J-A32042-16

                                   2017 PA Super 47



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PATRICK R. REESE,

                            Appellant                   No. 831 EDA 2016


             Appeal from the Judgment of Sentence March 3, 2016
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-MD-0001992-2015


BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

OPINION BY PLATT, J.:                                 FILED February 27, 2017

        Appellant, Patrick R. Reese, appeals from the judgment of sentence

imposed following his bench conviction of one count of indirect criminal

contempt.1 We affirm.

        We take the relevant facts and procedural history of this case from our

independent review of the certified record. By way of background, Appellant

was a Senior Supervisory Special Agent in the Executive Protective Detail for

former Pennsylvania Attorney General Kathleen G. Kane.              Appellant’s

responsibilities included the transportation and security of Ms. Kane.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 4955.
J-A32042-16



      This case arises from Appellant’s violation of a protective order issued

in 2014, in connection with the 35th Statewide Investigating Grand Jury. The

Grand Jury examined the improper release of secret information from a prior

2009 grand jury, which included an inquiry into the finances of a former

president of the Philadelphia branch of the National Association for the

Advancement of Colored People (NAACP), the late J. Whyatt Mondesire.

Information from the 2009 investigation was leaked to the Philadelphia Daily

News, and was published in an article on June 6, 2014.

      During the course of the Grand Jury proceedings, the Office of the

Attorney General of the Commonwealth of Pennsylvania (OAG) became a

subject.   The Honorable William R. Carpenter, in his capacity as the

supervising judge of the Grand Jury, appointed Thomas E. Carluccio,

Esquire, as Special Prosecutor to investigate and prosecute any illegal

disclosures.   On August 27, 2014, Judge Carpenter entered a protective

order (Protective Order) in that matter, which stated as follows:

      1. The Office of the Attorney General, except upon specific
      authorization by this Court or the Special Prosecutor, shall
      refrain from any involvement in, or access to, the investigative
      efforts of the Special Prosecutor.

      2. Employees of the Office of the Attorney General shall refrain
      from engaging in, or soliciting, any act of obstruction,
      intimidation or retaliation against any witness summoned by the
      Grand Jury in the Special Prosecutor’s investigation.

      3. All transcripts of Grand Jury testimony shall be given only
      from the stenographer or their employer directly to the
      Supervising Judge and the Special Prosecutor, no copy shall be
      given to the Attorney General’s Office.


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     4. Employees of the Office of the Attorney General shall
     not have access to transcripts of proceedings before the
     Grand Jury or Supervising Judge, exhibits, or other
     information pertaining to the Special Prosecutor’s
     investigation. All information related to the work of the
     Special Prosecutor shall be kept in the custody of the
     Special Prosecutor and Supervising Judge.

     5. Any person, including employees of the Office of the Attorney
     General, who engage in any act of obstruction, intimidation or
     retaliation against a witness summoned by the Grand Jury in the
     Special Prosecutor’s investigation may be prosecuted as set forth
     in 18 Pa.C.S.[A.] § 4955 (relating to violation of orders) and any
     other applicable provisions of the Crimes Code of Pennsylvania.

     6. The Special Prosecutor shall serve a copy of this Order upon
     the Office of the Attorney General.

     7. The contents of this Order are sealed, and shall not be
     disclosed (either verbally or in writing) by the Office of the
     Attorney General to any individual outside of the Office of the
     Attorney General under penalty of contempt of court.

(Protective Order, 8/27/14, Exhibit C-1) (original emphases omitted;

emphasis added).

     In response to a motion for reconsideration filed by the OAG, Judge

Carpenter entered an order on September 17, 2014, modifying slightly the

Protective Order. The amended order provided:

     . . . [T]he following persons only shall be subject to Paragraphs
     2 and 5 of said [Protective] Order:

           1. Any person who has been sworn to Grand Jury secrecy.

           2. Any person who has or had access to any Grand Jury
           information.

           3. Any person associated with the J. Whyatt Mondesire
           proceedings and investigation.


                                   -3-
J-A32042-16


          Additionally, Paragraph 7 of said Order is modified to allow
       communication regarding the Order with counsel for a person
       subject to the Order, for purposes of appeal, and for any other,
       similar purpose required by law.

