Kessler, M. v. Public Docs Pen Reg. & WireTaps , 180 A.3d 406 ( 2018 )

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2018 PA Super 34MELISSA KESSLER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PUBLIC DOCUMENTS PEN REGISTER : No. 1328 MDA 2017
AND WIRE TAPS :
Appeal from the Order Entered August 1, 2017
In the Court of Common Pleas of Clinton County Criminal Division at
No(s): CP-18-MD-0000128-2017
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
OPINION BY MURRAY, J.: FILED FEBRUARY 20, 2018
Melissa Kessler (“Appellant”) appeals pro se from the order denying
her motion to intervene and request to view sealed wiretap records in
another individual’s completed criminal case. We affirm. Additionally, the
Commonwealth has filed an application to stay this appeal and to remand to
the trial court. We deny the Commonwealth’s application.
The Commonwealth provides the following factual background. In
2003, Jeremy Baney entered a guilty plea to corrupt organizations and drug
offenses arising from his participation in a drug distribution ring. He was
sentenced to a maximum of 39 years’ incarceration and this Court affirmed
the judgment of sentence on direct appeal. Baney has since filed numerous
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unsuccessful Post Conviction Relief Act1 (“PCRA”) petitions and other
pleadings seeking relief.2 Pertinently, on June 9, 2017, the trial court denied
Baney’s motion to unseal sealed wiretap and pen register records
(collectively, the “wiretap records”) that were part of the criminal
investigation against him.3 Commonwealth’s Brief at 2-3.
Six days later, on June 15, 2017, Appellant filed a pro se “Motion to
Intervene with Rule to Show Cause Why the Public Judicial Documents
Should Not Be Copied and Reviewed.” Appellant sought permission to
review the same sealed wiretap records. Appellant was not a defendant in
any of the criminal cases related to the records, but argued that she, as a
member of the general public, had a constitutional right of access to public
judicial documents.4 Appellant further argued, in the alternative, that on
May 3, 2017, the trial court unsealed the records and allowed the
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1 42 Pa.C.S.A. §§ 9541-9546.
2 See, e.g., Commonwealth v. Baney, 744 MDA 2015 (judgment order
filed Dec. 15, 2015) (affirming dismissal of fourth PCRA petition as
untimely).
3 The Commonwealth also avers the wiretap records were provided to Baney
in pretrial discovery and Baney filed a suppression motion which addressed
the wiretap records. Appellant has filed a reply brief, asserting that the
Commonwealth has not proved that it provided the wiretap records to Baney
in discovery.
4 Appellant has not provided any explanation of her relationship to Baney or
the other defendants.
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Commonwealth to copy and take, without returning, the records, and thus
the records were no longer under seal. The Commonwealth filed a response
arguing that Appellant lacked standing to view the sealed records. On
August 1, 2017, without holding a hearing, the trial court denied Appellant’s
motion to intervene and her request to review the sealed records, finding
that she lacked standing because she had no direct or immediate interest in
the records.5 Appellant filed a timely notice of appeal and complied with the
court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained of
on appeal.
Appellant presents the following issues for review:
[1.] Are the pen registers and wiretaps that were used in the
investigation of 15 co-defendants and relied upon by [J]udges
Sanders and Saxton to make judicial decisions in those cases
considered public judicial records?
[2.] Are the pen registers and wiretaps still sealed when the time
period for keeping them sealed by statute has expired and
without a continued court order from the court sealing them
again, would render them unsealed, and after 15 years the
reason for initially sealing them has concluded?
[3.] Did [J]udge Miller abuse his discretion by denying
[Appellant’s] request to view and copy the pen registers and
wiretaps?
[4.] Did [J]udge Miller unseal the pen registers and wiretaps
when he opened the sealed envelope and allowed the Pa.
Attorney General’s Office to leaves [sic] the courthouse with a
copy and not return said copy as required by statute?
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5In its opinion, the trial court also referred to Baney’s request to unseal the
wiretap records and noted it had denied that request.
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[5.] Did the Attorney General’s Office meet its burden for why
the pen registers and wiretaps should not be given to [Appellant]
and copied?
[6.] If the pen registers and wiretaps are still sealed then did
[Appellant] meet her burden for why the records should be
unsealed?
Appellant’s Brief at 4 (unpaginated).
