J-A16040-16
                             2018 PA Super 56

IN RE: 2014 ALLEGHENY COUNTY           :    IN THE SUPERIOR COURT OF
INVESTIGATING GRAND JURY               :          PENNSYLVANIA
                                       :
                                       :
APPEAL OF: WPXI, INC.                  :     No. 950 WDA 2015

                  Appeal from the Order May 22, 2015
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-MD-0003179-2015

BEFORE:     SHOGAN, OLSON, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:       FILED MARCH 14, 2018

      This matter comes before us on remand from the Pennsylvania

Supreme Court, following its entry of an order reversing our determination

of mootness of the appeal of WPXI, Inc. (WPXI).      WPXI appeals from the

May 22, 2015 order that denied its motion to intervene and obtain access to

a search warrant and sealing order issued in connection with the 2014

Allegheny County investigating grand jury.1 We affirm.

      The following from our prior opinion summarizes the relevant

underlying facts.

      In early 2015, allegations of improper sexual relations between
      faculty and students at Allegheny County’s Plum High School
      became public. In covering the ongoing news story surrounding
      the contentions and resulting grand jury investigation into them,
      WPXI, a Pittsburgh-based television station, presented to the
      trial judge serving as the supervising judge of the grand jury a
      motion to intervene and to access public judicial records.


1 WPXI’s requests were denied in open court on May 22, 2015; however, the
docket does not reflect that an order was filed. We treat May 22, 2015 as
the date of entry of the appealed-from order pursuant to Pa.R.A.P. 108(a)(1)
(“The day of entry of an order may be the day of its adoption by the court…
as required by the actual circumstances.”).

*Retired Senior Judge assigned to the Superior Court.
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     Therein, WPXI averred, upon information and belief, that the
     trial court had on May 18, 2015, issued (1) a warrant authorizing
     a search at the Plum High School Administration Building, and
     (2) an order sealing the affidavit of probable cause that
     supported the search warrant.1 After hearing argument on the
     motion on May 22, 2015, the trial court denied WPXI’s motion.
            ______
            1 WPXI was not seeking access to the supporting affidavit

            or any attachment identifying suspected juvenile victims.

In re 2014 Allegheny Cty. Investigating Grand Jury, 147 A.3d 922, 923

(Pa. Super. 2016) (internal citations and quotation marks omitted).

     WPXI timely filed an appeal, which we sua sponte dismissed as moot

on the basis that WPXI had otherwise obtained the documents in question

when they were made public by another source. Id. at 924. Our Supreme

Court determined that this Court lacked sufficient information to make the

mootness determination, and remanded for us to consider the merits of the

appeal. In re 2014 Allegheny Cty. Investigating Grand Jury, 173 A.3d

653 (Pa. 2017).

     The questions before us are as follows.

          1.     Whether the lower court erred in not granting WPXI’s
     motion to intervene.

           2.     Whether the lower court erred and abused its
     discretion in denying WPXI’s motion for access to:

                 (a) the application for search warrant and
           authorization (i.e., the search warrant) for a search at
           Plum School District High School/Administrative Building,
           when the search warrant was issued by the court on May
           18, 2015 and executed prior to WPXI’s motion to intervene
           and obtain access, and WPXI’s motion for access did not



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            seek any materials identifying any suspected juvenile
            victims, and

                   (b) the related order of court dated May 18, 2015
            that sealed only the attachment to the search warrant
            application and affidavit for probable cause identifying
            suspected juvenile victims (which order of court was not
            itself sealed by an order entered on the record).

            3. Whether the lower court erred in not making specific
      findings as to any compelling governmental interests or public
      and private interests that would outweigh WPXI’s and the
      public’s right to access.

WPXI’s Brief at 4 (unnecessary capitalization omitted).

      We begin with the propriety of WPXI’s request to intervene and the

trial court’s denial thereof. “The filing of a motion to intervene in a criminal

case by the news media has long been recognized by [our Supreme] Court

as an appropriate means of raising assertions of public rights of access to

information regarding criminal case proceedings.”2        Commonwealth v.

