filed: October 25, 1985.
COMMONWEALTH OF PENNSYLVANIA
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.
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.
[ 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 S.Ct. 2613, 73 L.Ed.2d 248 (1982) ("[p]ublic scrutiny of a criminal trial enhances the quality . . . of the factfinding process, . . . fosters an appearance of fairness . . . [and] permits the public to participate in and serve as a check upon the judicial process").
[ 348 Pa. Super. Page 234]
Although the United States Supreme Court has not yet definitively ruled on the applicability of the First Amendment to pretrial proceedings,*fn3 several Courts of Appeals have extended the rationale of Richmond Newspapers to such proceedings. See, e.g., In Re Application of Herald Page 234} Co., 734 F.2d 93 (2d Cir.1984); In Re Globe Newspaper Co., 729 F.2d 47 (1st Cir.1984); United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982); United States v. Criden, 675 F.2d 550 (3d Cir.1982). It has further been held that "there is no reason to distinguish between pretrial proceedings and the documents filed in respect to them." Associated Press v. United States District Court for the Central District of California, 705 F.2d 1143, 1145 (9th Cir.1983). In Associated Press, the court noted that "pretrial documents . . . are often important to a full understanding of the way in which 'the judicial process and the government as a whole' are functioning." Id., at 1145. See also In Re Globe Newspaper Co., supra at 52 ("the public has a First Amendment right of access to pretrial proceedings setting and modifying bail, and to the documents on which bail decisions are based . . ."); State v. Vincent A. Cianci, 496 A.2d 139 (R.I.1985) (press and public has First Amendment right to inspect pretrial discovery documents); but see United States v. Stoneman, 602 F.Supp. 388 (M.D.Pa.1985). On the specific issue before us, two state courts have found a First Amendment right of access to probable cause affidavits filed in support of arrest warrants. In Vermont v. Mitchell, 10 Med.L.Rptr. 2442, 2445 (Vt.Dist.Ct.1984), the court stated that "assuming that there is a First Amendment right of access to judicial proceedings in general, it follows logically that documents relating to those proceedings should likewise be accessible." See also Journal Newspapers, Inc. v. Maryland, 54 Md.App. 98, 456 A.2d 963, aff'd. sub nom. Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 465 A.2d 426 (1983). But see Vermont v. Schaefer, 11 Med.L.Rptr. 1281 (Vt.Dist.Ct.1984).
We find the reasoning of Associated Press and of the other cases like it persuasive when applied to probable cause affidavits.*fn4 As the trial court observed: "[p]ublic
[ 348 Pa. Super. Page 235]
access to the document may help provide a check upon possible violations of the fundamental requirement that a warrant of arrest is not issued upon anything less than probable cause. Also, respect for the judicial process may not fully exist if the paper upon which many criminal proceedings commence is unconditionally barred from public scrutiny . . . Further, access to such affidavits provides an opportunity of some public scrutiny of police conduct, activity by a branch of government that often operates outside of the general public view." 40 Lehigh L.J. at 565-66.
The constitutional dimensions of this right do not render it absolute, however; defendant's Sixth Amendment right to a fair trial must also be considered. Accordingly, where the First and Sixth Amendments conflict, a court may in appropriate circumstances order records sealed. See Nixon v. Warner Communications, Inc., 435 U.S. at 598-99, 98 S.Ct. at 1312. Here, the trial court recognized that if Call-Chronicle exercised its First Amendment right of access to the affidavits, it might deny defendant his Sixth Amendment right to a fair trial by generating pretrial publicity revealing "prior criminal records, alleged statements or confessions of the accused, or other information which could be inadmissible at trial." 40 Lehigh L.J. at 563. The court nevertheless properly rejected the Commonwealth's and defendant's argument that this possibility required permanently closing all probable cause affidavits from public scrutiny. "Though, in our constitutional scheme, '[n]o right ranks higher than the right of the accused to a fair trial', . . . speculative threats to that right have never been sufficient to overcome . . . First Amendment rights . . . ." United States v. Martin, 746 F.2d 964, 972
[ 348 Pa. Super. Page 236]
(3d Cir.1984) (quoting Press-Enterprise Co. v. Superior Ct., supra). In many circumstances, pretrial publicity can be effectively countered by change of venue, voir dire, or jury instructions. See, e.g., United States v. Criden, 675 F.2d at 562.
We are satisfied that the procedure provided by the trial court in its order will not only further open judicial process, Commonwealth v. Buehl, supra, but will also protect defendant's Sixth Amendment right to a fair trial.*fn5 Both the prosecutor and defense counsel may, on a showing of good cause,*fn6 have the affidavits in support of the arrest warrants sealed. Experience may show that the trial court's order should be modified to provide specific time limits, for example, that upon issuance of an arrest warrant, the affidavits in support of the warrant shall remain sealed for 60 hours after defense counsel has been appointed or retained, but shall be open to public scrutiny if within that period neither the prosecutor nor defense counsel files a certified statement setting forth reasons why the affidavits should remain sealed. We think, however, that we may leave such possible modification to the discretion of the trial court, which has demonstrated its awareness of the necessity to protect both the public's and the defendant's rights.
*fn* Honorable KENDALL H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.