J-A22011-15



                                   2016 PA Super 14

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

GRAHAM B. SPANIER,

                            Appellant                      No. 304 MDA 2015


               Appeal from the Order Entered January 14, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003615-2013


BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

OPINION BY BOWES, J.:                                  FILED JANUARY 22, 2016

         Graham B. Spanier appeals from the order denying his pre-trial

motions to preclude the introduction of testimony of Cynthia Baldwin 1 and

quash certain criminal charges against him based on violations of the

attorney-client privilege.2 We find that Ms. Baldwin breached the attorney-

client    privilege   and   was    incompetent   to    testify   as   to   confidential

____________________________________________


1
    Ms. Baldwin is a former Justice of the Pennsylvania Supreme Court.
Consistent with the parties and trial court below, and to avoid confusion, we
have not referred to her as Justice Baldwin since she was not acting in a
judicial capacity.
2
  We have jurisdiction over this appeal pursuant to the collateral order
doctrine codified at Pa.R.A.P. 313. See Commonwealth v. Schultz, __
A.3d __ (Pa.Super. 2015).

*
    Retired Senior Judge assigned to the Superior Court.
J-A22011-15



communications between her and Spanier during her grand jury testimony.

Accordingly, we reverse the trial court’s determination otherwise, and quash

the charges of perjury, obstruction of justice, and conspiracy related to

those counts.

       The Commonwealth has charged Spanier with perjury, failure to report

suspected child abuse, obstruction of justice, and conspiracy to commit

perjury, conspiracy to commit obstruction of justice, conspiracy to commit

endangering the welfare of a child (“EWOC”), and two counts of EWOC.3 The

charges stem from: 1) his treatment of allegations of sexual misconduct

against Gerald “Jerry” A. Sandusky, the former defensive coordinator for the

Penn State football team and founder of a non-profit charity serving

underprivileged youth, the Second Mile; 2) his testimony pertaining to his

handling of those matters before an investigating grand jury, and 3) the

testimony of Cynthia Baldwin.4

       Spanier is the former President of the Pennsylvania State University

(“Penn State” or “University”). In 2009, the Pennsylvania Office of Attorney

General (“OAG”) began investigating allegations that Sandusky sexually
____________________________________________


3
   The Commonwealth filed a single conspiracy count, which included all of
the conspiracy crimes mentioned above.
4
  Our recitation of the facts is based on the certified record, including the
grand jury presentments, unsealed testimony, and the factual findings of the
trial court. Insofar as Appellant’s testimony was not credited by the trial
court, we have not relied on that version of events.



                                           -2-
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abused children over an extended period. As part of the investigation, the

OAG convened a statewide investigating Grand Jury. During the course of

the investigation, the OAG learned of sexual misconduct by Sandusky that

occurred while he was on the campus of Penn State in 2001, as well as an

incident involving inappropriate behavior with a minor in 1998.

      The grand jury investigation revealed the following regarding the 1998

matter.   That incident involved an eleven-year-old boy.    See Thirty-Third

Statewide Investigating Grand Jury Sandusky Presentment, 11/4/11, at 18

(hereinafter Sandusky Presentment). Sandusky transported the victim from

the victim’s home to Penn State. Sandusky Presentment at 18. On the way

to the University, Sandusky placed his right hand on the boy’s thigh on

multiple occasions.   Id.   The pair lifted weights for approximately twenty

minutes before playing a game with a tape ball and cups.      Id. Sandusky

then wrestled with the victim, before instructing the boy to shower. Id. The

youngster attempted to shower away from Sandusky, but Sandusky

beckoned him closer and told him that he warmed up a shower for the child.

Id. at 18-19. Sandusky grabbed the boy from around his waist, lifting him

into the air. Id. at 19. He also washed the boy’s back and bear hugged the

child from behind, before rinsing the child’s hair. Id.

      When Sandusky returned the child to the boy’s home, the child’s

mother noticed that his hair was wet and became upset when she discovered

that he had showered with Sandusky.         Id.   She reported the matter to

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University Police, who initiated an investigation.         Id.   University Police

conducted a wiretap on Sandusky, with the permission of the boy’s mother,

recording two conversations. Id.           Sandusky admitted to showering naked

with the child and at one point stated that he wished he were dead. Id. at

20. He later told police that he hugged the child in the shower and admitted

that it was wrong. Id. No charges were ultimately filed.

       The grand jury investigation also revealed that in 2001, former Penn

State assistant football coach, Michael McQueary, who had been a

quarterback at Penn State, witnessed Sandusky commit a sexual assault

against a minor in a locker room shower on the main campus of the

University in February of 2001.           Id. at 6.   McQueary, then a graduate

assistant, reported this incident to head football coach Joe Paterno the next

day, a Saturday. Id. at 7. Paterno, in turn, reported the matter to Athletic

Director Tim Curley the following day. Id. Within two weeks of the shower

incident, McQueary met with Curley and Vice President of Finance and

Business Gary Schultz.5 Id. McQueary, who testified before the grand jury

prior to January 12, 2011, stated that he told the pair that he believed he

saw Sandusky having anal sex with a minor boy. Id.

       In contrast, Curley testified that they were only told of inappropriate

conduct and that there was no indication that Sandusky had engaged in anal
____________________________________________


5
    Schultz was in charge of campus police as part of his position.



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sex. Conversely, Schultz testified that he had been present for a meeting

with Paterno and Curley regarding the incident as well as a later meeting

with only Curley and McQueary. Schultz and Curley apprised Spanier that

Sandusky had been observed in the shower of the football building with a

child and that the person who witnessed the pair was uncomfortable.

Spanier acknowledged that meeting in his own grand jury testimony and

testified that he had been told that Sandusky had been witnessed in

horseplay in the shower with a child.

     Spanier advised Curley and Schultz that “something like that could be

misconstrued and probably we wanted to discourage people bringing

younger kids into our facilities.” N.T., Grand Jury Proceeding, 4/13/11, at

16. Hence, he instructed them to inform Sandusky not to bring children into

the locker room and to contact the chair of the Second Mile foundation. No

other action was taken.

