IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA, CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA. : Nos, CP-46-CR-0006239-2015 CP-46-CR-0008423-2015 KATHLEEN GRANAHAN KANE, OPINION DEMCHICK ALLOY, J. MARCH 2, 2017 ‘This case poses important issues of constitutional Jaw and, more fundamentally, the rule of law itself.! ‘The prosecutors charged the defendant, former Attorney General Kathleen G. Kane (hereinafter “appellant”), with |_| breaking the laws she was sworn to uphold, She, in turn, alleged that the=, prosecutors and court infringed her exercise of constitutional rights, and exercised powers not lawfully vested in them when investigating and prosecuting her. The resolution of these competing allegations is a matteépf great importance, both to the persons directly involved and the public. Appellant has filed the instant direct appeal from the judgments of sentence. In the action indexed at no. 6239-2015, appellant was tried before a jury and convicted of perjury,? false swearing in official matters,? obstructing | "Like the forces governing the individual mind, the forces making for social order are a multilevel affair, and even constitutions are based on, or presuppose, an underlying agreement on more fundamental principles--principles which may never have been explicitly expressed, yet which make possible and precede the consent and the written fundamental laws.” FRIEDRICH A. HAYEK, TIE CONSTITUTION OF LIBERTY 267-68 (Ronald Hamowy, ed. 2011) 218 Pa.C.S. § 4902 8 Id. § 4903.the administration of law,* official oppression,5 criminal conspiracy to obstruct the administration of law and criminal conspiracy to commit official oppression,’ In the action indexed at no, 8423-2015, appellant was convicted of perjury, false swearing, obstructing the administration of law and official oppression. On October 24, 2016 she was sentenced to serve a term of total confinement of five to twelve months, with two concurrent terms of probation and a term of five years’ probation consecutive to parole in the action indexed at no, 6239-2015; and in the action indexed at no, 8423-2015, a term of total confinement of five to eleven months consecutive to all sentences imposed in no. 6239-2015, plus a concurrent term of probation and a term of three years’ probation consecutive to parole. She remains on bail pending disposition of her direct appeal. This opinion will begin, in Part I, by listing the claims of error appellant has raised on appeal. In Part II, this opinion will recount facts of record material to the disposition of those claims. Part III will provide argument with citations to authority to show that appellant’s claims fail. I. Claims of Error Raised on Appeal By order filed November 23, 2016 the undersigned judge directed appellant to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 4, 2017, appellant filed her statement of errors 4 Id.§ 5101 5 Id. § 5301 6 Id. § 903. rid(hereinafter, the “Statement”), which consisted of nine allegations of error. Notably, appellant has not claimed that the evidence was insufficient to support the guilty verdicts, nor that the verdicts were against the weight of the evidence, nor that the sentences were illegal or an abuse of judicial discretion, and therefore she concedes that the verdict was supported by sufficient and weighty evidence and that the sentence was legal and just given the facts of record. Appellant’s lawyer drafted each allegation of error in the form of a heading supplemented with explanatory text, For the sake of brevity, this opinion will omit almost all of the explanatory text here, but will recite its material parts in the discussion of each allegation of error, in order to ensure that only those issues raised in the court below will be decided on appeal. ‘The Statement alleges these errors in the following order: 1, Denial of appellant’s pretrial motion to recuse all judges of the Montgomery County Court of Common Pleas; 2, Denial of appellant's pretrial motion to suppress evidence gathered by or derived from the Thirty-Fifth Statewide Investigating Grand Jury; 3. Denial of appellant’s pretrial motion for a bill of particulars; 4, Denial of appellant's pretrial motion to dismiss perjury and false swearing charges as duplicative; 5. Denial of appellant’s pretrial motion to dismiss obstruction of administration of law charges as duplicative or multiplicitous, or both; 8 See Pa.R.A.P, 302(a) (stating that an appcllant may not raise an issue not raised in the court below}. 36. Denial of appellant's pretrial motion to dismiss official oppression charges as multiplicitous; 7. Denial of appellant's pretrial motion to dismiss all charges due to selective and vindictive prosecution; 8. Preclusion of appellant from producing evidence of pornographic emails and the Sandusky trial to oppose the Commonwealth’s evidence of motive; 9, Denial of appellant's objection to jury instruction defining scope of secret grand jury information. For the sake of clarity, the discussion of each claim of error will recite a small number of supplemental facts material only to that claim. m. FACTS ‘This section recites the facts material to the discussion of the merits of the claims of error appellant has raised on appeal, Facts are “material” if they are essential to the evaluation of a legal argument or disposition of an application for relief.2 In order to help readers anticipate how certain facts will become essential to certain claims of error, this recitation of facts will also include several brief statements of applicable law. 9 See BLACK’S LAW DICTIONARY p. 611 (7th ed. 1999) (defining “material fact” as “a fact that is significant or essential to the issue at hand’). 4A. The initial leak of confidential grand jury information in the Philadelphia Inquirer, March 16, 2014 On March 16, 2014, while appellant was serving as the Attorney General, the Philadelphia Inquirer published an account of a particular investigation into criminal political corruption, the “Ali inve: gation,” begun by the Office of Attorney General (OAG) before appellant took office, Appellant was “extremely upset” because information in the article appeared to have been disclosed by former employees of the OAG notwithstanding that such disclosure was a criminal act prohibited by multiple statutes and a judicial order, as it constituted “investigative information”? obtained through the use of wiretaps and a statewide investigative grand jury.!! The article stated that when appellant took office and became aware that the investigators of the Ali “sting operation” had uncovered evidence sufficient to support the filing of criminal charges against Philadelphia politicians, she decided not to file charges.!2 Appellant perceived the article as an attack on her personal integrity and the integrity of the OAG as an institution.'3 She believed that a former Deputy 10 18 Pa.C.S. § 9102 (defining “Investigative information” as “Information assembled as a result of the performance of any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing....”) 12 NT. 8-10-16, afternoon session p. 99, 110-14 (testimony of former First Assistant Attorney General King); see also N.T. 8-9-16, afternoon session, p. 103 (testimony of former Chief Deputy Attorney General Bruce Beemer) "2 N.T. 8-10-16, afternoon session, pp. 97-98 (testimony of former First Assistant Attorney General King]; see also N.T. 8-11-16, morning session, pp. 125-26, 128 (testimony of Joshua Morrow) '° N-T, 8-10-16, afternoon session, pp. 99 (testimony of former First Assistant Attorney General King)Attorney General, Frank Fina, had leaked the information to the Inguirer.\ Appellant had publicly stated her intention to conduct an internal review of Fina’s handling of the Sandusky investigation during her campaign for the office of Attorney General, and the investigation was well under way by February of 2013.15 In an email to a public relations consultant in reaction to the Inquirer article, she expressed her anger and indignation, not just on a personal level, but on behalf of the OAG as an institution, by declaring, “I will not allow them to discredit me or this office. ... This is war."1 Appellant undertook prompt, extensive action in anticipation of, and in reaction to, the Inquirer’s reporting of the Ali investigation. First, knowing ahead of time that the Inquirer was going to report the investigation, and knowing that she and her office would ordinarily be prohibited by the Criminal History Record Information Act (CHRIA)!” and the Investigating Grand Jury 14 N.T, 8-9-16, afternoon session, p. 103 (testimony of former Chief Deputy Attorney General Bruce Beemer); N.T. 8-10-16, afternoon session, p. 116 (testimony of former First Assistant Attorney General King); N.T. 8-11-16, morning session, p. 120 (testimony of Joshua Morrow) 1s Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, #5 & n.3. 6 N-T, 8-9-16, morning session, p. 42 (Montgomery County Detective Paul Bradbury, reading Commonwealth's exhibit 11-A in response to question during cross- examination}. 7 18 Pa.C.S, §§ 9101-9183. Subject to exceptions not applicable to the facts of this case, CHRIA forbids disclosure of “protected information,” such as investigative information, by any “criminal justice agency,” which, as defined in CHRIA, includes the Attorney General, See 18 Pa.C.S. § 9102 (defining “criminal justice agency); id. § 9106 (aj, (b) (listing investigative information in category of “protected information” and obligating criminal justice agency to keep investigative information in a manner that restricts access to authorized employees of agency); id. § 9106(c} (listing circumstances under which agency may disclose protected information); and id. § 9106(4) (prohibiting dissemination of protected information). 6Act!8 from publicly discussing it, she obtained a judicial order giving her permission to disclose limited facts about the investigation in anticipation of inquiries from the press." Next, although the Inquirer published the story on a Sunday, she called most of her senior staff to a meeting in Harrisburg that very day.2° She sought additional advice, by email, from a public relations consultant Sunday evening?! The next day, Monday, March 17, 2014, appellant, with her senior staff, held a press conference to answer questions about the Ali investigation.22 In addition, within a day or two, then-First-Assistant-AG Adrian King?? arranged a meeting between appeliant and the Inquirer editorial board for March 20th. By the time of that meeting, appellant had retained a lawyer to represent her personal interests and answer questions the members of the board might ask her.2*+ Weeks later, on April 10, 2014, she held another pre: 18 42 Pa.C.S. §§ 4541-4553, The Act includes the Attorney General or her designee in its definition of “attorney for the Commonwealth,” id, § 4542, and prohibits an attorney for the Commonwealth from disclosing matters occurring before an investigating grand jury absent permission or direction of the supervising judge, id. § 4549(b). WNT, 8-10-16, afternoon session, pp. 112-13 (testimony of former First Assistant Attorney General King), 2 Id, at 99-100 (testimony of former First Assistant Attorney General King). 21 N.T, 8-9-16, morning session, pp. 42-44 (Montgomery County Detective Paul Bradbury, reading and discussing Commonwealth's exhibit 11-A in response to cross- examination). 22 N.T, 8-10-16, morning session, p, 52 (testimony of former Chief Deputy Attorney General Beemer); N.T. 8-10-16, afternoon session, p. 82 (testimony of Special Agent David Peifer); N.T. 8-10-16, afternoon session, p. 114 {testimony of former First, Assistant Attorney General King). 2! NT, 8-10-16, afternoon session, p. 95 {testimony of former First Assistant Attorney General King). 34 Id. at 100-102 (testimony of former First Assistant Attorney General King) 7conference.25 B. The Mondesire investigation On March 19, 2014, only days after the Inquirer published the article on the Ali investigation, Agent Michael Miletto of the Norristown office of the OAG contacted one of his supervisors, Special Agent David Peifer, to alert him about what Miletto feared would be the next news story to reflect adversely on the Attorney General's Office.?° Miletto told Peifer about a long-discontinued investigation that had unexpectedly revealed allegations of illegal activities by someone other than the target: Jerome Mondesire, now deceased.2” Mr. Mondesire was well known in the greater Philadelphia area: for 23 years he served as the publisher of the Philadelphia Sun newspaper; for nineteen years he hosted “Freedom Quest,” a weekly public-affairs program on a Philadelphia- area radio station; for six years he had been a bi-weekly or monthly guest on “Inside Story,” a weekly Philadelphia-area television show on local politics; he sat on the Pennsylvania Human Relations Commission;?* and he served as the head of the local and state chapters of the NAACP.29 In 2008, Agent Miletto began receiving information that a woman named Harriet Garret, the director of “CUES,” a philanthropic firm that operated a 25 N.T, 8-10-16, morning session, p. 52 (testimony of former Chief Deputy Attorney General Beemer] 2 N.T, 8-10-16, morning session, p. 147 (testimony of Agent Miletto}; N.T. 8-10-16, afternoon session, pp. 44-45, 76 (testimony of Special Agent David Peifer} 2 N.T, 8-10-16, afternoon session, p. 45 (testimony of Special Agent Peifer) 28 N.T, 8-12-16, pp. 57-59 (testimony of Catherine Hicks). 2 N-T, 8-10-16, alternoon session, p. 7 (testimony of former Deputy Attorney General William Davis); N.T. 8-12-16, p. 57 (testimony of Catherine Hicks) 8“welfare-to-work program,” had taken state funds granted to CUES and spent them on herself on several occasions.® In that investigation, Miletto worked with former Deputy Attorney General William Davis.*! Eventually, Agent Miletto and DAG Davis used a grand jury to investigate the suspected crimes.s2 Judge Barry Feudale presided over that grand jury, which he had convened in Norristown, Montgomery County, Pennsylvania. Miletto testified that from the beginning, he and Dayis found information that numerous other persons associated with Garrett were engaged in illegal activities.5 Davis testified, “an individual named Jerry Mondesire, Jerome Mondesire, came to our attention” because he had employed Garrett at a newspaper and had run a corporate predecessor to CUBS." As Davis put it, a witness who appeared before the CUBS grand jury accused Mr. Mondesire of making “questionable” uses of state grant funds.°7 Davis lacked authority to use the CUES grand jury to investigate the 9 NT. 8-10-16, morning session, p. 123 (testimony of Agent Miletto}; N.T. 8-10-16, afternoon session, pp. 6-7 (testimony of former Deputy Attorney General Davis} 3. NT. 8-10-16, morning session, p. 126-27 (lestimony of Agent Miletto); N.T. 8-10-16, aftemnoon session, pp. 6-7 (testimony of former DAG Davis}. 32 NT, 8-10-16, morning session, p. 123-24 (testimony of Agent Miletto}; N.T. 8-10-16, afternoon session, p. 7 (testimony of former DAG Davis}. 38 In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 632-33 (Pa, 2015) (plurality decision) (opinion of Baer, J., concurring in the judgment) (footnote omitted). 38 See Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, Exhibit “A,” p. 1 (transcript of statement of former D.A.G. Frank Fina to Judge William R. Carpenter) 38 NT, 8-10-16, morning session, p. 125 (Agent Miletto testifying, “From the starting point, it shot off into different directions.”) % N.T. 8-10-16, afternoon session, pp. 7-8 (testimony of former DAG Davis). Id. at 9 (testimony of former DAG Davis] ; id. at 25. 9accusations against Mr. Mondesire, so he sought permission to do so from his supervisor, Fina, who served at that time as the Chief of the Criminal Investigation Unit.5? Davis emailed a legal memorandum (hereinafter, the “Davis memo”) to Fina summarizing the accusations against Mr. Mondesire in the context of the CUES investigation. 9° In the memo, Davis expressly referred to facts obtained from grand jury testimony by Celestine Koger, Carol Lawrence, M.L. Wernecke and un-named former employees of CUES, ® which supports Davis’s trial testimony that his memo contained information he had learned from the grand jury proceeding.*! After reviewing the Davis memo, Fina replied by email, “I like it. Thanks." At the time he drafted the memo, Davis was certain that if Mr. Mondesire had committed the acts of which he had been accused, the statute of limitations barred prosecution.‘? Davis’s memo recommended several investigative methods for trying to discover whether Mr. Mondesire had committed more recent illegal acts for which he could be prosecuted. They included interviewing Mr. Mondesire and subpocnaing him to testify before the 28 Id, at 9 (testimony of former DAG Davis} 3 Id. at 9-10; N.T. 8-10-16, morning session, p. 127 (testimony of Agent Miletto). The Davis memo was admitted into evidence at trial as Exhibit C-6, +0 Exhibit C-6, pp. 2-3. 41N-T, 8-10-16, afternoon session, pp. 9-10 (former DAG Davis answering “Absolutely, yes” when asked on direct examination, “And in terms of what is contained in this memo, does it contain information that you learned from the Grand Jury?”) 42 Id. at 11 (testimony of former DAG Davis) 49 Id, at 22-23 (testimony of former DAG Davis) (stating, in regard to the barring of prosecution pursuant to the statute of limitations, “There definitely were issues....”) 10CUES grand jury,** but Fina never gave Davis permission to use those two particular methods.‘ Instead, he advised Davis to stay focused on the “original target” of the grand jury investigation,#6 Ms. Garrett. Davis himself emphasized that Mr, Mondesire “was not the subject of the investigation,”*” and that by following Fina’s advice, he succeeded in obtaining sufficient information to file charges and obtain convictions against Garrett and her daughter.*8 Davis implied that the denial of authority to interview Mr. Mondesire or call him as a grand jury witness did not significantly impede his ability to investigate, because he anticipated that Mr. Mondesire would have been able to avoid being compelled to testify before the grand jury by invoking the Fifth Amendment of the United States Constitution.’? Davis continued to investigate Mondesire by other means, such as subpoenaing documents,® interviewing other grand jury witnesses! and negotiating for information from Garrett after she was arrested, “but nothing ever came in terms of more evidence with Mr. Mondesire.”®? As Davis put it, “we were sort of at an impasse in terms of Mr. 44 Id, at 22.23 {testimony of former DAG Davis). +8 Id. at 26-27 (testimony of former DAG Davis} “6 Id, at 26 (testimony of former DAG Davis) 47 Id, at 31 (testimony of former DAG Davis} “8 Id. at 17 (testimony of former DAG Davis) “Id, at 27 (testimony of former DAG Davis) 50 Id, at 8 (testimony of former DAG Davis) 5! Id, at 26 (testimony of former DAG Davis) 82 Id, at 27-28 testimony of former DAG Davis). 1Mondesire,” and charges were never filed against him. ©. Appellant learns of the Mondesire investigation Agent Miletto had no personal knowledge of how the later stages of the Mondesire investigation unfolded because he had been transferred from the Norristown office of the Attorney General, and all of his cases, including the CUES and Mondesire investigations, were transferred to another agent.5+ Despite this lack of knowledge, Miletto assumed that, in the wake of the Inquirer story about the Ali investigation, the failure to charge Mondesire would reflect poorly on the Attorney General if reported in the press.55 On March 19th or 20th of 2014, Agent Miletto gave Special Agent Peifer a copy of the Davis memo and other documents pertaining to the Mondesire investigation, “a stack of papers about a quarter-inch thick....”5 Special Agent Peifer then sought out appellant and told her that he had spoken by telephone with Agent Miletto, who “was concerned that the Mondesire case could be the next case that would be in the news...."57 Special Agent Peifer then told appellant what he had learned. He explained, during direct examination, A. “Thad talked to the Attorney General. Q. Okay. %9 Id. at 27-28 (testimony of former DAG Davis}. 4 Id. at 8 (testimony of former DAG Davis} 55 N.T, 8-10-16, morning session, p. 147 (testimony of Agent Miletto); N.T. 8-10-16, afternoon session, pp. 44-45, 76 (testimony of Special Agent Peifer). N.T, 8-10-16, morning session, p. 131 (testimony of Agent Michael Miletto); N.T. 8- 10-16, afternoon session, p. 46 (testimony of Special Agent Peifer} 5? N.T. 8-10-16, afternoon session, pp. 76-77 {testimony of Special Agent Peifer). 12A, And made her aware of the concerns about that case becoming public. They were the concerns raised to me and the fact that the case was shut down by Frank Fina and no charges were ever filed. We weren't sure -- I wasn't really sure how that would have affected our office or this administration. Q Did you get any direction from her? A Just to find out what the details of that case were and to report back.®® More specifically, Peifer admitted on re-direct examination that he had been recorded while telling former Senior Deputy Attorney General Linda Dale Hoffa that appellant instructed him to interview Miletto in the presence of then-Chief Deputy Attorney General Bruce Beemer in order to “find out if Frank Fina shut this investigation down.”5? Peifer ordered Miletto to come to the main office of the Attorney General in Harrisburg to meet with Peifer and Bruce Beemer, who was then Chief of the Criminal Prosecution Section of the Attorney General's Office.6! One may infer that the true purpose of the meeting was a secret between appellant and Peifer because Beemer had no more than a moment's notice of it. Peifer entered Beemer’s office unannounced and asked him to accompany Peifer to a nearby conference room, to interview an agent he had never met before (Agent 56 Id, at 47 (testimony of Special Agent Peifer) 59 Id, at 86 (testimony of Special Agent Peifer). The prosecutor was able to ask that specific question on re-direct examination because defense counsel had asked, on cross-examination, “Agent Peifer, [appellant] didn’t tell you go focus on Frank Fina, did she?” to which Special Agent Peifer replied, “Not specifically, no.” {d. at 77. © N.T. 8-10-16, morning session, pp. 131-32 (testimony of Agent Miletto); N.T. 8-10- 16, afternoon session, pp. 46-47 (testimony of Special Agent Peifer) 6. N.T, 8-9- 16, afternoon session, p. 92 (testimony of former Chief DAG Beemer} 13Miletto},02 an investigation about which he knew nothing (the CUES investigation],® a legal memorandum he had never seen before (the Davis memo), and a person previously unknown to him (Mr, Mondesire).6° Beemer stated, “At the time I didn't know anything. I didn't know who had been charged or what was going on.”6° The meeting was brief®?--the accusations against Mr. Mondesire were based upon events that occurred in 2004 and 2005,6 Miletto told Beemer he believed that the statute of limitations would have barred the prosecution of Mr. Mondesire for his alleged conduct,®? and Beemer quickly formed the same legal opinion.”