Commonwealth Of Pa. v. Selenski

• Citation: 996 A.2d 494
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Hugo M. SELENSKI, Appellee.Commonwealth of Pennsylvania,v.Paul Weakley.Appeal of the Times Leader, Intervenor.
• Decision Date: 23 April 2010
• Court: Pennsylvania Superior Court

996 A.2d 494

COMMONWEALTH of Pennsylvania, Appellee

v.Hugo M. SELENSKI, Appellee.

Commonwealth of Pennsylvania,

v.Paul Weakley.

Appeal of the Times Leader, Intervenor.

Superior Court of Pennsylvania.

Argued Aug. 19, 2009.

Filed April 23, 2010.

Ralph E. Kates, III, Wilkes-Barre, for appellant.

Robert M. Buttner, Scranton, for Selenski, appellee.

Jarrett J. Ferentino, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

BEFORE: GANTMAN, FREEDBERG, JJ., and McEWEN, P.J.E.

OPINION BY McEWEN, P.J.E.

¶ 1 Appellant The Times Leader, appeals from the order that denied its motion to open a proceeding, held pursuant to Pennsylvania Rule of Criminal Procedure 500, to preserve the testimony of a witness in anticipation of the criminal trials of appellee-defendants, Hugo M. Selenski and Paul Weakley. We affirm.

¶ 2 The procedural history relevant to this appeal originated on May 19, 2006, when the Commonwealth charged appellees Selenski and Weakley with multiple counts of homicide, robbery, theft, conspiracy, and solicitation for the killing of Michael Kerkowski and Tammy Fasset. The Commonwealth, on February 27, 2008, filed a motion to preserve the testimony of a third party witness, Robert Steiner, in anticipation of trial. The Times Leader promptly filed motions to intervene and open the proceeding to preserve the testimony of Steiner. The Commonwealth and defendant Selenski both opposed the motion of The Times Leader to open to the public the testimony preservation proceeding. ¹ The trial court, following a hearing, entered an order which directed that the proceeding be closed and that the “[t]ape of proceedings [remain] under lock and key in the district attorney's office.” Order, May 21, 2008. The proceeding to preserve the testimony of Steiner was held immediately following the entry of the May 21, 2008, order, and this appeal followed. ²

¶ 3 The Times Leader, together with the Pennsylvania Newspaper Association as an asserted amicus curiae, presently argue that the trial court erred in closing the Rule 500 proceeding because (1) there exists a common law or constitutional right of public access to proceedings to preserve testimony in anticipation of criminal trial, (2) the trial court improperly placed a burden of proof upon the press to justify the opening of the proceeding to the public, and (3) appellees, the Commonwealth and defendant Selenski, failed to proffer sufficient justification to rebut the presumption of public access.³ The Times Leader further argues that the transcript or recording of the proceeding constitutes a public judicial record, the disclosure of which would provide a proper alternative mode of relief.

¶ 4 While the arguments presented by The Times Leader and its amicus-that the trial court erred in closing the proceeding in light of a presumptive right of the public to attend a Rule 500 proceeding, and that the public is entitled to pretrial access to the materials memorializing that proceeding-raise interrelated issues, they nonetheless require separate consideration. Accordingly, we first consider the contention that the press and the public were entitled to attend the Rule 500 proceeding.

¶ 5 The threshold consideration of whether there exists a common law or constitutional right of public access to a judicial proceeding raises a pure question of law. Our standard of review, therefore, is de novo, and our scope of review is plenary. See: Commonwealth v. Upshur, 592 Pa. 273, 280, 924 A.2d 642, 647 (2007) (Opinion Announcing the Judgment of the Court); Commonwealth v. Long, 592 Pa. 42, 50, 922 A.2d 892, 897 (2007).

¶ 6 We need not tarry long with the question of whether the public enjoys a common law right to attend a pretrial proceeding to preserve testimony, for it is well established that such a privilege has not been held to flow from the public's right of access to attend a trial. See: Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 387-391, 99 S.Ct. 2898, 2909-2911, 61 L.Ed.2d 608, 626-628 (1979). Thus, we turn to the question of whether constitutional principles guaranteeing public access to judicial proceedings create such a right.