     As part of the criminal investigation into Sandusky, the OAG

subpoenaed Schultz, Curley, and Paterno in December 2010.      In addition,

Ms. Baldwin was served with a subpoena duces tecum, Grand Jury Subpoena

1179, for University documents referencing or related to Jerry Sandusky

after 1997.   Although the University was served with that subpoena in

December 2010, it was not until April 2012 that relevant documents were

turned over. Although Ms. Baldwin maintained that she informed Spanier of

the subpoena and asked if he, Schultz, and Curley had any documents, to

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which they responded in the negative, she did not follow University protocol

in ensuring compliance with that subpoena.6

       After Ms. Baldwin alerted Spanier to the University subpoena and

informed him of the subpoenas for Curley, Paterno, and Schultz, she agreed

that she would represent each of them before the grand jury.         Paterno,
____________________________________________


6
   A grand jury report noted that, “investigation into whether the University
fully complied with the subpoena determined that no effort was made to
search the Athletic Department, where Sandusky had been employed for
over 30 years, or to search any of the electronically stored date at the
University or emails or other documents[.]” Grand Jury Presentment No. 29,
at 23. The Grand Jury further concluded,

       Penn State had in place a well-defined historical practice and
       procedure for responding to subpoenas. Subpoenas that might
       encompass electronically stored data (such as emails and
       documents stored on a computer or network drive) would
       routinely be sent to the specialized unit called the “SOS.” These
       information technology professionals were trained and dedicated
       to assembling responsive electronically stored date in response
       to litigation needs or other legal process. None of the SOS
       professional were ever shown subpoena 1179, nor were they
       directed to seek any information requested by subpoena 1179
       before the arrests of Sandusky, Schultz and Curley.

Id.

      Ms. Baldwin asserted in her grand jury testimony that she was
dependent on the Athletic Department, the President’s office, and Vice
President’s office to comply with the subpoena. Ms. Baldwin also informed
the supervising grand jury judge in April of 2011 that she “had the IT
people—I’ve been pushing the IT people and I believe that we can cull those
[documents] out for you, that we can do all of those.” N.T., 4/13/11, at 27.
The grand jury report revealed that, in addition to the SOS unit, other
individuals employed in the Penn State information technology department
maintained that they were not asked to locate such documents. Grand Jury
Presentment No. 29, at 23-24.



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however, elected to retain his own attorney. Ms. Baldwin met independently

with Curley on January 3, 2011, and later met with Schultz on January 5,

2011, to explain the grand jury process.       She attended pre-grand jury

testimony interviews conducted by the OAG with Curley and Schultz on

January 12, 2011.    She also was present for the grand jury testimony of

both Curley and Schultz on that same date.

      Spanier was summoned to testify before the grand jury on April 13,

2011. Before his grand jury testimony, Spanier was interviewed by the OAG

in March of 2011.    Ms. Baldwin was present for that interview.       Prior to

Spanier’s April testimony, but on the same day of that testimony, Ms.

Baldwin objected to the scope of Subpoena 1179 before Judge Barry

Feudale, the grand jury supervising judge.

      After she left the room, and outside of Spanier’s presence, the OAG

represented to Judge Feudale that the recollections of Curley and Schultz

pertaining to the 2001 incident were inconsistent.    The OAG further noted

that, based on the testimony of Paterno and McQueary, it believed that the

testimony of Curley and Schultz lacked credibility. The OAG also indicated

that Spanier, in his interview, had provided a story, similar to Curley’s, that

he had only been told of nonsexual horseplay. These representations were

made in discussions over the scope of Subpoena 1179, which had not yet

been complied with by Ms. Baldwin and the University. Hence, it was clear

at that point to both Judge Feudale and the OAG that the grand jury was

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investigating the actions of high-ranking Penn State officials, including

Curley, Schultz, and Spanier.

     During this exchange, Judge Feudale referred to Ms. Baldwin as

counsel for Spanier, setting forth to Deputy Attorney General Jonelle

Eshbach, “It appeared that counsel for Mr. Spanier initially expressed

concern about recent disclosures and didn’t get specific about that and then

indicated    that   there   was    a   broad    amount   of   materials    that    were

subpoenaed[.]” N.T., Grand Jury Subpoena/Colloquy Proceeding, 4/13/11,

at 17.      Thereafter, the OAG averred, with respect to Spanier testifying,

“We’re not going to ask him about anything related to the subpoena.                   I

didn’t hear Attorney Baldwin object to his testimony yet.” Id. at 22. The

court then brought Ms. Baldwin back into the room.              At one point, Judge

Feudale stated to Ms. Baldwin, “I also learned that evidently the testimony

of your witness today could proceed without the discussions, especially since

you didn’t file a written motion to quash and wasn’t [sic] very specific with

regard to what it is that you felt was inappropriately subpoenaed or

whatever concerns you were having with regard to compliance with the

subpoena.” Id. at 23.

     Subsequently,      after     discussions   regarding     compliance    with    the

Subpoena 1179 were coming to a close, Judge Feudale inquired, “Cindy,

[Ms. Baldwin] just for the record, who do you represent?”                  Id. at 28.

Outside the presence of Spanier, and for the first time on the record, Ms.

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Baldwin responded, “The university.” Id. Judge Feudale followed up, “The

university solely?”     Ms. Baldwin answered, “Yes, I represent the university

solely.” Id.

       Immediately after this questioning, Spanier was brought into the

room. Judge Feudale then colloquied Spanier, with Ms. Baldwin present, as

follows.

       [Y]ou have the right to the advice and assistance of a lawyer.
       This means you have the right to the services of a lawyer with
       whom you may consult concerning all matters pertaining to your
       appearance before the Grand Jury.

              You may confer with your lawyer at any time before,
       during and after your testimony. You may consult with your
       lawyer throughout your entire contact with the Grand Jury. Your
       lawyer may be present with you in the Grand Jury room during
       the time you’re actually testifying and you may confer with him
       or with her at that time.

              You may at any time discuss your testimony with your
       lawyer and except for cause shown before the Court, you may
       disclose your testimony to whomever you choose, if you choose.

Id. at 29-30.

       Despite Ms. Baldwin’s earlier averment that she solely represented the

University, Judge Feudale did not colloquy Spanier regarding the scope or

type of representation he was being afforded by Ms. Baldwin. 7 Additionally,

____________________________________________


7
   Judge Feudale, in an opinion addressing motions seeking quashal of the
grand jury presentments, filed before him by Spanier, Curley, and Schultz,
opined in dicta, “In hindsight, perhaps I erred in not asking follow up
question about the role of corporate counsel Baldwin. I regret and perhaps
(Footnote Continued Next Page)


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the OAG did not express concern over Ms. Baldwin being present for

Spanier’s testimony. Upon entering the grand jury room, the OAG queried,

“Sir, you’re represented by counsel today?”         N.T., 4/13/11, at 3.   Spanier

responded, “Yes.” The OAG then asked, “Could you just identify counsel?”

Id. Spanier answered, “Cynthia Baldwin sitting behind me.” Id.8

      The OAG questioned Spanier extensively about information he received

regarding the 1998 and 2001 Sandusky incidents from Curley and Schultz.

