                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


IN RE: THE THIRTY-FIFTH STATEWIDE : No. 18 MM 2015
INVESTIGATING GRAND JURY          :
                                  :
                                  :
PETITION OF: JOSHUA MORROW        :


                                           ORDER


PER CURIAM
       AND NOW, this 26th day of August, 2015, upon the request of the supervising

judge for removal of the seal from all matters involving the 35th Statewide Investigating

Grand Jury and the investigation of Attorney General Kathleen Kane which have been

lodged in this Court, save for grand jury materials such as testimony, exhibits, and in

camera proceedings, and based on the supervising judge’s assurance that there are no

present grand jury secrecy concerns relative to such unsealing, it is hereby ORDERED

that the seal is lifted, in part, upon such terms.
                                                                           Filed in Supreme Court
                       THE SUPREME COURT OF PENNSYLVANIA
                                                                                JAN 2 2 2015

                                   PETITION FOR REVIEW         UNSEALED PER
                                                               ORDER OF THE
                                                               COURT DATED
            PETITION FOR REVIEW OF ORDER OF CONTEMPT AND ORDER AUGUST 26, 2015
    OVERRULING THE PETITIONER'S INVOCATION OF THE FIFTH AMENDMENT
                BEFORE THE INVESTIGATING GRAND JURY
                                                                                        Misc. Dkt.
                                          SEALED
                                                                                         a 2015
In re The Thirty-Fifth Statewide                   Petition for Review of
Investigating Grand Jury                           Contempt Order and Order Ov6rneng
(Petition of Joshua Morrow)                        the Petitioner's Invocation of the
                                                   Fifth Amendment Before the
Supreme Court of Pennsylvania                      Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012

Montgomery County Common Pleas
M.D. 2644-2012




                                            Catherine M. Recker
                                            Attorney ID No. 56813
                                            Welsh & Recker, P.C.
                                            Suite 2903
                                            2000 Market Street
                                            Philadelphia, PA 19103
                                            cmrecker@welshrecker.com
                                            215-972-6430

                                            Counsel for Joshua Morrow




                             Received In Supreme Court
                                                                                  EA E
                                   JAN 3 0 2015
                                                                              JAN 26 2015
                                       Odle
                                                                        SUPREME COURT
                                                                        EASTERN DISTRICT
                                    TABLE OF CONTENTS

Table of Citations

Introduction                                                                                1

The Party Seeking Review                                                                    1

Jurisdiction                                                                                1

The Court Below                                                                            2

The Orders to be Reviewed                                                                   2

Statement of Objections to the Orders Below                                              ... 3

The Relief Sought                                                                          3



Exhibits

Enclosure Letter of William R. Carpenter, Supervising Judge,
35th Statewide Investigating Grand Jury, to Chief Justice Castille regarding
Order Appointing Special Prosecutor, May 29, 2014                                Exhibit lA

35th Statewide Investigating Grand Jury Subpoena for Testimony,
No. 1639, December 3, 2013                                                       Exhibit 1B

Disclosure Order, Sealing Order, and Transcript of January 12, 2015 Order      ... Exhibit 1C

35th Statewide Investigating Grand Jury Presentment No. 60                       Exhibit 1D

Order Accepting Presentment No. 60, by William R. Carpenter,
Supervising Judge, 35th Statewide Investigating Grand Jury                       Exhibit lE

Opinion of William R. Carpenter, Supervising Judge,
35th Statewide Investigating Grand Jury, December 30, 2014                       Exhibit 1F

Philadelphia Inquirer Article, January 8, 2015,"Grand Jury
Recommends Criminal Charges Against Kane"                                        Exhibit 1G

Brief in Support of Petition for Review of Contempt Order and Order
Overruling the Petitioner's Invocation of the Fifth Amendment Before
the Investigating Grand Jury                                                       Exhibit 2
                                 TABLE OF CITATIONS

Cases

Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547(1999)      2

Commonwealth v. Harris, 32 A.3d 243(2011)             2



Statutes

Pa. R.A.P. 313                                        2

Pa. R.A.P. 313(a)                                     2

Pa. R.A.P. 341                                        2

Pa. R.A.P. 1512                                       1

Pa. R.A.P. 1512(b)(3)                                 2

Pa. R.A.P. 3331(a)(3)                                 1




                                            i
                    IN THE SUPREME COURT OF PENNSYLVANIA


In re The Thirty-Fifth Statewide                     Petition for Review of
Investigating Grand Jury                             Contempt Order and Order Overruling
(Petition of Joshua Morrow)                          the Petitioner's Invocation of the
                                                     Fifth Amendment Before the
Supreme Court of Pennsylvania                        Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012

Montgomery County Common Pleas
M.D. 2644-2012

       PETITION FOR REVIEW OF CONTEMPT ORDER AND ORDER
 OVERRULING THE PETITIONER'S INVOCATION OF THE FIFTH AMENDMENT
             BEFORE THE INVESTIGATING GRAND JURY

   I.      INTRODUCTION

           1. This is a Petition for Review by grand jury witness Joshua Morrow from a final

contempt order entered on January 12, 2015 by the Court of Montgomery County Court of

Common Pleas (Carpenter, J.). The lower court found Petitioner in civil contempt holding that

he could not invoke his constitutional rights under the Fifth Amendment rights in response to

certain questions posed to him before the grand jury. This Petition for Review is filed under

Pennsylvania Rule of Appellate Procedure 3331(a)(3), incorporating the provisions of Rule

1512.

   II.     THE PARTY SEEKING REVIEW

           2. The party seeking review is Joshua Morrow, a witness before the investigating

grand jury for Montgomery County.

   III.    JURISDICTION

           3. This is a petition for review of an order finding the petitioner in contempt of court

for having respectfully refused to comply with an order entered on the basis of the lower court's

                                                                            ReceIved In Supreme Court

                                                                                 JAN 3 0 2015
finding that the petitioner may not invoke his rights under the Fifth Amendment to the United

States Constitution. Accordingly, the order in the court below is final under Pa. R.A.P. 341.

           4. Moreover and in the alternative,"orders overruling claims of privilege and

requiring disclosure are immediately appealable under Pa. R.A.P. 313." Commonwealth v.

Harris, 32 A.3d 243, 251 (2011)(reaffirming Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547

(1999)). Pennsylvania Rule of Appellate Procedure 313(a) provides that "[a]n appeal may be

taken as of right from a collateral order of...[a] lower court."


           5. This Petition for Review is timely as it is filed within ten days of the lower court's

contempt order and order that the petitioner may not invoke his constitutional rights under the

Fifth Amendment in response to certain questions put to him before the grand jury. Both orders

were entered on January 12, 2015. See Pa. R.A.P. 1512(b)(3)(requiring the filing of a petition

for review within ten days of the entry of a grand jury order).


           6. Accordingly, this Court has jurisdiction over this appeal.


   IV.     THE COURT BELOW

           7. The court below is the Honorable William R. Carpenter of the Montgomery

County Court of Common Pleas.

    V.     THE ORDERS TO BE REVIEWED

           8. The orders sought to be reviewed are an order of January 12, 2015, finding the

petitioner in civil contempt for refusing to comply with the lower court's order that he testify,

and the lower court's order that he may not invoke his constitutional rights under the Fifth

Amendment in response to certain questions put to him before the grand jury. In support hereto,

attached and incorporated herein is Exhibit 1 to the Petition.



                                                 2
    VI.         STATEMENT OF OBJECTIONS TO THE ORDERS BELOW

       9.         Petitioner objects to the orders of the lower court on the ground that the lower

court erred in ruling that the petitioner may not rely upon his Fifth Amendment rights in refusing

to answer questions before the grand jury.

   VII.         THE RELIEF SOUGHT

          10.     Petitioner asks this Court to hold that the Fifth Amendment provided just cause

for his refusal to answer certain questions in the grand jury and requests an order reversing the

finding of civil contempt. A Brief in Support of this Petition is attached as Exhibit 2 to the

Petition.



