# In Re: Special Prosecutor, Thirty-Fifth Statewide Investigating Grand Jury > Supreme Court of Pennsylvania · August 26, 2015 URL: https://www.frixlaw.com/law-library/cases/2831062 ## Case - **Court:** Supreme Court of Pennsylvania - **Decided:** August 26, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** per curiam - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2831062 ## Opinion text IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: SPECIAL PROSECUTOR, : No. 1 MM 2015 THIRTY-FIFTH STATEWIDE : INVESTIGATING GRAND JURY : : : : ORDER PER CURIAM AND NOW, this 26th day of August, 2015, upon the request of the supervising judge for removal of the seal from all matters involving the 35th Statewide Investigating Grand Jury and the investigation of Attorney General Kathleen Kane which have been lodged in this Court, save for grand jury materials such as testimony, exhibits, and in camera proceedings, and based on the supervising judge’s assurance that there are no present grand jury secrecy concerns relative to such unsealing, it is hereby ORDERED that the seal is lifted upon such terms. Filed in Supreme Court I" (23 2014 Middle UNSEALED PER ORDER OF THE COURT DATED IN THE SUPREME COURT OF PENNSYLVANIA AUGUST 26, 2015 IN RE: : `UPREME COURT No. : GRANDIURY DOCKETS: SUPREME COURT OF PA SPECIAL'PROSECUTOR, No. 176 MD 2012 THIRTY-FIFTH STATEWIDE : MONTGOMERY CO.COURT INVESTIGATING GRAND JURY : No. 2644 MD 2012 EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF ANDNOW,this 6th day ofJanuary 2015,comes David Peifer, by counsel, Christopher P. Caputo, Esq., and presents the following: JURISIACTLON 1. The Supreme Court of Pennsylvania has jurisdiction pussuant to the JOicjary Article of the'Copstitution of:the Commonwealth of Pennsylvania, Article (jurisd.iction,of the Supreme (ourt); Article 5 Section 10 (supervisory authority of the Supreme Court); and the first clause of Section 1 of the Scheduleto the-JuicialY Arficle (PoWer and jurisdiction Of'the Stipreme Court); and further Received in Supreme Court JAN 6 2015 Middle pursuant to the Judicial Code, 42 Pa.C.S.A. §721(3)(original jurisdiction of the Supreme Court in quo warranto); and §726 (extraordinary jurisdiction of the Supreme Court); as implemented by Pa.'R.A.P. 3307(pleadings in original actions) and 3309(King's Bench matters). APPLICANT 2. The Applicant is David Peifer S.Pecial Agent in Charge, Bureau of Special Investigations, an employee of the Pennsylvania Office of Aftorney General (OAG). Special Agent Peifer among other duties, supervises all Special Investigations conducted by OAG; Special Agent Peifer has offices in Harrisburg, Norritown,. and resides in Delaware County,:PA. • .3. On January 6,'2015 undersigned coupsel accepted service of a subpoena on behalf'of Special Agent Peifer: by an agent of Special 'Prosecutor Thomas E. Carluccio to appear and testify on January 12, 2015 before the Thirty-Fifth Statewide- Investi2atine Grand jury sitting in Montgomery County. • 4.- The Applicant; by- virtue ofhaving,been.served with-a subpoenato-appear and testify, has standing to cballenge the egality of the office of Special Prosecutor appointedlo-the Thirty-Fifth Statewide Investigating Grand jury. Gwinn v. Kane, 19 Pa,CmwItfi.. 243, 339 A.2d -83$,$40-843 1975), disposition affirmed, 465 Pa. 269, 348 A.2 900(Pa. 1975). FACTUAL BACKROUND 5. On June 6, 2014 an article appeared in the .Philadelphia Daily News concerning a 2009 grand jury irvestigatioì.ofJ. Whyatt Mondesire,a forrner head of theNAACP in Philadelphia„ and .Harriet Garrett, one ofMr. Mondesire's employees. Exhibit A. 6. The 2009 statewide investigdting - grand jury had been convened and impaneled in Montgomery County. The.Philadelphia.Daily News article cited two documentary sources: First, a 2009 memo wrMen by-then-Deputy Aqorney.General William Davis, Jr., addressed to thenchiefDeputy Attorney Generaj,FrankFipa artd-thep-Senior..Deputy Attorney General'E. Marc Costanzo; and Second a 2914 transcript of a taped interview, by David peifer, Director of the OAG Bureau- of Special Investigations, of Michael Miletto,the OAG special agent who had earlier investieated Mr. Mondesire and Ms. Garrett.,Exhibit A. 8. Sometime .prior to the June 6, 2014 Philadelphia Daily News article, a Special.Prosecutor(Thomas E. Carluccio, Esq., an attorney in private practice) was appointed and authorized to utilize the hirty-Fifth Statewide Investigating Grand J ry to,investigate the alleged "leak" of alleged "grand jury material" by employees of the OAG,or other persons, to the. Philadelphia.Daily News. 9. The written communications, applications, petitions, orders, notice of submission, and all other documents Oderlying the appointment of the Special Prosecutor and submission of this invest, gation to the grand jury are under seal. It has been publicly reported that the app6intment of the Special Prosecutor in this matter was authorized by the Supreme Court and by, Order of Supervising Judge of the Grand Jury William R. Carpenter. Exhibits .B, C, and D. :BASIS FOR EXTRAORDINARY RELIEF. 10. The Investigating Grand Jury ct 42 Pa.C.S.A. §§4541 et seq., does not provide for appointment of any special prosecutor. 11. The Commonwealth Attorneys Act, 71 P.S. §§732-101 et seq., does not provide for the appointment of any special prosecutor. 12. The sole provisions in Pennsylvania law for appointment of a special prosecutor apply only in the event that an elected county District Attorney has been charged with crime or wilful and gross negligence in office. County Code, 16 P.S. §§1405-1406. See similar provisions at 16 P.S. §7710 concerning counties of the first class; and.16 P.S. §§4405-4406 conierning counties of the second class. 13. Pa.R.A.P. 3331 provides for review by the Supreme Court of"An order relating to the supersession ofa district attorney by an Attorney General or by a.court, or to the appointment, supervision, administration or operation of a special prosecutor." This rule does not create any independent substantive authority for the appointment of any special prosecutor, and must therefore be construed to apply solely to cases arisine, under the above-cited provisions of the County Code. 14. The consideration of a special prosecutor in Dauphin County Grand Jury Investigation Proceedings(N . 3), 322 Pa. 358,2 A.2d 809(1938), was held to have been authorized by a 1929 Legislative en ctment which was repealed upon passage of the Comrnonwealth Attorneys Act, sirpra, in 1980. Former section 907 of the Administrative Code of 1929,71 P.S. §297,authorized President judges ofthe Courts ofCommon Pleas to request in writing tha the Attorney General intervene in criminal matters and supersede the local DiStrict Attorney. See statutory history: Commonwealth v. Harris, 501 Pa. 178, 460 A.2d 747, 751, fn. I (1983). Thus, reliance upon the 1938 case by the Lackawanna County Court in In re: County Investigating Grand Jurv V.111, 2003, 200,5 WL 3985351 (Pa.Corn.P1. 2005) for the general proposition that Pennsylvania cotirts have traditional or inherent authority to appoint special prosecutors, was misplaced. See section 11(C)ofthat Opinion,p.9-10, titled "Appointment of Special Prosecutor." 15. Another Lackawanna County grand jury later gave rise to a proceeding on the issue of whether the Pennsylvania Shield Law,42 Pa.C.S.A. §5942, protects a 5 newspaper reporter from compelled disclosure ofthe source of a grand jury leak. In Castellani v. The Scranton Times, 956 A.2d 937 (Pa. 2008), the Supreme Court, while addressing the Shield Law, mentiot ed in passing that the Supervising Judge of the Grand Jury had appointed a Special Prosecutor to investigate a leak, but as the validity of the appointment was not at issue, no authority for the appointment was cited. 16. In In Re Dauphin County Fourth Investigating Grand Jury,947 A.2d 712 (Pa. 2008), grand jury leaks had been 'complained of by individuals subject to investigation. The Supreme Court issued a per curium Order under the King's Bench authority of42 Pa.C.S.A. §726,directing he Supervising Judge ofthe Grand Jury "to consider whether a special prosecutOr should be appointed to pursue the allegations..." No authority in support ofthe contemplated appointment of a special prosecutor was cited. Id., 712. Subsequently, a special prosecutor was appointed, although, again, the later full Opinion by the Supreme Court does not cite any authority relied 'upon for the appointment. ln Re Dauphin County Fourth Investigating Grand Jury. 19 A.3d 491 (Pp. 2011). 