Fenstermaker, 530 A.2d 414, 416 n.1 (Pa. 1987).           “Intervention of this

type may properly be termed de bene esse, to wit, action that is provisional

in nature and for the limited purpose of permitting the intervenor to file a

motion, to be considered separately, requesting that access to proceedings

or other matters be granted.” Id.

      Thus, under Fenstermaker, WPXI should have filed a motion seeking

only to intervene. The trial court should have granted it, after which WPXI



2 “Access rights of the news media, and of the general public, are identical in
scope.” Fenstermaker, 530 A.2d at 416 n.1.

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should have filed its motion to access the documents in question. The trial

court then should have scheduled a hearing on the motion for access, and

ruled on the merits of that motion.

      Instead, WPXI filed a single motion: a “motion to intervene and obtain

access to public judicial records.”   Motion to Intervene, 5/21/2015.    The

following day, the trial court held a hearing on the motion, at which it

considered WPXI’s standing as well as the substance of WPXI’s request for

access to the requested documents.      N.T., 5/22/2015, at 11-15.    At the

conclusion of the hearing, the trial court denied WPXI’s motion on several

alternative bases. Id. at 14-15.

      To the extent that it denied the intervention portion of WPXI’s motion,

the trial court did err.   See, e.g., Fenstermaker, 530 A.2d at 416 n.1.

However, because the court held a hearing at which WPXI presented the

substance of its request, and the court ruled on the merits thereof, WPXI de

facto was permitted to intervene. Accordingly, although there was technical

error, no relief is warranted.

      We next consider whether the trial court erred in denying WPXI’s

claims of access to the grand-jury-related documents.       WPXI sought to

obtain the search warrant and sealing order pursuant to both common law

and the First Amendment. See N.T., 5/22/2015, at 8.

      Neither WPXI nor the Commonwealth cites any Pennsylvania decision

addressing the public’s right (or lack thereof) to access or copy grand jury


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documents or search warrant documents issued in connection with a grand

jury investigation.   Nor have we found any.   In deciding this issue of first

impression, we first examine cases that establish the legal principles

applicable to requests for other judicial documents, and then consider how

the special nature of grand jury proceedings impacts the analysis of those

principles.

      Our Supreme Court set forth the standard for establishing the common

law right of access to public judicial documents in Fenstermaker, a case in

which a newspaper sought access to arrest warrants and supporting

affidavits. “The threshold inquiry … is whether the documents sought to be

disclosed are public judicial documents, for not all writings connected with

judicial proceedings constitute public judicial documents.” Fenstermaker,

530 A.2d at 418. There is a presumption of openness where public judicial

documents are involved; however, the right is not absolute.      Id. at 420.

Access to public judicial documents may be denied when the presumption

“is outweighed by circumstances warranting closure of the document to

public inspection[.]” Id.

      Applying the above test to the arrest warrants at issue, the Court

concluded that the documents were judicial because they informed the

decision to issue an arrest warrant.      Further they were public because

procedural rules provide for the filing of warrants and affidavits, making

them part of the permanent public record of the case.        Id. at 418-19.


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Having concluded that the requested documents were public judicial

documents, the Court held that the newspaper should have been granted

access to the arrest warrant affidavits:

      When arrests have been made pursuant to warrants, the
      supporting affidavits must be deemed open to public inspection
      until such times as District Attorneys or defense counsel have
      obtained court orders that the affidavits be sealed from public
      access. This places upon those wishing to seal affidavits a
      burden of moving swiftly to obtain the necessary court orders,
      but it is a burden that is necessary in order to accord due
      recognition to the common law right of the public to secure
      access to such documents. The decision of the trial court shall
      be appealable and shall be rendered following a hearing, and the
      record shall contain an articulation of the factors taken into
      consideration in reaching a determination as to sealing of the
      affidavits.

Id. at 420-21.

      Our Supreme Court again considered the issue of the common law

right of access in PG Publishing Company v. Commonwealth, 614 A.2d

1106 (Pa. 1992). In that case, the Pittsburgh Post-Gazette sought access to

search warrants and supporting affidavits after the warrants had been

executed, but before the target had been charged with murder. Id. at 1107.