                                                Respectfully Submitted,




Date: January 22, 2015
                                                Catherine M. Rec r
                                                Attorney ID No. 56813
                                                Welsh & Recker, P.C.
                                                Suite 2903
                                                2000 Market Street
                                                Philadelphia, PA 19103
                                                cmrecker@welshrecker.com
                                                215-972-6430




                                                Counsel for Joshua Morrow




                                                   3
Exhibit 1
Exhibit A
•
      PRESIDENT JUDGE                          COURT OF COMMON PLEAS
          WILLIAM J. FURBER. JR.
      ASSOCIATE JUDGES
         JOSEPH A. SMYTH                                                                               SENIOR JUDGES
         STANLEY R. OTT                                                                                  WILLIAM T. NICHOLAS
         BERNARD A. MOORE                                                                                S. GERALD CORSO
         WILLIAM R. CARPENTER                                                                           .CALVIN S. DRAYER, JR.
         RHONDA LEE DAN/ELE                                                                              KENT H. ALBRIGHT
                                                                                                         ARTHUR R. TILSON
         EMANUEL A. BERTIN                       MONTGOMERY COUNTY
        THOMAS M. DELRICEI                      THIRTY-EIGHTH JUDICIAL DISTRICT
        R. STEPHEN BARRETT
        THOMAS C. BRANCA
                                            NORRISTOWN, PENNSYLVANIA
        STEVEN T. O'NEILL                                    19404
        THOMAS P. ROGERS
        GARRETT O. PAGE
        KELLY C. WALL
        CAROLYN TORNETTA CARLUCCIO
       WENDY DEMCHICK-ALLOY
       PATRICIA E. COONAH AN
       LOIS EISNER MURPHY
       GARY S. SILOW
       RICHARD P. HAAZ
       CHERTL L. AUSTIN
       GAIL A. WEILHEIMER
      STEVEN C. TOLLIVER, SR.


       May 29, 2014

       The Honorable Ronald D. Castille
       ChiefJustice of Pennsylvania
       Supreme Court of Pennsylvania
       1818 Market Street, Suite 3730
       Philadelphia, PA 19103

      Re: Statewide Investigating Grand Juries

•     Dear ChiefJustice:

               Enclosed you will find an Order appointing a Special Prosecutor to investigate an allegati
                                                                                                          on that
      secret Grand Jury information from a prior Grand Jury was released by someone in the Attorne
                                                                                                      y General's
      Office.

•             As the current supervising Grand Jury Judge, this matter was brought to my attentio
                                                                                                  n. My
      preliminary review included in camera sealed testimony frorn two individuals with
                                                                                        knowledge.
             I have decided that the matter is.irnportant enough to appoint a Special Prosecut
                                                                                               or, Thornas E.
     Carluecio, Esquire. He is a forrner prosecutor, served in the Department of the
                                                                                      Attorney General in
     Delaware for fourteen years and a Special Assistant United States Attorney. In addition
                                                                                               Tom has done
     Grand Jury work, and is honest, capable and reliable.

             Please call me if you would like to discuss this matter further.

            Please advise.ifyou feel that 1 am in error or haVe exceeded my authority
                                                                                      as the Supervising Grand
    July Judge.
•
    Si ncerely

       to/SAaSt
    William R. Carpenter, J.
    Supervising Judge
•
    WRC/cns
    Cc. Thomas E. Carluccio, Esquire



•
Exhibit B
           STATEWIDE INVESTIGATING GRAND JURY
                                   SUBPOENA
 TO:      JOSHUA MORROW                    :SUPREME COURT OF PENNSYLVANIA
                                           :NO.176 M.D. MISC.DKT.2012
                                           :MONTGOMERY COUNTY COMMON PLEAS
                                           :M.D. 2644-2012


 1.    YOU are ORDERED to appear as a witness before the
                                                                 PENNSYLVANIA STATEWIDE
 INVESTIGATING GRAND JURY, 1000 Madison Aven
                                                           ue (corner of Trooper and Van Buren
 Roads), Third Floor, Norristown, Pennsylvania, on Mond
                                                            ay, January 12, 2015 through Friday,
 January 16,2015, at 8:00 O'clock A.M. to testify and give
                                                           evidence regarding alleged violations of
 the laws of the Cotnmonwealth of Pennsylvania and to remai
                                                              n until excused.


 2.    YOU are further ORDERED:




• FAILURE to attend may cause a warrant to be issued for
                                                         your arrest and will make you liable
  under penalty oflaw for contempt of Court.

DATED: December 3,2014
                                                                Vigew Æ ðeAluda

                                                                Hon. William R. Carpenter
                                                                Supervising Judge
       If you have any questions about your appearance, contact Special Prosecutor Thom
                                                                                        as
       Carluccio, at 484,674.2899.

               Notice:   123                    Subpoena: 1639
                        CERTIFICATION QF SERVICE



I HEREBY CERTIFY that the original subpoena was duly serveki on the person named
herein on this   •   dav of                ,20    st                      o'clock by
handing the same to him/her personally at


OR

Individual accepting scrviee on behalf of witness



Service accepted et




NAME of person making service

TITLE of person making service

SIGNATURE



SWORN to and subscribed

before me this        day




5ot4r7 Public
            RemainsUnder Seal
            August 26, 2015




Exhibit C
Exhibit D
                                 IN THE COURT OF COMMON PLEAS
                               MONTGOMERY COUNTY,PENNSYLVANIA


   IN RE:                                              SUPREME COURT OF PENNSYLVANIA
                                                       NO. 171 M.D.D MISC. KT 2012
   ME THIRTY-F1FTH STATEWIDE                           MONTGOMERY COUNTY COMMON PLEAS
                                                       M.D.2644-2012
   INVESTIGATING GRAND JURY
                                                       NOTICE No # 123



     TO THE HONORABLE WILLIAM R. CARPENTER,SUPERVISING JUDGE:


                                      PRESENTMENT No.#

            We, the Thirty-Fifth Statewide Investigating Grand Jury, duly charged to inquiie.iiitO Offenses

   against the criminal laws ofthe Commonwealth, have obtained knowledge ofsuch matters from witnesses

   sworn by the Court and testifying before us. We find reasonable grounds to believe that various

   violations of the criminal laws have occurred. So finding with no fewer than twelve concurring,
                                                                                                   we do
  hereby make this Presentment to the Court.




                                               Foreperson — The Thirty-Fifth Statewide
                                               Investigating Grand Jury



DATED: Thej          day ofDecember,2014




Presentment(35Ih Grand Jury)
                                                                                           Page #3 of 27
Exhibit E
                            IN THE COURT 01? COMMON PLEAS
                          MONTGOMERY COUNTY,PENNSYLVANIA


   IN RE:                                  : SUPREME COURT OF PENNSYLVANIA
                                           : NO.171 M.D. MISC DKT.2012
  THE THIRTY-FIVE STATEWIDE
                                          : MONTGOMERY COUNTY COMMON PLEAS
  INVESTIGATING GRAND JURY                : M.D.2644-2012

                                          : NOTICE NO. 123


                     ORDER ACCEPTING PRESENTMENT NO #60

        A.    The Court finds Presentment No #60 of the Thirty-Fifth Statewide
 Investigating Grand Jury is within the authority of said Grand Jury and is in accordance
 with the provisions of this Investigating Grand Jury Act, 42 Pa.C.S. §4541, et seq. Further
  find that the deteimination •of the Thirty-Fifth Statewide favedigating Grand July is
suppoAtria by Probable Cause and establishes e.Prima Facie case against Attorney Generait
Kathleen Kane. Accordingly, this Presentment is accepted by the Court.
       B.    The County conducting the trial of all charges pursuant to this Presentment
shall be MontgomerY County.
       C.    The District Attorney for Montgomery County, or her designee, is hereby
authorized to prosecute as recommended in the Presentment by instituting appropriate
criminal proceedings iri the aforesaid County.
      SO ORDERED this 191h day ofDecember,2014.


                                   BY THE COURT:



                                       („)
                                  WILLIAM R. CARP NTER,                      J.
                                  Supervising Judge


                                        EXHIBIT C
Exhibit F
                                                                 FILED UNDER SEAL

                       IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT




 IN RE:
                                                                SUPREME COURT DOCKET
THE THIRTY-FIFTH STATEWIDE                                      NO. 197 MM 2014
INVESTIGATING GRAND JURY
                                                                MONTGOMERY COUNTY
                                                                COMMON PLEAS
                                                                NO. 2644-2012


                                            OPINION

CARPENTER J.                                                    DECEMBER 30, 2014

                           FACTUAL AND PROCEDURAL HISTORY

               On May 29, 2014, this Court in its capacity as Supervising Judge of the Thirty-

Fifth Statewide Investigating Grand Jury, found that there were "reasonable grounds to believe

a further more substantive investigation" into allegations that statewide Grand Jury secrecy may

have been compromised was warranted, and on that date this Court appointed Thomas E.

Carluccio, Esquire as Special Prosecutor.

              Specifically, the May 29, 2014 Order followed an in camera proceeding which

established that there was a leak of secret Grand Jury information and that the leak most likely

came from the Office of the Attorney General. Accordingly, I determined that the appointment of

a Special Prosecutor was necessary and appropriate.

                                            ISSUES

       Whether the appointment of a Special Prosecutor was proper.

II.    Whether the Quo Warranto Action is now moot.
                                          DISCUSSION

        The appointment of a Special Prosecutor was proper.

               Attorney General Kathleen Kane has filed a Quo Warranto Action, challenging

my action as the Supervising Judge of the Thirty-Fifth Statewide Grand Jury, to appoint a

Special Prosecutor by way of an Order dated May 29, 2014, On that date, Special Prosecutor

Thomas E. Carluccio was appointed to conduct an investigation into allegations that statewide

Grand Jury secrecy might have been compromised, after a preliminary investigation. My action

in appointing Special Prosecutor Carluccio was proper. It did not exceed my authority.