17. In disapproving the appointment of a special prosecutor by the Philadelphia Court of Common Pleas, to stupersede the local District Attorney in the 1 conduct ofa grand jury investigation, outisde the terms of71 P.S. §297,the Supreme Court of Pen.nsylvania expressly held that Pennsylvania courts had no such extra- statutory authority, and "there is no public office in Pennsylvania known as Special Prosecutor." Smith v. Gallagher, et al, 408 Pa. 551, 185 A.2d 135,149(1962). The Supreme Court in Smith pointedly disapproved the proposition that Pennsylvania courts have in.herent independent power io appoint special prosecutors, as follows: [T]he intervening appellants Say that Judge Alessandroni did have the jurisdiction and the authoritylto order a special grand juiy and appoint a special prosecutor. Theqral and written arguments submitted i.n behalf of this thesis, however, luack conviction or even persuasion. They speak vaguely ofinherent auttlority, common lawjurisdiction and traditional powers. Id., 146; and at length further at 151-154. 18. Although Smith v. Gallagher was decided by the Supreme Court in 1962, nothing in either the Investigatima Grand Jury Act or the Commonwealth Attomeys Act, both adopted in 1980, has corrected the lack of authority to appoint special prosecutors vigorously pointed out by Justice Musmanno in 1962. Mere lapse oftime has not provided new constitutional or statutory authority. Indeed,since repeal of71 P.S. §297 by the Commonwealth Attormys Act in 1980, 71 P.S. §732-502, no case has been found at any level of the Pennsylvania judiciary which has cited any constitutional or statutory authority for the appointment of a special prosecutor. 19. There was no necessity for the appointment ofa special prosecutor in this rnatter, since, according to publicly knom facts, several county District Attorneys had jurisdiction to both investigate any "1,eak" by the OAG and prosecute anycrime found to have been committed. Such couhty District Attorneys appear to i.nclude,at a minimum,those serv.ing Montgomery C6unty(site ofthe2009 grand jury),Dauphin County (site of the principal office of A torney General Kane and nurnerous other OAG officers and employees), and Philadelphia County (site of the Philadelphia Daily News). Reinforcing the avai.lability of at least those three counties, the Investigating Grand Jury Act by its own terms expresses a preference for county arand juries over multi.-county grand juries, unless "the investigation cannot be adequately performed by an investieating; arand jury under section 4543 (relating to convening county investigating grand jury). 42 Pa.C.S.A. §4544. 20. The argument that the appointment of a special prosecutor was'necessary since the Office of Attorney General 'would have had a conflict of interest in investigating itse.lf does not answer eithiCr: (I) the complete absence of statutory authority for such an appointment; or(2)the availability ofseveral alternative county District Attorneys to whom the investigation could have been referred. 21. The appointment of Special .Prosecutor Thornas E. Carluccio, and the proceedings of the Thirty:Fifth Statewide Investigating Grand Jury related to any matter submitted or actions taken by the Special Prosecutor, were and continue to be without legal authority, and null and void'ab initio. WHEREFORE,it is requested that the Supreme Court vacate the original Order appointing a Special Prosecutor in thi , matter under the applicable Notice of Submission or otherwise. It is further requested that the Supreme Court prohibit enforcement ofall subpoenas issued by the Special Prosecutor under the authority of the Supervisina Judge of the Grand Jury;'and further prohibit issuance of any report or presentment by the Thirty-Fifth Statekvide Investigating Grand Jury based on any inatter submitted to the grand jury by the Special Prosecutor. Respectfully submitted, 4. e/o."0-e76p,M Christopher P.Caputo, Esquire Caputo &'Mariotti, P.C. 730 Main Street. Moosic,PA -18507 Telephone: 570 342-9999 FAX: 570 457-1533 .Ernai I:cpcaputo@caputornariotti.com .PA Suprerne Court ID 73446 Attorneyfor David Peifer 9 STATEWIDE INVESTIGATING GRAND JURY SUBPOENA TO: David C. Peifer :SUPREME COURT OF PENNSYLVANIA 1 :NO.[176 M.D. MISC. DKT.2012 :MONTGOMERY COUNTY COMMON PLEAS 2644-2012 1. YOU are ORDERED to appear as a witness before the PENNSY1VANJA STATEWIDE INVESTIGATING GRAND JURY, 1000 Madilon Avenue (corner of Trooper and Van Buren Roads), Third Floor, Norristown, Pennsylvania on Monday, January 12, 2015 through Friday, January 16, 2015, at 8:00 O'clock A.M. to testify:and give evidence regarding alleged violations of the laws of the Commonwealth of Pennsylvania and to rem* until excused. Please report on Monday, January 12, 2015 1:00•NYI 2. YOU are further ORDERED: FAILURE to attend may cause a warrant to be issued for your arrest and will make you liable under penalty of law for contempt of Court. DATED: December 3, 2014 fa.4.&;z07 A? ea/I/sae/de? lion. William R. Carpenter Supervising Judge If you have any questions about your appearance, contact Special Prosecutor Thomas Carluccio, at 484.674.2899. Notice: 123 Subpoena: 1624 IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PENNSYLVANIA IN RE: : SVPREME COURT OF PENNSYLVANIA : NO.176 M.D. MISC.DKT.2012 THE THIRTY-FIFTH STATEWIDE : MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY : 2644-2012 NOTICE OF RIGHT OF COUNSEL 1. The Thirty-Fifth Statewide InVegigatino Grand Jury is conducting an investigation into possible violations of Pennsylvania Criminal Laws. 2. As a witness subpoenaed to appear, testify, and/or to produce documents, records or other evidence before the investigating grand jury, you are entitled to the assistance of counsel before, during and after your appearance before the investi- gating grand jury, including assistance duting the time when appearing before the grand jury. 3. If you desire the assistance of counsel and cannot afford an attorney, counsel will be appointed by the Supervising Judge for you. 4. If you wish. to consult with an attorney before your appearanée before the investigating grahd jury or if yOu wish to have an attorney with you during your appearance before the investiOting gind jury, or both, and you are able to afford your own attorney, you should make ar:rangements with that attorney as soon as possible so as not to delay your scheiduled appearance before the investigating grand jury. If you are unable to afford ypur own attorney, but wish the Supervising Judge to aPpoint an attorney with whorn you may consult and who can accompany you during your appearance before the )nyestigating grand jury, please contact the deputy attOrney general listed on the bottOm Of yodr*subpoena who will contact the Supervising Judge for the purpose of obtaining appointed counsel for you. 5. If you have any questions concerning the above or otherwise about your appearance, please contact the deputy attomey general listed on the bottom of your subpoena. COMMONWEALTH OF PENNSYLVANIA Statewide Iffilesti§atliii Grand Jury MEMORANDUM SUBJECT: Hotel/Transportation Arrangements TO: Grand Jury Witness FROM: Executive Secretary for the Grand jury • You have been subpoenaed to appcar in Norristown to testify before the Statewide Investigating Grand Jury. If you are in need of hotel accorripodations the evening before testimony, or bus transportation arrangements, you must contact the Deputy Attorney General listed at the bottom of your subpoena immediately. Air travel within the Utmidonwealth is ordinarily not permitted, unless authorized by the Deputy Attorney General. If yoU are in need of train tickets you must purchase your own coach class tickets and attach both incorning/outkoing stubs to your expense sheet for reimbursement. If you make any travel or hotel arrangements on'your own,please be advised that you will only be reimbursed for authorized expense§ at the Comdonwealth rate. With regard to hotel lodging, •the Componwealth will pay for only your room rate (Commonwealth's rate). All incidentals such as movies or telephone calls are at your expense and are not reimbursable on your cxpense sheet. Parking charges and rbom service charges are not included in the room payment made by the Office of Attorney Generl. You• will need to obtain receipts and attach to the expense sheet given to you upon arrival at Grand Jury for those charges to be reimburSed (minus any gratuities). Prior to arriving'at the Grand Jury on the morning you are scheduled to testify you must check out of your hotel room and pay for any extra chaiges. Once you arrive in the lobby of 1000 Madison Avenue,proceed to the grandjury reception area on the third floor or wait and a law enforcement officer from the