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Commonwealth v. Kane

Superior Court of Pennsylvania

May 25, 2018


          Appeal from the Judgment of Sentence October 24, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006239-2015, CP-46-CR-0008423-2015

          BEFORE: LAZARUS, J., OTT, J., and PLATT, [*] J.


          LAZARUS, J.

         Kathleen Granahan Kane appeals from the judgment of sentence, entered in the Court of Common Pleas of Montgomery County, imposed following her conviction for perjury, [1] false swearing in an official proceeding, [2] obstructing the administration of law, [3] official oppression, [4] and criminal conspiracy.[5] After careful review, we affirm, in part, on the basis of the trial court's well-reasoned opinion.

         This matter implicates constitutional issues, the rule of law, and a fundamental tenet underlying our legal system - the truth and sanctity of testimony under oath.[6]

         In 2016, Montgomery County District Attorney Risa V. Ferman charged former Attorney General Kane with breaking the laws she swore to uphold. Kane denied that she committed any unlawful transgressions and denounced her accusers' allegations and the subsequent investigation into her wrongdoing as infringements upon her constitutional rights. On August 17, 2016, Kane resigned the Office of the Attorney General ("OAG").

         Kane's charges stem from her indiscretions in an investigation of corruption allegations against Philadelphia politicians and her futile attempt to retaliate against a perceived political foe, former Deputy Attorney General ("DAG") Frank Fina, Esquire. The trial court ably chronicled the complex facts of Kane's case, and we hereby incorporate its recitation herein by reference. See Trial Court Opinion, 3/2/17, at 4-37. For context, we include a brief summary of the facts, which follows.

         On March 16, 2014, the Philadelphia Inquirer ("Inquirer") published a story entitled "Kane shut down sting that snared [Philadelphia] officials."[7] The story detailed the OAG's three-year investigation of Philadelphia Democrats, including four members of the City of Philadelphia state house delegation, [8]and a little-known lobbyist, Tyron B. Ali. The story, which chronicled the Ali investigation led by then DAG Fina, detailed the OAG's decision to drop fraud charges against the investigation's targets, secretly, under seal in Fall 2013. Kane regarded the Inquirer story as an attack on her and the OAG's integrity, and she suspected that Attorney Fina leaked the story to the Inquirer as retaliation for opening an internal review into his handling of the Jerry Sandusky child sexual abuse investigation. Concerned that the Criminal History Record Information Act ("CHRIA") might prohibit the OAG from publicly discussing details of the Ali investigation, Kane obtained a judicial order giving her permission to discuss limited facts about the investigation in anticipation of press inquiries.

         Only three days later, on March 19, 2014, Kane learned of a long-discontinued investigation into the alleged criminal activities of Jerome Mondesire, who led the Philadelphia branch of the NAACP for 17 years. Agent Michael Miletto and DAG William Davis worked with Attorney Fina on the Mondesire investigation, which began in 2008. At some point in 2009, DAG Davis sought Attorney Fina's permission to use an existing grand jury investigating a related matter to investigate Mondesire. DAG Davis prepared a legal memorandum summarizing the allegations against Mondesire ("Davis Memo"), which Attorney Fina later reviewed; the Davis Memo contained information learned from the aforementioned grand jury proceeding. DAG Davis and Attorney Fina memorialized correspondence discussing the Davis Memo in OAG emails, and Attorney Fina endorsed DAG Davis' findings. The OAG, however, never filed charges against Mondesire.

         The OAG based its allegations against Mondesire on events that occurred as early as 2004, and thus, there was a consensus among several OAG agents and attorneys that any subsequent prosecution of Mondesire was likely time-barred. However, Kane still feared that revelation of the discontinued Mondesire investigation would appear unseemly in light of the March 16, 2014 Inquirer story, and on March 22, 2014, she instructed then DAG Bruce Beemer to interview Agent Miletto to learn why the Mondesire investigation was discontinued. DAG Beemer quickly formed the legal opinion that the allegations against Mondesire were likely time barred. The time and circumstances of DAG Beemer's meeting with Agent Miletto led him to conclude the purpose of the meeting was not to determine if the OAG could still prosecute Mondesire, but to ascertain whether incompetence or corruption lay at the root of Attorney Fina's decision not to prosecute.