               My authority for the appointment of a special prosecutor is based upon the case

of In re Dauphin County Fourth Investiciatinq Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014). This

case dealt with the appointment of an special prosecutor in connection with alleged grand jury

leaks, and the Court stated that, "[w]hen there are colorable allegations or indications that the

sanctity of the grand jury process has been breached and those allegations warrant

investigation, the appointment of a special prosecutor to conduct such an investigation is

appropriate. And, even where the investigationS of special prosecutors do not lead to

prosecutable breaches of secrecy, they may provide insight into the often-competing values at

stake, as well as guidance and context so that prosecutors and supervising judges conducting

future proceedings may learn from the examples." Id. at 504.

               The Court explained the vital role a sOpervising judge in regard to the grand jury

process and emphasized the "Mhe very power of the grand jury, and the secrecy in which it

operates, call for a strong judicial hand in supervising the proceedings" Id. at 503. The Court

further explained as follows:




                                                2
               We are cognizant that the substantial powers exercised by
               investigating grand juries, as weH as the secrecy in which the
               proceedings are conducted, yield( ]the potential for abuses. The
               safeguards against such abuses are reflected in the statutory
               scheme of regulation, which recognizes the essential role of the
               judiciary in supervising grand jury functions.

Id. at 503 — 504 (citing from In re Twenty-Fourth Statewide Investioatino Grand Jury, 589 Pa.

89, 907 A.2d 505, 512 (2006).

               Thus, Pennsylvania's grand jury process is 'strictly regulated, and
               the supervising judge has the singular role in maintaining the
               confidentiality of grand jury proceedings. The supervising judge
               has the continuing responsibility to oversee grand jury
               proceedings, a responsibility which includes insuring the solemn
               oath of secrecy is observed by all participants.

Id. at 504 (citations and internal quotation marks omitted).

               The In re Dauphin County Court cited two cases that involved the appointment of

a special prosecutor when there were allegations of grand jury leaks. The Court first cited to a

Lackawanna Common Pleas Court case, In re County Investigating Grand Jury VIII (Lack. Com.

Pl. 2005).

               In the Lackawanna Common Pleas Court case there were allegations made,

including, that e-rnail communications had been exchanged between the Lackawanna District

Attorney's Office and a newspaper reporter that divulged grand jury information, that a grand

jury witness had been contacted by the reporter a short time after the witness appeared before

the grand jury and was questioned about private matters that had been disclosed only to the

grand jury. In re Dauphin County, 19 A.3d at 504. A preliminary review by the common pleas

court judge verified only the existence of the emails that were exchanged between the reporter

and a member of the District Attorney's office during the time the grand jury was conducting the

relevant investigation. It was based upon this review that the common pleas court judge

appointed a special prosecutor to investigate the allegations of a grand jury leak. Id.




                                                3
               The Pennsylvania Supreme Court in In re Dauphin County cited an additional

example involving a special prosecutor in connection with alleged grand jury leaks and the

complex interest and values implicated in an appointment of an special prosecutor. The Court

cited to Castellani v. Scranton Times, 598 Pa. 283, 956 A.2d 937 (2008). In Castellani, the

supervising judge appointed a special prosecutor to investigate allegations of grand jury leaks in

connection with a statewide investigating grand jury tasked with investigating allegations of

abuse of the county prisoners by the prison guards. In re Dauphin County, 19 A.3d at 506.

               Not only is there strong precedent that permits a supervising judge to appoint a

special prosecutor when there are allegations of grand jury leaks; but also, at the time I

appointed the Special Prosecutor on May 29, 2014, by way of a court order, which was

delivered to Chief Justice Ronald D. Castille, I wrote a letter to Chief Justice Castille. In that

letter, I explained what I had done and I ended the letter with the following language, "Please

advise if you feel that I am in error or have exceeded my authority as the Supervising Grand

Jury Judge." See, Exhibit "A", Letter dated May 29, 2014 to Chief Justice Castille. All of my

letters to Chief Justice Castille have concluded with similar language. l have never been

informed that I erred or exceeded my authority.

               The Supervising Judge of a Statewide Investigating Grand Jury must have

inherent authority to investigate a grand jury leak, when there is a conflict of interest as there is

here. Clearly, Attorney General Kane could not investigate herself. Otherwise potentially

serious violations of grand jury secrecy could go unaddressed.

               Accordingly, Attorney General Kane's Quo Warranto Action lacks merit, and

should be denied.

11.    The Quo Warranto Action is now moot.

                Further, I believe that this Quo Warranto Action is now moot. On December 18,

2014, the Thirty-Fifth Statewide Investigating Grand Jury issued Presentment No. #60, finding



                                                 4
that there were reasonable grounds that Attorney General Kane was involved in violations of

criminal law of our Commonwealth, See Exhibit "B", Presentment No. #60, dated December

18, 2014; špecifically, PedUty, 18 Pa.C.S,A. §4902, False Swearing, 18 Pa.C.S.A. §4903,

Official•Oppression, 18 Pa.C.S.A. §5301 and Obstruction Administration of Law or Other

Governmental Function, 18 Pa.C.S.A. §5101. SUbsequently, on December 19, 2014, I entered

an Order Accepting Presentment No. #60. See, Exhibit "C", Order Accepting Presentrnent No.

#60, dated December 19, 2014. Furthermore, I referred the entire matter to the District Attorney

of Montgornery.Courity for any prosecution. Therefore, this Quo Warranto Action has been

rendered Moot.


              Finally, the Attorney General has requested to "unseal this filing" See, Attorney

General Kane's Memorandum of Law in Support of Quo Warranto Action, December 17, 2014,

  2, n. 1. If her filing is unsealed then, in fairness to the public, the mernbers of the Grand Jury,

and members of The Office of Attorney General, my Opinion and Exhibits thduld also be

unsealed,

                                          CONCLUSION

              I respectfUlly subrnit that Attorney General Kane's Quo Warranto Action lacks

merit and should be denied, In addition, it has been rendered moot.


                                                      BY THE COURT:




                                                     WILLIAM R. CARPE TER          J.
                                                     SUPERVISING JUDGE OF THE THIRTY-
                                                     FIFTH STATEWIDE INVESTIGATING
                                                     GRAND JURY




                                                 5
Exhibit G
1122/2015                                                                Grand jury recornmends criminal charges against Kane

   I Thursday, January 22,2015 I                                                                                                                Sign In I Register I .


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      Attorney General Kathleen Kane recites the Pledge of Adegiance while attending the state House of Representatives'
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                                           POSTED: Thursday, January 8, 2015, 3:05 PM



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                                       "The attorney general has done nothing wrong or illegal and,
                                       to my knowledge, there is no credible evidence that she has,"
       LISTED BYTRAVELZOO              her lawyer, Lanny J. Davis, said in a statement Thursday.
       'Somo taxes, tees additional
                                       "She told the truth to the grand jury at all times. I hope the
                                       district attomey will reach same conclusion."

                                       Kane's tenure has been marked by controversy over the last
                                       year, much of it generated by an Inquirer disclosure that she
                                       had secretly shut down an undercover "sting" investigation
                                       that had caught elected officials from Philadelphia on tape
                                       accepting cash.
                                                                                                              Also on Philly.com
                                       That case was resurrected by Philadelphia District Attorney            BUSINESS:
                                       Seth Williams, who has charged a former Traffic Court judge                                        Is HoloLens the next
                                                                                                                                          big thing - or the next
                                       and two state legislators with bribery.                                                            3D TV?

                                       If Kane is arrested, she would become the second
                                       Pennsylvania attorney general in modern history to face
                                                                                                              HEALTH:
                                       criminal charges. Ernest Preate Jr., a Republican, resigned in         Data reveals Philly's favorite places to
                                       1995 after pleading guilty to federal charges in connection            run
                                       with an illegal $20,000 cash contribution.

http://www.philly.com/philly/news/politics/20150109 Grandjury_recommends criminal charges against Attorney General Kathleen Kane.html                                   2/11
1/22/2015                                              Grand jury recommends criminal charges against Kane
                                 An arrest would not affect Kane's status as attorney general.
                                 Under the state constitution, elected officials who are charged
                                 with a crime may remain in office until they are both convicted
                                 and sentenced.
                                                                                                       SPORTS:

                                 In his statement Thursday, Davis questioned how The                                        Where will Phils
                                                                                                                            prospects play?
                                 Inquirer learned about the grand jury's recommendation: "I
                                 wonder why the supervising judge who appointed the special
                                 prosecutor to investigate the attorney general hasn't initiated
                                 a grand jury investigation of this leak or any of the other           ENTERTAINMENT:

                                 previous leaks from this same grand jury process."                                         50 Cent cheers on
                                                                                                                            Philly boxer
                                 For about six months, special prosecutor Thomas E.
                                 Carluccio has been directing the grand jury as it has heard
                                 testimony from numerous witnesses, including Kane and                 FOOD:
                                 many of her top aides, to determine how details of a long-ago                              Burger fantasies come
                                 investigation of a Philadelphia civil rights leader appeared in a                          to life at Rex 1516
                                 Philadelphia Daily News article in June.

