Commonwealth v. Upshur

499 claim as Appellant’s responded need not court by lished the Commonwealth every possibility of innocence. follows: preclude a defendant’s

Any regarding doubts [cjourt observing the demeanor This may by the fact-finder guilt be resolved (3) three resolved testimony of witnesses evidence is weak and in- unless the so credibility and conflicts questions that as matter of no conclusive law in favor of the Com- the evidence [in] may fact drawn from probability of be monwealth. The the combined circumstances. Com- Therefore, adjudged [Appel- [c]ourt may sustain burden monwealth him a fine guilty sentenced lant] every of the crime be- proving element plus restitution. yond a reasonable doubt means 2) (internal (Trial citation Opinion wholly circumstantial evidence. More- omitted). trial presented The evidence over, test, applying the above ultimately prove Appel- sufficient to must and all entire record be evaluated personal intentionally lant damaged actually must con- evidence received another, the credible property of where sidered. testimony police and the Aleva Bullick, Commonwealth punched Ale- Appellant officer established (Pa.Super.2003) (quoting Common truck, resulting specified dam- va’s in the Gooding,

wealth v. 3304(a)(5). § age. Pa.C.S.A. See 18 denied, (Pa.Super.2003), Pa. appeal fact, trier of was free believe (2003) (citations 691, 835 A.2d 709 omit all, part, present- or none of the evidence ted)). support “If the record contains Bullick, Accordingly, we supra. ed. See verdict, may not be disturbed.” affirm. Burns, ¶ Judgment of sentence affirmed. denied, (Pa.Super.2000), appeal (internal (2001) A.2d 542 cita omitted). “Finally, tion the trier of fact passing upon credibility of wit

while weight pro

nesses and the of the evidence

duced, all, part free to believe or none of is Bullick, supra at 1000. evidence.” mischief as: Criminal is defined Pennsylvania, COMMONWEALTH of

§ mischief 3304. Criminal Appellant (a) person defined. —A Offense if guilty he: mischief Lynn

Jamie UPSHUR. (5) Inc., Intervenor-Appellee. WPXI, intentionally real or damages per- sonal of another. property Pennsylvania. Court of Superior 3304(a)(5). § 18 Pa.C.S.A. 29, 2005. Argued March thorough After a review of the Filed Aug. record, parties, appli the briefs law, Honor opinion cable Gallo, C. we conclude Judge

able Robert has merit. The trial

Appellant’s issue no Streily, Deputy

Michael W. District At- torney, Pittsburgh, Kevin F. McCar- thy, Attorney, Assistant District Pitts- Commonwealth, burgh, appellant. III, P. Pittsburgh, Walter DeForest WPXI, Intervenor. HUDOCK, POPOVICH,

Before: JOHNSON, JJ. JOHNSON, County Pursuant to Jail Allegheny BY Jail.

