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SUPERIOR COURT OF PENNSYLVANIA
Criminal Docketing Statement
Pursuant to PaR.A.P. 3617, you must complete and return thls form and'attachments to the Prothonotary
of the Superior Court by May 10, 2013. A completed copy of this form must also be provided to the
appellee. THIS FORM IS FOR CRIMINAL APPEALS ONLY. If this is not a Criminal appeal, notify the
Superior Court Prothonotary and the correct form will be provided to you.
A: CASE IDENTIFICATION
1, Case Caption; Comm. v. Schultz, G.
2. Superior Court Docket No: 736 MDA 2013
3. Party or parties filing appeal: Gary Schultz; Timothy Curley (703 MDA 2013) FILE
13.. TIMELINESS OF APPEAL (Check only those which apply and fill in the.date(s))
( ) Date of:Conviction or juvenile adjudication
( ) bate of judgment of sentence or juvenile disposition order
) Date post-sentence motions filed
( ) Datepo0-sentence motions-denied
(x). Date of 'order appealed from (if direct appeal from judgment of-sentence, date is the day
that judgment of sentence was imposed; If a juvenile matter, date is the date that the
juvenile dispoSItIon order was entered) April 9, 2013 •
• (x ) Date nOtice.of appeal filed April 19, 2013
C. FINALITY OF ORDER APPEALED AND PRESERVATION OF ISSUES •
1, is the order appealed from a final order?- ( x) Yes ( ) No -
• . Specify rule and subsection governing finality (e.g., PaR.A.P, 301, 31.3, 341) and, If
desired,..any applicable case law.
313(b)(coIlateral orders); Commonwealth v: Harris, 32 A.3d 243; 248 (Pa. 2011)(collateral orders involving
claims of privilege are immediately appealable as a matter of right)
2. If. the order is not a final order:
•a. is the order appealable as of right under Pa.R.A:P. 311? ( ) Yes ( No
• (Specify whiCh subsection)
Was.permission to appeal granted pursuant to: .
(I) Pa.R.A,P. 1311? ( ) Yes (x) No Misc. Docket No.
Pa.R,A,P. 1501 et seq? (.. ) Yes (x). No ...Misc. Docket No,.
How have.issues been preserved? Check only those that apply: .
( x) Pre-trial.rnotiOn(s)
( - ) Timely objection •
( ) Motion to withdraw plea of guilty or polo contendere
Was the motion to withdraW guilty plea pre-senterice or post-sentence?
MAY — 6 2013
SUPERIOR COURT Middle District
( ) Post-sentence motion(s) Date filed
( ) Other (please explain)
4. If this is a Commonwealth appeal from a pretrial order, has the Commonwealth complied with Pa.R.A.P. 311(d) and certified in the notice of appeal that the order will
terminate or substantially handicap the prosecution? ( ) Yes ( No
AOPC 3020 04/2612013 11:40 am
D. NATURE OF DISPOSITION BELOW (Check only those which apply)
. 1. Pre-Trial Orders:
( ) Suppression order
( ) Double jeopardy order
( ) Dismissal
( x) Other disposition (please specify) Order denying Defendants' Joint Motion to Quash the Presentment as Defective for
Relying on Attorney-Client Privileged Communications and Work Product
2. Judgment of sentence following (check all applicable responses): Not applicable.
( ) Jury Trial
( ) Non-Jury Trial •
( ) Gullty-Nolo Contendere Plea
( ) Summary Conviction
( ) Summary Appeal
( ). Probation/Parole Revocation
( ) Grant of Appeal Nunc Pro Tune •
3. If thislkpn appeal from the grant or denial of a P.C.R.A. petition: Not applicable.
Was there a direct appeal from judgment of sentence? ( ) Yes ( ) No
Is this a:first P.C,R.A.? ( ) Yes ( ) No
Was counsel provided in the lower court for the PCRA petition? ( ) Yes ( ) No •
Was there a hearing in the lower court for the PCRA petition? ( ) Yes ( ) No
Was nunc pro tune appeal requested? ( ) Yes ( ) No
Was nunc pro tuno appeal denied? ( ) Yes ( ) No
Was the petition dismissed as untimely? ( ) Yes ( ) No
Was the PCRA petition filed within one year of the judgment of sentence becoming final?
( ) Yes ( ) No
Were there any statutory exceptions (42 Pa.C.S. 9545 (b)(1)(i-Iii)) raised to the
tiMeliness of the 'PCRA petition? •
( ) Yes (state which subdivision) ) N0
E. TYPE OF CASE
On the last page, you will find a list of substantive case types. List the substantive case
type(s) involvedip this Appeal using the corresponding letter(s). List as many as apply. If
your case type does not appear on the list provided, please type or print the substantive
type of case involved in this Appeal,
DD, KK (Failure to Report: 23 Pa.C.S. § 6319)
F. RELATED CASE
List all related cases pending in any court (e.g., co-defendants, cross-claims, cross appeal or other
appeals, same issue):
CASE NAME COURT CASE NO. TYPE OF CASE
CwIth y. Schultz, Dauphin Co. Court of Common Pleas, 1386-MD-20I 2, H, N, Obstruction of Justice (18 Pa.C.S. § 5101)
In Re: 33rd Investigating Grand Jury, Petition of G.C.S., Pennsylvania Supreme Court, 61 MM 2013, Appeal
Please see attached list of related cases.
Docket No. of cross appeal 703 MDA 2013
AOPC 3020 0412612013 11:40 am
F. RELATED CASE
List all related cases pending in any court (e.g. co-defendants, cross-claims, cross appeal,
or other appeals, same issue)
CASE NAME COURT CASE NO. TYPE OF CASE
Cwlth. V. Curley, Dauphin Co. Court of Common Pleas, CP-22-CR-5165-2011; DD, KK (Failure
to Report: 23 Pa.C.S. § 6319)
Cwlth. v. Curley, Dauphin Co. Court of Common Pleas, 1385-MD-2012, H, N, Obstruction of
Justice (18 Pa.C.S. § 5101)
Cwlth v. Spanier, Dauphin Co. Court of Common Pleas, CP-22-MD-0001387-2012, H, N, DD,
KK (Failure to Report: 23 Pa.C,S. § 6319); Obstruction of Justice (18 Pa.C.S. § 5101)
In Re : 33rd Investigating Grand Jury, Petition of TM C, Pennsylvania Supreme Court, 61 MM
2013, Appeal
G. DESCRIPTION OF APPEAL (If necessary attach additional pages for completion of 1 and 2)
1. Brief description of action and result below:
Please see attached.
2. Issues to be raised on appeal: Please see attached.
3. Is the discretionary aspect of sentencing the only Issue to be raised on this appeal: ( ) Yes (x ) No (See 42 Pa,C.S. §9781(b))
4, If proceeding pro se, list all prior counsel in this matter and at what stage of the proceeding they represented you. Not applable.
