*1 OF COMMONWEALTH
PENNSYLVANIA,
Appellee,
v. TYSON, Appellee.
Brian
Appeal of Mark BOWDEN
Pennsylvania Newspaper
Assoc. Washington,
Appeal Linn Jr. Pennsylvania,
Appellee, Washington, and Linn
Mark Bowden
Jr., Appellants. Pennsylvania.
Superior Court
Argued Sept. 2001. May
Filed *2 review,
Order, thorough After 12/13/00. affirm. we by the lower 2 The issued two orders therefrom appeal instant court and the *3 criminal case from arise Tyson. Brian See against No. County, 9710- Tyson, Philadelphia September evening of 0014. On the alley emerged from an Tyson Brian neighborhood and shot in his Feltonville dealer, killing Millner, drug Damon a local night arrested later that Tyson him. was first-degree murder. charged and Millner, killing he told he admitted While several other the victim and police him and that he drug were after dealers him in shot self-defense.
¶3 tried for Millner’s Before he was murder, Bow- Tyson met with reporters and Washington, den for Philadelphia Inquirer Philadelphia and allowed to Tribune and them respectively, provided He interview him. shooting prob- and the with details of the Heim, Philadelphia, Robert for Bow- C. brought neighbor- to his drug lems den, appellant. Tyson that he tried rid his hood. stated at drugs and that the time neighborhood of Brancheau, Atty., Karen Asst. Dist. A. in a two-year had been shooting, of the he Commonwealth, Philadelphia, appellee. Both feud with dealers. news- local papers published a series of articles set- HUDOCK, STEVENS, Before: and ting forth his account OLSZEWSKI, JJ. it. surrounding
the circumstances OLSZEWSKI, J. reviewed these 4 The Commonwealth Linn articles and a number inconsisten- Washington, Mark Bowden and found 13, 2000, up leading cies with to the events appeal respect Jr. from the December Tyson of shots shooting, the number order entered the Court Common fired, shooting, location of Philadelphia County. Pleas of exact This the reason he shot importantly, and most failing held result, 4, 2000, subpoenaed appel- it December Millner. As a comply with the court’s concerning trial order, produce testify at required them to lants which during he made prior statements defendant’s verbatim 24, 2000, result, On October trial. As a the court interview. criminal subpoenas also issued “pay per minute Commonwealth ordered them to $100 appellants to turn requiring duces tecum starting December [on 2000] 12:00noon or otherwise memo- “all handwritten until or until over compliance Common- phone con- rialized of interviews *4 $40,000. contempt sanction 4, 2000, totaled it granted the motions to quash in part and part. denied them in ¶ 9 Appellants filed the instant appeals
¶ 6 The initially court held that in they which raise the following issues: Pennsylvania Shield Law pro- offered no 1. Did the trial court in ordering err tection because compliance would not ex- the reporters testify or otherwise dis- pose a confidential source. The court rec- information, close making without ognized that reporters possessed a fact, specific findings of based qualified First Amendment privilege on an erroneous conclusion that notes, their interview but stated that this Commonwealth Pennsylvania had met privilege did not protect all of Tyson’s its proof burden of under the First verbatim statements from disclosure. Amendment though even there was Therefore, the require court did not appel- nothing crucial subpoenaed about notes; rather, lants to turn over their it were, information and there in any ordered produce them to only “verbatim or event, alternative sources of informa- substantially verbatim [Tyson tion? involving made] the incident itself or such 2. Did the trial court err when it statements of the defendant which speak ordered the reporters to testify or other- to his relationship dealers in [his] wise disclose unpublished information Order, neighborhood.” 12/04/00, at 3. The despite Pennsylvania law establishing judge later clarified that could that the Pennsylvania Shield either provide orally these statements unpublished tects all information gath- list them in writing. by reporter, just ered a not non-confi- 5, 2000, On December pe- dential source information? titioned the lower court stay for a of this 3. Did the trial court err when it order, which was denied. appeal, On reporters ordered the to submit to a granted Court a temporary stay on De- private prosecutor “interview” with cember but later dissolved it. Fi- and disclose unpublished their informa- nally, appellants petitioned our Supreme tion informally given stay order, Court to but the Court provides law authority no to a trial court refused. require a witness to submit to a ¶ 8 While appellants pursued this stay, procedure? the Commonwealth presented its case in jury chief to the doing by and finished 4. Did the trial so court err when it the time petition imposed virtually unprecedented Su- preme $40,000 Court was denied. Appellants still sanction against produce would not reporters these verbatim state- for respectfully declining to be may Amendment privilege tes- First or to prosecutor interviewed that evidence. disclosure of shield the tify about at 92 S.Ct. Pennsyl- Branzburg, 408 U.S. on their invocation based First Amend- vania Law and the Shield States Branzburg, the United reporters’ privilege? ment three cases consolidated Supreme Court Brief at 6. Appellants’ to testi- subpoenaed reporters which order, reviewing contempt activ- juries 10 In about criminal fy grand before that the trial court this Court must ensure in the course of witnessed ity they had reaching its correctly the law at applied sources. confidential interviewing findings did not abuse its discretion. 667-677, S.Ct. 2646. 1189, 1192 Hagner,
Holderman
subpoenas
respective
quash
moved to
only reverse
(Pa.Super.2000).