(Order, 9/17/14, Exhibit C-2).2 The Grand Jury resulted in a presentment in

December of 2014, recommending the filing of criminal charges against Ms.

Kane, including perjury.

       On August 6, 2015, the Commonwealth filed a criminal complaint

charging Appellant with indirect criminal contempt for violation of the

Protective Order. The Commonwealth alleged that, from September through

December 2014, Appellant conducted searches of the OAG’s email archive

system, eVault, (eVault System), directed at gaining access to information

he was prohibited from knowing under the Protective Order.3       Among the
____________________________________________


2
  Relevant to the instant appeal, the court held a hearing on the OAG’s
motion for reconsideration of the Protective Order on October 17, 2014.
(See N.T. Trial, 12/07/15, at 78-81). The court denied the motion, and on
November 10, 2014, the OAG filed a petition for review of the Protective
Order in our Supreme Court, arguing, inter alia, that the order was issued
without notice or an opportunity to be heard. (See Appellant’s Brief, at 36-
38, 57); see also 42 Pa.C.S.A. § 722(5) (providing for Pennsylvania
Supreme Court jurisdiction over appeals from final court of common pleas
orders affecting grand jury investigations). Our Supreme Court denied the
OAG’s petition on December 19, 2014, by per curiam order.
3
  At trial, the IT Administrator for the OAG, Todd Niziol, was qualified as an
expert in the use and operation of the eVault System. (See N.T. Trial,
12/07/15, at 93-94). He testified that the eVault System makes copies of
emails that are sent from or received by the OAG. (See id. at 95). Any
email that is sent to or from the office is automatically journaled or copied
into the eVault System, which is entirely separate from the email system
itself. (See id.). The eVault System also has a function where it audits all
access to the system and records it to a database. (See id. at 100). Access
to the system is restricted to a limited number of employees who have a
(Footnote Continued Next Page)


                                           -4-
J-A32042-16



many searches that Appellant performed were searches of emails relating to

Judge Carpenter and Special Prosecutor Carluccio.

      On October 15, 2015, Appellant filed an Omnibus Pre-trial Motion,

requesting that Judge Carpenter recuse himself from this case, and that the

court dismiss the criminal complaint filed against him. The court denied the

motion, following oral argument, on October 27, 2015.

      The case proceeded to a bench trial on December 7, 2015, and the

trial court found Appellant guilty of the above-stated offense. On March 3,

2016, the court sentenced Appellant to a term of not less than three nor

more than six months’ incarceration. This timely appeal followed.4

      Appellant raises the following issues for our review:

      I. Whether the [trial] court erred in denying [Appellant’s]
      motion for recusal[?]

      II. Whether the Commonwealth proved beyond a reasonable
      doubt that [Appellant] had notice of the Protective Order[?]


                       _______________________
(Footnote Continued)

user name and password, and the system tracks those accessing it and their
actions. (See id. at 98, 101). Mr. Niziol granted Appellant permission to
access the eVault System in March 2014, and Niziol showed Appellant how
to use it. (See id. at 111-13; Commonwealth’s Exhibit 114). Appellant was
one of only three non-IT staff members who had access to the eVault
System in September 2014. (See N.T. Trial, 12/07/15, at 99, 113-14;
Commonwealth’s Exhibit 115).
4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on March 30, 2016. See
Pa.R.A.P. 1925(b). The court entered an opinion on May 18, 2016. See
Pa.R.A.P. 1925(a).



                                            -5-
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      III. Whether the Commonwealth proved beyond a reasonable
      doubt that [Appellant’s] searches of the office of attorney
      general “e-Vault” email archive system were conducted with
      wrongful or criminal intent[?]