                                 The article suggested that a former state prosecutor, Frank G.
                                                                                                       JOBS:
                                 Fina, had fumbled that investigation, and the leak appeared
                                                                                                                            6 high-satisfaction
                                 designed to raise questions about his competence.                                          jobs that pay more
                                                                                                                            than $100K a year
                                 Fina and Kane have been embroiled in a months-long dispute
                                 about how each handled cases, including the sting
                                 investigation. Fina, once the top public-corruption prosecutor        Stay Connected
                                 in the Attorney General's Office, launched the sting in 2010,         Get the latest Philly.com Daily Headlines newsletter
                                                                                                       delivered to your email. Sign up now!
                                 before Kane took office.
                                                                                                        Enter email address to sign up
                                 Kane has acknowledged that she knew some material from
                                                                                                       Already a philly.com member? 0 Yes 0 No
                                 her office was given to the newspaper, but said the material
                                 she approved for release was not grand jury information. Her
                                 allies have suggested that her staff may have erred by
                                 providing additional prohibited information without her
                                 knowledge.

                                 The Daily News article provided details of a 2009
                                 investigation by state prosecutors that looked into financial
                                 matters involving J. Whyatt Mondesire, then the head of the
                                 Philadelphia chapter of the NAACP. Mondesire was never
                                 charged or publicly named as a subject of a probe until the
                                 Daily News story.

                                 He has said he did nothing wrong, and has denounced the
                                 article and leak as unfairly damaging to his reputation.

                                 The grand jury investigation of the leak was approved by
                                 former Chief Justice Ronald D. Castille at the request of
                                 William R. Carpenter, a Montgomery County Court judge.

                                 Carpenter, a former prosecutor, presides over a statewide
                                 investigative grand jury - one that looks into matters involving
                                 Philadelphia and surrounding counties - that is the successor
                                 jury to the one involved with the Mondesire matter six years
                                 ago.

                                 Carpenter appointed Carluccio, a criminal defense lawyer in
                                 Plymouth Meeting and former prosecutor in Delaware, as
                                 special prosecutor.
http://www.philly.com/philly/news/politics/20150109_Grandjury_recommends criminal charges against Attorney General Kathleen Kane.html                         3/11
1/22/2015                                                    Grand jury recommends criminal charges against Kane

                                 Efforts to reach Carpenter and Carluccio were not successful
                                 Thursday.

                                 Ferman, Castille, Carpenter, and Carluccio are Republicans.

                                 Kane has suggested that the grand jury investigation was a
                                 partisan attack, a complaint rejected by Castille.

                                 Castille, who retired from the bench Jan. 1, said he had
                                 approved numerous leak investigations during his 21 years on
                                 the high court.

                                 In ordinary circumstances, prosecutors from the Attorney
                                 Generars Office present cases to Carpenter's grand jury, and
                                 the Attorney General's Office later makes an arrest based on
                                 the paners recommendation.

                                 In this unusual leak investigation, however, the judge handed
                                 Ferman the role of prosecutor because she is district attorney
                                 in the county in which the grand jury meets.

                                 Ferman is conducting an independent review of the grand jury
                                 presentment, sources say, a process that could take several
                                 months.

                                 Philadelphia lawyer L. George Parry, a former prosecutor,
                                 said it made sense for Ferman to dig into the facts
                                 independently.

                                 While arrests are typically made immediately after a
                                 presentment has been issued, Parry said, "this is really an
                                 unusual situation.

                                 "I wouldn't fault her at all for wanting to review this," he said.
                                 "They are dropping a real hot potato on her. lf, in fact, there is
                                 a presentment that calls for charging the attorney general of
                                 Pennsylvania, I would think that any responsible adult would
                                 want to read over things very carefully before committing to
                                 take on the case."

                                 Ferman announced this week that she would run for a county
                                 judgeship in November and would serve out her term as
                                 district attorney.

                                 While highly unusual, the prospect of a county prosecutor
                                 bringing a case against a statewide official is not
                                 unprecedented nationwide.

                                 In August, a special prosecutor appointed by a judge charged
                                 Texas Gov. Rick Perry, a Republican, with two felonies for
                                 allegedly trying to force a Democratic district attorney out of
                                 office. Perry and other Republicans, and even some
                                 Democrats, have criticized the charges as political.




                                 cmccoy@phillynews.com



                                 215-854-4821 @CraigRMcCoy


http://www.philly.com/philly/news/politics/20150109 Grandjury_recommends criminal charges against Attorney General Kathleen Kane.html   4/11
Exhibit 2

Brief in Support of
Petition for Review
                      IN THE SUPREME COURT OF PENNSYLVANIA


In re The Thirty-Fifth Statewide                       Brief in Support of Petition for Review of
Investigating Grand Jury                               Contempt Order and Order Overruling
(Petition of Joshua Morrow)                            the Petitioner's Invocation of the
                                                       Fifth Amendment Before the
Supreme Court of Pennsylvania                          Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012

Montgomery County Common Pleas
M.D.2644-2012

                           BRIEF IN SUPPORT OF
           PETITION FOR REVIEW OF CONTEMPT ORDER AND ORDER
          OVERRULING THE PETITIONER'S INVOCATION OF THE FIFTH
            AMENDMENT BEFORE THE INVESTIGATING GRAND JURY


                                         INTRODUCTION

       The government's power to compel testimony before grand juries is not absolute.

Kastigar v. United States, 406 U.S. 441, 444 (1972). "There are a number of exemptions from

the testimonial duty, the most important of which is the Fifth Amendment privilege against

compulsory self-incrimination." Id. (emphasis added).

                 The privilege reflects a complex of our fundamental values and
                 aspirations, and marks an important advance in the development of
                 our liberty. It can be asserted in any proceeding, civil or criminal,
                 administrative or judicial, investigatory or adjudicatory; and it
                 protects against any disclosures which the witness reasonably
                 believes could be used in a criminal prosecution or could lead to
                 other evidence that might be so used.

Id. at 444-45.

       The applicable standard to determine the availability of the Fifth Amendment is set forth

in Ohio v. Reiner where the Supreme Court stated that the privilege extends to "witnesses who

have reasonable cause to apprehend danger from a direct answer." 532 U.S. 17, 21 (2001)

(internal quotation marks omitted). "The privilege afforded not only extends to answers that
would in themselves support a conviction under a federal criminal statute but likewise embraces

those which would furnish a link in the chain of evidence needed to prosecute the claimant for a

federal crime." Hoffman v. United States, 341 U.S. 479,486 (1951).

        Far from requiring an admission of guilt by the witness, the Fifth Amendment standard

permits the invocation of the privilege by a witness professing innocence:

                 [W]e have never held... that the privilege is unavailable to those
                 who claim innocence. To the contrary, one of the Fifth
                 Amendment's "basic functions... is to protect innocent
                 men...'who might otherwise be ensnared by ambiguous
                 circumstances.'"

Reiner, 532 U.S. at 21. "Too many, even those who should be better advised, view this privilege

as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of

crime or commit perjury in claiming the privilege." Grunewald v. United States, 353 U.S. 391,

421 (1957). "Innocent men are more likely to plead the privilege in secret proceedings, where

they testify without advice of counsel and without opportunity for cross-examination, than in

open court proceedings, where cross-examination and judicially supervised procedure provide

safeguards for the establishing of the whole, as against the possibility of merely partial, truth."

Id. at 422-23.

                                      PROCEDURAL HISTORY

        The Thirty-Fifth Statewide Investigating Grand Jury was convened to investigate whether

"Grand Jury information from a prior Grand Jury was released by someone in the Attorney

General's Office." See Exhibit 1A attached to Petition for Review and incorporated herein. On

January 12, 2015, Petitioner testified pursuant to subpoena No. 1369, dated January 7, 2015. See

Exhibit 1B attached to Petition for Review and incorporated herein. During the course of his


1 Petitioner also testified on November 14, 2014 and November 21, 2014 pursuant to subpoena dated October 29,
2014, Notice No. 123, Subpoena No. 1497.

                                                       2
testimony, Petitioner was questioned about the frequency of communication, including text

messages, with the Attorney General. In response to these questions, Petitioner invoked his

constitutional right against being compelled to be a witness against himself as set forth in the

Fifth Amendment of the United States Constitution.