OPINION J.: calls to or from records all policy, Jail ¶ 1 In case we consider whether inmates, warning beginning enjoys media either a common electronic call, advising recipient access, law or constitutional before Brown being call is recorded. Because trial, to audiotape played an call, Upshur may have initiated not the during hearing the preliminary where being the call was recorded. known that the introduced Commonwealth WPXI, Inc. Intervenor/Appellee, 3 The prima appeal, case. as of its On facie (‘WPXI”), preliminary the present was at trial argues the Commonwealth that the played and hearing tape when the was it found court abused its discretion when and ac- to intervene obtain filed motion in that a station’s interest local television audiotape. to District Justice cess the greater than obtaining the was au- McLaughlin held that he was without prosecut- the Commonwealth’s interest in motion, to the thority act on and denied the ing protecting the case and defendant’s filed a motion to request. the WPXI then right to a fair trial. conclude that on We intervene and obtain access to the audio- here, presented the facts the That in of Common Pleas. tape the Court public judicial issue was not a was a court held that point proceedings in the where granted document and WPXI’s demand made for access. further We audiotape. to motion obtain access in did conclude that this media timely took The Commonwealth then this have constitutional access appeal. Accordingly, the audiotape. record raises 4 On Commonwealth granting appeal, we reverse the order the televi- one issue: sion station access to the it and recording presumably court its abused discretion Whether broadcasting the trial. contents before in in that WPXI’s interest obtain- ruling audio ing the Commonwealth’s audiotape at issue in this case The during hear- played preliminary during Lynn played Jamie ing the case of Commonwealth hearing. charged Upshur was outweighed Common- Upshur Jamie homicide, with two counts two prosecuting interest wealth’s both vehicle, counts of homicide three counts protecting case and defendant’s assault, aggravated reck- two counts of fair rights to a trial. endangerment less one each of count Appellant Brief assault, simple speeding, and reckless driv- au- ing. The Commonwealth regard 5 A trial court’s decision diotape preliminary hearing at the before is within ing documents McLaughlin District Justice Charles trial court. See the sound discretion prima its presentation its facie (1987). is a against Upshur. 414, case The will 530 A.2d We recording Ups- of a conversation between if find an abuse of appeal on reverse Brown, hur, alleged vic- Timira one of See Commonwealth that discretion. tims, 1262, 1268 al- boyfriend. Upshur Brown’s Long, (Pa.Super.2005). 871 A.2d threatening occurs “when legedly made remarks An abuse of discretion judgment call. during Brown the course of the trial court has rendered unreasonable, ca manifestly arbitrary, or Brown initiated call insistence law, was or boyfriend, apply in the has faded pricious, her who was incarcerated bias, by partiality, prejudice, Despite motivated or importance will.” ill Harman ex rel. Harman v. Bo inquiry, the trial court threshold does rah, 562 Pa. 1123 appear given have thought careful (2000) (citing Flickinger Coker v. S.M. analysis audiotape. status of the Inc., Company, Indeed, page opinion in its three on (1993)). 1184-85 “Judicial discretion re matter, trial court did not set forth its quires conformity action law based analysis reasoning behind conclu on the facts and before the circumstances public judi sion that the was a court hearing after and consider Trial Opinion, document. cial. Servs., Gutteridge ation.” v. A.P. au inquiry into whether the 4/1/04. (Pa.Super.2002). public judicial document, diotape is a -with access, attending right common-law of ¶ 6 inquiry The threshold when de judicial document, simply or a with no such termining or public press whether access, should right guided of have given should access to this is analysis. Accordingly, trial court’s be we public judicial it is a document. whether analysis. gin with that held, our Supreme As Court inquiry threshold in a case such as [t]he pre- 9 The at a this where a right common law of access in liminary hearing which the Common- is asserted is whether the documents magis- presented wealth evidence to the sought public to be disclosed constitute of determining trate for whether documents, judicial all writings for not the Commonwealth had sufficient evidence judicial connected con- proceedings with prima a establish case that facie public judicial stitute documents. a accused committed crime. See Fenstermaker, Commonwealth R.Crim.P. 543. The (1987) (emphasis evidence, into entered it was not filed added). See also v. Craw- court, and did be- with the not otherwise (Pa.Super.2001) ford, the record in come of this case. (noting that question “[t]he fundamental Fenstermaker The Court set forth sought ... is ‘whether the documents number of factors the trial court should judicial docu- public be disclosed constitute determining, have taken into account when ments, writings for not all with connected case, in whether the consti- judicial proceedings public judi- constitute judicial document, including public tuted a ”). cial documents’ document whether the was entered into 7 The Supreme Court’s policy and certain evidence considerations in analyzed decision in inspection favor of of war- public arrest right of press to access arrest points rants. The elaborated these affidavits an has been warrant after arrest policy as follows: made, guides analysis of WPXI’s [Pjublic inspection record the af- audiotape. Fenstermak- arrest warrant er, discourage perju- the Court noted that is a “tradi- serve to there fidavits would affidavits, keeping proceedings ry tion and records of in such would enhance justice system performance police prosecutors open encouraging ”. 530 A.2d at 418. This them to establish suffi- observation... tradition, filed, however, provide an cient before an affidavit is does not cause all as a unfettered of access to would act check on discretion or authorities issuing discouraging documents evidence. See id. thus of the but instead insisted erroneous decisions decisions based of the sensationalistic is indicative partiality, promote on and would audiotape. public perception of in the ar- fairness value process. rest warrant continuing analysis, the Court 13 In Fenstermaker, 530 in looked to the nature Fenstermaker it was the document to determine whether are policy 11 None of these concerns private or present in ac- Allowing this case. stated, significant “it to note is specifically it

