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.
Granahan Kane appeals from the judgment of sentence, entered
in the Court of Common Pleas of Montgomery County, imposed
following her conviction for perjury,  false swearing in
an official proceeding,  obstructing the administration of law,
official oppression,  and criminal conspiracy. After careful
review, we affirm, in part, on the basis of the trial
court's well-reasoned opinion.
matter implicates constitutional issues, the rule of law, and
a fundamental tenet underlying our legal system - the truth
and sanctity of testimony under oath.
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
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.
March 16, 2014, the Philadelphia Inquirer
("Inquirer") published a story entitled "Kane
shut down sting that snared [Philadelphia]
officials." The story detailed the OAG's
three-year investigation of Philadelphia Democrats, including
four members of the City of Philadelphia state house
delegation, 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.
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.
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.
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.
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").
6, 2014, the Daily News published a story entitled "A.G.
Kane examining '09 review of ousted NAACP leader's
finances, " 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.
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.
attempted to frustrate the grand jurying investigation by
filing a quo warranto action 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).
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.
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
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
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
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.
of Appellant, at 1-3.
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 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.
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 ...