° Beemer began to surmise, however, that the point of the meeting was not to determine whether Mr. Mondesire could still be prosecuted, but whether incompetence or corruption lay at the root of the decision not to prosecute. He testified, “At the conclusion of the meeting it was clear that one of the purposes...was to let me know that certain individuals had not been charged and certain steps had not been taken with that case.””! He did not enlist in the covert purpose underlying the meeting. Beemer testified, “there © Id. at 105-06 (testimony of former Chief DAG Beemer}. © fd. at 109 (testimony of former Chief DAG Beemer, 6 Id. at 108-09 (testimony of former Chief DAG Beemer]. 65 Id. at 110 (testimony of former Chief DAG Beemer) 6 Id, at 109 (testimony of former Chief DAG Beemer} 67 N,T, 8-10-16, morning session, p. 132 (Agent Miletto testifying, "Mr. Peifer brought me in to see Mr, Beemer regarding this case, and the discussion we had was rather brief. It wasn't Iong.”) 68 N.T, 8-9-16, afternoon session, p. 110 (testimony of former Chief DAG Beemer) © N-T. 8-10-16, morning session, pp. 132 (testimony of Agent Miletto). 70 N.T. 8-9-16, afternoon session, p. 110 (testimony of former Chief DAG Beemer). 2 Id, at 109 (testimony of former Chief DAG Beemer) 14was evidence that people in the office were well aware of the conduct” but “whether was right for them to do nothing about it or not was immaterial to the fact that the statute of limitations would have long since expired on the actual conduct.” He ended the mecting by telling Peifer, “I just don't see cre we're going to go with this, moving forward...."”9 “Moving forward” apparently did not include public relations planning in anticipation that news of the Mondesire investigation would be leaked, in contrast to the way appellant and the OAG had handled the leak of the Ali investigation. The information gained from the investigation into the accusations against Mondesire, and even the fact that such an investigation existed, constituted “investigative information,” the disclosure of which would have been unlawful under CHRIA’S and the Investigative Grand Jury Act.7¢ Nonetheless, appellant never asked Beemer to prepare a memo” to facilitate the preparation of a press release or public relations plan. Instead, unbeknownst to Chief DAG Beemer, Special Agent Peifer took another 72 Id, at 111 (testimony of former Chief DAG Beemer) % Id. at 110 (testimony of former Chief DAG Beemer) “4 See nn. 10, 11 supra and text accompanying notes. 15 See N.T. 8-9-16, afternoon session, pp. 114, 118 and N.7. 8-10-16, morning session, p. 10-11 (Former Chief DAG Beemer opining that CHRIA prohibited disclosure of information in Davis memo and transcribed interview of Agent Miletto to press); see also n.17, supra and text accompanying note. #6 See N.T. 8-9-16, afternoon session, pp. 113, 118 and N.7. 8-10-16, morning session, pp. 9-11, 27, 42 (former Chief DAG Beemer opining that Investigative Grand Jury Act prohibited disclosure of information in Davis memo and transcribed interview of Agent Miletto to press); see also n. 18, supra, and text accompanying note. oT N-7. 8.9-16, afternoon session, p. 113 (testimony of former Chief DAG Beemer) 15,statement from Agent Miletto,’S this time audio-recording the statement over Miletto’s objection.’ Peifer had the recording transcribed by an administrative assistant, Wanda Scheib, using word-processing software.®° Dissatisfied by the first draft, he had Ms. Scheib “eliminate the ahs and ums,”*! ostensibly to make the transcript easier to read. Ms. Scheib made only one printed copy, which she gave to Peifer, and she did not distribute an electronic copy to anyone.8? Special Agent Peifer never gave Agent Miletto an opportunity to review the transcript (hereinafter, the “Miletto transcript’) to confirm it was accurate.8? In fact, Agent Miletto did not even learn his recorded statement had been transcribed until early June, when he was surprised and alarmed to read about it in a news story,*! which will be discussed shortly. Miletto was surprised to see his statement disclosed to the public because it included information obtained during grand jury proceedings. Peifer delivered the sole copy of the transcript to appellant, who “paged through it” while Peifer orally briefed her on it following a senior staff meeting 78 N.T. 8-10-16, afternoon session, pp. 47-48 (testimony of Special Agent Peifer); N.T. 8-10-16, morning session, pp. 133-34 (testimony of Agent Miletto). 79 N.T. 8-10-16, morning session, pp. 134 (testimony of Agent Miletto}. 60 N-T, 8-10-16, afternoon session, pp. 48-49 (testimony of Special Agent Peifer); N.7. 8-11-16, morning session, pp 50-52, 54 (testimony of Wanda Scheib}. Copies of the transcribed interview were admitted into evidence at trial as the Commonwealth's Exhibits C-3 and C-4 SUN,T. 8-10-16, afternoon session, p. 49 (testimony of Special Agent Peifer) 82 NT, 8-11-16, morning session, pp. 50-52, 54 (testimony of Wanda Scheib). 83 N.T, 8-10-16, morning session, pp. 136 (testimony of Agent Miletto} *4 Id, at 137 (testimony of Agent Miletto}. 8 See Exhibits C-3 and C-4, pp. 2, 9, 23 and 24 16on March 22, 2014.85 Later the same day, appellant asked her First Assistant AG Adrian King to deliver an envelope containing the Miletto transcript, the Davis memo and the emails between Davis and Fina regarding the memo, toa political consultant and friend of appellant, Joshua Morrow.8? Appellant did not hand the envelope to King at that time; instead, shortly afterward, when King left his office for the day, he found what he assumed to be the envelope on the desk or on the table in his conference room. D. Appellant knew that disclosing the investigative information regarding Mondesire would violate CHRIA and the Grand Jury Act Circumstantial evidence strongly suggest ppellant knew that she could not lawfully disclose the information in the Davis memo and the two emails. Special Agent Peifer, who is not a lawyer, testified that he understood that CHRIA made it unlawful to disclose the information in the Davis memo and the two emails, Bruce Beemer, the former DAG who had previously served as an stant district attorney, testified that among prosecutors, “{elveryone was. *© NLT, 8-10-16, afternoon session, pp. 49-51 {testimony of Special Agent Peifer); see also id. at 124 (former First Assistant Attorney General King testifying that the senior staff meeting in question was held March 22, 2014) 87 See id. at 124-25 (former First Assistant Attorney General King testifying that appellant asked him after the senior stalf meeting on March 22, 2014 to deliver a package to Joshua Morrow, and describing appearance of the package, which he found had been placed on his desk in his office by a person or persons unknown); see also N.T. 8-11-16, morning session, pp. 106-112 (Joshua Morrow testifying as to his ‘occupation, his role as a political consultant for appellant during her campaign for office of aitorney general and his personal friendship with appellant); id, at 154-61 (Joshua Morrow describing appearance of package and describing contents of package); N.T, 8-11-16, afternoon session, pp. 13-16 (Joshua Morrow describing contents of package}. * See N-T. 8-10-16, afternoon session, p. 125 (testimony of former Fi Attorney General King). Assistant, 17aware of this particular Act.”8° Appellant had served as an Assistant District Attorney in Lackawanna County before she was elected Attorney General of Pennsylvania, the top law enforcement officer of the state, and her name appeared first on the frontispiece of the CHRIA handbook published by the OAG during her tenure.?!_ When First-Assistant AG King objected that she had unlawfully disclosed information regarding the Ali investigation to her personal altorney, she replied, “I am well aware of the limitations of disclosing criminal files and the Wiretap Act, I have been in this business for quite some time.”9? Appellant was also aware of the legal prohibition against disclosure of grand jury information, having conducted a grand jury investigation as an assistant district attorney.° When her investigation ripened into a trial, she appeared as a witness and testified under oath, “for me to give out any information to somebody, who is not going into the grand jury, is actually a criminal offense.”°* Having paged through the transcript while Special Agent Peifer briefed 8 N.T. 8-9-16, afternoon session, p. 95 (testimony of former Chief DAG Beemer). 99 N.T. 8-10-16, afternoon session, pp. 116 (testimony of former First Assistant Attorney General King). 91 N.T, 8-9-16, afternoon session, pp. 30-31 (Montgomery County Detective Paul Bradbury answering questions about Commonweaith’s Exhibit C-31) % N.T, 8-10-16, afternoon session, pp. 110-12, 114-16 (former First Assistant Attorney General King reading Commonwealth’s exhibit C-43 and answering questions regarding exhibit on direct examination) 8s N-T. 8-12-16 p. 99 (testimony of William C. Costopoulos, Esquire reading from Commonwealth's Exhibit C-83, notes of appellant's testimony as a witness in the case of Commonwealth of Pennsylvania versus Judge Francis Eagen). Sid. (testimony of William C, Costopoulos, Esquire reading from Commonwealth’s Exhibit C-83, notes of appellant’s testimony as a witness in the case of Commonwi of Pennsylvania versus Judge Francis Eagen) 18 althher on it,% appellant knew that its substance pertained to investigative information, some of it derived from a grand jury proceeding. Every fact in the Miletto interview and the Davis memo that could have been related to corruption or incompetence in the investigation of Mr. Mondesire was barred from disclosure by CHRIA and the Grand Jury Act. Nevertheless, appellant iver the envelope containing the transcript and memo to Appellant’s lawyer, during closing argument, drew a factual distinction between leaking the documents, which appellant denied, and leaking the information they conveyed: What she told Adrian King is, “we should put it out to the press, get the story out,” not leaking documents, (but] ensuring that the press and the public understand that the decision not to pursue this investigation was made by the prior administration, and that the statute of limitations had now run.% Her lawyer conceded only that appellant “told Adrian King to talk to Josh Morrow so they could get their story out. There's no dispute about that fact.”°7 Her lawyer's interpretation of the evidence, even if believed, does not change the legal conclusion to be drawn: that appellant knowingly violated CHRIA and 98 NT, 8-10-16, afternoon session, pp. 49-51 {testimony of Special Agent Peifer}; see also id. at 124 (former First Assistant Attorney General King testifying that the senior staff mecting in question was held March 22, 2014) % N.T, 8-15-16, p, 53 (italics added). See also id. at 51-52 (defense counsel reading appeliant’s grand jury testimony in which she recounted telling King that ‘it's the public's right to know” about what Miletto had told Peifer about the Mondesire investigation); id. at 52 (defense counsel quoting appellant's grand jury testimony, “I then said, well, let’s then put it out into the press, and we did.” 91 N.T, 8-15-16, p, 22; at 51-52 (defense counsel reading, in closing statement, appellant's grand jury testimony that she told King that they should inform the public about the information Peifer gave her about the Mondesire investigation), 19the Grand Jury Act. In her testimony before the Thirty-Fifth Statewide Investigating Grand Jury, appellant stated, “This is a pattern of non- prosecutions, and this was somebody who could have been prosecuted except for the lapse of time that had occurred. And we said that it's the public’s right to know what is happening in the office....°98 In this context, “somebody who could have been prosecuted” referred indirectly but specifically to only one person: Jerome Mondesire. Likewise, her lawyer’s argument that appellant instructed King to publicize “the decision not to pursue this investigation” referred indirectly but specifically to the OAG’s criminal investigation of Mr. Mondesire. Appellant certainly did not intend to inform the public that former OAG lawyers, upon concluding “this investigation,” either made a valid exercise of prosecutorial discretion in declining to prosecute, or properly declined to prosecute a person who could not have been lawfully prosecuted at all, The jury could reasonably infer that appellant chose the phrase “the publie’s right to know what’s happening in the office” to refer to a right to information that suggested Mondesire had committed crimes but was not prosecuted by the preceding administration because of incompetence or corruption. Thus, even under her preferred interpretation, appellant admitted in her sworn testimony $8 N.T, 8-9-16, afternoon session, pp. 15-16 (Detective Paul Bradbury reading from Commonwealth's exhibit C-29, notes of testimony of grand jury hearing before Judge William J, Carpenter, November 17, 2016) (italics added); N.T. 8-15-16 (defense counsel reading from Commonwealth's exhibit C-29, notes of testimony of grand jury hearing before Judge William J, Carpenter, November 17, 2016) {italics added), 20before the Thirty-Fifth Statewide Investigating Grand Jury that she intended to disclose investigative information derived in part from a grand jury proceeding, in violation of CHRIA and the Grand Jury Act. E. With the aid of King and Morrow, appellant carried out a plan to unlawfully disclose investigative grand jury information to the press At approximately 5:00 p.m. on March 22, 2014, appellant contacted Morrow by telephone and, according to Morrow, “said that she wanted me to do her a favor, to give Adrian King a call, he had some documents that they wanted to get to a reporter." Morrow continued, then I asked her what it was that I was getting, and she described a transcript from one of [the] agents...to another agent about an investigation into Jerry Mondesire and into his finances, and that Frank Fina...did the investigation, and that he then shut it down, 100 Morrow was not surprised by appellant’s request.!°!_ As with appellant, the March 16th Inquirer article portrayed Morrow as having participated in political corruption, and although it did not identify him by name,"©? he was upset because it identified him indirectly. 1° Appellant and Morrow had often commiserated over their negative portrayal in the Inquirer article, % and the two shared a strong animosity toward Fina, whom they regarded as its % NT. 8-11-16, morning session, pp. 123-34 (testimony of Joshua Morrow) 300 Id, at 134-35 {testimony of Joshua Morrow) 101 Id, at 135 (testimony of Joshua Morrow} 162 Id, at 126-27 (testimony of Joshua Morrow} 303 id, at 128-29 (testimony of Joshua Morrow} 101 Id. at 135 (testimony of Joshua Morrow). 21source.!°5 Morrow’s testimony suggested that fate had provided them a unique opportunity to achieve a rough parity with Fina by leaking the documents to the press “to show that Frank Fina shut down [the Mondesire] investigation, the same way Kathleen shut down the investigation with the [Ali] sting.” Although Morrow was not surprised by appellant’s request, ! he was distressed by it because she was asking him to leak the information about the Mondesire investigation before they had given sufficient forethought to integrating the leak into a strategic public relations plan.1°7 Nonetheless, he agreed to do as she asked."°8 He telephoned King, arranged to retrieve the envelope from King’s home,'? and then retrieved it the next morning, March 23, 2014, as planned.¥!0 After reading the documents that day, Morrow communicated with appellant by text message to subtly acknowledge their receipt. At appellant’s suggestion, Morrow redacted the documents to obscure most names except Fina’s,!!? but he delayed delivering them to a newspaper 108 Id. at 128-29 (testimony of Joshua Morrow); N.T, 8-11-16, afternoon session, p. 17 {testimony of Joshua Morrow) 106 id, at 135 (testimony of Joshua Morrow} 107 Id, at 148 (testimony of Joshua Morrow); sce also Exhibit C-S7, pp. 3, 4-5, 6 (transcript of wiretapped recording of Morrow speaking to friend by telephone in evening of March 22, 2014). 08 NT, 8-11-16, morning session, p. 135 (testimony of Joshua Morrow), 09 id, at 135-38, 152-53 {testimony of Joshua Morrow); see also N.T. 8-10-16, afternoon session, pp. 126-28, 152-53 (testimony of former First Assistant Attorney General King) 10 Jd, at 153-54 (testimony of Joshua Morrow), 111 Id, at 161 (testimony of Joshua Morrow); N.T, 8-11-16, afternoon session, pp. 7-9 (testimony of Joshua Morrow). 2 N/T, 8-11-16, afternoon session, pp. 1 9 (testimony of Joshua Morrow), Adrian 22reporter because he was busy working as a consultant on a political campaign.'!3 On Sunday, May 4, 2014, he gave the documents to Christopher Brennan, a reporter for the Philadelphia Daily News.'" The next day, Morrow and appellant texted in a thinly-disguised manner about his delivery of the package to a reporter for the Daily News, about how they would soon enjoy revenge because it was “time for Frank to feel the (heat].”!'5 “Best be able to ‘Just keep this between us,” to which appellant replied, “I won't tell anyone,”"19 Morrow and appellant texted each other frequently in impatient anticipation of the article!” until it was published Friday, June 6, 2014.18 F. Appellant’s immediate reaction to the publication of the Mondesire information shows consciousness of guilt Among the most inculpating evidence in this case is the inference to be drawn from the contrast between appellant’s reaction to the publication of the Mondesire information when compared to the reactions of Agent Miletto, Special Agent Peifer and Chief DAG Beemer. Miletto, Peifer and Beemer King steadfastly denied knowing the envelope contained the Davis memo, and denied that he knowingly participated in the leak, but on the same night King agreed with appellant to give an envelope to Morrow, Morrow told a friend--during a telephone conversation that was fortuitously recorded as part of an unrelated criminal investigation--that King told him to redact names from the documents inside the envelope. See Exhibit C-57, p. 3 (transcript of wiretapped recording of Morrow speaking to friend by telephone in evening of March 22, 2014} NON,T, 8-11-16, afternoon session, pp. 9, 40 (testimony of Josh Id. at 12-13 (testimony of Joshua Morrow) 5 Id. at 22-25 (testimony of Joshua Morrow) 36 Id. at 24-25 (testimony of Joshua Morrow) 7 Id. at 30-34, 39-41, 43-44 (testimony of Joshua Morrow) 18 Jd, at 40 (testimony of Joshua Morrow). 23 1a Morrow).regarded the Daily News article as evidence of a “leak” by someone in the OAG.19 Miletto was angry that a transcript of his interview had been leaked; Peifer was anxious that he would be suspected of being the source of the leak; and Beemer supported internal and external investigations of the leak. In contrast, appellant did not-express anger or indignation like Miletto; she did not express suspicion of Peifer or anyone else; nor did she support any investigation like Beemer. Appellant’s reaction to the leak of the Mondesire investigation was the opposite of her angry, indignant, suspicious reaction to the Ali investigation. When the investigative information regarding Mondesire was published in the Daily News on Friday, June 6, 2014, Agent Miletto was so “angry that this taped statement, that was supposed to be used for notes, wound up in the newspaper ” and so “very concerned” about the publication of grand jury information, that he confronted Special Agent Peifer about it that morning, 12 Special Agent Peifer was also quite unhappy that portions of Miletto’s statement had been published in the Daily News because it included information derived from a grand jury proceeding.'2"_ One may infer his 119 See N.T, 8-10-16, morning session, pp. 24, 25 (testimony of former Chief DAG Beemer); id, at 138 (testimony of Agent Miletto); N.7. 8-10-16, afternoon session, pp. 58, 60 (testimony of Special Agent Peifer) i20'N.T, 8-10-16, morning session, p. 135 (testimony of Agent Miletto}; see also N.T. 8- 10-16, afternoon session, p. 57 (Special Agent Peifer testifying that Agent Miletto was unhappy with the publication of “the statement I took from Miletto.’ 121 N.T. 8-10-16, afternoon session, pp. 57-58 (Special Agent Peifer testifying, “I was pissed, to say the least.”); see also id. at 129-130 (former First Assistant Attorney General King testifying that Special Agent Peifer came to sce him June 9th or 10th, 24perception of the gravity of the situation from the fact that he immediately contacted both appellant and Senior DAG Linda Dale Hoffa to tell them, “I didn’t leak that statement."!22. Significantly, having already testified that he left the sole printed copy of the statement in front of appellant, Peifer testified that he told Hoffa, “Linda, | only left that statement in one location.”!23 When Peifer reached appellant by telephone later that day, her response was very revealing, He testified, I wanted her to know that I didn't leak that document. That, you know, I don't know how it got there, but I did not leak it. I wanted to make sure she was aware of that. It's attributed to me, I had control of that. You know, I explained to her that that had Grand Jury information in it, it shouldn't have been in the paper, that kind of thing. And her response was that “I would never suspect you of leaking that document. Don’t worry about it.”!24 More revealing still was the series of conversations about the article between Chief DAG Bruce Beemer and appellant. On the day the Daily News ran the story of the Mondesire investigation, Beemer called appellant around noon, told her the situation was “a problem” and asked permission to begin an internal investigation into the leak.!25 Beemer explained at length why he believed the leak could only have come from within the OAG.176 That being the case, he thought “it was incumbent upon” the OAG to undertake either an 2014, because he was “confused” and “upset” about the publication of the Mondesire investigation in the Daily News article). 122 N.T, 8-10-16, afternoon session, p. 58 (testimony of Special Agent Peifer).. 124 Jd. (testimony of Special Agent Peifer). 124 Id, at 60 (testimony of Special Agent Peifer) 485 N.T. 8-10-16, morning session, pp. 18, 31-32 (testimony of former Chief DAG Beemer), 120 Id, at 18-25 (testimony of former Chief DAG Beemer) 25internal investigation or a grand jury investigation.'2” Beemer was surprised by appellant's response: “don't worry about it, it's not a big deal, we have more important things to do.”