In addition, it queried Spanier about his involvement in general criminal

matters occurring on the Penn State campus.           Spanier acknowledged that

“There was one time when our athletic director and senior vice president,

the two individuals you mentioned earlier came to seek my advice on a

matter relating to Jerry Sandusky.” N.T., Grand Jury Testimony, 4/13/11, at

12. He continued that,

      They asked if they could come over to my office to see me
      because the athletic director, Mr. Curley, had been approached
      by a member of his staff saying that he was somewhat
      uncomfortable because Jerry Sandusky in the football building
      locker room area in the shower was with a younger child and
      that they were horsing around in the shower.
                       _______________________
(Footnote Continued)

committed error in not asking any follow up questions but while I am
unaware of what the response would have been, I fail to discern how such
would persuade me at this stage why [the] presentments should be
dismissed.” Judge Feudale Opinion, 4/9/13, at 11. Ultimately, Judge
Feudale ruled that he lacked jurisdiction to consider the motions in question.
8
   We note that supervising grand jury judges are not present in the
courtroom during the questioning of grand jury witnesses.



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Id. at 15.   Spanier submitted that they asked for his advice and that he

instructed them that they should inform Sandusky to refrain from bringing

children under eighteen years of age into the locker room facilities and to

contact the board chair of the Second Mile Foundation. When asked about

the 1998 police investigation into Sandusky, Spanier denied ever being

informed of that investigation, but admitted that he had been copied on

emails in 1998 involving that matter. During the course of Spanier’s grand

jury testimony, Ms. Baldwin did interrupt to consult with him and allow him

to clarify certain matters not material herein.

      Thereafter, in December of 2011, the OAG expressed significant

frustration with Ms. Baldwin’s failure to comply with its document subpoena

request and threatened the University, and ostensibly her, with possible

contempt of court “and any other appropriate measures applicable to

obstruction against the institution and those individuals responsible for these

decisions.” Letter from OAG to Ms. Baldwin, 12/19/11, at 2.     Subsequently,

the Commonwealth and Ms. Baldwin entered into discussions regarding her

testifying before the grand jury about the responses of Curley, Schultz and

Spanier pertaining to her document requests related to Sandusky. See N.T.,

Grand Jury Conference, 10/22/12, at 2 (“the Office of Attorney General has

been conversing with Cynthia Baldwin’s counsel and eventually Cynthia

Baldwin in the context of a proffer discussion.”).



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      New general counsel for Penn State, Michael Mustokoff, asked Judge

Feudale for a conference concerning privilege matters prior to Ms. Baldwin

testifying before the grand jury on October 22, 2012. Mr. Mustokoff agreed

that the University would waive its own privilege with respect to Ms.

Baldwin, but explicitly declined to waive any privilege that might exist

between Ms. Baldwin and Curley and Ms. Baldwin and Schultz. Specifically,

Mr. Mustokoff wrote,


      We have waived the University’s privilege as to those documents
      with two critical exceptions:

      ...
      (2) any communications between Justice Baldwin and Messrs.
      Schultz and Curely. We have previously shared our concerns
      about the Schultz/Curley communications with you and
      memorialized them in our October 2, 2012 letter to Judge
      Feudale.

Letter from Michael Mustokoff to Chief Deputy Attorney General Frank Fina,

10/19/12, at 1.

      In preparation for Ms. Baldwin’s grand jury appearance, Judge Feudale

conducted a conference with Mr. Mustokoff, the OAG, and Ms. Baldwin’s

attorney on October 22, 2012. Due to the secrecy attendant to grand jury

proceedings, Spanier was not aware that Ms. Baldwin was going to testify

and could not lodge any objection.      New counsel for Curley and Schultz

already had provided letters to the OAG, Judge Feudale, and counsel for Ms.

Baldwin, invoking the attorney-client privilege.



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       Counsel for Penn State astutely noted that it could not waive any

privilege that Curley and Schultz might have and again declined to waive its

privilege as to communications between Ms. Baldwin and Curley and Schultz.

The OAG, via Attorney Frank Fina, submitted at that time that it would not

question Ms. Baldwin about matters that could involve potential confidential

communications       between      Curley,      Schultz,   Spanier   and   Ms.   Baldwin.

Attorney Fina expressly set forth,

       But at this point, Your Honor, we are willing to put Miss Baldwin
       in the grand jury without addressing any of the issues related to
       the testimony of Mr. Schultz and Mr. Curley and conversations
       she had with them about that testimony and put that—put those
       matters on hold until we get a Court determination regarding the
       privilege and we can address that later on.

Id. at 6.9



____________________________________________


9
    Pa.R.Prof.Conduct 3.10 precludes a prosecutor from subpoenaing an
attorney to appear before a grand jury where the prosecutor is seeking to
compel the attorney to provide evidence regarding a person who is or has
been represented by the attorney. The rule reads in its entirety,

       A public prosecutor or other governmental lawyer shall not,
       without prior judicial approval, subpoena an attorney to appear
       before a grand jury or other tribunal investigating criminal
       activity in circumstances where the prosecutor or other
       governmental lawyer seeks to compel the attorney/witness to
       provide evidence concerning a person who is or has been
       represented by the attorney/witness.

Pa.R.Prof.Conduct 3.10.




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       Shortly thereafter, Mr. Fina submitted, “There may well be [privilege]

claims down the road by [counsel for Mr. Schultz and Mr. Curley], and

perhaps even counsel for Graham Spanier; but that is, you know, the risk

that the Commonwealth is ready to bear because we believe that we are

soundly within the [University] waiver.” Id. at 11.

       Judge Feudale, relying on the representations of Mr. Fina, stated,

       I’m satisfied based on what you placed on the record that [Ms.
       Baldwin] is clearly able to proceed on testimony with the
       stipulation that you communicated that you’re not going to get
       into an inquiry as to her representation and what that meant
       with regard to Mr. Curley, Mr. Schultz, and perhaps, as you said,
       also Mr. Spanier.

Id. at 11-12.10

       Judge Feudale provided the same colloquy regarding the right to

counsel to Ms. Baldwin as he did to Curley, Schultz, and Spanier.           After

entering the courtroom, Ms. Baldwin indicated that she was present with and

accompanied by two attorneys.             Those attorneys were representing her

personally. Despite the foregoing representations by Mr. Fina, a significant


____________________________________________


10
    The Commonwealth did not raise any argument that Ms. Baldwin could
testify regarding any privileged communications as a result of the crime-
fraud exception to the attorney-client privilege. See In re Investigating
Grand Jury of Philadelphia County, 593 A.2d 402, 406-07 (Pa. 1991)
(crime-fraud exception excludes from protection those communications
between an attorney and client that are made for the purpose of committing
a crime or fraud).




