Veloric, G. v. Doe, J.

J-A17005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GARY VELORIC AND NANCY VELORIC IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN DOE AND/OR JANE DOE
APPEAL OF: BRAD HEFFLER
No. 2998 EDA 2014
Appeal from the Order Entered September 10, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-19479
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JULY 30, 2015
Brad Heffler (“Heffler”), a subpoenaed third party, appeals the order
entered September 10, 2014, in the Montgomery County Court of Common
Pleas, directing him to answer ten deposition questions posed by counsel for
plaintiffs, Gary and Nancy Veloric (“the Velorics”). In the underlying action,
the Velorics filed suit against “John and Jane Doe” (“the Doe defendants”),
seeking damages for, inter alia, defamation and slander, based upon an
anonymous telephone call and two e-mails Nancy Veloric received, claiming
her husband, Gary Veloric, was having an affair. The order at issue was
entered after Heffler invoked his Fifth Amendment privilege against self-
incrimination, and refused to answer most of the questions posed to him
during his deposition. On appeal, Heffler contends the trial court erred in
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denying his claim of privilege and directing him to answer ten deposition
questions. For the reasons below, we affirm.
The facts underlying the order on appeal are aptly summarized by the
trial court as follows:
Plaintiff[s] Gary Veloric and Nancy Verloric, husband and
wife (“the [Velorics]”), filed suit against John Doe and/or Jane
Doe (“the Doe Defendants”), seeking damages on behalf of Gary
Veloric for defamation, slander, libel, injurious falsehood, and
intentional infliction of emotional distress, and, damages for loss
of consortium on behalf of Nancy Veloric. [The Velorics] aver
that Nancy Veloric received a phone call on January 18, 2012
from an unidentified woman (“Jane Doe”) who claimed to be
Gary Veloric’s girlfriend and she was angry because he was
having sexual relations with another woman. Nancy Veloric
questioned her husband regarding the phone call and he denied
the anonymous caller’s claims. After some research, Nancy
Veloric determined the phone number of the unidentified caller
included a Nashville, Tennessee area code, and, was no longer in
service.
According to the Complaint, on March 9, 2012, Jane Doe
sent an email to Nancy Veloric claiming her husband told her
that Gary Veloric was cheating on Nancy with a few different
women. Gary Veloric denied these allegations. Another email
was sent to Nancy Veloric on May 3, 2012, claiming that
“besides other women, he has added hookers, so I’d be really,
really careful when you are with him.” [The second e-mail also
stated that the name on the email “Beth Nashton” and the e-
mail address “bnasht@gmail.com” were “made up.” Complaint,
Exhibit A.].
[The Velorics] proceeded with discovery, and issued
subpoenas to third parties Brad and Andrea Heffler to attend and
testify at depositions.7 Brad Heffler was deposed by [the
Velorics] on March 14, 2014 (“the Deposition”). Heffler invoked
the Fifth Amendment, and attorney client privilege, refusing to
answer several of the questions posed to him during the
Deposition. [The Velorics] filed a Motion to Compel the
Testimony of Brad Heffler (“Motion to Compel”), claiming that
Heffler invoked the Fifth Amendment “to virtually every
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question.” After hearing and argument (“the Hearing”) on the
Motion to Compel, and reviewing the Deposition, the Court
ordered Heffler to answer some of the questions at issue and
sustained his objections to others (“the Order”). Other questions
remaining were resolved either by counsels’ agreement to
withdraw certain questions, or, by Heffler’s agreement to answer
some of the questions. Continuing to rely upon the Fifth
Amendment and/or attorney client privilege, Heffler refused to
answer those questions he was ordered to answer that were not
otherwise resolved, and, this Appeal ensued.
__________
7
The Velorics and the Hefflers were previously involved in
litigation before the Montgomery County Court of Common
Pleas in the matter of Gary Veloric and Nancy Veloric v.
Brad Heffler and Andrea Heffler, et. al., docketed at 2009-
09902, in which the Velorics[] raised claims of trespass,
conversion, waste, negligence, and, nuisance. At the time,
the Veloric and Heffler residences shared a property line
(“the Trespass Complaint”). There were also related cases
at Gary Veloric and Nancy Veloric v. Montgomery County
Lands Trust, docketed at 2010-2140, and Gary Veloric and
Nancy Veloric v. Whitemarsh Township, docketed at 2009-
42979. Ultimately, a praecipe to settle, discontinue and
end was docketed in each of these three cases.
