P.G. Publishing Co. v. Commonwealth

JOHNSON, Judge:

Both the Pittsburgh Post-Gazette Publishing Company and the Commonwealth of Pennsylvania, acting through the person of the District Attorney of Erie County, have appealed from certain aspects of an order entered by the Honorable Roger M. Fischer of the Court of Common Pleas of Erie County. In this case the Pennsylvania State Police had secured four search warrants in connection with a kidnapping that ended in a savage murder. During the course of the ongoing investigation, before any murder charge had been filed, the Post-Gazette sought access to the warrants and the probable cause affidavits supporting the warrants. After a hearing at which the Commonwealth had the burden of proving why access should be denied the paper, the trial court granted access to the newspaper but at the same time stayed access to allow the Commonwealth to appeal. We conclude, in light of Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987), that the trial court was required to apply a balancing test weighing the paper’s right of access against the governmental interest in the integrity of its ongoing investigation. Finding that such a test was not applied, we vacate and remand.

Thirty-seven year old Sally Weiner was kidnapped from a church parking lot in Corry, Pennsylvania, early on the afternoon of June 17, 1988. PennBank branch manager Harry Weiner, her husband, received a telephone call later that day at the bank that sounded like a tape recording of his wife. Mrs. Weiner stated that she had been kidnapped, that her life was in danger and that her husband should follow the directions provided by the kidnappers to retrieve a bag from beneath a car in the parking lot outside the bank. A ransom note inside the bag directed Mr. Weiner to fill the bag with money, pick up portable radio equipment from a nearby Radio Shack store and drive to a location some ten miles out of town to await further instructions. Mr. Weiner attempted to comply with the demands but no further instructions were received by him. Early on Sunday morning, June 19, 1988, a farmer found Mrs. Weiner’s body in a wooded area of his property. Mrs. Weiner had been killed by a single gunshot wound to the back of the head. On June 20, 1988, David C. Copenhefer was charged by the Pennsylvania State Police with one count each of Kidnapping, Attempted Robbery and Attempted Extortion arising from the kidnapping and the death of Mrs. Weiner. Subsequently, Copenhefer was charged with Mrs. Weiner’s murder.

During the investigation, the police obtained four search warrants from District Justice Patsy Nichols. After Copenhefer had been charged with the above crimes, but before he was charged with the murder, the Pittsburgh Post-Gazette sought access to the probable cause affidavits supporting the search warrants. On June 28, 1988 the newspaper filed a Motion to Intervene after the District Justice and the District Attorney denied access to these documents. On the same date, the Commonwealth filed a Petition to Seal the affidavits.

As of June 29, 1988, the date of the trial court’s hearing on the Petition to Seal, neither Copenhefer nor anyone else had been arrested for the unsolved homicide which was the focus of a major ongoing criminal investigation by state and local police and the Federal Bureau of Investigation. After the hearing, the trial court denied the Commonwealth’s Petition to Seal and granted the Post-Gazette’s Motion to Intervene as well as the newspaper’s request to inspect and copy the search warrants and supporting affidavits. The court, however, stayed its order pending appeal by the Commonwealth. This timely appeal by both parties followed. The Post-Gazette also filed an Application for Partial Supersedeas or To Vacate the Stay Pending Appeal. On July 12, 1988, we refused to vacate the stay prior to the consideration of this appeal on the merits.

Although no party to the proceeding has questioned issues of jurisdiction or appealability, we determine sua sponte that this appeal is properly before us. Jay Dee Department Store, Inc. v. South Penn Gas Co., 362 Pa.Super. 404, 524 A.2d 940 (1987); Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986). Orders which are separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost, are considered final orders. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978) quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We conclude that this order is appealable under the “collateral order” exception to the final judgment rule and we address the issues raised in this appeal on the merits.

Appellate review of a trial court’s decision in this case requires that we determine whether the trial court abused its discretion since the determination regarding access to warrants and their supporting affidavits is within the trial court’s discretion. Fenstermaker, 515 Pa. at 513, 530 A.2d at 420. An abuse of discretion is not merely an error of judgment, but is an overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record. Commonwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219 (1988).

Both the Commonwealth and the Post-Gazette challenge the extent of the newspaper’s right of access to the search warrants and supporting affidavits which were issued during the investigation of this homicide. The Commonwealth poses three questions:

I. Whether a search warrant is a public document prior to the time a magistrate must file same with the clerk of record?

II. Whether there is a public right of access to search warrants?

III. Whether the lower court erred in denying the Commonwealth’s request to seal the record?

The Post-Gazette asks that we consider two questions: I. Did the Post-Gazette properly establish its right to inspect and copy search warrants and supporting affidavits relating to a criminal prosecution?