         Following Agent Miletto's meeting with DAG Beemer, an OAG agent demanded Agent Miletto provide yet another statement regarding the Mondesire investigation. The OAG agent audio recorded Agent Miletto's statement, over his objection, and an administrative assistant transcribed it in its entirety. The OAG agent delivered the sole copy of the Miletto transcript to Kane.

         The same day, Kane arranged for First Assistant Attorney General Adrian King to deliver the Davis Memo, copies of emails between Attorney Fina and Agent Miletto regarding the Davis Memo, and the Miletto transcript, to a friend and political consultant, Joshua Morrow. Kane intended for Morrow to leak the documents to the press. Eventually, Morrow redacted the documents to obscure most named persons, except Attorney Fina, and delivered them to Christopher Brennan, a reporter for the Philadelphia Daily News ("Daily News").

         On June 6, 2014, the Daily News published a story entitled "A.G. Kane examining '09 review of ousted NAACP leader's finances, "[9] which named Attorney Fina as the lead investigator. The Daily News story included content from the Miletto transcript and information derived from the grand jury investigation that uncovered the Mondesire allegations. Despite internal concern that the Daily News story was problematic and warranted an internal response, Kane declined to initiate an internal investigation or grand jury investigation to identify the source of the leak.

         On May 8, 2014, Attorney Fina, then working as a Philadelphia Assistant District Attorney, contacted the Honorable William R. Carpenter, who was presiding over the Thirty-Fifth Statewide Grand Jury. Attorney Fina told Judge Carpenter that he received information that someone had leaked confidential grand jury information to the press and that he wished to share information relevant to the leak. Attorney Fina also suggested Judge Carpenter appoint a special prosecutor to investigate the leak. In spring 2014, Judge Carpenter determined that reasonable grounds existed to believe that an investigation was necessary to corroborate allegations that grand jury secrecy had been compromised, and appointed Thomas E. Carluccio, Esquire, to investigate and prosecute any illegal disclosures of grand jury matters.

         Kane attempted to frustrate the grand jurying investigation by filing a quo warranto action[10] challenging: (1) Judge Carpenter's statutory authority to appoint Attorney Carluccio as Special Prosecutor for an investigating grand jury; and (2) whether the power to investigate and prosecute was reposed solely in the executive branch. Judge Carpenter denied Kane's quo warranto action by court order dated May 29, 2014. Our Supreme Court affirmed Judge Carpenter's order denying Kane quo warranto relief on March 31, 2015. In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 637 (Pa. 2015) (supervising judge of grand jury has inherent authority to appoint special prosecutor where there are colorable allegations that sanctity of grand jury has been breached by attorney for Commonwealth and that allegations warrant investigation). See also In re Dauphin County Fourth Investigating Grand Jury, 19 A.3d 491, 503-504 (Pa. 2011) (when colorable allegations or indications that sanctity of grand jury process has been breached and those allegations warrant investigation, appointment of special prosecutor to conduct such investigation is appropriate).

         In August 2014, in the midst of Special Prosecutor Carluccio's probe, Kane met with Morrow to discuss the grand jury investigation into the Mondesire leak. Morrow assured Kane that if subpoenaed by the grand jury, he would testify that he leaked the documents to the Daily News on his own initiative, and not at Kane's direction. Kane and Morrow met again in October 2014, at which time Morrow reiterated this assurance.