Office ofAttorney General will meet you in the lobby. SUBPOENAED WITNESSES ONLYLNO GUESTS ARE PERMITTED ON THE PROPERTY—THEY WILL BE ASKED TO LE4VE! THIS INCLUDES THE PARKING LOT! Please folloW the law enforcement officer's instructions as to those allowed access fo the grand jury floor. Upon entering the Grand Jury suite you will be instrucited by the secretary at the desk to sign in and will be given an expense sheet You will also be given a stick'fr to wear that identifies you as a visitor. Place the sticker on your clOthing, either on your right.or 1,shoulder. In order for you to obtain full reimbursement, the following receipts will be flitted: Parking, turnpike tolls, and/oi taxi fare (gratuities will not be reimbursed). If you made your own tEavel or hotel arrangements in order to be reitnbursed you must supply a receipt indicatitng..a zero balanc.e ts dt!e and shows method of paytnent. Again, you will only be reimbursed at the ComtnonWeilth!s t'ate. SPECIAL NOTE: COMMONWEALTH OFPA EMpLOYEESAPPEARING BEFORE THE GRAND JURY IN THE COURSE OF THEIR EMPLOYMENT ARE TO MAKE THEIR TRAVEL AND HOTEL ARIUNGEMENTS AND SEEK REIMBURSEMENT THROUGH THEIR OWN STATE AGENCY, UNLESS OTHER ARRANGEMENTS ARE MADE HITE THE DEPUTY ATTORNEY GENERAL WHOSE NAMEAPPEARS AT THEBOTTOM OF YOUR SUBPOENA. PLEASE NOTE: NO SMOKING PERMITTED! EXH BIT A 1/6/2015 State AG.probed PhiIly NAACP leader Mondesire's finances 5 years ago - Philly.can philly0com Subscriber Services hJuuirrrl eggifts Home I News I Sports I Entertainment Business I Food I Lifestyle Health j Mdrketplace Collections State A.G. probed Philly NAACP leader Mondesire's finances15 years ago BY CHRIS BRENNAN, Daily News Staff Vritor brennacephillynews.com, 215-854-5973 POSTED; Juno 00 2014 STATE ATTORNEY General Kathleen Kane is ieviewing a 2009 grand-jury investigation of J. Whyatt Mondesirelformer head of the NAACP in Philadelphia, and one of his employees, according to documents obtained by the Daily News. Mondesire's employee, Harriet Garrett, and her aughter pleaded guilty t's Ike a p ayground for grown-ups. in 2010 to stealing nearly 5220,000 in state gra ,i.money for a job- ,13001C YOUR WINTER .etac,..k.natel training program. Garrett was sentenced to a mirmum of six months GETAWAY NOW1 v- a GrOC.,b in jail and ordered to pay restitution. Her daughter got 18 months' probation. Do You Have These? ei A 2009 memo written by then-Deputy Attorney general William Davis faggot, Cortxtorn Jr. says investigators 'uncovered what appeared to be questionable Craving* spending" of state money by Mondesire. Gloating ttcltyl It's like a Kane. a Democrat. is now trying to deterrnine what happened with the Mondesire investigation. Gov. Corbett, a Republ can, was the attomey Burning Ero playground for general at the time. Mandesire, 64, says he was never questioned apci denies any financial Lack of Motivation grown-ups. wrongdoing. Stolkog Orlo Constitution or Otantionj The 2009 Davis memo (retailed for his bosses what had been Belly Skin uncovered about Mondesire and Garrett, who wcirfked at the onO FLuturk Philadelphia Sunday Sun, a weekly newspaper Mondesire publishes. Learn More» A nonprofit called Next Generation Cornmunity development Corp., which is operated by Mondesire, held a state-g4emrnent grant for a jobs-training program in 2004 and 2005. but handed it off to Garrett, Ve.Rccouzrncnd who ran another nonprofit called Creative Urban Education Systems, or CUES, accordinsto the Davis memo. The Rev. Carl Fitchett to lead Philly NAACP Mondesire was listed as chairman of the CUES loarz1, the memo noted, while Garrett served as the treasurer for Next Generation's Apri 111, 2014 board. Questions over Philly NAACP finances Davis wrote his memo to then-Chief Deputy Attorney General Frartk January 24, 20r4 Fine and then-Senior Deputy Attorney General d Marc Costanzo. Board members from NAACP leader's Corbett. as attorney general, narned Fina fn 2006 to head a rtew public- nonprofit sue to see the books corruption unit and Costanzo to work on cases fOr the unit in the Jonoø, 2014 Philadelphia region. Fine and Costanzo nowwork in a similar unit torDistrici Attomey Seth Mondesire's friends-turned-foes get access to his books Juno 12, 2014 In the memo, Davis wrote: • Next Generation's bank-account records, obtained with a grand-jury subpoena. showed deposits of S1.3 million in go*,-ernment grants in a one-year period. lr Another 5521,000 in the account came frorn poli cal campaigns, rent Payments and the interrningling of money front die Sunday Sun, which Is owned and operated by Mondesire, the momosaid. • Next Generation paid $2.273 to the Philadelphia Club, a private and exclusive club in Center City. 'Next Generation spent 'tens of thousands," %wiling checks to pay Mondesire's American Express bill for -clothes, fftod, lodging gas and entertainment and a loan from Mellon Bank. There were also checks written to Mondesire and to 'cash." htto)articles.ohilly.com/2014-06-06fnews/50390468 memo-whvatt-mondesire-oeneration-communitv-develoornent-coro 114 r 11 1/6/2015 State AG.probed PNIly NAACP leader Mondesires finances 5 years ago - Philly.com • Next Generation wrote checks for $169,960 toliCharles and Oaudia a, Tasco and their company. C&C Construction.(Charles Tasco Is the son of City Councilwoman Marian Taste, a friend and political ally of Mondesires for rnore than three decades.) '1 • S6.431 in CUES money was given to Mondesire for what Garrett called consulting. That type of expense was not allowed, according to the rules of the grant. • In *various correspondence between Garrett ird Mondesire discovered by investigators, she questioned payments of more than 570,000 he rnade to Claudia Tasco. • CUES paid 51,099 for health insurance for MOndesire. • Davis wanted to question Mondesire - and povibly subpoena him for sworn grand-jury testimony - about Garrett. CUES and Next Generation. Never questioned kilondesire. a forrner Inquirer reporter who served as the top aide to the late U.S. Rep. Bill Gray. said no one from the A.G.'s Office ever questioned NM *We didn't WO any money for personal gain," Mondesire said. He said that he has not seen the A.G. Offices ocuments and twice declined an offer frorn the Daily News to review them. Mondesire said C&C Censtruction worked on foUr properties, including the NAACP headquarters and his newspaper office, where the Next Generation non-profit is also located. •We bought supplies with rny American Expres card for construction," he said. *They never asked me a single question back ii2O09. We rehabbed the buildings. We spent money buying stuff for the buildings. construction and paying off developers.* Gan-ett declined to comment about the investigations. Her daughter did not respond to requests for comment. The May 2010 news release about Garretes arrest featured Corbett laying out the charges. Corbett did not respond this week to two questi ns: Was he briefed on the Mondesire investigation and did he play a role in deciding what happened with that probe? Mondesire was suspended by the NAACP's natiorell headquarters in April after he feuded publicly with board members about the finances of the local chapter and Next Generatitšn. Those board members - Sid Booker, Donald "D hy. Bins and the Rev. Elisha Morris - also were suspended. Booker and Morris. who say they are still Next Generation board mernbers, are now asking a Common Pleas judge to force Mondesire to show them the nonprofit's financial records. As a fudge considers that request. Kanes staff r reviewing what became of the 2009 Mondesire probe. David Peifer. who heads the A.G.'s Bureau of Special Investigations, on March 21 interviewed Michael Miletto. the special agent who investigated Garrett and Mondesire, The Deity News obtained a transcript of that taped interview. Miletto told Peifer that he subpoenaed Next elenerations bank account, the transcript shows, 'Viten I did that, I found that there was a whole bunch of money that appeared to me to be donations to the NAACP. not (Mondesirej, and they were going into Next Generation's account and they were being used for(Mondesires)lifestyle - much of it: Miletto told Pellet. Miletto said he was taken off the case after Fine and Costanzo were told about the probe, according to the transcript. Milano said *criminal activity was just ignored' after that. He added that two accountants who had worked for Mondesire had provided taped statements, with one asking for fitununity and the other asking tor protection. Fine and Costanzo declined to comment about the Mondesire investigation, citing the secrecy of grand-jury proceedings. Davis. now in private practice, also