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number of the Commonwealth’s questions to Ms. Baldwin before the grand

jury implicated potential confidential communications.11

       In response to a question regarding the earlier OAG interview with

Spanier, Ms. Baldwin responded,

              Oh, there was an interview with Graham on March 22nd,
       yes. So that what happened, of course, is the Office of Attorney
       General contacted me and said that they would like to interview
       the President and because the President has a busy schedule
       and I can’t commit the President, I had to contact his office and
       tell them that the Office of Attorney General wanted to meet
       with him and there were certain dates.

             So the date that was agreed upon was March 22nd and on
       March 22nd, I actually went with the President to meet with the
       Office of Attorney General in their State College office at which
       time he was interviewed.

N.T. Grand Jury Testimony, 10/26/12, at 22.

       The questioning continued as follows.

       Mr. Fina: Okay. Now, tell us, if you would, about your
       discussions with Spanier before that interview.        I’m
       specifically interested in, you know, what anticipation of
       questions he would have had going into that interview.

       Ms. Baldwin: Okay. Because being interviewed by the Office of
       Attorney General is serious in itself, I said to him, you know,
       when they question you, Graham, they are going to talk about
       things like—they are going to use words like, sodomy and

____________________________________________


11
  In light of Attorney Fina’s representation to Judge Feudale, and mindful of
Pa.R.Prof.Conduct 3.10, we find his subsequent questioning of Ms. Baldwin,
absent prior judicial approval on the privilege question, to be highly
improper.




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     pedophile because I didn’t want him to be shocked by the
     questioning and the type of questioning.

               And you have to, you know—you have to be aware that
     they are going to use that and you have to tell the truth and you
     will go in and be interviewed. He said to me, you know, that is
     fine. I know that. No problem. That was it.

     Mr. Fina: Okay. Well, tell us about the context, too, that these
     questions were likely to arise. In other words, at that point in
     time, March of 2011, is Graham Spanier fully aware that he is
     likely to be asked about the 1998 investigation of Sandusky and
     the 2001 allegations of Mike McQueary?

     Ms. Baldwin: He is fully aware of both 1998 and what was then
     2002 but, yes. He was very aware of those and there is—there
     is no doubt because at some point, I became aware of the 1998
     and went to get the report.

     Mr. Fina: Okay, And let’s talk about that. You got the report
     from the 1998 investigation, I believe, in January of 2011,
     correct?

     Ms. Baldwin: Um hum. That is correct.

     Mr. Fina: And that copy of the report that you had, was it copied
     and given to Spanier or disbursed to Spanier, Schultz, Curley or
     tell us about that?

     Ms. Baldwin: No. It was not disbursed because we had certain
     considerations because of various laws that there are and
     because of that, our office got the copy; but it was not
     disseminated even though Graham was aware that I had gotten
     a copy of the report.

     Mr. Fina: Okay. Did he ever ask to—to read it or come to your
     office as far as you know and read it?

     Ms. Baldwin: No, he did not.

     Mr. Fina: And what was he telling you about the 1998
     investigation?



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     Ms. Baldwin: That he didn’t know anything.

     Mr. Fina: Now, however, before he comes to the interview, he
     knows that he is going to be questioned about that?

     Ms. Baldwin: He is aware of that.

     Mr. Fina: Okay. Now, is he aware of that just from his
     conversations with you or did he [sic] become aware that he was
     getting that information from somewhere else as well?

     Ms. Baldwin:   He appeared to be getting the information from
     elsewhere.

     Mr. Fina: Well, tell us, you know, what you came to understand.

     Ms. Baldwin: I came to understand that he was having other
     discussions with Mr. Curley and Mr. Schultz.

     Mr. Fina: Okay. That understanding—tell us how clear it was.
     Was that what Spanier was telling you?

     Ms. Baldwin: Correct.

     Later, Mr. Fina questioned Ms. Baldwin,

     Mr. Fina: And the testimony of Mr. Spanier is documented, and
     it is transcribed. But can you tell us, did he have the same
     approach to that testimony as he did to the interview.

     Ms. Baldwin: Yes, he did. I believe that it was only a couple of
     days later that I was notified that the Office of Attorney General
     want Graham to appear before the grand jury.

              And therefore, I had to, again, go to his administrative
     assistant and try to set up a time period. We went back and
     forth on dates. We got it all set up and that he was to appear.

              But when I went to tell him that they wanted—that they
     were going to subpoena—that he was going to have to testify
     before the grand jury, he said, sure, he was looking forward to
     it. He has never appeared before a grand jury.      It was, you



                                   - 17 -
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     know, a new experience for him.       It was—it was fine.   It was
     fine.

     Mr. Fina: Now, up to this point, tell us how informed you had
     been keeping the President about everything that you knew of
     this investigation.

     Ms. Baldwin: Well, the running joke in Old Main was that I had
     my own path up the stairs and across the rug to Graham’s office.

               Everything that I knew I was passing on to him so that
     he would be aware of everything that was going on with this
     particular matter.

     Mr. Fina: And when you say by everything, you literally mean
     everything, right?

     Ms. Baldwin: I literally mean everything.

Id. at 22-28.

     Thereafter, Mr. Fina and Ms. Baldwin had an exchange involving email

communications between her and Spanier, regarding his right to disclose his

own testimony.

     Mr. Fina: Okay. Now, this is interesting. After he sends that e-
     mail to you and [the Board member], you send him an e-mail
     directly without [the Board member] on it.

             And you say, Graham, those who testify before the
     grand jury are not held to secrecy and can disclose if they so
     desire.

              If you wish, I can put together something that you can
     share with the Board from your perspective during a seminar.
     Cynthia.

     Ms. Baldwin: Right.




                                  - 18 -
J-A22011-15



     Mr. Fina: And again, this is entirely consistent with what you
     have told us that you are telling him that he can tell the Board,
     he can tell people?

     Ms. Baldwin: Right.

Id. at 32-33.

     Subsequently, Ms. Baldwin related what she disclosed to the Board of

Trustees as follows:

     I gave the presentation, talking about the whole grand jury
     process, talking about what had appeared in the newspaper,
     talking about, you know, what we knew, not saying anything
     about the testimony of Curley, Schultz, or Spanier because that
     was—they could disclose—I can’t disclose their testimony and so
     I told them about all of that.

            So all of that was there in 1998, the then—the 2000-what
     became the 2001 matter, what the grand jury was like, the fact
     that Mr. Curley and Mr. Schultz and Mr. Paterno had been called
     to testify, that Mr. Paterno had his own attorney. Yeah, I think
     that is about it.