¶ 7 It is well settled that the First Amendment to the United States Constitution,⁴ and Article I, Sections 7 and 11 ⁵ of the Pennsylvania Constitution secure a general right of public access to criminal proceedings, as well as to judicial records.⁶See: Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1, 10 (1986); Commonwealth v. Fenstermaker, 515 Pa. 501, 506, 530 A.2d 414, 417 (1987); Commonwealth v. Penn, 386 Pa.Super. 133, 562 A.2d 833, 835 (1989) appeal denied, 527 Pa. 616, 590 A.2d 756 (1991) cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991). To resolve the critical question of whether those constitutional provisions guarantee public access to a particular pretrial criminal proceeding, we must focus upon the factors of “experience and logic” attendant the subject proceeding. Commonwealth v. Long, supra, 592 Pa. at 55, 922 A.2d at 900 citing Press-Enterprise Co. v. Superior Court, supra, 478 U.S. at 8-9, 106 S.Ct. at 2740, 92 L.Ed.2d at 9-10 (1986).

¶ 8 The inquiry into the “experience” factor underlying a particular proceeding is directed principally to “whether the place and process have historically been open to the press and general public.” Commonwealth v. Long, supra, 592 Pa. at 55, 922 A.2d at 900 (internal citations and quotations omitted). The United States Supreme Court has also emphasized that the proper focus of this inquiry rests upon “the experience in that type or kind of hearing throughout the United States[,]” and not solely upon the particular practice of a jurisdiction. El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 150, 113 S.Ct. 2004, 2006, 124 L.Ed.2d 60, 65 (1993) (internal citations and quotations omitted) (emphasis in original) (holding that the national experience of convening open preliminary hearings compelled finding a presumptive constitutional right of public access to such hearings despite local rules permitting closure).

¶ 9 This Commonwealth has had in place, for more than a century, the practice of providing for the preservation of testimony in criminal matters:

• The Pennsylvania General Assembly, in 1909, authorized criminal defendants to take depositions of witnesses who lived outside the Commonwealth but within the United States. Act of April 27, 1909, P.L. 258, § 1.

• The Pennsylvania Supreme Court, in 1977, recognized that there existed a general common law right for the Commonwealth to take a deposition of a witness. Commonwealth v. Stasko, 471 Pa. 373, 379-382, 370 A.2d 350, 353-355 (1977).

• Shortly after the Stasko decision, the General Assembly, in 1978, enacted section 5919 of the Judicial Code, which authorizes the use, in a criminal trial, of depositions taken in compliance with the law governing a deposition taken outside the Commonwealth by either the defense or the Commonwealth. See: 42 Pa.C.S. § 5919.⁷

¶ 10 It was against this historical background that the Pennsylvania Supreme Court, in November of 1982, promulgated former Pennsylvania Rule of Criminal Procedure Rule 9015 (current Rule 500) to regulate the preservation of testimony, and, seven years later, added former Rule 9015A (current Rule 501) to govern the video recording of such proceedings.⁸ Current Rule 500 states in relevant part:

Rule 500. Preservation of Testimony After Institution of Criminal Proceedings

(A) By court order.

(1) At any time after the institution of a criminal proceedings, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for trial or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness' testimony be preserved.

(2) The court shall state on the record the grounds on which the order is based.

(3) The court's order shall specify the time and place for the taking of the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony.

(4) The testimony shall be taken in the presence of the court, the attorney for the Commonwealth, the defendant(s), and defense counsel, unless otherwise ordered.

(5) The preserved testimony shall not be filed of record until it is offered into evidence at trial or other judicial proceeding.

Pa.R.Crim.P. 500(A) (emphasis supplied). Moreover, subsection (B) of Rule 500 authorizes parties, based upon an agreement filed of record and without prior court approval, to conduct a proceeding to preserve testimony. Pa.R.Crim.P. 500(B). Rule 501, in turn, contains additional requirements for such proceedings that must be incorporated in the court order or the agreement of the parties to preserve the testimony when the proceeding is videotaped. Pa.R.Crim.P. 501.

¶ 11 It is apparent from the above recited text that while a Rule 500 proceeding may share certain formalities reminiscent of a formal judicial proceeding,⁹ a proceeding to preserve testimony retains several fundamental features of the common law deposition. Specifically, Rule 500(1) permits the parties to agree to convene a proceeding without an order of the court,¹⁰ (2) permits the parties to agree to waive the presence of the judge at the proceeding,¹¹ (3) withholds from the record any recording of the proceeding until it is admitted at trial or other “judicial proceeding,” ¹² and (4) vests custody of the recording of the proceeding with the party seeking to take the deposition.¹³ Thus, there is no historical support for the asserted right of the public to attend a testimony preservation proceeding, nor a textual basis to suggest that the Pennsylvania Supreme Court, in its promulgation of Rules 500 and 501, intended to transform the historical practice of taking a deposition to preserve testimony for trial into a public...