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COMMONWEALTH PENNSYLVANIA v. TIMOTHY S. FENSTERMAKER (10/25/85)

filed: October 25, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
TIMOTHY S. FENSTERMAKER, EDWARD GREY AND BRENT A. SMITH; CALL-CHRONICLE NEWSPAPERS, INC., INTERVENOR. APPEAL OF CALL-CHRONICLE NEWSPAPERS, INC., INTERVENOR. COMMONWEALTH OF PENNSYLVANIA, APPELLANT V. TIMOTHY S. FENSTERMAKER, EDWARD GREY, BRENT A. SMITH. COMMONWEALTH OF PENNSYLVANIA V. TIMOTHY S. FENSTERMAKER, EDWARD GREY AND BRENT A. SMITH. APPEAL OF TIMOTHY S. FENSTERMAKER



Appeal from the Order in the Court of Common pleas of Lehigh County, Criminal Nos. 380, 381, 382 of 1984. Appeal from the Order in the Court of Common pleas of Lehigh County, Criminal Nos. 380, 381, 382 of 1984. Appeal from the Order in the Court of Common Pleas of Lehigh County, Criminal No. 382 of 1984.

COUNSEL

Malcolm J. Gross, Allentown, for appellant (at 1244) and for appellee (at 1245 & 1312).

William H. Platt, District Attorney, Allentown, for Commonwealth, appellant, (at 1245) and for Commonwealth, appellee (at 1244 & 1312).

Dianne M. Dickson, Allentown, for appellant (at 1312) and for appellee (at 1244 & 1245).

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ.

Author: Spaeth

[ 348 Pa. Super. Page 231]

This case arises on three appeals, which have been consolidated, from an order entered in response to a motion of Call-Chronicle Newspapers, Inc., for permission to inspect and copy the affidavits of probable cause supporting the arrest warrants of defendants Timothy S. Fenstermaker,

[ 348 Pa. Super. Page 232]

Edward Grey, and Brent A. Smith. The order provides: that the district attorney and defense counsel may within a reasonable time file with the district justice who issued the warrants an affidavit or other certified statement setting forth reasons why the affidavits should be sealed from public inspection; that if such a statement is filed, the district justice shall seal the affidavits, with leave to any interested person to appeal to the trial court; but that if no such statement is filed, the district justice shall not prohibit public inspection of the affidavits. The Commonwealth, defendant Fenstermaker, and Call-Chronicle have appealed. On the Commonwealth's and defendant Fenstermaker's appeals, we hold that Call-Chronicle has a right under the First Amendment to inspect the affidavits, but that this right is qualified by defendant Fenstermaker's right under the Sixth Amendment to a fair trial. On Call-Chronicle's appeal, we hold that the trial court's order represents an appropriate accommodation of these respective rights. Accordingly, we affirm.

The three defendants were arrested on February 17, 1984, and charged with criminal homicide and rape. The district justice who issued the arrest warrants refused to permit Call-Chronicle to inspect and copy the affidavits supporting the arrest warrants. Call-Chronicle moved to intervene, and after the trial court granted the motion, moved for permission to inspect and copy the affidavits. On April 13, 1984, the trial court, BACKENSTOE, P.J., issued the order that we have just summarized,*fn1 and these appeals followed.*fn2

[ 348 Pa. Super. Page 233]

In Commonwealth v. Buehl, 316 Pa. Super. 215, 462 A.2d 1316 (1983), this court held that the public has a First Amendment right to attend pretrial proceedings. We found that the societal interests identified by the United States Supreme Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), as requiring public criminal trials equally required public criminal pretrial proceedings. As described by the Court in Richmond Newspapers, these interests include the "assurance that the proceedings were conducted fairly to all concerned[,] . . . discourage[ment of] perjury, the misconduct of participants, and decisions based on secret bias or partiality." Id. at 984 (BURGER, C.J., plurality). See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984) ("[o]penness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system"); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 ...


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