declined to lomment, citing the same restriction. Mitetto, who still works for the A.G.'s office. alscideclined to comment. Peifer referred questions to Kane's comrnunicatiOns staff. J.J. Abbott, a spokesman for Kane, declined to comment. The Kane-Fina feud Fine and Costanzo have a complicated and controversial relationship with Kane. Kane criticized Corbett's tenure as attorney general when she ran for cdfice in 2012, specifically targeting the Penn State child- abuse scandal that sent former assistant football coach Jerry Sandusky to prison. Kane's staff Is now conducting an extensive review of that investigation. Fine led the Sandusky probe. Kane, on Feb, 5, issued a statement noting that per offices Sandusky review had been underway for one year, adding that delays in the undertaking *will be described in more detail when the report is rnade public." httrellarticles.ohillv.com/2014-06-06hews/50390468 1 memo-whvatt-Mondesire-oeneratiOn-CornmuniN-develooment-coro 2/4 1/6/2015 State A.G. probed Philly NAACP leader Mcodesire's finances 5 years ago- Philly.com A month later, the Inquirer reponed that Kane declined to pursue an investigation previously led by Fina and Costanza starting in 2010, that used Philadelphia lobbyist Tyron Ali'as a confidential informant to tape conversations with four Philly state representatives and a former Traffic Court judga On the tapes, the representatives and judge accept cash or gifts from Ali. Kane has said Fine droppoci 2,033 criminal courits against Ali, who had been charged with stealing S430,000 from a state program, 24 days before she was sworn into office. She said that 'extraordinarily lenient deal 'crippled the chance of this case succeeding in prosecution.' Fina, in a letter published by the Inquirer a week' her the first story ran, called on Kano to explain her decision. a The Inquirer also published a letter that day from Firm's boss, Williams, critical of Kane. Kane eventually tumed over the Ali case file 101i/24143ms, who is now examining whether charges can be brought against the four representatives and the Traffic Court judge, whOis currently on trial in an unrelated federal corruption case. On Twitter: @ChrisSrennagiN Slog: ph.ty5Fheiy0out,corn You May Like sponsored Lire...5 by Tabcota Please Don't Retire At 62. Here's Why. The Motley Fool Must-Have Products Being Sold for Next to Nothing OuiSies Social Security: How To Get S1,000 More a Month Kinvirnax Powerful Plastic: The 7 Best Credit Cards for People With Excellent Credit Next Advisor Daily An Extremely Brilliant Way To Pay Off Mortgage Bills.cront Kate Middleton's Bizarre Behavior at Event Gets Everyone Talking Stirring Daily More From The Web More From Philly.com Please Don't Retire At 62. Here's Why. • Man, 25, makes deal ln murder He was obsessed (The Malay Fool) with his coworker, authorities said. 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FEATURED A RTICLES htto://artides.ohillv.com/2014-05.06/news/50390468 1 memo-whvatt-mondesire-oeneration-communitv-develooment-ooro 3/4 EXHIBIT B 1/6e2015 Montco lawyer leading inquiry into whether'keno's office leaked grand jury information - Philly.com phillyecom Subscriber Services I nanQuirTT l LEYIBS liome I News I Sports I Entertainment I Business I Food I Lifestyle I Health I Marketplace - 4 Collections • Special Prosecutor Montco lawyer leading inquiyy into 0 0_ i whether Kane's office leaked grand Tweet t jury information How to GetRid of Dark S (N.) Watch.Shocking Presentarion We Recommend By Angola Couloumbis and Craig R. McCoy inquirer Staff Writers POSTED: September 04.2014 Kane denies bid to release controversial e-mails A veteran lawyer frorn Montgomery County is the special prosecutor SeXerrIX1r 20t4 heading the inquiry into whether state Attomey General Kathleen G. Kane's office leaked grand jury inforrnation in anteffort to discredit her Kane to decide wbether to release state critics, The Inquirer has teamed. workers racy e-rnails Thomas E. Cartuccio, a criminal defense lawyer'in Plymouth Meeting stfpfamber 21, 20t4 GALLERY: and former prosecutor in Delaware, was appointid over the summer by Thomas E. Castillejabs Kane on-gravity of inquiry Carlucclo is a a Montgomery County judge to explore how secret records became defense public this year about a 2009 investigation by 14 Attorney Generars deem/ter r5, 2014 Lawyer._ Office involving Philadelphia political activist J. rhyatt Mondesire, according to several people familiar with the matter. Special prosecutor probes Pa. Attorney General's Office No charges were brought against Monctesire in tile case. The September 2014 investigation, details of which appeared in a Jun,story in the Philadelphia Daily News, took place before Kane became attorney general. Find ill'ore Stories About Caducclo did not respond to messages left by phone and o-rnall Tuesday. Renee Martin, Kane's Poling director of communications, Special Prosecutor said the office would have no comment. Kane The Inquirer first reported news of the special preseculors appointment on Sunday. Sources said ¡nvestlgafors in the inquiry have Issued subpoenas to Kane's office and others. , Carluccio was appointed by Judge Williarn Carpenter, the supervising grand jury judge in the eastem pan of the state, the sources said. Both men are Republicans. Kane is a Democrat. httoi/articles.ohillv.com/2014-09-04/news/53527771 1 soecial-orosecutor-attornevioeneral-kathleen-o-kane 1/3 1/612015 Montco lawyer leading inquiry into whether Kanes office leaked grand jury information - Philly.com Though there have been past leak inquiries, thil appears to be first 0YOUR REAL ESTATE PRO time the state attorney general or top staffers in the office have come under scrutiny. Such an inquiry typically require's the approval of the chief justice of the Pennsylvania Supreme Coult, according to a Kevin spokesman for the Administrative Office of Pennsylvania Courts. Weachter A person v.to violates grand jury secrecy rules ray be found guilty of • Your Local Expert contempt of court and sentenced to up to six months in prison. for Cartuccio, 57, worked as a state deputy attomey general in Delaware • Salunga-landisvdie, before switching sides to work as a defense attdmey in Pennsylvania. PA His wife. Carolyn Tometta Carluccio, is a judge.iA Republican, she joined Carpenter on the Montgomery County Cornmon Pleas bench in Saltinga-Landisville, PA 2010. tztlitqv, 717-278-6496 The leak to the Daily News involved a 2009 investigation by former ARLO JkavipWce! Chief Deputy Attorney General Frank G. Fine and onetime Senior Deputy Attorney General E. Marc Costanzo. Fi ,who handled the offices highest-profile criminal cases, left his psltion shortly after Kane took office. Heated battle Fina and Kane have been locked in a heated btle over the last two years on how certain cases were handled. Kane, for instance. brought in a former federal pirosecutor after she was elected to review Fines prosecution of former Penn State football coach Jerry Sandusky on child sex-abeie charges. During her campaign for office, Kane said the Sandusky probe might have been delayed for political reasons. The independent review found no evidence of that. And for the last six months. Kane has faced crycism for shutting down a sting operation launched by Fine that sources and investigative docurnents say captured five Philadelphia Democrats, including four state legislators. on tape accepting money or gifts. As criticism over the sting case mounted, the Philadelphia Daily News reported in eady June that Kane was conducting a review of Fines handing of a 2009 investigation into Mondesires finances. things. a secret investigative memo summarizing the status of the Mondestre The newspapers story discussed, among otheri probe. Mondesire, the forrner president of the Philadel ia NAACP. has denied any wrongdoing. Explicit e-mails The leak investigation has been complicated ba separate but intense legal fight over the exchange of sexually expficit e-mails among forrner and current state officials. The e-mails have become an issue because some Kane critics argue that Kanes office is using the threat of their release as a way to silence criticism of her. sources have told The Inquirer. The messages were discovered during Kane's review of the Sandusky investigation, which involved going through thousands of documents. The Inquirer has reported that the e-rnails were Shared on state computers and sometirnes through government e-mail accounts. They are said to have contained pornographic images, jokes, cartoons, and other private messages. Though not all of the recipients are known, some of the material