5. If you filed this appeal pro se, and are Imprisoned and the appeal was docketed beyond the thirty-day period for thing an appeal, see Pa.R.AP. 903(a), does the mailbox rule apply, see Commonwealth V. Jones, Pa 700A.2d 423 (1997), such that your appeal should be considered as having been timely filed? ( ) Yes ( x) No. If yes, explain why and attach any supporting evidence. Not applicable_
H. CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL (Pa.R.A.P. 1925(B))
1. Did the trial court order that a concise statement of matters complained of on appeal be filed? ( ) Yes (date) x ) No
Date appellant filed the statement with the trial court clerk Not applicable.
- Dade appellant served the statenient oh the trial 'Judge Not applicable.
HAVE YOU ATTACHED: Order from which appeal is taken? ( x ) Yes ( ) No Notice of appeal? Trial court opinion, If available?
( x) Yes ( ) No (x) Yes ( ) No
IF THIS DOCKETING STATEMENT IS NOT FILLED OUT IN ITS ENTIRETY WITH ALL REQUESTED DOCUMENTS ATTACHED, YOU MAY BE SUBJECT TO DISMISSAL OF THE APPEAL, See Pa R.A,P. 3517, amended June 5, 2001, effective September 1 2001,
c--- Sig nature / Date
Print Name 'Thomas Fourre I Atty. I.D, No. 4C---9 7.6
/ 3
E-Mall Address I QxrIft kV' Ire it tntjer Q QYcv
ACIPC 3020 04/2612013 1t40 pm
G. DESCRIPTION OF APPEAL
I. Brief Description of action and result below:
Messrs. Schultz and Curley filed a Joint Motion to Quash the Presentment as Defective for
Relying on Attorney-Client Privileged Communications and Work Product with the Supervising
Judge of the 33rd Statewide Investigating Grand Jury, the Honorable Barry F. Feudale on
November 26, 2012. On April 9, 2013, without holding an evidentiary hearing, Judge Feudale
issued a Memorandum Opinion and Order denying the defendants' motion to quash.
2. Issues to be raised on appeal:
The lower court erred by: (1) ruling that the Supervising Grand Jury judge lacked jurisdiction
over the Motion to Quash; (2) failing to grant an evidentiary hearing on that motion; (3) failing
to hold a hearing on the allegation that Ms. Baldwin's attendance at the grand jury testimony of
Mr. Schultz and his co-defendants was breach of grand jury secrecy if she was not acting as
counlose w _itnesses, and failing to re uire the prosecution -to cktain a prior
before offering attorney testimony on the basis of the crime fraud exception.
SUBSTANTIVE CASE TYPE
A. Arson
B. Assault, Aggravated
C. Assault, Simple
D. Attempted Murder
E. Burglary
F. Corrupt Organizations
G. Corruption of Minors
H. CrIrninal Conspiracy
I. Criminal Trespass
J•• Cruelty to Anirnals
K. Disorderly Conduct
L. Drug Related Offense
M. DUI
N. Endangering the Welfare of Children
0. Forfeiture/RetUrn of Property
P. Forgery
Q. Gambling
R. Habeas Corpus S. Indecent Assault
T. Involuntary Deviate Sexual Intercourse
U. Kidnapping
V. Manslaughter, Involuntary
W. Manslaughter, Voluntary
X. Motor Vehicle Code Violation
Y. Motor Vehicle Homicide
Z. Murder I (Include sentence imposed)
AA, Murder 2
BB. Murder 3
CC, Parole Revocation
DO. Perjury
EE, Possession of Instrument of Crime
FF. Rape
GG, Receiving Stolen Property
HH. Reckless Endangerment
IL Robbery
JJ.. Selling Obscene Material
KI(,4 Summary Offense (Identify)
LL. Terroristic Threats
MM. Theft
NN. Uniform Firearms Violation
00 Voluntary Deviate Sexual Intercourse
PP. Request for DNA Testing
QQ. Constitutional Challenge to Megan's Law
ROPC 3020 04/28/2013 1 t40 am
41:41 A.M.
Appeal Docket Sheet
Docket Number: 735 MDA 2013
Page 1 of 2
April 26, 2013
1110 ,;k"
Commonwealth of Pennsylvania
V.
gary Charles Schultz
Appellant
kit
Superior Court of Pennsylvania
Secure
.111)1 1#1,11
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'"9,1"110.. • - .
. i si• , tt.Y5c-P1, . , .
Initiating DOcument: Notice of Appeal
Case Status:
Case Processing Status:
Journal Number:
Case Category:
Active
April 26, 2013
Criminal .
i-.q,),Ir.14.6.!.1g.k.441:./arta..4.10).N.AVARMIDS8§.0012M
. ArtiMMIN
Raff2.
Awaiting Original Record
• p'J
„AVI 0,1*
• Next Event Type: Receive !Docketing Statement
Next Event Type: Original Record Received
'Is"re$1,!-AVIA5f,"jrKgrOW11401.iFtiiiii:Arl,rt'l '7,,,F31/t4;49Pr'l tffaidm . ,
.„
case Type(s):
gin
Criminal
Docket No / Reason Ty e
703 MDA 2013 Related
Same issue(s)
'3913111
111011 .A.41.1.141 Next Event Due Date: May 10, 2013 on
Next Event DUe Date: June 18, 2013 x,
•T 411* • - , . • , , • , A - ,•• • 1'mq 40,;;-p441t4M ',10,11,PF:$0.11P!,r7,008k,
:WP re", - • - -°.. n;:f ,4i•Jr?
Appellant Schultz, Gary Charles ,
Pro Se: No . Appoint Counsel Status: Represented
IFP Status: No
Attorney: Farrell, Thomas
Bar No: 048976
Law Firm: Farrell & Reisinger, LLC
Addrees: Farrell & Reisinger Lic
436 7TH Ave Ste 200
Pittsburgh, PA 16219
Phone No: (412) 894-1380
Receive Mail: Yes
Receive EMail: No EMall Address: [email protected]
Fax No:
Appeal 'Docket Sheet
Docket Number: 735 MDA 2013
Page 2 of 2
Aprp. 20t 2013
NOMINI , delagnia
Appellee Commonwealth of pennsylvania
Pro Se: •No Appoint gounsel Status: Represented
!FP Status; :No
Attorney: Barker, James Patrick - bar No: 067315
Law Firm: Office.of Attorney .General
AddreSs: Criminal Law Division .
Appeals and LegaiServices Section
• lath Floor-Strawberry Square
• Harrisburg, PA 17120
Phone No: (717) 705-0098
Receive Mail: Yes
Receive EMail; No EMall Address:-
,72PIMRIONVISOWERMIllinita
Superior Court of Pennsylvania
Secure
ligentaMgerprrienTTIk„
• tT . • 4 ,...0.3.24:NOC..4;
Fax No: (717) 783-5431
Fee Dt Fee Name :
04/26/2013 Notice of ApPeal
41.1511.1. eige.