II. Did the trial court properly stay the effect of its order pending the outcome of the appeal on the merits?

The Commonwealth contends that the Pennsylvania Supreme Court determination in Commonwealth v. Fenstermaker, supra, holding that the public and the press have a presumptive right of access to arrest warrants and their supporting affidavits, should not be extended to search warrants and their supporting affidavits. The Commonwealth maintains that the nature, the purposes and the consequences of search warrants differ from those same attributes of arrest warrants. For the purposes of this analysis, we will assume that the search warrants and supporting affidavits are public documents and we will therefore not address the Commonwealth’s assertion that, pursuant to the Rules of Criminal Procedure, search warrants and their supporting affidavits do not have to be filed with the Clerk of the Court of Common Pleas prior to preliminary hearings and do not become public documents once filed with the magistrate. We emphasize that the trial court’s determination that these documents are public records does not resolve the primary issue, whether a newspaper has a right to inspect and copy search warrants and supporting affidavits while a homicide investigation is in progress. We have not considered and take no position on a right of access which may arise upon the completion of any such investigation.

In Commonwealth v. Fenstermaker, supra, our supreme court addressed the extent a newspaper would be afforded access to arrest warrant affidavits in connection with serious criminal charges, including homicide, following the conclusion of an investigation and after arrest. Justice Flaherty’s majority opinion emphasized that there had been no assertion in Fenstermaker that warrant affidavits “should be open to public inspection prior to an actual arrest having been made.” 515 Pa. at 505, 530 A.2d at 416. Justice Flaherty also observed that Fenstermaker “concerns only access to affidavits supporting arrest warrants that have already been executed.” Id.

Fenstermaker is factually and legally inapposite to the present case. Access to search warrant affidavits while a major homicide investigation is in progress is an entirely different situation from access to arrest warrant affidavits after an arrest has been made and the investigation has been completed. Justice Flaherty clearly indicated that Fenstermaker was to be applied only following the conclusion of an investigation and after arrest. See 515 Pa. at 505, 530 A.2d at 416. Thus, we decline to extend the scope of the Pennsylvania Supreme Court decision in Fenstermaker to the situation where a search warrant is sought by the press during an ongoing criminal investigation.

While we acknowledge a common law right to inspect judicial documents, we emphasize that such right is not absolute. Fenstermaker, 515 Pa. at 512, 530 A.2d at 420; Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570, 580 (1975). It is the responsibility of the trial court to determine, in the exercise of its informed discretion, whether the common law right of access will outweigh countervailing factors. Id. Certainly the trial court may be best situated to gauge the vulnerability of an ongoing criminal investigation. In the present case the basic governmental function of apprehending a criminal presented a strong countervailing factor that the trial court should have weighed against the newspaper’s right of access. The United States Supreme Court has recognized that, while many functions of government will best operate under public scrutiny, other government functions would be frustrated if conducted openly, for example, the grand jury system. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1, 10 (1986).

In Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), the Pennsylvania Supreme Court stated that the right of access to court proceedings is limited for several reasons, including the defendant’s right to a fair trial and “the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants.” 489 Pa. at 425, 414 A.2d at 321 quoting Gannett v. De Pasquale 443 U.S. 368, 398, 99 S.Ct. 2898, 2915, 61 L.Ed.2d 608, 633 (1979). Thus, in this and similar situations, the trial court, along with the other relevant factors, is required to weigh and balance the presumption that information received by it is to be open to the public against the need for the Commonwealth to keep confidential that information the disclosure of which will jeopardize ongoing criminal investigations. See, for example, Commonwealth v. Miller, 513 Pa. 118, 131, 518 A.2d 1187, 1195 (1986) (protecting the identity of a confidential informant).

Therefore, we conclude that the determination regarding access to search warrants and supporting affidavits requires a balancing of interests by the trial court. The Fenstermaker court held:

Where the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection, access to the document may be denied.

Fenstermaker, 515 Pa. at 513, 530 A.2d at 420 (emphasis added). As Judge Weis, in his concurring opinion in United States v. Criden, 648 F.2d 814 (3d.Cir.1981), states, “[i]n determining whether records should be available for copying, the court must weigh ‘the interests advanced by the parties in the light of the public interest and the duty of the courts.’ ” 648 F.2d at 830. Thus, in our review of the discretion exercised and articulated by the trial court, we must determine both the relevance and the weight of the factors the trial court considered and whether these factors were given appropriate balance.

It follows that, when relying on discretionary power, a trial court:

[S]hould place on record the circumstances and factors that were crucial to his determination. He should spell out his reasons as well as he can so that counsel and the reviewing court will know and be in a position to evaluate the soundness of his decision.