!24 Not long after, Beemer learned that Judge William R, Carpenter of the Montgomery County Court of Common Pleas had convened the Thirty-Fifth Statewide Investigating Grand Jury to investigate the leak.!29 The news left him feeling “relieved” because he “thought it would have been difficult for us to conduct our own inquiry,” given that the leak had come from within the OAG.2% He believed that the grand jury information would “send message to our office.,.that this stuff gets taken seriously, if you're going to release information out of the office, that someone is going to do something about it”'3! Before the month of June was out, Beemer spoke to Judge Carpenter by telephone and assured him that “he would have the complete cooperation of the Attorney General's Office” and that the members of the leadership team “understood that this was a serious issue....”19? In contrast, appellant wished to frustrate the grand jury investigation: in a telephone conversation with Beemer on July 28th, she told him she wanted him to file a motion, either with Judge Carpenter or the Supreme Court of Pennsylvania, challenging the lawfulness of Judge Carpenter’s decision to 227 Id, at 19 (testimony of former Chief DAG Beemer}. 28 Id. at 18-19 (testimony of former Chief DAG Beemer} 129 Jd, at 29-30 (testimony of former Chief DAG Beemer). 120 Jd, at 30 (testimony of former Chicf DAG Beemer) 181 Jd, at 30 (testimony of former Chief DAG Beemer) 192 Id. at 31, 33 (testimony of former Chief DAG Beemer} 26appoint a special prosecutor to conduct the grand jury investigation of the leak.*®* Appellant then argued that the leak did not include grand jury information, making so many specific references to the Davis memo that Beemer believed she was reading directly from it.184 It was entirely possible that she was reading the memo at the time, as Special Agent Peifer testified that only three days before, on July 25th, appellant had ordered him to email her another copy of the Davis memo, and he and another employee, Gabriel Stahl, testified that they did so.195 After Beemer voiced disagreement that the leak did not include grand jury information, appellant argued that the special prosecutor lacked lawful authority to investigate because it was still unknown whether the person who leaked the information had taken an oath to keep the grand jury information secret.!85 Beemer explained to her that whether that person had taken such an oath did not affect whether the Grand Jury Act forbade him or her from disclosing the information, and that in any event, one could not know whether that person was sworn to secrecy without conducting the very investigation she wanted to thwart.!3’ During ancther conversation with appellant in October, Beemer expressed disagreement when appellant objected to having some of the 139 Id, at 38-39, 67 (testimony of former Chief DAG Beemer} 131 Id. at 40-42 (testimony of former Chief DAG Beemer). 135 N.T. 8-10-16, afternoon session, pp. 63-66 (testimony of Special Agent Peifer); N.T. 8-12-16, pp. 42-44, 46 (testimony of Gabriel Stahl) 136 N.T, 8-10-16, morning session, pp. 42-43 (testimony of former Chief DAG Beemer) 137 Id, at 43-44 (testimony of former Chief DAG Beemer) 27Deputy Attorneys General serving grand jury subpoenas on others.'9° He testified that she replied, “Bruce, if] get taken out of here in handcuffs, what do you think my last act will be?”!3° Appellant's lack of public relations management of the Mondesire article in the Daily News contrasts sharply with her management of the Inquirer article about the Ali investigation. As with the article about the Ali investigation, appellant knew in advance that an article on the Mondesire investigation would appear in the press. “9 Appellant's senior communications staff, First Assistant AG King and Special Agent Peifer had also received advance notice of the news story, either from the author himself or indirectly.141 Despite this notice, the record includes no evidence that appellant obtained a judicial order to allow anyone in the office to discuss investigative grand jury information with the press, retained a public relations consultant, met with the editorial board of the Daily News, hired a lawyer to mediate between herself and the board, or instructed her communications staff how to respond to press inquiries regarding the Mondesire investigation. In the 98 Id. at 46, 70 (testimony of former Chief DAG Beemer), 9 Id. at 46-47 (testimony of former Chief DAG Beemer) ¥0 In addition to Morrow's testimony about his conversations with appellant regarding the publication of the article, see N.7. 8-15-16, pp. 51-52 (defense counsel, in closing, argument, reading appellant's grand jury testimony in which she recounted telling King that “it's the public's right to know” about what Miletto had told Peifer about the Mondesire investigation}; id. at 52 (defense counsel quoting appellant's grand jury testimony, “I then said, well, let's then put it out into the press, and we did.”) 181 See Commonwealth's trial exhibit C-1 1-b (copies of emails between author, Chris Brennan and Special Agent Peifer, and among Peifer and communications stafil; see also N.T. 8-15-16, pp. 72-73 (defense counsel, in closing argument, referring to hearsay evidence in exhibit C-11-b, indicating King had advance notice of article). 28absence of any guidance from appellant, her communications director sought advice from Beemer, King and Peifer instead.!42 The reason for the sharp contrast in appellant’s handling of the Daily News article as compared with the Inquirer article is readily inferable from the evidence of record. Appellant was, in her own words, “well aware of the limitations of disclosing criminal files,""49 hence she would have realized that CHRIA and the Grand Jury Act prohibited her from disclosing each of the facts contained in the Miletto interview and the Davis memo, or even revealing the existence of the CUES grand jury or the investigation into Mondesire. G. Appellant and Morrow conspire to give false grand jury testimony After the publication of the Daily News article on June 6, 2015, Morrow did not see appellant until August, when they met for lunch in Philadelphia.'44 On previous occasions, Morrow would simply meet appellant at a restaurant, so he thought it “a little odd” when her personal security chief, Special Agent Patrick Reese, telephoned and told Morrow to meet him at the corner of 16th and Locust Streets at noon.!45 Reese arrived at noon in a vehicle driven by another man.'46 They did not drive Morrow to a restaurant, but to a parking 42. See NT. 8-10-16, morning session, pp. 12-14, 26-28 (testimony of former-Chief DAG Beemer]; N.T. 8-10-16, afternoon session, p. 59 (testimony of Special Agent Peifer); id. at 129 (testimony of former First Assistant Attorney General King) ‘3 Id. at 110-12, 114-16 (former First Assistant Attorney General King reading Commonwealth’s exhibit C-43 and answering questions regarding exhibit on direct examination). Mt NT, 8-11-16, afternoon session, pp.46-47 (testimony of Joshua Morrow} 49 Id. at 47 (testimony of Joshua Morrow}. 46 Id. at 47-48 (testimony of Joshua Morrow). 29garage. 47 Having thus outnumbered and isolated Morrow, Reese demanded. his cell phone, keys and wallet!*® and ordered Morrow out of the vehicle.1*? Reese “wanded” Morrow to confirm he was not wearing a microphone and a recording or transmitting device.!5° ‘The three then drove to the Bellevue Hotel, where Morrow had lunch with appellant while Reese lurked at another table.15! Although Reese’s actions had the immediate objective of preventing electronic eavesdropping, the jury could infer that they also served to set the tone for the luncheon by intimidating Morrow, revealing to him his physical vulnerability. Appellant apologized for “the security detail,” explaining that it was “a new security protocol.”182 Morrow soon learned why appellant would have instituted a new protocol that involved searching persons for hidden microphones appellant told Morrow “there was a grand jury investigation into the Mondesire leak.”!5? She tried to reassure him that he would not be subpoenaed to testify before the grand jury, telling him, “They're after me,”154 Nonetheless, Morrow was concerned that he would be required to testify, and he told her indirectly that if subpoenaed, he would testify that when King had given him the documents, he had been acting on his own, without any M97 Id, (testimony of Joshua Morrow). 148 jd. (testimony of Joshua Morrow} 149 Id. at 48-49 (testimony of Joshua Morrow) 180 Id, (testimony of Joshua Morrow). 151 [d, at 49-50 (testimony of Joshua Morrow) 152 Id, at 50 (testimony of Joshua Morrow) 159 Jd. (testimony of Joshua Morrow). 194 Id. (testimony of Joshua Morrow). 30involvement by appellant.165 Morrow next met appellant near her home in Dunmore, Pennsylvania in October.'8 The two arranged to meet in a public park, but when he arrived, no one was there.'5? Reese arrived, drove Morrow to Reese’s home, took his wallet, cell phone and keys, and “wanded” him,16 As before, the jury could infer that Reese’s actions served to isolate and intimidate Morrow. When Morrow finally met appellant at the park, she appeared “kind of frantic” and pleaded, “I need help, I need help. I need someone to help me.”!59_ Morrow arranged for appellant to meet a lawyer, Dion Rassias, Esquire, in Philadelphia later in October.160 Morrow was present at the meeting, as was Reese, who “wanded” Rassias’s office to confirm the absence of concealed microphones." Notably, on this occasion, with appellant and Rassias present, Reese did not demand the wallets, keys or cell phones of anyone, including Morrow.'62 In a number of conversations afterward, Morrow and appellant “reiterated the lie” (ce, that appellant had never seen the documents, but had merely told Morrow to call King)!® and discussed their testimony before the grand jury. 455 Id, at 50-52 (testimony of Joshua Morrow}. % Id. at 52-53 {testimony of Joshua Morrow). 57 Id. at 54 (testimony of Joshua Morrow). 458 Id. {testimony of Joshua Morrow). 459 Id. {testimony of Joshua Morrow). 100 Id, at 56 (testimony of Joshua Morrow). 361 Id, at 87 (testimony of Joshua Morrow) 262 Id, (testimony of Joshua Morrow). 269 Id, at 63-64 (testimony of Joshua Morrow). 40 Id. at 68-81 (testimony of Joshua Morrow) 31H. Appellant gives false testimony before the grand jury On November 17, 2014, appellant testified before the Thirty-Fifth Statewide Investigating Grand Jury. The purpose of the grand jury was to investigate an unlawful leak of investigative information from the OAG. During the course of her testimony, appellant falsely denied, multiple times, having intentionally participated in causing the leak of the Mondesire investigation, When asked whether she gave King a package to give to Morrow, and whether she had anyone else prepare such a package, appellant answered “no” to each question, even though the circumstantial evidence of record is sufficient to prove the answer to all of those questions should have been “yes.”!®° Similarly, when asked how King got the documents, she testified that she did not know, and when asked whether she had talked with Josh Morrow about the supposed plan she made with King to publicize the “pattern of nonprosecutions,” she admitted only that she had said, “Josh, Adrian wants you to call him.”'67 When appellant was shown a copy of the Davis memo, she stated under oath five times that she was not familiar with it and had never seen it before.58 When asked whether she read the Daily News article, she stated that she had not read it until August, 2014, When asked whether “the Commonwealth's Exhibit C-20, p. 37; N.T. 8-9-16, afternoon session, pp. 14-15 (Detective Paul Bradbury reading exhibit 166 Commonwealth's Exhibit C-30, p. 31; N.T. 8-9-16, afternoon session, p, 17 (Detective Paul Bradbury reading exhibit). 16" Commonwealth's Exhibit C-30, p. 29; N.T. 8-9-16, afternoon session, p. 17 (Detective Paul Bradbury reading exhibit) 168 Commonwealth’s Exhibit C-30, pp. 13, 14 12-14 (Detective Paul Bradbury reading exhibit). 32 ; N.T. 8-9-16, afternoon session, pprelease of this information to the press had nothing to do with the release of any information that went out on Ali around the same time” she answered, “Not from me, no."!69 Appellant stated four times that she had not sworn an oath of secrecy regarding the grand jury investigating Harriet Garret and CUES.!70 The Commonwealth produced a copy of a secrecy oath she signed, on her first day in office, regarding the first through the thirty-second statewide investigative grand juries, which included the one at issue.7" ‘The Commonwealth also produced a plethora of circumstantial evidence that appellant would have remembered signing the oath when she testified. First, the Commonwealth produced copies of four other statewide investigative grand jury secrecy oaths she signed on the same day, at the same time.!72 Next, the Commonwealth produced the sworn testimony of Wanda Scheib, who described her detailed memory of appellant signing the oaths, which Scheib had notarized.!73 Special Agent Peifer and former First Assistant AG King gave similar testimony.” Finally, the Commonwealth produced the sworn testimony of Senior Supervisory Special Agent Robert Speicher, who also described his detailed 169 Commonwealth's Exhibit C-30, p. 84; NT. 8-9-16, afternoon session, p. 19 (Detective Paul Bradbury reading exhibit). 170 Commonwealth's Exhibit C-30, pp. 8-9, 44 and 56; N.T. 8-9- 16, afternoon session, pp. 21-23 (Detective Paul Bradbury reading exhibit), 171 Commonwealth’s Exhibit C-18-A 172 Commonwealth’s Exhibits C-18-B, C and D. 193 N.7. 8-11-16, morning session, pp. 61-64 (testimony of Wanda Scheib). 174 NT, 8-10-16, afternoon session, p. 40 (testimony of Special Agent Peifer); id. at 97- 98 (testimony of former First Assistant Attorney General King). 33memory of the event.'”5 In. response to this evidence, defense counsel cross- examined former Chief DAG Beemer, who admitted that he did not recall having signed any of the foregoing secrecy oaths, and that he had signed a second secrecy oath for the Thirty-Fifth Statewide Investigating Grand Jury, possibly because he had forgotten he had already signed one.17° J. Mondesire sustains damage to his reputation and ability to pursue happiness Catherine Hicks had been engaged to marry Mr. Mondesire when the Daily News publicized the accusations that had been made against him during the CUES grand jury investigation.177 She had known him for fifteen years by that time.!78 On the morning of June 6, 2014, when the Daily News broke the story, Mr. Mondesire telephoned Ms. Hicks to tell her the news,!79 She described him as ‘very, very upset.”6° He had never been arrested based on the accusations made during the CUES investigation; in fact, he had never been arrested in his life, so he “didn't understand why his name was included in that.”181 Because of his outgoing personality and service to the community by way of the NAACP and the Pennsylvania Human Relations Commission, and by 175 NT, 8-11-16, morning session, pp. 79-83 (testimony of Senior Supervisory Special Agent Robert Speiciter) 8 N.T, 8-10-16, morning session, pp. 72-77, 95-101 (testimony of former Chief DAG Beemer) WT NT. 8-12-16, p. 54 (testimony of Catherine Hicks) 8 Id, {testimony of Catherine Hicks). 9 Id, at 61 (testimony of Catherine Hicks) 0 Id, at 62 (testimony of Catherine Hicks). 181 Id. {testimony of Catherine Hicks) 34reason of his role as publisher of the Sun and as a television and radio personality, Mr. Mondesire was frequently invited to civic, community and social events in the Philadelphia area, and he wholeheartedly enjoyed attending them.!®2 That changed after the Daily News publicized the accusations made during the CUES investigation. Ms. Hicks recounted, “a lot of the things that he had been doing, he was not able to do anymore, because this story made it seem like he had some type of cloud of impropriety...over him,”!83 For example, before the Daily News published the story, Mr. Mondesire had been a regular guest on “Inside Story,” a weekly television show on Philadelphia politics.1® Mr, Mondesire “absolutely loved” appearing on the show because he believed “it made a difference.”185 After the story ran, Ms. Hicks explained, “he was asked not to be on ‘Inside Story’ anymore, because...once you are the story, it's hard for you to be on programs...because then you become the subject, Everybody is looking at you, and it takes away from what you may be trying to cover.”18° Regarding civic and social events, she testified, We didn't go out like we had previously done, because it -- he wasn't comfortable. It was -- he just was a different person. This figure that was always outgoing, outspoken, fighting for everybody. ..all of the places that he would go and usually be the voice, he would -- he wasn't doing that anymore, and I think it took a toll on him physically, because he internalized a lot of the hurt and the embarrassment, and it just took a toll. 442 Id, at 60-61 (testimony of Catherine Hicks) 4188 Id, at 65 (testimony of Catherine Hicks) 1 Id. at 57-58 (testimony of Catherine Hicks) M8 Id, at 65 (testimony of Catherine Hicks). 486 Jd, at 63-64 (testimony of Catherine Hicks) (italics added to indicate witness’s tone of voice during testimony) 35Before the Daily News story ran, Mr. Mondesire had successfully coped with chronic high blood pressure and kidney problems!*7 while maintaining an extended daily schedule: he awoke at 5:30 a.m.; was at his desk at the Sun by 7:00 a.m.; and remained “extremely busy” until 11:00 p.m. or midnight most days.18* After the story ran, Ms. Hicks said, “he had been hospitalized a couple of times. He had a heart attack, a mild heart attack, and then his kidneys started failing."8° On October 4, 2015, Mr. Mondesire died.!99 He and Ms. Hicks had been engaged to be married in May of 2016.1" Fina reports the leak of the Mondesire investigative information to supervising judge of the Thirty-fifth Statewide Investigating Grand Jury and the Montgomery County District Attorney charges appellant By letter dated May 8, 2014, Fina contacted Judge Carpenter,!9? who presided over the Thirty-Fifth Statewide Investigative Grand Jury in Norristown, Montgomery County, Pennsylvania.'% In the letter, Fina stated he had received information that confidential grand jury information had been leaked, and asked to meet with Judge Carpenter to give him more detailed information about the leak.!% On May 12, 2014, Fina met Judge Carpenter, 187 Id, at 65 (testimony of Catherine Hicks). 188 Id. at 60 (testimony of Catherine Hicks). 189 Id, at 65-66 (testimony of Catherine Hicks) '80 Id, at 54-55 (testimony of Catherine Hicks). 191 id. at 56 (testimony of Catherine Hicks). 12 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, 14 & Exhibit "B.” 9) In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 633 (Pa, 2015) sion) (opinion of Baer, J., concurring in the judgment) 36told him he suspected someone within the OAG had leaked investigative information obtained by the 2009 grand jury, and suggested that Judge Carpenter appoint a special prosecutor to investigate the leak.195 Judge Carpenter determined that there were reasonable grounds to believe an investigation should be conducted to determine the source of the 2014 leaks of the secret testimony from the 2009 Feudale grand jury. To this end, he appointed Thomas E. Carluccio as a “special prosecutor’ to conduct an investigation into contempt incident to any grand jury secrecy leak and crimes related thereto, and provided Mr. Carluccio with expansive prosecutorial powers.19%6 “The work of the Special Prosecutor culminated in a grand jury presentment recommending the filing of criminel charges against Attorney General Kane.”!97 Months later, the Montgomery County District Attorney commenced these actions by filing charges against appellant.!%8 The District Attorney tried appellant before a jury and obtained guilty verdicts. After appellant was sentenced, she filed the instant appeal. Il. DISCUSSION This opinion will address the claims of error in the order raised by appellant in her Statement of Errors. Because claims four, five and six are based upon common concepts, they will be addressed as a group. The 198 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, | 15-17 & Exhibit “A.” W96 In re Thirty-Fifth Statewide Investigating Grand Jury at 633 (opinion of Baer, concurring in the judgment) 197 Id, at 625 (Opinion Announcing the Judgment of the Court) 198 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, 4 23. 37discussion of each claim or group of claims will summarize the allegation of error in the Statement and recite such supplemental facts as are material to its disposition on appeal A. Claim one, Denial of appellant's pretrial motion to recuse all judges of the Montgomery County Court of Common Pleas ‘The explanatory text in appellant's Statement is substantially similar to the issue raised in her omnibus pretrial motion, Appellant’s statement alleges, “The motion requested recusal of all judges of the Montgomery County Court of Common Pleas, based on the fact that Judges William R. Carpenter, Carolyn T. Carluccio and Risa Vetri Ferman were all directly or closely connected to the case." In her memorandum in support of this pretrial motion, appellant allege “Three judges on the Montgomery County bench--Judge William R, Carpenter, Judge Carolyn Tornetta Carluccio (through her husband) and Judge Risa Vetri Ferman--have close ties to the investigation and prosecution of Attorney General Kane, and a clear interest in the outcome of this case,"2° No facts of record indicate that Judges Carpenter, Carluccio or Ferman had a financial interest in the case. Appellant’s argument seems to be based upon the notion of a purely emotional bias or partiality. In her pretrial motion, appellant did not claim that the undersigned judge was disqualified from deciding her motion for recusal, and her Statement does not raise that claim, Because her failure to raise that as an issue in the 9 Statement, p. 1, claim one. 200 Memorandum of Law in Support of Attorney General Kathleen G. Kane’s Omnibus Pretrial Motions, p. 2 (bold and italic typeface in original). 38court below bars her from arguing it on appeal,?°! the undersigned will refrain from addressing it. This section will focus exclusively on the issue raised whether the undersigned erred by denying appellant's motion for an order recusing the entire bench of the Montgomery County Court of Common Pleas. 1. Supplemental facts ‘The Montgomery County District Attorney filed criminal charges against appellant, Attorney General Kathleen G. Kane, after the Thirty-Fifth Statewide Investigating Grand Jury returned a presentment recommending that charges be filed against her.2? The District Attorney who filed those charges was Risa Vetri Ferman, who only months later was elected a judge of the Montgomery County Court of Common Pleas, and was inaugurated in that office approximately cight months before these actions went to trial.20? After charges were filed, then-D.A, Ferman stated at a press conference that “Attorney General Kathleen Kane devised a scheme to secretly leak confidential investigative information and secret grand jury materials...."204 Shortly after charges were filed against appellant in these actions, she filed a quo warranto action in the Supreme Court of Pennsylvania, asking the ‘ourt to quash the appointment of a special prosecutor by Judge Carpenter,2°5 201 Pa,RA.P, 302(a}. 