Com. v. Upshur

• Decision Date: 20 June 2007
• Docket Number: No. 2 WAP 2006.,2 WAP 2006.
• Citation: 924 A.2d 642
• Parties: COMMONWEALTH of Pennsylvania v. Jamie Lynn UPSHUR, Appeal of WPXI, Inc.
• Court: Pennsylvania Supreme Court

924 A.2d 642

COMMONWEALTH of Pennsylvania v. Jamie Lynn UPSHUR Appeal of WPXI, Inc.

No. 2 WAP 2006.

Supreme Court of Pennsylvania.

Argued September 11, 2006.

Resubmitted April 13, 2007.

Decided June 20, 2007.

Walter P. DeForest, III, DeForest Koscelnik Yokitis & Kaplan, Altoona, for WPXI, Inc., appellant.

Kevin Francis McCarthy, Pittsburgh, for the Com. of PA, appellee.

BEFORE: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice SAYLOR.

Appeal was allowed in this case to determine whether an audiotape played at a preliminary hearing is a public judicial record or document to which the media has a presumptive right of access.

In February 2004, Jamie Lynn Upshur was charged by criminal complaint filed in the Pittsburgh Magistrates Court with multiple offenses, including two counts of criminal homicide, apparently arising out of a collision that involved several vehicles.¹ As part of its prima facie case at Ms. Upshur's preliminary hearing before a magistrate district judge, the Commonwealth played an audiotape allegedly containing a recording of Ms. Upshur's voice as she directed threatening statements toward one of the asserted victims, Timira Brown, several months prior to the events giving rise to the criminal charges. Reportedly, the conversation was part of a three-way telephone call initiated by Ms. Brown and which included Ms. Brown's boyfriend, who was incarcerated in the Allegheny County Jail. The recording occurred pursuant to the facility's policy, under which all calls to or from inmates are preserved via audiotape. Although parties to phone calls with inmates are advised of the recording when the calls are initiated, Ms. Upshur may not have been aware that the conversation was monitored, as she may have been connected via a third-party line after the issuance of the warning.

A reporter for television station WPXI-TV (owned and operated by Appellant WPXI, Inc.) was present at the preliminary hearing when the audiotape was played. Apparently due to public interest regarding this case, WPXI filed a motion for leave to intervene with the magistrate district judge, seeking access to the audiotape in order to make a copy that could be broadcast.² The magistrate, however, did not believe that he was authorized to act on the motion and denied WPXI's request.

WPXI then filed a motion to intervene in the common pleas court, arguing that the public has a right to obtain a copy of a tape recording played in court and that a transcript of that tape would not suffice.³ The court agreed and issued an order granting WPXI access to a copy of the tape. In a brief opinion that followed, the court explained that there is a presumption of openness that accompanies criminal proceedings. See Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973 (1980). Further, the court recognized that public access to judicial records was also presumed, see Nixon v. Warner Communications, Inc., 435 U.S. 589, 602, 98 S.Ct. 1306, 1314, 55 L.Ed.2d 570 (1978), and that this Court had determined that public judicial records or documents must be available for inspection and copying unless the party seeking to seal the materials demonstrated compelling reasons to preclude access, see Commonwealth v. Fenstermaker, 515 Pa. 501, 513-14, 530 A.2d 414, 420-21 (1987). Applying these principles to the present matter, the court concluded that the audiotape in question was a public judicial record for which the presumption of access had not been overcome and emphasized that the tape had been "played out in the open" during the preliminary hearing. Commonwealth v. Upshur, No. 410, March Term 2004, slip op. at 3 (C.P. Allegheny Co. April 1, 2004).