Id. at 35-36.   Following some additional questions and answers, Mr. Fina

again inquired with Ms. Baldwin regarding discussions she had with Spanier:

     Mr. Fina: Now, as I understand it, and again, I don’t want to
     mischaracterize anything, what Spanier has been telling you
     through this whole period of time is that he knows nothing
     about the 1998 investigation of Sandusky, he didn’t know
     anything about it at the time, 1998?

     Ms. Baldwin: Correct.

     Mr. Fina: And that in 2001, he was told very little about that.
     Can you tell us what he specifically was saying to you
     about those two incidents?

     Ms. Baldwin: What he was saying is basically this: I’m the
     President of the University. With this situation, it was a situation

                                    - 19 -
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      I expected my Senior Vice President and Athletic Director to
      handle. Needless to say, they came to see me. We had a
      discussion, and I thought they handled it.

      Mr. Fina: Had he ever provided you any details about his
      involvement in the 2001 situation?

      Ms. Baldwin: I remember that he had talked about they had
      come to him and they had reached a decision on but what they
      were going to do and that he—his expectation was that Tim and
      Gary would take care of it.

      Mr. Fina: Well, in addition to that, did he ever articulate, you
      know, what it was that he was told seen in the shower?

      Ms. Baldwin: Yeah. Horsing around. Horseplay.

      Mr. Fina: And that was—are those the words or the type of
      words that he used repeatedly?

      Ms. Baldwin: Those are the words that he used. Horsing around
      and horseplay.

Id. at 39-40.

      For much of the remainder of Ms. Baldwin’s testimony, she was asked

questions about a Spanier press release and a televised interview that he

gave to the press. Based on her communications with him, she responded

that the majority of information that he supplied was false. She maintained,

“That he is—that he is not a person of integrity. He lied to me.” Id. at 70.

She then reiterated, “I can’t get inside his mind, but the fact is that there is

no doubt that he lied to me. I can’t think of any reason, other reason for

lying than trying to hide it from me.” Id.




                                     - 20 -
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      Following Ms. Baldwin’s testimony, that same day, the grand jury

recommended charges against Spanier for failure to report suspected child

abuse, perjury, obstruction of justice, EWOC, conspiracy to commit

obstruction of justice, conspiracy to commit perjury, and conspiracy to

commit EWOC.      The Commonwealth filed a criminal complaint containing

those charges on November 1, 2012, and the grand jury presentment was

attached to the complaint as the basis for the charges.

      A preliminary hearing against Curley, Schultz and Spanier was held on

July 29, 2013 and July 30, 2013.          Ms. Baldwin did not testify.       The

magisterial district court determined that a prima facie case existed against

Spanier and the case proceeded to the court of common pleas. Spanier filed

pre-trial motions to preclude Ms. Baldwin’s testimony due to a breach of the

attorney-client privilege, to quash the grand jury presentment, and to

suppress his own grand jury testimony and dismiss those charges that arose

out of that testimony based on the denial of adequate representation by Ms.

Baldwin.

      The court conducted a pre-trial hearing on December 17, 2013.           In

support of his pre-trial motions, Spanier sought to call Mr. Fina, Ms. Baldwin,

and   expert   witnesses   to   testify   regarding   Ms.   Baldwin’s   deficient

representation. The court precluded those witnesses from testifying. After

receipt of memoranda from the parties, the court scheduled additional

hearings on November 20-21, 2014, to consider testimony regarding the

                                     - 21 -
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scope of the alleged attorney-client privilege between Ms. Baldwin and

Schultz, Curley, and Spanier.           The court prohibited testimony from all

witnesses except Ms. Baldwin and the three defendants. It also prevented

Spanier and his counsel from being present during the testimony of his co-

defendants.     Ms. Baldwin, however, was present for the testimony of all

three men and testified after each of them.

       Thereafter, in an order entered on January 14, 2015, the trial court

concluded that Spanier was not denied counsel during his grand jury

testimony because Ms. Baldwin represented him as an agent of Penn State.

It further held that Ms. Baldwin did not represent Spanier in an individual

capacity and that her subsequent testimony did not violate the attorney-

client privilege because there was no privilege.         Spanier then filed this

interlocutory appeal, raising one issue for our review: “whether Ms.

Baldwin’s testimony violates Dr. Spanier’s attorney-client privilege, requiring

quashal of the charges that depend on her testimony and preclusion of such

testimony in any future proceedings in this case.” Appellant’s brief at 5.12



____________________________________________


12
  We note that Spanier filed with the trial court a motion to certify its order
under 42 Pa.C.S. § 702(b), to allow an interlocutory appeal by permission of
other issues pertaining to the attorney-client relationship. The trial court
denied that motion. Spanier petitioned this Court for review under Pa.R.A.P.
1311, however, this Court denied that petition.




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      In the companion case of Commonwealth v. Schultz, __ A.3d __

(Pa.Super. 2015), we outlined the basis of our jurisdiction to consider an

interlocutory appeal with respect to the attorney-client privilege.        For

reasons outlined therein, this appeal is properly before this Court.       In

Schultz, we also set forth the general principles of law governing the

attorney-client privilege as follows.

            An issue concerning whether a communication is protected
      by the attorney-client privilege presents a question of law. In re
      Thirty-Third Statewide Investigating Grand Jury, supra at
      215. Hence, our standard of review is de novo and our scope of
      review is plenary. Id. “Although now embodied in statute, the
      attorney-client privilege is deeply rooted in the common law.
      Indeed, it is the most revered of the common law privileges.”
      Commonwealth v. Chmiel, 738 A.2d 406, 414 (Pa. 1999)
      (internal citations omitted). In a criminal matter, “counsel shall
      not be competent or permitted to testify to confidential
      communications made to him by his client, nor shall the client be
      compelled to disclose the same, unless in either case this
      privilege is waived upon the trial by the client.” 42 Pa.C.S. §
      5916.

            This Court has opined, “Where legal advice of any kind is
      sought from a professional legal adviser in his capacity as such
      the communications relating to the purpose made in confidence
      by the client are at this instance permanently protected from
      disclosure by himself or by the legal adviser except the
      protection may be waived.” In re Gartley, 491 A.2d 851,
      858 (Pa.Super. 1985) (quoting 8 Wigmore, Evidence §§ 2292 at
      554 (McNaughton rev. 1961)).       Almost a century ago, our
      Supreme Court posited,

            the circle of protection is not so narrow as to exclude
            communications, a professional person may deem
            unimportant to the controversy, or the briefest and
            lightest talk the client may choose to indulge with his
            legal adviser, provided he regards him as such at
            the moment. To found a distinction on such a

                                        - 23 -
J-A22011-15



          ground, would be to measure the safety of the
          confiding party by the extent of his intelligence and
          knowledge, and to expose to betrayal these very
          anxieties which prompt those in difficulty to seek the
          ear of him in whom they trust, in season and out of
          season. The general rule is, that all professional
          communications are sacred.

