J-S01026-18


                              2018 PA Super 34

MELISSA KESSLER                         :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
                                        :
            v.                          :
                                        :
                                        :
PUBLIC DOCUMENTS PEN REGISTER           :   No. 1328 MDA 2017
AND WIRE TAPS                           :

              Appeal from the Order Entered August 1, 2017
    In the Court of Common Pleas of Clinton County Criminal Division at
                     No(s): CP-18-MD-0000128-2017


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

OPINION BY MURRAY, J.:                         FILED FEBRUARY 20, 2018

     Melissa Kessler (“Appellant”) appeals pro se from the order denying

her motion to intervene and request to view sealed wiretap records in

another individual’s completed criminal case. We affirm. Additionally, the

Commonwealth has filed an application to stay this appeal and to remand to

the trial court. We deny the Commonwealth’s application.

     The Commonwealth provides the following factual background.           In

2003, Jeremy Baney entered a guilty plea to corrupt organizations and drug

offenses arising from his participation in a drug distribution ring.   He was

sentenced to a maximum of 39 years’ incarceration and this Court affirmed

the judgment of sentence on direct appeal. Baney has since filed numerous
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unsuccessful Post Conviction Relief Act1 (“PCRA”) petitions and other

pleadings seeking relief.2 Pertinently, on June 9, 2017, the trial court denied

Baney’s    motion      to   unseal   sealed      wiretap    and   pen    register   records

(collectively,   the    “wiretap     records”)    that     were   part   of   the   criminal

investigation against him.3 Commonwealth’s Brief at 2-3.

        Six days later, on June 15, 2017, Appellant filed a pro se “Motion to

Intervene with Rule to Show Cause Why the Public Judicial Documents

Should Not Be Copied and Reviewed.”                  Appellant sought permission to

review the same sealed wiretap records. Appellant was not a defendant in

any of the criminal cases related to the records, but argued that she, as a

member of the general public, had a constitutional right of access to public

judicial documents.4        Appellant further argued, in the alternative, that on

May 3, 2017, the trial court unsealed the records and allowed the

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2  See, e.g., Commonwealth v. Baney, 744 MDA 2015 (judgment order
filed Dec. 15, 2015) (affirming dismissal of fourth PCRA petition as
untimely).

3 The Commonwealth also avers the wiretap records were provided to Baney
in pretrial discovery and Baney filed a suppression motion which addressed
the wiretap records. Appellant has filed a reply brief, asserting that the
Commonwealth has not proved that it provided the wiretap records to Baney
in discovery.

4 Appellant has not provided any explanation of her relationship to Baney or
the other defendants.




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Commonwealth to copy and take, without returning, the records, and thus

the records were no longer under seal. The Commonwealth filed a response

arguing that Appellant lacked standing to view the sealed records.          On

August 1, 2017, without holding a hearing, the trial court denied Appellant’s

motion to intervene and her request to review the sealed records, finding

that she lacked standing because she had no direct or immediate interest in

the records.5 Appellant filed a timely notice of appeal and complied with the

court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal.

       Appellant presents the following issues for review:

       [1.] Are the pen registers and wiretaps that were used in the
       investigation of 15 co-defendants and relied upon by [J]udges
       Sanders and Saxton to make judicial decisions in those cases
       considered public judicial records?

       [2.] Are the pen registers and wiretaps still sealed when the time
       period for keeping them sealed by statute has expired and
       without a continued court order from the court sealing them
       again, would render them unsealed, and after 15 years the
       reason for initially sealing them has concluded?

       [3.] Did [J]udge Miller abuse his discretion by denying
       [Appellant’s] request to view and copy the pen registers and
       wiretaps?

       [4.] Did [J]udge Miller unseal the pen registers and wiretaps
       when he opened the sealed envelope and allowed the Pa.
       Attorney General’s Office to leaves [sic] the courthouse with a
       copy and not return said copy as required by statute?
____________________________________________


5In its opinion, the trial court also referred to Baney’s request to unseal the
wiretap records and noted it had denied that request.



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      [5.] Did the Attorney General’s Office meet its burden for why
      the pen registers and wiretaps should not be given to [Appellant]
      and copied?

      [6.] If the pen registers and wiretaps are still sealed then did
      [Appellant] meet her burden for why the records should be
      unsealed?

Appellant’s Brief at 4 (unpaginated).

