J-A22010-15



                                   2016 PA Super 13

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY M. CURLEY,

                            Appellant                   No. 299 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-0003614-2013
                            CP-22-CR-0005165-2011


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

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

       Timothy M. Curley appeals from the order denying his pre-trial

motions to preclude the introduction of testimony of Attorney Cynthia

Baldwin1 and quash certain criminal charges against him based on violations

of the attorney-client privilege.2 We reverse the trial court’s order in which

____________________________________________


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-A22010-15



it found that no attorney client privilege existed. For the reasons that follow,

we hold that Ms. Baldwin was incompetent to testify as to Curley’s

communications with her. Accordingly, we quash the count of obstruction of

justice and the related conspiracy charge.

         In these actions, the Commonwealth has charged Curley with two

counts of endangering the welfare of a child (“EWOC”), and one count each

of perjury, failure to report suspected child abuse, obstruction of justice, and

conspiracy.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; and 2) his testimony

pertaining to his handling of those matters before an investigating grand

jury.4

         Curley is the former Athletic Director of the Pennsylvania State

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

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


3
    The Commonwealth filed a single conspiracy count, which included
conspiracy to commit perjury, obstruction of justice, and endangering the
welfare of a child.
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. However, where the
testimony was not in dispute, we have considered it.



                                           -2-
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sexually 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,    at   18

(hereinafter Sandusky Presentment); see also Thirty Third Investigating

Grand Jury Presentment No. 29. 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.




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     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

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 also 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 victim 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 Curley

the following day. Id. Within two weeks of the shower incident, McQueary

met with Curley and Gary Schultz, the Vice President for Finance and

Business.   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.




                                    -4-
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       Curley was originally subpoenaed in December of 2010 to testify

before the investigating grand jury on January 12, 2011.         Ms. Baldwin

alerted Curley to the subpoena on December 29, 2010, while Curley and she

were in Tampa, Florida for a Penn State football bowl game. 5         The pair

subsequently met, on January 3, 2011, after returning to State College, for

purposes of preparing Curley for his grand jury appearance.     She agreed to

advise and be present for Curley’s grand jury testimony.      Specifically, Ms.

Baldwin related to Curley that, as a grand jury witness, he was entitled to an

attorney who could attend and consult with him during his testimony. She

explained that he was free to retain a different attorney, but she could also

represent him at the proceeding as well.

       According to Ms. Baldwin, she instructed Curley that she was general

counsel for Penn State and that any information he told her was not

confidential because she was the University’s attorney and could relate the

information to the Board of Trustees. Specifically, Ms. Baldwin set forth, “I

explained to him that I could go in [to the grand jury room], but I was

general counsel for Penn State, that there was no confidentiality.      And I

emphasized that there was no confidentiality.[.]”      N.T. Curley Hearing,

____________________________________________


5
    Ms. Baldwin was also served a subpoena duces tecum, Grand Jury
Subpoena 1179, for University documents, which sought documents
referencing or related to Jerry Sandusky.




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11/20/14, at 93. She continued, “there was no confidentiality between Mr.

Curley and me because I was the university’s attorney. So what he told me

wasn’t going to be confidential….I mean, if the board asked, I would tell

them.”     Id. at 93-94.         Nevertheless, Ms. Baldwin did not relate this

information to the Board of Trustees. Further, Ms. Baldwin did not advise

Curley regarding his Fifth Amendment right against self-incrimination. Ms.

Baldwin also did not carefully elucidate the difference between representing

Curley in his individual capacity or as an agent of his employer, Penn State.

       On the same morning of his scheduled grand jury appearance, agents

from the OAG interviewed Curley.               Ms. Baldwin was present for that

interview. She also attended the OAG interview of Schultz that same day.