Court Below:
Couhty: Dauphin • •
Order Appealed From; April.9, 2013
Documents Received: April 262013
Order Type: Order
OTN(s):
Lower Ct Docket No(s):CP-22-CR-0005164-2011
Lower Ct Judge(s): • Feudale, Barry F.
Senior Judge •
AsommawmpriF,. • vr •
Fee Amt ReCeipt IX Receipt No Receipt Amt
73,50 04/26/2013 2013-SPRTM-000381 73.50
ISERVIONSMOMPARNINDO
Dauphin County Court of Common Pleas
Judicial District:
Notice of Appeal Filed:
gatialfalgatiNAM, ..; .L
Original Record •l.tem Filed Date
TOSIMINEWISSIMI
• Dauphin Couhty Criminal Division
12
April 19, 2013
In"11 1.212ERMI 1114
Content Description
Date of Remand of Record: •
irlinnallentl&ANNEESSINANIONIMIWCIL...
None
'V*4,
Filed Date
April 26, 2013
April 26, 2013
Docket Entry / Representing Participant Type
Notice of Appeal Docketed
NO fit fallialeNtatie ENIM
None •
,Art1iqe:wo:4.6to,WI
-
Filed By
Schultz, Gary Charles
Middle District Filing Office
Appellant
Docketing Statement Exited (Criminal)
• IN THE COURT OF COMMON PLEAS
OF DAUPHIN COUNTY, PENNSYLVANIA
• CRIMINAL DIVISION
IN RE: : SUPREME COURT OF PENNSYLVANIA
: 217 M.D. MISC. DKT. 2010
THE TIHRTY-TIHRD.
STATEWIDE INVESTIGATING
GRAND JURY
: DAUPHIN COUNTY COMMON PLEAS
: NO. C1'-22-CR-5164-2011
: NO. CP-22-CR-5165-2011
; NOTICE NO. 1
ORDER
AND NOW this TO day of April 2013, in consideration of the attached opinion, it is
ORDERED and DIRECTED that:
1. The motions of defendants Spanier, Curley and Schultz to quash the presentment are
DENIED;
The motions • to quash the presentment or strike defendant Spanier's grand jury
• testimony on the grounds of attorney Baldwin's alleged conflicts of interest are
DENIED;
The motions for disclosure of various documents including transcripts of attorney
Cynthia Baldwin's testimony before the grand jury and the colloquy with the court before she testified are DENIED;
As reflected in the analysis within the opinion, the motions to Quash the Presentment,
(which never should have been filed with the Grand Jury Judge), as well as the courts
assertions that its findings and reasons thetefore should be fully disclosed to the defendants as a matter of fundamental fairness; and the courts careful review of the content of the opinion as not implicating secrecy (notwithstanding the courts proposal to potentially allow the transcripts of • attorney Baldwin's testimony and colloquy to be disclosed) this opinion and order will not be sealed and may be released to all those cc'd in the order and other interested parties.
BY THE COURT,
Honotbe B rry F. Feudale
Super4ng Judge, 33"I Statewide
Investigating Grand Jury
cc: Honorable Todd Hoover
Court Administration, Dauphin County
Clerk of Courts, Dauphin County
Sheriff, Dauphin County
Bruce Beemer, Senior Counsel to Attorney General Kathleen Kane
Janies P. Barker, Chief Deputy Attorney General
Tom Farrell, Farrell & Reisinger LLC, 436 7th Ave, Suite 200, Pittsburgh, Pa 15219
Elizabeth Ainsley, Schnader Harrison et al, 1600 Market St, Suite 3600, Philadelphia, Pa 19103-7286
Caroline Roberto, Law & Finance Bldg, Floor 5, Pittsburgh, Pa 15219
IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
IN RE:
THE THIRTY-THIRD STATEWIDE :
INVESTIGATING GRAND JURY :
SUPREME COURT PENNSYLVANIA
217 M.D. MISC. DKT. 2010
DAUPHIN CO. COMMON PLEAS
No. CP-22-CR-5164-2011
OTN T 109768-1
IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA,
V.
GARY C. SCHULTZ,
Defendant.
SUPREME COURT PENNSYLVANIA
217 M.D. MISC. DKT. 2010
DAUPHIN CO. COMMON PLEAS
No. 1386-MD-2012
NOTICE OF APPEAL
Notice is hereby given that Defendant, Gary C. Schultz, hereby appeals to the
Superior Court of Pennsylvania from the order entered in this matter on April 9,
2013.
The order has not been
copy of the docket entry. This
released under seal.
r-5
entered in the docket as evidenced by the attachett
case remains under seal, but the order wasrio* kL)
Respectfully submitted,
t'441 Thomas J. Farrell, Esquire
No. 48976
Farrell & Reisinger, LLC
436 70 Avenue, Suite 200
Pittsburgh, PA 1.5219
Attorney for Gary Charles Schultz
COURT OF COMMON PLEAS OF DAUPHIN COUNTY • 4,1,2: "S.V.,`"?7,,,,P.Z., • - • I, i
kTi:,'''P4,15$:*tte.;;AITONYI :01. '6' X; OgatirdattegMAM
OFIWirr. IgteiAtilA,..7;•;;W&;,,1
args_s_cciuraoAN__NgE_
Judge Assigned:
OTN:
Initial Issuing Authority:
Arresting Agency:
Case Local Number Tvge(s)
Stiengr
Case Status: Closed
Dote Of Birth:
"
Participant Type
Petitioner
Name;•
Supreme Court No:
In Re: Schultz, Gary Charles
Tvvenorak-T, T 0
Status Date
11/01/2012
Docket Number: CP-2241D-0001386-2012
MISCELLANEOUS DOCKET
Miscellaneous Orders
zr,4z„„,.. AramorgrA.
Date Filed: 11/01/2012
Lower Court Docket No:
Final suing_Authority:
Arresting Officer
Case Local Number(s1
VISTEfir Processing Status
Completed
kro ftri,
Name:
Supreme Court No:
Rep. Status;
Phone Number(s):
Initiation Date: 11101/2012
- • "r=-1 .;;KT3Vra,-4:1- . =
1 11/01/2012 Hoover, Todd A.
Order (11/1/12) The Court Assigns MDJ Wenner for Preliminary Arraignment and Preliminary Hearing
dist. 11/1/12
1 11/20/2012
Motion to Preclude Testimony Of Attorney Cynthia Baldwin
(Def/Farrell&Roberto/Priv)
Attorney
11/27/2012 Attorney
Motion for Continuance
(Def/FarreiKRoberto/Priy)
Printed: P418/2013
Recent entries made in the court filing offices may not be immediately reflected on these docket sheets Neither the courts of the tingled Judicial
System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed
data, errors or omissions on these reports. Docket Sheet Information should not be used In place of a criminal history background check which can
only be provided by the Pennsylvania State police, Moreover an employer who does not comply with the provisions of the Criminal History Record
Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section e153.
