OPINION BY STEVENS, P.J.
Karl E. Rominger, Esquire, appeals from the June 26, 2012 protective order entered in the Court of Common Pleas of Centre County, which was entered in response to the "leaking" of certain discovery evidence to the media following Gerald Sandusky's criminal jury trial. The order directed, inter alia, Gerald Sandusky's criminal defense attorneys to disclose to the trial judge and the supervising judge of the grand jury, under oath, "an inventory identifying all materials supplied to them in discovery and which was subsequently delivered to any member of the defense team ... or to any other person or entity in order to assist th[e] [lower] court and the investigating grand jury to take appropriate action to address the interests sought to be protected by [the] order." After a careful review, we quash, in part, and affirm, in part.
The relevant facts and procedural history are as follows: On November 4, 2011, and December 7, 2011, following a grand jury investigation and presentment, the Pennsylvania Attorney General's Office filed criminal complaints against Gerald Sandusky charging him with fifty-two counts of offenses related to the sexual abuse of teenaged and pre-teenaged boys. Attorneys Joseph Amendola and Karl E. Rominger entered their appearance on behalf of Gerald Sandusky, and discovery ensued. Following the selection of a jury, testimony commenced in Gerald Sandusky's criminal case on June 11, 2012, and on June 22, 2012, the jury convicted Gerald Sandusky on forty-five counts related to the sexual abuse.
Meanwhile, on June 26, 2012, pursuant to a request made by the Attorney General's Office, the Honorable John M. Cleland, S.J., who presided over Gerald Sandusky's criminal jury trial, and the Honorable Barry F. Feudale, S.J., who was the supervising judge of the grand jury, held a hearing at which members of the Attorney General's Office, as well as Attorneys Amendola and Rominger, were present. The purpose of the hearing was to determine whether a protective order was required to assure the integrity of the ongoing criminal investigations, to protect the privacy of the victims, and to protect the privacy of others who may testify or had testified before the grand jury. During the hearing, Chief Deputy Attorney Frank G. Fina, Esquire, of the Attorney General's Office, indicated, in relevant part, the following:
N.T. 6/26/12 at 4-7.
Attorney Amendola responded to Chief Deputy Attorney Fina's comments, in relevant part, as follows:
N.T. 6/26/12 at 7-8.
As it pertained to Matthew Sandusky's grand jury testimony, Judge Feudale clarified on the record that he authorized the Commonwealth turning over to Gerald Sandusky's criminal defense team transcripts of grand jury testimony in advance of the witnesses' trial testimony rather than after the witnesses had testified. N.T. 6/26/12 at 8-9. Judge Feudale indicated that Matthew Sandusky had testified during the grand jury proceedings, and therefore, he would assume that the grand jury transcripts of his testimony were given to Gerald Sandusky's defense team prior to trial. N.T. 6/26/12 at 8-9. Chief Deputy Attorney Fina indicated, "Yes, Your Honor. We turned over the transcripts not only of the witnesses who testified at trial but the transcript of any witness who was a potential Commonwealth witness or defense witness." N.T. 6/26/12 at 9. He specifically stated, "That would have included the testimony of Matthew Sandusky." N.T. 6/26/12 at 9. Thus, Chief Deputy Attorney Fina indicated that, although Matthew Sandusky did not testify during the jury trial of his father, Gerald Sandusky, the transcript from his grand jury testimony was given to Attorneys Amendola and Rominger prior to trial. N.T. 6/26/12 at 9.
Attorney Amendola reiterated that he received from the Commonwealth the transcript of Matthew Sandusky's grand jury testimony; however, he informed the court he never reviewed it. N.T. 6/26/12 at 10. Attorney Amendola told Judges Cleland and Feudale that:
N.T. 6/26/12 at 10-11.
Attorney Amendola confirmed that Matthew Sandusky was listed as a defense witness; however, in the end, the defense did not call Matthew Sandusky to testify during his father's criminal trial. N.T. 6/26/12 at 10-11. Attorney Amendola denied that his intention to call Matthew Sandusky to testify, and his eventual decision not to do so, had anything to do with Matthew Sandusky's grand jury testimony since Attorney Amendola never reviewed such. N.T. 6/26/12 at 11.