      With respect to our jurisdiction, this Court has stated:

      As a general rule, an appeal will not lie from an order denying
      intervention, because such an order is not a final determination
      of the claim made by the would-be intervenor. However, in
      some cases, the order denying intervention has the practical
      effect of denying relief to which the intervenor is entitled and
      which he can obtain in no other way. Such an order will be
      deemed final, and an appeal therefrom will be allowed. In order
      to determine the appealability of an order denying intervention,
      therefore, one must examine the ramifications of the order to
      determine whether it constitutes a practical denial of relief to
      which the petitioner for intervention is entitled and which he can
      obtain in no other way.

      Often, it is necessary to examine the merits of an appellant’s
      petition in order to determine whether the court’s order results
      in a practical denial of relief to which the appellant is entitled but
      which can be secured in no other way.

First Commonwealth Bank v. Heller, 863 A.2d 1153, 1155 (Pa. Super.

2004) (citation omitted).

      Here, the trial court’s order dismissing Appellant’s motion to intervene

and denying her request to review the sealed records had the practical effect

of denying her the requested relief: access to the sealed records.

Accordingly, we deem the court’s order to be final for purposes of appeal.

See id.

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      We address Appellant’s first, third, and fifth issues together. First, she

avers the sealed wiretap records are “public judicial records” because they

were relied upon by the magistrate and trial judges in rendering “125 judicial

decisions” in the criminal cases of “15 co-defendants,” including Baney.

Appellant’s Brief at 19-20 (unpaginated).      Appellant contends she, as a

member of the general public, has both a common law right and

constitutional right to access these “public judicial records,” which, she adds,

were based on illegal wiretapping.    Id. at 5, 20, 23 (citing Goldstein v.

Forbes, 260 F.3d 183, 192 (3d. Cir. 2001) (it is well-settled that there

exists, in both criminal and civil cases, a common law public right of access

to judicial proceedings and records); Commonwealth v. Long, 922 A.2d

892, 897 n.6 (Pa. 2007) (Pennsylvania common law provides the right of

public access to inspect and copy criminal case documents, and the United

States Supreme Court has spoken of First Amendment right to access

judicial proceedings and “information” contained therein).

      In her third issue, Appellant initially alleges the trial court failed to

state a reason for denying her request to review the records, but then

asserts that the court unreasonably provided a “boiler plate denial based

upon lack of standing.”     Appellant’s Brief at 35-36.      Appellant contends

neither of the cases relied upon by the trial court, Commonwealth ex rel.

Judicial Conduct Board v. Griffin, 918 A.2d 87 (Pa. 2007), and Pa.

Gaming Control Bd. V. City Council of Philadelphia, 928 A.2d 1255 (Pa.


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2007), is on point or relevant to the issue of access to public judicial records,

and likewise, the question of whether she has a direct interest in the

documents is not relevant. Instead, Appellant insists the threshold inquiry in

this matter is simply whether the documents sought are public judicial

documents available to the general public via the common law right of

access. Appellant’s fifth issue — whether the Commonwealth met its burden

of establishing why the documents should not be provided to her — consists

of a three-sentence reiteration of the arguments made under her third issue.

Finally, we note that Appellant contends, for the first time, that her purpose

for seeking the wiretap records is to obtain evidence to support Baney’s

PCRA petition. Appellant’s Brief at 6, 44 (unpaginated).

      The Commonwealth counters that the trial court properly concluded

that Appellant lacked standing because she does not have a substantial

interest in the wiretap records.            Appellant’s reply brief avers that the

Commonwealth has not addressed any of the arguments in her initial brief,

and further asserts there is no case authority on standing for unsealing

wiretap records.

      “It is well established that a question of intervention is a matter within

the sound discretion of the trial court and absent a manifest abuse of such

discretion,   its   exercise   will   not    be   disturbed   on   review.”   First

Commonwealth Bank, 863 A.2d at 1155.

      Upon review of Pennsylvania appellate case law, we agree with


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Appellant that there is no decision addressing the issue presented here:

whether an individual has standing to invoke the common law, or a

constitutional right to view sealed wiretap records pertaining to criminal

cases in which she has averred no personal or legal interest. Nevertheless,

we note Sections 5714(b) and 5715 of the Wiretapping and Electronic

Surveillance Control Act (“Act”) provide that wiretap recordings and final

reports shall be transferred to the court and sealed.          18 Pa.C.S.A. §§

5714(b), 5715. Section 5715 further provides:

      [Wiretap final reports] may be disclosed only upon a showing of
      good cause before a court of competent jurisdiction except that
      any investigative or law enforcement officer may disclose such .
      . . records to investigative or law enforcement officers . . . to the
      extent that such disclosure is appropriate to the proper
      performance of the official duties of the officer making or
      receiving the disclosure.