After examining Fenstermaker, and recognizing “that the purposes of

arrest warrants and search warrants differ,” the Court nonetheless concluded

that “the differences do not compel a conclusion that search warrants are

not public records once the warrants have been executed.” Id. at 1108.

             A search warrant is a public judicial document. There is no
      historical tradition of public access to search warrant
      proceedings. As with arrest warrants, however, the search


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J-A16040-16


     warrant application is filed with district justices who are part of
     the Commonwealth’s unified judicial system. The documents
     upon which the district justice bases a decision to issue a search
     warrant are also judicial in character, for the decision to issue a
     search warrant is a judicial decision.

           The ex parte application for the issuance of a search
     warrant and the issuing authority’s consideration of the
     application are not subject to public scrutiny. The need for
     secrecy will ordinarily expire once the search warrant has been
     executed.

Id. at 1108.

     Our Supreme Court once more took up the issue in Commonwealth

v. Upshur, 924 A.2d 642 (Pa. 2007) (Opinion Announcing the Judgment of

the Court), a case in which WPXI sought access to an audiotape that was

played at Upshur’s preliminary hearing but was not entered into evidence.

Upshur, 924 A.2d at 645. Justice Saylor, announcing the judgment of the

Court, first revisited the pertinent precedent, noting generally that “the

public right to review and copy judicial records and documents provides an

important check on the criminal justice system, ensuring not only the fair

execution   of   justice,   but   also   increasing   public   confidence   and

understanding.” Id. (citing Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 572 (1980) (plurality opinion) (“People in an open society do not

demand infallibility from their institutions, but it is difficult for them to

accept what they are prohibited from observing.”)).       In the review of the

case law, the plurality, citing Fenstermaker and PG Publishing, observed:

“Certainly… any item that is filed with the court as part of the permanent


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record of a case and relied upon in the course of judicial decision-making will

be a public judicial record or document.”     Id. at 648.   The plurality also

noted as follows:

            The constitutional presumption of openness extends to
      pretrial proceedings, including preliminary hearings. Preliminary
      hearings, like other pretrial proceedings, are an important part
      of the criminal justice process. Evidence presented at preliminary
      hearings and determinations made at pretrial proceedings may
      dictate whether a full trial will be held. Indeed, preliminary
      hearings, though often waived, may at times provide the only
      opportunity for the public to observe the criminal process
      because the vast majority of criminal cases are disposed of via
      pleas.[]

Id. at 649 n.6 (citations omitted).

      Applying these principles to the facts before it, Justice Saylor

determined that, although the tape “was never filed with the court, entered

into evidence, or otherwise made part of the record[,]” id. at 649, it was as

a matter of law a public judicial document. While the status of a document

as having been made part of the record is relevant, it is not dispositive: “The

common law right of access is based upon the public’s interest in knowing

about events as they actually transpire and not simply on what is filed with a

court or formally admitted into evidence.” Id. The tape had been presented

at a preliminary hearing and thus formed “the basis of the magistrate district

judge’s legal decision as to whether the charges [were] held for trial, and

thus … was clearly the type of material upon which a judicial decision is

based.” Id. at 650-51. Further, the plurality indicated, “the disclosure of



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the tape recording at the open preliminary hearing and in the form of a

transcript,   regardless   of   potential   admissibility   at    trial,   renders   the

Commonwealth’s assertion that the             tape   is   not a     public   document

untenable.” Id. at 651.

      We next review the impact of the First Amendment on access to court

documents.3 The United States Supreme Court in Richmond Newspapers,

noting the presumption of openness to criminal trials, concluded that the

First Amendment rights include the right of the public to attend such trials.