Following these interviews, but before Curley testified, Ms. Baldwin asked

Deputy Attorney General Jonelle Eshbach if Curley and Schultz were targets

of the criminal investigation.       The prosecutor informed her that they were

not targets at that time.6

____________________________________________


6
  Despite this representation, the OAG was aware that McQueary had told
investigators that he reported a sodomy to Schultz and Curley, and it knew
that there had not been a follow-up police investigation. Thus, at that time,
the OAG presumably had a basis upon which to charge Curley with failure to
report suspected child abuse. Hence, the claim was misleading. Moreover,
Ms. Baldwin would have been aware that Curley’s and Schultz’s recollection
of what McQueary told them was inconsistent since she was present for their
pre-testimony interviews.     Specifically, Schultz acknowledged that the
behavior that was reported was sexual in nature, but Curley denied that
there was any indication of sexual misconduct. The OAG, outside the
(Footnote Continued Next Page)


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      Prior to Curley’s testimony, the Grand Jury Supervising Judge, Judge

Barry Feudale, queried Ms. Baldwin regarding her representation of Schultz

and Curley in chambers in their presence.         Specifically, the following

exchange occurred:

      OAG: Judge, we’re here on Notice 29. We have some witnesses
      to be sworn, Mr. Curley and Mr. Schultz.

      Judge Feudale: Represented by?

      Ms. Baldwin: My name is Cynthia Baldwin, general counsel for
      Pennsylvania State University.

      Judge Feudale: Will you be providing representation for both of
      those identified witnesses?

      Ms. Baldwin: Gary is retired but was employed by the university
      and Tim is still an employee.

Notes of Grand Jury Colloquy, 1/12/11, at 7-8.         Ms. Baldwin did not

expressly state that she represented Curley solely in an agency capacity, nor

did she indicate that she did not represent him in his individual capacity.

The OAG did not express concern on the record over a potential conflict of

interest based on Ms. Baldwin appearing with both Curley and Schultz.

Judge Feudale, without requesting further clarification from Ms. Baldwin,



                       _______________________
(Footnote Continued)

presence of Ms. Baldwin, later explicitly told the grand jury supervising
judge that Schultz’s and Curley’s testimony was not consistent. N.T.,
4/13/11, at 10.




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then advised the two men of their rights as grand jury witnesses.         In

relevant part, he set forth:

            As witnesses before the Grand Jury, you’re entitled to
      certain rights and subject to certain duties which I am now going
      to explain to you. All of these rights and duties are equally
      important and it’s important that you fully understand each of
      them.

            First, you 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
      her at that time.

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

      You also have the right to refuse to answer any question pending
      a ruling by the Court directing you to respond if you honestly
      believe there are proper legal grounds for your refusal. In
      particular, you have the right to refuse to answer any question
      which you honestly believe may tend to incriminate you.

            Should you refuse to answer any question, you may offer a
      reason for your refusal, but you’re not obliged to do so. If you
      answer some questions or begin to answer any particular
      question, that does not necessarily mean you must continue to
      answer your questions or even complete the answers you have
      started.

           Now, any answers you give to any question can and may
      be used against you either for the purpose of a Grand Jury
      Presentment, Grand Jury Report or a Criminal Information.

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             In other words, if you’re uncertain as to whether you may
       lawfully refuse to answer any question or if any other problem
       arises during the course of your appearance before the Grand
       Jury, you may stop the questioning and appear before me, either
       alone or in this case with your counsel, and I will rule on that
       matter whatever it may be.

Id. at 8-10 (emphases added).7

       Curley entered the courtroom with Ms. Baldwin, who was seated

beside him during his testimony. At the outset, a deputy attorney general

asked Curley, “You have counsel with you?” N.T., Grand Jury Proceeding,

Notice No. 20, 1/12/11, at 3.           Curley answered, “Yes, I do.”   Id.   The

prosecutor then asked, “Would you introduce her, please?”           Id.   Curley

responded, “My counsel is Cynthia Baldwin.”           Id.   Ms. Baldwin did not

indicate at that time that she represented Curley solely in an agency




____________________________________________


7
   Judge Feudale, in an opinion addressing motions filed by Curley, seeking
quashal of the grand jury presentments, 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 committed error in not asking any
follow up questions but while I am unware 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. We agree with Judge Feudale, to the limited extent
that he erred in neglecting to properly probe the scope of Ms. Baldwin’s
representation to ensure that Curley understood whether Ms. Baldwin was
acting to protect his interests or the University’s.