cess to record would warrant affidavits are ‘filed’ arrest discourage perjury per- or enhance the permanent record of become nor police prosecutors; formance of documents, their and as filed promote public perception would ‘public’ character enhanced.” Fenster openness In- fairness the courts. maker, 530 A.2d at 418. deed, questions are regarding there magistrate, filed this case was not admissibility tape, signifi- the most it, any point, officially nor entered being intercep- perhaps cant whether weighs into This factor favor evidence. Pennsylva- tion of the threats violated Act, finding of a is not nia Wiretap 18 Pa.C.S. Section 5701. Crawford, public judicial document. See In a situation such as the one before this that Court, (noting 789 A.2d at 271 a brief that a a finding that the is not docketed, filed formally was not not public judicial prevents a crimi required by rule of highly broadcast and of in- dissemination procedure, nal and not of the record flammatory possibly prejudicial infor- not a docu appeal public on mation until after court its a has ruled on Hernandez, ment); States v. 124 United admissibility. (S.D.Fla.2000) (re F.Supp.2d 704-05 ¶ 12 To the that argues extent WPXI fusing to allow media access to translation there no that is distinction between was ad of document until that translation possibly of infor- release inadmissible record). mitted into the mation in the form of an or a transcript, find 14 have ac argument unsup- arguing we this that should portable. repeatedly audiotape for of re If WPXI were to cess to the it, heavily upon two audiotape, cording broadcast which the Com- WPXI relies “vivid, are not bind opinions, monwealth has characterized as Third Circuit v. powerful potentially inflammatory,” ing upon this Werner Pla Court. See (Pa.Su likely greater ter-Zyberk, will a on 782 impact have 799 denied, appeal of 806 public reading transcript per.2002) than (2002). (“[Ajbsent the call. 13. the A.2d a United Appellant Brief As 862 Supreme pronouncement, difficult to argued, “it is States threats, binding are not anyone these decisions of federal courts hearing believe that courts, voice, of its state even when the defendant’s own with all on involved.”). tone, question is two inflection and outside of the federal relies, United protections afford- which WPXI proceeding, without the decisions (3d. evidence, Criden, 648 F.2d 814 Cir. by ed form rules could not States 1981) Martin, 746 Id. against a fixed bias the defendant.” and United (3d. Cir.1984), factually are dis Indeed, present fact that F.2d 964 significant support provide do tape played and could have tinct and when proceeding, arguments. for WPXI’s requested transcript 504 matter, court admissibility. As both Cri- rule on See Leuca dia,

den Applied and Martin issues of “ex- Inc. v. Extrusion involved Technolo (3d Martin, Inc., traordinary public gies, interest.” 998 F.2d 161-62 Cir. 1993) Namely, F.2d at (noting 969. Criden involved the “[n]umerous other local, indictment ... recognized of number of state and courts have also that the public filing federal officials that were gives pre tried for of a document rise to a offenses, Criden, access”). bribery sumptive and related See also 815, Martin, F.2d at involved Espola, officers Commonwealth Pa. D. & (Pa.Com.Pl.1990) (aff'd Philadelphia department police that C.4th (1993) (table) were on charges conspiracy, Pa.Super. indicted 627 A.2d 201 Martin, racketeering (finding and extortion. that “evidence does not become F.2d at 966. Unlike in Martin and permanent Cri- ‘filed’ or record den, is no such compelling public there until it into is admitted evidence at the pleas interest that would be court of allowing served common level at the time of trial”)). WPXI access Indeed, alleged threats. is Upshur not a matter of policy, disagree As a servant; simply she woman with the trial court that the charged awith number of serious crimes. issue in this case is a docu- ment, tapes particularly also note that We issue when no court has ruled