Trial Court Opinion, 2/20/2015, at 1-3 (some footnotes and emphasis
omitted).1
____________________________________________
1
On October 8, 2014, the trial court ordered Heffler to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Heffler complied with the court’s directive, and filed a concise statement on
October 24, 2014.
We note that the Doe defendants have also filed an appeal from a
pretrial discovery order, namely a December 1, 2014, order of the trial court
granting the Velorics’ motion to compel discovery and ordering the Doe
defendants to appear for depositions. That appeal, docketed at No. 121 EDA
2015, was originally listed consecutively with this appeal, however, counsel
for the Doe defendants requested, and was granted, a continuance of oral
(Footnote Continued Next Page)
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Before we address Heffler’s substantive issue, we must first consider
the Velorics’ claim that the order on appeal is not appealable.2 “We address
this issue first because the appealability of an order directly implicates the
jurisdiction of the court asked to review the order.” EMC Mortgage, LLC v.
Biddle, 114 A.3d 1057, 1060 (Pa. Super. 2015) (citation omitted).
Generally, “[a]n appeal may be taken only from a final order unless
otherwise permitted by statute or rule. A final order is ordinarily one which
ends the litigation or disposes of the entire case[.]” Ben v. Schwartz, 729
A.2d 547, 550 (Pa. 1999). Most “discovery orders are deemed interlocutory
and not immediately appealable because they do not dispose of the
litigation.” Dougherty v. Heller, 97 A.3d 1257, 1261 (Pa. Super. 2014)
(en banc) (citation omitted), appeal granted in part, 109 A.3d 675 (Pa.
2015). However, certain discovery orders, particularly those involving
ostensibly privileged material, have been found to be immediately
appealable as collateral orders pursuant to Pa.R.A.P. 313. See
Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123-1124
(Pa. Super. 2007).
Rule 313 provides, in relevant part:
_______________________
(Footnote Continued)
argument. The case is now scheduled to be argued before a panel of this
Court in mid-July, 2015.
2
Heffler addresses the appealability of the order sub judice in the second
issue in his brief. See Heffler’s Brief at 21-25.
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(a) General rule. An appeal may be taken as of right from a
collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order 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.
Pa.R.A.P. 313.
In the present case, the order on appeal is the discovery order,
entered September 10, 2014, directing Heffler to answer ten specific
questions posed by the Velorics’ counsel during his deposition and, implicitly
overruling Heffler’s invocation of his Fifth Amendment privilege against self-
incrimination.3 Heffler contends the order is appealable as a collateral order.
We agree.
As noted above, an otherwise interlocutory order may be immediately
appealable as a collateral order if it satisfies all three prongs of the collateral
____________________________________________
3
At the conclusion of the September 10, 2014, hearing on the issue, the
trial court entered a ruling from the bench directing Heffler to answer ten
specific deposition questions. N.T., 9/10/2014 (Court Order) at 1-7. That
same day, the court entered the following written order:
AND NOW, this 10th day of SEPTEMBER, 2014, after
proceeding in open Court this day, the Order of the Court is as
recited on the record in open court this day.
The Court Reporter is directed to transcribe the Notes of
Testimony which shall constitute the written Order of the Court.
Costs of the transcript shall be shared equally between the
parties.
Order, 9/10/2014.
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order test. Dougherty, supra, 97 A.3d at 1261. First, the order must be
separate and distinct from the main cause of action. Berkeyheiser, supra,
936 A.2d at 1123. This prong is easily met by the order sub judice. The
question of whether Heffler properly invoked his constitutional right against
self-incrimination may be addressed without consideration of the merits of
the Velorics’ underlying defamation action.