       The parties presented argument to the Honorable William R. Carpenter, supervising

Judge of the Thirty-Fifth Statewide Investigating Grand Jury. The Special Prosecutor asserted

that Petitioner's Fifth Amendment privilege would only relate to whether "he was going to

perjure himself, not to implicate himself in a crime" because there was no evidence that

Petitioner "had any reason to be obligated by grand jury secrecy" with respect to the leak of

information from the prior grand jury. See Exhibit 1C to Petition for Review and incorporated

herein, Master Transcript of Proceedings of Grand Jury, January 12, 2015, p.13 (emphasis

added). In other words, in the view of the Special Prosecutor, Petitioner invoked the privilege in

anticipation of testimony that would be false.

       Counsel for Petitioner argued that the issue was not one of anticipatory perjury, but

rather, Petitioner refused to testify because any testimony regarding communication with the

Attorney General could open the door to or provide a link in a chain of evidence that may

support an inference that the Attorney General engaged in an effort with Petitioner to craft his

prior grand jury testimony or craft explanations. This would necessarily involve communication

between them that previously took place by phone, text and email message, given that Petitioner

and the Attorney General did not live or work in the same city. Counsel for Petitioner cited to

phone records related to communications between him and the Attorney General that could give

rise to this inference. Phone records would reveal that Petitioner and the Attorney General

communicated in close proximity to the dates on which he testified before the grand jury.



                                                 3
       The court held that Petitioner's exercise of the Fifth Amendment was "illusory, not a

proper exercise" of the privilege and held Petitioner in contempt. Id. at p. 14. The court stayed

the contempt order "pending review by the higher court." Id. at p. 15.

                                         JURISDICTION

           This is a petition for review of an order finding the Petitioner in contempt of court for

having respectfully refused to comply with an order entered on the basis of the lower court's

finding that the petitioner may not invoke his rights under the Fifth Amendment to the United

States Constitution. Accordingly, the order in the court below is final under Pa. R.A.P. 341.

Moreover and in the alternative,"orders overruling claims of privilege and requiring disclosure

are immediately appealable under Pa. R.A.P. 313." Commonwealth v. Harris, 32 A.3d 243, 251

(2011)(reaffirming Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547(1999)). Pennsylvania Rule of

Appellate Procedure 313(a) provides that "[a]n appeal may be taken as of right from a collateral

order of.. . [a] lower court." This petition is timely as it is filed within ten days of both the

lower court's contempt order, which was entered on January 12, 2015. See Pa. R.A.P.

1512(b)(3)(requiring the filing of a petition for review within ten days of the entry of a grand

jury order). Accordingly, this Court has jurisdiction over this Petition.


                                       STANDARD OF REVIEW

       The standard of review is whether the lower court abused its discretion. Commonwealth

v. Tielsch, 2001 PA Super 335, ¶ 3, 789 A.2d 216, 217(2001).

                                           ARGUMENT

       Pennsylvania law recognizes that a witness possesses a privilege against self-

incrimination. Commonwealth v. Long, 533 Pa. 388, 625 A.2d 630(1993); Commonwealth v.

Field, 231 Pa. Super. 53, 63, 331 A.2d 744, 749(1974)("The fifth amendment privilege does


                                                  4
apply to grand jury proceedings and the grand jury may not itself violate a valid privilege

whether established by the Constitution, statutes or common law."). A witness may not be held

in contempt for refusing to testify if the refusal is based on a legitimate exercise of the privilege

against self-incrimination. Commonwealth v. Reese, 467 Pa. 107, 354 A.2d 573 (1976). The trial

court must evaluate the circumstances to determine whether the proposed use of the privilege is

real or illusory. Long, 533 Pa. 388, 625 A.2d 630.

       Petitioner's refusal to testify was legitimate, not illusory. By the time that Petitioner

testified in January, 2015, the Grand Jury and the Supervising Judge had made several significant

findings. On December 18, 2014, the grand jury had already found "reasonable grounds to

believe that various violations of the criminal laws occurred" in Presentment No. 60. See Exhibit

1D attached to Petition for Review and incorporated herein. The next day, the Supervising Judge

accepted the presentment. See Exhibit lE attached to Petition for Review and incorporated

herein. On December 30, 2014, the Supervising Judge issued an opinion in which he clarified

that reasonable grounds existed that "Attorney General Kane was involved in violations of

criminal law of our Commonwealth," including "Obstruction [of] Administration of Law or

Other Governmental Function, 18 Pa. C.S.A. § 5101" and referred the entire matter to the

District Attorney of Montgomery County for any prosecution. See Exhibit 1F attached to the

Petition for Review and incorporated herein.

       Moreover, the grand jury's findings were no secret to anyone reading a newspaper in the

Commonwealth of Pennsylvania, including Petitioner. On January 8, 2015, four days before

Petitioner testified, the Philadelphia Inquirer publicly reported that the grand jury and the Special

Prosecutor found evidence of wrongdoing and recommended criminal charges against the




                                                  5
Attorney General, including perjury and contempt of court. See Exhibit 1G attached to the

Petition for Review and incorporated herein.

         Thus, at the point in the grand jury proceedings in which Petitioner refused to testify, the

Supervising Judge had already determined that probable cause existed that the Attorney General

had obstructed justice. The Grand Jury's recommendation that charges be brought was widely

circulated by the media, despite the secrecy of grand jury proceedings. The fact that Petitioner

communicated with the Attorney General in proximity to the dates that he testified before the

grand jury could be used as a link in the chain of evidence of that he and the Attorney General

had discussed his prior testimony or that the testimony might have been crafted to cast a certain

light.

                                          CONCLUSION

         Petitioner's exercise of his constitutional rights under the Fifth Amendment was

legitimate and not illusory. For the reasons set forth above, Petitioner respectfully requests this

Court find that the lower court abused its discretion and reverse the finding of contempt against

Petitioner.



                                               Respectfully Submitted,




Date: January 22, 2015
                                               Catherine M. Recker
                                               Attorney ID No. 56813
                                               Welsh & Recker, P.C.
                                               Suite 2903
                                               2000 Market Street
                                               Philadelphia, PA 19103
                                               215-972-6430



                                                  6
                    IN THE SUPREME COURT OF PENNSYLVANIA


In re The Thirty-Fifth Statewide                     Petition for Review of
Investigating Grand Jury                             Contempt Order and Order Overruling
(Petition of Joshua Morrow)                          the Petitioner's Invocation of the
                                                     Fifth Amendment Before the
Supreme Court of Pennsylvania                        Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012

Montgomery County Common Pleas
M.D.2644-2012


                                ATTORNEY VERIFICATION


I, Catherine M. Recker, Esq., hereby verify the following:

   1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.

   2. My office, Welsh & Recker, P.C., is located at 2000 Market Street, Suite 2903,

       Philadelphia, Pennsylvania 19103.

   3. I represent Petitioner Joshua Morrow in this matter, and as such, am fully familiar with

       the facts and circumstances of this case.

   4. This Verification is respectfully submitted in support of Joshua Morrow's Petition for

       Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth

       Amendment Before the Investigating Grand Jury and the Brief in Support ofthe Petition

       for Review of Contenipt Order and Order Overruling the Petitioner's Invocation of the

       Fifth Amendment Before the Investigating Grand Jury.

   5. I hereby state that the facts set forth in the Petition and the Brief in Support attached

       thereto are true and correct(or are true and correct to the best of my knowledge,

       information and belief) and that I expect to be able to prove the same at a hearing held in
         this matter. I understand that the statements herein are made subject to the penalties of

         18 Pa. C.S. § 4904.




Dated:          January 22, 2015

                                               Catherine M. Recker
                                               Attorney ID No. 56813
                                               Welsh & Recker, P.C.
                                               Suite 2903
                                               2000 Market Street
                                               Philadelphia, PA 19103
                                               cmrecker@welshrecker.com
                                               215-972-6430
                                 CERTIFICATE OF SERVICE


       I hereby certify that I did on this date serve the foregoing document upon the persons
below by first class U.S. Mail, which service satisfies the requirements ofPa. R.A.P. 121:



                                Honorable William R. Carpenter
                               Montgomery County Court House
                                      2 East Airy Street
                                        P.O. Box 311
                                  Norristown, PA 19404-0311


                                  Thomas E. Carluccio, Esquire
                       Special Prosecutor for the Investigating Grand Jury
                                Plymouth Greene Office Campus
                                1000 Germantown Pike, Suite D-3
                               Plymouth Meeting,PA 19462-2484




Date: January 22, 2015
                                                    Catherine M. Recke
                                                     UNSEALED PER
                                                     ORDER OF THE             Filed in Supreme Court
                                                     COURT DATED
                                                     AUGUST 26, 2015                  JAN 2 2 2015
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                                                                        Middle
In re The Thirty-Fifth Statewide                     Motion to File Petition for Review of
Investigating Grand Jury                             Contempt Order and Order Overruling
(Petition of Joshua Morrow)                          the Petitioner's Invocation of the
                                                     Fifth Amendment Before the
Supreme Court of Pemisylvania                        Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012                         Under Seal

Montgomery County Common Pleas                                             M.D. Misc.DM.
M.D. 2644-2012
                                                                                       8 2015

                             MOTION TO FILE UNDER SEAL



       Petitioner Joshua Morrow, by and through his counsel, Catherine M. Recker, Esq., hereby

moves to file the enclosed Petition for Review of Contempt Order and Order Overruling the

Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury under seal.