202 Memorandum of Law in Support of Attorney General Kathleen G. Kane's Omnibus Pretrial Motions, p. 5. 203 Id. 208 Id, 205 In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 625 (Pa. 2015) (plurality decision} (opinion announcing the judgment of the court) ("Through the filing 39who presided over the Thirty-Fifth Statewide Investigating Grand Jury. Judge Carpenter filed an opinion and a supplemental opinion, which the justices considered as part of the record in that action.2° Appellant alleged, “Judge Carpenter’s Supplemental Opinion, dated February 18, 2015"--a date that had passed before the District Attorney made an independent decision to file criminal charges against appellant--“exposed his emotionally-charged partisan support of Attorney General Kane’s prosecution, and his personal animus toward her.”207 Appellant did not explain how Judge Carpenter's support was “partisan,” and given the lack of any evidence of record suggesting that political party affiliations had anything to do with the filing of the charges in these cases, the context suggests she meant to state Judge Carpenter was not acting impartially. In support of her claim of personal animus, she quotes a paragraph from Judge Carpenter's supplemental opinion, the last sentence of which states, “Frankly, these crimes and criminal contempt would not have been uncovered in any way other than the path that I took."08 That sentence, even the entire quotation, does not establish personal animosity, although they suggest that Judge Carpenter concluded, based upon the evidence known to of an action in quo warranto, Pennsylvania Attorney General Kathleen G. Kane has asked this Court to quash the appointment of a special prosecutor investigating, violations of grand jury secrecy requirements.") 206 See id, at 627 (opinion announcing the judgment of the court) (discussing supplemental opinion of supervising judge} 207 Memorandum of Law in Support of Attorney General Kathleen G. Kane’s Omnibus Pretrial Motions, p. 4 208 Id. at 5 40him by way of the grand jury proceeding, that the Attorney General committed criminal and contumacious acts. Judge Carpenter had appointed Thomas E. Carluccio, Esquire, to serve as “special prosecutor” in the Thirty-Fifth Statewide Investigating Grand Jury proceeding. At that time Mr. Carluccio was (and remains) the husband of Judge Carolyn T. Carluccio of the Montgomery County Court of Common Pleas. Appellant characterized Mr. Carluccio’s attitude toward her as “staunchly adversarial.”20° 2. Conclusions of law In terms of the rule or standard applicable to a demand for recusal, the Supreme Court of Pennsylvania has explained, It has often been stated that a trial judge should avoid not only impropriety but also the appearance of impropriety. However, in the cases wherein the issue has been considered, the trial judge has had either a pecuniary interest in the controversy or a consanguineal relationship with a party to the litigation,210 In these actions, none of the judges of the Montgomery County Court of Common Pleas had a financial interest in the outcome of these actions or consanguinity with a party. ‘Therefore, the undersigned judge correctly denied appellant’s motion for recusal 208 Id. at 3 210 Commonwealth v. Perry, 364 A.2d 312, 317 (Pa. 1976). Cf Commonwealth v. Orie- Melvin, 103 A.3d 1 (Pa. Super. Ct. 2014) (affirming order denying appellant's motion for recusal of entire bench of Allegheny County Court of Common Pleas on grounds that: (a) defendant was former judge of same court; and (b) colleague of judge trying appellant's case was married to appellant's former judicial law clerk} 41In support of her claim that the entire Montgomery County bench is disqualified from presiding over her criminal charges, appellant cited Lomas v. Kravitz! and Commonwealth ex rel. Armor v. Armor.2!2 Besides being non- binding plurality decisions, both are inapposite. In Lomas, the defendant demanded the recusal of all of the judges of the Montgomery County Court of Common Pleas because one of the judges held a direct financial interest in the size of the judgment.2!3 In Armor the defendant made the same demand because one of the judges was married to the plaintiff, who was suing the defendant for child support, thus giving that judge a financial and familial interest in the outcome.2'4 In these actions, neither Judges Carpenter, Carluccio and Ferman, nor their spouses, held any interest in the outcome, financial or otherwise. When the district attorney filed the instant charges against appellant, Judge Carpenter's role as the judge presiding over the investigative grand jury ended. The four opinions of the Supreme Court in the quo warranto action are the final word on whether existing law allowed Judge Carpenter to appoint a special prosecutor and oversee a grand jury investigation. None of the justices opined that Judge Carptenter’s course of action would become retroactively more or less proper depending on the disposition of criminal charges originating from the grand jury investigation. If appellant had been acquitted ginating PP 211 130 A.3d 107 (Pa. Super. Ct. 2015) (plurality decision). 312 398 A.2d 173 (Pa. Super. Ct. 1978) (plurality decision). 219 Lomas at 116. 218 Armor at 174 42at trial, Judge Carpenter's appointment of a special prosecutor would not have appeared less in conformity with the law, and her conviction did not make it appear more so. Given the lack of a reason for Judge Carpenter to have a significant interest in the outcome of these actions, no significant interest can be imputed to the other judges of Montgomery County. Although Judge Carluccio is married to the former special prosecutor, that office terminated before charges were filed against appellant, and Mr. Carluccio’s exercise of discretion in that office was approved by a majority of the five justices who participated in appellant's quo warranto action before the Supreme Court of Pennsylvania.?!5 The Court’s opinions in the quo warranto action were the last word on his exercise of discretion, and none of the justices opined that it would retroactively become more or less sound depending on the disposition of criminal charges following his presentment. The facts of record do not support a conclusion that Mr. Carluccio had any significant interest in the outcome of the above-captioned actions, hence no such interest can be imputed to Judge Carluccio, and by extension, none can be imputed to the rest of the Montgomery County bench. ‘The fact that Judge Ferman, in her former capacity as the district attorney, filed criminal charges against appellant does not prove that she .¢ In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 630 n.7 and 638 (Pa, 2015) (plurality decision) (Pa. 2015) (opinion announcing judgment of the court by Saylor, P.J., joined by Eakin, J.) (approving Mr. Carhuccio’s exercise of discretion in refraining from purporting to file criminal charges); id. at 636 (Baer, J., concurring) (endorsing Mr. Carluccio’s exercise of discretion in refraining from exercising prosecutorial, rather than investigative, powers) 43believed appellant to be guilty beyond a reasonable doubt. A prosecutor may file criminal charges if she believes the evidence only proves guilt by a preponderance of the evidence, see Pa.R.P.C. 8(a), hence the only conclusion one can draw for certain is that she believed it more probable than not that appellant was guilty. A jury may believe it probable that the accused is guilty, yet it must acquit unless the prosecutor has persuaded it that the accused is guilty beyond a reasonable doubt. Therefore Judge Ferman’s competence and discretion as a district attorney or jurist would not have been called into question if the trier of fact in these actions had found appellant not guilty. Judge Ferman thus had no significant interest in the outcome of these actions. Since she had no significant interest, none can be imputed to the other members of this bench. To the extent that Judges Carpenter, Ferman and Carluccio were familiar with the facts of the case, that alone is insufficient grounds for recusal of the entire bench.2!© As to Judge Carpenter, no legal authority supports a claim that the involvement of one judge in a grand jury proceeding disqualifies the rest of the bench from presiding over the resulting charges. The passages appellant quoted from Judge Carpenter’s supplemental opinion do not establish personal animosity, although they suggest that he concluded that the Attorney General has committed criminal and contumacious acts, based upon. 216 See Commonwealth v. Boyle, 447 A.2d 250, 252 (Pa. 1982) (aflirming order of judge presiding over defendant's second trial denying motion for recusal on grounds that same judge had presided over the first trial} 44facts known to him as the judge who presided over the Thirty-Fifth Statewide Investigating Grand Jury. Such a conclusion, without more, does not establish an adversarial, muck less “staunchly adversarial,” relationship between Judge Carpenter and appellant. If it did, then every judge who presided over a contempt proceeding or criminal trial would be deemed to hold an adversarial relationship with the contemnor, or with the accused in post-sentencing or post-conviction collateral proceedings, but no authority supports such a conelusion.2” Insofar as appellant relies on the relationship between Mr. Carluccio and Judge Carluccio, appellant's claim that the entire bench is disqualified is no stronger than a claim that an entire bench must be disqualified because an assistant district attorney who led a grand jury investigation is married to one of the judges of that bench, other than the judge presiding over the criminal trial resulting from the grand jury presentment. No authority supports such a claim, 217 To the contrary, the Supreme Court of Pennsylvania has explained, “A judge before whom the contumacious conduct has occurred has the power to immediately vindicate the authority of the court and punish the offender without recusing himself.” Commonwealth v. Reid, 431 A.2d 218, 223 (Pa. 1981), Accord In re Adams, 645 A.24 269, 272-73 (Pa. Super. Ct. 1994) (opining that a judge before whom contumacious conduct occurs has the power to impose punishment without recusing himself unless “there is a running, bitter controversy between the judge and offender."). As to adjudication of petitions for post-conviction collateral relief, the judge who tried the petitioner must dispose of the petition Pa.R.Crim.P. 903(C) unless that judge is unavailable or disqualified, Pa.R.Crim.P. 903(D}. See also Commonwealth v, Abu- Jamal, 720 A.24 79, 90 (Pa. 1998) (*Generally, it is deemed preferable for the same judge who presided at trial to preside over the post-conviction proceedings since familiarity with the case will likely assist the proper administration of justice. It is only where it is shown that the interests of justice warrant recusal that a matter will be assigned to a different judge.”)Assuming, arguendo, that Judges Carpenter, Carluccio and Ferman believed appellant was guilty beyond a reasonable doubt, there was no basis for imputing that belief to the other judges on this bench. Judges sitting in the same judicial district may believe the same facts to be true, yet weigh them differently and draw different legal conclusions. Were it otherwise, there would be no coordinate jurisdiction rule forbidding a judge from altering the resolution of a legal question previously decided by a judge of coordinate jurisdiction, absent exceptional circumstances.?!8 It is thus immaterial whether Judges Carpenter, Carluccio and Ferman may have believed appellant to be guilty beyond a reasonable doubt. The beliefs of the other judges, as expressly alleged and insinuated by appellant, could not have been imputed to the undersigned judge, who did not know the evidence that was produced in the grand jury proceeding. At the time appellant filed her motion for recusal, and continuing through the trial to the present, the evidence known to undersigned judge at any given moment was only that which was then in the record in these actions. If bias could be imputed to the undersigned judge under these circumstances, then it could be imputed to every judge in every case in which a prosecutor has filed charges based upon a grand jury presentment, Imputing bias under such 28 Commonwealth v. Starr, 664 A.2d 1326, 1331-32 (Pa. 1995} (stating that a judge may not alter resolution of a legal question previously decided by a judge of coordinate Jurisdiction, absent “exceptional circumstances such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence...or where the prior holding was clearly erroneous and would create a manifest injustice if followed.”) 46circumstances would be unwarranted becaus judges know that even when upports indictment, it may not be evidence presented to the grand jui sufficient to establish guilt at trial2* Appellant’s reply memorandum of law cited several opinions in addition, to Lomas and Armor, but failed to show how they could have advanced her cause.2 In Commonwealth v. Williams,??! all of the judges of the Lehigh County Court of Common Pleas recused themselves, but whether they should have done so was not an issue raised on appeal. In Matter of Larsen,2® a per curiam opinion 2 ‘epting the recommendation of the Judicial Inquiry Review Board, the appellant cited the recommendation of the Board, which had 28 The standard of proof of a crime necessary to support a presentment or indictment by a grand jury is much lower than that necessary to support a verdict of guilty at trial. A trial jury may not return a verdict of guilty unless it finds that the evidence proves guilty beyond a reasonable doubt. See, ¢.g., Commonwealth v. Weston, 749 A.2d 458, 461 (Pa. 2000) (stating that evidence will be deemed sufficient to support a guilty verdict when it establishes each material element of the crime charged and the commission thereof by the accused beyond a reasonable doubt). A grand jury may issue a presentment if “the Commonwealth's evidence makes out a prima facie case of the defendant's guilt.” See Commonwealth v, Webster, 337 A.2d 914, 917 (Pa. 1975) (‘It has been said that the grand jury must ascertain whether the Commonwealth's evidence makes out a prima facic case of the defendant's guilt.”) (citing Commonwealth v. Rhodes, 34 Pa.D. & C. 237, 241 (Q.S. Delaware County, 1937) (dictum) and Commonwealth v, Mellvaine, 28 Pa.D. & C. 133, 135 (Q.S, Delaware County, 1936} (dictum). “[TJo satisfy the burden of setting forth a prima facie case, the Commonwealth is not required to prove its case beyond a reasonable doubt; it must, however, set forth evidence of the existence of each element of the crime.” Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005). Moreover, “the inadequacy, incompetency, or even illegality of the evidence presented to the grand jury do not constitute grounds for the quashing of an indictment returned on the basis of such evidence.” Webster at 917 220 See Reply Memorandum of Law in Support of Attorney General Kathleen G. Kane’s Omnibus Pretrial Motions, pp. 7-9 (citing cases). 21 86 A.3d 71, 75 (Pa. 2014) 222 616 A.2d 529, 585 (Pa. 1992) (per curiam) a7refrained from addressing the merits of a motion for recusal on the ground that it believed it lacked authority to do so, Appellant also cited Evans v, Gavin, 2013 WL 810299 (W.D. Pa. 2013}, the opinion of a master on a federal habeas corpus petition. The charges in the state criminal proceeding underlying Evans pertained to crimes committed against a judge of the Erie County Court of Common Pleas. All of the judges of that court had recused themselves from the trial of the charges, but whether they should have done so was not an issue raised in the petition for habeas corpus. Appellant also cited numerous opinions from other states, but merely made parenthetical statements that the “entire bench” recused itself without discussing the facts or issues raised, and relating them to the facts and issue in these actions.?#3 Appellant's failure to cite any legal authority supporting her argument suggests that it lacks even arguable merit, B. Claim two, Denial of Motion to suppress evidence or quash charges because the investigating grand jury proceeding was unlawful Appellant claims the undersigned judge erred by denying the second motion within her omnibus pretrial motion, in which she asked for an order “Suppressing the evidence and testimony gathered by the Investigating Grand Jury and quashing the charges, because the Investigating Grand Jury Proceedings were unlawful and unconstitutional.”2* As grounds for such relief, she stated, “The evidence gathered through the investigating grand jury 223 See Reply Memorandum of Law in Support of Attorney General Kathleen G, Kane's Omnibus Pretrial Motions, pp. 7-8 (citing cases). 24 Omnibus Pretrial Motions of Attorney General Kathlcen G, Kane, item two, 48must be suppressed, and the charges against Attorney General Kane must be quashed, because the investigating grand jury proceeding was unlawful and unconstitutional.”225 She supported that statement with a syllogistic argument, Appellant stated her major premise as, “the appropriate remedy when criminal charges rely extensively on evidence and testimony gathered through tainted grand jury proceedings is suppression of the testimony and quashal of the charges,”226 citing Commonwealth v. McCloskey,227 Commonwealth v. Schultz,228; Commonwealth v. Curley,?2° Commonwealth v. Spanier, and Commonwealth v. Cohen?! as authority. She stated her minor premise as, “there was a person without any lawful authority to do so running an investigating grand jury in this case, subpoenaing witnesses, questioning witnesses, gathering evidence, drafting a presentment, and regularly and improperly colluding with the supervising judge through ex parte hearings and communications,” citing In re The Thirty-Fifth Statewide 225 Memorandum of Law in Support of Attorney General Kathleen G. Kane’s Omnibus Pretrial Motions, p. 9 226 Id. at 24. 207 277 A.2d 764 (Pa, 1971) 228 133 A.3d 294 (Pa. Super. Ct. 2016) 239 131 A.3d 994 (Pa, Super. Ct. 2016} 280 132 A.2d 481 (Pa. Super. Ct. 2016) 251 289 A.2d 96 (Pa, Super. Ct. 1972) (plurality decision) 2% See Memorandum in Support of Attorney General Kathleen G. Kane’s Omnibus Pretrial Motions, p. 24 (citing the foregoing cases in support of statement, “Grand jury testimony unlawfully or unconstitutionally obtained must be suppressed."); see aiso id. (citing McCloskey, Schultz, Spanier, Curley and Cohen in support of statement, “And, charges that rely extensively on evidence gathered through tainted grand jury proceedings must be quashed.”) 299 Id, at 9 (italic and bold typeface omitted). 49Investigating Grand Jury,2% a plurality decision that generated four opinions filed by the five justices of the Supreme Court of Pennsylvania who participated in the disposition of the quo warranto action she filed. ‘The discussion below will show that appellant’s major and minor premises are incorrect. Her major premise is incorrect because the decisional law does not require her proposed remedies in every case in which the rights of the accused were infringed during a grand jury proceeding, Her minor premise is incorrect because the decisional law does not support the conclusion that Mr. Carluccio lacked lawful authority to use compulsory process to interrogate witnesses and obtain documents. 1, Supplemental facts The Opinion Announcing the Judgment of the Court in the quo warranto action recited most of the facts material to the resolution of this claim of error on appeal. In the Spring of 2014, the supervising judge for the Thirty-Fifth Statewide Investigating Grand Jury found that there were reasonable grounds to believe that an investigation should be conducted into allegations that grand jury secrecy had been compromised, The supervising judge proceeded to appoint Thomas E. Carluccio, Esquire (the “Special Prosecutor”), to investigate and prosecute any illegal disclosures. The work of the Special Prosecutor culminated in a grand jury presentment recommending the filing of criminal charges against Attorney General Kane. ‘Attorney General Kane, represented by private counsel, commenced the instant quo warranto action in December 2014 * * © Inher initial submission, Attorney General Kane highlighted that no statute on record in the Commonwealth authorizes the appointment of a special prosecutor for an 204 112 A.3d 624 (Pa, 2015) (plurality decision). 50investigating grand jury. Further, she observed that the power to investigate and prosecute is reposed in the executive branch. In particular, Attorney General Kane noted that, under the Investigating Grand Jury Act,! local district attorneys and the Attorney General or her designee are the only officials authorized to serve as an “Attorney for the Commonwealth.” Additionally, she explained that, per the Commonwealth Attorneys Act,? the authority to convene and conduct statewide investigating grand juries is reposed exclusively in the elected office which she holds. For the above reasons, Attorney General Kane asserted that the appointment by the judicial branch of a private attorncy to serve as a “special prosecutor” violated the separation-of-powers doctrine, Act of October 5, 1980, P.L, 693, No, 142 (as amended 42 Pa.C.8. 88 4541-4553} 2 Act of October 8, 1908, P.L. 950, No. 164 (as amended 71 P.S. §§ 732 10} [through] 732-506) ‘The Opinion Announcing the Judgment of the Court briefly stated the issue before the Court: “Presently, our review is confined to the...challenge to the supervising judge’s power to appoint a special prosecutor, which has been put before us." Justice Baer elaborated in his concurring opinion, explaining that the “narrow legal issue” before the Court was “whether this Court should quash the appointment of the special prosecutor ...and, in accord with that quashal, suppress the proceedings as void ab initio."*°7 Justice Stevens did not state the issue before the Court in his concurring opinion, but Justice Todd wrote, in her dissenting opinion, “Currently before our Court...is the discrete question of whether a judge overseeing a grand jury may authorize 235 Jd. at 625 (opinion announcing the judgment of the court) (some citations omitted). 236 Id, at 632 n.1] (opinion announcing the judgment of the court) (italics supplied). 2 Jd. at 633 (Pa, 2015) (Baer, J. concurring in judgment) (italics supplied). 51a “special prosecutor” to,,.use the grand jury process both to obtain a presentment and to prosecute.”®88 2. Conclusions of law A review of the precedential opinions of Pennsylvania's appellate courts yields no support for appellant’s major premise, ie., that charges must always be quashed and the evidence must always be suppré¢ d if they derived from a grand jury proceeding in which any of appellant’s rights were infringed. Rather, the Supreme Court of Pennsylvania has created a general rule “that in certain circumstances, a constitutional violation in securing [an] indictment will necessitate that the indictment be quashed."289 Furthermore, the decisional law supports the conclusion that the accused is only entitled to an order that serves as a remedy for a specific infringement. If it were otherwise, the decisional law would not require the accused to plead a reason why the proceeding was unlawful and produce evidence in support of the pleading.