circulated among scores of officials, from homicide investigators in the Attorney General's Office to state proseators and other state officials, including top Pennsylvania jurists, The Inquirer has reported. While Judge Carpenter in Montgomery County iS overseeing the leak probe, a different judge. Norman A. Krumenacher 3d, of Cambria County, has jurisdiction over the e-aiail issue. Several news organizations, including The Inquirer, have put in right-to-know requests for the e-mails, But Krumenacher has ordered a stay on the release of the e-mails. He oversees the grand jury in Westem Pennsyllania as well as the legal issues involving Kane's review of the Sandusky prosecution. The e-rnails in questions were unearthed by computer experts as part of that review. acoulournbis©phillynews.com 717-787-5934 @AngelasInk You May Like SConsnreci Links by Taboda Social Security: How To Get 91;000 More a Month Nov/sr:lax Please Don't Retire At 62. Here's Why. mu motley Fool Must-Have Products Being Sold for Next to Nothing OutEdds htteRarticles.ohiliv.com/2014-09-04/news/53527771 1 snecial-nrosecutcr-attornev-oeneral-kathleen-o-kane 2/3 EXHIBIT C 1/6/2015 Pennsylvania AG Kane grand jury may miss New Year's Eve deadline I TribLIVE Juot ParKV7 3fC.tlp Subscribe Place Ad Guy Trib PT1010, Jinn Homes Seatcb Autos ClaspMods SportsUP Contests TR BLIVE 1 Politics Formtr Mimi= and.:pogo=Le Searchl a=t., Polucs ts.a.• FL-siza 10..netytcs ra:hatrits Headlines Selena Zito Steelton Resubs Ws SHOCKING! Ellen LieFI Hockey Ellen has been exposed tor tricklrfg the world. Time! She has lied tor years! a it Larger text Smaller teM l Otter Photo Reprints Pennsylvania AG Kane grand jury may miss New Year's Eve deadline You Need lt. We Got It. Place Your A Attorney General Kathleen Kane speaks during a news conference Friday, June 272O14. at the Capitol in Classified Harrisburg. Pa. r. ay Brad Bumsied Ad Here monday,Dec 78, mud,I2t am. HARRISBURG — There's nothing magical about the New rDZIBIT?la ir1 Getit rfiiht. Now. Yearb Eve deactlino Icr a gland jury to finish its work examining whether Attorney General Kathleen Kane violated grand Jury Secrecy by leaking documents to a Philadelphia VIDEO Noto Vida011 I newspaper, and tho outcorno could take weeks or months to be revealed,(egad experts sald. Several poosde close to parties Involved In the Investigation suggest tho grand jury could continue to meet tivough mid- January. 1,ive dont discuss the grand fury activities. It Is not pudic." Kone's spokesitornan, Renee Martin, said. Kanes laviyers have said she did nothing wrong and committed no crime. Even if resdution of the matter Is imminent, es rtertS saki, the result may not be. Mimes no way to anticipate the timeline,* said longtime criminal defense attorney Milian; C Costopoulous of Lemoyne in Cumberland County. Judges sometimes seal grand My presentments. AM the grand Jury's recommendations could bo referred to a district attorney, who may deckle that further investigation is necessary. The results could range from clearing Kane, or making no report directing Kano to explain at a hearing why she should not be held in contempt of coutt or recommending criminal charges such as perjury cc obstruction of lestice. If the grand Jury linds no wrongdoing or need for a critical roan, II could Issue a report specifically clearing the parties Involved, Costopotious said. *The range cd possibilities is fairly broad, said Bruce Antkowiak, a Former federal prosecutor end law protessor al Sr, kirricrvv (Wrenn in Unity, Click Covers for Deals htto://triblive.contooliticsfociiticalheacIlines/746.1612-74taranci-jurv-kane#auz3031Ts62Y 1/4 1/6/2015 Pennsylvarila AG Kane grand jur4lay rniSs. New Years Eve deadinei TribLIVE Kane teStified laSt month before the grand jtrry in Moragorpoy County and acknowledged that she knew het office molded the Philaddphia Da$y News Information from 62009 case about a man never charged vrith a crime. posalbly to embarrass a former prosecutor with whon Kane is feuding. Kane at Oarks Summit near Scranton Is the first woman and first Democrat elected as attorney general. She said she believed the material leaked was not covered by grand jury Daily Photo Galleries secrecy, The Investigation of a statewide law ertforcemern official by a court-appointed special prosecutor is unustml, if not unprecedented, exports said, PorinsyNania Supreme Court Chief Justice Ronald D. Castillo, who must retire Wednesday because rto is 70,appointed as prosecutor Thomas Canuccio, a Norristown attorney sdected by Montgomery County Judge 5 DAYS LEFT Writlam Camenter. Castale said there's precedent for cant-appointed special pmsecutors to hande grand fury leaks. gRviz But since the state's first elected attorney general took office Staple.s ati. 5, 2I5- in 1980, none has undergone such an inquiry. said G. Terry Madonna;n politicsd science professor at Franklin 8 Marshall Politics Phott Galleries College in Lancaster. Former Attorney General Ernie Preate, a Scranton Republican, resigned in 1995 uoto Pleading guilty to a federal ma$ fraud charga With grand fury secrecy, scene 'assumptions must be made" to analyze the Investigation, said former Mcintgornery CoUnty District Attorney Bruce Castor. a Republican county commissioner. -The fest assumption I make is that the special prosecutor has no enforcement authority over the laws el the commonwealth: Castor said. 'Anything Iha special prosecutor uncovers could be Inadmissible If it was gathered by a persen without the G P iuctc st ere eAoected on authority to do so.' in Congress Thal may result In a referral of arty findinss to a district Manley, who may want to'reinvestigate' by talking with witnesses end reviewing documents. Castor sa!d. Castor and wens bdieve the coun has authority to decide ccotempt of court, which they consider an "offense against the coun:The penalty lor contempt in a grand Jury teak is up to six month; in prison. Therde inherent authority for the court to investigate a leak when 'there Is a conflict of interest: Antkowiak sold. Kane 'could cenalnly not Investigate heisefl: If there's no solution. a potentially serious criminal act goes urvaadressed; Arrtkottriak said. Kane has said sho imends to seek re-election in 2016. But a critical grand jury repeal could be Very nasty and affect her career, Castor said. NcShing prevents the transfm of the grand jurys wo4 to anothei grand jury, 11 needed, though Mat could cause legal obstacles and delays, he said. Brad Burnsted is Trier Total Modia's state Capitol reporter. Reach him at 717-787-1405 or bbunistedStribeweb.corn. jp Subscribe todayi Click here for our subscription offers. [r Follow galiumated_Trib 1 Follow cLTrlbLive by AG-Vind 'ArttiihirEttielNdti" ' Newsmax John Bolton Mulls Leaving Fos for 2016 Bid John Yoo: NKorea 'Most Murderous Regirno, Obarna Not Doing Enough Is This Replacing Makeup'? Millions Here's the ugly truth about blood • Rep. 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S62Y 2/4 EXHIBIT D 1/6 , 2015 Stakes are high fey Kane at gram!jury rneeting I I T—L.:&_7,J,0 1:419 ' 11-1— ' 11 i l n ° Philadelphia, PA I Solaris Forecast phitlyecom 114 l News ! Sports I Eptertainment I Business 'I Opinion I Food 1 Lifestyle 1 Health ! More BREAKING NEWS VIDEO VENCESIBLOGS PHILADELPHIA T.4EW3 NEW JERSEY POUTICS EDUCATION OBITUARIES NANOMWOR1.0 WEATHER TRAFFIC LOTTERY 1 —' Stakes are high for Kane at grand AdverUse:inent jury meeting V Obama's FDA approves 7 deadly drugs for sale to Seniors. Are you at risk7 The secret therapy President Reagan used to beat cancer - No theme or drugs.] 