   1. Petitioner Joshua Morrow's Petition for Review asks that this Court hold that the Fifth

       Amendment provided just cause for his refusal to answer certain questions in the grand

      jury and requests therefore an order reversing the finding of civil contempt.

   2. The grand jury proceedings, including the Notes of Testimony of the January 12, 2015

       proceedings, are under seal. This Petition for Review, arising out of the grand jury

       proceedings, should also remain under seal.




                  Received in Supreme Court
                                                                            RECEIVED
                       JAN 3 2015                                                 JAN 26 2015

                           *le                                            SUPREME COURT
                                                                          EASTERN DISTRICT
   3. The annexed Attorney Verification is respectfully submitted in support of this Motion to

         File Under Seal.

                                                ectful   Submitted,



                                           Catherine M. Rec er
                                           Attorney ID No. 56813
                                           Welsh & Recker, P.C.
                                           Suite 2903
                                           2000 Market Street
                                           Philadelphia, PA 19103
                                           cmrecker@welshrecker.com
                                           215-972-6430

                                           Counsel for Joshua Morrow


Dated:          January 22, 2015
                    IN THE SUPREME COURT OF PENNSYLVANIA


In re The Thirty-Fifth Statewide                   Motion to File Petition for Review of
Investigating Grand Jury                           Contempt Order and Order Overruling
(Petition of Joshua Morrow)                        the Petitioner's Invocation of the
                                                   Fifth Amendment Before the
Supreme Court of Pennsylvania                      Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012                       Under Seal

Montgomery County Common Pleas
M.D.2644-2012


                                CERTIFICATE OF SERVICE


   I hereby certify that I did on this date serve the foregoing document by U.S. Mail upon the
           persons below, which service satisfies the requirements ofPa. R.A.P. 121:



                               Honorable William R. Carpenter
                              Montgomery County Court House
                                     2 East Airy Street
                                       P.O. Box 311
                                 Norristown, PA 19404-0311


                                Thomas E. Carluccio, Esquire
                      Special Prosecutor for the Investigating Grand Jury
                               Plymouth Greene Office Campus
                              1000 Germantown Pike, Suite D-3
                             Plymouth Meeting, PA 19462-2484




Date: January 22, 2015
                                                    Catherine M. Rec

              &NNW in &spate Court
                                                                                 CEil
                                                                               JAN 26 2015
                   JAN 3 0 2015
                         tide                                         SUPREME COURT
                                                                     EASTERN
                                                                             DISTRICT
                     IN THE SUPREME COURT OF PENNSYLVANIA


In re The Thirty-Fifth Statewide                      Motion to File Petition for Review of
Investigating Grand Jury                              Contempt Order and Order Overruling
(Petition of Joshua Morrow)                           the Petitioner's Invocation of the
                                                      Fifth Amendment Before the
Supreme Court of Pennsylvania                         Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012                          Under Seal

Montgomery County Common Pleas
M.D.2644-2012


                                ATTORNEY VERIFICATION


I, Catherine M. Recker, Esq., hereby verify the following:

   1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.

   2. My office, Welsh & Recker, P.C., is located at 2000 Market Street, Suite 2903,

       Philadelphia, Pennsylvania 19103.

   3. I represent Petitioner Joshua Morrow in this matter, and as such, am fully familiar with

       the facts and circumstances of this case.

   4. This Verification is respectfully submitted in support of Joshua Morrow's motion to file

       the enclosed Petition for Review of Contempt Order and Order Overruling the

       Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury

       under seal.

   5. I hereby state that the facts set forth in this motion are true and correct (or are true and

       correct to the best of my knowledge, information and belief) and that I expect to be able



                       fleouted in Surnme Court                             E EIVE
                            JAN 3 0 2015                                      JAN 26 2015

                                  iddls                              SUPREME COURT
                                                                    EASTERN DISTRICT
         to prove the same at a hearing held in this matter. I understand that the statements herein

         are made subject to the penalties of 18 Pa. C.S. § 4904.




Dated:          January 22, 2015
                                               Catherine M. Recker
                                               Attorney ID No. 56813
                                               Welsh & Recker, P.C.
                                               Suite 2903
                                               2000 Market Street
                                               Philadelphia, PA 19103
                                               cmrecker@welshrecker.com
                                               215-972-6430
RECEIVED
2/6/2015                                                                                      UNDER SEAL
Supreme Court
Middle District                                                                                            FILED
                                                                                                           2/6/2015
                                     IN THE SUPREME COURT OF PENNSYLVANIA                                  Supreme Court
                                                                                                           Middle District
                                                MIDDLE DISTRICT
                                                                                                      UNSEALED PER
                  In re The Thirty-Fifth Statewide                                                    ORDER OF THE
                  Investigating Grand Jury                                                            COURT DATED
                  18 MM 2015                                                                          AUGUST 26, 2015
                  Intermediate Court Docket No:
                  Trial Court: Montgomery County Court of Common Pleas
                  Trial Court Docket No: M.D. 2644-2012

                                 MOTION FOR EXTENDED TIME TO FILE AN ANSWER

                           Respondent, Thomas E. Carluccio, Esquire, hereby moves to file this enclosed
                  Motion For Extended Time To File An Answer to Petitioner's Petition filed above.
                        1. This motion is filed under seal.
                        2. Respondent received a notice from the Supreme Court on February 2, 2015
                           indicating that Petitioners brief would be due in fourteen (14) days to be extended
                           by three (3) days if service was effectuated by mail.
                        3. Respondent learned today, February 6,2015, that the answer to the Petitioner is
                           due on February 9, 2015.
                        4. Respondent is currently in the process of answering a separate brief for the
                           Supreme Court that is due on February 18, 2015.
                        5. Opposing Counsel for Petitioner, Catherine M. Recker, Esq., has informed
                           Respondent by phone that she does not oppose this motion.
                        6. Respondent is requesting a three(3)week extension.

                                                                        Respect lly Submitted,
                                                                                <

                                                                        Thomas E. Carluccio, Esq.
                                                                        Attomey ID No.: 81858
                                                                        Plymouth Greene Office Carnpus
                                                                        1000 Germantown Pike, Suite D-3
                                                                        Plymouth Meeting,PA 19462
                                                                        (484)674-2899
                  Dated: February 6, 2015

                  cc:      The Honorable William R. Carpenter, Judge
                           Catherine M. Recker, Esq.
                                                                            UNDER SEAL


                IN THE SUPREME COURT OF PENNSYLVANIA
                           MIDDLE DISTRICT


In re The Thirty-Fifth Statewide
Investigating Grand Jury
18 MM 2015
Intermediate Court Docket No:
Trial Court: Montgomery County Court of Common Pleas
Trial Court Docket No: M.D. 2644-2012


                            ATTORNEY VERIFICATION


 Thomas E. Carluccio, Esq. hereby verify the following:
   1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.
   2. My office, is located at Plymouth Greene Office Campus, 1000 Germantown
      Pike, Suite D-3, Plymouth Meeting, Pennsylvania 19462.
   3. This Verification is respectfully submitted in support of my Motion For Extended
       Tirne To File An Answer Before the Investigating Grand Jury under seal.
   4. I hereby state that the facts set forth in this motion are true and correct(or are true
      and correct to the best of my knowledge, information and belief) and that I expect
      to be able to prove the same at a hearing held in this matter. I understand that the
      statements herein are made subject to the penalties of 18 Pa. C.S. § 4904.




                                                      Respectfully Submitted,


                                                     Thomas E. Carluceio, Esq.
                                                     Attorney ID No.: 81858
                                                     Plymouth Greene Office Campus
                                                     1000 Germantown Pike, Suite D-3
                                                     Plymouth Meeting, PA 19462
                                                     (484)674-2899


Dated: February 6,2015
                                                                                SEALED

                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT                            UNSEALED PER
                                                                          ORDER OF THE
                                                                          COURT DATED
In re: The Thirty-Fifth Statewide         : No. 18 MM 2015                AUGUST 26, 2015
Investigating Grand Jury


Petition of: Joshua Morrow                : Application for Extension of Time




                                       ORDER


       AND NOW, this 9th day of February, 2015, the Special Prosecutor's "Motion for

Extension of Time to File an Answer is granted and a response to the Petition for

Review shall be filed on or before March 2, 2015.