18 Pa.C.S.A. § 5715.

      Furthermore, in Griffin, our Supreme Court stated:

      Standing is a core jurisprudential requirement that looks to the
      party bringing a legal challenge and asks whether that party has
      actually been aggrieved as a prerequisite before the court will
      consider the merits of the legal challenge itself. A party who is
      not adversely affected by the matter he seeks to challenge is not
      “aggrieved” and therefore does not have standing.

Griffin, 918 A.2d at 93 (citations omitted).

      Although the trial court did not address whether Appellant established

“good cause” for disclosure of the wiretap records under Section 5715, we

conclude she has not. Both in the trial court and on appeal, Appellant relied

on her status as a member of the general public to argue she had a common

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J-S01026-18


law and constitutional right of access to the wiretap records, without

addressing the significance of the fact that the records are sealed. In the

absence of any legal authority or argument as to why the records should be

unsealed, we hold that the trial court did not err in denying Appellant’s

request to review the records. Furthermore, Appellant does not refute the

trial court’s finding that she failed to establish any direct or immediate

interest in the wiretap records. On appeal, Appellant admits her purpose for

seeking the records is to obtain evidence in support of Baney’s PCRA

petition.    Because this claim was not raised before the trial court, it is

waived.      See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”). Even if it were

not waived, Appellant’s mere assertion of supporting Baney’s PCRA petition,

without any explanation of her relationship to Baney or stake in his post-

conviction proceedings, fails to establish a direct or immediate interest in his

case. To this end, we further agree with the trial court that Appellant lacked

standing to intervene in Baney’s case and request access to the sealed

wiretap records. Accordingly, we hold that the trial court did not abuse its

discretion    in   denying   Appellant’s   motion   to   intervene.   See   First

Commonwealth Bank, 863 A.2d at 1155.

      In her second issue, Appellant asks, “Are the pen registers and

wiretaps still sealed when the time period for keeping them sealed by statute

has expired and without a continued court order from the court sealing them


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again, would render them unsealed, and after 15 years the reason for

initially sealing them has concluded?” Appellant’s Brief at 34. However, she

provides absolutely no discussion in support of this issue. Accordingly, it is

waived.    See Commonwealth v. English, 699 A.2d 710, 714 n.5 (Pa.

1997) (issue included in statement of question involved but not supported

by any argument in brief is waived).

      In her fourth claim, Appellant avers that on May 3, 2017, the trial

court issued an order unsealing the wiretap records and allowing the

Commonwealth to copy them. She further asserts that the trial court did not

require the Commonwealth to return the records and thus reasons that

pursuant to 18 Pa.C.S.A. § 5714(b), the seal has been broken and she is

entitled to view the records.

      The record does not support Appellant’s claim that the trial court

unsealed the wiretap records on May 3, 2017; there is no indication of any

such unsealing order in the record. Therefore, any argument based on such

a fact is meritless.

      Appellant’s sixth and final claim is that even if the wiretap records

remain under seal, she has met her burden of establishing why they should

be unsealed. Appellant asserts her “good cause” for reviewing the records is

to obtain evidence in support of Baney’s PCRA petition, to “keep the court

honest because of the amount 125 judicial decisions made upon them, and

50-100 in prison sentences based upon the illegal pen/taps [sic].”


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Appellant’s Brief at 44 (unpaginated).

       As stated above, any claims that Appellant is seeking the sealed

wiretap records for Baney’s PCRA proceedings is waived.       Furthermore, as

stated above, Appellant does not explain why she has any direct or

immediate interest in the allegedly illegally procured wiretap recordings.6

Accordingly, no relief is due.

       Finally, we consider the Commonwealth’s application filed in this Court

to stay the appeal and remand this case back to the trial court to determine

whether Appellant’s pleadings in this case were in fact filed by Baney. The

Commonwealth states that copies of pleadings it received that are attributed

to Appellant were mailed from Baney in state prison.      The Commonwealth

further argues that Baney, who is not a party to the instant appeal nor a

member of the Pennsylvania Bar, cannot represent Appellant in this appeal.

Appellant has filed an answer, admitting Baney sent copies of pleadings to

the Commonwealth, but maintaining that it was she who filed the original

pleadings.

       Given our conclusion that the trial court properly denied Appellant’s

motion to intervene, we decline to stay this appeal and deny the
____________________________________________


6 In any event, Appellant disregards that because Baney pled guilty, he
waived any suppression challenge on appeal. See Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (upon entry of guilty plea,
defendant waives all claims and defenses other than those sounding in
jurisdiction of court, validity of plea, and what has been termed “legality” of
sentence imposed).



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Commonwealth’s application to remand this case to the trial court.

     Order affirmed.      Commonwealth’s application to stay appeal and

remand denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




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