448 U.S. 573, 580. This is based upon, inter alia, the following interests.

      1. Public access to criminal proceedings promotes informed
      discussion of governmental affairs by providing the public with a
      more complete understanding of the judicial system, serving an
      important educative interest;

      2. Public access to criminal proceedings gives the assurance that
      the proceedings were conducted fairly to all concerned and
      promotes the public perception of fairness. Public confidence in
      and respect for the judicial system are served only by permitting
      full public view of the proceedings;

      3. Public access to criminal proceedings has a significant
      community therapeutic value because it provides an outlet for
      community concern, hostility, and emotion;

      4. Public access to criminal proceedings serves as a check on
      corrupt practices by exposing the judicial process to public


3  Although First Amendment claims were before our Supreme Court in
Fenstermaker and Upshur, the Court declined to address them after it
determined that there was a right of access under the common law. See,
e.g., Upshur, 924 A.2d at 653 n. 11 (“As the common law right of access is
dispositive in the present case, we need not address any constitutional
claims that have been advanced.”); Fenstermaker, 530 A.2d at 419
(same).

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J-A16040-16


      scrutiny, thus discouraging decisions based on secret bias or
      partiality;

      5. Public access to criminal           proceedings   enhances   the
      performance of all involved; and

      6. Public access to criminal proceedings discourages perjury.

United States v. Kemp, 365 F.Supp.2d 618, 627-28 (E.D. Pa. 2005) (citing

generally Richmond Newspapers).

      In Press-Enterprise Co. v. Superior Court of California for

Riverside Cty., 478 U.S. 1 (1986) (Press-Enterprise II), the Court

applied Richmond Newspapers to preliminary hearings, establishing that

the existence of a First Amendment right of access initially is based upon

consideration of “whether the place and process have historically been open

to the press and general public,” Press-Enterprise II, 478 U.S. at 8, and

“whether public access plays a significant positive role in the functioning of

the particular process in question.”   Id. at 9. In other words, “[t]his test

asks whether (1) experience and (2) logic favor public access.”         In re

Newark Morning Ledger Co., 260 F.3d 217, 220 n.6 (3d Cir. 2001) (citing

Press-Enterprise II).     “If the particular proceeding in question passes

these tests of experience and logic, a qualified First Amendment right of

public access attaches.” Press-Enterprise II, 478 U.S. at 9.

      “But even when a right of access attaches, it is not absolute.”       Id.

“[The] presumption [of access] may be overcome only by an overriding

interest based on findings that closure is essential to preserve higher values


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J-A16040-16


and is narrowly tailored to serve that interest.”    Kemp, 365 F.Supp.2d at

628 (internal quotation marks and citation omitted).        “The interest is to be

articulated along with findings specific enough that a reviewing court can

determine whether the closure order was properly entered.            Further, the

court must in a timely manner state its reasons on the record for rejecting

alternatives to closure.”    Id. at 628-29 (internal citations and quotation

marks omitted).

      In sum, to prevail on its common-law claim, WPXI initially had to show

that the documents it sought were public judicial documents; then, if the

Commonwealth wished to have them sealed, the trial court was required to

balance the public’s right of access with the Commonwealth’s interests in

preventing disclosure. To prevail on its First Amendment claim, WPXI had to

establish that experience and logic favor the public’s having access to the

documents, after which the Commonwealth could nonetheless prevent

access upon showing an overriding government interest narrowly tailored to

serve that interest. Both claims require the trial court, in deciding the issue,

to make specific factual findings that support its rationale.

      As we noted above, we are unaware of any Pennsylvania case that

applied these legal principles to a request to access or copy search warrant

documents     issued   in   connection   with   a   grand    jury   investigation.

Accordingly, we shall next examine the nature of grand jury proceedings in




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general, and consider how other jurisdictions have ruled upon a claim of

access to grand-jury-related documents.

     “In Pennsylvania, grand jury proceedings have traditionally been

conducted in secrecy, and for a salutary reason. The secrecy of grand jury

proceedings is indispensable to the effective functioning of a grand jury.”

In re Dauphin Cty. Fourth Investigating Grand Jury, 19 A.3d 491, 502

(Pa. 2011) (internal quotation marks and citation omitted). This secrecy… is

designed

           (1) To prevent the escape of those whose indictment
           may be contemplated; (2) to insure the utmost
           freedom to the grand jury in its deliberations, and to
           prevent persons subject to indictment or their friends
           from importuning the grand jurors; (3) to prevent
           subornation of perjury or tampering with the
           witnesses who may testify before grand jury and
           later appear at the trial of those indicted by it; (4) to
           encourage free and untrammeled disclosures by
           persons who have information with respect to the
           commission of crimes; [and] (5) to protect innocent
           accused who is exonerated from disclosure of the
           fact that he has been under investigation, and from
           the expense of standing trial where there was no
           probability of guilt.