The second prong of the collateral order test mandates that the order
“must involve rights deeply rooted in public policy going beyond the
particular litigation at hand.” Id. (citations omitted). The courts of this
Commonwealth have held that discovery orders raising questions of
executive privilege, attorney/client privilege, and privacy interests all raise
the type of deeply rooted public policy concerns necessary to qualify as a
collateral order. See Ben, supra, 729 A.2d at 552 (determination as to
whether investigative files of Bureau of Professional and Occupational Affairs
“are subject to any executive or statutory privilege implicates rights rooted
in public policy, and impacts on individuals other than those involved in this
particular litigation.”); Berkeyheiser, supra, 936 A.2d at 1124 (“the issues
of attorney-client and work-product privileges, as well as privacy concerns,
[in an order directing defendant to turn over discovery materials,] implicate
rights deeply rooted in public policy, especially where the disclosure of such
information affects individuals other than those involved in this particular
case.”); J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa. Super. 2004) (order
directing expert witness “to submit every 1099 form he received from any
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insurance company and/or attorney from 1999 through 2002,” raised
“sufficiently important public concern” regarding expert’s privacy interest in
his income information to qualify as collateral order).
We find the order at issue herein similarly raises a right “deeply rooted
in public policy.” Berkeyheiser, supra, 936 A.2d at 1123. Indeed,
Heffler’s privilege against self-incrimination is protected under both the
United States and Pennsylvania Constitutions. See U.S. Const., Amend. V;
Pa. Const., Art. I, § 9. Although his answers to the requisite deposition
questions would potentially implicate only himself, the privilege against self-
incrimination is so engrained in our nation that it constitutes a right “deeply
rooted in public policy.” Berkeyheiser, supra, 936 A.2d at 1123. See
Kastigar v. United States, 406 U.S. 441, 444-445 (1972) (“The privilege
[against self-incrimination] reflects a complex of our fundamental values and
aspirations, and marks an important advance in the development of our
liberty[, and t]his Court has been zealous to safeguard the values which
underlie the privilege.”).
Lastly, to qualify as an appealable collateral order, the order must be
such that “if review is postponed until final judgment of the case, the claim
will be irreparably lost.” Ben, supra, 729 A.2d at 552. The Velorics argue
that this prong is not met in the instant matter because, if Heffler is
criminally prosecuted based upon disclosures he makes during his compelled
deposition, the trial court in a later criminal matter could exclude the
evidence as violative of his privilege against self-incrimination. See Velorics’
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Brief at 2. Therefore, they insist Heffler’s right to review the court’s ruling
will not be “irreparably lost.” Id.
However, we find the Velorics’ proposal undermines the purpose of the
constitutional privilege. First, if Heffler continues to disobey the court’s
order, he would be subject to sanctions, including contempt proceedings.
“[T]he option of disobeying a disclosure order and being thus subject to
discovery or contempt sanctions as a way of obtaining review is so extreme
as to be no option at all.” Commonwealth v. Harris, 32 A.3d 243, 251
(Pa. 2011) (holding order overruling claim of doctor/client privilege
immediately appealable as collateral order). Moreover, Heffler should not be
subject to the costs and emotional toll of a prosecution based upon his
privileged answers, even if the answers may later be suppressed.
Accordingly, we conclude the order at issue is appealable as a collateral
order, and we now turn to the merits of the appeal.
In his primary claim, Heffler argues the trial court erred in implicitly
overruling the invocation of his constitutional right against self-incrimination,
and directing him to answer the following ten questions, posed to him during
his deposition:4
____________________________________________
4
Heffler includes a third issue in his brief in which he challenges the trial
court’s determinations that (1) he waived his claim of privilege because he
did not specify the crime with which he could potentially be charged, and (2)
he failed to include certain documents necessary for appellate review in the
(Footnote Continued Next Page)
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1) Have you heard from any other source and learned
knowledge of the contents of that alleged phone call
[referring to phone call made to Nancy Veloric on January
18, 2012]?
2) Have you learned from any other source any information
concerning the telephone number (615)242-4934?
3) Do you have any knowledge of any kind concerning that
address [referring to email address “bnasht@gmail.com”]?
4) Are you aware that [the Velorics’ counsel] authored a letter
to [your counsel] offering to permit you to avoid testifying
at a deposition if you would execute an affidavit stating that
you had no knowledge of the telephone number, the alleged
phone call and the two e-mails and the alleged e-mail
address?
5) Let’s mark this as P-1 [referring to 10/8/2013 letter from
the Velorics’ counsel to Heffler’s counsel]. … I’m going to
show you what I’ve marked as P-1, and I’m going to ask
you if you’ve ever seen this before.