40 Hottest Female Celebrity Bodies of Ali TM» Other COUM4011 hay* banned them,but they may still be in your refrigerator right now. Biggest Cheerleader Wardrobe Fails! Kris Jenner Goes On Date Hight With New Boyfriend Corey Gamble in los Angeles nrv:rio.:7".canoc..103its o ram MO: otadrnssar,c'ekbtr-o 510it:rch novo co,rcct trecrtODirg,5hç card Oa¿tpJy *as rL LSZNAEL &WAXY I Sol Angola Deuloumbis and Craig R. McCoy, %/Nor Staff Writers Latest News Video POSTED:&today. Januaty 4, l3 108 AM Ottihiguirer Over the last year. Pennsylvania Attomey General Kathleen GALLERY:Stakes are G. Kane has stumbled from one professionally damaging for Kane at grand jury meeting matter to another. Now she faces another obstacle - and potentially the biggest yet. Eatly this year, a statewide grand jury meeting in Norristown is expecled to decide whether the onetime rising political star violated prosecutorial rules by leaking 4cret information to embarrass her enemies. For Kane, the stakes are high: The grand jury could go so far as to recommend criminal charges, putting her in the awkward position of defending hersetf against allegations that Moa Viewed Nitteg storiev she broke the law while serving as the slate's top enforcer of law, Bolaris: Snow for Tuesday morning httaihvww,ohillv,com/ohillv/news/cditics/20150104 Stakes are hiah for Kane al arand iurv meeting html 1/10 102015 Stakes are high ffx Kane at grand jury meeing Even supporters acknowledge that thepext few weeks could mark a make-or-break moment in her &veer. The risks range frorn a written rebuke, to being found irtcontempt of court, to a criminal charge of obstructing justice 5 charged in killing Te next few weeks will be a tuming ;Tint for her; said John near playground Morganelli, the Democratic district attorrey in Northarnpton County in the Lehigh Valley, "If it ends in a conternpl citation by a judge, it may not be devastating. BLit if there are crimes- Ethicists question code violations, that could be problematic." Christie's free tickets Kane,a Democrat,has acknowledged pat her office released information about a grand ji.try case runtby her Republican predecessors. But she has contended that the information Frein ordered to was not confidential grand jury material,. stand trial She has also strongly suggested that the leak investigation is aimed at destroying her politically. I. 4 new millionaires "I am fighting for an end to abuse of the'criminal justice thanks to Pa. lottery system: Kane said in November, as she was heading in to the grand jury to testify. if this can be +ne to me as attomey general, the chief taw enforcement officer of the fifth-largest state in the country, I am sickened to thInk what can and may be done to regular, good people.' e=111 The leak inquiry was authorized in the limmer by former START STRONG. 111....mat state Supreme Court Chief Justice Rontid D. Castille, a .te4 Tra eel Depts Republican. The grand jury meets in sefet. and,in an HOVER'FOR kovee Foe CIRCULAR clacutAa unusual move, witnesses before the panel have been ordered not to discuss their testimony publicly, according to two Watmart people familiar with the matter. F000 WILMA - DOLLAR GENERAL The Inquirer has teamed that a numberf former high-ranking officials in Kane's administration have testified, including her S 339 E. up — London: 4- former first deputy, Philadelphia lawyer Adrian King, and her * :11 .arga 13 -- * V ma Tri r Escape *nous, Etroaktasts8 Air onetime chief operating officer, David Tyler. Howard Bruce • HOVER FOR HOVER FOR CIRCULAR • • ' ' -CIRCU(.AR) Sao a0 warel(tante • Klein, the attomey for Linda Dale Hotta, another former top Kane aide, declined comment. FOODIRLION mum coma) MID ITV MA/IWO° `0=a-traelL eta crr*-1,--1 In the main, people familiar with the motìer say, the grand jury is examining how intemal documents frarn a 2009 grand jury Shop Team Goar investigation led by the Attomey General's Office ended up being cited in a Philadelphia Daily Ne 'story this past June. Pealartelpnia Eagles , 10Ornrn Glass MU • It's your choice: Ornament AIM Marabou •Inlennatioa Technology Expanded inquiry ® Electronics Technoloa The investigation involved alleged financial improprieties by J. 0 Business Whyatt Mondesire, the former president the Philadelphia ▪ Caiminzi Justice NAACP. It was overseen by then-state prosecutor Frank G. 0 Health Sciences MD E Fine, with whom Kane has been locked tor months in a bitter ® Drafting and Design S10.99(26% WO and tangled dispute over how certain cases were handled. Etuy Now Isa on Phiny.emn prey nnat The grand jury has expanded its inquiry o examine Kane's BuSINEss; decision in the fall to release the narnes of eight men who Organic market planned for made- traded pomographic e-mails on state time,The Inquirer has over East Market learned. All eight had ties to Fina. Kane's political star began to dim last yeiar after The Inquirer HEALTH: reported ',fiat she had shut down a sting investigation 1 o healthy food trends to expect in launched by Fina, even though the undercover operation had 2015 caught public officials on tape accepting Cash. To some, the 11111111=Nlealle titto://vAvw,ohilly.com/ohillyinews/oolitics/20150104 Stakes are hilt) for Kane at &and iurv meetinohtml 2/10 1/612015 Stakes are high fr Kane at grand jury meeting story in the Daily News seemed designed to strike a counterblow at Fina. In a mirror image of the criticism Kane has sustained over the sting, the newspaper article suggested that Fina had failed to SPORTS: V 9 teams on Howard's aggressively pursue the Mondesire matter. trade list Fina was among scores of current or fo er staffers in the Attorney Generars Office who exchanged sexually explicit e- mails, and Kane has been intent on naming him in connection ENT F.RT AMMEMT: A with that, as she did with the eight officials, The Inquirer has Kevin Hart on Sony Mier-hack:'It's not reported. that serious to rne' But sources say the judge supervising the leak inquiry issued an order several menths ago effectivelyibarring Kane from FOOD: citing Fina's name publicly. The judge Id so after Fine and End of line for others argued that Kane was using the threat of releasing the Geechee Girl Rice Cafe e-mails to intimidate them. JOSS: A year of controversy to low-stressjobs that pay around After a landslide victory in 2012 that made her the first woman $tooK a year and first Democrat elected attomey geral in the state, Kane swiftly built a national reputation in her first year in office for her stands in favor of gay rights and gu(l control. Sla y Cnnuccied Got tho latest PhiAy.cran Dagy Honanos nowslonor Her second year, though, was marked t:iy controversy over Upavrod to your email. Sten up nowl the sting, her retractions of public statements, and repeated Eitt9r 000/Øðe.8S3Io dr up V shake-ups of her staff. Amid that, she could not point to any Atm*a phty.com rt 0 vcs 0 No high-prof-de convictions to change the subject: The ^-, Pennsylvania Tumpike pay-to-play corrtiption case she announcer:I with fanfare early in office fi2Jed late last year without any defendant receiving a jail s ntence. While admitting the disclosure of information to the Daily News, Kane - who declined comment kir this article - has said f the material was passed on In a way that did not violate statutory or case law regarding grand jury secrecy." Her contention: that Pennsylvania law hoas no statute that binds an attomey general to grand jury secrecy. Indeed, the state law establishing investigative grand juries makes no mention of the attomey general. Rather;tit imposes secrecy rules on the participants in the jury room, and it names them - "juror, attorney, interpreter, stenographer," adding: "All such persons shall be sworn to secrecy, and shall be in contempt of court if they reveal any information which they are sworn to keep secret." One of Kane's lawyers, Lanny J. Davispas noted that when the Mondesire grand jury was in session in 2009 - and participants swore secrecy oaths - Kane was a stay-at-home mom. "It is our legal opinion that there has never been a case dedded where a succeeding attorney general has been accused of violating an oath that she never took," Davis said in an interview late last year. Beyond that, Kane contends that she attithorized only a very limited disclosure of information to the Daily News: a docurnent related to a review she launched last March htto://www.ohillv.corn/ohillvtnewskolitics/20150104 Stakes are hiah fa Kane arand iurv meetina.htrn1 3/10 F 1/6/2015 Stakes are high for Kane at grand jury meeting exarnining how Fine dealt with the Mondesire allegations in 2009, Mondesire, who has denied any wrongdoing, was not charged in the inquiry, which ended years ago. Overzealous staff? Yet the article also quoted heavity fromla 2009 intemal memo detailing allegations against Mondesirei!Kane maintains she has no idea how that particular document got to the newspaper. In effect. she is suggesting1 that perhaps overzealous members of her staff may ave erred in putting together the infprrnation given to the neWspaper. Finally, Kanes allies are questioning the very legality of the investigation, saying no explicit statute permits such a leak investigation. Castille has rejected this argument, citing among other things a state law that gives the high court the broad power to "cause right and justice to be done.* Nor are such leak inquiries unpreceden ed. The high court has authorized them at least twice belle, In a 2007 case, the investigation led to the jailing of an investigator from the Attomey Generars Office. G. Terry Madonna, the political analyst,4Says any finding that Kane broke the law would be devastating to her image. Her post ls closely tied to issues of character and integrity. Madonna said. 