                               (411#puty Prothonotary
                                                                               IJNDER SEAL

                                                                                              FILED
                                                                                              2/27/2015
                       IN THE SUPREME COURT OF PENNSYLVANIA                                   Supreme Court
                                  MIDDLE DISTRICT                                             Middle District
                                                                                            UNSEALED PER
    In re The Thirty-Fifth Statewide                                                        ORDER OF THE
    Investigating Grand Jury                                                                COURT DATED
    18 MM 2015                                                                              AUGUST 26, 2015
    Intermediate Court Docket No:
    Trial Court: Montgomery County Court of Common Pleas
    Trial Court Docket No: M.D. 2644-2012

                  MOTION FOR EXTENDED TIME TO FILE AN ANSWER

             Respondent, Thomas E. Carluccio, Esquire, hereby moves to file this enclosed
    Motion For Extended Time To File An Answer to Petitioner's Petition filed above.
          1. This motion is filed under seal.
          2. Respondents answer is due on March 2, 2015.
          3. Respondent avers there are pending issues before this court may render this
             motion either moot or withdrawn.
          4. Opposing Counsel for Petitioner, Catherine M. Recker, Esq., has informed
             Respondent by phone that she does not oppose this motion.
          5. In addition, Opposing Counsel for Petitioner, will be out of the county from
             March 7, 2015 to March 21, 2015.
          6. Respondent is currently preparing for argument before The Supreme Court of
             Pennsylvania on March 11, 2015.
          7. Respondent is requesting a four(4) week extension.

                                                          Respectfully Submitted,


                                                         Thomas E. Carluccio, Esq.
                                                         Attorney ID No.: 81858
                                                         Plymouth Greene Office Campus
                                                          1000 Germantown Pike, Suite D-3
                                                         Plymouth Meeting,PA 19462
                                                         (484)674-2899
    Dated: February 27,2015

    cc:      The Honorable William R. Carpenter, Judge
             Catherine M. Recker, Esq.
RECEIVED
2/27/2015
Supreme Court
Middle District
                                                                          UNDER SEAL


                IN THE SUPREME COURT OF PENNSYLVANIA
                           MIDDLE DISTRICT

In re The Thirty-Fifth Statewide
Investigating Grand Jury
18 MM 2015
Intermediate Court Docket No:
Trial Court: Montgomery County Court of Common Pleas
Trial Court Docket No: M.D. 2644-2012

                            CERTIFICATE OF SERVICE

       I hereby certify that I did on this date serve the foregoing document by U.S. Mail
upon the persons below, which service satisfies the requirements of Pa. R.A.P. 121:

                            Honorable William R. Carpenter
                           Montgomery County Court House
                                   2 East Airy Street
                                     P.O. Box 311
                              Norristown, PA 19404-0311

                              Catherine M. Recker, Esquire
                                  Welsh & Recker, P.C.
                                       Suite 2903
                                   2000 Market Street
                                 Philadelphia, PA 19103




Dated: February 27, 2015
                                                    Thomas E. Carluccio, Esquire
                                                                             SEALED

                   IN THE SUPREME COURT OF PENNSYLVANIA                     UNSEALED PER
                               MIDDLE DISTRICT                              ORDER OF THE
                                                                            COURT DATED
                                                                            AUGUST 26, 2015
In re: The Thirty-Fifth Statewide         : No. 18 MM 2015
Investigating Grand Jury


Petition of: Joshua Morrow                : Application for Extension of Time —
                                          : Second Request



                                       ORDER


       AND NOW, this 27th day of February, 2015, the Special Prosecutor's "Motion for

Extension of Time to File an Answer" is granted and a response to the Petition for

Review shall be filed on or before March 30, 2015.
                                                                            Fifed in Supreme Goun
                                                                                MAR 3 0 2015
---------------------U-N-D-ER-SE_A_L_                                              Middle
                                                                                 UNSEALED PER
IN RE:                             SUPREME COURT OF PENNSYLVANIA
                                                                                 ORDER OF THE
                                              NO. 18 MM 2015
                                          176 M.D. Misc. Dkt. 20 I 2             COURT DATED
THE 35TH STA TE WIDE
                                                                                 AUGUST 26, 2015
INVESTIGATING GRAND JURY
                                   Montgomery County Court of Common Pleas
                                               M.D. 2644-2012




Response of the Special Prosecutor in Opposition to the Petition for Review
of Contempt Order and Order Overruling the Petitioner's Invocation of the
          Fifth Amendment before the Investigating Grand Jury




                                     Thomas E. Carluccio, Esquire
                                     Attorney 1.0. No. # 81858
                                     Plymouth Greene Office Campus
                                     1000 Germantown Pike, Suite D-3
                                     Plymouth Meeting, PA 19464-2484
                                     (484) 674-2899
                                     Special Prosecutor of Investigating
                                     Grand Jury No. #35




Dated: March 30. 2015
                                                                    Received in Supreme Court

                                                                           MAR 3 O 2015

                                                                            Middle
       RESPONSE OF SPECIAL PROSECUTOR TO THE PETITION FOR REVIEW OF
         CONTEMPT ORDER AND ORDER OVVERRULING THE PETITIONER'S
       INVOCATION OF THE FIFTH AMENDMENT BEFORE THE INVESTIGATING
                                GRAND JURY

         Thomas E. Carluccio, Special Prosecutor to the Investigating Grand Jury, hereby

responds to the Petition for Review of the Contempt Order and Order Overruling the Petitioner's

Invocation of the Fifth Amendment before the Investigating Grand Jury:

I.       INTRODUCTION

         1. Admitted.

11.      THE PARTY SEEKING REVIEW

        2. Admitted.

III.     .JURISDICTION

         3. Admitted.

         4. Admitted.

         5. Admitted.

         6. Admitted.

IV.      THE COURT BELOW

         7. Admitted.

V.       THE ORDERS TO BE REVIEWED

         8. Admitted.

VI.      STATEMENT OF OBJECTIONS TO THE ORDERS BELOW

        9. Denied, as a conclusion of law.

VII.     THE RELIEF SOUGHT

         l 0. Denied, as a conclusion of law. The Respondent requests that the Contempt Order be

            upheld. A Brief in support of this response is attached hereto.


                                                  2
    WHEREFORE, the Petition for Review of the Contempt Order and Order Overruling the

Petitioner's Invocation of the Fifth Amendment before the Investigating Grand Jury should be

denied.




                                           Thomas E. Carluccio, Esquire
                                           Attorney I.D. No. # 81858
                                           Plymouth Greene Office Campus
                                           1000 Germantown Pike, Suite D-3
                                           Plymouth Meeting, PA 19464-2484
                                           (484) 674-2899
                                           Special Prosecutor of Investigating
                                           Grand Jury No. #35




                                               3
                                        VERIFICATION


       I, Thomas E. Carluccio, Esquire as Special Prosecutor to the Investigating Grand Jury

Number 35 appointed by the Pennsylvania Supreme Court, hereby represent that the averments

in the foregoing Response of the Special Prosecutor in Opposition to the Petition for Review of

Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment

before the Investigating Grand Jury are true and correct to the best of my knowledge,

information, and belief. I understand that false statements herein are made subject to penalties of

18 Pa. C.S.A. Section 4904 relating to unsworn falsifications to authorities.




Dated: March 30. 2015
                                                     Thomas E. Carluccio, Esquire
                                                     Attorney I.D. No. # 81858
                                                     Plymouth Greene Office Campus
                                                     1000 Germantown Pike, Suite D-3
                                                     Plymouth Meeting, PA 19464-2484
                                                     (484) 674-2899
                                                     Special Prosecutor of Investigating
                                                     Grand Jury No. #35




                                                 4
                                                                                    Fifed mSupreme Coun
                                                                                          MAR 3 v 2015

                                                                                             Middll7
                                                                        UNSEALED PER
                                                                     UNDER SEAL
                                                                        ORDER OF THE
NRE:                                      SUPREME COURT OF PENNSYLVANIA COURT DATED
                                                    NO. 18 MM 2015      AUGUST 26, 2015
THE 35TH ST ATE WIDE                                 I 76 M.D. Misc. Dkt. 2012
INVESTIGATfNG GRAND JURY
                                           Montgomery County Court of Common Pleas
                                                          M.D. 2644-2012




  Memorandum in Support of the Response of the Special Prosecutor in
   Opposition to the Petition for Review of Contempt Order and Order
 Overruling the Petitioner's Invocation of the Fifth Amendment before the
                         Investigating Grand Jury

                                     INTRODUCTION

       Joshua Morrow, Petitioner, has a filed a Petition for Review of the Contempt Order and

Order Overruling the Petitioner's Invocation of the Fifth Amendment and asserts that the Fifth

Amendment supports his refusal to·answcr certain questions in the Grand Jury and requests an

order reversing the finding of civil contempt. The Thirty-Fifth Statewide Investigating Grand

Jury was convened to investigate whether Grand Jury information from a 2009 Grand Jury was

released in violation of the Grand Jury Act. During the course of the Investigating Grand Jury, it

was determined that the testimony of Joshua Morrow, a political and campaign consultant to

Attorney General Kathleen Kane, would be needed.

