No. 347 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Delaware County at Nos. 1804, 05, 06, 07, and 08 of 1982.
Katherine L. Hatton, Philadelphia and Edward J. Carney, Jr., Media, for appellants.
William J. Davies, Assistant District Attorney, and John A. Reilly, District Attorney, Media, for Commonwealth, appellee.
Michael F. Coll, Media, for Leroy Frattarola, appellee.
Frank J. Marcone, Media, for Donald Frattarola, appellee.
William J. Winning, Media and Bruce L. Thall, Philadelphia, for Catania, appellee.
W. Donald Sparks, Media, for Jacono, appellee.
Wickersham, Wieand and Lipez, JJ. Wieand, J., filed a concurring opinion. Lipez, J., filed a dissenting opinion.
[ 336 Pa. Super. Page 413]
In the action underlying this appeal by Philadelphia Newspapers, Inc., Westinghouse Broadcasting and Cable, Inc. and Central States Publishing, Inc. (hereinafter, "the media"), the defendants, several of whom were public officials and prominent politicians, were charged, inter alia, with illegally interfering with a Delaware County primary election in May of 1981. At the preliminary hearing, the chief Commonwealth witness, Richard T. Burke, testified extensively as to the content of conversations he had had with several of the defendants. Many of these conversations had been electronically intercepted and recorded, allegedly with the consent of Mr. Burke. The tapes themselves were not played at the preliminary hearing.
On July 30, 1982, the Commonwealth filed a motion seeking a pretrial hearing to determine the authenticity, audibility, integrity, and identification of the aforementioned tape recordings, pursuant to United States v. Starks, 515 F.2d 112 (3d Cir. 1975).*fn1 The hearing on this motion, commencing on October 12, 1982, was closed to the press and public on the motion of defendant-appellee Catania, which motion was joined orally by the other defendants and the Commonwealth, over the objections of Philadelphia
[ 336 Pa. Super. Page 414]
Newspapers, Inc. and Central States Publishing, Inc. The hearing resumed on October 13, 1982, at which time Westinghouse Broadcasting and Cable, Inc. requested access, which request was denied by the court.*fn2 On October 13, 1982, Philadelphia Newspapers and Central States Publishing appealed to this court from the lower court's order denying public access to the pretrial Starks hearing. On October 14, 1982, in a per curiam order, this court remanded the case to the lower court so that the media could request access to the transcripts of the already-concluded hearing. This court advised the lower court to consider any less restrictive alternatives before denying the media access to the transcripts.
On October 13, 1982, the lower court entered an order dismissing all charges against Donald and Leroy Frattarola and Charles P. Sexton, Jr. The court left one count each against defendants Catania and Jacono. Subsequently, on January 4, 1983, the lower court entered an order dismissing
[ 336 Pa. Super. Page 415]
the remaining charges against Catania and Jacono under the de minimis provisions of the Crimes Code.*fn3
On November 22, 1982, the lower court heard the media's motion to permit access to the transcripts of the Starks hearing and the tape recordings. The court denied and dismissed the motion on January 4, 1983. The media filed a notice of appeal to this court on February 3, 1983.
Before proceeding with the merits of this appeal, we must consider a threshold question: whether this appeal is moot because of the termination of the underlying criminal prosecution.*fn4
As we have already noted, all criminal charges against all defendants in the underlying action have been dismissed. Parts of the record and transcripts of the tapes remain sealed, however. Therefore, we believe that the controversy is not moot. If we reverse the order of the lower court, our decision will have the effect of granting access to the press and public to the transcripts in question. If we affirm the order of the lower court, the transcripts will remain sealed.
We are here presented with a controversy capable of repetition, yet evading review. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 313 (1911). By their very nature, closure orders often may not be subject to review until after the underlying action is completed. In United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978), the Court of Appeals for the Third Circuit noted:
[ 336 Pa. Super. Page 416]
[R]review of a closure order similar to that issued in this case generally must come after the pretrial hearing is over, and often must come after the underlying criminal proceeding is over as well. To deny review because those underlying proceedings have come to an end would make it difficult for this court ever to review orders that are of great importance to fundamental rights, yet that are by their nature often of short duration. Thus, we believe that the order of the court closing the hearing and sealing the record is one capable of repetition in other cases, yet one that evades review in the specific instance.
We agree. There is a reasonable expectation that the appellants will be subjected to similar closure orders in the future. See Globe Newspaper Company v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Commonwealth v. Buehl, 316 Pa. Super. 215, 220, 462 A.2d 1316, 1319 (1983). We conclude that this appeal is not moot and we, therefore, proceed to the merits.
ACCESS TO THE TRANSCRIPT OF THE STARKS HEARING
The first substantive issue with which we are faced is the existence and extent of the right of the press and public to have access to the transcripts of the pretrial Starks hearing. The lower court ordered closed the portions of the Starks hearing dealing with the contents of the tape recordings in order to assure that defendants' rights to a fair trial would not be prejudiced. In this appeal, however, we are not concerned with the propriety of the closure order. Rather, we must determine whether, after all the charges have been dismissed, the press and public have a right of access to the transcript of the closed Starks hearing.*fn5 Since all the charges have been dismissed, the defendants'
[ 336 Pa. Super. Page 417]
fair trial rights are no longer in jeopardy. Thus, we must decide if there are any other factors that would limit appellants' access to the transcripts of the hearing.