COURT OF COMMON PLEAS OF DAUPHIN COUNTY
:Ilitifin•rtaintifgatO
In Re: Schultz, Gary Charles
Docket Number: CP-22-MD-0001386-2012
MISCELLANEOUS DOCKET
Miscellaneous Orders
Page 2 of 2
;:TWMIFFM-rflknaPngaMffl.r..B:ain.RWA,MWP4, '"P'7.-nattaintaiSSMAKO
Seduence Number CP Filed Date Document Date , lied By
2 11127/2012 Schultz, Gary Charles
Joint Motion to quash presentment as defective for relying on atty/client prlv commun and work prod
(Def/Farrell&Roberto/Pi1v)
12/05/2012
Order (1215/12) - The Preliminary Nearing Scheduled December 13-14 Is POSTPONED
until after resolution of pending motions. dist 12/5/12
MDJ-12-3-03
1 04/17/2013 Attorney
Defendant Gary C. Schultz' Motion to Unseal Defendants Motions to Quash the Presentment and any
Defendant Gary C. Schultz, Motion to Unseal Defendants' Motions to Quash the Presentment and any Related
Pleadings, ARgument, or Rulings
(Priv/Parrell/Def)
CPCMS 0082 Printed: 04/18/2018
Recent entries made In the court tiling offices may not be immediately reflected on those docket sheets , Neither the courts of the Unified Judicial
System dills Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed
data, errors or omissions on these reports. Dooket Sheet Information should not be used in place of a criminal history background check which can
only be provided by the Pennsylvania State Police, Moreover an employer who does not comply nfith the provisions of the Criminal History Record
' Information Act may ina subject to civil liability as set forth in 113 Pa.C.S. Section 91 83.
IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
IN RE: SUPREME COURT PENNSYLVANIA
217 M.D. MISC. DKT. 2010
THE TH1RTY-THIRD STATEWIDE :
INVESTIGATING GRAND JURY : DAUPHIN CO. COMMON PLEAS
No. CP-22-CR-5164-2011
IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA,
V.
GARY C. SCHULTZ,
Defendant.
• SUPREME COURT PENNSYLVANIA
• 217 M.D. MISC. DKT. 2010
DAUPHIN CO. COMMON PLEAS
No. 1386-MD-2012
REQUEST FOR TRANSCRIPT
A notice of appeal having been filed in this matter, the official court reporter
is hereby ordered to produce, certify, and file the transcript in this matter in
conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure.
ihomas J. Farrell, Esquire
No. 48976
Farrell & Reisinger, LLC
436 7th Avenue, Suite 200
Pittsburgh, PA 15219
Attorney for Gary Charles Schultz
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within Notice of Appeal
and accompanying Request for Transcript was sent by First Class Mail this 19th
day of April, 2013, to the following:
The Honorable Barry F. Feudale
Supervising Judge
Strawberry Square
Verizon Tower, 8th Floor
303 Walnut Street
Harrisburg, PA 17120
James P. Barker
Chief Deputy Attorney General
Office of the Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 17120
Caroline M. Roberto
429 4th Avenue, Suite 500
Pittsburgh, PA 15219
Date: April 19, 2013
Bruce Beemer
Senior Deputy Attorney General
Office of the Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 17120
Angela Beaverson
Executive Secretary for the Grand Jury
Office of the Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 171.20
Elizabeth Ainslie, Esquire
Schnader Harrison Segal & Lewis LLP
1600 Market Street
Suite 3600
Philadelphia, PA 19103-7286
•
IN THE COURT OF COMMON PLEAS
OF DAUPHIN COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
IN RE: : SUPREME COURT OF PENNSYLVANIA
: 217 M.D. MISC. DKT. 2010
THE THIRTY-THIRD
STATEWIDE INVESTIGATING
.GRAND JURY
: DAUPHIN COUNTY COMMON PLEAS
: NO. CP-22-CR-5164-2011
: NO. CP-22-CR-51.65-2011
: NOTICE NO. 1
OPINION
BEFORE: BARRY F. FEUDALE SUPERVISING JUDGE
Before this Court is the Joint Motion to Quash Presentment filed by Defendants Graham
B. Spanier, Timothy M. Curley and Gary Schultz (herein referred to as "Spanier," "Curley" and
"Schultz")..
L FACTUAL AND PROCEDURAL BACKGROUND
The Thirty-third Statewide Investigating Grand Jury ("Grand Jury") conducted an
ongoing investigation into the serial child molestation by Gerald A. Sandusky ("Jerry
Sandusky"), a former assistant football coach at the Pennsylvania State University ("Penn
State"). In June 2012, Jerry Sandusky was convicted of forty-five counts relating to criminal
charges ofthild Molestation and in October 2012 he was sentenced to imprisonment for thirty to
sixty years. As part of the on-going investigation, the Grand 'Jury expanded the scope of its
investigation to include the involvement of Penn State Officials, namely Spanier, Schultz and
Curley, in the handling of reports of Jerry Sandusky's activities. '
On October 26, 2012, the Grand Jury Supervising Judge signed an Order Accepting
Preseniment No. 29 in which the Grand Jury recommended that charges be brought against
• WV:"?.-ft:LfLLtt:ff,T2fre.77-7,.1....11:iltat.,7-5,:.L3-7.r,:::,Y,..,—,,,....::„:1—
Spinier, Schultz and Curley for Endangering the Welfare of Children Obstructing the
Administration of Law or Other Governmental Function and Criminal Conspiracy. Additionally,
in its Presentment, the Grand Jury recommended that Spanier be charged with Perjury, and
Penalties for Faure to Report or to Refer. On November 1, 2012, a criminal complaint was filed
against Spanier, Schultz and Curley, memorializing these charges.
On November 26, 2102, Spanier, Schultz and Curley filed a Joint Motion to Quash the
Presentment As Defective for Relying on Attorney-Client Privileged Communication and Work
• Product. In response, on January 2, 2013, the Commonwealth filed its Answer to Motion to
Quash Presentment. On January 18, 2013, Spanier, Schultz and Curley filed Replies to
Commonwealth's Answer to Defendants' Joint Motion to Quash Presentment. Additionally,
Curley filed a motion to JOin Schultz's Reply to Commonwealth's Answer to Joint Motion to
Quash and Spanier filed a Supplemental Motion to Quash Presentment, or in the Alternative, to
Strike Defendant's Grand Jury Testimony.
On January 24, 2013, oral argument was held before this Court to determine whether the
Joint Motion to Quash Presentment should be granted. Counsel for Spanier, Schultz and Ciirley
argued that Presentment 29 should be quashed because of its reliance on information provided by
Attorney Cynthia Baldwin when she testified before the Grand Jury. As follow-up to the oral
argument proceedings, on January 31, 2013, Schultz and Curley filed Defendants' Joint Bench
Memorandum Regarding the Admissibility, of Expert Testimony on the Attorney Standard of
Care Issues Presented in Defendants' Joint Motion to Quash the Presentment.