                                           -9-
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capacity or that she was not representing him in a personal capacity. The

Commonwealth questioned Curley about the 1998 and 2001 incidents.8

       The Commonwealth initially questioned Curley about the 2001 crime.

Curley testified that Paterno contacted him and Schultz and advised them

that he needed to meet with them regarding an incident reported to him by

graduate assistant football coach Michael McQueary.             Id. at 4-5.    Paterno

later met with Curley and Schultz.             According to Curley, Paterno informed

them that McQueary witnessed Sandusky in the shower area with a child and

was uncomfortable with the activity occurring therein.             Id. at 5.    Curley

relayed that he and Schultz met with McQueary.                     Id.     In Curley’s

recollection, McQueary related that Sandusky was horsing around in the

shower area and that it felt inappropriate.            Id. at 7.   Curley adamantly

denied that McQueary informed them that anal intercourse transpired

between Sandusky and the child. Id.

       Curley stated that he reported the matter to University President, Dr.

Graham Spanier, and contacted Sandusky.                  He submitted that he also

reported the incident to Dr. Jack Raykovitz, then-executive director of the

Second Mile, after consulting with Spanier.              Id. at 6.       Curley further

instructed Sandusky to refrain from bringing young people into the athletic

____________________________________________


8
  At the time, the Commonwealth referred to the 2001 shower crime as
occurring in 2002.




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facilities at Penn State. Id. at 10-11. He did not inform campus police of

the incident and indicated that he did not think that what had been reported

to him was a crime.        Id. at 12.     Curley acknowledged that there was no

follow up investigation into the 2001 report by McQueary.               Id. at 13.   He

also denied having any knowledge of a 1998 report of another shower

incident involving Sandusky and a child. Id. at 13-14. He maintained that

the 1998 matter and subsequent police investigation were not brought to his

attention.    Id. at 15.       Later-discovered email documents revealed that

Curley was aware of the 1998 incident.

       The investigating grand jury recommended that Curley be charged

with   perjury    and    failure   to   report     on   November   7,    2011.       The

Commonwealth filed a criminal complaint against Curley.9                Curley retained

new counsel and notified Ms. Baldwin, who had retained her own attorney,

via letter that Curley did not waive any claim of attorney-client privilege with

respect to communications between Ms. Baldwin and him.

       Meanwhile, the OAG, in December of 2011, 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

____________________________________________


9
   The crimes were held for court and the Commonwealth filed a criminal
information on January 19, 2012.




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obstruction against the institution and those individuals responsible for these

decisions.”      Letter    from    OAG    to   Ms.   Baldwin,   12/19/11,   at   10.10

____________________________________________


10
   Although the University was charged with complying with that subpoena
in December 2010, it was not until April 2012 that relevant documents were
turned over. Notably, although Ms. Baldwin informed University President,
Dr. Graham Spanier, of the subpoena and asked if he, Schultz, and Curley
had any documents, she apparently did not follow University protocol in
ensuring compliance with that subpoena. A grand jury report observed that
an “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 data 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
       professionals 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 did assert 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.
However, the grand jury report reveals that, in addition to the SOS unit,
other individuals employed in the Penn State information technology
(Footnote Continued Next Page)


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Subsequently, the Commonwealth and Ms. Baldwin entered into discussions

about her testifying before the grand jury regarding 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.”).

      On June 22, 2012, Ms. Baldwin, through counsel, responded to

Curley’s invocation of the attorney-client privilege.   She asserted that she

was counsel for Penn State, that she had acted solely in an agency capacity

in representing Curley, and that she did not represent him in an individual

capacity before the grand jury. In correspondence, Curley again invoked his

attorney-client privilege to Judge Feudale and Ms. Baldwin, and copied the

letter to the OAG and counsel for Penn State.