will
We
had an absolute
grounds
on the
law,
“misapplies the
where the trial court
Amendment
under the First
unreasonable,
manifestly
judgment
or its
is
and the
confidential information
protect
that [its]
or the evidence of record shows
Id. at 669-
information.
sources of such
prejudice,
partiality,
decision is a result of
consolidated
2646. When this
bias, or ill will.” Id.
Court, a ma-
*5
Supreme
the
appeal reached
an
recognize
refused to
jority of Justices
enforceability
11 The
of the lower
privilege for
First Amendment
absolute
on
only
court’s
sanction rests not
not exist
press,
of the
which did
members
itself,
legality
the
of the order
but also on
700, 92
citizen.
Id. at
average
the
legality
the
order com
journal-
held that
2646. The Court
S.Ct.
un
pelling appellants
Tyson’s
to disclose
qualified
testimonial
ists had a
Therefore,
published statements.
we be
not
that did
the First Amendment
under
constitutionality of
gin by analyzing the
a
could demonstrate
apply where
State
2000,
4,
order under the
the December
in
interest
“paramount”
“compelling”
Amendment.
First
(citing e.g.,
NAACP
the information.
rule,
12
a
individu
general
As
328,
415, 439,
Button,
83 S.Ct.
371 U.S.
immun[ity]
no
possess
“constitutional[ ]
als
(1963)).
L.Ed.2d 405
subpoenas”
requests
...
and other
from
Branzburg,
Following
discovery. Branzburg v.
pre-trial
other cir
665, 682,
2646,
joined several
33 Third Circuit
Hayes, 408 U.S.
92 S.Ct.
(1972).
qualified privilege as
reading
in
L.Ed.2d 626
Parties to both civil cuits
journalists from com
extending
protect
im
and criminal trials have an
litigation
v. Cuth
discovery. United States
“every
pelled
man’s
portant
obtaining
interest
(3d Cir.1980);
bertson,
139, 147
630 F.2d
upon,
and
called
citizens
evidence”
when
Criden, 633 F.2d
States v.
they United
provide
must
whatever information
denied,
(3d Cir.1980),
cert.
v. Red
357-58
“capable
giving.”
are
Jaffee
L.Ed.2d 842
mond,
135 U.S.
518 U.S.
116 S.Ct.
(1981).
qualified privi
Where,
adopting
in the course
L.Ed.2d
party
however,
stated
jour
lege,
a
this Court
investigating
story,
the fol
must establish
seeking disclosure
information from a confi
nalist receives
(1) it
privilege:
to overcome
source,
qualified lowing
possesses
he
dential
1980).
Stillman,
E.g.,
Inc. v. Globe News
Bruno &
(1st
Co.,
Cir.
paper
633 F.2d
595-96
attempts
Cuthbertson,
exhausted
poses.”
obtain
informa-
See
tion. See
¶ 15 After thoroughly reviewing the that “the verbatim or substantially verba- record, we conclude that the Common tim concerning statements” wealth satisfied these requirements three relationship overcame qualified privi neighborhood his were relevant and crucial lege. respect With require first trial, against its' case Tyson him. At ment, these two Tyson were claimed that he shot the victim self- only sources the verbatim state defense, thereby making his state of mind ments since individuals during the incident and credibility ex- present Therefore, at the interview. tremely important. Therefore, his state- *6 only potential alternative to subpoenaing ments regarding were direct- appellants would have been try to to elicit ly relevant and crucial to countering his Tyson. information from theory self-defense and impeaching his credibility.
¶ other impeachment No wit- Initially, 16 we note that the Common- ness could have had the same effect as the wealth compel Tyson could not testify to defendant’s own prior inconsistent state- and that it subpoenaed appellants before it ments. became aware of his testify. decision to Nevertheless, the Commonwealth cannot ¶ Tyson’s verbatim statements re- expected rely to on a criminal defen- garding drug his interactions with dant to provide it with statements on in similarly the area were crucial to the cross-examination that are inconsistent Commonwealth’s case and its effort to testimony. with his direct If Tyson denied Tyson’s counter his defense. defense cen- making such statements or modified them allegation tered on the that the victim was defense, to suit his the Commonwealth part drug gang of a and that this individu-
would be without the prior actual inconsis- pulled him, al out a gun, threatened tent statements purposes both for of im- shot at him immediately prior to the shoot- peachment and substantive evidence. In his appellants, interview with how- ing.