#° If the accused asks for an order suppressing evidence, then the accused should show the reason suppression would serve as a remedy for the specific right that was allegedly violated. If the accused asks for an order quashing charges altogether, then the accused should show why none of the alternatives would 208 Id, at 639 (Pa. 2015) (plurality decision) (Todd, J., dissenting) (italics supplied). 239 Commonwealth v. McCloskey, 277 A.2d 764, 779 (Pa, 1971) (citing Commonwealth v, Kilgallen, 108 A.2d 780 (Pa. 1959)) (italics supplied) 20 See Commonwealth v. Lopinson, 234 A.2d 552, S58 (Pa. 1967) ("the burden was upon the complaining party to establish the facts to support the challenge] |” to the composition of a grand jury), vacated on other grounds sub nom. Lopinson v. Pennsylvania, 392 U.S. 647 (1968). 52place her in the position she would have been, absent the alleged violation. For these reasons, the specific rights allegedly violated and the nexus between the right and the proposed remedy are material to the disposition of appellant's claim. Appellant has not satisfied her obligations to plead grounds for the relief she seeks and produce evidence in support thereof. First, in terms of pleading a reason why the proceeding was unlawful, the cases cited by appellant are inapposite. Second, prejudice is one of the elements to be pled and supported with evidence,2* but the opinions of the Supreme Court of Pennsylvania in the quo warranto action do not establish a rule under which appellant can prove the element of prejudice under these specific circumstances. a. McCloskey, Schultz, Curley, Spanier and Cohen are inapposite In McCloskey and Cohen, the respective appellate courts ruled criminal charges should be quashed if they derived from grand jury testimony by the accused, and the presiding judge did not instruct the accused of the right to remain silent.2 In contrast, appellant was informed of her right to remain silent, yet she chose to give false testimony with the intention to conceal her part in publicly disclosing investigative information in violation of several 21 See Commonwealth v, Columbia Inv, Cor A.2d 289, 297 (Pa, 1974) (ruling that trial judge erred by quashing indictments because accused failed to prove prejudice caused by alleged violation of constitutional rights during grand jury proceeding) 242 McCloskey, 277 A.2d at 779; Commonwealth v. Cohen, 289 A.2d 96, 98, 100 (Pa. Super. Ct. 1972) (plurality decision). 53statutes. Therefore, McCloskey and Cohen are inapposite to the specific factual circumstances of these actions. In Schultz, Curley and Spanier, three consolidated criminal actions,243 the defendants were charged with crimes based upon a presentment from an investigating grand jury that relied on privileged communications between the accused and their counsel; and on review of an interlocutory order the Superior Court of Pennsylvania quashed certain charges, but not others.2"* In these actions, appellant has failed to plead that the grand jury knew of any privileged communications between appellant and her lawyers, and the record does not indicate that her attorney-client privilege was violated. Therefore, Schultz, Curley and Spanier are inapposite to the specific factual circumstances of these actions. Appellant may argue on appeal that the opinions she cited establish a general rule that evidence must be suppressed and charges quashed whenever the evidence supporting the charges was gathered in violation of any right held by the accused. Such an argument would be faulty question-begging, as appellant has not established that the means Mr. Carluccio employed to obtain evidence violated any of her rights. The opinions of our Supreme Court in appellant’s quo warranto action indicate that she cannot establish such a violation. 259 Commonwealth v. Schultz, 133 A.3d 294, 307 (Pa. Super. Ct. 2016) 284 Schuitz at 328; Commonwealth v. Curley, 131 A.3d 994, 995 (Pa, Super. Ct. 2016); Commonwealth v. Spanier, 132 A.2d 481, 498 (Pa. Super. Ct. 2016) 54The opinions of the Supreme Court of Pennsylvania in In re The Thirty-Fifth Statewide Investigating Grand Jury do not establish a rule under which appellant can prove she was prejudiced by a violation of her rights Appellant argued that the precedential effect of the Court's opinions in her quo warranto action required the undersigned to quash the charges and suppress the evidence obtained by Judge Carpenter's grand jury.**5 The undersigned will first discuss the extent to which the opinions of the Court are precedential before explaining why they did not require the undersigned to grant her pretrial motion asking for an order quashing the charges and suppressing the evidence. ‘A quo warranto action is the designated procedure for challenging the title or right of another to a public office.2® Appellant filed her quo warranto action “to challenge the appointment of the special prosecutor and the grand jury presentment.”27 The quo warranto action was discrete from the instant criminal action, but stare decisis certainly requires any precedent established in that action to apply to these criminal actions, given the fact that appellant was involved in the former and the latter, and the material facts in former are material to the disposition of appellant’s motion to quash the charges and 245 Memorandum of Law in Support of Attorney General Kathleen G. Kane's Omnibus Pretrial Motions, p. 22-23 246 In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 625 (Pa. 2015) (plurality decision) (opinion announcing the judgment of the court} (citing In re One Hundred or More Qualified Electors of the Municipality of Clairton, 683 A.2d 283, 286 (Pa. 1996). 257 Id, at 645 (Todd, J., dissenting). 55suppress the evidence.2#8 Because stare decisis requires that rules established in the quo warranto action must be applied to this action, it is only of marginal importance whether those rules also apply because of the doctrine of collateral issue preclusion, 24? or whether they are the “law of the case.”25° estoppel or This discussion will now consider whether the opinions in the quo warranto action created binding rules to be applied to future proceedings, and if so, what those rules are. 248 “The rule of stare decisis declares that for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.” Commonwealth v. Tilghman, 673 A.2d 898, 903 (Pa. 1996) (citing Burke v, Pittsburgh Limestone Corp., 100 A.2d 595 (Pa. 1953}) 2 Appellant did net support her conclusory assertion as to the binding nature of the opinions in the quo warranto action with argument, hence it is unclear whether she believes the doctrine of issue preclusion or collateral estoppel applies. *[Clollateral estoppel, or issue preclusion, forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment.” Taylor v, Extendicare Health Facilities, Inc., 147 A,3d 490, 512 n.30 (Pa. 2016} (quoting Hebden v. W.C.A.B. (Bethenergy Mines, Inc.), 632 A.2d 1302, 1304 (Pa. 1993}. The doctrine applies only if, inter alia, “the party against whom the plea is asserted was a party or in privity with a party in the prior case....” Id. Appellant did not argue the District Attorney must be considered to be in privity with the special prosecutor, but legal authority for such an assertion may exist. See Com. ex rel McClintock v. Kelly, 134 A. 514, 516 (1926) (deciding party in quo warranto action was in privity with party in previous extrajurisdictional quo warranto action, stating, "identity or persons or parties must not always be viewed as referring to individuals, inasmuch as a judgment is binding not only on parties, but on all who are in privity with the actual parties on the record, and who have a mutual or successive relationship to the same rights of property.”) 280 These criminal actions are distinct from the quo warranto action, “The core of the doctrine [of the law of the case] is that a court acting at a later stage of a case should not reopen questions decided at an carlier stage by another judge of the same court or by a higher court.” Commonwealth v. Paddy, 800 A.2d 294, 311 (Pa, 2002}. “Itis hornbook law that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered upon a subsequent appeal on another phase of the same case.” Tilghman at 903 n.8 (Pa. 1996} (quoting Burke). 56“(When a majority of those justices participating join in the opinion, it becomes binding precedent on the courts of Pennsylvania."5! Only five justices participated in the quo warranto action, hence the Court’s decision in that action could create binding precedent only if at least three justices agreed on an idea necessary to the decision. Our Supreme Court explained, in a discussion referring to opinions of the Supreme Court of the United States, but nonetheless applicable to its own opinions, that it is possible to cobble together a holding out of a fragmented decision. Yet, in order to do so, a majority of the Court must be in agreement on the concept which is to be deemed the holding. It is certainly permissible to find that a Justice's opinion which stands for the “narrowest grounds” is precedential, but only where those “narrowest grounds” are a sub-set of ideas expressed by a majority of other members of the Court. The mere finding that one Justice expressed a narrower belief than others does not dispense with the requirement that a majority of the Court need agree on a concept before that concept can be treated as binding precedent.?5? It is therefore necessary to review the four opinions filed by the justices who participated in the quo warranto action to determine whether they agreed on an idea related to appellant’s assertion that the charges in these actions should be quashed or the evidence exchided from her trial i, Exclusion of evidence By the time our Supreme Court decided the quo warranto action, the lower court and our Supreme Court had been called upon to solve a problem regarding prosecutorial partiality (e., the OAG investigating whether the OAG 251 Commonwealth v. Mason, 322 A.2d 357, 358 (Pa. 1974). W? Pap’s A.M. ¥, City of Brie, 719 A.2d 273, 278 (Pa. 1998], reversed on other grounds, 929 U.S. 277 (2000) (footnote omitted) 87violated the law) in a way that did not create judicial partiality by giving a single judge the roles of investigator of facts and trier of those facts. Chief Justice Saylor, joined by former Justice Eakin, noted that neither the Attorney General herself, nor her office, could impartially investigate allegations that she had violated the law.253 Justice Todd voiced the competing concern that one who has determined the existence of probable cause to bring criminal charges cannot then judge impartially when those charges are tried.25* The five participating justices differed only as to whether the judiciary holds an inherent power to authorize such an individual to use a grand jury to investigate contempt, issue subpoenas to gather evidence, and obtain a presentment; and if not, whether appellant's constitutional rights were violated; and if so, whether she was entitled to a remedy in the quo warranto action. Chief Justice Saylor and Justice Eakin surveyed the Judicial Code and concluded that it affords “sufficient authorization to a supervising judge...to appoint a special prosecutor in scenarios in which a grand jury may be considering potential criminal conduct on the part of an Attorney for the Commonwealth...or a closely affiliated official.""55 Given that the prosecutor in ‘See In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 629-30 (Pa, 2015) {plurality decision) (opinion announcing judgment of the court) (quoting opinion of supervising judge and brief of special prosecutor regarding conflict of interest inherent in having Attorney General investigate allegations of her own criminal wrongdoing). 251 See id, at 639 (Todd, J. dissenting) (noting “the tradi acivocate prosecutor and neutral supervising judge”). 288 Id, at 629-30 (opinion announcing judgment of the court) (citing 42 Pa. C.S. §§ 323, 4548(a) and 4549(b)) onally separate roles of 58a grand jury proceeding may issue subpoenas and a presentment,2 the Chief Justice and Justice Eakin implicitly concluded that the judiciary has an implied power to authorize a special prosecutor to subpoena testimony and documents before a grand jury without further application to the court, and issue a presentment.257 Justice Todd agreed “that a judge overseeing a grand jury may appoint an individual to conduct inquiry into allegations of violations of the secrecy of grand jury proceedings....including the compelling of testimony and the production of documents, and the issuance of a final report including findings and reasoning for such findings.”258 Thus, a majority of three of the five participating justices, Justices Saylor, Eakin and Todd, decided that Judge Carpenter did not exceed the powers lawfully vested in his judicial office simply by giving Mr. Carluccio authority to compel testimony and the production of documents, and to issue a report on his findings based on that evidence. Appellant may not, therefore, claim that her right to due process of law was violated by Mr, Carluccio’s use of compulsory power to obtain testimony and 286 42 Pa.C.S. § 4548\a), (b) 257 See id. at 631 n.9 (opinion announcing judgment of the court by Saylor, C.J., joined by Eakin, J.) (“Because the preparation and submission of prescntments to investigating grand jurics are actions reserved to prosecutors, see 42 Pa. C.S. § 4551 (a), in our considered judgment, the term ‘special prosecutor’ is most appropriate here.) 258 jd, at 639 (Todd, J., dissenting) (citing In re Dauphin County Fourth Investigating Grand Jury, 19 A.3d 491 (Pa, 2011); see also id. at 645 (“a judge oversceing a grand jury may authorize an individual--a special master—-to conduct inquiry into alleged grand jury confidentiality breaches, to issue findings and a report, and to remedy any breach through contempt proceedings.”); id. at 645-46 (I would hold that the supervising judge had the inherent powcr to appoint an individual to investigate the breach of grand jury secrecy and to remedy any breach through contempt proceedings.”) 59documents. This leaves appellant without authority supporting her prayer for an order excluding the evidence gathered by Mr. Carluccio. ii, Quashal of charges To justify entry of an order quashing all charges, appellant must demonstrate that no alternative would be an adequate remedy for the violation of one or more specific rights. Because the evidence obtained by Mr. Carluccio was not subject to exclusion, appellant cannot argue that the charges should have been quashed because the Commonwealth was barred from producing evidence sufficient to sustain a guilty verdict. Under the circumstances of this case, the only other possible justification for quashing the charges would be that Mr. Carluccio lacked lawful authority to obtain the presentment that led the district attorney to file the charges in these actions. That alone would not be sufficient justification for quashing the charges, because appellant would also have to demonstrate that no other alternative would be adequate to vindicate her rights. The opinions of the Supreme Court in appellant’s quo warranto action do not establish she has a right to any form of relief, assuming arguendo that Mr. Carluccio lacked lawful authority to draft and issue a presentment ‘The Chief Justice and Justice Eakin were the only two who expressly concluded that the judiciary has an implied power to authorize an appointee to issue a presentment.2 For the sake of deciding this claim on appeal, one may 29 See nn, 255-257, supra, and text accompanying notes. 60assume that Justices Todd and Stevens believed otherwise, and that Mr. Carluccio’s act of obtaining a presentment violated a constitutional right held by appellant in a manner that caused her prejudice and required quashal of the charges as a remedy, Only then would a reader be required to determine whether Justice Baer agreed with Justices Todd and Stevens on those points. Justice Baer opined that a judge could not lawfully authorize Mr. Carluccio to determine whether the evidence supported the filing of criminal charges.2°° To the extent that Mr. Carluccio and Judge Carpenter engaged in ex parte proceedings pertaining to the investigation of crimes, Justice Baer was willing to assume arguendo, without deciding, that such proceedings violated appellant's right to due process of law.26! Nevertheless, Justice Baer concurred in the judgment denying relief because he concluded that any infringements of appellant's rights would be, in his words, “rendered harmless” as long as appellant's right to due process of law was honored in the proceedings 200 In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 633 (Pa. 2015) (plurality decision) (Baer, J. concurring) ("I am aware of no authority...to authorize the special prosecutor to use a sitting grand jury for this purpose, to subpoena witnesses independently, to investigate crimes, to determine what charges should be brought, or to prosecute anyone.”) 21 Had Justice Baer believed it necessary to decide whether the proceedings violated appellant's right to due process of law in order to dispose of the quo warranto action on its merits, one must assume he would have considered the question to his satisfaction and stated a definite answer. Instead, he wrote that he believed it to be likely (rather than certain) that the grand jury practice of holding ex parte hearings between the special prosecutor and the supervising judge “in prosecutorial rather than contempt matters may have” (rather than certainly) violated appellant's right to due process of law. Id.at 636 (Baer, J., concurring) {italics added}. ‘Therefore, it appears that he found it expedient to concur in the result by assuming, arguendo, that appellant's right to due process of law was violated 61following the filing of charges.26? This statement is not dictum because it was essential to Justice Baer’s disposition of the quo warranto action as developed by his legal argument. Ifa majority of the justices had agreed with the rule proposed by Justice Baer on that point, then observance of appellant’s right to due process of law following the filing of charges would have cured any prejudice she may have suffered from violations of her constitutional rights before then. When the accused asks a judge to quash charges or suppress evidence based on a constitutional violation during a grand jury proceeding, she must, inter alia, prove prejudice,2® but the accused cannot do so if future events render the constitutional violations harmless, This opinion shows that appellant's right to due process of law was not infringed at any time during the prosecution of these actions, whether before, during, or after trial. Therefore, even if a majority of the justices had agreed with Justice Baer, appellant would not have been entitled to an order quashing the charges in these actions. 3. Conclusion as to claim two The foregoing survey of the opinions filed in the quo warranto action refutes appellant’s assertion that “the charges against Attorney General Kane must be quashed, because the investigating grand jury proceeding was 262 Id, at 636 (Baer, J., concurring) (“If charges are ultimately brought against the Attorney General, due process in such proceedings will be required and, thus, any violations through the prior proceedings will be rendered harmless.”) 283 Commonwealth v. Columbia Inv. Corp., 325 A.2d 289, 297 (Pa, 1974) (ruling that trial judge erred by quashing indictments because accused failed to prove prejudice caused by alleged violation of constitutional rights during grand jury proceeding) 62unlawful and unconstitutional.”26 Justices Saylor, Eakin and Todd believed appellant’s constitutional rights were not violated by Mr. Carluccio’s mere investigation, hence a majority of the justices did not find a violation for which suppression of the evidence would have been an appropriate remedy. Moreover, Justice Baer believed that appellant would not be entitled to any form of relief if she were accorded due process of law in the future, as she was in these actions. Justice Baer’s opinion is, under the circumstances, inconsistent with appellant’s major premise, ie., that constitutional violations during the grand jury proceeding warrant either of the remedies she asked for in her omnibus pretrial motion. At most, only a minority of two justices, Justices Todd and Stevens, believed that Mr. Carluccio’s act of obtaining a presentment would require any criminal charges to be quashed. Therefore undersigned did not err by denying appellant's pretrial motion asking for an order suppressing evidence or quashing the charges. C. Claim three, Denial of appellant’s pretrial motion for a bill of particulars Appellant’s omnibus pretrial motion included a motion requesting an order “|qluashing charges because the Commonwealth has willfully refused to provide a bill of particulars(.J” In the last paragraph of her memorandum in support of that motion, she wrote, “In the alternative, if the Court does not quash the charges in their entirety.,.the Court should order the 264 Memorandum of Law in Support of Attorney General Kathleen G. Kane's Omnibus: Pretrial Motions, p. 21 63Commonwealth to supply a bill of particulars addressing each of the points raised in Attorney General Kane’s requests.”265 On appeal, appellant does not challenge the undersigned’s decision not to quash the charges in their entirety because the Commonwealth refused to file a bill of particulars, Therefore, this opinion will only address the claim that it was error for the undersigned to have refrained from ordering the Commonwealth to file one. ‘The Supreme Court of Pennsylvania has described a bill of particulars as “an anachronism of past procedural rules” that was “intended to give notice to the accused of the offenses charged in the indictment so that he may prepare a defense, avoid a surprise, or intelligently raise pleas of double jeopardy and the statute of limitations.”26 “A Bill of Particulars application is also addressed to the lower court's discretion.”267 Appellant's motion stated in detail the facts she sought for each count in each of these actions,?# but the record shows she was already in possession of the information she claimed to need. Therefore the undersigned did not abuse her discretion by denying the motion. In the action indexed at no. 6239-2015, the Commonwealth had filed an affidavit of probable cause that spanned forty-one pages. In the action indexed at no. 842; 2015, the Commonwealth filed an affidavit of probable cause that ‘These affidavits described in meticulous detail the spanned thirteen pages. 268 Id. at 50. 266 Commonwealth v. Champney, 832 A.2d 403, 412 (Pa. 2003) (quoting Commonwealth vy, Chambers, 599 A.2d 630, 641 (Pa. 1991). 