Submitted: February 3, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MICHAEL H.
WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior
Butler, an inmate at the State Correctional Institution at
Frackville (Requester), appeals from an order of the Court of
Common Pleas of Dauphin County (trial court) upholding the
final determination of the District Attorney of Dauphin
County (DA Office) granting access to search warrants sought
pursuant to the Right-to-Know Law (RTKL). Although the DA
Office initially denied access under the criminal
investigative exception in Section 708(b)(16) of the RTKL, 65
P.S. §67.708(b)(16), the appeals officer reversed and
directed disclosure. Nevertheless, Requester appealed to the
trial court, challenging the completeness of the disclosure,
and failure to certify under Section 904 of the RTKL, 65 P.S.
§67.904. Requester also claims the trial judge erred in
not recusing himself under the Code of Judicial Conduct.
Discerning no error below, we affirm.
September 15, 2015, Requester submitted a request to the DA
Office seeking: "ALL search warrants and
inventory list issued under the Police Incident number 99-256
in the matter of Commonwealth v. Cleveland Butler,
CP-22-0002929 and CP-22-CR-002930-1999." Certified
Record (C.R.), Item No. 5, Ex. A (Request) (emphasis in
original). In the Request, he specified certified copies.
Id. The DA Office's open records officer denied
access under the criminal investigative exception, Section
708(b)(16) of the RTKL, and the exception as to a minor's
identity, Section 708(b)(30) of the RTKL, 65 P.S.
§67.708(b)(30). Requester appealed.
appeals officer for the DA Office granted the appeal and
directed disclosure. He concluded the search warrants and
inventory lists were not criminal investigative materials,
and were public under the Pennsylvania Rules of Criminal
Procedure. Although Section 708(b)(30) of the RTKL protects a
minor's name, the appeals officer explained redaction was
unnecessary when she testified in open court. As a result,
the DA Office disclosed responsive records; however, it did
not certify them.
Requester filed a petition for review in the trial court,
asserting his entitlement to a certification of the records
or other assurance of their completeness. He also complained
the response did not explain how the records were obtained.
In addition, he asked the trial court to issue a subpoena for
additional responsive records.
Office filed an answer to the petition, asserting it complied
with its duties under the RTKL. The answer admitted the DA
Office did not certify the records. C.R., Item No. 8, Answer
at ¶6 ("this office does not 'certify'
documents"). However, in the answer the DA Office
affirmed that the copies of records disclosed represented
"true copies of the documents [the deputy DA] found in
the boxes [related to the 16-year old criminal case]."
the trial court denied Requester's petition, concluding
the DA Office met its obligations under the RTKL by providing
copies of the records. The trial court noted that
certification under Section 904 is not required under the
RTKL, and may be obtained only after paying the appropriate
fee under Section 1307(c) of the RTKL, 65 P.S.
§67.1307(c). The trial court reasoned the DA Office was
under no duty to provide an affidavit regarding the records
provided. Tr. Ct., Slip Op., 7/7/16, at 4.
filed a notice of appeal on August 7, 2016. He did not seek
reconsideration of the trial court's order.
directed by the trial court, Requester filed a concise
statement of the errors complained of on appeal. Therein, he
claimed the Honorable John F. Cherry (trial judge) erred in
not recusing himself when he was the DA at the time of
Requester's arrest, and so had significant involvement in
the criminal case to which the Request related. He complains
that by presiding over his RTKL appeal, the trial judge
violated Requester's due process rights. Requester also
contends the investigating detective's failure to follow
Pa. R.Crim.P. 209 denied public access to judicial records.
noting that Requester did not raise or preserve any of the
errors set forth in his Rule 1925(b) Statement, the trial
court relied on its earlier opinion. See Tr. Ct.,
Slip Op., 10/31/16 (Rule 1925(a) Opinion).
appeal,  Requester argues the trial court violated
his constitutional due process rights when the trial judge
served as a prosecutor for Requester's criminal case that
is the subject of the Request. He also contends the DA Office
did not comply with the RTKL because he was entitled to a
certified copy of the records under Section 904 of the RTKL,
65 P.S. §67.904. He further asserts the DA Office had a
duty to submit an affidavit by the investigating
detective regarding the search conducted for responsive
records, and the completeness of the
Due Process & Disqualification
challenges the process before the trial judge because he was
the DA when the DA Office prosecuted his criminal case in
1999. He argues the trial judge should have disqualified
himself from hearing the RTKL appeal under Canon 2.11,
Pennsylvania Rules of Judicial Conduct, based on his bias and
personal involvement in the criminal ...