      IV. Whether the [trial] court erred in denying [Appellant’s]
      motion to dismiss due to issuance of the Protective Order
      without notice or opportunity to be heard[?]

(Appellant’s Brief, at 2-3) (unnecessary capitalization omitted).

      In his first issue, Appellant challenges the trial judge’s decision not to

recuse himself from presiding over the bench trial.       (See id. at 27-35).

Appellant argues that because the Affidavit of Probable Cause to the Criminal

Complaint and the evidence at trial identified Judge Carpenter as one of the

individuals Appellant searched in the eVault System, there was a substantial

doubt as to whether he could preside impartially over the trial. (See id. at

27-29, 34). Appellant also claims recusal was necessary because of certain

public statements Judge Carpenter made in a supplemental opinion filed in

the Kathleen Kane matter, including a reference to her as “citizen Kane.”

(Id. at 30; see id. at 30-34).      Appellant argues that these statements

indicated that Judge Carpenter had concluded Ms. Kane was guilty, and that

there was a “likelihood of spillover prejudice” to him. (Id. at 33). This issue

does not merit relief.

      Our standard of review is well-settled:

            [Our Supreme] Court presumes judges of this
      Commonwealth are honorable, fair and competent, and, when
      confronted with a recusal demand, have the ability to determine
      whether they can rule impartially and without prejudice. The
      party who asserts a trial judge must be disqualified bears the
      burden of producing evidence establishing bias, prejudice, or

                                     -6-
J-A32042-16


     unfairness necessitating recusal, and the decision by a judge
     against whom a plea of prejudice is made will not be disturbed
     except for an abuse of discretion.

                   As a general rule, a motion for recusal is
           initially directed to and decided by the jurist whose
           impartiality is being challenged. In considering a
           recusal request, the jurist must first make a
           conscientious determination of his or her ability to
           assess the case in an impartial manner, free of
           personal bias or interest in the outcome. The jurist
           must then consider whether his or her continued
           involvement in the case creates an appearance of
           impropriety and/or would tend to undermine public
           confidence in the judiciary. This is a personal and
           unreviewable decision that only the jurist can make.
           Where a jurist rules that he or she can hear and
           dispose of a case fairly and without prejudice, that
           decision will not be overruled on appeal but for an
           abuse of discretion.

            [A] trial judge should recuse himself whenever he has any
     doubt as to his ability to preside impartially in a criminal case or
     whenever he believes his impartiality can be reasonably
     questioned. It is presumed that the judge has the ability to
     determine whether he will be able to rule impartially and without
     prejudice, and his assessment is personal, unreviewable, and
     final. Where a jurist rules that he or she can hear and dispose of
     a case fairly and without prejudice, that decision will not be
     overturned on appeal but for an abuse of discretion.

Commonwealth v. Kearney, 92 A.3d 51, 60–61 (Pa. Super. 2014), appeal

denied, 101 A.3d 102 (Pa. 2014) (citations and quotation marks omitted).

            The propriety of this decision [regarding recusal] is
     preserved as any other assignment of error, should the objecting
     party find it necessary to appeal following the conclusion of the
     cause.    If the cause is appealed, the record is before the
     appellate court which can determine whether a fair and impartial
     trial were had. If so the alleged disqualifying factors of the
     trial judge become moot.




                                    -7-
J-A32042-16



Commonwealth v. Harris, 979 A.2d 387, 392 (Pa. Super. 2009) (emphasis

in original) (citations omitted).

      We also note that, “[i]n general, a judge before whom contemptuous

conduct occurs has the power to impose punishment for such conduct and

appropriate sanctions without recusing himself. However, recusal is required

if there is a running, bitter controversy between the judge and offender.”

Commonwealth v. Debose, 833 A.2d 147, 150 (Pa. Super. 2003), appeal

denied, 847 A.2d 1278 (Pa. 2004) (citation omitted).