Appellee asserts that both Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. and the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5726*fn6 prohibit the disclosure of the contents of the tape recordings in the instant case.
Title III is a comprehensive statute designed to regulate strictly the interception and disclosure of wire and oral communications. It "has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of [such communications] may be authorized." S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in  U.S.Code Cong. & Admin.News, pp. 2112, 2153. The legislative history of Title III makes it clear, as do the elaborate authorization and disclosure provisions of the statute itself, that "the protection of privacy was an overriding congressional concern" of the act. Gelbard v. United States, 408 U.S. 41, 48, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972) (footnote omitted) (decided together with a case on certiorari to this circuit, United States v. Egan, id. [408 U.S. 922, 92 S.Ct. 2479, 33 L.Ed.2d 332]).
Indeed, Title III's complex provisions regulate both interception and disclosure of communications in great detail. The statute legalizes interceptions conducted pursuant to the authorization provisions of § 2516 and § 2518. In addition, it specifically exempts from those provisions only certain limited categories of interceptions.
[ 336 Pa. Super. Page 418]
One of those exempted categories comprises interceptions "where one of the parties to the communication has given prior consent to [the] interception," which the statute declares "shall not be unlawful," § 2511(2)(c). Any interceptions other than those authorized by § 2516 and § 2518 or excepted by § 2511 are declared illegal.
Title III affirmatively provides for the disclosure of intercepted communications only in certain carefully limited instances. Public disclosure with limited exceptions, is authorized only in accordance with § 2517(3):
Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.
18 U.S.C. § 2517(3). The legislative history explains that what may be disclosed within § 2517(3) are those communications that were not "unlawfully intercepted" within the meaning of § 2518(10)(a). S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in  U.S.Code Cong. & Admin.News, pp. 2112, 2195.
Title III thus authorizes the disclosure only of certain communications at a suppression and Starks hearing: those intercepted in accordance with the authorization procedures of § 2516 and § 2518, or else those intercepted under one of the exceptions to § 2516 and § 2518 contained in § 2511.
United States v. Cianfrani, 573 F.2d 835, 855-56 (3d Cir. 1978) (footnotes omitted).
Thus, Congress' interest in protecting the privacy of communications can, in some instances, limit the public's right of access to criminal proceedings.
[ 336 Pa. Super. Page 419]
Instantly, appellee Catania filed a petition for a writ of habeas corpus alleging that the tapes and transcript of the intercepted communications violated both the federal and the state wiretapping statutes. The Commonwealth then petitioned for a Starks hearing in order to determine the "lawfulness" of the wiretap. The court below never ruled on the Commonwealth's Starks motion. Rather, all of the charges against the defendants were dismissed without the court determining whether the communications were lawfully intercepted.
We believe that prior to a determination by a court that communications were lawfully intercepted, Title III requires limitations on disclosure. See Cianfrani, supra at 857, n. 10.*fn7 There can be no disclosure of intercepted communications until a court has ruled that the interception was lawful. In this case, no court has ever ruled on the lawfulness of the subject tape recorded communications. Thus, Title III prohibits disclosure of the contents of the tape recordings in the instant case.
The Pennsylvania wiretapping statute, 18 Pa.C.S.A. §§ 5701-5726, contains disclosure provisions similar to those found in Title III. The state act also limits disclosure until a determination of the lawfulness of the interception is made.*fn8 Thus, the state statute, like the federal statute,
[ 336 Pa. Super. Page 420]
prohibits public access to those portions of the transcript of the Starks hearing in which the contents of the tape recordings are discussed.
Neither the federal nor the Pennsylvania statute, however, requires that the entire Starks hearing transcript remain sealed; rather, only those portions of the transcript that refer to the contents of the tape-recorded conversations are to be protected from public disclosure.*fn9 Thus, the order of the lower court denying appellants access to those portions of the transcript of the Starks hearing dealing with the contents of the tape recordings is affirmed.*fn10
[ 336 Pa. Super. Page 422]
Subsequent to the filing of this appeal, appellant Central States Publishing, Inc. was denied access by the court administrator of the Court of Common Pleas of Delaware County to the Commonwealth's Bill of Particulars which was filed in July 1982 in response to appellee Catania's request therefor. The Bill of Particulars contained exhibits that quoted extensively from the tape recordings. The newspapers filed in this court a petition for access to the Bill of Particulars. Appellee Catania filed a response to that petition. On June 30, 1983, this court entered a per curiam order*fn11 continuing the sealing of the Starks transcript, including the Commonwealth's Bill of Particulars, during the pendency of this appeal.
In this appeal, appellants argue that they are entitled to access to the Bill of Particulars.*f ...