IL LEGAL ANALYSIS
Counsel for all parties raised several issues in both the written documents filed with this
Court and at oral argument. However, this Court believes that the singular issue before this
ti-
Court involves the absence of jurisdictional authority for the Grand Jury Supervising Judge to
quash a presentment after steps were properly taken to issue the Presentment and to adhere to the
statutory procedure following the submission of the Presentment.
On December 27, 2010, the Honorable Ronald D. Castille, Chief Justice of the Supreme
Court, granted the application of the Office of Attorney General to convene the Thirty-Third
Statewide Investigating Grand Jury and with reliance on the Investigating Grand Jury Act, 42 Pa.
C.S. § 4541, et seq . , ordered the following:
• The Honorable Barry F. Feudale, Senior Judge of the Court of Common
Pleas, Eighth Judicial District, Northumberland County, Pennsylvania, is hereby
designated as Supervising Judge of the Thirty-Third Statewide Investigating
Grand Jury. All applications and motions relating to the work of the Thirty-Third
Statewide Grand Jury—including motions for disclosure of grand jury transcripts
and evidence—shall be presented to said Supervising Judge. ..."
See Order at 217 M.D. 2010 (December 27, 2010). Under the Investigating Grand Jury Act (the
"Act"), the Supervising Judge is specifically directed to supervise the activities of the Grand
Jury. See 42 Pa.C:S. § 4542. Furthermore, it is well established that Itihe supervising judge of
the grand jury is responsible for upholding the rule of secrecy and deciding issues related of the
disclosure of grand jury information." Pennsylvania Grand Jury Practice at 65.. Thus, the
Supervising Judge acts as the guardian of the vault of Grand Jury secrecy and must protect and
oversee all "matters occurdng before the grand jury." 42 Pa.C. S. § 4549(b).
One of the concluding matters before the Grand Jury is the issuing of a Presentment.
Once' the Grand Jury completes its investigation and has determined that there is enough
evidence presented against an individual, the Grand Jury directs the Commonwealth to prepare a
Presentment. See 42 Pa. C.S. § 4551(a). This Presentment is then reviewed and voted upon by
the Grand Jury. See id. If approved, the Presentment is submitted to the Supervising Judge. See
3
Id Tinder the Act, "the supervising judge shall examine the presentment, and if it is within the
authority of the investigating grand jury ... the superviing judge shall issue an • order accepting
the presentment." Id. The Supervising Judge is also required under the Act to select the county
• where the criminal trial will take place after the Attorney General initiates criminal proceedings.
42 Pa. C.S. § 4551(d). Then, the Act is clear on the procedure following the acceptance of the
Presentment. "When the attorney for the Commonwealth proceeds on the basis of a presentment,
a complaint shall be filed and the defendant shall be entitled to a preliminary hearing as in other
criminal proceedings." 42 Pa. C.S. § 4551(e)'. Thus, the Supervising Judge plays a key role in
the conclusion of the Grand Jury process and the presentment acts as the catalyst for instituting
criminal, proceedings outside the realm of the Grand Jury.
In the ease at hand, the Grand Jury investigated the actions taken by Spunier, Schultz and
Curley in regards to the Jerry Sandusky case and determined that the evidence presented
supported the issuance of a Presentment against these three individuals. The Commonwealth
submitted Presentment No. 29 to the Grand Jury and after a majority vote approved it, the
Presentment was submitted to the Supervising Judge. The Supervising Judge then issued an
Order Accepting Presentment No. 29 authorizing the Attorney General of the Commonwealth to
prosecute Spanier, • Schultz and Curley as recommended in the Presentment by instituting
appropriate criminal proceedings in Dauphin County, Pennsylvania. This concluded the
Supervising Judge's role in the Grand Jury's investigation leading up to Presentment No, 29. Per
the Chief Justice's Order, as well as under the Act, the remaining responsibility of the
Supervising Judge is to maintain the secrecy by handling any motions for disclosure of
transcripts and evidence involved in the Grand Jury's proceedings. Neither the Chief Justice's
The key term of, "shall be entitled to a preliminary hearine is a definitive result which precludes any
discretionary anthority after the Presentment is launched.
4
1
Order nor the Act purport to expand the Supervising Judges authority beyond the statute and
thus upon the signing of the Order Accepting Presentment No. 29, the Supervising Judge's
continuing role in this case is to maintain secrecy and adjudicate disclosure issues. It is not
within the Supervising Judge's jurisdiction'to entertain the Join Motion to Quash Presentments
put before this Court.
III. DISCUSSION
Due to the novel issues presented, and lack of specific statutory or case law precedent
and/or guidance this Judge has struggled with bow to fully and fairly address the motions argued
(on January 24, 2013) as well as the pending motions to discover testimony in advance of what is '
authorized by the law. Such is not a reflection of uncertainty about this courts lack of
jurisdiction to rule on the motion; but how to do so without appearing to pass the buck?
Another significant concern was my perception that not only do I as a grand jury judge
(for the reasons explained in the legal analysis)3 clearly and unequivocally lack jurisdiction to
decide the motions to quash; there is a distinct possibility that I may be a potential witness in
subsequent proceedings before the trial court as to the issues extant.
rny dilemma is further complicated by my statutory role to preserve secrecy. My
resolution of these issues as reflected herein, is how I (perhaps erroneously) have decided to
2 "Pass the buck" — evade responsibility by passing it on to someone else, herein the Honorable Todd Hoover. See
www.phrase.org. I will address the motions for discovery later in this decision and final order.
3 Once again I commend and publicly acknowledge the invaluable assistance of attorney Brianna and Michael
Apfelbaum. This daughter and father team have rendered invaluable assistance to this court. I also thank Supreme.
Court Administrator Zyg Pines who authorized this grand jury judge to retain legal research and writing assistance at a rate of $20 an hour. I take great pleasure in pointing out that (with one exception) over the three years of their
service they have only requested compensation on one occasion. I am fortunate to have the services of such able
and generous lawyers who help me facilitate the administration of justice.
5
resolve such in a way that explains, but does not intrude, on the important determinations that
must or may be made by the Honorable Todd Hoover and/or the Pennsylvania Supreme Court.4
SimPly stated, it is this courts view that the various charges against Spanier, Curley, and
Schultz reflect their alleged (emphasis added) failure to report Sandusky to the proper authorities
when an eyewitness account came to their attention in 2001. Subsequent thereto, they later
allegedly lied to investigators, the grand jury (and even arguable PSIJ Chief Counsel Baldwin)
about what they knew, when they knew it, ahci what they did or did not do about it (alleged
unlawful acts of omission/commission).