      Here, Appellant raised the issue of the trial judge’s alleged bias prior to

trial, and the judge concluded that he was fully capable of presiding over

Appellant’s case in a fair and impartial manner. (See Trial Court Opinion,

5/18/16, at 27). The court explained:

                 The fact that the court order that was violated is
      under my signature, . . . that is true of all contempt cases. But I
      have no personal knowledge of any of the facts here and cannot
      be considered a material witness concerning the allegations
      against [Appellant].

                                    *   *     *

                 [T]he fact that I am named in the affidavit of
      probable cause does not create the appearance of impropriety.
      Here, as in any contempt proceeding, whether there are facts
      showing the order of the judge was violated is the issue. . .

            I do think the defense analysis of my [supplemental]
      opinion [filed in the Kane matter] is materially flawed. You must
      understand the context of that particular proceeding: The
      Attorney General was trying to end this case before the District
      Attorney investigated it, before a judge heard the results of that
      investigation at a preliminary hearing, assuming the DA found


                                        -8-
J-A32042-16


      probable cause, and before a judge and jury heard the evidence
      at trial.

            Quite simply stated, a criminal trial is a search for the
      truth. I never said that the Attorney General was guilty. I never
      said what the truth was. All I said was that the truth should
      have the opportunity to be heard, that the truth was crying to be
      heard.

                                 *    *     *
            And that citizen Kane comment was taken out of the
      context in which it was made.          I was pointing out how
      extraordinary that request of relief was, especially given the fact
      that the district attorney hadn’t even had the chance to
      investigate completely the matter.

             Then the defense points to the allegation, the alleged close
      relationship between [Appellant] and Attorney General Kane. In
      my mind, that has no bearing on my ability to be fair and
      impartial. I will properly decide this case. I have no prejudice
      against the Attorney General or against [Appellant].

(Id. at 28-29).

      On appeal, Appellant fails to allege, let alone demonstrate with specific

references to the record in this matter, that his trial was not fair or impartial.

Instead, he focuses primarily on the potential for prejudice because the

Affidavit of Probable Cause named Judge Carpenter as a subject of his email

searches, and because of alleged “spillover” bias from the Kane matter.

(See Appellant’s Brief, at 27-35). Without a showing that he was actually

prejudiced during these proceedings, “the alleged disqualifying factors of the

trial judge become moot.”      Harris, supra at 392 (citation and emphasis

omitted). Furthermore, Appellant does not allege, and the record is devoid

of any evidence, of a running or bitter controversy between Judge Carpenter



                                      -9-
J-A32042-16



and himself.      See Debose, supra at 150.       Therefore, after review of the

record, we conclude that Appellant has failed to demonstrate that he did not

receive a fair and impartial trial as the result of Judge Carpenter’s denial of

the motion for recusal, and we discern no basis for finding an abuse of

discretion. See Kearney, supra at 60-61. Appellant’s first issue merits no

relief.

          We will address Appellant’s second and third issues together because

they both challenge the sufficiency of the evidence supporting his indirect

criminal contempt conviction.        Specifically, in his second issue, Appellant

claims the Commonwealth failed to establish that he had notice of the

Protective Order.      (See Appellant’s Brief, at 35-50).    Appellant maintains

there is no evidence that he was served with the Protective Order, that he

was present during any discussion of the order, or that he received any

communication describing its terms. (See id. at 48-49). In his third issue,

Appellant argues the Commonwealth failed to prove that he searched the

eVault System with wrongful or criminal intent.        (See id. at 50-56).    He

contends that he had a non-criminal purpose for the searches, because he

performed them in an effort to find out if anyone from the OAG’s office was

leaking information about the Grand Jury to the press. (See id. at 50-51).

These issues do not merit relief.

          Our standard of review is as follows:

               In reviewing the sufficiency of the evidence, we must
          determine whether the evidence admitted at trial, and all
          reasonable inferences drawn from that evidence, when viewed in

                                        - 10 -
J-A32042-16


      the light most favorable to the Commonwealth as verdict winner,
      was sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016) (en banc)

(citation omitted).