With respect to our jurisdiction, this Court has stated:
As a general rule, an appeal will not lie from an order denying
intervention, because such an order is not a final determination
of the claim made by the would-be intervenor. However, in
some cases, the order denying intervention has the practical
effect of denying relief to which the intervenor is entitled and
which he can obtain in no other way. Such an order will be
deemed final, and an appeal therefrom will be allowed. In order
to determine the appealability of an order denying intervention,
therefore, one must examine the ramifications of the order to
determine whether it constitutes a practical denial of relief to
which the petitioner for intervention is entitled and which he can
obtain in no other way.
Often, it is necessary to examine the merits of an appellant’s
petition in order to determine whether the court’s order results
in a practical denial of relief to which the appellant is entitled but
which can be secured in no other way.
First Commonwealth Bank v. Heller, 863 A.2d 1153, 1155 (Pa. Super.
2004) (citation omitted).
Here, the trial court’s order dismissing Appellant’s motion to intervene
and denying her request to review the sealed records had the practical effect
of denying her the requested relief: access to the sealed records.
Accordingly, we deem the court’s order to be final for purposes of appeal.
See id.-4-
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We address Appellant’s first, third, and fifth issues together. First, she
avers the sealed wiretap records are “public judicial records” because they
were relied upon by the magistrate and trial judges in rendering “125 judicial
decisions” in the criminal cases of “15 co-defendants,” including Baney.
Appellant’s Brief at 19-20 (unpaginated). Appellant contends she, as a
member of the general public, has both a common law right and
constitutional right to access these “public judicial records,” which, she adds,
were based on illegal wiretapping. Id. at 5, 20, 23 (citing Goldstein v.
Forbes, 260 F.3d 183, 192 (3d. Cir. 2001) (it is well-settled that there
exists, in both criminal and civil cases, a common law public right of access
to judicial proceedings and records); Commonwealth v. Long, 922 A.2d
892, 897 n.6 (Pa. 2007) (Pennsylvania common law provides the right of
public access to inspect and copy criminal case documents, and the United
States Supreme Court has spoken of First Amendment right to access
judicial proceedings and “information” contained therein).
In her third issue, Appellant initially alleges the trial court failed to
state a reason for denying her request to review the records, but then
asserts that the court unreasonably provided a “boiler plate denial based
upon lack of standing.” Appellant’s Brief at 35-36. Appellant contends
neither of the cases relied upon by the trial court, Commonwealth ex rel.
Judicial Conduct Board v. Griffin, 918 A.2d 87 (Pa. 2007), and Pa.
Gaming Control Bd. V. City Council of Philadelphia, 928 A.2d 1255 (Pa.
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2007), is on point or relevant to the issue of access to public judicial records,
and likewise, the question of whether she has a direct interest in the
documents is not relevant. Instead, Appellant insists the threshold inquiry in
this matter is simply whether the documents sought are public judicial
documents available to the general public via the common law right of
access. Appellant’s fifth issue — whether the Commonwealth met its burden
of establishing why the documents should not be provided to her — consists
of a three-sentence reiteration of the arguments made under her third issue.
Finally, we note that Appellant contends, for the first time, that her purpose
for seeking the wiretap records is to obtain evidence to support Baney’s
PCRA petition. Appellant’s Brief at 6, 44 (unpaginated).
The Commonwealth counters that the trial court properly concluded
that Appellant lacked standing because she does not have a substantial
interest in the wiretap records. Appellant’s reply brief avers that the
Commonwealth has not addressed any of the arguments in her initial brief,
and further asserts there is no case authority on standing for unsealing
wiretap records.
“It is well established that a question of intervention is a matter within
the sound discretion of the trial court and absent a manifest abuse of such
discretion, its exercise will not be disturbed on review.” First
Commonwealth Bank, 863 A.2d at 1155.
Upon review of Pennsylvania appellate case law, we agree with
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Appellant that there is no decision addressing the issue presented here:
whether an individual has standing to invoke the common law, or a
constitutional right to view sealed wiretap records pertaining to criminal
cases in which she has averred no personal or legal interest. Nevertheless,
we note Sections 5714(b) and 5715 of the Wiretapping and Electronic
Surveillance Control Act (“Act”) provide that wiretap recordings and final
reports shall be transferred to the court and sealed. 18 Pa.C.S.A. §§
5714(b), 5715. Section 5715 further provides:
[Wiretap final reports] may be disclosed only upon a showing of
good cause before a court of competent jurisdiction except that
any investigative or law enforcement officer may disclose such .
. . records to investigative or law enforcement officers . . . to the
extent that such disclosure is appropriate to the proper
performance of the official duties of the officer making or
receiving the disclosure.
