G.M. Martinez v. City of Reading Police Dept. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gilbert M. Martinez, :
Appellant :
: No. 1208 C.D. 2021
v. : Submitted: August 5, 2022
:
City of Reading Police Department :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION BY
JUDGE DUMAS FILED: February 8, 2023
Gilbert M. Martinez (Martinez) has appealed pro se from the order
entered by the Court of Common Pleas of Berks County (trial court) that dismissed
his petition to obtain police body camera footage from the City of Reading Police
Department (the Department) pursuant to Act 22 of 20171 and his petition seeking
in forma pauperis (IFP) status. The trial court dismissed these petitions as moot
following Martinez’s acquittal of related summary harassment charges. After
careful review, we affirm the trial court’s order.
I. BACKGROUND2
Martinez was charged with summary harassment3 following an incident
that occurred on December 28, 2020. Subsequently, Martinez filed a request with
the City of Reading (the City) and the Department pursuant to the Right-to-Know
Law4 (RTKL; the RTKL request), seeking copies of the police reports and body
1
Act of July 7, 2017, P.L. 304. Act 22, which is codified at various sections of Titles 18
and 42 of the Pennsylvania consolidated statutes, creates an exclusive means of accessing audio
and video recordings created by law enforcement. 42 Pa. C.S. § 67A02.
2
Unless otherwise noted, we derive this statement of facts and procedural history from the
trial court’s opinion, which is supported by the record. See Trial Ct. Op., 1/14/22, at 1-5.
3
18 Pa. C.S. § 2709.
4
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
camera footage of the incident. See Pet. for Judicial Rev., 3/8/21, at Ex. A.5 The
City denied the RTKL request, asserting that these records were exempt from
disclosure as agency records related to a criminal or noncriminal investigation. Id.6
Martinez resubmitted his application, challenging the City’s denial, but the City
instructed him to follow the specific procedure for requesting police body camera
footage. Id.7
On February 8, 2021, Martinez made a written request for the police
body camera footage of the incident from the City and the Department pursuant to
Act 22 (the Act 22 request). The Department did not issue a formal denial of
Martinez’s Act 22 request. See id.8 Nevertheless, the request was denied by
operation of law on March 10, 2021.9
Prior to the denial of his request, on March 8, 2021, Martinez filed a
petition for judicial review in the trial court, requesting (1) that a subpoena issue to
the Department to produce the body camera footage and (2) IFP status. See id. at
5
Attached to Martinez’s petition are several emails with a City of Reading Law Department
Paralegal regarding his RTKL request, RTK 21-0212-1. Pet. for Judicial Rev., 3/8/21, at Ex. A.
Martinez’s original RTKL request does not appear of record. Id.
6
See Section 708(b)(16)-(17) of the RTKL, 65 P.S. § 67.708(b)(16)-(17).
7
See 42 Pa. C.S. § 67A03 (relating to requests for law enforcement audio recordings or
video recordings).
8
On February 16, 2021, the City sent Martinez an email again denying his RTKL request
at RTK 21-0212-1. See Pet. for Judicial Rev., 3/8/21, at Ex. A. However, it does not appear that
this denial was addressed to Martinez’s Act 22 request, as the email once again cited Section
708(b)(16) and (17) of the RKTL and directed Martinez to file a request pursuant to Act 22. Id.
Further, the City solicitor admitted that a response to the Act 22 request was not filed. Notes of
Testimony (N.T.) Hr’g, 7/2/21, at 5.
9
See 42 Pa. C.S. § 67A05.
2
3.10, 11 Martinez stated specifically that he needed the footage for evidence at his
summary hearing before the magisterial district judge (MDJ). Id.
On July 2, 2021, the Department filed an initial response to the petition,
averring that the matter was moot because the video and audio file Martinez
requested had already been erased by the City’s electronic data storage system. See
Resp. to Pet., 7/2/21, at 1-2.12 Later that day, the trial court held a brief hearing.
Rather than ruling on the petition, the trial court transferred the matter to another
judge of the same court. N.T. Hr’g, 7/2/21, at 11-12.