      Section 4955 of the Crimes Code provides, in pertinent part: “(a)

Punishment.—Any person violating any order made pursuant to section

4954 (relating to protective orders) may be punished in any of the following

ways: . . . (2) As a contempt of the court making such order. . . .”         18

Pa.C.S.A. § 4955(a)(2).

      . . . A charge of indirect criminal contempt consists of a claim
      that a violation of an order or decree of court occurred outside
      the presence of the court.         To establish indirect criminal
      contempt, the Commonwealth must prove: 1) the order was
      sufficiently definite, clear, and specific to the contemnor as to
      leave no doubt of the conduct prohibited; 2) the contemnor had
      notice of the order; 3) the act constituting the violation must
      have been volitional; and 4) the contemnor must have acted
      with wrongful intent.

                  [W]hen reviewing a contempt conviction, much
            reliance is given to the discretion of the trial judge.
            Accordingly, [the appellate court is] confined to a
            determination of whether the facts support the trial
            court decision.     We will reverse a trial court’s
            determination only when there has been a plain
            abuse of discretion.

Commonwealth v. Lambert, 147 A.3d 1221, 1226 (Pa. Super. 2016)

(citations omitted).




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J-A32042-16



      We note, “[i]n any case, civil or criminal, . . . [e]vidence of conduct,

circumstantial evidence, and logical inferences may suffice to prove certain

facts[,]” including notice.   Commonwealth v. Staton, 38 A.3d 785, 794

(Pa. 2012) (concluding evidence supported jury finding that appellant had

equivalent or anecdotal knowledge of protection from abuse order even

though he had never been served formally with order). Additionally, when

making a determination regarding whether a defendant acted with wrongful

intent, the court should use common sense and consider context, and

wrongful intent can be imputed to a defendant by virtue of the substantial

certainty that his actions will violate the court order. See Lambert, supra

at 1227.

      Here, the record reflects that Appellant was head of Ms. Kane’s

security detail and her driver, that they spent a great deal of time together

and had a close working relationship, and that he was one of her most

trusted employees. (See N.T. Trial, 12/07/15, at 13-16, 51, 86-87). The

record also shows that Ms. Kane was displeased with the scope of the

Protective Order, she made it a priority to challenge it in court, and that the

order and its implications were widely discussed in the executive office.

(See id. at 19, 21-22, 52-53, 76-79).

      Montgomery County Detective Paul Bradbury testified that, as part of

the investigation of Ms. Kane, Special Prosecutor Carluccio provided him with

audit results of the eVault System.          (See id. at 136-37).    Detective

Bradbury explained that his attention turned to Appellant because it

                                    - 12 -
J-A32042-16



appeared from Appellant’s query terms that he may have attempted to

gather information to interfere with the Grand Jury, or obtain information in

violation of the Protective Order. (See id. at 138-39). Detective Bradbury

identified, from among the many search terms Appellant used, the email

addresses for Judge Carpenter, Special Prosecutor Carluccio, and Mr.

Carluccio’s wife, who is a common pleas court judge. (See id. at 140-42).

Significantly, on December 3, 2014, as the Grand Jury was preparing its

presentment against Ms. Kane, Appellant searched the eVault System using

the terms “perjury,” and “removal from office.” (Id. at 142-43).

      The email subject lines that were returned by Appellant’s searches

included: “Protective Order,”   “Grand Jury-Fina-Protective Order,” “Motion

for   Reconsideration,”   “Supreme   Court    Petition,”   “35th   Grand   Jury,”

“Witnesses,” “Witness Date Change,” “Subpoena,” “Presentments,” “Leak

Investigation,” and “Notice 123,” which is the number for the Grand Jury.

(Commonwealth’s Exhibit 6; see also N.T. Trial, 12/07/15, at 145-46, 159).