On appeal by the Commonwealth, the Superior Court reversed, concluding that the audiotape was not a public judicial record or document because the tape was not part of the record, as it was never entered into evidence or otherwise filed with the court. See Commonwealth v. Upshur, 882 A.2d 499, 503 (Pa.Super.2005). Further, the court examined the public policy factors enumerated by this Court in Fenstermaker, 515 Pa. at 507-08, 530 A.2d at 417-18, and determined that release of the tape recording would not discourage perjury, enhance the performance of police or prosecutors, or promote the public perception of fairness and openness in the judicial system. Additionally, the court emphasized that there were serious questions as to the admissibility of the recording at trial due to a possible violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701-5782.⁴ Given the likely inflammatory effect of the tape should it be broadcast and the fact that transcripts of the proceedings, including the contents of the recording, were available, the court determined that access to an audio copy of the tape itself was not mandated.

Judge Popovich dissented, expressing the view that the audiotape became part of the record once it was played at the preliminary hearing. See Upshur, 882 A.2d at 506 (Popovich, J., dissenting). Further, Judge Popovich concluded that, since pretrial publicity does not always render a trial unfair, WPXI should not have been denied access to the recording based solely on the Commonwealth's assertion that broadcast of the tape would be inflammatory.

The Court granted WPXI's Petition for Allowance of Appeal to determine whether an audiotape played at a preliminary hearing is a public judicial record or document to which the common law right of access attaches and, relatedly, whether the common pleas court abused its discretion in granting access in the present matter. As the court did not develop its reasoning with regard to the latter issue in its Rule 1925(a) opinion, however, we remanded the case for preparation of an opinion specifying the rationale, together with any necessary factual findings, supporting the discretionary component of its ruling. In this subsequent opinion, the court explained that access to the tape recording was presumed, as it had been played at the preliminary hearing. To overcome this presumption, the court observed that the Commonwealth must present compelling reasons warranting denial of access to the audiotape. See Fenstermaker, 515 Pa. at 514, 530 A.2d at 421. However, because the Commonwealth raised the sole issue of contamination of the jury pool, which could be adequately addressed by voir dire or a change of venue, and did not play the tape or offer it as evidence at the hearing, the common pleas court permitted WPXI to obtain a copy of the recording.

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. See Buffalo Township v. Jones, 571 Pa. 637, 644 n. 4, 813 A.2d 659, 664 n. 4 (2002). However, the trial court's decision regarding access to a particular item will be reviewed for abuse of discretion. See Fenstermaker, 515 Pa. at 513, 530 A.2d at 420.

The common law right of access to public judicial records and documents arose from the presumption that judicial proceedings will be open to the public.⁵ As the Supreme Court has stated, "[i]t 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." Nixon, 435 U.S. at 591, 98 S.Ct. at 1312 (footnotes omitted). This Court has viewed the common law right of access as compelled by many of the considerations that underlie the presumption of public trials. See Fenstermaker, 515 Pa. at 507, 530 A.2d at 417-18. In the case of arrest warrant affidavits, this Court has stated that:

[F]rom 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.

Id. at 507-08, 530 A.2d at 418. More generally, the public right to review and copy judicial records and 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. See Richmond Newspapers, 448 U.S. at 572, 100 S.Ct. at 2825 ("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.").

However, not all documents and materials utilized during court proceedings are subject to the right of access. The threshold question in any case involving the common law right of access is "whether the documents sought to be disclosed constitute public judicial documents." Fenstermaker, 515 Pa. at 508, 530 A.2d at 418. Some items will fit squarely within the category of public judicial records or documents while others will just as clearly be excluded. For example, transcripts of bench conferences held in camera and notes maintained by the prosecutor and defense counsel during trial are not considered public judicial documents. See id. at 508, 530 A.2d at 418. Certainly, however, any item that is filed with the court as part of the permanent record of a case and relied on in the course of judicial decision-making will be a public judicial record or document. See, e.g., Fenstermaker, 515 Pa. at 510, 530 A.2d at 419 (arrest warrant affidavits filed with a magistrate); PG Publishing Co. v. Commonwealth, 532 Pa. 1, 6, 614 A.2d 1106, 1108 (1992) (search warrants and supporting affidavits).

Presently, WPXI argues that there is a...