267 Commonwealth v. Scott, 365 A.2d 140, 143 (Pa, 1976) 265 Memorandum of Law in’ Support of Attorney General Kathleen G, Kane's Omnibus Pretrial Motions, pp. 46-47 64evidence supporting each count in each action. In addition, appellant had a preliminary hearing in both actions, and the transcribed notes of the proceedings spanned a total of two-hundred and forty-three pages, Appellant also possessed the presentment of the grand jury, drafted by the special prosecutor, Thomas E. Carluccio, Esquire.%®? The presentment resembled a legal brief. It would have served well as a trial-preparation handbook, as the trial testimony corresponded closely to the facts recited in the presentment. Following an introduction, attorney Carluccio spent fourteen pages reciting the bulk of the material facts supporting the filing of criminal charges against appellant. After that, under the heading “Recommendation of Charges and Additional Facts,” attorney Carluccio explained why specific facts supported the filing of charges of perjury, false swearing, official oppression and obstructing the administration of law--every charge filed against appellant in the action indexed at no, 6239-2015 except for conspiracy. As for the conspiracy charges, appellant and her team of lawyers could infer from the presentment which items of evidence the Commonwealth would use to prove an invaluable resource for appellant and her conspiracy, The presentment wa lawyers as they prepared her defense. In view of the foregoing discussion, the record shows that appellant had more than enough notice of the off nses charged in order to prepare a defense, Appellant made the presentment part of the record in this case by attaching it to her Memorandum of Law in Support of Attorney General Kathleen G. Kane's Omnibus Pretrial Motions as Exhibit “D.” 65avoid a surprise, or raise defenses of double jeopardy and the statute of limitations, Consequently there is no basis for concluding the undersigned judge erred by denying appellant’s motion for an order directing the Commonwealth to file a bill of particulars. D. Claims four through six: Denial of appellant’s pretrial motion to dismiss perjury and false swearing charges as duplicative; denial of appellant’s pretrial motion to dismiss obstruction of administration of law charges as duplicative or multiplicitous, or both; and denial of appellant’s pretrial motion to dismiss official oppression charges as multiplicitous Claims four, five and six are discussed together because all derive from the denial of a single pre-trial motion filed by appellant and are governed by the same legal authorities, This section will first compare the claims raised in the Statement with those by appellant in the court below, because one of the claims in the Statement has not been preserved for appeal. Next, this section will address the claims that have been preserved, integrating supplemental facts among the conclusions of law. Clarification of claims preserved for appeal Claims four, five and six involve allegations that certain counts in action no, 6239-2015 were duplicative or multiplicitous, The former, according to appellant’s memorandum and the authorities cited therein, refers to a violation of the requirement that a bill of information must list “a separate count for each offense charged.”27 The latter, appellant explained, “is defined as ‘the 279 Memorandum of Law in Support of Attorney General Kathleen G. Kane's Omnibus Pretrial Motions, p. 51 (quoting Pa.R,Crim.P. 563(B) and citing Commonwealth v, 66charging of a single offense in several counts or informations.”27! In appellant’s Statement, claim four refers to a “Motion to Dismiss Perjury and False Swearing Counts;” claim five refers to a “Motion to Dismiss Obstruction Counts;” and claim six refers to a “Motion to Dismiss Official Oppression Counts...” Appellant raised only one such motion in the lower court: in her omnibus pretrial motion, she requested an order “[qjuashing counts because they are [duplicative], and merging counts because they are multiplicitous.”2”2 The motion itself did not specify which counts she believed to be duplicative or multiplicitous. In her memorandum in support of the motion, the only duplicative counts she identified were the perjury and false swearing counts in action no. 6239-2015.279 Because appellant did not claim in the lower court that the counts charging her with obstructing administration of law in that action were duplicative, she may not raise that claim on appeal.27* 2. Supplemental facts and conclusions of law ‘The supplemental text following the heading of claim four explains, the charges of Perjury at count one and False Swearing at count two of the information filed at no. 6239-2015 cach embraced four separate subjects and cleven separate allegedly false statements....Multiple Perjury offenses were thus improperly Morgan, 102 A.2d 194, 195 (Pa. Super. Ct. 1954) and Commonwealth v. Saler, 84 Pa. Super. 281, 286 (1925)) 27 Id, at 51 (quoting Commonwealth v, Bidner, 422 A.2d 847, 852 n.6 (Pa. Super. Ct 1980). 2 Omnibus Pretrial Motions of Attorney General Kathleen G. Kane, item five 279 Memorandum of Law in Support of Attorney General Kathleen G. Kane's Omnibus Pretrial Motions, pp. 52-53. 24 Pa. RAP, 302(a) 67charged in one count; as multiple False Swearing offenses were likewise improperly charged in one count.27° In support of her request for an order quashing these counts, appellant cited an opinion of the Superior Court of Pennsylvania for the principle that “an indictment which charges distinct and separate offenses in a single count is generally bad for duplicity, and upon proper application will be quashed....”27° Accepting as law that the practice of charging multiple offenses in a single count is generally bad, appellant’s motion did not explain why it should have been prohibited in this specific instance, and why the only remedy would have been to quash the charges rather than ordering the Commonwealth to amend its bill of information. Despite the lengthy supporting text in her Statement, she has still not given any such explanation. The inclusion of separate criminal acts within counts one and two of action no, 6239-2015, which charged perjury and false swearing, did not impair appellant’s ability to prepare a defense, as was shown in the discussion of her third claim of error. Nor did it deprive her of accurate verdicts as to those counts, because the jury was read each of the eleven false statements and then instructed that they were required to reach unanimous verdicts as to at least one of the eleven. These specific jury instructions were suggested by appellant’s lawyers, who cited federal court opinions as authority. The undersigned agreed with their suggestions after independent research into the 275 Statement, p. 2, item 4. 27 Commonwealth v. Saler, 84 Pa. Super. 281, 286 (192 68decisional law of Pennsylvania’s appellate courts. Appellant’s lawyers did not object to the wording of these jury instructions. In pertinent part, the perjury instruction was as follows: Regarding the exchanges | just read to you, consider each separately. If you unanimously find that the Commonwealth has proven each element beyond a reasonable doubt for any of the exchanges, then you may find the defendant guilty of perjury. You must, however, be unanimous as to at least one particular exchange. You may not, for example, find the defendant guilty if some of you think that the Commonwealth has proven each element beyond a reasonable doubt only as to the first exchange, but the rest of you think -- but the rest of you think so only as to the second, In order to find the defendant guilty of perjury, all of you must believe the Commonwealth has proven every element beyond a reasonable doubt for at least one specific exchange.2?7 Moments later, the undersigned instructed the jury regarding false swearing: As | instructed you with regard to the perjury charges, you may find the defendant guilty of false swearing in official matters only if you unanimously find that the Commonwealth has proven cach ‘element beyond a reasonable doubt for at least one specific exchange.278 Appellant has not, and cannot, demonstrate that she sustained prejudice in any way as a result of the failure of the Commonwealth to charge her with separate counts of perjury and false swearing for each separate act constituting those crimes. Therefore, the undersigned did not err by denying her motion to quash the counts charging perjury and false swearing in action no. 6239-2015. As to claim five, appellant complains that 277 N.T, 8-15-16, p. 197 278 Id, at 202 69the two charges of Obstructing Administration of Law or Other Governmental Function at counts three and four of the information filed at no, 6239-2015...both embraced the same three alleged episodes....279 The undersigned acknowledges that counts three and four of the bill of information are identical, but the Commonwealth, in its response to appellant's omnibus motion, expressly disclaimed any desire to obtain two guilty verdicts for a single act, and specified that counts three and four related “to defendant's making faise statements under oath in breach of her official duties, and to defendant's involvement in leaking confidential investigative information and secret grand jury information, respectively.”28° Because the Commonwealth, in a written document filed in the public record, disclaimed any intention to charge her multiple times with the same offense for the same act, the undersigned judge properly denied her request to quash counts three and four. Appellant has not, and cannot, claim that her ability to prepare a defense was impaired, or that the jury entered two guilty verdicts for the same charge based on the same criminal act. She sustained no prejudice as a result of the refusal of the undersigned to quash counts three and four. ‘Therefore this claim of error must fail, Regarding count six, appellant complains that 279 Statement, p. 3, item 5 (omitting text alleging counts three and four were duplicative, ie., “both failed to differentiate which of the three alleged episodes was or were embraced within count three and which of the three alleged episodes was or were embraced within count four.”). 280 Commonwealth's Response to Defendant's Omnibus Pretrial Motion, p. 32 70the two charges of Official Oppression at counts six and eight of the information filed at no, 6239-2015 embraced the same alleged episode of mistreatment of J. Whyatt Mondesire....251 Appellants allegation does not fall within her own definition of “multiplicitous,” which forbids “the charging of a single offense in several counts....’282 Count six charged appellant with “subject{ing] another to...infringement of personal or property rights[,|” which is defined as a crime by subsection 5301(1) of the Crimes Code,?* while count eight charged her with “denyling] or imped[ing] another in the exercise or enjoyment of any right, privilege, power or immunity(,|'which is defined as a crime by subsection 5301(2) of the Crimes Code.2*4 Pennsylvania Rule of Criminal Procedure 563, which appellant cited in her motion to quash these counts,28 expressly permits the Commonwealth to join two or more offenses in a single information if the charges are based on the same act or transaction, Moreover, appellant was served with a copy of the Commonwealth’s response to her motion, which explained succinctly, “it is clear that those counts charge different subsections of Official Oppression and tical."8 Appellant has been on notice since the moment the 28! Statement, p. 3, item 6. 282 Memorandum of Law in Support of Attorney General Kathleen G. Kane's Omnibus Pretrial Motions, p. 51 (quoting Commonwealth v, Bidner, 422 A.2d 847, 852 n.6 (Pa. Super. Ct. 1980} {italics added by this author) 283 18 Pa.C.S, § 5301(1). 288 Id, at § 5301(2)} 285 Memorandum of Law in Support of Attorney General Kathleen G, Kane's Omnibus Pretrial Motions, p. 51 286 Commonwealth’s Response to Defendant’s Omnibus Pretrial Motion, pp. 31-32 71Commonwealth served her with its response, if not before, that this claim lacks even arguable merit; yet she has persisted in raising it on appeal. E. Claim seven, Denial of Motion to Dismiss Due to Selective and Vindictive Prosecution Appellant's Statement explains that this claim is based on the order filed June 20, 2016, which denied the Motion of Attorney General Kathleen G, Kane to Quash Based on Selective and Vindictive Prosecution, filed May 26, 2016, ‘The supplemental facts set forth below are those appellant identified in that motion, The undersigned assumed the truth of those facts for the sake of deciding the motion. The discussion accompanying the conclusions of law infra responds to the argument appellant made in her memorandum of law in support of the motion. Because appellant may not raise issues she did not raise in the lower court,?8” the undersigned anticipates that the argument in her appellate briefs will be substantially the same as that in the memorandum. 1 Supplemental facts In support of this motion, appellant averred the following facts: a, During 2012 and 2013, Frank G, Fina and E, Mare Costanzo developed animosity toward appellant as she publicly criticized the Ali investigation and the Jerry Sandusky investigation, which Fina and Costanzo conducted when, they served as deputy attorneys general.” 287 Pa.R.A.P, 302(a), 288 See Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and 72b, ©. In May, 2014, Philadelphia Daily News reporter Christopher Brennan contacted Fina and Costanzo and asked them to comment on a story he was writing, in which he intended to criticize their work as deputy attorneys general in the Mondesire invstigation2” In response, Fina and Costanzo contacted Montgomery County Court of Common Pleas Judge William R. Carpenter to report their belief that Brennan had received confidential grand jury information regarding the Mondesire investigation.20 Fina suggested to Judge Carpenter that: the leak was a criminal act; someone within the OAG was likely the source of the leak; and the leak could be investigated by the grand jury over which Judge Carpenter presided.™" Fina and Costanzo were motivated to report the leak and recommend the investigation because of their personal animosity toward Attorney General Kane and fear that she was going to reveal to the public that they had used the email accounts provided by their governmental employers to Vindictive Prosecution, 9 5-11 489 Ie, at J 12. 20 Id, at YY 13-15. 291 Id. at YW 15-17 73292 Id. at YY 18-19. 293 Id. at 4 20, send and receive “pornographic, racist, misogynistic and homophobic emails....""” More specifically, appellant alleged Fina and Costanzo “surely knew what their own email correspondence contained and surely recognized the threat to their careers and their reputations that Attorney General Kane’s investigation of that correspondence posed.”299 According to appellant, Judge Carpenter was not aware of that Fina and Costanzo harbored personal animosity toward appellant, or why.29* On May 29, 2014, Judge Carpenter appointed Thomas E. Carluccio, Esquire to serve as the “special prosecutor” to investigate the leak.” “That investigation resulted in the grand jury report, a subsequent referral to the Montgomery County District Attorney, and, eventually, the criminal charges lodged against Attorney General Kane in this case.” 268 Jd. at { 21 (averring, “Unaware of this personal reason for animosity by Fina and Costanzo toward Attomney General Kane, Judge Carpenter followed Fina’s suggestion to launch a criminal investigation.” 298 Id. at 4 22. 742. Conclusions of Law Appellant repeatedly uses the phrase “selective and vindictive prosecution” without reference to the distinction between the concepts of selective prosecution and vindictive prosecution.?97 Even in the two instances. in which she uses the phrase “selective or vindictive prosecution,” she refers to a single “standard” and a common set of elements, as if selective prosecution and vindictive prosecution are two names for a single category of conduct, or as if one of these defenses constitutes a sub-set of the other, Her failure to distinguish between the two concepts has facilitated erroneous arguments in her motion and memorandum, which she is likely to repeat in her appellate briefs. An accurate understanding of this body of law is the key to perceiving why her conclusions are incorrect, hence this opinion must distinguish these concepts before addressing this claim. Vindictive and selective prosecution distinguished ‘The Supreme Court of the United States has ruled that a prosecutor may not attempt to vindictively punish a defendant for his or her exercise of a legal 297 See id. at $7 1, 3, 4, 37; see also Memorandum in Support of Attorney General Kathleen G. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, pp. 3 (using phrase twice), 11 (using phrase twice), 14, 16, 17 (using phrase three times) and 18. 288 See Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, j 27 (referring to the “first prong of the selective or vindictive prosecution standard”); id. at 4 33 (referring to the “second prong of the selective or vindictive prosecution standard’). The Memorandum in Support of Attorney General Kathleen G. Kane's Motion to Quash Based on Selective and Vindictive Prosecution does not use the phrase “selective or vindictive prosecution.” 7right during the course of a criminal action?” by changing the charges brought against a particular person during the course of prosecution in a manner that increases the potential penalty. Under certain circumstances, a judge may 289 See United States v. Goodwin, 457 U.S. 368, 372 (1982) ("To punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.") (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). 100 See Goodwin at 375 [*the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’”) (quoting Blackledge v. Perry, 417 U.S. 21, 27 (1974)); see also id. at 370 (reversing determination by United States Court of Appeals for the Fourth Circuit that prosecutor impermissibly added felony charge to initial misdemeanor and summary charges brought against accused in order to induce accused to plead guilty and deter him from exercising right to trial by jury); id. at 372 [‘while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right’); id. at 280 (“This case, like Bordenkircher, arises from a pretrial decision to modify the charges against the defendant.”); id. at 381 ("Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly ‘motivated than is a pretrial decision.”) (italics added); Bordenkircher at 360 (clarifying sue before Court as follows: "This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty."); Blackledge at 27 (stating issue as “whether the opportunities for vindictiveness" by prosecutors in seeking and obtaining authority to supplement original misdemeanor charge with new felony charge after defendant appealed to higher-level trial court for trial de novo after conviction on misdemeanor charge in lower-level trial court, “are such as to impel the conclusion that due process of law requires a rule analogous to that of” claims of vindictive sentencing by trial judges after re-trial or upon re-sentencing on remand); id. at 28 (A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of inearceration.”} The Supreme Court of Pennsylvania has discussed the federal-court decisional law of prosecutorial and judicial vindictiveness in Commonwealth v. Chamberlain, 30 A.3d 381, 418-19 & n. 13 (Pa. 2011] (quoting Goodwin extensively while discussing theoretical grounds for establishing defense of vindictive prosecution based on prosecutor's decision to change charges prior to trial) and Commonwealth v. Ward, 425 A.2d 401, 403 (Pa. 1981) ("It is clear, however, from decisions of the United States Supreme Court and the unanimous position of numerous federal appellate and trial courts, that due process standards would be violated by the inhibition of appellate rights only where an implied acquittal has in fact taken place or when increased punishment results solely from judicial or prosecutorial vindictiveness toward the 76vindictive prosecutorial motivation®® that warrants some form of presume judicial remedy for the improper punishment. In both actions, nos. 6239-2015 and 8423-2015, the prosecutors made no changes to the charges initially filed in each case. Appellant does not assert that the filing of additional charges in the second case is the legal equivalent to a change in the charges in the earlier case, nor would the facts support such an assertion. The affidavit of probable cause in the first action was filed August 6, 2015. According to the affidavit of probable cause filed in the second action, the charges filed in that action are based on a fact not discovered by the prosecutors until the execution of a search warrant on September 17, 2015. ‘These undisputed facts of record preclude appellant from proving or raising a ution. presumption of vindictive pros “Selective prosecution,” on the other hand, is a complete defense to a charge of criminal conduct, in which the accused bears the burden of pleading, and then producing, persuasive evidence of facts establishing the existence of the elements of the defense.3°2 In order to prevail on a motion alleging selective defendant for having pursued a successful appeal or collateral attack on his original conviction,” }; see also id.at 409 (“Even prior to Bordenkircher, the various United States Courts of Appeals unanimously held that the threshold event required for a showing of judicial or prosecutorial vindictiveness would be the imposition, after the defendant's exercise of a statutory or constitutional right, of more severe charges or penalties than those included in or contemplated under the original indictment”) 301 Goodwin at $73 {1982) (“in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to ‘presume’ an improper vindictive motive.”). 02 See Goodman v. Kennedy, 329 A.2d 224, 232 (Pa. 1974) (“A purposeful discrimination must be shown [by the accused] and we cannot presume such discrimination,"); see also Commonwealth v. Mulholland, 702 A.2d 1027, 1034 (Pa. 17prosecution, a defendant must prove two elements: “first, others similarly situated were not prosecuted for similar conduct, and, second, the Commonwealth's discriminatory selection of them for prosecution was based on impermissible grounds such as race, religion, the exercise of some constitutional right, or any other such arbitrary classification.”9% Selective prosecution differs from vindictive prosecution in two ways: it cannot be based upon a decision to modify charges during the course of a case, because it focuses solely on the prosecutor's initial exercise of discretion in selecting the accused for prosecution; but it may be motivated by something other than the exercise of a legal right by the accused.304 b. Appellant failed to plead facts sufficient to support the defense of selective prosecution Appellant’s motion and memorandum stated that she “was the victim of selective and vindictive prosecution,” and in support of that conclusion she alleged that “others who are similarly situated are generally not prosecuted for similar...conduct{,}"°° and that “A.D.A. Fina and A.D.A. Costanzo instituted 1997) (noting lack of ‘identification of any specific improper reason” in opinion of tris judge, and concluding that “the trial court erroneously shifted the burden from the defense to the prosecution to establish or refute the claim.”) 