Commonwealth v. Schultz
Decision Date | 22 January 2016 |
Docket Number | No. 280 MDA 2015,280 MDA 2015 |
Citation | 133 A.3d 294 |
Parties | COMMONWEALTH of Pennsylvania, Appellee v. Gary Charles SCHULTZ, Appellant. |
Court | Pennsylvania Superior Court |
Thomas Farrell, Pittsburgh, for appellant.
Amy Zapp, Office of the Attorney General, Harrisburg, for Commonwealth, appellee.
Gary Charles Schultz appeals from the order denying his pre-trial motions to preclude the introduction of testimony of Attorney Cynthia Baldwin1 and to quash certain criminal charges against him based on violations of the attorney-client privilege.2 After careful review, we reverse the trial court's order in which it found that Schultz was properly represented by Ms. Baldwin during his grand jury testimony as an agent of Penn State and that no attorney-client privilege existed. For the reasons that follow, we also hold that Schultz was constructively denied counsel during his grand jury testimony and that Ms. Baldwin was incompetent to testify as to her communications with him. Accordingly, we quash the counts of perjury, obstruction of justice, and the conspiracy charge.
Part I: Factual and Procedural Background
In these actions, the Commonwealth has charged Schultz with two counts of endangering the welfare of a child ("EWOC"), and one count each of perjury, failure to report suspected child abuse, obstruction of justice, and conspiracy.3 The charges stem from: 1) his treatment of allegations of sexual misconduct against Gerald "Jerry" A. Sandusky, the former defensive coordinator for the Penn State football team and founder of a non-profit charity serving underprivileged youth, the Second Mile; and 2) his testimony pertaining to his handling of those matters before an investigating grand jury.4
Schultz is a retired Senior Vice President for Finance and Business for the Pennsylvania State University ("Penn State" or "University"). As part of the responsibilities in that position, Schultz oversaw Penn State campus police. In 2009, the Pennsylvania Office of Attorney General ("OAG") began investigating allegations that Sandusky sexually abused children over an extended period. As part of the investigation, the OAG convened a statewide investigating Grand Jury. During the course of the investigation, the OAG learned of sexual misconduct by Sandusky that occurred while he was on the campus of Penn State in 2001, as well as an incident involving inappropriate behavior with a minor in 1998.
The grand jury investigation revealed the following regarding the 1998 matter. That incident involved an eleven-year-old boy. See Thirty–Third Statewide Investigating Grand Jury Sandusky Presentment, 11/4/11, at 18 (hereinafter Sandusky Presentment). Sandusky transported the victim from the victim's home to Penn State. Sandusky Presentment at 18. On the way to the University, Sandusky placed his right hand on the boy's thigh on multiple occasions. Id. The pair lifted weights for approximately twenty minutes before playing a game with a tape ball and cups. Id. Sandusky then wrestled with the victim, before instructing the boy to shower. Id. The youngster attempted to shower away from Sandusky, but Sandusky beckoned him closer and told him that he warmed up a shower for the child. Id. at 18–19. Sandusky grabbed the boy from around his waist, lifting him into the air. Id. at 19. He also washed the boy's back and bear hugged the child from behind, before rinsing the child's hair. Id.
When Sandusky returned the child to the boy's home, the child's mother noticed that his hair was wet and became upset when she discovered that he had showered with Sandusky. Id. She reported the matter to University Police, who initiated an investigation. Id. University Police conducted a wiretap on Sandusky, with the permission of the boy's mother, recording two conversations. Id. Sandusky admitted to showering naked with the child and at one point stated that he wished he were dead. Id. at 20. He later told police that he hugged the child in the shower and admitted that it was wrong. Id. No charges were ultimately filed.
The grand jury investigation also revealed that in 2001, former Penn State assistant football coach, Michael McQueary, who had been a quarterback at Penn State, witnessed Sandusky commit a sexual assault against a minor victim in a locker room shower on the main campus of the University in February of 2001. Id. at 6. McQueary, then a graduate assistant, reported this incident to head football coach Joe Paterno the next day, a Saturday. Id. at 7. Paterno, in turn, reported the matter to Athletic Director Tim Curley the following day. Id. Within two weeks of the shower incident, McQueary met with Curley and Schultz. Id. McQueary, who testified before the grand jury prior to January 12, 2011, said that he told the pair that he believed he saw Sandusky having anal sex with a minor boy. Id.
Schultz was originally subpoenaed in December of 2010 to testify before the investigating grand jury on January 12, 2011. At the time, Schultz was no longer employed by Penn State, having been retired for approximately a year and one-half.5 Subpoenas were also issued for Curley and Paterno. Penn State general counsel, Attorney Baldwin, accepted service of the subpoena on Schultz's behalf with his permission.6 Ms. Baldwin also agreed, at the request of Penn State President Dr. Graham Spanier, to advise and be present for Schultz's grand jury testimony. N.T., 10/26/12, at 14. Ms. Baldwin met one time with Schultz prior to his testimony. That meeting occurred on January 5, 2011.7 Ms. Baldwin related to Schultz that, as a grand jury witness, he was entitled to an attorney who could be present and consult with him during his testimony and that he could retain his own lawyer. N.T. Schultz Hearing, 11/20/14, at 10–12; see id. at 55. She indicated that she had spoken with Curley and Paterno and that no conflict existed between their recollection and Schultz's and she felt comfortable appearing on behalf of both Curley and him. Id. at 54. Paterno retained separate counsel.
Id. Ms. Baldwin did not inform the Board of Trustees of Schultz's statements to her.
On the morning of his scheduled grand jury appearance, agents from the OAG interviewed Schultz before he testified. Present for that interview was Attorney Baldwin. Ms. Baldwin also attended the OAG interview of Tim Curley that same day. Following these interviews, but before Schultz testified, Ms. Baldwin inquired with a deputy attorney general if Schultz and Curley were targets of the criminal investigation. The prosecutor, Deputy Attorney General Jonelle Eshbach, informed her that they were not targets at that time.8 Id. at 17 ) ; see also id. at 60 ( ).
Prior to Schultz's testimony, Judge Barry Feudale, the Grand Jury Supervising Judge, queried Ms. Baldwin regarding her representation of Schultz and Curley in chambers in their presence. Specifically, the following exchange occurred:
Notes of Grand Jury Colloquy, 1/12/11, at 7–8. Ms. Baldwin did not expressly state that she represented Schultz solely in an agency capacity, nor did she indicate that she did not represent him in his individual capacity. The OAG did not express concern on the record over a potential conflict of interest based on Ms. Baldwin appearing with both Schultz and Curley. Judge Feudale, without requesting further clarification from Ms. Baldwin, then advised the two men of their rights as grand jury witnesses. In relevant part, he set forth:
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