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

Feudale for a conference concerning the privilege issues prior to Ms. Baldwin

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

that Penn State waived the privilege for itself, but explicitly declined to

waive the University’s privilege as to communications between Ms. Baldwin

and Schultz and Curley. Specifically, Mr. Mustokoff wrote,

                       _______________________
(Footnote Continued)

department maintained that they were not asked to locate such documents.
Grand Jury Presentment No. 29, at 23-24.




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     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.      Curley’s attorney was not permitted to

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

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

to communications between Ms. Baldwin and Curley. 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 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.




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N.T., Grand Jury Conference, 10/22/15, at 6.11 Shortly thereafter, Attorney

Fina declared, “There may well be [privilege] claims down the road by

[counsel for Schultz and 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 Attorney 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 11-12.12
____________________________________________


11
    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.
12
   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
(Footnote Continued Next Page)


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      Despite the foregoing representations by Mr. Fina, a number of the

Commonwealth’s questions to Ms. Baldwin before the grand jury implicated

confidential communications.13            According to Ms. Baldwin’s grand jury

testimony, Curley told her prior to his testimony that he did not have any

documents     relating     to   the   1998       and   2001   Sandusky   matters.   The

Commonwealth specifically inquired of Ms. Baldwin,

      OAG: Again, staying with Mr. Curley, did he get back to you at
      any point and tell you whether or not he had evidence or
      materials that would be responsive to the Subpoena 1179?

      Ms. Baldwin: Right. Yes.

      OAG: What did he say?

      Ms. Baldwin: No, he didn’t have any materials.

      OAG:      And your conversations with those three
      gentlemen:      Schultz, Spanier, and Curley, were specific
      correct? They involved e-mails, paper files, any information—

      Ms. Baldwin: Anything that could—any document—documents
      that they had whether they be electronic or nonelectronic.


                       _______________________
(Footnote Continued)

Grand Jury of Philadelphia County, 593 A.2d 402, 406-407 (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).
13
  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.



                                           - 16 -
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      OAG: Is it fair to say they assured you they would go through
      their e-mails and talk to their staff and find anything that was
      responsive?

      Ms. Baldwin: They said they would check and get back to me.

      OAG: So Mr. Curley gets back to you and says there is nothing?

      Ms. Baldwin: Correct.

N.T., 10/26/12, at 17-18 (emphasis added). These inquiries related to

compliance with the subpoena duces tecum and directly incriminated Curley

in the commission of the crime of obstruction of justice.

      Following Ms. Baldwin’s testimony, that same day, in a second

presentment, the grand jury recommended additional charges against Curley

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

conspiracy to commit perjury, and conspiracy to commit EWOC.                  The

Commonwealth filed a criminal complaint on November 1, 2012, alleging

that Curley committed the crimes of EWOC, obstruction of justice, and

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

and conspiracy to commit EWOC.       It also consolidated Curley’s case with

prosecutions against Schultz and Spanier.

      Preliminary hearings for Curley, Schultz and Spanier were 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 Curley and

the cases proceeded to the court of common pleas.           Curley filed pre-trial

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



                                    - 17 -
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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 a lack of adequate counsel.

      The court conducted a hearing on December 17, 2013. In support of

his pre-trial motions, Curley also 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 scope of the

alleged attorney-client privilege between Ms. Baldwin and Schultz, Curley,

and Spanier. The court precluded testimony from all witnesses except Ms.

Baldwin and the three defendants. It also prevented Curley 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 Curley was not denied counsel during his grand jury

testimony on January 12, 2011, because Ms. Baldwin represented him as an

agent of Penn State.     It further held that Ms. Baldwin did not represent

Curley in an individual capacity and that her subsequent testimony did not

violate the attorney-client privilege because there was no privilege. Curley

then filed this interlocutory appeal, raising three issues for our review.


                                     - 18 -
J-A22010-15



       I.      Where the Pennsylvania Grand Jury Act guarantees all
               witnesses the right to assistance of counsel and where
               appellant did not waive his right to counsel, did the
               attorney-client privilege personally attach when he was
               represented    by    employer’s   general   counsel  and
               subpoenaed to give testimonial evidence before the grand
               jury?