in Criden admissibility tape. were admitted into evidence and on the If jury open tape ultimately inadmissible, to the court. See were found Criden, Although 648 F.2d at the dangers publication may of broad out- Martin, question court Martin weigh any found the benefits. See F.2d whether the was admitted into at 969-71. Considering evi- dispositive dence was not its in highly inflammatory, status as this case is the non-public, possible the court found that that result prejudice could from was a that publication weighs factor could be considered. its in favor its non- Martin, Indeed, F.2d according at 969. The Martin the release. to Martin ultimately Court audiotapes important found that court “the most factor” that the were public judicial despite documents district the court considered was the effect they fact had officially that not been en- that of the requested release materials However, tered subsequent pro- into evidence. the audio- would have on the related tape in played during trial, ceedings, specifically, Martin was prospects “the before jury, jury jury the with each a fair impaneling impartial member wearing phones head in hearing to assist the trial of the... defendants.” Id. at 969. the audiotape, jury given and the was a The court that specifically noted none of transcript tape. id. at in participants tape awaiting See the the were This is from in request- distinct the manner which and that the relevance of the the was in tapes guilt this case— ed as to the or innocence of the magistrate, before a a during remaining defendants is unclear. See id. hearing, before trial. at 969-71.

¶ ¶ case, argues To the extent that WPXI 19 In where the materials that tape requested against the was “evidence admitted at a were before case the trial, proceeding” played Upshur gone Ups- when it was had to and before magistrate, disagree. guilt adjudi- before the we hur’s or innocence had been cated, potential impact was not filed with the nor did a the of the audio- Hayes, Further, 1268, (citing n. 7 tapes cannot overstated. (1980)). 318, case, distinguished in this as Martin, certainly from in relevant that v. Warner Commu 23 Nixon in guilt to or innocence because nications, 589, 609, 98 S.Ct. 435 U.S. threatening audiotape, Upshur makes (1978), Supreme Court 55 L.Ed.2d alleged vic- towards one her statements that the First found of the United States tims. only press that the requires Amendment access to trial does have the same clear, Finally, note that it is provides Amendment public. The First in language based right publicize to what the media with the Supreme room; in a court seen and heard has strong adopted presumption has however, require the court to it does not in access which exists both Criden tapes documents or provide the media with Fenstermaker, 530 A.2d at Martin. See that are available otherwise Nixon v. Warner Communi (quoting id. In this none general public. See cations, Inc., 435 U.S. S.Ct. judicial proceedings were closed (1978)) (holding that 55 L.Ed.2d 570 public. or the WPXI was either the media “ ‘is presumption there —however right to be not denied constitutional judi gauged favor of —in As Fifth Circuit present at the trial. ”). Indeed, cial Fen- the Court records’ held, denied [the media] that was “[a]ll heavily upon Supreme stermaker relies their air play tapes over right Court of United States’ decision waves; that does not re the Constitution Communications, does not Warner quire.” Broadcasting Corporation Belo strong presumption language. include (5th Cir.1981). Clark, 423, 427 654 F.2d Indeed, copy the “[i]f reasons, foregoing 21 For all of exists, from a tapes... it must come source in finding trial court abused its discretion United other than the Constitution.” (6th Beckham, 401, 409 789 F.2d that WPXI had common- Cir.1986) (quoting Warner Communica law issue 1306). tions, 435 U.S. 98 S.Ct. this case. present 24 Because WPXI ¶22 we hold that WPXI Because opportu- the preliminary hearing had right does have a ac common-law to of nity copy transcript of the request to deny hearing, audiotape, cess decision to WPXI our of access to engage we must now a constitutional implicate nor offend the recording does not analysis right to determine if WPXI has of Amendment the United States First First of the under either the Amendment I, II or Article of Section Constitution I, or Article United States Constitution Pennsylvania Constitution. Pennsylvania II of the Constitu Section Long, tion. 871 See Commonwealth reasons, foregoing we For all of the 25 (Pa.Super.2005). 1274 Because granting the trial court’s Order reverse has held Supreme pur- Court access to WPXI I, no it. provides poses recording that Article II of Section open trial than the greater right to an ¶ 26 Order REVERSED. Constitution, pro will States United J., POPOVICH, Dissenting to the files a analysis pursuant our 27

ceed with Opinion. See id. United States Constitution.