     Alexander v. Queen, 253 Pa. 195, 203 (Pa. 1916).                 More
     recently, our Supreme Court declared,

          The purposes and necessities of the relation between
          a client and his attorney require, in many cases, on
          the part of the client, the fullest and freest disclosure
          to the attorney of the client's objects, motives and
          acts. This disclosure is made in the strictest
          confidence, relying upon the attorney's honor and
          fidelity. To permit the attorney to reveal to
          others what is so disclosed, would be not only a
          gross violation of a sacred trust upon his part,
          but it would utterly destroy and prevent the
          usefulness and benefits to be derived from
          professional        assistance.        Based        upon
          considerations of public policy, therefore, the
          law wisely declares that all confidential
          communications and disclosures, made by a
          client to his legal adviser for the purpose of
          obtaining his professional aid or advice, shall
          be strictly privileged; -- that the attorney shall not
          be permitted, without the consent of his client, --
          and much less will he be compelled -- to reveal or
          disclose communications made to him under such
          circumstances." 2 Mecham on Agency, 2d Ed., §
          2297.

     Commonwealth v. Maguigan, 511 A.2d 1327, 1333-1334 (Pa.
     1986) (emphasis added). Our Supreme Court has further
     opined,

          Recognizing that its purpose is to create an
          atmosphere that will encourage confidence and
          dialogue between attorney and client, the privilege
          is founded upon a policy extrinsic to the protection of

                                   - 24 -
J-A22011-15



          the fact-finding process. Estate of Kofsky, 487 Pa.
          473, 409 A.2d 1358 (1979). The intended
          beneficiary of this policy is not the individual client so
          much as the systematic administration of justice
          which depends on frank and open client-attorney
          communication. In re Search Warrant B-21778,
          513 Pa. 429, 521 A.2d 422, 428 (1987); Estate of
          Kofsky, supra.

     In re Investigating Grand Jury No. 88-00-3505, 593 A.2d
     402 (Pa. 1991). In addition, “in Pennsylvania, the attorney-
     client privilege operates in a two-way fashion to protect
     confidential client-to-attorney       or       attorney-to-client
     communications made for the purpose of obtaining or providing
     professional legal advice.” Gillard v. AIG Ins. Co., 15 A.3d 44,
     59 (Pa. 2011).

           The attorney-client relationship exists not only in one-on-
     one situations between an individual and an attorney, but it can
     also exist in a corporate environment in which general counsel or
     legal staff is present. “When the client is a corporation, the
     privilege extends to communications between its attorney and
     agents or employees authorized to act on the corporation's
     behalf.” In re Condemnation by City of Philadelphia in
     16.2626 Acre Area, 981 A.2d 391, 396 (Pa.Cmwlth. 2009)
     (citing Upjohn Co. v. United States, 449 U.S. 383 (1981)). In
     Upjohn, the United States Supreme Court analyzed the scope of
     the attorney-client privilege when the client is a corporation.
     Although Upjohn itself did not involve warnings or a discussion
     of a lawyer’s explanation regarding the scope of his
     representation, the Supreme Court observed that, under certain
     situations, information about the extent of the attorney-client
     relationship between a corporate counsel and an employee might
     be necessary. As a result of that case, “Upjohn warnings” have
     evolved that specifically inform a corporate employee that
     corporate counsel represents the corporation and not the
     individual, and that the corporation possesses the attorney-client
     privilege. See Grace M. Giesel, Upjohn Warnings, the Attorney-
     Client Privilege, and Principles of Lawyer Ethics: Achieving
     Harmony, 65 U. Miami L. Rev. 109, 110-111 (Fall 2010).

          In addition to the traditional attorney-client relationship
     and the corporate environment, the attorney-client privilege also

                                   - 25 -
J-A22011-15



       can exist in the context of co-defendants and their attorney or
       attorneys. When multiple defendants and their counsel engage
       in a common defense, the privilege is not waived by the sharing
       of confidential information among the parties for the benefit of
       the joint defense. See Commonwealth v. Scarfo, 611 A.2d
       242 (Pa.Super. 1992), superseded by statute on other ground as
       stated in Commonwealth v. Buck, 709 A.2d 892 (Pa. 1998);
       see also Pa.R.Prof.Conduct 1.6(a).

Schultz, slip opinion at 31-35 (footnote omitted).

       Spanier begins his argument by maintaining that Ms. Baldwin

represented him in his individual capacity when he testified before the grand

jury. He submits that Ms. Baldwin was his attorney for both his interview

with the OAG and his subsequent grand jury testimony. In his view, the trial

court’s decision finding that he was adequately represented in his official

capacity     by    Ms.    Baldwin’s      representation   of   the   University   is

unprecedented.13

       Spanier continues that Ms. Baldwin may only have limited the scope of

her representation if he provided informed consent, which he did not. Since

Ms. Baldwin did not ask for or obtain informed consent to limit her

representation, Spanier asserts that her representation of him was personal

____________________________________________


13
   We do note that the Commonwealth has failed to cite a single case where
a witness testified before a grand jury in an organizational or representative
capacity and the testimony offered was used to prosecute the individual in a
personal capacity. In contrast, the United States Supreme Court has held
that a witness cannot be made to testify before a grand jury as a
representative of an organization because any testimony would be personal.
See Curcio v. United States, 354 U.S. 118, 123-124 (1957).



                                          - 26 -
J-A22011-15



representation.   He adds that Ms. Baldwin’s own belief as to whom she

represented is immaterial because the critical inquiry is what the client

reasonably believed.       Spanier posits that he “reasonably believed that Ms.

Baldwin would act as his attorney, not solely as Penn State’s attorney.”

Appellant’s brief at 30.

      In further support of this view, Spanier notes that grand jury

testimony “is an inherently personal undertaking, involving personal rights

(like the right against self-incrimination) and personal liability[.]”   Id.   He

points out that he was subpoenaed to testify as an individual, identified Ms.

Baldwin as his lawyer, and consulted with her during his own testimony.

Spanier maintains that testifying in an official capacity versus an individual

capacity is “out of place in the context of a witness giving sworn testimony

before a grand jury.” Id. at 31. In this respect, he contends that a grand

jury witness’s right against self-incrimination is a personal privilege and

testifying before a grand jury is inherently personal.     Id. at 32.    Spanier

highlights that a custodian of records subpoenaed for documents cannot

invoke the right against self-incrimination to avoid disclosing documents.