Chief Deputy Attorney Fina informed the court that, on June 14, 2012, after testimony commenced in Gerald Sandusky's jury trial, Matthew Sandusky appeared at the Attorney General's Office and made a verbal statement. N.T. 6/26/12 at 12. Without counsel, Matthew Sandusky returned to the Attorney General's Office on June 15, 2012 and made a tape-recorded verbal statement. N.T. 6/26/12 at 12. Chief Deputy Attorney Fina represented that, "Within I think it was an hour of the tape being completed, it was
In response to Chief Deputy Attorney Fina's argument, Attorney Rominger indicated the following:
N.T. 6/26/12 at 14-15.
Attorney Rominger indicated he received from Attorney Amendola Matthew Sandusky's June 15, 2012 tape-recorded statement a few days after it was recorded at the Attorney General's Office, and he kept the disc in his hotel room and car. N.T. 6/26/12 at 15.
Chief Deputy Attorney Fina informed Judges Cleland and Feudale that the Commonwealth was seeking protective orders for the following matter: (1) grand jury testimony, which had not been disclosed during the course of the public proceedings at trial, (2) information pertaining to victims, unnamed victims, and other potential victims of Gerald Sandusky, (3) "a protective order under Rule 573, subsection f, ... pertaining to investigative reports and material that were provided in discovery that were not made public during the proceedings," and (4) "any other information, which should not be disseminated to third parties without further court order." N.T. 6/26/12 at 15-16. Chief Deputy Attorney Fina indicated such protective orders would protect the ongoing nature of the investigation, the named and unnamed victims in the case, and the integrity of the judicial process. N.T. 6/26/12 at 16. He noted that there was a "great deal" of "highly incriminating" evidence against Gerald Sandusky, which was revealed during discovery but not used by the parties during the jury trial. N.T. 6/26/12 at 17. Thus, he questioned whether it would be in Gerald Sandusky's "best interest," or "anybody's best interest," to have additional incriminating information, beyond that presented during the jury trial, revealed to the public post-trial. N.T. 6/26/12 at 17.
Upon questioning by Judge Cleland, Chief Deputy Attorney Fina informed the court he was the person who interviewed Matthew Sandusky for purposes of the June 15, 2012 tape-recorded statement and he made three audio copies of the statement. N.T. 6/26/12 at 19. One audio copy was kept at the Attorney General's Office as evidence, a second audio copy was kept in evidence with the Pennsylvania State Police under the supervision of Corporal Dombrowski, and a third audio copy was
Upon questioning by Judge Cleland, Attorney Amendola confirmed he received the audio copy of Matthew Sandusky's interview from the Commonwealth and, without listening to it, he gave it to Attorney Rominger. N.T. 6/26/12 at 21. Attorney Rominger confirmed he stored the audio copy "with all of [his] Sandusky materials" in his vehicle. N.T. 6/26/12 at 21. He denied making any copies of the audio recording. N.T. 6/26/12 at 22.
At this point, Judge Cleland directed that, at the conclusion of the hearing, Attorney Rominger was to retrieve his copy of the audio recording from his vehicle and give it to the court as it was going to be subject to the protective order. N.T. 6/26/12 at 21-22. Judge Feudale stated, with clarity, that the transcript of Matthew Sandusky's grand jury testimony was not to be disclosed to third parties and he was entering a protective order in this regard. N.T. 6/26/12 at 24. Chief Deputy Attorney Fina asked that the protective order be extended to the grand jury testimony of other potential victims and those witnesses "relating to Penn State University," and without objection by Attorneys Amendola or Rominger, Judge Feudale agreed. N.T. 6/26/12 at 25. Attorney Rominger noted a protective order might also be appropriate as it relates to exhibits from the grand jury proceedings. For instance, he indicated the following:
N.T. 6/26/12 at 26-27.
In response, Chief Deputy Attorney Fina indicated:
N.T. 6/26/12 at 27.
Chief Deputy Attorney Fina noted that both parties were receiving phone calls from the media seeking comments about matters, which had not been disclosed publicly as part of Gerald Sandusky's jury trial, and therefore, it was necessary to have a broad protective order covering more than just information related to Matthew Sandusky. N.T. 6/26/12 at 28. The following relevant exchange then occurred between Judge Feudale and the attorneys:
N.T. 6/26/12 at 29-30.