506

POPOVICH, J., Dissenting: Constitution this right extend of preliminary hearings. See Commonwealth ¶ 1 I respectfully disagree with the ma- Murray, Pa.Super. jority’s reversal of the trial court’s order (1985). granted WPXI access to the audio- of call phone pur- may for the 3 A defendant make a steno- pose recording Opinion, it. graphic a preliminary record of hearing. majority 542(C)(5). Further, makes the distinction between Pa.R.Crim.P. a defen- the manner in may himself, which WPXI has dant may access to make notes or he the information contained on the audio- make a mechanical or recording electronic tape, the form preliminary hearing. or tran- of the Id. Consider- script, ing because the is not the public’s and the media’s right of the record and it cause pre-trial preliminary would access to hearings, WPXI publicity prejudicial However, case. could also have taken notes and have ob- I believe that the audiotape once tained a stenographic record. played at the preliminary hearing, the con- The majority notes that WPXI could have tents became of the record requested transcript and were revealed to anyone the media and hearing. Majority opinion, who at 503. In this instance, attended. Because openness I also would further ac- WPXI’s the preliminary hearing, I agree would cess to record preliminary hearing trial court that WPXI should be manner consistent with the defendant’s granted audiotape. access to the pursuant make a record to Pa. 542(C)(5). R.Crim.P. As I would have ¶2 Supreme The United States Court found that WPXI could have recorded the has held that the First and Fourteenth preliminary hearing with its recording own Amendments to the United Consti device, I believe that WPXI could have protect tution press access to the to make a copy of proceed attend criminal trial phone call was played pre- ings. Press-Enterprise See Co. v. Superi liminary Therefore, hearing. I would af- Cal., 501, 508, 464 U.S. firm grant the trial court’s of access to (1984); S.Ct. L.Ed.2d see also WPXI for purpose recording Court, Newspaper Globe v. Superior Co. audiotape. 596, 606, 457 U.S. 102 S.Ct. (1982); L.Ed.2d 248 Accord I disagree granting Common also 501, 504, wealth v. subject access to the would Ups- (1987). thus, greater and, The tradition of hur to public scrutiny keeping proceedings records of respect sensationalize the case. With justice considerations, system open Sixth ob Amendment in the servation is based the First usual pre-trial publicity Amend does not au- ment of the Constitution of tomatically the United render a fair trial impossible. I, and Article sections 9 and A.2d at 420 (citation Id., omitted). II of the Pennsylvania Moreover, Constitution. one who I, 530 A.2d at 417. “Article claims a fair section denial of a trial because of provides, ‘In prosecutions pre-trial publicity all criminal must show actual preju- speedy accused hath a to... a dice in the empanelling jury of the or show trial...,’ I, states, and Article section 11 that the pre-trial publicity was perva- so ” Id., inflammatory ‘All courts shall sive or open.’ be such that prejudice may A.2d at 417. held presumed. We have that the Unit- Commonwealth v. Pennsylvania Wright, ed States (Pa.Super.2004) Constitution (citation omitted). I would be reluctant

declare, solely on Common- based of the

wealth’s characterization “vivid, potentially inflam- powerful

matory,” that the release of the Upshur to have an unfair trial

will cause empanelment jury

even before the Thus, I commencement of trial. permitting conclude that WPXI to

would so prej- would not be

record prohibit to the audio-

udicial as

tape. I find that had 5 Because would to the for the of access recording it the re-

purpose of prejudice would not

lease grant I would Commonwealth’s phone

WPXI access preliminary hearing

call recording I do not purpose it.

believe that WPXI’s access to the audio- transcript. be limited to a For should reasons, giving

these deference I would con-

reasoning

clude that did not abuse its discretion

granting WPXI access to the purpose recording call phone Accordingly,

it. I would affirm order

of the trial court. C.M., child,

In minor the Interest of: G.A.M.,

Appeal Natural of:

Father, Appellant C.M., child, Interest of: a minor J.K.,

Appeal of: Natural

Mother, Appellant Pennsylvania.

Superior May

Argued Aug.

Filed

Case Details

Case Name: Commonwealth v. Upshur

Court Name: Superior Court of Pennsylvania

Date Published: Aug 22, 2005

Citation: 882 A.2d 499

Court Abbreviation: Pa. Super. Ct.