303 Mulholland at 1034. s+ For a brief discussion acknowledging three reported opinions in which the Supreme Court of Pennsylvania and the Superior Court of Pennsylvania appeared to have used the terms “vindictive prosecution” and “selective prosecution” interchangeably, see n. 328, infra. 50 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, § 24; Memorandum in Support of Attorney General Kathleen G. Kane's Motion to Quash Based on Sclective and Vindictive Prosecution, p. 11. 800 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, § 25; Memorandum in Support of Attorney General Kathleen 78the Special Prosecutor’s investigation in an effort to retaliate against Attorney General Kane for exercising her First Amendment rights and for actions she took while carrying out the lawful duties of her elected office.”9°7 Those two allegations correspond to the two elements of the defense of selective (1) that others similarly situated were not prosecuted for similar conduct; and (2) that the decision to prosecute was based on impermissible grounds such as race, religion or the exercise of some constitutional right.98 ‘This section will address each element seriatim, and will show that appellant could not plead facts supporting either one. i, Appellant has not pled facts supporting a conclusion that others similarly situated were not prosecuted for similar conduct ‘The first clement requires a comparison between the accused and the set of persons who, although similarly situated, were not prosecuted for similar conduct. Therefore, such a defense must begin by defining a set of persons and a set of conduct, and the decisional law seems to require fine distinctions s to both. Appellant fails to propose any criteria for the set of persons who G. Kane's Motion to Quash Based on Selective and Vindictive Prosecution, p. 11 807 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, { 26; Memorandum in Support of Attorney General Kathleen G. Kane's Motion to Quash Based on Selective and Vindictive Prosecution, p. 11. 308 Commonwealth v. Mulholland, 702 A.2d 1027, 1034 (Pa, 1997). 306 See Commonwealth v. Olavage, 894 A.2d 808, 811 (Pa. Super. Ct. 2006) (explaining that defendant alleging seicctive prosecution must prove that others not prosecuted must be “similarly situated,..beyond the mere fact of having committed the same crime."); Commonwealth v. Murphy, 795 A.2d 997, 1002 (Pa. Super. Ct. 2002) (concluding, in prosecution of police officer for using police training to conduct unlawful wiretap, that others “similarly situated” did not inchude police officer who unlawiully disclosed contents of lawfully-recorded wiretap, nor two officers who made 79are similarly situated to her, Without such criteria, one cannot interpret whether any data supports her claim that others similarly situated to her were not prosecuted for similar conduct. As to similar conduct, appellant focuses on the act of leaking information of grand jury proceedings, but she has also failed to show that others have not been investigated or prosecuted for such conduct. Appellant asserts that “there have been numerous leaks of grand jury information in Pennsylvania and, as far as the public record reveals, none of these other leaks has led to a grand jury investigation, much less to a criminal prosecution|,]"s!® but her factual support for this claim consists only of reported appellate opinions and several cases reported in the news media.31!_In order to demonstrate that her proposed data set is complete, she must rule out the likelihood that additional cases have not been publicly reported by the news media or appellate courts. ‘Thus even assuming, arguendo, appellant is correct as to the cases in the “public record,” her data do not prove that no other leak has been investigated by a grand jury or resulted in the filing of criminal charges. Moreover, appellant has failed to rule out the likelihood of cases in which legitimate exercises of prosecutorial discretion accounted for decisions not to pursue unlawful audio recordings without wiretaps). 330 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, ] 29; Memorandum in Support of Attorney General Kathleen, G. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, p. 12 311 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, $7] 28, 30-31, Memorandum in Support of Attorney General Kathleen @. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, pp. 12-13. 80charges. 91? Each of the foregoing defects is sufficient by itself to show that appellant failed to satisfy the first element of the defense of selective prosecution. Appellant has failed to plead impermissible conduct by the prosecutor ‘The name chosen for this defense, “selective prosecution,” implies in an obvious way that it is based upon the conduct of the attorney or attorneys who prosecute the defendant. The second element of the defense, as defined by the Supreme Court of Pennsylvania, requires defendants to plead evidence supporting a conclusion that “the Commonwealth's discriminatory selection of them for prosccution was based on impermissible grounds....”9!9 As used here, “the Commonwealth” is a term of art that refers to the attorney for the Commonwealth of Pennsylvania who is prosecuting the charges against the 212 See United States v. Batchelder, 442 U.S. 114, 124 (1979) ("Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion.”); id. at 125 & n.9 (stating that equal protection clause of the Fourteenth Amendment “prohibits selective enforcement ‘based upon an. unjustifiable standard such as race, religion, or other arbitrary classification.) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)); see also In re Oxman, 437 A.2d 1169, 1174 (Pa, 1981) (‘not all selective prosecution is forbidden; only sclective prosecution based on some unjustifiable standard such as race, religion, or other arbitrary classification is constitutionally proscribed.”). For a discussion of the adequacy of judicial oversight in distinguishing legitimate use of prosecutorial discretion to effectively and efficiency allocate prosecutorial resources from illegitimate use as instrument of racial and ethnic prejudice or political retribution, see generally RICHARD A. EPSTRIN, DESIGN FOR LIBERTY 23-27 (2011) 213 Commonwealth v. Muihoiland, 702 A.2d 1027, 1034 (Pa. 1997) fitalies added) Mutholland can be considered the “lead case” on this point of law, in the sense that the more recent opinions of the Supreme Court of Pennsylvania cite it as authority for the elements defining the defense of selective prosecution. See In re Lokuta, 11 A.3d 427, 446 (Pa. 2011} (quoting Mulholland); Commonwealth v, Bomar, 826 A.2d 831, 861 (Pa. 2003) (citing Mulholland) 81accused. In these actions, the Commonwealth's attorneys prosecuting appellant are the Montgomery County District Attorney and several Montgomery County and Bucks County assistant district attorneys, but appellant never alleges that their decision to prosecute was based on any impermissible ground. Rather, appellant relies exclusively on actions of former Philadelphia County Assistant District Attorney Frank G. Fina and Philadelphia County Assistant District Attorney E. Marc Costanzo,°"* whom she claims were motivated to report the grand jury leak because of personal animus and fear that Attorney General Kane was going to reveal their abuse of their governmental email accounts." Neither Fina nor Costanzo charged appellant with crimes in connection with the leak, hence their status as prosecutors in a different county is fortuitous and irrelevant to proof of the second element of selective prosecution. Moreover, appellant expressly acknowledged that the judge who presided over the grand jury that investigated the leaks, Judge William R. Carpenter, was unaware of the motives she ascribes to Fina and Costanzo.9¥ Appellant 24 Motion of Attorney General Kathleen G, Kane to Quash Based on Selective and Vindictive Prosecution, 7 33-37; Memorandum in Support of Attorney General Kathleen G. Kane's Motion to Quash Based on Selective and Vindictive Prosecution, pp. 14-18; Reply Memorandum in Support of Attorney General Kathleen G. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, pp. 1-3. 3:8. Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, J 5-19; Memorandum in Support of Attorney General Kathleen G. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, pp. 4-10. 516 Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, 47 20-21; Memorandum in Support of Attorney General Kathleen G. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, 82also acknowledges that Judge Carpenter appointed Thomas E, Carluccio, squire, as a special prosecutor to investigate Fina and Costanzo’s accusations," but she does not allege that Mr. Carluccio knew anything more than Judge Carpenter, and no facts of record indicate such knowledge. Therefore, the motivations of Fina and Costanzo are irrelevant to the motivation of the prosecutors in this case. Although appellant ascribes no impermissible motive to anyone who exercised official authority to obtain the presentment or file charges, she uses the opinions of the Supreme Court of Pennsylvania and Superior Court of Pennsylvania in Commonwealth v. Butler®!8 to argue that the alleged improper motives of Fina and Costanzo prove the second element of selective prosecution.2!? The defendant in Butler, Janet Butler, had been tried and acquitted of criminal charges in Delaware County.32° Appearing as a witness in her own defense, she testified under oath that she had never been convicted of acrime.?! After she was acquitted, she filed a civil lawsuit against Delaware County Detective Dennis O'Leary, and several other Delaware County officials pp. 9-11, 51” Motion of Attorney General Kathleen G, Kane to Quash Based on Selective and Vindictive Prosecution, 4 22; Memorandum in Support of Attorney General Kathleen G, Kane's Motion to Quash Based on Selective and Vindictive Prosecution, p. 11 518 601 A.2d 268 (Pa. 1991), affirming decision of Superior Court of Pennsylvania, 533 A.2d 105 (Pa. Super. Ct. 1987) (announcing decision of three-judge panel, with one judge concurring in the result only and another dissenting). 318 Memorandum in Support of Attorney General Kathleen G. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, pp. 15-18; Reply Memorandum of Law in Support of Attorney General Kathleen G. Kane’s Motion to Quash Based on. Selective and Vindictive Prosecution, pp. 1-3, 820601 A.2d at 268. 821 601 A.2d at 268-69. 83based on an allegedly cocrcive search of her person incident to arrest.2” After she filed her civil suit, unspecified “county authorities” filed charges of perjury and false swearing against her, alleging that she had known she had been convicted of a crime when she testified to the contrary.5#* In the perjury case, Ms, Butler's lawyer raised a defense “that the perjury charges were brought in retaliation for her civil suit,”%* but the trial judge denied relief based on the pleadings alone.%?° The Supreme Court ruled that her lawyer “should have been permitted to create a record to support this legal claim in the nature of a motion to dismiss.”5?6 Appellant argues that in Butler, Delaware County Detective O'Leary “instigated” her prosecution, and notwithstanding that he did not make the charging decision, “[bloth the Superior Court and the Supreme Court agreed that under such facts the defendant could make out a viable claim of vindictive prosecution."327 Appellant’s argument misconstrues the relevance of the 322 601 A.2d at 269. Although the Majority opinion did not specify that the detective was a county detective (as opposed to a detective employed by a township or borough police department), the dissenting opinion of Justice Papadakos identified him as a county law-enforcement officer, “Delaware County Police Detective Dennis O'Leary." 601 A.2d at 273. Likewise, the Superior Court’s opinion identified him as “Dennis O'Leary, a Delaware County Detective.” 533 A.2d at 105. The text of the majority opinion of the Supreme Court is consistent with the idea that the civil lawsuit named a county detective as one of the defendants because alter it named “Police Detective Dennis O'Leary,” as one of the defendants, it referred to the remaining defendants as “other county officials....” 601 A.2d at 269. 222 601 A.2d at 269. 34 G01 A.2d at 269. 325 601 A.2d at 271 (stating trial judge “summarily dismissed” claim) 386 Id, at 271 387 Reply Memorandum of Law in Support of Attorney General Kathleen G. Kane's Motion to Quash Based on Selective and Vindictive Prosecution, p. 1 {italics in 84evidence Ms. Butler’s lawyer sought to produce, ie., that shortly before the Delaware County District Attorney filed the charges, she had sued Detective O'Leary and several other Delaware County officials she claimed were, presumably, either directly or vicariously liable for the search of her person incident to her prior arrest. Appellant misconstrues that evidence as being relevant to the motive of the county detective rather than the prosecuting attorney, but as the Supreme Court opinion expressly stated, “The defense of prosecutorial vindictiveness is based upon the theory that due process prohibits a prosecutor frorn punishing a criminal defendant in retaliation for that defendant’s decision to exercise a constitutional right.”928 Likewise, the original); see also Memorandum of Law in Support of Attorney General Kathleen G. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, pp. 17-18 (anticipating Commonwealth’s argument that only the charging decision is subject to review pursuant to a claim of “selective and vindictive prosecution") 328 601 A.2d at 270 (italics added). The opinion of the Supreme Court appeared not to distinguish between the concepts of vindictive and selective prosecution, possibly because the Superior Court's opinion appeared to use the terms interchangeably: the Superior Court concluded that the trial court erred in failing to hold an evidentiary hearing on Ms. Butler's claim of prosecutorial vindictiveness. The court held that Ms. Butler should have been given an opportunity to present her claim of selective prosecution to the jury as a defense to the criminal charges. 601 A.2d at 270 [italics added). The Superior Court's opinion noted that the defendant characterized her defense as that of “prosecutorial vindictiveness,” 533 A.2d at 108, but cited precedential opinions pertaining to both vindictive prosecution and selective prosecution, id. at 108-09, and used both phrases several times throughout its analysis and conclusion, id. at 109-110. In every other reported opinion, the Supreme Court of Pennsylvania has not used the terms vindictive and sclective prosecution interchangeably. See In re Lokuta, 11 A.3d 427, 446 (Pa, 2011) (quoting Commonwealth v. Mulholland, 702 A.24 1027, 1034 (Pa. 1997)); Commonwealth v, Bomar, 826 A.2d 831, 861 (Pa. 2003) (citing Mulholland); of. In re Oxman, 437 A.2d 1169, 1174 (Pa. 1981) (stating, in context of disciplinary action against attorney, “It is settled, however, that not all selective prosecution is forbidden; only selective prosecution based on some unjustifiable standard such as race, religion, or other arbitrary classification is constitutionally 85Superior Court’s opinion, as quoted by appellant, focuses on the decision of the county prosecutor, not the person who reported the crime to the prosecutor.#29 It is therefore significant that in Butler the same political subdivision employed both the prosecutor and the detective who reported the crime to the prosecutor, because the employer had an incentive to influence the prosecutor to bring the néw charges against Ms. Butler in order to dissuade her from pursuing the civil suit seeking damages against the employer based on vicarious liability for the acts of its detective. The fact that the prosecutor and the person who reported proscribed.”); Goodman v. Kennedy, 329 A.2d 224, 232 (Pa, 1974) (stating, in context of claim of discriminatory enforcement of law forbidding retail sales on Sundays, “A purposeful discrimination must be shown and we cannot presume such discrimination.”) The Superior Court of Pennsylvania has only used the terms vindictive and selective prosecution interchangeably in Commonwealth v, Butler, 533 A.2d 105 (Pa. Super. Ct. 1987) (announcing decision of three-judge panel, with one judge concurring in the result only and another dissenting) and Commonwealth v. Rocco, 544 A.24 496 (Pa. Super. Ct. 1988). In all of its other reported opinions, the Superior Court has not used the terms interchangeably. Commonwealth v. Olavage, 894 A.2d 808 (Pa. Super. Ct. 2006) (discussing affirmative defense of selective prosecution and stating elements of selective prosecution, citing Mulholland); Commonwealth v. Childress, 799 A.2d 805 (Pa, Super. Ct. 2002} (same); Commonwealth v. Murphy, 795 A.24 997 (Pa. Super. Ct. 2002} (same); Comonwealth v. Rickabaugh, 706 A.2d 826 (Pa. Super. Ct, 1997) (same); Commonweaith v. Wells, 657 A.2d 507 (Pa. Super. Ct, 1995) (same); accord Commonwealth v. Stetler, 95 A.3d 864, 892 (Pa. Super. Ct. 2014) ("Defendant's allegations fail to set forth a prima facie claim of sclective prosecution”) (citing Murphy and Childress); Commonwealth v, Finnegan, 421 A.2d 1086, 1091 (Pa, Super. Ct. 1980) {rejecting statistical evidence that women are far more often arrested for prostitution as probative of claim of “gender-based selective enforcement” by male defendant) 2 Memorandum of Law in Support of Attorney General Kathleen G. Kane’s Motion to Quash Based on Selective and Vindictive Prosecution, p. 15 (quoting Butler, 533 A.2d at 110 (“Though the vast majority of prosecutors are dedicated and able public servants who would never misuse their tremendous power, our legal system strives to prevent even the occasional injustice.”); id. at 16 (quoting Butler, 533 A.2d at 109 (‘in this case, Butler claims that Delaware County prosecuted her for perjury because of her civil suit....")); id. ((quoting Butler, 533 A.2d at 109 ("It is arguably logical that the County re-investigated Butler and dredged up previously-ignored information in retaliation for her lawsuit.”)} 86the crime shared a common employer was evidence that the prosecutor faced a morally hazardous incentive to file charges against Ms. Butler in order to satisfy the employer, rather than exercise prosecutorial discretion not to charge her. That incentive, which is not present in this case, distinguishes Butler from these actions. Construed correctly, the Butler opinions support the conclusion that appellant has failed to plead facts supporting the second element of the defense of selective prosecution. Appellant has not pled any facts supporting an inference that the attorneys prosecuting her had an impermissible motive to charge her because she exercised a constitutional right. Appellant does not claim the grand jury that returned the presentment against her, the special prosecutor who drafied the presentment, or Judge Carpenter, who accepted the presentment, had any impermissible motive. Appellant's free admission that Judge Carpenter had no knowledge of the reason Fina and Costanzo reported the leak to him indicates otherwise. A judge must take evidence when a moving party has pled facts that, if supported by persuasive evidence, would establish grounds for an order granting a remedy. If the moving party has failed to plead such facts, then there is no point to holding an evidentiary hearing, for a movant cannot claim a procedural right to produce, and have a judge weigh, evidence that varies from the facts pled in the motion, Given appellant's failure to plead facts supporting 87the defense of selective prosccution, the undersigned judge cannot have erred by denying her motion without taking evidence. F. Claim eight, Denial of Right to Present Defense Appellant has supplemented the heading of this claim, “Denial of Right to Present Defense,” with two pages of explanatory text referring to facts and legal argument ostensibly necessary for a reader to understand this claim. This section will first construe the text in order to clarify the claim and identify additional facts material to its disposition. 1. Clarification of the eighth claim of error ‘The explanatory text states that appellant’s team of lawyers planned “to introduce evidence of ‘pornography discovered by the Office of Attorney General in Frank Fina’s and/or Mare Costanzo’s work email accounts[,]” but the undersigned judge filed a pretrial order forbidding her from doing so.%39 The explanatory text also states that during her opening statement, her lead attorney began to discuss appellant's internal review of Fina’s investigation of the crimes related to child abuse by Jerry Sandusky, but the Commonwealth objected and the undersigned ruled against appellant, Thus, appellant argues, +90 Statement, p. 4, item eight (quoting Defendant's Reply in Opposition to Commonweaith's Motion in Limine to Exclude Evidence of Selective and Vindictive Prosecution, $4). Appellant is correct that the order filed by the undersigned on July 28, 2016 barred her from producing at trial evidence of pornographic email messages. See order filed July 28, 2016 (granting Commonwealth’s Motion in Limine to Exclude Evidence of Selective and Vindictive Prosecution, although not expressly stating form of relief); see also Commonwealth's Motion in Limine to Exclude Evidence of Selective and Vindictive Prosecution, p. 12, Part II, q 1 (failing to specily relief requested, but stating, “Any reference by defendant to selective and vindictive prosecution or to the substance of her claims about the incredible nexus between pornography and her current criminal charges should be barred....") 88she “was prohibited from introducing evidence on the theory of her defense,” which was that contrary to the Commonwealth’s repeated arguments that the Mondesire documents were released to the Philadelphia Daily News as revenge by [appellant] against Frank Fina... [appellant] actually had other, more effective and lawful means available for that purpose, if she was so inclined, including pornographic emails and the handling of the Sandusky investigation.... This...evidence would also have been relevant in support of the defense that Ms. Kane would not have risked everything she had worked for and achieved by actions which were both unlawful and needless." ‘The facts of record do not support the conclusion that the undersigned prevented appellant, directly or indirectly, from making those arguments. 