In re Investigating Grand Jury of Philadelphia Cty., 437 A.2d 1128,

1130 (Pa. 1981) (internal quotation marks and citation omitted).

     The secrecy of investigating grand jury proceedings is further

mandated by rule and statute. The Rules of Criminal Procedure state that,

except under circumstances not relevant here, “the court shall control the



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J-A16040-16


original and all copies of the transcript and shall maintain their secrecy.

When physical evidence is presented before the investigating grand jury, the

court shall establish procedures for supervising custody.” Pa.R.Crim.P. 229.

Although witnesses are not precluded from disclosing their own testimony,

with exceptions not relevant here,

      a juror, attorney, interpreter, stenographer, operator of a
      recording device, or any typist who transcribes recorded
      testimony may disclose matters occurring before the grand jury
      only when so directed by the court. All such persons shall be
      sworn to secrecy, and shall be in contempt of court if they reveal
      any information which they are sworn to keep secret.

42 Pa.C.S. § 4549(b).

      Hence,   while    the   cases   discussed   above   were   based   upon   a

presumption of access flowing from the historical tradition and constitutional

requirements of open courts and public trials, the opposite is true of grand

jury proceedings. Indeed, as the trial court noted,

            Even the Upshur case cited by WPXI cites to the U.S.
      Supreme Court case Press[-]Enterprise [II], and [that case]
      states,

            Although many governmental processes operate best
            under public scrutiny, it takes little imagination to
            recognize that there are some kinds of government
            operations that would be totally frustrated if
            conducted openly. A classic example is that “the
            proper functioning of our grand jury system depends
            upon the secrecy of grand jury proceedings.”




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J-A16040-16


N.T., 5/22/2015, at 12 (quoting Press-Enterprise II, 478 U.S. at 8-9

(quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218

(1979))).

     Given this stark difference between grand jury proceedings on one

hand, and criminal trials at their various stages on the other, it is

unsurprising that courts in other jurisdictions that have considered requests

for public access to documents related to grand jury proceedings have held

that denial of access was appropriate.

     For example, in United States v. Smith, 123 F.3d 140, 146 (3d Cir.

1997), the Third Circuit considered whether the district court erred in

disallowing newspapers access to a sentencing memorandum that contained

grand jury material, as well as the briefs and hearing on whether the

government had violated the federal rule against disclosure of grand jury

material when it had (for a time) made the sentencing memorandum

available to the public.   After determining that any issues related to the

sentencing memorandum were moot because the newspapers had already

obtained copies of it, the court affirmed as to the briefs containing grand

jury material, holding “there is no presumptive First Amendment or common

law right of access to them if secret grand jury material would be disclosed

by that access.”   Smith, 123 F.3d at 143.       The Smith court offered the

following discussion about grand jury secrecy.




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            The longstanding rules preserving grand jury secrecy are
     well established. As the Supreme Court explained in Douglas
     Oil, “[s]ince the 17th century, grand jury proceedings have been
     closed to the public, and records of such proceedings have been
     kept from the public eye.”         The secrecy of grand jury
     proceedings is a necessary incident to the proper functioning of
     the grand jury system. The Court has:

          noted     several    distinct  interests   served    by
          safeguarding the confidentiality of grand jury
          proceedings.      First, if preindictment proceedings
          were made public, many prospective witnesses
          would be hesitant to come forward voluntarily,
          knowing that those against whom they testify would
          be aware of that testimony. Moreover, witnesses
          who appeared before the grand jury would be less
          likely to testify fully and frankly, as they would be
          open to retribution as well as inducements. There
          also would be the risk that those about to be indicted
          would flee, or would try to influence individual jurors
          to vote against indictment. Finally, by preserving
          the secrecy of the proceedings, we assure that
          persons who are accused but exonerated by the
          grand jury will not be held up to public ridicule.