6) Let’s mark this as P-2, then [referring to response from
Heffler’s counsel to Velorics’ counsel]. … I’m showing you a
document that I’ve marked as P-2 and I’m going to ask you
if you’ve ever seen that before.
7) Let’s mark this as P-3 [referring to copy of anonymous e-
mails sent to Nancy Veloric]. … Do you have any information
as to who authored the two e-mails on P-3?
8) Do you see on P-3 that the two e-mails that are referenced
are dated, respectively, March 9, 2012 and May 3, 2012,
although I think they might be actually reversed on the
page?
9) I’m going to rephrase that. Are you aware of any
information concerning the identity of the Doe defendant or
defendants in this case?
_______________________
(Footnote Continued)
certified record. See Heffler’s Brief at 25-27. We will address those
contentions within this issue.
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10) Do you have any knowledge of any kind that would lead you
to believe who the Doe defendant or defendants may be?
See Trial Court Opinion, 2/20/2015, at 6-10, citing Oral Deposition of Brad
Heffler, 3/14/2014, at 17, 19, 20, 22-23, 26-27. In response to each of
these questions, Heffler invoked his right to remain silent under the Fifth
Amendment.5
It is well-settled that “the privilege against self-incrimination can be
asserted ‘in any proceeding, civil or criminal, administrative or judicial,
investigatory or adjudicatory.’” Maness v. Meyers, 419 U.S. 449, 464,
(1975) (citation omitted). When the privilege is invoked in state
proceedings, it is governed by federal standards. Commonwealth v.
Hawthorne, 236 A.2d 519, 520 (Pa. 1968). “In other words, the standards
to be [] used in determining whether or not the silence of one questioned
about the commission of a crime is justified are the same in both state and
federal proceedings.” Commonwealth v. Carrera, 227 A.2d 627, 629 (Pa.
1967), superseded by statute on other grounds, Commonwealth v.
Swinehart, 664 A.2d 957 (Pa. 1995).
____________________________________________
5
With regard to questions four, five and six, Heffler also refused to answer
based upon attorney/client privilege. See Oral Deposition of Brad Heffler,
3/14/2014, at 19-23. However, in his concise statement and his brief before
this Court, Heffler challenges the court’s ruling only with respect to his
privilege against self-incrimination. Therefore, he has waived any
attorney/client privilege claim on appeal. See Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015) (“Because Appellant has
failed to develop his argument or cite authority, he is not entitled to relief on
his first claim.”).
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Our review of a Fifth Amendment claim is governed by the following
principles:
The Fifth Amendment declares in part that ‘No person * *
* shall be compelled in any Criminal Case to be a witness
against himself’. This guarantee against testimonial compulsion,
like other provisions of the Bill of Rights, ‘was added to the
original Constitution in the conviction that too high a price may
be paid even for the unhampered enforcement of the criminal
law and that, in its attainment, other social objects of a free
society should not be sacrificed.’ This provision of the
Amendment must be accorded liberal construction in favor of the
right it was intended to secure.
The privilege afforded not only extends to answers that
would in themselves support a conviction under a federal
criminal statute but likewise embraces those which would furnish
a link in the chain of evidence needed to prosecute the claimant
for a federal crime. But this protection must be confined to
instances where the witness has reasonable cause to apprehend
danger from a direct answer. The witness is not exonerated
from answering merely because he declares that in so
doing he would incriminate himself—his say-so does not
of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require
him to answer if ‘it clearly appears to the court that he is
mistaken.’ However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim
is usually required to be established in court, he would be
compelled to surrender the very protection which the privilege is
designed to guarantee. To sustain the privilege, it need only
be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be
answered might be dangerous because injurious
disclosure could result. The trial judge in appraising the claim
‘must be governed as much by his personal perception of the
peculiarities of the case as by the facts actually in evidence.’
Hoffman v. United States, 341 U.S. 479, 485-487 (1951) (internal
citations omitted and emphasis supplied). See also Carrera, supra.