Rosenberg, Judicial Discretion of the Trial Court: Viewed from Above, 22 Syracuse L.Rev. 635, 665-66, (1971); see also Fenstermaker, 515 Pa. at 514, 530 A.2d at 421; Commonwealth v. Buehl, 316 Pa.Super. 215, 226, 462 A.2d 1316, 1322 (1983). To allow meaningful appellate review, it is necessary for the trial court to provide detailed and articulated reasons upon which the exercise of its discretion was based.

In the present case, disclosure of the warrants and the affidavits were requested by the Post-Gazette during an ongoing murder investigation. At the hearing, Sergeant Patrick W. McHenry of the Pennsylvania State Police testified as follows:

Q. Have you been assigned to the investigation of the kidnapping and death of Sally Weiner?

A. Yes, I’m in charge of the major case there, in troop. B.

Q. Are you the lead investigator in that investigation?

A. No, I’m a supervisor. The lead investigator would be Trooper Carl Buckshaw.

Q. Now has the investigation revealed that Sally Weiner died?

A. Yes, it has.

Q. As a result of your investigation, has anyone been arrested for that death?

A. Not for the death, no sir.

Q. Has there been an arrest?

A. Yes, sir, there has been.

Q. And what arrest was there, sergeant?

A. For kidnapping; Mr. David Copenhofer.

Q. Was Mr. Copenhofer charged with the homicide of Sally Weiner?

A. No, sir, he was not.

Q. To date has anyone been charged with the homicide?

A. No, sir.

Q. Now, I said homicide, are you treating it as a homicide?

A. Yes, we are.

Q. So, there is an active homicide investigation into the death of Sally Weiner?

A. Yes, sir, there is.

Q. As part of that investigation, have you made an appeal to the public for information?

A. Yes, sir, we have.

Q. As part of that investigation, have you made a determination as to whether the death of Sally Weiner was caused by one or more individuals?

A. We haven’t made a definitive conclusion yet. We believe that more than one individual committed the murder.

N.T. 6/29/88 at 23-25. On cross-examination, Sergeant McHenry testified that “[cjounting the FBI, we probably have seventy-some investigators” involved. N.T. 6/29/88 at 25-26. It is clear from this unrefuted testimony that the investigation of Mrs. Weiner’s homicide was in full swing at the time the Motion to Intervene by the newspaper was filed and heard. As the Commonwealth observed in its closing remarks:

We also have the testimony of Sergeant McHenry that possibly more than one person is involved in the investigation. So, it is likely that there is someone at large who has a history of being armed and dangerous and who represents a real threat to this community____ This investigation is also seeking public information, help from the public. And to release this information in search warrants or otherwise would taint the information which was received from the public. Because you don’t know as an investigative matter where people see these things, in the paper or as a result of search warrants. It taints the evidence that you receive from them, it interferes with the ability to gather information from the public____ We can’t consider that public right to access, your Honor, in a vacuum ... The public has an interest and a right in capturing this individual who committed this homicide. The public has a right to be safe in their community and in their homes. And at this point, based on the lack of an arrest for the homicide, we cannot say they are safe.

N.T. 6/29/88 at 43-44 (emphasis added).

Following the June 29, 1988 hearing, the trial court found these search warrants and affidavits to be public records and denied the Commonwealth’s request to seal the documents for failure of proof. However, at the same time the trial court stayed its order and sealed the documents to forbid access pending appeal. While, by both granting access and yet staying access pending appeal, the trial court appeared to be sensitive to the interests of both sides, the court still did not articulate a balancing analysis.

We are aware that a trial court is under the disadvantage of often having to make rapid-fire rulings in areas of law where there is little guidance and few fixed principles, as in the present case. We need not quarrel with Judge Fisher’s holding that the search warrants and probable cause affidavits are public records. However, the order entered on June 30, 1988 by the trial court was devoid of articulated findings of fact which would allow us to determine whether the trial court’s conclusion regarding the newspaper’s access to these documents is adequately supported by the particular facts which were before it. When the release of documents will seriously jeopardize an ongoing investigation by the police, the documents or the proceedings may be sealed from public access until the conclusion of the investigation and after arrest. In the present case, the trial court determined that the search warrants and the supporting affidavits were public records to which the newspaper had access but did not thereafter articulate its balancing of the competing interests: the newspaper’s right of access weighed against the compelling governmental function of effective law enforcement.

Though the trial court committed an error of law by failing to demonstrably balance the governmental interest against the newspaper’s right of access, it avoided harm by imposing a stay pending appeal. Accordingly, we vacate that portion of the order which allowed the newspaper access to the search warrants and supporting affidavits during an ongoing investigation and remand for proceedings consistent with this opinion.

Order vacated and remanded. Jurisdiction relinquished.

MELINSON, J. files a dissenting opinion.