2. Supplemental facts The Commonwealth filed a pretrial “Motion in Limine to Exclude Evidence of Selective and Vindictive Prosecution,” which recited six instances, between November 19, 2014 and December 1, 2015, in which appellant or her lawyers made public statements about the pornographic email messages sent and received by Fina and other male public officials.35? The prosecutors argued that trial evidence of the pornographic messages could “only be used in an attempt to confuse the issues and mislead the jury.” For example, at a press conference on August 12, 2015, appellant said, “My defense will not be that am the victim of some old boys’ network, it will be that I broke no laws of the 38) Statement, p. 5. 382 See Commonwealth’s Motion in Limine to Exclude Evidence of Selective and Vindictive Prosecution, Part Il, $1] 4(a)-(h) 389 fd, at Part Il, 3(h) 89Commonwealth, Period."3% Yet on August 24, 2015, at appellant’s preliminary hearing, the same lawyer who would give her opening statement at trial, Gerald L, Shargel, Esquire, attempted to cross-examine the Commonwealth's witness about the “thousands and thousands” of pornographic messages in Fina’s OAG email account and said to reporters afterward, “I'm not testing my defense with the media, You can be certain we'll hear more about this in the months ahead, though."385 ‘The prosecutors’ motion in limine expressed concern that, “as trial quickly approaches, defendant may once again return to her tired arguments of pornography and good old boys.”s%6 Based on the conduct of appellant and her team of lawyers, the undersigned anticipated the same, The defense team continued to emphasize the pornography evidence in their pretrial motion to have the charges dismissed as selective prosecution, so one could expect they would also make it the centerpiece of their trial strategy. Appellant had discovered the pornographic email messages during her review of Fina’s investigation of the Jerry Sandusky child abuse cases,957 hence the undersigned became cautious when Mr, Shargel turned to that subject in his opening statement. MR. SHARGEL: She had never run for public office before. She wasn't a career politician. She wasn't a politician at all, but she saw that the criminal justice system in Pennsylvania was broken 50 Id, at Part I, $ 4(c} & Exbibit °C.” 336 Jd, at Part II, § 4(d) & Exhibit “D.” 296 Id, at Part Il, § 4(h); see also id. at Exhibits “A” through “G” (printed copies of news reports of appellant's public discussions of pornographic email messages) 137 See Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution, #7 18-20 90and necded fixing, She thought that she could do the job. While running for office, she promised to hold law enforcement, as well as prosecutors, more accountable and more transparent. She would let the public know the reasoning behind the decisions by the Office of the Attorney General, particularly in high profile cases. Let me give you one example. Along those lines, she promised -- this was part - an important part of her platform. She promised that she would investigate -- this was while she was running for office. She promised that she would investigate the Jerry Sandusky sexual assault case. She wanted to find out why prosecutors had taken so long to bring charges, and whether that delay might have led to other children being victimized: She even brought in a prominent former federal prosecutor to lead the review, to see what was done wrong, and what could have been done better in the future. She would release, as she did, all of the findings in a public, a public report. So in November of 2012, Kathleen Kane won that election that she worked so hard for, She received more than 3 million votes. It was an historic victory. She was the first woman —- MS. HENR' Objection. THE COURT: Let me sce counsel at side bar. When given an opportunity to respond to the Commonwealth’s objection outside the presence of the jury, Mr. Shargel stated, ‘There's a lot that's been said [by the prosecutors] about motive. And my point, my point I wish to build on is that why would she risk what she worked so hard for, so hard to achieve, and to make the argument ultimately to the jury that it makes no sense that she would risk that, that she was going to get one story one time, put it in the newspaper that was going to hurt Frank Fina, So it Just doesn't match. It wasn't revenge in the sense of doing something to hurt Frank Fina as much as it would hurt her. 1 think I have the right to argue that, if | can put before the jury that this goes directly to the question of her motive. 288 NP. 8-9-2016, pp. 38-39 (morning session) o1THE COURT: I think you can argue that without going into her number of votes she recived in an election, to go into the number of cases or specific other cases involved that she was trumpeting to support her position, and fighting certain issues in the public eye. So I'm not stopping you from saying what you just said about “why would she risk everything she's fought so hard to build.” That's not an inappropriate argument, but to go off on side roads that have no relevance to this proceeding at this point, I'm not going to let you do it So the fact you're highlighting the number of votes she got in an election is totally irrelevant and inappropriate, and I dare also say mentioning other cases that have nothing to do with this case, to try to highlight her, again, trumpeting issues before the public is irrelevant to the proceeding, and I'm not going to let you do it. am going to permit you to argue, “why would she risk everything, but that doesn't mean you're going to roll out all of the issues that, have nothing to do with this proceeding. ° When Mr. Shargel resumed his opening statement, he made the most persuasive argument available, bar none, to refute the prosecution's theory of motivation, He began by telling the jury that the leak of the Ali investigation to the Inquirer was illegal.s# He then explained, The Attorney General could have used a grand jury subpoena to put Frank Fina in the grand jury. Did she do that? Absolutely not. Did she do that? Absolutely not. The Attorney General didn't care. You're going to see this from the evidence. You're going to see from text messages. You're going to sec this from e-mails, The Attorney General cared not one wit about Frank Fina. She wasn't trying to retaliate against Frank Fina. Her concern -- was she upset? Yes, absolutely, she was upset, but her being upset had nothing to do with motive to commit a crime. Her being upset didn't mean that she was going to take all that she worked for, going back to her position in Lackawanna District Attomey's Office, going back 899 Id, at 40-42 italics supplied), 340 Id, at 54,to the fact that she worked so hard to achieve her position, going back to the fact that she worked so hard during that election in 2012 to become elected, and she's going to give all of that up. Just I ask you, as you hear this evidence come in, I want you to think about this. That's all I ask, think about this: Why? When you hear the testimony from this witness stand, why would it be, how could it be that her concern, the Attorney General's concern was over one assistant district attorney? You didn't hear that in the opening statement. One assistant district attorney, that's what the whole feud is about, about giving up what you achieved for this, because that's retaliation? It just does not make sense that she would risk her reputation and her career.34 ‘The foregoing excerpts from the opening statement show appellant is factually mistaken that the undersigned judge precluded her from making the argument that she “would not have risked everything she had worked for and achieved by actions which were both unlawful and needless.”#2 Therefore, the proper legal questions are whether the undersigned erred by forbidding appellant to: a. produce trial evidence of her internal investigation into Fina’s investigation of Sandusky; b, produce trial evidence of Fina’s pornographic email messages; and c. discuss “the Sandusky investigation, among other matters’3*3 during her opening statement. Thi section will show that: (a) evidence of the Sandusky investigation was irrelevant to appellant’s defense; and (b) the probative value of evidence of the Stl Id, at 55-57 (italics added). 2 Statement, p. 5. 39 Statement, p. 5, 93pornographic email messages as circumstantial evidence of appellant's motive for retaliation was speculative and inadmissible; therefore (c) appellant's lawyer was properly barred from discussing either during his opening argument. 3. Conclusions of law Several well-settled rules govern the legal conclusions to be drawn from the facts of record. First, “[elvidence is relevant if it has any tendency to make a fact more or Jess probable than it would be without the evidence; and the fact is of consequence in determining the action.”84 Second, “relevant evidence is admissible, except as otherwise provided by law.”°45 One exception is that a judge “may exclude relevant evidence if its probative value is outweighed by a danger of...unfair prejudice, confusing the issues, [or] misleading the jury...."%6 In this context, the term “unfair prejudice” means “a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially.”*7 Third, ‘[elvidence that is not relevant is not admissible.” Finally, a trial judge “may properly restrict counsel, in opening, by refusing to permit questionable features of evidence to be referred to, holding counsel to a narrative of the defense, reserving further consideration of the matter until it is offered in evidence.” If the judge later “¢ Pa.RE. 401. 345 Pa. RE, 402 36 Pa.RE, 403, 3” Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1245 (Pa. 2015) (quoting Pa.R.E. 403, emi 8 Pa RE. 402. 249 Commonwealth v. Quaranta, 145 A. 89, 91 (Pa, 1928). 94decides to admit the evidence in view of the developments during trial, “no harm is done to the accused in refusing to permit reference to be made to it in the opening, as the jury later will be fully aware of the facts."250 a. Evidence of the Sandusky investigation was irrelevant Appellant’s internal review of Fina’s investigation of the Sandusky cases was well under way by February of 2013,351 but she did not learn of the impending leak of the Ali investigation until a year later. Her decision to review Fina’s investigation in the Sandusky cases was not motivated by revenge, hence it did not make it more or less probable that she was motivated to seek revenge by leaking information about the Mondesire investigation. Similarly, her already-completed decision to conduct the review in the Sandusky cases did not make it more or less probable that she would have been willing to risk all she had achieved professionally by leaking information about the Mondesire investigation as a way of obtaining revenge against Fina, The evidence was thus irrelevant, and the undersigned did not err by barring appellant from producing it at trial and arguing it in her opening statement. b. The probative value of evidence of Fina’s pornographic email messages was speculative; additionally, the evidence of pornographic email messages was unfairly prejudicial, misleading and properly excluded It is possible appellant could have obtained revenge against Fina by publicly exposing the pornographic email messages she found in his OAG email 80 Te 351 See n,15, supra and text accompanying note. 95account, but whatever probative value those messages may have had as circumstantial evidence of her motivation to seek vengeance was blunted by her own argument that her eventual decision to publicly reveal them seemed inevitable.952 Appellant wished to invite the jury to speculate that if she had been inclined to seek revenge against Fina, she would have rationally evaluated the alternatives and eschewed illegal means that would have risked all she had achieved professionally. If one were to engage in speculation about how an otherwise-rational person would be inclined to indulge in vengeance, then exposing Fine’s illicit emails would have been clearly inferior to the alternative that appellant's lawyer argued in his opening statement, that of empaneling a grand jury to investigate whether Fina leaked the Ali inv stigation. The former would merely have embarrassed Fina, possibly harming his personal and professional reputation, but the latter would have exposed him to a risk of disbarment and imprisonment, Thus the argument appellant actually made to the jury was much more persuasive than the one she was proscribed from making, ‘The titillating pornographic evidence had great value to appellant, but mainly as a means of confusing the issues and misleading the jurors, 38? Appellant divulged that she discovered the emails even before Fina reported the Mondesire leak to Judge Carpenter, Unlike the internal review of the Sandusky investigation, appellant's public exposure of the emails was not a fait accompli at the time she learned of the impending leak of the Ali investigation. Motion of Attorney General Kathleen G. Kane to Quash Based on Selective and Vindictive Prosecution,” 14 18-20. 96distracting them and suggesting “decision on an improper basis...."2 One can imagine few examples of evidence more likely to sidetrack logical, dispassionate, sober and judicious deliberation than ribald and salacious messages and photographs, whether projected onto a large screen as high resolution images or merely described obliquely, so as to stimulate imagination of vulgar details and thereby divert “the jury's attention away from its duty of weighing the evidence impartially.’ No cautionary instruction could have prevented evidence of pornography from eclipsing the admissions by co- conspirators and inculpatory text messages and sworn grand jury testimony by appellant herself, all of which would have seemed mundane by comparison. ‘The pornographic evidence was like quicksand, an inescapable trap for the minds of the jurors, which is why appellant’s trial lawyers doggedly pursued the production of that evidence at trial and discussion of it in their remarks to the jury. Any marginal probative value of the pornography would have been greatly outweighed by the cumulative dangers of unfair prejudice, confusion of the issues and misleading the jury. The order forbidding appellant from producing the pornographic eviden did not preclude her from persuading the jury that she “had a far more powerful means of retaliation at her disposal, had 983 Castellani v, Scranton Times, L.P., 124 A.3d 1229, 1245 (Pa. 2015) (quoting Pa.RE. 403, emt.. 3s I 97she been inclined to use it.”35 It only precluded her from confusing, misleading and prejudicing the jury. Therefore the undersigned judge did not err by excluding it Conclusion as to claim eight: the undersigned did not err by forbidding appellant’s lawyers from referring to the Sandusky investigation and the pornographic email messages during her opening statement The foregoing discussion showed the undersigned did not abuse her discretion by precluding appellant from producing evidence or argument regarding the pornographic email messages and the Sandusky investigation. Because those facts were not going to be produced as evidence during the trial, appellant had no basis for discussing them during her opening statement, hence the undersigned did not abuse her discretion by forbidding such argument. Appellant suffered no injustice as a result of these decisions. She was only prevented from thwarting justice by exposing the jury to irrelevant and misleading evidence and argument. G. Claim nine, objection to jury instruction In her ninth claim, appellant states, “Specifically, Ms. Kane objected to the Court's instruction to the jury as to what constitutes secret grand jury information, and that not all information relating to grand jury proceedings is secret.’85 This claim pertains to the charge given to the jury regarding the 255 Statement, p. 4, item eight (quoting Defendant's Reply in Opposition to Commonwealth's Motion in Limine to Exclude Evidence of Selective and Vindictive Prosecution, 4) 86 Statement, p. 6, claim nine 98crime of obstructing the administration of law or other governmental function.%57 The explanatory text states, it was alleged by the Commonwealth that Ms. Kane illegally and unlawfully released...secret grand jury information without first obtaining a disclosure order....to wit, a 2009 memorandum authored by Deputy Attorney General William Davis, Jr." * * [,] transcript of interview pertaining to a 2009 grand jury investigation and/or two e-mails pertaining to a 2009 grand jury investigation,”358 1. Supplemental facts A review of the transcribed notes of District Attorney Stecle’s closing statement wil confirm that he never argued that disclosure of the email messages between Davis and Fina was illegal.°5° To the contrary, his closing statement focused on the Davis memo and Special Agent Peifer’s transcribed interview of Agent Miletto.%® In reference to the charge of obstructing the administration of law, District Attorney Steel said, ‘And then you have obstructing, okay, the other charges you're dealing with, intentionally objects, impairs or perverts the administration of law or other government function by breach of official duty or unlawful act. So you obstruct, and she obstructed when she was responsible for the leak, for CHRIA, the information going out, for the grand jury information going out. She obstructs with the cover-up of what has occurred, getting together with Josh Morrow. She obstructs with the lies that she tells the grand jury.3% 387 18 Pa.C.S. § 5101. The entire jury instruction on the crime is found at N.T, 8-15- 2016, pp. 204-08 88 Statement, p. 6, item nine (italics added) 38 See N.T. 8-15-2016, pp. 104, 112-14. sto See id, at 98-99, 104, 112-14, 123, 124, 125, 129, 139 & 154-57. 961 Id. at 142-43 (italics added) 99Appellant is thus mistaken when she claims that the Commonwealth alleged she unlawfully released secret grand jury information consisting of the email messages between Davis and Fina. District Attorney Steele made no such suggestion, hence appellant’s lawyers made no request for an instruction that the messages were not “matters occurring before the grand jury.” Instead, appellant requested a supplemental instruction regarding the second element of the crime of obstructing the administration of law, ie., that appellant “did so by breach of official duty or an act otherwise in violation of the law,”262 such as a violation of subsection 4549(b) of the Statewide Investigative Grand Jury ‘Act.363 ‘The undersigned read subsection 4549(b) to the jury verbatim,2% and although it refers to “matters occurring before the grand jury,” and “matters occurring before the investigating grand jury,” it does not define those phrases. Appellant’s exact objection to that instruction was, we had requested an instruction explaining to the jurors what grand jury information is, and Your Honor did not give that charge, and I renew that request and object to not giving it. Specifically, what we requested was...” I instruct you that not all information relating to grand jury proceedings is secret. Grand jury secrecy applies only to prevent unauthorized disclosure of matters occurring before the grand jury, such as the testimony of grand jury witnesses or other matters that took place within the secret confines of the grand jury hearing.” 02 Id. at 208 2 42 Pa.C.S. § 4549(b). 260 N.T. 8-15-2016, p. 206-07 268 Id, at 228-29 (italics added). 1002. Conclusions of law As the Supreme Court of Pennsylvania has “repeatedly cautioned, ‘[t]he trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and ace’ rately presented to the jury for its consideration.”36 “There is error only when the trial court abuses its discretion or inaccurately states the law."87 The instruction given quoted the language of subsection 4549(b) verbatim, hence the only question is whether the supplemental instruction requested by appellant instruction was necessary to clearly, adequately and accurately present the law. Appellant’s supplemental instruction was unnecessary because the Commonwealth argued that she obstructed the administration of the law by the unauthorized disclosure of the Davis memo and the Miletto transcript. The Davis memo expressly referred to facts obtained from grand jury testimony, and Davis testified at trial that his memo contained information obtained from the grand jury proceeding®°*--that is, Davis obtained the information “within the secret confines of the grand jury hearing,” to use appellant’s words. Similarly, the Miletto transcript also referred to information derived from testimony given by witnesses within the secret confines of the grand jury hearing.%6? The Commonwealth did not argue that appellant obstructed the sos Commonwealth v, Bennett, 57 A.3d 1185, 1201 (Pa. 2012} (quoting Commonwealth v. Smith, 17 A.3d 873, 906 (Pa. 2011)) 367 Commonwealth v. Williams, 980 A.2d 510, 523 (Pa. 2009). 268 See nn, 39-42, supra and text accompanying notes. «9 See n. 85, supra and text accompanying note. 101administration of the law by leaking the email messages between Davis and Fina, or any other texts that did not contain information originating within the secret confines of the grand jury hearing. Therefore, there was no need to give the jury appellant’s supplemental instruction that grand jury secrecy applies only to the testimony of witnesses or other matters that took place within the secret confines of a grand jury hearing, If appellant’s proposed jury instruction was intended to imply that she could have legally disclosed the Davis memo and Miletto transcript even though the law would have prohibited disclosure of the transcripts and exhibits received during the grand jury investigation of CUES and Mondesire, then she was not entitled to it. It would have been error for the undersigned to instruct the jury that the law allowed appellant to publish indirectly what it forbade her from publishing directly, “Instructions to the jury are to be fair and accurate; they are not required to embody points that a party more properly should make: in argument."8° Appellant was not entitled to have the undersigned judge make a legally incorrect argument, in the guise of a jury instruction, that disclosure of the Davis memo, or the transcribed statement of Agent Miletto, or both, did not constitute disclosure of matters occurring before the grand jury. VI. Conclusion Appellant was tried before a jury, the members of which found beyond a reasonable doubt that she violated the law she swore to uphold. In the process 37 Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa. 2011). 102that led to the verdict in these two criminal actions, appellant was accorded all of the constitutional, statutory and rule-based rights to which she was entitled. The undersigned has impartially and dispassionately reviewed the entirety of these proceedings from the inception and respectfully suggests that the trial was fair and the verdict was just, hence the judgment of sentence should be affirmed. | oQ\APo1 te jendy Defnchick-Alloy, Judge Copy of above sent on 9 //7 to: a Joshua D. Lock, Esquire; Goldberg & Katzman, P.C.; 4250 Crums Mill Road; P.O, Box 6991; Harrisburg, PA 17112 Kevin Steele, Montgomery County District Attorney; Robert M. Falin, Deputy District Attorney, Appellate Division; by inter-office mail 103