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In its opinion, the trial court first concluded Heffler waived his
challenge to questions five, six, seven and eight because he failed to insure
that the exhibits referred to in those questions were part of the certified
record. See Trial Court Opinion, 2/20/2015, at 11. Next, with regard to the
remaining questions, the court determined Heffler “is mistaken in his
concerns regarding self-incrimination.” Id. at 13. The court provided the
following rationale:
Heffler acknowledges that he is not at risk of prosecution based
upon harassment, because the statute of limitations for
harassment is only two years and the events at issue occurred
between January 18, 2012 and May 3, 2012 []. He then argues,
however, other criminal offenses in Pennsylvania are subject to
five-year statutes of limitation, citing 42 Pa.C.S.A. § 5552(b)
(“Section 5552(b)”). Heffler’s [Memorandum of Law in
Opposition to Plaintiff’s Motion to Compel His Testimony],
however, fails to indicate which of the some twenty-eight major
offenses listed in Section 5552(b) he could be charged with in
the event the Order is affirmed. Nor does the Concise
Statement raise a claim of error regarding any specific offense
he might be charged with in the event he answers the Questions.
Without more detail as to which of the crime(s) listed in Section
5552(b) apply, the Court cannot address this argument.
Further, upon review, it does not appear that Heffler could be
charged with any criminal offense under Section 5552(b).
Our Supreme Court explained that when an individual is
called to testify in a judicial proceeding, “he or she is not
exonerated from answering questions merely upon the
declaration that in doing so it would be self-incriminating. It is
always for the court to judge if the silence is justified, and an
illusory claim should be rejected.” Carrera, 227 A.2d at 629.
The U.S. Constitution and the Pennsylvania Constitution both
protect an individual from being called as a witness against
himself in criminal and civil proceedings, formal or informal,
where the answers to questions might incriminate the individual
in further criminal proceedings. The Court is hard-pressed,
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however, to find that the answers to the Question[s] could
possibly be incriminating.
Id. at 13-14 (footnote omitted).
With regard to the court’s determination that he waived his challenge
to questions five, six, seven and eight, Heffler acknowledges that the trial
court is “technically correct” that Exhibits P-1 and P-2, referred to in
questions five and six, were not made part of the certified record. Heffler’s
Brief at 26. However, he asserts the exhibits “were described on the record,
and it appeared as if the court was looking at them[.]” 6 Id. Moreover, after
the appeal was filed, the parties entered into a stipulation whereby they
agreed that Exhibits P-1 and P-2 “should be included in the original record
and transmitted to the Superior Court of Pennsylvania.” Stipulation,
3/3/2015. Thereafter, on March 4, 2015, Heffler filed an application in this
Court for correction of the certified record. On March 30, 2015, we granted
Heffler’s application, and the trial court later supplemented the certified
record with the letters that were designated as Exhibits P-1 and P-2 during
Heffler’s March 14, 2014, deposition. Accordingly, we are not precluded
from reviewing Heffler’s Fifth Amendment challenge to questions five and
six.
____________________________________________
6
See Oral Deposition of Brad Heffler, 3/14/2014, at 22 (identifying Exhibit
P-1 as a letter from Velorics’ counsel to Heffler’s counsel dated 10/8/2013);
24 (identifying Exhibit P-2 as a letter from Heffler’s counsel to Velorics’
counsel in response to the 10/8/2013 letter).
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With regard to the exhibit P-3, referred to in questions seven and
eight, our review of Heffler’s deposition transcript reveals that Exhibit P-3
was a printed copy of the two anonymous emails Nancy Veloric received
from the sender, “bnasht@gmail.com.” See Oral Deposition of Brad Heffler,
3/14/2014, at 25-26. Further, these emails were part of the certified
record, as they are attached to the Velorics’ complaint. See Complaint,
7/19/2012, Exhibit A. Accordingly, we agree with Heffler that his challenge
to all ten questions at issue is preserved for our review.
Nevertheless, we find that Heffler’s Fifth Amendment challenge to
questions four, five, six and eight fails on the merits. With respect to these
questions, Heffler was asked: (1) if he was aware the Velorics’ counsel
sent a letter to his attorney offering him the opportunity to execute an
affidavit in lieu of deposition testimony (Question 4); (2) if he had seen the
letter from the Velorics’ counsel before the deposition (Question 5); (3) if
he had ever seen the response sent by his own lawyer (Question 6); and
(4) if he could see the date of the e-mails on the exhibit (Question 8).
We can conceive of no answers to these questions that would tend to
incriminate Heffler, or lead to evidence that might demonstrate his
culpability for the acts described in the complaint. See Hoffman, supra.