         On November 17, 2014, Kane testified before the Thirty-Fifth Statewide Investigating Grand Jury. Kane falsely denied, numerous times, having facilitated the leak of the Mondesire investigation to the Daily News. Kane also denied knowing whether the June 6, 2014 Daily News Mondesire story was in any way related to or a response to the March 16, 2014 Inquirer story chronicling the Ali investigation. When shown the Davis Memo and accompanying documents, Kane denied having ever seen them before and denied having discussed the Mondesire investigation with Morrow. Kane also stated she had not sworn an oath of secrecy regarding the grand jury investigation that uncovered the Mondesire allegations. In response, the Commonwealth produced, among other evidence, a copy of the notarized secrecy oath she signed on her first day in office, regarding the first through thirty-second statewide investigative grand juries, including the Mondesire grand jury.

         On December 19, 2014, the Thirty-Fifth Statewide Investigating Grand Jury issued a presentment recommending that the Commonwealth charge Kane with perjury, false swearing, abuse of office/official oppression, obstructing the administration of law or other governmental function, and contempt of court. The same day, Judge Carpenter, by court order, accepted the presentment. On August 6, 2015, following an investigation conducted by the Montgomery County District Attorney's Office, then-District Attorney Ferman filed a criminal complaint charging Kane with perjury, false swearing, two counts of obstructing administration of law or other governmental functions, additional counts of perjury, and two counts of criminal conspiracy. On October 1, 2015, District Attorney Ferman filed additional counts of perjury, false swearing, and obstructing administration of law or other governmental function.[11]

         Following a seven-day trial, a jury found Kane guilty of all counts. On October 24, 2016, the Honorable Wendy Demchick-Alloy sentenced Kane to an aggregate sentence of 10 to 23 months' incarceration followed by eight years' probation. This timely appeal followed. Both Kane and the trial court have complied with Pa.R.A.P. 1925. On appeal, Kane raises the following issues for our review:

1. Whether the lower court erred in denying [Kane's] motion asking that all judges on the Montgomery Court of Common Pleas be recused from participation in her case.
2. Whether the lower court erred in denying the motion filed by [Kane] to suppress testimony and other evidence presented against her to the[T]hirty-[F]fth statewide investigating grand jury, and to quash the charges filed against her as recommended in the presentment of that grand jury since the challenged evidence was illegally and unconstitutionally obtained.
3. Whether the lower court erred in limiting [Kane's] right to present a defense when it granted the Commonwealth's motion in limine to exclude any reference at trial to pornography found in the office of attorney general [OAG] emails of former OAG attorneys Frank Fina and Marc Costanzo, and when, in sustaining a Commonwealth objection to the defense opening address to the jury, it precluded reliance by the defense upon "other issues involving other cases[.]"
4. Whether the lower court erred in denying [Kane's] motion to quash for selective and vindictive prosecution.
5.Whether the lower court erred in denying [] Kane's request that the jury in her case be instructed that grand jury secrecy applies only to matters actually occurring before the grand jury.

         Brief of Appellant, at 1-3.

         Kane first claims that the trial court erred in denying her motion to recuse all judges of the Montgomery Court of Common Pleas. Specifically, Kane argues that three judges of the Montgomery County Court of Common Pleas[12] had significant connections with the investigation and prosecution of her case, which constituted conflicts, and that the trial court should have imputed said conflicts to all of the judges sitting on the Montgomery County Court of Common Pleas.

         As a general rule, when circumstances arise during the course of trial raising questions of the trial judge's bias or impartiality, it is the duty of the party, who asserts that a judge should be disqualified, to allege by petition the bias, prejudice, or unfairness necessitating recusal. Commonwealth v. Perry, 551 A.2d 1080, 1082 (Pa. Super. 1988) (citations omitted).

There is a presumption that judges of this Commonwealth are "honorable, fair and competent, " In re Lokuta, 11 A.3d [427, 453 (Pa. 2011)] (citation omitted), and, when confronted with a recusal demand, are able to determine whether they can rule "in an impartial manner, free of personal bias or interest in the outcome." Arnold v. Arnold, 847 A.2d 674, 680 (Pa. Super. 2004) (citation omitted). If the judge determines he or she can be impartial, "the judge must then decide whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make." Id. at 680-81 ...

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