     Moreover, these interests in grand jury secrecy, although
     reduced, are not eliminated merely because the grand jury has
     ended its activities.

           Thus, Douglas Oil implicitly makes clear that grand jury
     proceedings are not subject to a First Amendment right of access
     under the test of “experience and logic.” Historically, such
     proceedings have been closed to the public. Moreover, public
     access to grand jury proceedings would hinder, rather than
     further, the efficient functioning of the proceedings.

           Not only are grand jury proceedings not subject to any
     First Amendment right of access, but third parties can gain
     access to grand jury matters only under limited circumstances.
     Even after the grand jury has concluded its proceedings, a


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       private party petitioning for access to grand jury materials must
       show that the need for [access] outweighs the public interest in
       secrecy, and ... the burden of demonstrating this balance rests
       upon the private party seeking disclosure.

Smith, 123 F.3d at 148 (some citations and quotation marks omitted).

       Examining the briefs and hearing at issue in Smith, the court noted

that the federal rules of grand jury secrecy apply to “anything which may

reveal what occurred before the grand jury,” including “[r]ecords, orders and

subpoenas relating to grand jury proceedings….” Id. at 148, 149 (internal

quotation marks omitted; emphasis added in Smith).        Because the briefs

and hearing related to a grand jury proceeding, and might have revealed

what happened in the grand jury room, they were subject to the same

secrecy as the proceedings themselves. Id. at 149-50. Hence, there was

no First Amendment right to access the briefs and hearing.      Similarly, the

court found no common law right of access: “Unlike judicial records to which

a presumption of access attaches when filed with a court, grand jury

materials have historically been inaccessible to the press and the general

public, and are therefore not judicial records in the same sense.”     Id. at

156.

       Another federal circuit court of appeals held that a Massachusetts

statute that automatically sealed records when the grand jury decided not to

issue an indictment withstood a First Amendment challenge by the Boston

Globe, reasoning as follows:


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      The public has a First Amendment right to judicial documents
      and records because without them a full understanding of
      judicial proceedings would be impossible. Accordingly, the First
      Amendment attaches only to those records connected with
      proceedings about which the public has a right to know. The
      public has no right to attend grand jury proceedings, and
      therefore, has no right to grand jury records. In contrast to
      criminal trials, grand jury proceedings have traditionally been
      closed to the public and the accused, and the Supreme Court has
      stated repeatedly that the proper functioning of our grand jury
      system depends upon the secrecy of grand jury proceedings….

Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir. 1989). The

court thus concluded that neither the experience nor the logic prong was

satisfied.

      In In re Gwinnett Cty. Grand Jury, 668 S.E.2d 682 (Ga. 2008), the

Supreme Court of Georgia held that “certain materials used by the grand

jury in its civil investigation” did not constitute court records subject to

public inspection under the state’s court rule USCR 21. The rule, consistent

with the Pennsylvania law discussed above, provided that all court records

are public and presumptively will be accessible to the public.    Id. at 683.

The court explained:

      Documents and recorded testimony received by a grand jury in
      pursuit of its civil duties are not subject to disclosure under
      USCR 21 because they do not fall within that which USCR 21
      embodies: they are not court records to which the public and
      press in Georgia have traditionally enjoyed access.

                                    ***

            Accordingly, even if we assume that evidence and
      testimony presented to a grand jury in pursuit of its civil duties

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     are records of the superior court, they are not court records
     subject to USCR 21 because the press and public have not
     traditionally enjoyed access to such material due to the
     preservation of the secrecy of grand jury proceedings.

     … [D]ocuments and recorded testimony presented to and
     maintained by the grand jury and not included in the
     presentment made in open court are not court records under
     USCR 21 and therefore do not carry the presumption of public
     access.

Id. at 684-85 (internal citations, quotation marks, and footnote omitted).

