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Commonwealth v. Reese

Superior Court of Pennsylvania

February 27, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
PATRICK R. REESE, Appellant

         Appeal from the Judgment of Sentence March 3, 2016 in the Court of Common Pleas of Montgomery County Criminal Division at No.: CP-46-MD-0001992-2015

          BEFORE: DUBOW, J., RANSOM, J., and PLATT, J. [*]

          OPINION

          PLATT, J.

         Appellant, Patrick R. Reese, appeals from the judgment of sentence imposed following his bench conviction of one count of indirect criminal contempt.[1] We affirm.

         We take the relevant facts and procedural history of this case from our independent review of the certified record. By way of background, Appellant was a Senior Supervisory Special Agent in the Executive Protective Detail for former Pennsylvania Attorney General Kathleen G. Kane. Appellant's responsibilities included the transportation and security of Ms. Kane.

         This case arises from Appellant's violation of a protective order issued in 2014, in connection with the 35th Statewide Investigating Grand Jury. The Grand Jury examined the improper release of secret information from a prior 2009 grand jury, which included an inquiry into the finances of a former president of the Philadelphia branch of the National Association for the Advancement of Colored People (NAACP), the late J. Whyatt Mondesire. Information from the 2009 investigation was leaked to the Philadelphia Daily News, and was published in an article on June 6, 2014.

         During the course of the Grand Jury proceedings, the Office of the Attorney General of the Commonwealth of Pennsylvania (OAG) became a subject. The Honorable William R. Carpenter, in his capacity as the supervising judge of the Grand Jury, appointed Thomas E. Carluccio, Esquire, as Special Prosecutor to investigate and prosecute any illegal disclosures. On August 27, 2014, Judge Carpenter entered a protective order (Protective Order) in that matter, which stated as follows:

1. The Office of the Attorney General, except upon specific authorization by this Court or the Special Prosecutor, shall refrain from any involvement in, or access to, the investigative efforts of the Special Prosecutor.
2. Employees of the Office of the Attorney General shall refrain from engaging in, or soliciting, any act of obstruction, intimidation or retaliation against any witness summoned by the Grand Jury in the Special Prosecutor's investigation.
3. All transcripts of Grand Jury testimony shall be given only from the stenographer or their employer directly to the Supervising Judge and the Special Prosecutor, no copy shall be given to the Attorney General's Office.
4. Employees of the Office of the Attorney General shall not have access to transcripts of proceedings before the Grand Jury or Supervising Judge, exhibits, or other information pertaining to the Special Prosecutor's investigation. All information related to the work of the Special Prosecutor shall be kept in the custody of the Special Prosecutor and Supervising Judge.
5. Any person, including employees of the Office of the Attorney General, who engage in any act of obstruction, intimidation or retaliation against a witness summoned by the Grand Jury in the Special Prosecutor's investigation may be prosecuted as set forth in 18 Pa.C.S.[A.] § 4955 (relating to violation of orders) and any other applicable provisions of the Crimes Code of Pennsylvania.
6. The Special Prosecutor shall serve a copy of this Order upon the Office of the Attorney General.
7. The contents of this Order are sealed, and shall not be disclosed (either verbally or in writing) by the Office of the Attorney General to any individual outside of the Office of the Attorney General under penalty of contempt of court.

(Protective Order, 8/27/14, Exhibit C-1) (original emphases omitted; emphasis added).

         In response to a motion for reconsideration filed by the OAG, Judge Carpenter entered an order on September 17, 2014, modifying slightly the Protective Order. The amended order provided:

. . . [T]he following persons only shall be subject to Paragraphs 2 and 5 of said [Protective] Order:
1. Any person who has been sworn to Grand Jury secrecy.
2. Any person who has or had access to any Grand Jury information.
3. Any person associated with the J. Whyatt Mondesire proceedings and investigation.
Additionally, Paragraph 7 of said Order is modified to allow communication regarding the Order with counsel for a person subject to the Order, for purposes of appeal, and for any other, similar purpose required by law.

(Order, 9/17/14, Exhibit C-2).[2] The Grand Jury resulted in a presentment in December of 2014, recommending the filing of criminal charges against Ms. Kane, including perjury.

         On August 6, 2015, the Commonwealth filed a criminal complaint charging Appellant with indirect criminal contempt for violation of the Protective Order. The Commonwealth alleged that, from September through December 2014, Appellant conducted searches of the OAG's email archive system, eVault, (eVault System), directed at gaining access to information he was prohibited from knowing under the Protective Order.[3] Among the many searches that Appellant performed were searches of emails relating to Judge Carpenter and Special Prosecutor Carluccio.

         On October 15, 2015, Appellant filed an Omnibus Pre-trial Motion, requesting that Judge Carpenter recuse himself from this case, and that the court dismiss the criminal complaint filed against him. The court denied the motion, following oral argument, on October 27, 2015.

         The case proceeded to a bench trial on December 7, 2015, and the trial court found Appellant guilty of the above-stated offense. On March 3, 2016, the court sentenced Appellant to a term of not less than three nor more than six months' incarceration. This timely appeal followed.[4]

         Appellant raises the following issues for our review:

I. Whether the [trial] court erred in denying [Appellant's] ...

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