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filed: February 11, 1983.


No. 204 Harrisburg, 1980, Appeal from the Order of the Court of Common Pleas of Snyder County, Civil Division, at No. 79 of 1980


Leonard R. Apfelbaum, Sunbury, for appellant.

Charles J. Ax, Jr., Middleburg, for participating party.

Brosky, McEwen and Beck, JJ. McEwen, J. concurred in the result. Beck, J. files a concurring opinion.

Author: Brosky

[ 310 Pa. Super. Page 222]

On December 20, 1979, a preliminary hearing was held before a District Justice to determine whether Robert E.

[ 310 Pa. Super. Page 223]

Dock should be tried on criminal homicide charges. The District Justice denied the public access to the hearing and refused to provide the press with a copy of the hearing transcript. Appellant then filed a Petition with the lower court seeking access to a record of the proceedings. The court upheld the District Justice's exclusion of the public from the hearing and denial of transcript.

During the oral arguments presented to us, we were informed that the trial in this case has already been concluded. Normally, we would treat appellant's appeal as moot and dismiss it. However, we may decide cases with substantial questions, otherwise moot, which are capable of repetition unless settled. See McKeesport Area School District v. Collins, 55 Pa. Commw. 548, 423 A.2d 1112 (1980), Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 59, 373 A.2d 748, 750 (1977). Finding this situation to be one likely to recur, we will address the merits of the appeal. We reverse.

The lower court explained its denial of the petition in an opinion which concluded as follows:

[ 310 Pa. Super. Page 10]

In these circumstances, it is clear that the hearing before the District Justice to which petitioner sought admission and for which it requests a transcript was in part a preliminary or prefatory stage of the criminal justice proceedings to which it had no constitutional guarantee of admission, thus no constitutional right to the transcript. (Page 10 of Opinion.)

We are unable to state, as the lower court has, that the public has no right of access to preliminary proceedings.

In Gannett Company, Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the Supreme Court was faced with the question of whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding. The court held that no such right is given by the Sixth or Fourteenth Amendments, but reserved decision as to whether it is found in the First Amendment. The Court did say, however, that even if such a right does exist, there are circumstances in which it

[ 310 Pa. Super. Page 224]

    is outweighed by a defendant's right to a fair trial. The court found the closure of the courtroom by the trial court to be permissible because

In contrast, the trial court in the present case held that First Amendment freedoms were not implicated because a preliminary hearing is not a trial to which the right of access attaches.

Similarly, appellee argues that the Pennsylvania Constitution's provision that "all courts shall be open" found in Art. 1 § 11, does not apply to this case because the District Justice proceeding is not a court proceeding. We do not agree. When the proceedings before a District Justice are criminal in nature, as was this hearing, they are treated as court proceedings. See 18 Pa.C.S.A. § 103.*fn2

In Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), the Pennsylvania Supreme Court held that closure of a pretrial proceeding may not be ordered where some other procedural device can fully protect the defendant's right to a fair trial. In Hayes, the proceeding in question was a pretrial suppression hearing scheduled to be held immediately prior to trial.

In reaching its decision, the court discussed the Gannett case at great length concluding that while Gannett does not decide whether there is a constitutionally based right of

[ 310 Pa. Super. Page 225]

    access to pretrial proceedings, that decision does provide justification for limiting the use of closure. The Court wrote:

It is thus readily apparent that where a less restrictive alternative is available for assuring the fair trial guarantee and the use of that alternative does not unduly burden the expeditious disposition of the cause, all of the views expressed by the members of the Gannett Court would have no serious disagreement with a requirement that the alternative procedure should be opted for in preference to closure. Id., 489 Pa. at 426, 414 A.2d at 321.

Our Supreme Court then found that under the facts of the Hayes case, a less restrictive alternative was available. All parties had agreed that since the suppression hearing was to immediately precede the trial, sequestration of jurors would protect the defendant's right to a fair trial.

Unlike the Hayes court, we cannot determine on the record before us, whether closure was justified. What we have determined, however, is that the trial court erred in failing to consider the public's right of access to this proceeding.

The Hayes court indicated that whether that right is of constitutional dimension was not critical to its decision. See Hayes, supra, 489 Pa. at 425, 414 A.2d at 321. In fact, the court did not state whether the right it enforced was based on either the Federal or Pennsylvania Constitution. It did, though, find such a right as to pretrial proceedings.

Certainly, the facts of the present appeal are different than those of Hayes. The preliminary hearing, held to determine whether the defendant should be tried at all, is not held immediately before trial. Sequestration of jurors would not provide an effective alternative means. It may well be that there was no other way to protect the defendant's right to a fair trial, but the question should have been considered.

Order reversed.

[ 310 Pa. Super. Page ...

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