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Accordingly, we conclude the trial court properly overruled his claim of
privilege with regard to these questions.7
With regard to the remaining questions, Heffler argues that “[e]ach
question … has a possible answer that could lead to evidence that would
support [his] violation of crimes related to the use of computers, or a
conspiracy to do so.” Heffler’s Brief at 21. He emphasizes he is not required
to “prove the hazard, because then he … would surrender the protection the
privilege was designed to protect.” Id. at 18, citing Hoffman, supra.
Moreover, he claims he need not demonstrate “a real danger of prosecution
exists.” Id. at 17. Although Heffler does not provide any analysis of the
potential crimes with which he might be charged, he asserts the Velorics’
counsel “conceded” that his answers could lead to a charge of unlawful use
of a computer, a crime that was still within the statute of limitations. Id. at
20.
Furthermore, we note that at oral argument for this appeal, Heffler
again declined to expound on the specific crimes with which he might be
charged, but referred to the Velorics’ complaint, which stated “whatever
salacious purpose the sender or senders have, that purpose is both civilly
and criminally censorable, both under State and under Federal Law.”
____________________________________________
7
We note Heffler does not differentiate between the questions he was
directed to answer. Rather, he claims, generally, that all of the questions
could lead to incriminating answers.
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Complaint, at ¶ 18 (emphasis supplied). Heffler also cited two Pennsylvania
Supreme Court decisions, to support his contention that the fact that the
statute of limitations may have expired with regard to a criminal charge is
not grounds for compelling a witness to testify when he has invoked his Fifth
Amendment privilege. See McFadden v. Reynolds, 11 A. 638 (Pa. 1887);
Commonwealth v. Lenart, 242 A.2d 259 (Pa. 1968) (plurality).
Upon our review, it appears the crux of Heffler’s argument is that once
he has invoked his Fifth Amendment privilege, he has no further burden to
prove that his answers may provide incriminating testimony. See Heffler’s
Brief at 18 (“The witness is not required to prove the hazard, because then
he or she would surrender the protection the privilege was designed to
protect.”). Further, he distinguishes a Commonwealth Court decision, cited
by the Velorics, which places the burden squarely on the witness to establish
“that he or she has a reasonable ground for asserting the privilege.”
McDonough v. Com., Dep't of Transp., Bureau of Driver Licensing, 18
A.2d 1258, 1261 (Pa. Commw. 1992). Heffler contends the McDonough
Court relied upon a 1911 Supreme Court decision “which cannot survive the
adoption of the federal standard” announced in Carrera, supra. Heffler’s
Brief at 19.
Our review of the relevant case law, however, confirms that Heffler
has the burden to demonstrate he has “reasonable cause to apprehend” a
“real danger of prosecution” should he be compelled to testify. Carrera,
supra, 227 A.2d at 629. As Heffler asserts, a witness is not “required to
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prove the hazard” since, in doing so, “he would be compelled to surrender
the very protection which the privilege is designed to guarantee.” Hoffman,
supra, 341 U.S. at 486. However, we interpret this passage in Hoffman to
mean the witness need not provide answers to the questions before the
trial court can determine whether or not the answers might be incriminating.
The Supreme Court has made clear:
The witness is not exonerated from answering merely because
he declares that in so doing he would incriminate himself – his
say-so does not of itself establish the hazard of incrimination. It
is for the court to say whether his silence is justified, and to
require him to answer if ‘it clearly appears to the court that he is
mistaken.’
Id. (citations omitted). Were we to accept Heffler’s contention, that the
witness asserting the privilege has no burden of proof, we would exonerate a
witness based solely on his “say-so.” Id. Rather, pursuant to Hoffman,
and its progeny, the final determination as to whether the privilege was
properly invoked lies with the trial court. As the Supreme Court explained in
United States v. Reynolds, 345 U.S. 1 (1953):
Indeed, in the earlier stages of judicial experience with the
problem, both extremes were advocated, some saying that the
bare assertion by the witness must be taken as conclusive, and
others saying that the witness should be required to reveal the
matter behind his claim of privilege to the judge for verification.