¶
ever,
if Tyson
Even
Tyson
asked about
regarding
made statements
these statements on cross-examination and his
interaction with
dealers and
prior
if he were completely forthcoming,
portrayed
statements that
him a cru-
likely
against
would still not
obtain sader
drugs
neighborhood.
in his
specific
verbatim statements
that These verbatim statements were crucial to
impeachment
would be “useful for
pur-
attempt
prove
Commonwealth’s
con-
other
necessary
protect
statute was
deliberately
help
rid
the victim
he shot
re-
may have been
rath-
who
gangs,
fidential sources
neighborhood
drugs
of
Id. at 186.
in the statements.
in self-defense.
vealed
er than
¶
argue
Davis,
that this
Appellants
also
Tay
stated
22 As this Court
Pennsylvania
order violated the
“final statement
represent
does not
lor
argue
Specifically, appellants
Shield Law.
interpreta
on the
Supreme
of our
Court
the Shield
by
created
Law.”
Shield
application
tion and
the trial court to com
permit
Law did not
Westing
In Hatchard v.
A.2d at 884.
non-publiohed
pel the disclosure
Co.,
Supreme
Broadcasting
house
reject
appli
verbatim statements. We
scope of the Shield
narrowed the
Court
to this case.
cability of the Shield Law
cases,
only
protect
in defamation
might
unpublished documents
those
Shield Law
The
516 Pa.
informant.
reveal a confidential
vides:
Court
532 A.2d
on,
person engaged
No
connected
protect
all
that it did not need
concluded
with,
newspaper
employed by any
or
to en
information
unpublished
purpose
...
for the
general circulation
of information. Hatch
courage a free flow
procuring, compiling, edit-
gathering,
Instead,
ard,
it held that
at 349.
news,
publishing
or
shall be
revealing
danger
there is no
where
any
the source of
information
disclose
informant,
plain
defamation
confidential
person,
procured
or obtained
in
to discover
tiff is entitled
investiga-
any legal proceeding, trial
containing the “facts of which
formation
unit.
any government
tion before
aware at
defendant was
[media]
added).
5942(a)
In
§
(emphasis
42 Pa.C.S.
publication.”
time
statute,
Supreme
our
interpreting
held that the “source” of
Court
does not
the instant case
Although
identity
person,
“means not
defamation, we find
a civil claim of
involve
documents, inanimate
but likewise includes
illustrative than
be far more
Hatchard to
all
of information.”
objects
souree[s]
clearly is not a confidential
Taylor. Tyson
Taylor,
re
412 Pa.
stories were
reporters’
since the
source
*7
(1963).
Taylor,
attorney
the district
the
regarding
features
exclusive
Fitzpatrick
interviewed John J.
about
of
opponent
as an active
and his role
in the various
knowledge
corruption
of
only
He
neighborhood.
in the
City
Philadelphia,
of
and
branches of
ac-
his own
reporters
about
spoke
re-
spoke
newspaper
later
Fitzpatrick
tions,
therefore,
dan-
there is also no
and
at 182.
the interview.
Id
porters about
of his
that disclosure
ger
grand jury investiga-
During
subsequent
confidential
any
would reveal
statements
tion,
attorney sought
the district
disclosure
informants.
containing Fitz-
reporters’
*8
many
opportunities
These
took
different
sanction,
subpoenas. Unlike a criminal
forms, including providing a
list of
written
gave them
to
power
this order
the
avoid
statements,
Tyson’s
permitting
verbatim
they
the fine if
turned over
verba
Therefore,
an in camera review of their interview tim statements.
conclude
we
notes,
telling
prosecutor orally.
or
civil
imposed
that
the sanction was
de
judge’s attempts
to accommo-
and that
were not
contempt
Given
concerns,
process.
we find the
prived
date
due
sanction,
said,
issuing
the course of
duce the statements. She further
"Even
In
this
$10,000 minute,
stated,
judge
virtually any
proba-
trial
"I
I
don’t think
if did
would
money”
bly
them
pay
amount of
would lead
that.”