Following the hearing, on June 26, 2012, Judge Cleland entered the following order:
Judge Cleland's Order filed 6/26/12 at 1-2 (footnote in original).
On July 6, 2012, Attorney Amendola filed a document, under seal, which Judge Cleland deemed to contain the necessary information required by paragraph 2 of the June 26, 2012 order. Attorney Rominger did not respond to the June 26, 2012 order and, one week after the deadline to respond had passed, Judge Cleland reminded Attorney Rominger he was required to comply with the order. See Judge Cleland's Pa.R.A.P. 1925(a) Opinion filed 9/20/12 at 2. On July 12, 2012, Attorney Rominger filed an appeal to this Court, indicating it was a "collateral appeal."
Initially, we must determine whether Judge Cleland's June 26, 2012 order is appealable. Attorney Rominger suggests the order is appealable as a collateral order.
Commonwealth v. Harris, 612 Pa. 576, 32 A.3d 243, 248 (2011) (citations and footnote omitted).
Here, there is no doubt that Judge Cleland's June 26, 2012 order is not a final order.
Pa.R.A.P. 313 (bold in original).
Mortgage Electronic Registration Systems, Inc. v. Malehorn, 16 A.3d 1138, 1142 (Pa.Super.2011) (quotations, quotation marks, citations omitted).
"All three prongs of Rule 313(b) must be met before an order may be subject to a collateral appeal; otherwise, the appellate court lacks jurisdiction over the appeal." Harris, 32 A.3d at 248 (citation and footnote omitted). Moreover, noting the discretionary process of seeking allowance of appeal by permission may be undermined by an overly permissive interpretation of Rule 313, our Supreme Court has adopted a narrow construction of Rule 313. See Rae v. Pennsylvania Funeral Directors Ass'n, 602 Pa. 65, 977 A.2d 1121 (2009). That is, our Supreme Court has adopted an "issue-by-issue application" of Rule 313. See id. Therefore, "the collateral order rule's three-pronged test must be applied independently to each distinct legal issue over which an appellate court is asked to assert jurisdiction pursuant to Rule 313." Rae, 602 Pa. at 80, 977 A.2d at 1130. Accordingly, we must review the issues presented by Attorney Rominger to determine whether the issues are entitled to collateral review. See Pilchesky v. Gatelli, 12 A.3d 430, 437 (Pa.Super.2011). If so, then we shall review the merits thereof. See id.
In the case sub judice, Attorney Rominger's first issue is Judge Cleland had no authority to issue a protective order directing Gerald Sandusky's criminal defense attorneys to provide, under oath, an inventory identifying all material supplied to them in discovery, which was subsequently delivered to any member of the defense team or other person/entity. That is, Attorney Rominger contends paragraph two of the June 26, 2012 order improperly violates the work-product doctrine since it requires defense counsel to disclose to whom, including experts and other people consulted by the defense attorneys, discovery materials were provided.
With regard to Attorney Rominger's first issue, we have no difficulty concluding his issue alleging improper disclosure in violation of the work-product doctrine is separable from the main cause of action, i.e., Gerald Sandusky's criminal proceedings. That is, resolution of whether the information should be disclosed is separable from whether Gerald Sandusky is guilty of the crimes for which he was convicted. See Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939 (2005) (discussing separability under collateral order doctrine). Moreover, in light of our Supreme Court's recent Opinion in Commonwealth v. Harris, supra, we have no difficulty concluding Attorney Rominger's first issue alleging improper disclosure in violation of the work-product doctrine involves
Harris, 612 Pa. at 586, 32 A.3d at 249 (citations omitted).
In this same vein, our Supreme Court specifically rejected the notion that there existed adequate alternate methods for obtaining review of orders rejecting a claim of privilege. See id. Specifically, our Supreme Court noted Pennsylvania's rules relating to interlocutory appeal by permission and writ of mandamus may not generally permit review of such orders. See id. Moreover, our Supreme Court indicated:
Harris, 612 Pa. at 589, 32 A.3d at 251.
Thus, pursuant to Harris, we find Attorney Rominger's first issue, which alleges Judge Cleland erred in ordering improper disclosure in violation of the work-product doctrine, is immediately appealable under the collateral order doctrine.
Thus, we turn to an examination of the merits of Attorney Rominger's first issue.