On July 7, 2021, Martinez appeared before the MDJ for a hearing on
the summary harassment charge. At the conclusion of the hearing, the MDJ
acquitted Martinez of the charge and dismissed the case.
On October 8, 2021, the trial court entered an order dismissing
Martinez’s petition as moot because he had been acquitted of the harassment charge.
See Order, 10/8/21, at 1. Additionally, the trial court dismissed Martinez’s request
for IFP status as moot. Id.
Martinez timely filed a notice of appeal to this Court and
simultaneously filed a “Statement of Issues on Appeal.” The trial court treated this
filing as his Pa.R.A.P. 1925(b) statement and issued an opinion in response.
10
See 42 Pa. C.S. § 67A06 (if a request under Section 67A03 is denied, the requester may
file a petition for judicial review in the court of common pleas with jurisdiction within 30 days of
the date of the denial).
We note further that, although premature, the trial court accepted the petition as timely
filed. See, e.g., Pa. R.A.P. 905(a)(5) (providing that a premature notice of appeal is deemed timely
filed after the entry of an appealable order and “on the day thereof”).
11
Martinez filed several petitions for mandamus against various magisterial district judges
(MDJs) who had denied his request for similar subpoenas. See N.T. Hr’g, 7/2/21, at 6-7. Martinez
did not appeal from the dismissal of these petitions, and they are not at issue in the instant appeal.
12
The Department attached emails explaining the deletion and indicating that the City
planned to change its policies to conform with the requirements of Act 22. See Resp. to Pet.,
7/21/21, at Ex. A.
3
II. ISSUE
Martinez asserts that his acquittal of summary criminal charges did not
render moot his Act 22 request. Martinez’s Br. at 7. According to Martinez, the
Department’s conduct in this case deprived him of exculpatory evidence. See id. at
9. This conduct, Martinez baldly suggests, is capable of repetition yet likely to evade
review and implicates important public interests. See id. He therefore requests
sanctions, costs, and attorney’s fees as compensation. Id. at 10.13
In response, the Department asserts that Martinez’s request is moot
because the requested footage had been erased pursuant to its record retention policy
in place at the time and because the charges against him had been dismissed. See
Department’s Br. at 6-7.14 Further, the Department contends that no exceptions to
the mootness doctrine apply because the matter no longer affects Martinez; the
failure to preserve the recording was an error and not part of a policy capable of
repetition and effect on the public without undergoing judicial review; and there is
no strong issue of public interest to be examined. See id. at 7.
13
Martinez’s argument is difficult to parse and includes assertions that are irrelevant to his
claim on appeal. See Martinez’s Br. at 7-10. For example, Martinez suggests that the trial court
erred because his criminal charges were still active on July 2, 2021, when the court continued this
matter. See id. at 7. And yet, when the court actually ruled on his petition, on October 8, 2021,
Martinez had been acquitted of summary harassment. Martinez also suggests that the trial court
was “procedurally obligated” to enter judgment on his behalf. See id. at 8 (citing several rules of
procedure relevant to civil pleadings but irrelevant in this context). We caution Martinez that
while this Court liberally construes pro se pleadings, this Court cannot act as an appellant’s counsel
and develop his arguments for him. See C.M. v. Pa. State Police, 269 A.3d 1280, 1285 (Pa.
Cmwlth. 2022) (stating that this Court is “neither obliged, nor even particularly equipped, to
develop an argument for a party. To do so places the Court in the conflicting roles of advocate
and neutral arbiter” (citation omitted)); Finfinger v. Unemployment Comp. Bd. of Rev., 854 A.2d
636, 639 n.5 (Pa. Cmwlth. 2004) (acknowledging “the frequent necessity, and incumbent
difficulty, of pro se representation by unemployed claimants . . . [and noting that], it is axiomatic
that a layperson who chooses to represent himself in a legal proceeding must assume the risk that
his lack of expertise and legal training may prove to be his undoing” (citation omitted)).
14
The Department has since amended its policy, now “requiring preservation of any
bodycam footage that is subject to a[n Act 22] request.” Am. Resp. to Pet., 7/6/21, ¶ 13.