Neither extreme prevailed, and a sound formula of compromise
was developed. … There are differences in phraseology, but in
substance it is agreed that the court must be satisfied from all
the evidence and circumstances, and ‘from the implications of
the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious
disclosure could result.’ If the court is so satisfied, the claim
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of the privilege will be accepted without requiring further
disclosure.
Id. at 8-9 (emphasis supplied). Therefore, a witness must demonstrate to
the court that he has “reasonable cause to apprehend danger from a direct
answer.” Hoffman, supra, 341 U.S. at 486.
Here, the trial court was not satisfied that Heffler’s responsive answers
might be incriminating. First, the court explained that the one obvious crime
with which Heffler could be charged was harassment, but that crime has a
two-year statute of limitations which had expired. See Trial Court Opinion,
2/20/2015, at 13. The court acknowledged there are several offenses, listed
in 42 Pa.C.S. § 5552(b), which are subject to a five-year statute of
limitations, but noted that Heffler failed to indicate which of these crimes
might be implicated by his proposed testimony. Indeed, our review of the
crimes listed in Section 5552(b) reveals that none apply to the facts alleged
in the complaint, save for the offense of unlawful use of a computer. See 42
Pa.C.S. § 5552(b);8 18 Pa.C.S. § 7611 (Unlawful Use of A Computer and
Other Computer Crimes). However, our review of the elements of that crime
reveals that it is not implicated by the acts described in the complaint. 9
____________________________________________
8
The crime of unlawful use of a computer is listed in Section 5552(b) as
“section 3933 (relating to unlawful use of a computer).” 42 Pa. C.S. §
5552(b). However, Section 3933 was repealed in 2002, and replaced by
Section 7611. See 2002, Dec. 16, P.L. 1953, No. 226, § 3 , effective in 60
days.
9
The crime of unlawful use of a computer, codified at 18 Pa.C.S. § 7611,
provides that a person commits the offense if he:
(Footnote Continued Next Page)
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Significantly, Heffler does not specify which crimes might be implicated
by the acts alleged in the complaint, and provides no analysis establishing
that his answers might support a charge of unlawful use of a computer as
delineated in 18 Pa.C.S. § 7611. While Heffler is not required to provide
potentially incriminating answers to the questions before asserting his Fifth
_______________________
(Footnote Continued)
(1) accesses or exceeds authorization to access, alters,
damages or destroys any computer, computer system,
computer network, computer software, computer program,
computer database, World Wide Web site or telecommunication
device or any part thereof with the intent to interrupt the normal
functioning of a person or to devise or execute any scheme or
artifice to defraud or deceive or control property or services by
means of false or fraudulent pretenses, representations or
promises;
(2) intentionally and without authorization accesses or
exceeds authorization to access, alters, interferes with
the operation of, damages or destroys any computer,
computer system, computer network, computer software,
computer program, computer database, World Wide Web site or
telecommunication device or any part thereof; or
(3) intentionally or knowingly and without authorization
gives or publishes a password, identifying code, personal
identification number or other confidential information about a
computer, computer system, computer network, computer
database, World Wide Web site or telecommunication device.
18 Pa.C.S. § 7611(a) (emphasis supplied). Here, the facts alleged in the
complaint assert that the Does sent two anonymous, defamatory e-mails to
Nancy Veloric. See Complaint, 7/19/2012, at ¶¶ 7-16. There are no
allegations that the Does accessed a computer or computer system, or
knowingly published a password. It is not clear that simply sending a
defamatory e-mail would constitute a violation of the statute.
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Amendment privilege, he must demonstrate “reasonable cause to apprehend
danger[.]” Hoffman, supra, 341 U.S. at 486. This, he failed to do.10
Heffler also challenges the trial court’s conclusion that he cannot
invoke his Fifth Amendment right when the statute of limitations has expired
with respect to the potential crime. He cites two decisions of the
Pennsylvania Supreme Court which hold the contrary. We conclude,
however, that the viability of these decisions is questionable at best.
In the 1887 decision, McFadden, supra, the plaintiff sued the
defendant for breach of a promise of marriage. The defense called a witness
to testify whether he had carnal knowledge of the plaintiff on a date two
years earlier. The witness declined to answer, invoking his Fifth Amendment
right, although he conceded that any prosecution would be barred by the
statute of limitations. The trial court declined to compel the witness to
testify, and on appeal, the Supreme Court affirmed. The Court explained:
We are not prepared to hold that, where a witness is asked upon
the stand to say whether he has committed a crime, he shall be
compelled to do so simply because he may, if a prosecution for
that crime is subsequently instituted against him, plead the
statute of limitations in defense. It seems to us he is protected
against [in]criminating himself in such a manner as to subject
himself even to a prosecution.
