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Butler v. Dauphin County District Attorney's Office

Commonwealth Court of Pennsylvania

June 13, 2017

Cleveland Butler, Appellant
v.
Dauphin County District Attorney's Office

          Submitted: February 3, 2017

          BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.

          OPINION

          ROBERT SIMPSON, Judge.

         Cleveland 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)[1] 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).[2] 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.

         I. Background

         On 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.[3]

         The 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.

         Nevertheless, 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.

         The DA 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]." Id.

         Ultimately, 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.

         Requester filed a notice of appeal on August 7, 2016. He did not seek reconsideration of the trial court's order.

         As 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.

         After 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).

         II. Discussion

         On appeal, [4] 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 disclosure.[5]

         A. Due Process & Disqualification

         Requester 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 ...


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