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decided: August 25, 1987.


Appeal by Allowance from the Order of the Superior Court of Pennsylvania, Dated January 7, 1986, Denying Reargument in No. 1245 Philadelphia, 1984 of Panel Opinion Dated October 25, 1985, Affirming the Order of Court of Common Pleas of Lehigh County-Criminal Division, at Nos. 380, 381, 382 of 1984. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., joins the Majority Opinion and filed a concurring opinion. Nix, C.j., filed a concurring opinion joined by Hutchinson, J. McDermott, J., concurs in the result only.

Author: Flaherty

[ 515 Pa. Page 503]


This is an appeal from an order of the Superior Court which affirmed an order of the Court of Common Pleas of Lehigh County setting forth standards governing public access to arrest warrant affidavits. Commonwealth v. Fenstermaker, 348 Pa. Super. 230, 502 A.2d 181 (1985). The issue of the extent of permissible public access to such affidavits arose following the arrest of Timothy S. Fenstermaker, Edward Grey, and Brent A. Smith, all of whom were arrested pursuant to warrants issued by a magistrate in connection with charges of homicide, rape, indecent assault, conspiracy, and underage drinking. The arrest warrants were issued on the basis of affidavits of probable cause executed by a police detective.

[ 515 Pa. Page 504]

After arraignment of the accused, but before preliminary hearings had commenced, Call-Chronicle Newspapers, Inc. (hereinafter Call-Chronicle) presented to the Court of Common Pleas a motion for leave to intervene*fn1 in the case and a motion for permission to inspect and copy the affidavits of probable cause upon which the arrest warrants had been issued. In the latter motion, the Call-Chronicle averred that the magistrate had denied the paper's request to inspect and copy the affidavits.

The motion for leave to intervene was granted, and, with respect to the motion for leave to inspect and copy, an order was entered which recognized a presumptive right of public access to affidavits of probable cause but which permitted such affidavits to be sealed against inspection under limited circumstances. Specifically, the Court of Common Pleas held that a magistrate must permit inspection of affidavits of probable cause unless there has been filed by the District Attorney or defense counsel a certified statement setting forth reasons that public inspection should not be allowed. Such asserted reasons might include claims that prejudice to the defendant or to other persons would result from public dissemination of the document. The Court of Common Pleas further held that, in the event that the requisite certified statement has been filed by the District Attorney or defense counsel, the magistrate shall seal the affidavit of

[ 515 Pa. Page 505]

    probable cause from public inspection, and that any interested person may appeal to the Court of Common Pleas for a hearing and determination as to whether, under the circumstances of a given case, rights of public access outweigh the rights of the defendant or other individuals threatened by public disclosure. In making that determination, the Court of Common Pleas noted, the affidavit can remain sealed only if other reasonable means are unavailable to protect the interests threatened by disclosure, and, if the prejudicial or damaging information has by then become public, or if the danger of prejudice has since passed, the continued sealing of the document would be unwarranted. The Court of Common Pleas further noted that, if disclosure would result in pretrial publicity, it cannot be assumed that such publicity would automatically render a fair trial impossible.

An appeal was taken to the Superior Court, whereupon the decision of the Court of Common Pleas was affirmed. The Superior Court held that the lower court's decision represented an appropriate accommodation of the respective rights of defendants under the fair trial guarantees of the Sixth Amendment and the rights of the public to gain access to information under the First Amendment. The instant appeal ensued.

It is to be noted at the outset that there has been no assertion in the instant case that arrest warrant affidavits should be open to public inspection prior to an actual arrest having been made. The issue presented, therefore, concerns only access to affidavits supporting arrest warrants that have already been executed. The Commonwealth contends that affidavits of probable cause for arrest frequently contain information that could be prejudicial to a defendant's right to a fair trial, and, thus, that all such affidavits should be closed to public inspection until such time as the guilt determining process has been completed. We do not agree.

The importance of the public having an opportunity to observe the functioning of the criminal justice system has

[ 515 Pa. Page 506]

    long been recognized in our courts. Criminal trials in the United States have, by historical tradition, and under the First Amendment, been deemed presumptively open to public scrutiny and this ". . . presumption of openness inheres in the very nature of the criminal trial under our system of justice." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973, 987 (1980). As stated by Justice Hugo Black in In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 504, 92 L.Ed. 682 (1948), "This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial."

Indeed, in this Commonwealth, the principle of openness is based not only upon common law tradition, and upon the First Amendment of the Constitution of the United States, but also upon Article I, sections 9 and 11 of the Pennsylvania Constitution. Article I, section 9 provides, "In all criminal prosecutions the accused hath a right to . . . a speedy public trial . . .," and Article I, section 11 states, "All courts shall be open." See Commonwealth v. Contakos, 499 Pa. 340, 344, 453 A.2d 578, 580 (1982) (plurality opinion, with two Justices concurring in the result) ("We are mindful . . . of our virtually unbroken history of public trials and openness in criminal trials."; trial court erred in excluding public from courtroom during portions of criminal trial proceedings).

The nature of criminal law is such that it punishes offenses against the collective public, Commonwealth v. Bovaird, 373 Pa. 47, 55, 95 A.2d 173, 176 (1953), and, accordingly, members of the public have an interest in observing criminal justice processes to be assured that offenses perpetrated against them are dealt with in a manner that is fair to their interests, and fair to the interests of the accused. In Contakos, 499 Pa. at 344, 453 A.2d ...

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