       II.     Whether, in this case, the applicable legal standard to
               establish the existence of the individual attorney-client
               privilege is controlled by this Court’s opinion in
               Commonwealth v. Mrozek[,657 A.2d 997 (Pa.Super.
               1995),] and the grand jury context in which the
               representation arose?

       III.    Whether appellant’s counsel violated attorney-client
               privilege when she testified at the grand jury regarding
               their private communication without first obtaining his
               waiver of privilege?

Appellant’s brief at 5.

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

(Pa.Super. 2015), decided today, we outlined the basis of our jurisdiction to

consider an interlocutory appeal regarding issues pertaining to the attorney-

client privilege.      For reasons outlined therein, Appellant’s contentions

relative to the attorney-client privilege are properly before this Court.14


____________________________________________


14
     Unlike the appellant in Schultz, Curley does not seek to quash his
perjury charge that arose from his grand jury testimony based on a denial of
counsel during that testimony. Curley did originally seek to address that
issue by filing with the trial court a motion to certify its order under 42
Pa.C.S. § 702(b), to allow an interlocutory appeal by permission. The trial
court denied that motion. Curley, subsequent to the filing of this appeal,
petitioned this Court for review under Pa.R.A.P. 1311, however, the Court
(Footnote Continued Next Page)


                                          - 19 -
J-A22010-15



      In Schultz, supra, 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
             ground, would be to measure the safety of the
             confiding party by the extent of his intelligence and
                       _______________________
(Footnote Continued)

denied that petition without prejudice to Curley to pursue that issue in this
appeal. He did not seek relief on that basis. See footnote 14, infra at 23.



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          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
          the fact-finding process. Estate of Kofsky, 487 Pa.
          473, 409 A.2d 1358 (1979). The intended

                                   - 21 -
J-A22010-15



          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
     can exist in the context of co-defendants and their attorney or
     attorneys. When multiple defendants and their counsel engage

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       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).

       Curley’s initial argument is that Ms. Baldwin “represented Mr. Curley

before the grand jury in his individual capacity and her testimony violates his

attorney-client privilege.”      Appellant’s brief at 34.      He contends that the

Pennsylvania Investigating Grand Jury Act (“Grand Jury Act” or “Act”)

protects a personal right to counsel and is designed to protect witnesses

from incriminating themselves. Mr. Curley notes that a corporation cannot

invoke the right against self-incrimination.

       According to Curley, “[i]f as Ms. Baldwin now claims, she represented

Mr. Curley only as an agent, he was denied the right to counsel.” Id. at 37.

In his view, any testimony garnered while Ms. Baldwin only represented him

in an agency capacity was “obtained in violation of his right to counsel and

privilege against self-incrimination.”         Id.15   Curley, however, submits that

____________________________________________


15
  We note that Curley’s entire argument on appeal, relative to being denied
counsel, consists of the sentences quoted from above. Accordingly, he has
not developed on appeal the argument advanced below regarding a
constructive denial of counsel during his grand jury testimony.          As
mentioned in footnote 13, Curley does not seek quashal of the perjury
charge arising from that testimony in this appeal based on a lack of
adequate counsel.



                                          - 23 -
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the grand jury supervising judge did not consider him as a corporate agent.

He contends that the record demonstrates that the supervising judge and

OAG did not treat him as testifying on behalf of Penn State.                  Curley

highlights that the subpoena in this matter was directed to him personally

and not as the University Athletic Director or as a keeper of records.

      In addition, Curley asserts that Pa.R.Crim.P. 231 mandates that

counsel for the witness is permitted to be present and that Ms. Baldwin’s

presence in the grand jury room “demonstrated personal representation.”

Id. at 42.    He continues that absent an adequate waiver of his personal

statutory right to the assistance of counsel, he must have been represented

in his individual capacity.     Curley avers that the colloquy used by Judge

Feudale supports the position that Curley appeared in his personal capacity

and was being represented as such by Ms. Baldwin.             Lastly, he points out

that under Pa.R.Prof.Conduct 1.2, a lawyer seeking to limit the scope of her

representation must ensure that the client provides informed consent, which

did not occur herein.