       As such, a subpoena was issued for Joshua Morrow for testimony on November 21, 20 I4.

A follow-up subpoena was issued for Joshua Morrow for testimony on January 12, 2015 for the

purpose of correcting testimony provided on November 21, 2014. Morrow did testify before the

                                                                              Received in Supreme Court
                                                5
                                                                                   MAR 3 0 2015

                                                                                      Middle
Grand Jury on January 12, 2015, but anytime a question was raised concerning conversations

with Attorney General Kane, Morrow invoked the Fifth Amendment.

       A hearing was conducted concerning Morrow's invocation of the Fifth Amendment,

followed by an in camera hearing behveen the Petitioner's Attorney and the Supervising Judge

without the presence of the Special Prosecutor. As a result, the parties presented Arguments to

the Grand Jury Supervising Judge William R. Carpenter. At the conclusion of the Argument,

Judge Carpenter found Mr. Morrow's exercise of the Fifth Amendment was "illusory and not a

proper exercise of the privilege and held Petitioner in contempt." On January 12, 2015 Judge

Carpenter stayed the contempt order pending the Petitioner's appeal to this court for review, and

on January 22, 2015 a timely Petition was filed with the Pennsylvania Supreme Court requesting

that the contempt order be overruled.

                                        BACKGROUND

       On November 21, 2014, Joshua Morrow testified before the Grand Jury. During that

testimony Morrow stated that at the end of April [2014], he had brief phone conversation with

Attorney General Kane. At the time of that conversation, Morrow testified that Attorney General

Kane asked Morrow to call Adrian King but nothing of substance was discussed, and he further

stated that did not know what Attorney General was calling about. (T-6, 7). Shortly thereafter,

Morrow stated he did call Adrian King, who at the time was serving as First Assistant to

Attorney General Kane. Morrow testified that, during this initial conversation, Adrian King

stated he had some documents he wanted to give to a reporter and that he would call him back.

(T-7). Morrow stated that he believes King told him the documents included a transcript and an

internal memo (T-9). Morrow stated he \Vent and picked up the documents from King in an

unsealed folder. (T-10). Morrow then stated he met with Chris Brennen of the Daily News at his

house and gave him the documents removed from the folder. (T-12 to T-15).

                                                6
         On January 12, 2015, Morrow again testified before the Grand Jury to correct some

previous misstatements he made concerning Adrian King in his testimony on November 21,

2014. Morrow now stated that, upon fu11her reflection and research, he found that there was

probably no way that he had a long discussion or a substantial discussion with Adrian King about

the documents. (T-16) Morrow now testified that the envelope was sealed, and he did not recall

having any discussion about the documents with King and he wanted to correct the record. (T-4

to T-6). However, when Morrow was asked questions concerning his conversations or e-mails

with Attorney General Kane, Morrow stated throughout his testimony that, 'on advice of

counsel, I respectfully decline to be compelled to be a witness against myself' (T-7). He

continued to invoke the fifth Amendment on any question asked relating to Attorney General

Kathleen Kane.

         The parties then presented argument to the Grand Jury Supervising Judge, William

Carpenter. The Court evaluated whether the invocation of the Fifth Amendment privilege was

re~!   or illusory. Commonwealth v. Long 533 Pa. 388, 625 A.2d 630 (1993). After such

argument the Judge found Petitioner's exercise of the Fifth Amendment was illusory and not a

proper exercise of the privilege and held Petitioner in contempt. The court stayed the contempt

order while Petitioner appealed to this court for review.

                                           ARGUMENT

Petitioner assertion of the Fifth Amendment privilege is illusory because there is no crime
associated with his answers except Perjury in this proceeding.



         "The witness is not exonerated from answering merely because he declares that in so

doing he would incriminate himself-his say-so does not of itself establish the hazard of

incrimination. It is for the com1 to say whether his silence is justified." Hoffinan v. United

Slates, 341U.S.479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). "It is always for the court to

                                                  7
judge if the silence is justified, and an illusory claim should be rejected. However, for the court

to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration

of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination

and the answers demanded cannot possibly have such tendency." Id.        See Also, Commonwealth

v. Rolon, 486 Pa. 573 (1979); Commonwealth v. TreaT, 848 A.2d 147 (Pa. Super. 2004). The

Supervising Judge of the 35th Statewide Investigating Grand Jury made just such a "careful

consideration" and determined petitioner's Fifth Amendment claim illusory.


       Petitioner claims that since there were charges recommended by the Grand Jury for

violations including "Obstruction [of] Administration of Law or Other Governmental Function,

18 Pa. C.S.A. § 5104" that somehow Petitioner could also be implicated in such crimes as a link

in the chain since he and Attorney General Kathleen Kane had discussion about these matters. In

addition, Petitioner claims to be political/campaign consultant for Attorney General Kane who

does not work for or in the Office of Attorney General, and was not a participant in 2009 Grand

Jury investigation of J. Wyatt Mondesire.

       Petitioner believes that a blanket assertion that he is a "link in the chain" in connecting

the leaked documents from the Office of Attorney General to the media is adequate to invoke the

privilege. However, the "links in the chain" must involve a chain of criminality for the witness

and not just for another. Petitioner has failed to demonstrate how he could possibly be in

violation of the Investigating Grand Jury Act, the Criminal History Records Information Act

(CHRIA) or any provision of the Pennsylvania Crimes Code as to the release of the OAG emails,

memorandums, or transcripts relating to the 2009 Grand Jury Investigation. Any testimony

pertaining to these OAG documents would not be incriminating to petitioner; and therefore, the

invocation of the Fifth Amendment privilege is illusory. Contrast this to Attorney General Kane


                                                  8
who, by virtue of her office, oath and position within the Office of Attorney General (OAG), has

a duty and responsibility under, at a minimum, the Criminal History Records Information Act

(CHRIA) and the Grand Jury Act to not release such information. These obligations do not

extend to Mr. Morrow.



Petitioner's assertion of the Fifth Amendment privilege is also illusory since he has already
placed himself as a link in the chain of evidence.


         Petitioner in his testimony on November 21, 2014 and January 12, 2015 admitted that he

was the link in the chain in providing information from Attorney General Kane to the media by

delivering documents to a reporter for 'The Philadelphia Daily News' that contained Grand Jury

information; specifically, emails, the transcript of OAG Special Agent Michael Milletto (about

the Mondesire Grand Jury investigation), and a 2009 internal memorandum from The Office of

the Attorney General. As a result, the Petitioner has already admitted under oath that he is a link

in the chain of the delivery of the documents. In addition, he testified - albeit in an incomplete

and inaccurate manner - about conversations pertaining to the delivery and purpose of these           .,
                                                                                                      I   '

documents. The Petitioner's Admission to being a link in the chain of delivering the documents

to 'The Philadelphia Daily News,' and conversations with Attorney General Kathleen Kane

could implicate those in the Office of Attorney General who directed the release, but not himself.

Petitioner cannot invoke the Fifth Amendment in an effort to shield another from liability. The

Petitioner should be compelled to provide pertinent testimony of conversations between the

Attorney General and himself as to the delivery of the documents to 'The Philadelphia Daily

News.'




                                                 9
        Petitioner has no right, privilege, or criminal liability; and therefore, Petitioner's

testimony should be compelled to testify about his conversation and actions concerning the

delivery of documents to 'The Philadelphia Daily News.' The Judge's Contempt Order should

not be overruled.


                                           CONCLUSION

        Petitioner's exercise of his constitutional rights under the Fifth Amendment was not

legitimate and is illusory. For the reasons set forth above, Respondent respectfully request this

Court find that the lower did not abuse its discretion and uphold the finding of contempt against

the Petitioner.




                                                        Respectfully Submitted,                     !;




                                                                                                    I'

Date: March 30, 2015
                                                        Thomas E. Carluccio, Esquire
                                                        Attorney I.D. No. # 81858
                                                                                                    1.
                                                        Plymouth Greene Office Campus
                                                        I 000 Germantown Pike, Suite D-3
                                                        Plymouth Meeting, PA 19464-2484
                                                        (484) 674-2899
                                                        Special Prosecutor of Investigating
                                                        Grand Jury No. #35




                                                  10
                                                               SEALED
                                                                   UNSEALED PER
                 IN THE SUPREME COURT OF PENNSYLVANIA
                             MIDDLE DISTRICT                       ORDER OF THE
                                                                   COURT DATED
                                                                   AUGUST 26, 2015
IN RE: THE THIRTY-FIFTH STATEWIDE : No. 18 MM 2015
INVESTIGATING GRAND JURY          :
                                  :
                                  :
PETITION OF: JOSHUA MORROW        :


                                    ORDER


PER CURIAM
      AND NOW, this 18th day of May, 2015, the Application to File Under Seal is

GRANTED, and the Petition for Review is DENIED.