     Mindful of all of the above, we turn to the documents requested by

WPXI in this case.4 Again, those documents are the application for a search

warrant and the authorization thereof, as well as the court’s order that

sealed attachments thereto. We begin our review with the threshold issue of

whether the search warrant and court order sought by WPXI are (1) public

judicial documents for purposes of the common law right of access, and/or

(2) documents for which experience and logic favor public access under the

First Amendment. We conclude that they are not.

     The search warrant application submitted to the supervising judge of

the grand jury in connection with the grand jury investigation, the resulting

warrant, and the order that sealed the attachments to the warrant

application clearly are judicial documents under our Supreme Court’s



4 We exercise plenary review over the questions of law of whether the
common law or the First Amendment creates a presumptive right of access
to the documents in question. Upshur, 924 A.2d at 647; Smith, 123 F.3d
at 146.

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pronouncements. The documents in question were either used by a judge as

bases for a decision or embodiments of the judicial decisions made.

      However, the documents are not public judicial documents.       As the

law discussed above makes clear, grand jury proceedings are unlike the

proceedings at issue in Fenstermaker, PG Publishing, or Upshur to which

a   constitutional   presumption   of   openness   attaches.    Secrecy   “is

indispensable to the effective functioning of a grand jury.” In re Dauphin

Cty. Fourth Investigating Grand Jury, 19 A.3d at 502. Pennsylvania law

includes statutes, rules, and cases that impose and maintain ongoing

secrecy regarding grand jury proceedings.       Granting WPXI access to the

information and items sought via the subpoena would defeat the purpose of

secrecy: it would make public the subjects of the ongoing grand jury

investigation, disclose which provisions of the crimes code the grand jury

was investigating, and reveal to potential witnesses, targets, and persons

who might have access to similar materials stored at a different location the

precise nature of the items relevant to the investigation.

      Furthermore, grand jury documents are not filed with the clerk of

courts; rather, the court controls the documents to maintain their secrecy.

Pa.R.Crim.P. 229.    Simply put, there is not, nor has there ever been, any

public access to or oversight of grand jury proceedings such that a

presumption of openness attaches to the documents to which WPXI sought

access. Thus, WPXI’s common law claim fails as a matter of law.


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      The First Amendment experience-and-logic test yields the same result.

As succinctly explained by the Third Circuit, the Unites States Supreme

Court’s decision in

      Douglas Oil implicitly makes clear that grand jury proceedings
      are not subject to a First Amendment right of access under the
      test of “experience and logic.” Historically, such proceedings
      have been closed to the public. Moreover, public access to
      grand jury proceedings would hinder, rather than further, the
      efficient functioning of the proceedings.

Smith, 123 F.3d at 148. Hence, as a matter of law, no First Amendment

right of public access attaches to the grand jury documents WPXI sought to

inspect and copy in the instant case.

      Because our resolution of the threshold legal questions under both the

common law and the First Amendment tests establishes that no public right

of access attached to the documents sought by WPXI, we need not consider

WPXI’s final question of whether the trial court erred in not making findings

of fact to support its alternative holding that the Commonwealth’s interest in

maintaining the secrecy of the documents outweighed any such right.5


5 “In order for the appellate review of a trial court’s discretionary ruling to be
meaningful, the appellate court must understand the factual findings upon
which a trial court’s conclusions of law are based.” PG Publishing, 614
A.2d at 1109. Here, the trial court did not offer its case-specific reasoning
on the record or in its opinion, instead stating “that other factors existed in
support of nondisclosure in this case which this [c]ourt declined to state on
the record out of concern for violating the secrecy of the underlying grand
jury proceedings.” Trial Court Opinion, 7/23/2015, at 5. Had we reached
the opposite conclusion on the threshold legal issue, we would have been
required to remand the case for the trial court to disclose its reasoning. See
Upshur, 924 A.2d at 646 (“As the court did not develop its reasoning with

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J-A16040-16


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 3/14/2018




regard to [its exercise of discretion] in its Rule 1925(a) opinion, … we
remanded the case for preparation of an opinion specifying the rationale,
together with any necessary factual findings, supporting the discretionary
component of its ruling.”). For the sake of judicial economy, a trial court
faced with such concerns should detail its findings and rationale for this
Court and then seal the opinion.

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