      The Commonwealth also entered into evidence several emails that the

audit showed Appellant had previewed and opened.               (See N.T. Trial,

12/07/15, at 153-54). One of the emails chains, dated September 8, 2014,

had the subject line “Protective Order,” and Appellant opened it on

September 10, 2014, two weeks after the court issued the Protective Order.

(See id. at 177; Commonwealth’s Exhibit 51).         The chain begins with an

email from Ms. Kane to First Deputy Attorney General, Bruce Beemer.            It

reads:

                                     - 13 -
J-A32042-16



      I believe our Motion doesn’t quite hit the strong points in a clear
      and precise manner.        It should make clear the law which
      requires a hearing and substantial evidence, the fact that order
      covers 800 people, requires no contact, intimidation, retaliation
      against witnesses while directing that OAG have no knowledge of
      the witnesses. We are a law enforcement agency that now has
      it’s [sic] hands tied from any investigation or prosecution or civil
      suit because of this overbroad order and which violates the
      separation of powers.         [The] Order violates a person’s
      Constitutional right to counsel, and 1st Amendment rights to free
      speech as witnesses have to secrecy requirement [sic]. Also,
      this Order precludes us from initiating an investigation into the
      anticipated yet egregious leak last weekend that the OAG is a
      TARGET of a criminal investigation.

(Commonwealth’s Exhibit 51).       The two subsequent emails in this chain

discuss the implications of the Protective Order, and one of the emails

directly quotes from it.   (See id.).   Appellant also opened two emails on

September 15, 2014, with the subject line “Notice 123.”        (See N.T. Trial,

12/07/15, at 167-69, 173-74; Commonwealth’s Exhibits 34, 112). Both of

the emails attached the OAG’s Motion for Reconsideration of the Protective

Order, which described the Protective Order and its prohibitions in detail.

(See N.T. Trial, 12/07/15, at 167-69, 173-74; Commonwealth’s Exhibits 34,

112). Another email chain Appellant opened, dated August 29, 2014, with

the subject line “Protective Order,” begins with an email from Mr. Beemer to

Ms. Kane, describing the incident alleging witness intimidation that gave rise

to Judge Carpenter’s issuance of the Protective Order.        (See N.T. Trial,

12/07/15, at 170-71; Commonwealth’s Exhibit 54).

      The evidence also demonstrated that Appellant opened multiple emails

relating to Grand Jury witnesses and grand jurors in September and


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J-A32042-16



November of 2014. (See N.T. Trial, 12/07/15, at 157-66; Commonwealth’s

Exhibits 20, 42, 48, 84-86). Detective Bradbury opined that the contents of

these emails, when viewed in conjunction with the times at which Appellant

read them, indicated that he was gaining real time information about the

grand jurors, witnesses, and the timing of their testimony. (See N.T. Trial,

12/07/15, at 157-58, 164-65, 169).

      David   C.   Peifer,   Special   Agent    in   Charge   of   the   Bureau    of

Investigations at the OAG, testified that on September 11, 2014, at

Appellant’s request, he performed searches of the eVault System in an

attempt to find any leaks of information about the Grand Jury to the press.

(See id. at 49, 54-56).         Mr. Peifer searched the system by running

reporters’ names and other terms he thought might reveal a leak, but found

no results, and reported this to Appellant and Ms. Kane. (See id. at 57-61).

      Thus, the evidence reflects Appellant was a close confidant of Ms.