However, he posits that oral testimony is distinct.        Continuing, Spanier

submits that the grand jury supervising judge advised him of his personal

rights and did not explain or provide any instructions relative to testifying in

an agency capacity.




                                       - 27 -
J-A22011-15



       Additionally, Spanier argues that the trial court’s reliance on In the

Matter of Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120

(3d Cir. 1988), Maleski by Chronister v. Corporate Life Ins. Co., 641

A.2d 1 (Pa.Cmwlth 1994), and United States v. Norris, 722 F.Supp. 2d

632 (E.D. Pa. 2010), was erroneous.14          His arguments are substantially the

same as those proffered in Schultz, supra. We have previously explained

our reasoning for agreeing with this contention in Schultz, and need not

undertake an additional discourse explaining Spanier’s arguments or why

those cases are inapplicable.

       Spanier also contends that his statutory right to counsel was violated if

Ms. Baldwin did not represent him personally. Indeed, we made a similar

finding in Schultz. Spanier avers that “[i]f the Commonwealth were correct

____________________________________________


14
   The test outlined in In the Matter of Bevill, Bresler & Schulman
Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1988), is as follows:

       First, they must show they approached counsel for the purpose
       of seeking legal advice. Second, they must demonstrate that
       when they approached counsel they made it clear that they were
       seeking legal advice in their individual rather than in their
       representative capacities. Third, they must demonstrate that the
       counsel saw fit to communicate with them in their individual
       capacities, knowing that a possible conflict could arise. Fourth,
       they must prove that their conversations with counsel were
       confidential. And, fifth, they must show that the substance of
       their conversations with counsel did not concern matters within
       the company or the general affairs of the company.

Bevill, supra at 125.



                                          - 28 -
J-A22011-15



that Ms. Baldwin did not represent Dr. Spanier as an individual, the

unavoidable implication would be that Dr. Spanier was denied his right to

personal counsel.” Appellant’s brief at 48. According to Spanier, “[o]n the

Commonwealth’s own theory, Dr. Spanier was compelled to testify without

the protection of counsel, and the charges against him should be quashed.”

Id. at 49 (citing Commonwealth v. McCloskey, 277 A.2d (Pa. 1971);

Commonwealth v. Cohen, 289 A.2d 96 (Pa.Super. 1972) (plurality)).15

        In addition, Spanier asserts that the rules of grand jury secrecy would

have been violated if Ms. Baldwin were present in the courtroom during his

testimony, but was not representing him in an individual capacity.                  He

maintains that Pa.R.Crim.P. 231(A), governing who can be present during

grand    jury   testimony,     allows    for   “[c]ounsel   for   the   witness   under

examination as provided by law.” For these reasons, Spanier posits that Ms.

Baldwin’s testimony regarding communications between him and her were

privileged and she was not competent to testify as to those communications

during her grand jury testimony.

____________________________________________


15
   We note that Spanier’s position regarding the right to counsel during a
grand jury proceeding is offered to demonstrate that Ms. Baldwin
represented him in an individual capacity and that an attorney-client
privilege existed. Unlike the appellant in Schultz, Spanier does not fully
develop the argument that, because of a denial of his statutory right to
counsel during his grand jury testimony, the charges should be quashed
based on a lack of personal counsel during that testimony. Accordingly, we
have not considered whether he is entitled to relief on that basis.



                                          - 29 -
J-A22011-15



        The Commonwealth’s initial response in this matter is identical to that

proffered in Schultz and Commonwealth v. Curley, __ A.3d __ (Pa.Super.

2015).     However, it also adds that Spanier waived any attorney-client

privilege that existed at the time Ms. Baldwin testified by revealing these

communications in public communications.           Specifically, it avers that

Spanier’s July 23, 2012 public letter to the Penn State Board of Trustees and

his later televised interview on ABC Nightline waived his privilege.

        Spanier counters that he did not waive his privilege because

“statements made outside the context of a judicial proceeding cannot trigger

a subject-matter waiver of the privilege over related communications.”

Spanier’s reply brief at 2. He adds that the Commonwealth itself declined to

invoke this waiver argument when Ms. Baldwin testified before the grand

jury.    Spanier notes that Pa.R.Prof.Conduct 3.10 requires prior judicial

approval before an attorney can be subpoenaed to testify about a client, and

that the Commonwealth, “having failed to request the necessary hearing and

create a record on its waiver argument, should not now be permitted to

press that argument on appeal.”       Appellant’s reply brief at 20.   Phrased

differently, Spanier contends that the Commonwealth waived its waiver

argument by not advancing it at the earliest stage of the proceedings: when

it sought Ms. Baldwin’s testimony.

        With respect to the merits of the Commonwealth’s position, Spanier

argues that the broad subject matter waiver doctrine used in federal court

                                     - 30 -
J-A22011-15



relative    to   the   attorney-client   privilege   has    not   been    adopted     in

Pennsylvania.      See Bagwell v. Pa.Dep’t of Educ., 103 A.3d 409, 419

(Pa.Cmwlth. 2014). Furthermore, his statements were made before he was

charged and did not occur during litigation, whereas the cases relied on by

the   Commonwealth,        concerning    subject     matter   waiver     of   privileged

communications, involved discovery disputes during the course of litigation.

See Nationwide Mt. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa.Super.

2007), affirmed by equally divided court, 992 A.2d 65 (Pa. 2010).                    He

continues, “it is settled law in Pennsylvania that an attorney remains subject

to her obligations under the attorney-client privilege, notwithstanding any

subsequent disclosure by the client of confidential information to third

parties.” Appellant’s reply brief at 22.

      We begin our analysis with a discussion of whether Spanier waived his

attorney-client privilege and find that he did not.        Initially, we note that this

is not a case where Spanier made his communications to his attorney in the

presence of other individuals. In that situation, the communications would

not be privileged. Loutzenhiser v. Doddo, 260 A.2d 745, 748 (Pa. 1970)

(“A communication between an attorney and his client is not privileged if (1)

it takes place in the presence of a third person[.]”). In contrast, if Spanier

told his attorney in private X, and also revealed that same fact to a friend,

that does not result in waiver of the privilege between the attorney and

client.    See Commonwealth v. Ferri, 599 A.2d 208, 211-212 (Pa.Super.

                                         - 31 -
J-A22011-15



1991) (disclosure to another person who was wearing a wire, did not waive

privilege   as   to   earlier   communications   with   attorney);    see   also

Commonwealth v. Clark, 500 A.2d 440 (Pa.Super. 1985) (discussing

marital-privilege).