¶
¶
case, the
Upon
Majority
consideration of the
3 In the instant
$40,000 sanction
on each
that
over
imposed
reporter,
concluded
agree
qualified
with
that
First Amend
Appellants’
we
these sanc
came
trial
I
privilege.
disagree.
tions were harsh and excessive. A
ment
United
(3d
Cuthbertson,
sure of the criminal defendants’ example,
lished verbatim statements. For Pennsylvania provides: Shield Law with, on, person engaged
No connected employed by any newspaper gener- purpose gath- al circulation.. .for the Philip E. Jr. Patricia LANGE & ering, procuring, compiling, editing or Lange h/w, Appellants E. publishing news shall be to dis- any close the source of Olympia BURD, the Administratrix by person, any cured or obtained Burd, of the Estate of Donald E. legal proceeding, investigation trial or Deceased, Appellee. any unit. government 5942(a). § 42 Pa.C.S. Superior Pennsylvania. Court of Majority is correct in its While Argued 2002. Jan. In re Taylor, citation of 412 Pa. May Filed (1963), A.2d proposition that “source” of information includes “doc-
uments, objects all inanimate sources information”, Majority fails follow in Taylor.
the law as enunciated
¶ Instead, Majority concludes that ap- Law does not Shield and bases its decision on civil cases.
ply minds, appeal, impressed upon your I no occasion to 3. "Let it be let it itive of this have children, your liberty be instilled into that the remaining Appellants’ address the merits of civil, press palladium of all the is the Corp., claims. See Feden v. Consolidated Rail political, religious rights.” Junius. (declin- (Pa.Super.2000) allegations to address of error obviated Ap- 4. Since I find the above determination of prior appeal). disposition issue on court's pellants’ dispos- to be First Amendment claim its case on rebuttal.” notes finally wealth rests ments, versations with Brian Tyson.” Subpoenas result, and as a violation of Tecum, Duces the trial 10/24/00. court’s order. After giving appel- repeated attempts lants comply and of- ¶ Appellants quash moved to these fering an in camera review of these state- subpoenas 29, 2000, on November two ments, judge the trial issued an order on days before the originally trial was sched- December them in holding con- begin. uled to They argued that tempt ordering them pay per $100 unpublished interview privi- notes were minute they complied until or the Com- leged under both the First Amendment completed monwealth its case on rebuttal. and the Pennsylvania Shield Law. tri- concluded, When the trial appellant’s each al court held a hearing, on December
Notes
of the notes Therefore, preventing the disclo- case Id. When the patrick’s statements. Court, Tyson’s unpublished majority of sure Supreme reached our interests not further the though Fitz- would justices held that even free flow of informa- known, Law. The report- the Shield identity was patrick’s hampered not be since certainly would the informa- tion a “source” of ers’ notes were questions reporters’ Tyson answered protected them and the Shield tion the basis they would form knowing that at 185. The Court from disclosure. Id. journalis- articles. The published reading of the several that this liberal reasoned judgment tic and their premise argument without be merit. only editors was the some of his reason statements were not published. ¶28 Appellants’ argument final is $40,000 ¶25 contempt trial court’s hand, theOn other the Common- for each criminal reporter sanction was a production wealth’s need for the of rele- sanction that due contempt denied them evidence vant such as the defendant’s “extraordinarily and process was harsh important verbatim statements is an “con- 6, punitive.” Appellant’s and See Brief at stitutional need ... central to fair ad- contemptuous faced with con When judication particular of a criminal case in duct, court may a trial hold the contemnor justice.” the administration of United contempt in criminal civil de either Nixon, 683, 712-13, States U.S. on the “dominant of its pending purpose” 3090, L.Ed.2d 1039 This Diamond, sanction. Diamond v. is as important interest interest 1190, (Pa.Super.1998) (citing In re Hatchard, implicated we are confi- Martorano, 464 Pa. legislature similarly dent that the did not (1975)). adjudication The of con court’s intend the Shield Law to here. apply tempt goal be civil in its will nature where ¶26 Since we conclude that Com- prospectively is “to coerce the contemnor qualified appellants’ monwealth overcame comply with an order of Id. the court.” Amendment and that First contempt A criminal sanction will apply, Shield Law does not December punish where the court seeks “to the con order underlying contempt temnor for ... [his] [with] disobedience prop- sanction was both constitutional imprisonment pow or a fíne which is [he] Therefore, er under law. escape by compliance.” erless to the court’s sanction does fail on this not support argu 29 As for their ground. sanction, ment this was a criminal ¶ 27 We turn now remain- judge’s cite the trial comment First, two issues. contend that they probably comply would not re lower court incorrectly them ordered gardless the dollar The trial amount.2 to an prose- to submit “interview” with the skepticism judge’s regarding a contem pertinent cutor disclose the statements. willingness to comply nor’s does not court previously, As we indicated never make a crimi contempt itself sanction required appellants the state- produce nal. court’s December ments such an The trial interview. clearly pur indicates that the dominant gave judge repeated them opportunities was to pose sanction comply subpoenas with the duces tecum. complying coerce into with the