4
III. ANALYSIS15
A. Act 22 Requests Generally
Act 22 provides a means for citizens to request audio or video
recordings made by a law enforcement agency. 42 Pa. C.S. § 67A02.16 Upon receipt
of an Act 22 request, the law enforcement agency shall provide the recording unless
it determines that it contains potential evidence in a criminal matter, that the
information related to an investigation, or that reasonable redaction of the recording
would not safeguard the evidence or information. See 42 Pa. C.S. § 67A04(a).17 If
a request is denied, the requester may file a petition for judicial review in the court
of common pleas. 42 Pa. C.S. § 67A06.
The common pleas court may grant the petition if it determines that the
petitioner has established two elements by a preponderance of the evidence. First,
the petitioner must establish that the denial was not to safeguard criminal evidence,
or information related to an investigation, or that such justification was arbitrary or
15
While there is not case law specifically setting out this Court’s standard of review for
the trial court’s denial of an Act 22 request and petition for review, in RTKL appeals in which this
Court sits as the appellate court, our review of the trial court’s decision determines whether the
findings of fact are supported by substantial evidence or whether the trial court committed an error
of law or an abuse of discretion in reaching its decision. In re Right to Know Law Request Served
on Venango Cnty.’s Tourism Promotion Agency & Lead Econ. Dev. Agency, 83 A.3d 1101, 1104
n.3 (Pa. Cmwlth. 2014).
16
Act 22 serves a similar purpose to the RTKL, which is remedial in nature and “designed
to promote access to official government information in order to prohibit secrets, scrutinize the
actions of public officials, and make public officials accountable for their actions.” Pa. State
Police v. McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014) (en banc).
17
Subsection (a) states that “[e]xcept as provided in this section, if a law enforcement
agency determines that an audio recording or video recording contains potential evidence in a
criminal matter, information pertaining to an investigation or a matter in which a criminal charge
has been filed, confidential information or victim information and the reasonable redaction of the
audio or video recording would not safeguard potential evidence, information pertaining to an
investigation, confidential information or victim information, the law enforcement agency shall
deny the request in writing. The written denial shall state that reasonable redaction of the audio
recording or video recording will not safeguard potential evidence, information pertaining to an
investigation, confidential information or victim information.” 42 Pa. C.S. § 67A04(a).
5
capricious. Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 183 n.13 (Pa.
Cmwlth. 2019); 42 Pa. C.S. §§ 67A04, 67A06(e). Second, the petitioner must
establish that “[t]he public interest in disclosure of the audio recording or video
recording or the interest of the petitioner outweighs the interests of the
Commonwealth, the law enforcement agency or an individual’s interest in
nondisclosure.” Borough of Pottstown, 202 A.3d at 183 n.13 (quoting 42 Pa. C.S. §
67A06(e)(2)).
Here, the trial court did not address whether Martinez had established
the required elements. See generally Trial Ct. Op., 1/14/22. Rather, the trial court
concluded that Martinez’s Act 22 request was moot due to his acquittal in the
underlying criminal charges. See id. at 6. Thus, we turn to Martinez’s claim on
appeal.18
B. Martinez’s Act 22 Claim is Moot
Martinez challenges the trial court’s determination that his Act 22 claim
was moot. Martinez’s Br. at 7. “The mootness doctrine requires an actual case or
controversy to exist at all stages.” Dep’t of Env’t Prot. v. Cromwell Twp.,
Huntingdon Cnty., 32 A.3d 639, 651 (Pa. 2011). The existence of a case or
controversy requires (1) a legal controversy that is real and not hypothetical; (2) a
legal controversy that affects an individual in a concrete manner so as to provide the
factual predicate for a reasoned adjudication; and finally, (3) a legal controversy with
18
There is little doubt that the trial court could have denied his petition on the merits. The
purpose of Act 22 is not to grant criminal defendants access to potentially exculpatory criminal
evidence. See 42 Pa. C.S. § 67A04 (providing that a law enforcement agency may deny requests
for potential evidence in a criminal matter if it may not be reasonably redacted). Rather, the proper
method of obtaining exculpatory criminal evidence is through pretrial discovery. See Pa.R.Crim.P.