Commonwealth v. Hetzel, 822 A.2d 747, 757 (Pa.Super.2003) (quotation and quotation marks omitted) (footnote in original). See Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939 (2005). This Court has recognized the work-product doctrine applies to pre-trial discovery, as well as discovery otherwise during the course of the criminal trial proceedings.
In the case sub judice, we initially conclude Attorney Rominger cannot invoke the work product doctrine to avoid compliance with the protective order in this limited case. As both the United States Supreme Court and our Pennsylvania Supreme Court have recognized, at the core of the work-product doctrine is the fact "attorneys need a certain degree of privacy, free from unnecessary intrusion by
Here, our review of Judge Cleland's order reveals that the information to be disclosed by Attorney Rominger under paragraph two of the order is to be provided solely "to the Court and to the Supervising Judge of the Grand Jury." The order did not direct the information be provided to the Commonwealth, or anyone else for that matter.
In any event, assuming that Attorney Rominger was permitted to invoke the privilege under the work-product doctrine to avoid compliance, he has failed to demonstrate how Judge Cleland's order violates the work-product doctrine. Aside from baldly asserting the order would somehow force the defense attorneys to reveal "names of experts, investigators, or other persons consulted," he has failed to develop the argument further. That is, he has not explained how paragraph two of Judge Cleland's order requires disclosure of his "opinions, theories, or conclusions" or otherwise the defense's mental processes or impressions of Gerald Sandusky's case. See Kennedy, supra; Hetzel, supra; Pa.R.Crim.P. 573(G). We simply decline to develop this argument for Attorney Rominger or otherwise become his advocate in this regard. See Pa.R.A.P. 2119. Thus, we find he is not entitled to relief on his first issue.
Attorney Rominger's second issue is, to the extent Judge Cleland's order does not violate the work-product doctrine, it was "patently unfair" to require the defense attorneys to provide such information without requiring the Commonwealth's attorneys to do so as well.
As with Attorney Rominger's first issue, we have no difficulty concluding Attorney Rominger's second issue is separable from the main cause of action, i.e., whether Gerald Sandusky is guilty of the crimes for which he was convicted. See Kennedy, supra. However, even assuming, arguendo, Attorney Rominger's second issue involves a right too important to be denied review, we conclude he has failed to demonstrate the issue is such that if review is postponed until final judgment, the claim will be irreparably lost. As this Court noted in a similar case, an appellant's claim the trial court abused its discretion in ordering one party, but not the other, to reveal privileged information is an "error... which may be corrected on direct appeal once a final order has been issued.... [A]n [appellant] simply does not stand to lose any ... important right [by requiring immediate disclosure by the other party]." Pilchesky, 12 A.3d at 437-38. Thus, we conclude Attorney Rominger is not entitled to collateral review for his second issue.
Attorney Rominger's third issue is Judge Cleland misrepresented the record when he suggested in his June 26, 2012 order that the provisions of the order, including paragraph two, was being filed "upon consent of all counsel." That is, Attorney Rominger disputes he should be required to disclose information allegedly
As with Attorney Rominger's previous issues, this issue is separable from the main cause of action, i.e., whether Gerald Sandusky is guilty of the crimes for which he was convicted. See Kennedy, supra. Additionally, since the end result of any waiver of the privilege under the work-product doctrine would be the disclosure of information related thereto, as with Attorney Rominger's first issue, we find the issue of whether Judge Cleland allegedly erred in requiring disclosure due to Attorney Rominger consenting to the order, thus waiving the privilege, involves a right too important to be denied review and is such that it will be irreparably lost if review is postponed. See Harris, supra; Ben, supra. Therefore, Attorney Rominger is entitled to collateral review of this issue, and we would, normally, proceed to determine whether the trial court erred in finding he consented to the order, thus waiving the work-product doctrine.
However, in this case, since we have already concluded Attorney Rominger is not entitled to relief on his claim of privilege under the work-product doctrine, independent of whether he waived such by consenting to the order, we find it unnecessary to address this issue further. In so finding, we note that Attorney Rominger has not further developed his claim of privilege under the work-product doctrine. See Pa.R.A.P. 2119.
For all of the foregoing reasons, we affirm as to Attorney Rominger's first and third issues and quash as to his second issue.
Quashed, in part, Affirmed, in part.
Pa.R.Crim.P. 573(G).