18 Pa.C.S.A. § 5715.
Furthermore, in Griffin, our Supreme Court stated:
Standing is a core jurisprudential requirement that looks to the
party bringing a legal challenge and asks whether that party has
actually been aggrieved as a prerequisite before the court will
consider the merits of the legal challenge itself. A party who is
not adversely affected by the matter he seeks to challenge is not
“aggrieved” and therefore does not have standing.
Griffin, 918 A.2d at 93 (citations omitted).
Although the trial court did not address whether Appellant established
“good cause” for disclosure of the wiretap records under Section 5715, we
conclude she has not. Both in the trial court and on appeal, Appellant relied
on her status as a member of the general public to argue she had a common
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law and constitutional right of access to the wiretap records, without
addressing the significance of the fact that the records are sealed. In the
absence of any legal authority or argument as to why the records should be
unsealed, we hold that the trial court did not err in denying Appellant’s
request to review the records. Furthermore, Appellant does not refute the
trial court’s finding that she failed to establish any direct or immediate
interest in the wiretap records. On appeal, Appellant admits her purpose for
seeking the records is to obtain evidence in support of Baney’s PCRA
petition. Because this claim was not raised before the trial court, it is
waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”). Even if it were
not waived, Appellant’s mere assertion of supporting Baney’s PCRA petition,
without any explanation of her relationship to Baney or stake in his post-
conviction proceedings, fails to establish a direct or immediate interest in his
case. To this end, we further agree with the trial court that Appellant lacked
standing to intervene in Baney’s case and request access to the sealed
wiretap records. Accordingly, we hold that the trial court did not abuse its
discretion in denying Appellant’s motion to intervene. See First
Commonwealth Bank, 863 A.2d at 1155.
In her second issue, Appellant asks, “Are the pen registers and
wiretaps still sealed when the time period for keeping them sealed by statute
has expired and without a continued court order from the court sealing them
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again, would render them unsealed, and after 15 years the reason for
initially sealing them has concluded?” Appellant’s Brief at 34. However, she
provides absolutely no discussion in support of this issue. Accordingly, it is
waived. See Commonwealth v. English, 699 A.2d 710, 714 n.5 (Pa.
1997) (issue included in statement of question involved but not supported
by any argument in brief is waived).
In her fourth claim, Appellant avers that on May 3, 2017, the trial
court issued an order unsealing the wiretap records and allowing the
Commonwealth to copy them. She further asserts that the trial court did not
require the Commonwealth to return the records and thus reasons that
pursuant to 18 Pa.C.S.A. § 5714(b), the seal has been broken and she is
entitled to view the records.
The record does not support Appellant’s claim that the trial court
unsealed the wiretap records on May 3, 2017; there is no indication of any
such unsealing order in the record. Therefore, any argument based on such
a fact is meritless.
Appellant’s sixth and final claim is that even if the wiretap records
remain under seal, she has met her burden of establishing why they should
be unsealed. Appellant asserts her “good cause” for reviewing the records is
to obtain evidence in support of Baney’s PCRA petition, to “keep the court
honest because of the amount 125 judicial decisions made upon them, and
50-100 in prison sentences based upon the illegal pen/taps [sic].”
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Appellant’s Brief at 44 (unpaginated).
As stated above, any claims that Appellant is seeking the sealed
wiretap records for Baney’s PCRA proceedings is waived. Furthermore, as
stated above, Appellant does not explain why she has any direct or
immediate interest in the allegedly illegally procured wiretap recordings.6
Accordingly, no relief is due.
Finally, we consider the Commonwealth’s application filed in this Court
to stay the appeal and remand this case back to the trial court to determine
whether Appellant’s pleadings in this case were in fact filed by Baney. The
Commonwealth states that copies of pleadings it received that are attributed
to Appellant were mailed from Baney in state prison. The Commonwealth
further argues that Baney, who is not a party to the instant appeal nor a
member of the Pennsylvania Bar, cannot represent Appellant in this appeal.
Appellant has filed an answer, admitting Baney sent copies of pleadings to
the Commonwealth, but maintaining that it was she who filed the original
pleadings.
Given our conclusion that the trial court properly denied Appellant’s
motion to intervene, we decline to stay this appeal and deny the
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6 In any event, Appellant disregards that because Baney pled guilty, he
waived any suppression challenge on appeal. See Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (upon entry of guilty plea,
defendant waives all claims and defenses other than those sounding in
jurisdiction of court, validity of plea, and what has been termed “legality” of
sentence imposed).
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Commonwealth’s application to remand this case to the trial court.
Order affirmed. Commonwealth’s application to stay appeal and
remand denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2018
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