Again, simply stated it is the view of counsel for Spanier, Curley and Schultz that this
court, Judge Hoover and/or the Superior and/or Supreme Court should dismiss all the counts
against all these defendants. Such is based on their assertions that then PSU General Counsel
(Chief Legal Officer and Vice President Cynthia Baldwin) were miarepresented by Ms. Baldwin
who "represented" them before the statewide investigative grand jury. In addition, counsel for
each of the defendants asserts that Baldwin violated the attorney/client and/or work product
privilege when she provided information and/or testified against the three defendants before the
statewide investigative grand jury.
We assume arguendo (as requested by the three defendants) that this court should have
decided the present motion before it and granted the defendants' request to dismiss all the
chines pending against them. In consideration of such, which is based on an extensive and
4 Since my only substantive decision is relevant to the lack ofjurisdiction (which is not appealable since it is not a
final order) what I say, assert, claim is clearly not law of the case nor should it even be arguably persuasive; since I
have not set forth the factual basis upon which all of my assertions are based. If need be, such will be done on the
record if I am called as a witness. However, I do note that my assertions am based on a careful review of an
extensive record over the last two months. As to the defendant's motions for certain discovery of testimony, etc., I
am going to order such be turned over to Judge Hoover if "he" requests I do so, even if it is contrary to the specific
statutory and case law, Fundamental fairness to the defendants and an infomwd Judge support my position even
though the Office of Attorney General may disagree.
6
•
careful review of a records that encompasses testimony, judicial colloquies, inquiries, and rulings
relevant to attorney Baldwin's participation in the Sandusky et al investigation; as well as the
colloquies and testimony of Spanier, Curley, Schultz and Baldwin; this Judge sets forth the
following as an explanation as to why it believes the assertions and Motions of counsel for the
defendants lack merit and the motions to quash should not be granted:
1. As reflected in the earlier legal analysis it is clear and unequivocal that this court lacks
jurisdiction to grant the relief requested. However, the Supreme Court may disagree.
2. Jurisdiction cannot be placed before this court merely because the defendants' motions
are entitled motion to quash "presentments".
3. Jurisdiction cannot be placed before this court merely because the Office of Attorney
General does not object to or challenge the filing of the motion, briefS, and presentation
of argument. Simply stated, jurisdiction that does not exist cannot be stipulated to and/or
conferred in the absence of the law.
4. The lack of jurisdiction before this court is not a final order and thus while appealable;
lacks merit in fact and law.
5. The lack of jurisdiction of this court is not a final order • since the motion to quash a
presentment should and can be filed as a Writ of Habeas Corpus to dismiss the
'complaints filed subsequent to the presentments. Such should/could be filed in•
accordance with the rules of criminal procedure as part of an Omnibus Motion to Dismiss
the Complaint and/or one or more of the pending charges against one or more of the
defendants.
6. The motion to disallow the testimony of Cynthia Baldwin before the assigned Magisterial
District Judge (with all due respect to learned counsel and/or the presiding Magisterial
District Judge and/or Presiding Judge) is itself problematic for the following reasons:
The assumption that OAG will, or needs to call, attorney Baldwin in support of a
probable cause determination in support of the pending charges against all three
defendants; is arguably premature.
. • The complications of grand jury secrecy as to defense counsel's request for the
testimony of attomey Baldwin prior to tria15.
5 See Pa,R,Crim.P. 230(B)(2). When a witness in a criminal case has previously testified before an investigating
grand jury concerning the subject.matter of the charges against the defenchuit, upon application of such defendant
the court shall order that the defendant be furnished with a copy of the transcript of such testimony; however, such
testimony may be made available only after the direct testimony of that witness at trial. (Trial—not preliminary
hearing) emphasis added.
. ..
7. While the grand jury judge will . not grant the defendants' outstanding motions for the
transcripts of Cynthia Baldwin's testimony before the grand jury, and the colloquy with
the court before she testified (since such are violations of the law) absent a stipulation
agreeing to such by OAG and approval of this court; this court would entertain the
following resolution:
a. A formal request by the trial judge (Honorable Todd Hoover) that the provision of
• the testimony of attorney Baldwin and the prior colloquy is necessary to the
administration of justice and in consideration of such this court would:
i. Turn over the sealed transcript of the testimony of Baldwin and the
• colloquy prior thereto to Judge Hoover.
ii. Agree that such will be sealed and not made public except to counsel for
the defendants at a time either agreed to by counsel for OAG and the
defendants, or upon approval of the grand juty judge.
iii. At the time of said in camera and/or preliminary hearing the trial judge
(who may choose to hold said in camera hearing himself or assign another
member of the Dauphin County Bench) will determine whether to grant a
writ of habeas corpus and dismiss some or all the charges against one,
more or all of the defendants based on the averments as to alleged
violations of the attorney-client privilege supporting such an extraordinary
remedy and/or granting defendants outstanding motions in full or part to
disallow the testimony of attorney Baldwin in advance of the preliminary
hearing.
In the event counsel for the defendants, OAG, and/or the trial court deem it necessary to
call the grand jury judge. to testify at any habeas corpus hearing or a hearing to prechide
the testimony of attorney Baldwin all of the aforegoing should be advised that:
a. Based on this courts review of all of the transcripts of testimony of the
defendants, all the record appearance of attorney Baldwin whether before the
grand jury with one or more defendants, or arguing legal issues before this Judge
or Judge Jackson;6 this Court believes there ig no factual basis in the record nor•
legal basis to dismiss the presentment and/or complaints,
b. When attorney Baldwin appeared before this court with witness Curley and
Schultz, the court was aware attorney Baldwin was General Counsel, Chief Legal
Officer and Vice President of PSU.
6 This Judge was off sick for approximately three months and a review of the record reflects Judge Ricardo Jackson
did preside over one proceeding involving alleged non-compliance by PSU with prior subpoenas and orders of this
court relevant to the provision.of information regarding the investigation of Mr. Sandusky.
c. Based on this court's experience with the role of General Counsel (albeit limited)
the court did not perceive any issue that would require any special inquig as to
the role of attorney Baldwin's appearance on behalf of Curley and Schultz.'
d. On the same day that Curley and Schultz appeared with Baldwin, Joe Paterno
appeared with attorney Joshua Lock and his son attorney Scott Patemo.
e. In all candor at the time Joe Paterno appeared with attorney Lock and his son, I
was uncertain as to why Mr. Patemo was not represented by Attorney Baldwin. I
perceived he (Patemo) along with Curley and Schultz (and later Spanier) were
Senior Executives employed and usually represented by such corporate counsel.
At the • time I was not advised, nor did I have any reason to believe, Mr. Curley•
and/or Schultz were targets of the investigation.
