Appeal from the Order Entered June 26, 2012 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0002421-2011, CP-14-CR-0002422-2011
BEFORE: STEVENS, P.J., PANELLA, J., and COLVILLE, J. [*]
Karl E. Rominger, Esquire, appeals from the June 26, 2012 protective order entered in the Court of Common Pleas of Centre County, which was entered in response to the "leaking" of certain discovery evidence to the media following Gerald Sandusky's criminal jury trial. The order directed, inter alia, Gerald Sandusky's criminal defense attorneys to disclose to the trial judge and the supervising judge of the grand jury, under oath, "an inventory identifying all materials supplied to them in discovery and which was subsequently delivered to any member of the defense team…or to any other person or entity in order to assist th[e] [lower] court and the investigating grand jury to take appropriate action to address the interests sought to be protected by [the] order." After a careful review, we quash, in part, and affirm, in part.
The relevant facts and procedural history are as follows: On November 4, 2011, and December 7, 2011, following a grand jury investigation and presentment, the Pennsylvania Attorney General's Office filed criminal complaints against Gerald Sandusky charging him with fifty-two counts of offenses related to the sexual abuse of teenaged and pre-teenaged boys. Attorneys Joseph Amendola and Karl E. Rominger entered their appearance on behalf of Gerald Sandusky, and discovery ensued. Following the selection of a jury, testimony commenced in Gerald Sandusky's criminal case on June 11, 2012, and on June 22, 2012, the jury convicted Gerald Sandusky on forty-five counts related to the sexual abuse. The trial court revoked Gerald Sandusky's bail and ordered a pre-sentence investigation of Gerald Sandusky.
Meanwhile, on June 26, 2012, pursuant to a request made by the Attorney General's Office, the Honorable John M. Cleland, S.J., who presided over Gerald Sandusky's criminal jury trial, and the Honorable Barry F. Feudale, S.J., who was the supervising judge of the grand jury, held a hearing at which members of the Attorney General's Office, as well as Attorneys Amendola and Rominger, were present. The purpose of the hearing was to determine whether a protective order was required to assure the integrity of the ongoing criminal investigations, to protect the privacy of the victims, and to protect the privacy of others who may testify or had testified before the grand jury. During the hearing, Chief Deputy Attorney Frank G. Fina, Esquire, of the Attorney General's Office, indicated, in relevant part, the following:
The Office of Attorney General has been contacted by the media fairly extensively over the last two to three days with information as a result of the prosecution of [Gerald] Sandusky. This information has been getting increasingly detailed…[a]nd has involved information beyond that which was disclosed at the trial and during the proceedings.
This came to a head yesterday when the Office was contacted with specific information that the recording that was made of Matthew Sandusky's interview with the Office of Attorney General had been disclosed to the media and that they were going to play the recording publicly.
That, in fact, has now occurred this morning on The Today Show. Excerpts of the tape-recorded interview of Matthew Sandusky have been played publicly.
In addition, there have been questions asked of the Office of Attorney General regarding grand jury testimony that was given, both by witnesses who testified at trial and by individuals who did not testify at the trial. The Office of Attorney General has significant concerns about, first of all, the use of grand jury information disclosure to the public or to third parties, and this is a concern that the office had-that we have had pretrial and even during the trial.
I want to be specific. I'm talking about information that was not disclosed during the trial. There is no question that grand jury information disclosed at any criminal proceeding becomes public information and that the secrecy provisions, absent some extraordinary circumstance, would no longer apply.
I'm talking about information that was not disclosed as part of the proceedings in this case. As I think both Your Honors are aware, this concern was previously raised in at least one hearing and I believe in two hearings about the potential future use of discovery in grand jury materials in this case.
Additionally, the Commonwealth has concerns about items turned over under Rule 573 and/or under the Brady case, Maryland versus Brady, about the post-trial public disclosure of those materials which it's certainly a novel issue and one that I can't find any law on. But I'm aware of no provision or authority for the post-trial disclosure of discovery information of criminal investigative information that was not disclosed during the trial and yet is now being disclosed publicly. I would assert it's outside of the rules that apply to discovery and outside of the law to do so.
I think it also raises questions that are beyond the ken of this Court perhaps in conflict of interest and issues whether or not such disclosures are in the best interests of Mr. Sandusky, an odd situation for the Commonwealth to be in to be arguing the best interests of Mr. Sandusky but nonetheless one that I think may be appropriate to raise to the Courts at this time.
It's the Commonwealth's desire-obviously, it's ultimately up to the Courts, but it's the Commonwealth's desire that inquiry be made and about these disclosures, how they occurred, and some control, if possible, be asserted over any future disclosures of either the discovery information or grand jury information that are in the possession of the defense.