573(B) (providing that in all court cases, the Commonwealth must disclose any evidence favorable
to the accused that is material either to guilt or to punishment).
Martinez’s stated purpose for his request was that the video would be “used in a hearing
before [a] magistrate [sic] judge.” See Act 22 Request, 2/8/21, at 1. In short, Martinez sought the
footage as exculpatory evidence in his criminal trial. Thus, Martinez’s Act 22 request was
improper and would not pass judicial review on the merits.
6
sufficiently adverse parties so as to sharpen the issues for judicial resolution. See
California Borough v. Rothey, 185 A.3d 456, 463 (Pa. Cmwlth. 2018) (citation
omitted). Parties must continue to have “a personal stake in the outcome” of the
suit. Mistich v. Pa. Bd. of Prob. & Parole, 863 A.2d 116, 119 (Pa. Cmwlth. 2004).
“An exception to mootness will be found where [the] conduct complained of is
capable of repetition yet likely to evade judicial review, where the case involves
issues of great public importance or where one party will suffer a detriment without
the court’s decision.” Rothey, 185 A.3d at 463 (citation omitted).
In the instant case, the trial court dismissed Martinez’s petition as moot
because he had been acquitted of the criminal charges against him. Trial Ct. Op.,
1/14/22, at 6. The trial court observed that Martinez had requested the video footage
for the sole purpose of his upcoming criminal trial and reasoned that, once the MDJ
had acquitted Martinez of the harassment charges, there was no longer a controversy.
Id. Specifically, the court noted that, “[i]n light of the not [] guilty verdict . . . and
in consideration of the fact that [Martinez] specifically was requesting the body
camera footage for the sole purpose of defending himself at his summary harassment
trial,” the request was moot once the charges were dismissed. Id. We agree. By the
time the trial court disposed of Martinez’s petition for judicial review in October
2021, Martinez had not had active criminal charges against him for over three
months. Accordingly, Martinez no longer had a personal stake in the outcome of his
request, and the trial court appropriately dismissed his petition as moot. See Mistich,
863 A.2d at 119.
Additionally, no exceptions to the mootness doctrine apply to this case.
Martinez will not suffer a detriment without a court decision on the merits, as he was
acquitted of the charges for which he originally requested the body camera footage.
Further, we discern no issue of great public importance for two reasons. First, as
noted supra, Martinez wrongly sought criminal discovery via his Act 22 request.
7
Second, it appears that the Department has amended its record retention policies to
comply with Act 22. See Am. Resp. to Pet., 7/6/21, ¶ 13. Finally, in light of the
change in Department policy, the Department is unlikely to repeat this conduct. We
decline to recognize an exception to the mootness doctrine under these
circumstances. Accordingly, the trial court appropriately dismissed the petition as
moot. See Rothey, 185 A.3d at 463.
IV. CONCLUSION
For the foregoing reasons, we affirm the trial court’s order dismissing
Martinez’s petition for judicial review and IFP petition as moot.19
LORI A. DUMAS, Judge
19
In light of our holding, we need not address Martinez’s request for sanctions, costs, and
attorney’s fees. Nevertheless, we note that it is improper for Martinez to request attorney’s fees,
as he was representing himself in this matter. Further, Act 22 does not contemplate fines or
sanctions as a remedy for an erroneous denial. Finally, Martinez develops no discernible argument
regarding the trial court’s denial of his request for IFP status. See Appellant’s Br. at 7-10. Thus,
we deem such claim waived on appeal. See Pa. R.A.P. 2119(a); Browne v. Dep’t of Transp., 843
A.2d 429, 435 (Pa. Cmwlth. 2004). Absent waiver, Martinez’s claim for IFP status was rendered
moot upon his acquittal.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gilbert M. Martinez, :
Appellant :
: No. 1208 C.D. 2021
v. :
:
City of Reading Police Department :
ORDER
AND NOW, this 8th day of February, 2023, the October 8, 2021 order
of the Court of Common Pleas of Berks County is AFFIRMED.
LORI A. DUMAS, Judge