      Here, at the time Ms. Baldwin testified, Spanier was not challenging

the adequacy of her representation nor were the communications in question

uttered to Ms. Baldwin in the presence of other individuals.         Nor did any

disclosure by Spanier occur in the course of litigation. That is, he did not

attempt to use the attorney-client privilege as a shield and a sword by

selectively disclosing certain information during pending litigation.       While

Spanier’s statements in his press release and in his televised interview could

be used against him, they do not remove the attorney-client privilege as to

his communications with Ms. Baldwin.

      Having determined that the Commonwealth’s belated waiver claim is

unavailing, we now proceed to consider the merits of Spanier’s arguments.

In Schultz, we found that the right to counsel during a witness’s grand jury

testimony is personal and is designed to protect the testifying individual

from offering incriminating testimony. Specifically, we opined, “the presence

of the attorney in the grand jury room would be rendered nugatory if that

lawyer is not present for the purpose of protecting the witness against

incriminating himself.” Schultz, slip opinion at 53. We added that grand

jury counsel must adequately explain to the client any limitations of his or

                                      - 32 -
J-A22011-15



her representation at a grand jury proceeding. In the absence of informing

the witness of such limitations and obtaining consent, the grand jury witness

is deprived of personal counsel.

      Consistent with our decision in Schultz, we find that Ms. Baldwin did

not adequately explain to Spanier that her representation of him was solely

as an agent of Penn State and that she did not represent his individual

interests. Although Spanier knew Ms. Baldwin was general counsel for Penn

State, this knowledge does not ipso facto result in Spanier understanding

that she represented him solely in an agency capacity before the grand jury.

Spanier was not aware that Ms. Baldwin was not appearing with him in order

to protect his interests and therefore unable to provide advice concerning

whether he should answer potentially incriminating questions or invoke his

right against self-incrimination.   In line with our holdings in Schultz and

Curley, we conclude that Ms. Baldwin was incompetent to testify at the

grand jury hearing as to communications between her and Spanier.

      In Schultz, we set forth the governing principles relevant to

determining the existence of an attorney-client privilege.       Therein, we

asserted,

            As our Rules of Professional Conduct illustrate,
      communications between a putative client and corporate counsel
      are generally privileged prior to counsel informing the individual
      of the distinction between representing the individual as an
      agent of the corporation and representing the person in his or
      her personal capacity. See Pa.R.Prof.Conduct 1.2(c) (lawyer
      may limit scope of representation provided the client gives

                                     - 33 -
J-A22011-15



     informed consent); Pa.R.Prof.Conduct 1.0(e) (defining “informed
     consent”); see also Pa.R.Prof.Conduct 1.6(a) (“A lawyer shall
     not reveal information relating to representation of a client
     unless the client gives informed consent, except for disclosures
     that are impliedly authorized in order to carry out representation
     and except as stated in paragraphs (b) and (c).”); see also
     Pa.R.Prof.Conduct 1.18(b) (“Even when no client-lawyer
     relationship ensues, a lawyer who has learned information from
     a prospective client shall not use or reveal information which
     may be significantly harmful to that person”).

            When corporate counsel clarifies the potential inherent
     conflict of interest in representing the corporation and an
     individual and explains that the attorney may divulge the
     communications between that person and the attorney because
     they do not represent the individual, the individual may then
     make a knowing, intelligent, and voluntary decision whether to
     continue communicating with corporate counsel. This is all the
     more essential where the purpose of the individual seeking
     advice relates to an appearance and testimony before a criminal
     investigating grand jury.

            Absent a privilege existing for preliminary communications,
     the putative client cannot have full and frank discussions with
     the attorney in order to determine whether it would be
     appropriate for that lawyer to represent him or her in an
     individual capacity.    See Chmiel, supra at 422-423 (“The
     purpose of the privilege is not to further the fact-finding process,
     but to foster a confidence between attorney and client that will
     lead to a trusting and open dialogue.”); Upjohn, supra at 389
     (“Its purpose is to encourage full and frank communication
     between attorneys and their clients.”).

            Furthermore, the attorney might be unable to make a
     determination as to whether he or she could represent that
     individual personally if the putative client believes full disclosure
     will not be kept confidential.         See In re Thirty-Third
     Statewide Investigating Grand Jury, supra at 216-217
     (internal citations and parenthetical omitted) (“The attorney-
     client     privilege    is    intended      to     foster      candid
     communications between counsel and client, so that counsel
     may provide legal advice based upon the most complete
     information from the client. The central principle is that a client

                                    - 34 -
J-A22011-15



      may be reluctant to disclose to his lawyer all facts necessary to
      obtain informed legal advice, if the communication may later be
      exposed to public scrutiny.”).

Schultz, slip opinion at 57-59.

       As we discussed in both Schultz and Curley, communications

between a corporate attorney and an employee of a corporation may be

personally privileged.      It simply does not follow that, if Ms. Baldwin

represented Spanier as an agent of Penn State, none of his communications

with her were privileged.

      Instantly, Spanier met with Ms. Baldwin to discuss subpoenas served

on Curley, Schultz, Paterno, the University, and later himself. His meetings

with Ms. Baldwin relative to his own subpoena did not pertain to a subpoena

for the University.   He consulted Ms. Baldwin for the purpose of securing

legal advice. The issues discussed between Ms. Baldwin and Spanier were

not general business matters related to the operation of the University, but

concerned the criminal investigation into Jerry Sandusky and Spanier’s own

response to learning of certain information in 1998 and 2001.     Unlike the

cases relied on by the trial court, this matter does not involve discussions

between corporate counsel and officers of the corporation for purposes of

operating and running that business or an internal investigation into the

corporation’s business practices.

      Ms. Baldwin also communicated with Spanier and expressed her belief

that no conflict existed between her joint representation of Schultz, Curley

                                     - 35 -
J-A22011-15



and him.   Thus, Ms. Baldwin was aware of the potential for a conflict of

interest. Ms. Baldwin did not reveal Spanier’s communications to the Board

of Trustees of Penn State.   Spanier has claimed his privilege. Finally, the

communications in question concerned the rights and responsibilities of

Spanier relative to appearing before a grand jury and not Penn State’s

corporate rights.

      For reasons outlined, we agree that an attorney-client relationship

existed between Spanier and Ms. Baldwin before and during his grand jury

testimony, thereby giving rise to an attorney-client privilege. Ms. Baldwin’s

grand jury testimony regarding communications with Spanier constituted a

violation of the attorney-client privilege, rendering her incompetent to

testify. Accordingly, and in light of our holdings in Schultz and Curley, we

quash the challenged charges of perjury, obstruction of justice, and

conspiracy to commit those crimes.

      Order reversed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




                                     - 36 -
