Com. v. Upshur

• Decision Date: 22 August 2005
• Citation: 882 A.2d 499
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Jamie Lynn UPSHUR. WPXI, Inc., Intervenor-Appellee.
• Court: Pennsylvania Superior Court

882 A.2d 499

COMMONWEALTH of Pennsylvania, Appellant v. Jamie Lynn UPSHUR.

WPXI, Inc., Intervenor-Appellee.

Superior Court of Pennsylvania.

Argued March 29, 2005.

Filed August 22, 2005.

Michael W. Streily, Deputy District Attorney, Pittsburgh, and Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

Walter P. DeForest III, Pittsburgh, for WPXI, Intervenor.

Before: HUDOCK, POPOVICH, and JOHNSON, JJ.

OPINION BY JOHNSON, J.:

¶ 1 In this case we consider whether the electronic media enjoys either a common law or constitutional right of access, before trial, to a copy of an audiotape played during a preliminary hearing where the Commonwealth introduced the audiotape as part of its prima facie case. On appeal, the Commonwealth argues that the trial court abused its discretion when it found that a local television station's interest in obtaining the audiotape was greater than the Commonwealth's interest in prosecuting the case and protecting the defendant's right to a fair trial. We conclude that on the facts presented here, the audiotape at issue was not a public judicial document at the point in the proceedings where the demand was made for access. We further conclude that in this case, the media did not have a constitutional right to access and record the audiotape. Accordingly, we reverse the order granting the television station access to the audiotape for purposes of recording it and presumably broadcasting the contents before trial.

¶ 2 The audiotape at issue in this case was played during Jamie Lynn Upshur's preliminary hearing. Upshur was charged with two counts of criminal homicide, two counts of homicide by vehicle, three counts of aggravated assault, two counts of reckless endangerment and one count each of simple assault, speeding, and reckless driving. The Commonwealth played the audiotape at the preliminary hearing before District Justice Charles McLaughlin as part of its presentation of its prima facie case against Upshur. The audiotape is a recording of a conversation between Upshur, Timira Brown, one of the alleged victims, and Brown's boyfriend. Upshur allegedly made threatening remarks to Brown during the course of the call. Brown initiated the call at the insistence of her boyfriend, who was incarcerated in the Allegheny County Jail. Pursuant to Jail policy, the Jail records all calls to or from inmates, with a warning at the beginning of the call, advising the recipient that the call is being recorded. Because Brown initiated the call, Upshur may not have known that the call was being recorded.

¶ 3 The Intervenor/Appellee, WPXI, Inc. ("WPXI"), was present at the preliminary hearing when the tape was played and filed a motion to intervene and obtain access to the audiotape. District Justice McLaughlin held that he was without authority to act on the motion, and denied the request. WPXI then filed a motion to intervene and obtain access to the audiotape in the Court of Common Pleas. That court held that the audiotape was a public judicial document and granted WPXI's motion to obtain access of the audiotape. The Commonwealth then took this timely appeal.

¶ 4 On appeal, the Commonwealth raises one issue:

Whether the court abused its discretion in ruling that WPXI's interest in obtaining the Commonwealth's audio tape that was played during the preliminary hearing in the case of Commonwealth v. Jamie Upshur outweighed the Commonwealth's interest in both prosecuting the case and protecting the defendant's rights to a fair trial.

Brief for Appellant at 4.

¶ 5 A trial court's decision regarding access to judicial documents is within the sound discretion of the trial court. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414, 420 (1987). We will reverse on appeal if we find an abuse of that discretion. See Commonwealth v. Long, 871 A.2d 1262, 1268 (Pa.Super.2005). An abuse of discretion occurs "when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will." Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116, 1123 (2000) (citing Coker v. S.M. Flickinger Company, Inc., 533 Pa. 441, 625 A.2d 1181, 1184-85 (1993)). "Judicial discretion requires action in conformity with law based on the facts and circumstances before the trial court after hearing and consideration." Gutteridge v. A.P. Servs., 804 A.2d 643, 651 (Pa.Super.2002).

