No. 17 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal at No. 3000 - 82.
Katherine L. Hatton, Philadelphia, for appellant.
Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Spaeth, Cavanaugh and Hoffman, JJ. Cavanaugh, J., files a concurring statement.
[ 316 Pa. Super. Page 217]
This appeal is from an order denying appellant's motion for access to a pretrial hearing and a copy of the transcript of the hearing. The order arises from the Commonwealth's prosecution of Roger Buehl for murder. The pretrial hearing was set for the day the case was called for trial, January 3, 1983, and at the opening of the hearing, Buehl's counsel moved that the hearing be closed. The lower court granted the motion at once, and on January 18 Buehl was convicted and sentenced to death. Appellant is the publisher of the Philadelphia Inquirer and the Philadelphia Daily News. We hold that before a trial court may order a pretrial hearing closed, there must be notice to the public; that if a representative of the public, such as the press, opposes closure, the court shall afford the representative an opportunity to be heard; that before ordering closure, the court shall consider alternatives to closure; and that if the court orders closure, it shall state on the record why it rejected those alternatives. Since the lower court did not comply with these requirements, we reverse.
As already mentioned, the pretrial hearing was set for the day the case was called for trial, January 3, 1983. The hearing convened at 10:37 a.m. The transcript states that in addition to the court, those present were the prosecutor, defense counsel, and the defendant, Roger Buehl. The
[ 316 Pa. Super. Page 218]
court instructed the clerk to swear the court reporter and the tipstaves, and after they were sworn, indicated that the prosecutor might proceed. Defense counsel then stated that he had "filed certain pre-trial motions" and that "because of the extensive pre-trial publicity that this trial has been given and because of the possible prejudice that may arise on the defendant's part if those motions are heard in the press, I would ask that the pretrial motions at this point be kept outside the presence of all persons except for those associated with the Court." N.T. 3. The prosecutor responded: "Your Honor, I have no objection. In fact, I think that such a ruling may assist in jury selection in this case." Id. The court responded:
Well, it occurs to me certainly that if this is rehashed in any way, the pre-trial motions and some of the evidence that's produced, in the papers prior to the selection of the jury that this certainly will at least keynote to those people who read the paper carefully the case and may recall some of the past publicity, which I don't think has been extensive up to this point. In an abundance of caution, therefore, I am going to hold the pre-trial motions in camera in accordance with an opinion rendered by the Supreme Court of Pennsylvania. The trial, of course, will be open to the public, but the pre-trial motions will be held outside the hearing of the press.
All right. I guess we're ready to proceed at this point.
After what must have been only a few moments, the direct examination of the first witness was interrupted -- in its opinion the lower court states that "a member of the press burst past the guard at the back door of the court room," Slip op. at 2 -- and the following occurred.
UNIDENTIFIED VOICE: I have been instructed by my editor to request that the proceedings be stopped until we can get a lawyer here to make a motion to request that the press be permitted.
[ 316 Pa. Super. Page 219]
THE COURT: Well, I am not going to stop the proceedings. I have already made a ruling on that with regard to the other members of the press. It should be perfectly obvious to your editor as well as everyone else that I have to balance the public's right to know versus any prejudice to the picking of any future jury, and there is precedent in the Supreme Court of Pennsylvania which indicates that pre-trial matters can be heard outside the press and not in public view, and it's on that precedent that I am making this ruling.
UNIDENTIFIED VOICE: Just for the record, our attorney will be in ...