McFadden, supra, 11 A. at ___.
____________________________________________
10
We do not find that Heffler’s mere reference to the Velorics’ complaint, in
which the Velorics assert the Does’ actions were “criminally censorable, both
under State and Federal Law,” satisfies this burden. Heffler’s Brief at 26.
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The only appellate decision citing McFadden is Lenart, supra. In
that case, a two-justice plurality,11 rejected the Commonwealth’s argument
that a government witness should have been compelled to testify when the
prosecution of any implicated offense was barred by the statute of
limitations. Lenart, supra, 242 A.2d at 262. Relying on McFadden, the
plurality stated:
[T]he statute of limitations is not per se a bar to prosecution; it
is an affirmative defense which must be pleaded. Thus, if not
pleaded, the prosecution machinery will grind. The privilege
against self-incrimination is not limited to those cases where the
witness can be Convicted on the basis of his testimony. The
privilege protects him regardless as to whether or not the trial
would result in a conviction.
Id. The plurality declined to overrule McFadden, despite the
Commonwealth’s claim that the “overwhelmingly favored” rule was that the
privilege does not attach when the acts are no longer punishable by reason
of the expiration of the statute of limitations. Id. at 262-263.
However, in a concurring opinion, Justice O’Brien, joined by Justice
Roberts, declared he “would not at this time reaffirm the holding of
McFadden” which he described as “a case that has not withstood the test of
time.” Id. at 264 (O’Brien, J., Concurring). Rather, Justice O’Brien noted
“[i]f the witness cannot be convicted of the crime, the fact that he can be
____________________________________________
11
Justice Musmanno authored the Opinion of the Court, and was joined by
Chief Justice Bell. Justice O’Brien authored a Concurring Opinion, joined by
Justice Roberts. Justices Jones, Cohen and Eagen concurred in the result.
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prosecuted for it is of only academic interest.” Id. However, because he
found it was not “altogether clear … that conviction for any crimes revealed
by [the witness’s] testimony would be barred by the statute of limitations,”
Justice O’Brien concluded that the witness properly exercised his privilege.
Id.
Therefore, while McFadden has not been overruled, its continued
vitality is dubious. This is particularly true since in Brown v. Walker, 161
U.S. 591 (1896), the United States Supreme Court held that a witness may
not invoke his Fifth Amendment privilege when the offense with which he
could be charged is barred by the statute of limitations. The Court opined:
“[I]f a prosecution for a crime, concerning which the witness is interrogated,
is barred by the statute of limitations, he is compellable to answer.” Id. at
598. See also Stogner v. California, 539 U.S. 607, 620 (2003) (“[The
Supreme Court] has clearly stated that the Fifth Amendment’s privilege
against self-incrimination does not apply after the relevant limitations period
has expired.”), citing Brown, supra.
In light of the United States Supreme Court’s decision in Brown, we
decline to follow McFadden. Indeed, it is axiomatic that when the Fifth
Amendment privilege is invoked in state proceedings, it is governed by
federal standards. Hawthorne, supra; Carrera, supra. Accordingly, we
conclude the trial court properly considered the fact that the only obvious
crime with which Heffler could have been charged based upon his deposition
testimony – harassment - was barred by the statute of limitations.
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Moreover, we find that any other possible indictment based upon unspecified
state and/or federal crimes was improbable, and Heffler failed to
demonstrate “reasonable cause to apprehend danger from a direct
answer.” Hoffman, supra, 341 U.S. at 486 (emphasis supplied). Indeed,
we agree with the conclusion of the trial court that “Heffler’s refusal to
answer the Questions based upon the Fifth Amendment is not supported by
the record in this case as it is perfectly clear that there is no risk of self-
incrimination[.]” Trial Court Opinion, 2/20/2015, at 14.
Accordingly, we affirm the order of the trial court overruling Heffler’s
invocation of his Fifth Amendment privilege and directing Heffler to answer
ten deposition questions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2015
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