¶ 6 The threshold inquiry when determining whether the public or press should be given access to this audiotape is whether it is a public judicial document. As our Supreme Court held,

[t]he threshold inquiry in a case such as this where a common law right of access is asserted is whether the documents sought to be disclosed constitute public judicial documents, for not all writings connected with judicial proceedings constitute public judicial documents.

Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414, 418 (1987) (emphasis added). See also Commonwealth v. Crawford, 789 A.2d 266, 270 (Pa.Super.2001) (noting that "[t]he fundamental question... is `whether the documents sought to be disclosed constitute public judicial documents, for not all writings connected with judicial proceedings constitute public judicial documents'").

¶ 7 The Pennsylvania Supreme Court's decision in Fenstermaker, which analyzed the right of the press to access arrest warrant affidavits after an arrest has been made, guides the analysis of WPXI's right to record the audiotape. In Fenstermaker, the Court noted that there is a "tradition of keeping proceedings and records of the criminal justice system open to public observation. . .". 530 A.2d at 418. This tradition, however, does not provide an unfettered right of access to all judicial documents or evidence. See id.

¶ 8 Despite the importance of this threshold inquiry, the trial court does not appear to have given careful thought or analysis to the status of the audiotape. Indeed, in its three page opinion on the matter, the trial court did not set forth its analysis and reasoning behind its conclusion that the audiotape was a public judicial document. Trial Court Opinion, 4/1/04. The inquiry into whether the audiotape is a public judicial document, with the attending common-law right of access, or simply a judicial document, with no such right of access, should have guided the trial court's analysis. Accordingly, we begin with that analysis.

¶ 9 The audiotape was played at a preliminary hearing in which the Commonwealth presented evidence to the magistrate for purposes of determining whether the Commonwealth had sufficient evidence to establish a prima facie case that the accused committed a crime. See Pa.R.Crim.P. 542, 543. The audiotape was not entered into evidence, it was not filed with the court, and did not otherwise become part of the record in this case.

¶ 10 The Fenstermaker Court set forth a number of factors the trial court should have taken into account when determining, in this case, whether the audiotape constituted a public judicial document, including whether the document was entered into evidence and certain policy considerations in favor of public inspection of arrest warrants. The Court elaborated these points of policy as follows:

[P]ublic 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 the public perception of fairness in the arrest warrant process.

Fenstermaker, 530 A.2d at 418.

¶ 11 None of these policy concerns are present in this case. Allowing WPXI access to the audiotape to record it would not discourage perjury or enhance the performance of police and prosecutors; nor would it promote the public perception of fairness or openness in the courts. Indeed, there are questions regarding the admissibility of the tape, the most significant perhaps being whether the interception of the threats violated the Pennsylvania Wiretap Act, 18 Pa.C.S. Section 5701. In a situation such as the one before this Court, a finding that the audiotape is not a public judicial document prevents the broadcast and dissemination of highly inflammatory and possibly prejudicial information until after a court has ruled on its admissibility.

¶ 12 To the extent that WPXI argues that there is no distinction between the release of the possibly inadmissible information in the form of an audiotape or a transcript, we find this argument unsupportable. If WPXI were to repeatedly broadcast the audiotape, which the Commonwealth has characterized as "vivid, powerful and potentially inflammatory," this will likely have a greater impact on the public than reading the transcript of the call. Brief for Appellant at 13. As the Commonwealth argued, "it is difficult to believe that anyone hearing these threats, in the defendant's own voice, with all of its inflection and tone, outside of the trial proceeding, without the protections afforded by the rules of evidence, could not form a fixed bias against the defendant." Id. Indeed, the fact that WPXI was present when the tape was played and could have requested a transcript of the proceeding, but instead insisted upon a copy of the tape is indicative of the sensationalistic value of the audiotape.

¶ 13 In continuing its analysis, the Court in Fenstermaker looked to the nature of the document to determine whether it was a public or private judicial document and specifically stated, "it is significant to note that arrest warrant affidavits are `filed' to become a part of the permanent record of the case, and as filed documents, their `public' character is enhanced." Fenstermaker, 530 A.2d...