      In light of our decision in Schultz, supra, we find that, even assuming

Ms. Baldwin represented Curley in an agency capacity, his communications

to   her   regarding    being   subpoenaed     to   testify   before   the   criminal

investigating grand jury were privileged. In Schultz, we opined,

            As our Rules of Professional Conduct illustrate,
      communications between a putative client and corporate counsel
      are generally privileged prior to counsel informing the individual

                                      - 24 -
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     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
     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-

                                    - 25 -
J-A22010-15



      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
      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.

      Instantly, the trial court and Commonwealth have muddled the issue

by focusing almost solely on whether Ms. Baldwin represented Curley

individually   or   as   an   agent.   As   we   outlined   in   Schultz,   certain

communications between a corporate attorney and an employee of the

corporation still may be personally privileged. It simply does not follow that,

if Ms. Baldwin represented Curley as an agent of Penn State, none of his

communications with her were privileged. Moreover, the corporation must

still waive its own privilege in order for communications between its agents

and counsel to be disclosed. Here, the record establishes that the University

expressly declined to waive its privilege with respect to communications

between Ms. Baldwin and Curley. Thus, the trial court erred in finding that

Penn State waived its privilege regarding issues concerning Ms. Baldwin’s

communications with Curley.

      With respect to Curley’s second issue, and whether application of

Mrozek is proper and the cases relied on by the trial court are

distinguishable, we need not repeat our discussion of those cases that we

undertook in Schultz. It will suffice that we agree that reliance on In the

                                       - 26 -
J-A22010-15



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), in the context of advice given to an individual

preparing to testify before a criminal investigating grand jury was inapt and

that, even applying the Bevill test,16 the trial court erred in its legal

conclusions.

       In the present case, Curley met with Ms. Baldwin to discuss the

subpoena served on him to testify before a criminal grand jury investigating

Jerry Sandusky.       The subpoena was not for the University.   This meeting

was for the purpose of securing legal advice. The trial court itself found that

Curley sought legal advice from Ms. Baldwin related to appearing before the

____________________________________________


16
   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.



                                          - 27 -
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grand jury investigation into Jerry Sandusky. The issues discussed between

Ms. Baldwin and Curley were not general business matters related to the

operation of the University, but pertained to the criminal investigation into

Jerry Sandusky. Indeed, unlike the cases relied on by the trial court, this

case 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 Curley and expressed her belief

that no conflict existed between her representation of Schultz and Curley.

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

interest between Curley and Schultz.      Ms. Baldwin did not reveal Curley’s

communications to the Board of Trustees of Penn State, except perhaps to

Spanier, whom she also represented at the very least as an agent of Penn

State. Curley has claimed his privilege and Penn State expressly refused to

waive any privilege relative to communications between Ms. Baldwin and

him. Finally, the communications concerned the rights and responsibilities

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

corporate rights.

      Moreover, Ms. Baldwin did not adequately explain to Curley that her

representation of him was solely as an agent of Penn State and that she did

not represent his individual interests. Although Curley was certainly aware

that Ms. Baldwin was general counsel for Penn State, this awareness did not

                                     - 28 -
J-A22010-15



result in Curley knowing that she represented him solely in an agency

capacity.   Indeed, it is illogical to conclude that Curley was aware of this

critical distinction when there is no evidence to suggest that at the relevant

time, the OAG and the supervising grand jury judge, experts in the law,

were able to distinguish Ms. Baldwin’s representation of Curley as being so

limited.

      Curley’s final issue, that Ms. Baldwin violated his attorney-client

privilege by testifying at a grand jury hearing regarding communications

between him and her, flows from his prior positions. For the reasons already

outlined, we agree that Ms. Baldwin’s grand jury testimony was improper.

Ms. Baldwin was not competent to testify. Accordingly, and in light of our

holding and discussion in Schultz, we quash the obstruction of justice and

related conspiracy charge and find that Ms. Baldwin is precluded from

disclosing privileged communications between herself and Curley.         See

Schultz, supra.

      Order reversed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016

                                    - 29 -
