1984 and 013112 Phila. 1984.
• Court: Pennsylvania Supreme Court

Page 414

530 A.2d 414

515 Pa. 501, 14 Media L. Rep. 1555

COMMONWEALTH of Pennsylvania, Appellant, v. Timothy S. FENSTERMAKER, Edward Grey and Brent A. Smith,

Call-Chronicle Newspapers, Inc. (now known as the

Morning Call, Inc.), Appellee.

Nos. 144 E.D. 1986, 01244 Phila. 1984, 01245 Phila. 1984 and

013112 Phila. 1984.

Supreme Court of Pennsylvania.

Argued April 8, 1987.

Decided Aug. 25, 1987.

[515 Pa. 503] William H. Platt, Dist. Atty., for appellant.

Wallace C. Worth, Jr., Allentown, for Fenstermaker.

Malcolm J. Gross, Allentown, for intervenor.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal from an order of the Superior Court which affirmed an order of the Court of Common Pleas of Lehigh County setting forth standards governing public access to arrest warrant affidavits. Commonwealth v. Fenstermaker, 348 Pa.Super. 230, 502 A.2d 181 (1985). The issue of the extent of permissible public access to such affidavits arose following the arrest of Timothy S. Fenstermaker, Edward Grey, and Brent A. Smith, all of whom were arrested pursuant to warrants issued by a magistrate in connection with charges of homicide, rape, indecent assault, conspiracy, and underage drinking. The arrest warrants were issued on the basis of affidavits of probable cause executed by a police detective.

After arraignment of the accused, but before preliminary hearings had commenced, Call-Chronicle Newspapers, Inc. (hereinafter Call-Chronicle) presented to the Court of Common Pleas a motion for leave to intervene ¹ in the case and a motion for permission to inspect and copy the affidavits of probable cause upon which the arrest warrants had been issued. In the latter motion, the Call-Chronicle averred that the magistrate had denied the paper's request to inspect and copy the affidavits.

The motion for leave to intervene was granted, and, with respect to the motion for leave to inspect and copy, an order was entered which recognized a presumptive right of public access to affidavits of probable cause but which permitted such affidavits to be sealed against inspection under limited circumstances. Specifically, the Court of Common Pleas held that a magistrate must permit inspection of affidavits of probable cause unless there has been filed by the District Attorney or defense counsel a certified statement setting forth reasons that public inspection should not be allowed. Such asserted reasons might include claims that prejudice to the defendant or to other persons would result from public dissemination of the document. The Court of Common Pleas further held that, in the event that the requisite certified statement has been filed by the District Attorney or defense counsel, the magistrate shall seal the affidavit of probable cause from public inspection, and that any interested person may appeal to the Court of Common Pleas for a hearing and determination as to whether, under the circumstances of a given case, rights of public access outweigh the rights of the defendant or other individuals threatened by public disclosure. In making that determination, the Court of Common Pleas noted, the affidavit can remain sealed only if other reasonable means are unavailable to protect the interests threatened by disclosure, and, if the prejudicial or damaging information has by then become public, or if the danger of prejudice has since passed, the continued sealing of the document would be unwarranted. The Court of Common Pleas further noted that, if disclosure would result in pretrial publicity, it cannot be assumed that such publicity would automatically render a fair trial impossible.

An appeal was taken to the Superior Court, whereupon the decision of the Court of Common Pleas was affirmed. The Superior Court held that the lower court's decision represented an appropriate accommodation of the respective rights of defendants under the fair trial guarantees of the Sixth Amendment and the rights of the public to gain access to information under the First Amendment. The instant appeal ensued.

It is to be noted at the outset that there has been no assertion in the instant case that arrest warrant affidavits should be open to public inspection prior to an actual arrest having been made. The issue presented, therefore, concerns only access to affidavits supporting arrest warrants that have already been executed. The Commonwealth contends that affidavits of probable cause for arrest frequently contain information that could be prejudicial to a defendant's right to a fair trial, and, thus, that all such affidavits should be closed to public inspection until such time as the guilt determining process has been completed. We do not agree.

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, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973, 987 (1980). As stated by Justice Hugo Black in In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 504, 92 L.Ed. 682 (1948), "This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial."

Indeed, in this Commonwealth, the principle of openness is based not only upon common law tradition, and upon the First Amendment of the Constitution of the United States, but also upon Article I, sections 9 and 11 of the Pennsylvania Constitution. Article I, section 9 provides, "In all criminal prosecutions the accused hath a right to ... a speedy public trial ...," and Article I, section 11 states, "All courts shall be open." See Commonwealth v. Contakos, 499 Pa. 340, 344, 453 A.2d 578, 580 (1982) (plurality opinion, with two Justices concurring in the result) ("We are mindful ... of our virtually unbroken history of public trials and openness in criminal trials."; trial court erred in excluding public from courtroom during portions of criminal trial proceedings).

The nature of criminal law is such that it punishes offenses against the collective public, Commonwealth v. Bovaird, 373 Pa. 47, 55, 95 A.2d 173, 176 (1953), and, accordingly, members of the public have an interest in observing criminal justice processes to be assured that offenses perpetrated against them are dealt with in a manner that is fair to their interests, and fair to the interests of the accused. In Contakos, 499 Pa. at 344, 453 A.2d at 579-580, considerations governing public observation of criminal justice proceedings were set forth as follows:

The historical basis for public trials and the interests which are protected by provisions such as Pennsylvania's open trial mandate have been well researched and discussed in two recent opinions of the United States Supreme Court, Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), and Richmond Newspapers, Inc. v. Virginia, supra, and can be briefly summarized as follows: generally, to assure the public that justice is done even-handedly and fairly; to discourage perjury and the misconduct of participants; to prevent decisions based on secret bias or partiality; to prevent individuals from feeling that the law should be taken into the hands of private citizens; to satisfy the natural desire to see justice done; to provide for community catharsis; to promote public confidence in government and assurance that the system of judicial remedy does in fact work; to promote the stability of government by allowing access to its workings, thus assuring citizens that government and the courts are worthy of their continued loyalty and support; to promote an understanding of our system of government and courts.

These considerations, which were applied by the United States Supreme Court in its analysis of the First and Sixth Amendments in Gannett and Richmond Newspapers apply equally to our analysis of Pennsylvania's constitutional mandate that courts shall be open and that an accused shall have the right to a public trial.

Although the instant case does not involve the issue presented in Contakos, to wit, the propriety of limitations upon public access to the courtroom itself, and, thus, provisions of the Pennsylvania Constitution heretofore cited which call for public trials and open courts are not, in a strict sense, directly controlling as to the issue presented, many of the same considerations command recognition of a common law right of access to the affidavits sought by Call-Chronicle. Specifically, from a policy standpoint, public inspection of arrest warrant affidavits would serve to discourage perjury in such affidavits, would enhance the performance of police and prosecutors by encouraging them to establish sufficient cause before an affidavit is filed, would act as a public check on discretion of issuing authorities thus discouraging erroneous decisions and decisions based on partiality, and would promote a public perception of fairness in the arrest warrant process. Indeed, the salutary effects of openness in this aspect of the criminal justice system are clear, and, as noted in Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 572, 100 S.Ct. at 2825, 65 L.Ed.2d at 986, "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."

The tradition of keeping proceedings and records of the criminal justice system open to public observation is founded in common...