At the time of their testimony I assumed Curley and Schultz were appearing
voluntarily (i.e. there was no motion to quash the subpoena) pursuant to the
subpoena (actually as I write this I am not even sure if a subpoena was issued for
Curley, Schultz or Spanier or whether they appeared voluntarily at the request of
SDAG Jonelle Eshbach or CDAG Frank Fina.
h. Many witnesses (and even lawyers unfamiliar with Grand jury practice) are
unaware that a grand jury judge is not present in the grand jury room when the
witnesses testify.
i. I rarely read the transcripts of witnesses who do testify, (unless I am advised or
become aware there is a legal issue that may require such, or suggest such is
prudent).
j. The reading of all transcripts by a grand jury judge is neither required, nor is it a
wise utilization of judicial resources.
k. At the time Curley, Schultz, Paterno, and Spanier testified, I had no reason to
suspect they were being called for any reason other than to move the investigation
of Sandusky along. The only issue 1 was aware of at the time of the testimony of
the witnesses Spanier, Curley, Schultz and Patemo; was that the Office of
Attorney General was concerned that the subpoenas, and/or court orders to PSU
for information relating to Mr. Sandusky was either not being complied with, or
was being unduly, delayed so as to impact the ability of the OAG to investigate
Mr. Sandusky. I and Judge Jackson entered orders relevant to said concerns.
7 Generally it has been this courts experience that general counsel hired by a corporation us an employee officer is
responsible for how the corporation's legal matters are handled. Whethera private or public corporation, tie general
counsel usually offers legal advice to the Board of Directors, CEO/President of the corporation and other senior
executives.
9
1. I later discerned that Joe Paterno was not a Senior Executive and arguably that
was a possible reason why attorney Baldwin did not appear on his behalf.
m. It is the practice of OAG to at times meet with witnesses in advance of the
witness's testimony either prior thereto, or at the day of their appearance before
the Grand Jury.
Based on such, on occasion I am apprised there may. be a legal issue regarding the
witness (i. e . 5th Amendment, attorney-client, multiple representation, marital
privilege, etc .) that I may need to address in advance of the testimony.
o. No such issues(s) were brought to my attention by OAG, Attorney Baldwin,
Attorney Lock nor by any of the witnesses.
P.
q.
Based on such, I proceeded as if all the witnesses had counsel of their choosing
and there were no legal issues that needed to be addressed by the Grand Jury
Judge.
The only issue that I perceived but did not raise (nor was it raised by any member
of OAG) was that of the multiple representation by attorney Baldwin as to Curley
and Schultz. While I had no reason to believe there was such an issue, the matter
of multiple representation is a sore point with this Judge since the case of Pirillo
v. Taldif, 462 Pa. 511, 341 A.2d 896 (1975) and in Re: Bucks County
Investigating Grand Jury, 580 PA. 365, 861 A.2d 876 (2004) which set forth the
standards regarding suCh multiple representation such seem to be honored in its
breach, and the wishes Of witnesses to have counsel of their choosing, which has
been given the conflicted imprimatur of our appellate courts, at times seems
contrary to the facilitation of a gand jury investigation and secrecy.
Despite such, and despite being a former public defender, it is not this judge's
practice to "get down into the arena" and raise issues sua sponte absent a written
or verbal motion, or a very strong factual basis suggesting I should do so in the
interest of justice.
s . When CDAG Barker called the case indicating "we have some witnesses to be
sworn, Mr. Curley and Mr. Schultz". I stated, "represented by" and Ms. Baldwin
stated "my name is Cynthia Baldwin, General Counsel for Pennsylvania State
University". I asked "will you be • providing representation for both of those
identified witnesses". Ms. Baldwin responded, "Gary is retired but was employed
by the University and Tim is still an employee".
t. I asked no further questions nor was any further information regarding the
representation provided by OAG or Ms. Baldwin.
u. I proceeded to give the standard colloquy regarding rights and responsibilities to
witnesses Curley and Schultz and also at a later date, Spanier.
10
I
v. It is my practice and such occurred as to Curley, Schultz, Spanier and Paterno (as
Well as all other witnesses in all proceedings before the grand jury) to also explain
that "if a witness answer untruthfully he may be subjected to prosecution for
perjury which is punishable under the Crimes Code of Pennsylvania" and I always
also state even though it's not a part of the standard colloquy "it's (perjury) a
very serious offense. It's a felony.
w. In hindsight, perhaps I erred in not asking follow up questions about the role of
corporate counsel Baldwin. I regret and perhaps committed error in not asking
any follow up questions but while I am unaware what the response would have
been, I fail to discern how such would persuade me at this stage why
presentments should be dismissed
x. Subsequent to the testimony of Spanier, Curley, Schultz and Paterno, I did some
research on the role of corporate counsel such as Baldwin.
My research included an article entitled "The discreet roles of general counsel" by
Debra A. DeMott. Therein, I learned that a "contemporary general counsel often
occupies other roles as well (besides advising the Board of Directors and Senior
Executives such as Spanier, Curley and Schultz); each complex and additionally
interlinked in many ways". The article further noted general counsel's position
has often been characterized as ambiguous. A characterization that suggests that
not all occupants of the positions ,succeed in balancing its multiple roles in either a
professional or socially satisfactory rammer". The article concluded by indicating
"some general counsel appear to have erred in a basic respect by misidentifying
their clients as individual meMbers of the corporation senior inanagement in
contrast to the corporate organization, an error shared by members of senior
management (emphasis added).
z. After reviewing all of the relevant transcripts it was also my impression that
attorney Baldwin lacks substantive experience with grand jury and/or criminal
investigative matters. My. observation was related to the issues involving securing
compliance with grand jury subpoenas and court orders and the apparent failure to
engage in aggressive efforts beyond alleged inquiries of Spanier, Curley, and
Schultz as to evidence/documents relevant to the Sandusky investigation.
aa. After reviewing all of the relevant transcripts and documents related to the legal
issues extant, it was my view that at worst attorney Baldwin arguably knowingly
failed to comply with Rule of Professional Conduct 33- Candor Toward the
Tribunal.8
bb. The assertion in paragraph aa was mitigated when I subsequently learned that Mr.
Freeh prior to the issuance of his report (report of the Special Investigative
8 "A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by the lawyer". Rule 3.3 (a)(1).