The Commonwealth is willing to provide and able to provide testimony, for example, about our procedures and the controls that we have had over the taped interview of Matthew Sandusky. We believe we can state very clearly who had copies, how our copies were maintained and secured.
N.T. 6/26/12 at 4-7.
Attorney Amendola responded to Chief Deputy Attorney Fina's comments, in relevant part, as follows:
I can tell both Your Honors I haven't shared the information I received from the Commonwealth with anybody. It's still in my files.
I know that-I know that I received the [oral] tape[d] disc from the Commonwealth concerning Matt[hew] Sandusky's [statement]. I gave that copy to Mr. Rominger to review because there was no [written] transcript. Even though the cover letter indicated there was a [written] transcript, Your Honors, there wasn't. I didn't have the time in the middle of trial to spend 45 minutes. I was working every night four or five, six hours getting ready for the next day. I asked Mr. Rominger to review that to see what Matt[hew] Sandusky said. Everything that I received from the Commonwealth, besides copies that went to people involved in the defense team, stayed with me. In fact, the files are still in my vehicle.
That's the best I can tell you. I didn't share it with anybody. Nobody got a copy of stuff publicly other than the people on the defense team from me.
N.T. 6/26/12 at 7-8.
As it pertained to Matthew Sandusky's grand jury testimony, Judge Feudale clarified on the record that he authorized the Commonwealth turning over to Gerald Sandusky's criminal defense team transcripts of grand jury testimony in advance of the witnesses' trial testimony rather than after the witnesses had testified. N.T. 6/26/12 at 8-9. Judge Feudale indicated that Matthew Sandusky had testified during the grand jury proceedings, and therefore, he would assume that the grand jury transcripts of his testimony were given to Gerald Sandusky's defense team prior to trial. N.T. 6/26/12 at 8-9. Chief Deputy Attorney Fina indicated, "Yes, Your Honor. We turned over the transcripts not only of the witnesses who testified at trial but the transcript of any witness who was a potential Commonwealth witness or defense witness." N.T. 6/26/12 at 9. He specifically stated, "That would have included the testimony of Matthew Sandusky." N.T. 6/26/12 at 9. Thus, Chief Deputy Attorney Fina indicated that, although Matthew Sandusky did not testify during the jury trial of his father, Gerald Sandusky, the transcript from his grand jury testimony was given to Attorneys Amendola and Rominger prior to trial. N.T. 6/26/12 at 9.
Attorney Amendola reiterated that he received from the Commonwealth the transcript of Matthew Sandusky's grand jury testimony; however, he informed the court he never reviewed it. N.T. 6/26/12 at 10. Attorney Amendola told Judges Cleland and Feudale that:
[A]ny reference I made to Matt[hew] Sandusky had to do with Matt[hew] Sandusky coming back to State College after he testified and telling his family that he had testified and that basically he told everybody that his father hadn't done anything with him. That's where I had my reference in terms of whatever Matt[hew] Sandusky-what I anticipated him saying. We were going to call him as our witness, Judge. Up until the Commonwealth had told us what it told us mid-trial, we had gone into the trial thinking that Matt[hew] was going to be a defense witness.
N.T. 6/26/12 at 10-11.
Attorney Amendola confirmed that Matthew Sandusky was listed as a defense witness; however, in the end, the defense did not call Matthew Sandusky to testify during his father's criminal trial. N.T. 6/26/12 at 10-11. Attorney Amendola denied that his intention to call Matthew Sandusky to testify, and his eventual decision not to do so, had anything to do with Matthew Sandusky's grand jury testimony since Attorney Amendola never reviewed such. N.T. 6/26/12 at 11.
Chief Deputy Attorney Fina informed the court that, on June 14, 2012, after testimony commenced in Gerald Sandusky's jury trial, Matthew Sandusky appeared at the Attorney General's Office and made a verbal statement. N.T. 6/26/12 at 12. Without counsel, Matthew Sandusky returned to the Attorney General's Office on June 15, 2012 and made a tape-recorded verbal statement. N.T. 6/26/12 at 12. Chief Deputy Attorney Fina represented that, "Within I think it was an hour of the tape being completed, it was driven over to Attorney Amendola." N.T. 6/26/12 at 13. The matter, which was played on The Today Show, was not related to Matthew Sandusky's grand jury testimony; but rather, it was the tape- recorded verbal statement Matthew Sandusky made to the Attorney General on June 15, 2012. N.T. 6/26/12 at 13. However, Chief Deputy Attorney Fina indicated that, inasmuch as the media had made references to Matthew Sandusky's grand jury testimony being inconsistent with his subsequent June 15, 2012 taped-statement, the Commonwealth had concerns about whether the transcript from Matthew Sandusky's grand jury ...