Kane, that she made it a priority to challenge the Protective Order, and that

the order was widely discussed among those surrounding Appellant.                 The

evidence further demonstrates that, after the court issued the Protective

Order, Appellant deliberately chose specific search terms that on their face

appear directed at gaining information pertaining to the Grand Jury, and not

simply targeted at identifying leaks.     Appellant’s searches returned emails

with subject lines directly relating to the investigation, including “Protective

Order.”   Appellant then opened many of these emails, some of which

discussed in detail and quoted from the Protective Order. Appellant gained

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real time information relating to Grand Jury activity, in violation of the

Protective Order’s prohibition on OAG employees accessing any “information

pertaining to the Special Prosecutor’s investigation.”     (Protective Order,

8/27/14, ¶ 4; Exhibit C-1).      Under such circumstances, we find ample

evidentiary support for the trial court’s determination that Appellant had

notice of the Protective Order, and that he possessed the wrongful intent to

violate that order. See Lambert, supra at 1226-27. Therefore, Appellant’s

second and third issues lack merit.

      In his fourth issue, Appellant argues the trial court improperly issued

the Protective Order without first providing notice or an opportunity to be

heard to the OAG employees potentially impacted by it.       (See Appellant’s

Brief, at 56-60). This issue does not merit relief.

      Initially, we note Section 4954 of the Crimes Code governs the

issuance of protective orders in criminal matters and provides as follows:

      Any court with jurisdiction over any criminal matter may, after a
      hearing and in its discretion, upon substantial evidence, which
      may include hearsay or the declaration of the prosecutor that a
      witness or victim has been intimidated or is reasonably likely to
      be intimidated, issue protective orders, including, but not limited
      to, the following:

            (1) An order that a defendant not violate any
            provision of this subchapter or section 2709 (relating
            to harassment) or 2709.1 (relating to stalking).

            (2) An order that a person other than the defendant,
            including, but not limited to, a subpoenaed witness,
            not violate any provision of this subchapter.




                                      - 16 -
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            (3) An order that any person described in paragraph
            (1) or (2) maintain a prescribed geographic distance
            from any specified witness or victim.

            (4) An order that any person described in paragraph
            (1) or (2) have no communication whatsoever with
            any specified witness or victim, except through an
            attorney under such reasonable restrictions as the
            court may impose.

18 Pa.C.S.A. § 4954.      Therefore, courts have broad discretion to issue

appropriate protective orders. See id.

      With respect to the effect of entry of per curiam orders, our Supreme

Court has stated:

      In any appeal before us, this Court’s entry of a per curiam order
      affirming or reversing the final order of a lower tribunal, after
      review and consideration of the issues on appeal to this Court,
      signifies this Court’s agreement or disagreement with the lower
      tribunal’s final disposition of the matter on appeal to us. An
      order of per curiam affirmance or reversal becomes the law of
      the case.

      In the instance where this Court intends to not only affirm the
      result of the lower court decision but also the rationale used by
      the lower court in reaching that decision, we would enter the
      appropriate order affirming on the basis of the opinion of the
      lower court, elucidating the lower court’s rationale where
      necessary or desirable. Our entry of an order of per curiam
      affirmance on the basis of the lower court’s opinion, thus, means
      that we agree with the lower court’s rationale employed in
      reaching its final disposition.

Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996) (emphasis

omitted).

      Here, as referenced above, our Supreme Court denied by per curiam

order the OAG’s petition for review of the Protective Order, in which the

office raised the issues of lack of notice and opportunity to be heard. In that

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order, the Court stated in relevant part, “per the opinion of the Supervising

Judge William R. Carpenter, the purpose of the protective order, entered per

the authority of 18 Pa.C.S.A. 4954, ‘was/is to prevent the intimidation,

obstruction and/or retaliation, in the ordinary sense of those words . . . .

[and] was never intended to prevent the [Office of Attorney General] from

carrying out its constitutional duties.’”     Pennsylvania Office of the

Attorney General v. Supervising Judge of the Thirty-Fifth Statewide

Investigating Grand Jury, No. 171 MM 2014 (Pa. filed Dec. 19, 2014)

(record citation omitted).

      Thus, our Supreme Court has considered the validity of the Protective

Order, and indicated its support of the trial court’s disposition of the matter.

See Tilghman, supra at 904. We cannot revisit this decision. Appellant’s

final issue on appeal does not merit relief.      Accordingly, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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