Counsel regarding the actions of the Pennsylvania State University related to the
Child Sexual Abuse Committed by Gerald A. Sandusky-July 12, 2012) acquired
emails and other information in his inveStigation involving Spanier, Curley and
Schultz, that reflected that said witnesses Spanier, Curley. and Schultz allegedly
withheld relevant evidence from investigators, the grand jury, and Attorney
Baldwin, as well as allegedly lied before the grand jury. (emphasis added)
cc. Even if attorney Baldwin exercised poor judgment and/or improper ethical
conduct in her handling of the Sandusky investigation; such does not (in this
courts view) provide a defense,to any crimes.
dd. A careful review of the testimony of attorney Baldwin before the grand jury (as
structured/based on the earlier colloquy) reflects that Baldwin's testimony did not
(in this courts view) violate any attorney-client or work product privilege.
ee. Even if this court were to infer that such as violation occurred, this court would
not quash the presentments nor grant a writ of habeas corpus. The defendants'
remedy, if any, to their averments regarding alleged violations of attorney-client
privilege and work-product privilege; belong before the attorney disciplinary
board or a civil court and not before any grand jury or trial court judge presiding
in these criminal cases.
ff. In this court's view, all properly admitted evidence by the trial judge including
any alleged acts of omission/commission by attorney Baldwin should be fairly
and fully placed before the only appropriate tribunal; which in this case is a jury
properly empaneled in the Court of Common Pleas of Dauphin County.
Finally and in conclusion, this court notes that Spanier, Curley and Schultz are
"highly educated" men who had positions of considerable influence at PSU as
well as inferentially, knowledge about important events that impact the reputation
of the university; and it therefore strains credulity to infer that they were
somehow deluded or misrepresented.by attorney Baldwin.
hh. In the view of this court, the motions extant are in effect legal chimera's (concepts
perceived by this Judge as legally creative, imaginative but implausible and serve
only to delay the administration of justice in this simple case involving whether
Spanier, Curley, and Schultz did or did not commit the crimes alleged.
gg.
W. CONCLUSION
Defendants Spanier, Schultz and Curley seek to have presentment No. 29 quashed;
however, this Court has carefully considered the jurisdictional issue which can't be waived or
stipulated to, and has concluded that the Joint Motion to Quash Presentment was inappropriately
12 ,
placed before this Court. Once the Supervising Judge signs the order accepting the Presentment
and authorizes the Attorney .General for the Commonwealth to initiate criminal proceedings, the
trial court (the Honorable Todd Hoover) becomes the overseer of the pending trial issues and the
Supervising Judge continues the important role as the guardian of secrecy with regard to
disclosure of Grand Jury transcripts and evidence. Simply stated, the Grand Jury Judge no
longer has jurisdiction over this case since the defendants were arraigned and are awaiting a •
preliminary hearing. In the event I am wrong and the Grand Jury Judge does have jurisdiction;
then I have set forth in my discussion why I would deny the motion to quash. I believe I have
done so without implicating secrecy (i.e. revealing the content of attorney Baldwin's testimony
before the Grand Jury) but have explained most of my reasons for indicating why I would deny
the motions. Such was done in fairness to .the defendants, who are on notice to my analysis (in
the event I am called as a witness) and also to avoid delay which is also fair to the many actual
and/or alleged victims of the alleged acts of ornission/connnission by Spanier, Curley, and
S chultz.
As to Attorney Baldwin, I have explained why her alleged acts of conamission/omission
are not dispositive as to being a legally persuasive basis to dismiss one or more of the charges.
Whether defendants' assertions should be the subjects of disciplinary proceedings and/or some
type of civil action, is not within this or even the trial courts purview.
Finally, my review of the testimony of Attorney Baldwin before the Grand Jury
persuaded me (perhaps not Judge Hoover or other members of the Dauphin County Bench, or the
Superior or Supreme Court) that her testimony was circumspect and circumscribed. It was not a
violation of the attorney-client privilege, but rather was related to her belated awareness of the .
commission of alleged criminal acts and was in accordance with her responsibilities as an officer
13
-
of the Court. Finally, attorney Baldwin testified as approved by her then client (PSU) the
organization for which she was employed.
We therefore enter the following ORDER:
• IN THE COURT OF COMMON PLEAS
OF DAUPHIN COUNTY, PENNSYLVANIA
• CRIMINAL DIVISION
IN
THE THIRTY-THIRD.
STATEWIDE INVESTIGATING
GRAND JURY.
: SUPREME COURT OF PENNSYLVANIA
: 217 M.D. MISC. DKT. 2010
: DAUPHIN COUNTY COMMON PLEAS
: NO. CP-22-CR-5164-2011
: NO. CP-22-CR-5165-2011
NOTICE NO. 1
ORDER
AND NOW this ciAb day of April 2013, in consideration of the attached opinion, it is
ORDERED and DIRECTED that:
1. The motions of defendants Spanier, Curley and Schultz to quash the presentment are
DENIED;
2. The motions to quash the presentment or strike defendant Spanier's grand jury
testimony on the grounds of attorney Baldwin's alleged conflicts of interest are
DENIED;
3. The -motions for disclosure of various documents including transcripts of attorney
Cynthia Baldwin's testimony before the grand jury and the colloquy with the court
before she testified are DENIED;
4. As reflected in the analysis within the opinion, the motions to Quash the Presentment,
(which never should have been filed with the Grand Jury Judge), as well as the courts
assertions that its findings and reasons therefore should be fully disclosed to the
defendants as a matter of fundamental fairness; and the courts careful review of the
content of the opinion as not implicating secrecy (notwithstanding the courts
proposal to potentially allow the transcripts of attorney Baldwin's testimony and
colloquy to be disclosed) this opinion and order will not be sealed and may be
released to all those ce'd in the order and other interested parties.
.r`
BY THE COURT,
Hono e B rry F. Feudale
Supe ing Judge, 3314 Statewide
Investigating Grand Jury
cc: Honorable Todd Hoover
Court Administration, Dauphin County
Clerk of Courts, Dauphin County
Sheriff, Dauphin County
Bruce Beemer, Senior Counsel to Attorney General Kathleen Kane
Jellies P. Barker, Chief Deputy Attorney General
Torn Farrell, Farrell & Reisinger LLC, 436 7th Ave, Suite 200, Pittsburgh, Pa 15219
Elizabeth Ainsley, Schnader Harrison et al, 1600 Market St, Suite 3600, Philadelphia, Pa 19103-7286
Caroline Roberto, Law & Finance Bldg, Floor 5, Pittsburgh, Pa 15219
16
FARRELL & REISINGER, LLC ATTORNEYS AT LAW
May 2, 2013
Karen Reid Bramblett, Esquire
Prothonotary
Superior Court of PA — Middle District
Pennsylvania Judicial Center
P.O. Box 62435
601 Commonwealth Avenue, Suite 1600
Harrisburg, PA 17106-2435
200 Koppers Building
436 Seventh Avenue
Pittsburgh, PA 15219-1827
Telephone 412-894-1380
Facsimile 412-894-1381
www.farrellreisinger.com
Recated in Superior Court
MAY 0 6 2013
MIDDLE
Re: Commonwealth v. Gary Schultz
735 IIIDA 2013
Dear Ms. Brarnblett:
Enclosed please find the Docketing Statement in the above-captioned case, along with the
Order from which the appeal was taken, the Notice of Appeal and the Trial Court Opinion.
Please feel free to contact me with any questions.
Sincerely,
Thomas J. Farrell
TJF/laa
Enclosures
te._a..