'You are innocent until proven guilty,* he said. Tut she is the states top law enforcement officer. Anyray you frame it, she is going to be in an extraordinarily tenu us position." acaattuarrytH-.0,tato 7%I.07591a gaargaban) Angela Cuukanahis and Craig R.MeCoy ImpsirerSuffWthos COmMENTS Raping, a Pam*slam • Share this story with friends win) wuniti like. it. we recommend whIcn of your friends would enjoy this story. MORE FROM THE WEB MORE FROM P)41LLY.COM Hillary Clinton: See this incredibly Reid suffers broken rib ones in detailed map of where Americans would accident not vote her for President in 2016. (fSIdaWard GOP legislators thwart bids to expand Medicaid Surprising Titanic Mystery Solved with DNA Testing (Anrasay) Sarah Patin photos of sort stepping on dog trigger online outrage Former president granted a month's parole(raiad &Van Rovfon) Could be hack to pay for North Korea Chinese fugitives still at large in US(Crane Who would benefit if Clinton decides not Wrimfd to run? Why This App Is Quickly Replacing Universities competing for Obama library Human Financial Advisors (Bustams exsidc-r) site Jailed and rich: Where does their cash go?(9arAvvedge) httoi/www.ohillv.comIohilly/news/oolitics/20150104 Stakes are filch for Kane at erand iurv meetino.html 4/10 CERTIFICATk OF SERVICE Pursuant to Pa.R.A.P. 121 and In, the undersigned certifies that a true and correct copy ofthe foregoing document was served on the individual listed below on the date indicated by electronic transmission a id first class United States rnail. Thomas E. Carluccio, Esq. Special Prose4tor :1.000 Madison. rAvenue -Norristown,Pi 19403 -E-mail: mai1to:tornc3 corncastnet Telephone:(484) 674-2899 January 6. 2014 0724 G.& peeilAe) ChristoPher:P. Caputo,Esquire Fetterhoff and Caputo & Mariotti,P.C. Moosic, PA..18507 Telephone: 570 342-9999 FAX: 570 457-1533 E-mail:cpcaputo@caputornariotti.corn PA Supreme Court ID 73446 Attorneyfor.David Peifer 2a/5-- Filed in Supreme Court JAN 6 Z014 Middle UNSEALED PER ORDER OF THE COURT DATED AUGUST 26, 2015 IN THE SUPREME CO RT OF PENNSYLVANIA IN RE: : SUPREME COURT No. : GRAND JURY DOCKETS: SUPR.EME COURT OF PA SPECIAL PROSECUTOR, No. 176 MD 2012 THIRTY-FIFTH STATEWIDE • MONTGOMERY CO. COURT INVESTIGATING GRAND JURY : No. 2644 MD 2012 Petition of: D.P. EMERGENCY APPLICATION FOR LEAVE TO FILE ÓRIGINAL PROCESS AND NOW,this 6th day ofJanuary 2015,comes David Peifer, by counsel, Christopher P. Caputo, Esq., and present the following: I. This Emergency Application For Leave To File Original Process is filed pursuant to Pa.R.A.P. 3307. 2. The accompanying Ernergeî cy Application For Extraordinary Relief invokes the jurisdiction of the Suprerne Court under both 42 Pa.C.S.A. §721(3) (original jurisdiction ofthe Supreme Court in quo warranto), and 42 Pa.C.S.A. §726 Received in Supreme court JAN 6 2015 Middle (extraordinaiy or King's'Bench jurisdictibn). 3. 'En reference to the jurisdiction Cif the Supreme Court under 42 Pa.C.S.A. §721(3) only, leave to file the accoMpanying Emergency Application For Extraordinary Relief is requested on the ground that the Special Prosecutor in this matter was authorized by the Supreme Cobrt, and such authorization would therefore not be subject to review by the Supervising Judge of the Grand jury or any lesser court. While all documents filed to the grand jury dockets in this matter are under seal, it has been publicly -reported that Supervising Judge of the Grand Jury William R. Carpenter issued the Order appointing 4ie Special Prosecutor in this case, pursuant to a specific grant of authority by the Supreme Court to make such appointment. 4. The accompanying Emergenc Application For Extraordinary Relief has also been filed pursuant to King's Bench jurisdiction under 42 Pa.C.S.A. §726, and is not subject to Pa.R.A.P. 3307. WHEREFO.RE, it is requested thav leave be granted under Pa.R.A.P. 3307 to include within the accompanying Emerg ncy Application For Extraordinary Rel.ief, a concurrent basis for relief under 42 Pa.C.S.A. §721(3). Respectfully submitted, P Christopher P. Caputo, Esq. Caputo & Mariotti, P.C. 730 Main Street Moosic, PA i 8507 Telephone: 570 342-9999 FAX: 570 457-1533 Email:cpcaputo@caputomariotti.com PA Supreme Court ID 73446 Attorneyfor David Pei.* CERTIFICATE OF SERVICE Pursuant to Pa.R.A.P. 121 and 1.4 the undersigned certifies that a true and correct copy ofthe foregoing docurnent Was served on the individual listed below on the date indicated by electronic transmission and first class'United States mail. Thomas E. Carltuccio,.Esq. Special Prosecutor 1000 Madison Avenue Norristown, P.A, 19403 E-mail: mailto: ornc3@corncast.net Telephone:(484)674-2899 January 6, 2014 elowt, P Christopher P. Caputo, aci. Caputo & Mariotti, P.C. 730 Main Street Moosic, PA 18507 Telephone: 570 342-9999 FAX: 570 457-1533 E-mail: cpcaputo@caputomariotti.com PA Supreme Court ID 73446 Attorneyfor David Peifèr Filed in Supme Court JAN 6 2014 Middle UNSEALED PER IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE COURT DATED AUGUST 26, 2015 IN RE: : SUPREME COURT No. : G'.RAND JU.RY DOCKETS: SUPREME COURT OF PA SPECIAL PROSECUTOR, • No. 176 MD 2012 THIRTY-FIFTH STAT.EW1DE MONTGO.MERY CO.COURT INVESTIGATING GRAND JURY : No. 2644 MD 2012 EMERGENCY APP ICATION FOR STAY OF GRAND JURY:PROCEEDINGS AND NOW,this 6th day ofJanuary 01 5,comes David Peifer, by counsel, Christopher P. Caputo, Esq., and present the following: 1. This Emergency Application F r Stay of Grand jury Proceedings is filed pursuant to Pa.R.A.P. 3309(d)and Chapt r 17. 2. The Applicant has been subpo naed by the Special Prosecutor to appear and testify before the Thirty-Fifth Statewide Investigating Grand Jury on January 12, 201,5. Received in Supreme Court JAN 6 2015 Middle 3. Orderly review by the Suprene Court of the companion Emergency Application For Leave To File Origina4 Process and 'Emergency Application For Extraordinary Relief cannot occur prior to January 12, 2015. 4. The appointment of the Special ,Prosecutor in this matter was without any authority under Pennsylvania law, as Set forth in the companion Emergency Application For Extraordinary Relief. The Applicant has accordingly presented a meritorious Application. 5. In the absence ofa stay,the Applicant's opportunity to secure relief, or even consideration of any entitlement to relief, will be frustrated, and he will suffer the immediate and irreparable harm of being compelled to testify pursuant to subpoena issued by a Special Prosecutor appointed without lawful authority. 6. Determination by the Supreme Court ofthe legality of the office of Special Prosecutor and any legal authority for the appointment of the Special Prosecutor is a matter of immediate and substantial public interest. WHEREFORE, it is requested that the Supreme Court issue a stay of the proceedings of the Thirty-Fifth Statewide Investigatina Grand Jury as related to the matters being presented to that Grand Jury by the Special Prosecutor and described in the companion Emergency Application For Extraordinary Relief. Respectfully submitted, fuw--LopluA P Christopher P. Caputo,'Esquire Caputo & Mariotti, P.C. V30 Main Street Moosic, PA 18507 'elephone: 570 342-9999 FAX: 570 457-1533 Email: cpcaputoQcaputornariotti.corn PA Supreme Court ID 73446 4Ittorneyfbr David Peifer CERTIFICATE OF SERVICE Pursuant to Pa.R.A.P. 121 and 122, the undersianed certifies that a true and correct copy ofthe foregoing document was served on the individual listed below on the date indicated by electronic transmission and first class'United States mail. Thomas E. Carttuccio, Esq. Special Prosecuttor 1000 Madison Avenue Norristown,PA! 19403 E-mail: mailto:torm3 comcast.net Telephone:(484) 674-2899 January 6, 2014 -leaLaA, Christopher P. Caputo, Esq. Caputo & Mariotti,P.C. 730 Main Street Moosic,'PA 18507 Telephone: 570 342-9999 FAX: 570 457-1533 Ernail:cpcaputo@caputomariotti.com PA Supreme Court ID 73446 Attorneyfor David Peifer Filed in Supreme Court JAN 9 2015 IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT Mid& UNSEALED PER ORDER OF THE IN RE: : SUPREME COURT OF PENNSYLVANIA COURT DATED : NO. 1 MM 2015 THE THIRTY-FIFTH STATEWIDE AUGUST 26, 2015 : MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY : M.D. 2644-2012 SEALING ORDER AND NOW, this 9th day of January, 2015, it is hereby ORDERED, that the attached Opinion of January 9, 2015 be filed under seal with the Supreme Court of Pennsylvania until further Order of this Court. BY THE COURT: WILLIAM R. CARPENTER, J. Supervising Judge Received in Supreme Court JAN 9 2015 idols FILED UNDER SEAL IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: SUPREME COURT DOCKET THE THIRTY-FIFTH STATEWIDE NO. 1 MM 2015 INVESTIGATING GRAND JURY moNrwmpRy COUNTY COMMON PLEAS NO, 2644-2012 OPINION CARPENTER J. JANUARY 9, 2015 FACTUAL AND PROCEDURAL HISTORY David Peifer, Special Agent in Charge, Bureau of Special Investigations, an employee of the Pennsylvania Office of the Attorney General(OAG"), was subpoenaed to testify before the Thirty-Fifth Statewide Investigating Grand Jury on January 12, 2015. In response to this subpoena, on January 6, 2015, Special Agent Peifer filed the Emergency Application for Extraordinary Relief("Emergency Application") currently before the Pennsylvania Supreme Court. Therein, he seeks to stay the Thirty-Fifth Statewidp Investigating Grand Jury proceedings based upon his allegation that the appointment of the Special Prosecutor, Thomas E. Carluccio, by me, as the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury, was improper. In his Emergency Application, Special Agent Peifer seeks to vacate the order appointing Special Prosecutor Carluccio, prohibit enforcement of all subpoenas issued by the Special Prosecutor and further prohibit issuance of any report or presentment by the Thirty-Fifth Statewide Investigating Grand Jury. See, Motion for Extraordinary Relief 1/6/15, Wherefore clause, p. 9. Special Agent Peifer's Emergency Application should be denied based upon his lack of standing; and even if he does have standing, his Emergency Application should be denied because he has waived his opposition to the appointment of Special Prosecutor Carluccio. Finally, were the Pennsylvania Supreme Court reach the merits of his Emergency Application it lacks merit because a supervising judge of a statewide grand jury has the inherent authority to appoint a special prosecutor. This Emergency Application was never served upon me. I had no knowledge of it until I was made aware of it by the Pennsylvania Supreme Court. Not only was the basic and common curtesy of properly serving this Emergency Application upon me ignored; but also, counsel never presented any aspect of this matter to me for adjudication. This matter should have come before me as a motion to quash a grand jury subpoena. Perhaps counsel was trying to make an end run around the possibility that such a motion would be denied, and would not be presently appealable as an order denying a motion to quash is considered interlocutory. In re Dauphin County Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929(Pa. 2007), the Pennsylvania Supreme Court discussed the interlocutory nature of an order denying a motion to quash, and the proper procedure for challenging such an order as follows: As a general rule, an order denying a motion to quash a subpoena is considered interlocutory and not subject to immediate appeal. One seeking to challenge the propriety of a grand jury subpoena must generally choose between complying with the subpoena and litigating the validity through contempt proceedings. Requiring the choice between compliance with the subpoena and the possibility of contempt preserves the interest in expeditious grand jury proceedings. [Wje have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Further, the approach facilitates development of an 2 adequate factual record in support of the reasons supporting resistance to the subpoena. td., 943 A.2d 929, 934 - 935(Pa. 2007)(internal quotation marks and citations omitted). By filing this Emergency Application rather than a motion to quash, Special Agent Peifer is trying to bypass these concerns, and get directly in front of the Pennsylvania Supreme Court without following the proper procedure, and arguably without the proper standing. By way of a brief background, on May 29, 2014, I, as Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury, found that there were "reasonable grounds to believe a further more substantive investigation" into allegations that statewide Grand Jury secrecy may have been compromised was warranted, and on that date I appointed Special Prosecutor Carluccio. The May 29, 2014 Order followed an in camera proceeding which established that there was a leak of secret Grand Jury information and that the leak most likely came from the Office of the Attorney General. Accordingly, I determined that the appointment of a Special Prosecutor was necessary and appropriate. Special Agent Peifer was served with a subpoena to appear and testify on January 12, 2015, before the Thirty-Fifth Statewide Grand Jury. On January 6, 2015, Special Agent Peifer filed the Emergency Application currently before the Pennsylvania Supreme Court. ISSUES I. Whether Special Agent Peifer lacks standing to bring this action. II. Whether Special Agent Peifer has waived an opposition to the appointment of Special Prosecutor Carluccio. III. Whether the appointment of Special Prosecutor Carluccio was proper. IV. Whether an unjust result will occur if the requested relief is granted. 3 DISCUSSION Special Agent Peifer lacks standing to bring this action. Special Agent Peifer was subpoenaed to testify before the Thirty-Fifth Statewide Investigating Granci Jury, and claims that by virtue of this subpoena he has standing to challenge the legality of the office of Special Prosecutor, relying on Gwinn \( Kane, 339 A.20 838(Pa.Cmwith. 1975). Generally, a quo warranto action can only be instituted by the Attorney General or by the local district attorney. A private person will have standing to bring a quo warranto action only if that person has a special right or interest in the matter, as distinguished from the right or interest of the public generally, or if the private person has been specially damaged. Spykerman v. Levy, 491 Pa. 470, 485-86, 421 A.2d 641, 649 (1980). In Gwinn v. Kane, the Pennsylvania Commonwealth Court concluded that a plaintiff, who had been indicted by a special prosecutor the Attorney General appointed to investigate bribery and corruption in the awarding of public contracts, had standing to bring a quo warranto action to challenge the appointment. The same concerns or "special right or interest" is not present in this case, where Special Agent Peifer has merely been called to testify as a witness before the Grand Jury. If all subpoenaed witnesses who did not want to testify before the grand jury could file a quo warranto action with the Pennsylvania Supreme Court rather than a motion to quash with the Statewide Supervising Grand Jury Judge if he or she believed it would result in an unfavorable ruling, then all those similarly situated could make an end run around the process and procedure set forth by the Pennsylvania Supreme Court in In re Dauphin County Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929(Pa. 2007). 4 11. Special Agent Peifer has waived an opposition to the appointment of Special Prosecutor Carluccio. Even if Special Agent Peifer has standing to bring this acti9n, then his challenge to Special Prosecutor Carluccio's appointment is waived. Special Agent Peifer was previously subpoenaed and honored that subpoena and appeared before the Thirty-Fifth Statewide Grand Jury on October 24, 2014 in response to a subpoena issued by Special Prosecutor Carluccio. An emergency simply does not exist, and his current challenge is waived. III. The appointment of Special Prosecutor Carluccio was proper. My authority for the appointment of a special prosecutor was based upon the case of In re Dauphin County Fourth Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014). This case dealt with the appointment of an special prosecutor in connection with alleged grand jury leaks, and the Court stated that, "[w]hen there are colorable allegations or indications that the sanctity of the grand jury process has been breached and those allegations warrant investigation, the appointment of a special prosecutor to conduct such an investigation is appropriate. And, even where the investigations of special prosecutors do not lead to prosecutable breaches of secrecy, they may provide insight into the often-competing values at stake, as well as guidance and context so that prosecutors and supervising judges conducting future proceedings may learn from the examples." Id. at 504. The Court explained the vital role a supervising judge in regard to the grand jury process and emphasized the "[t]he very power of the grand jury, and the secrecy in which it operates, call for a strong judicial hand in supervising the proceedings" Id. at 503. The Court further explained as follows: We are cognizant that the substantial powers exercised by investigating grand juries, as well as the secrecy in which the proceedings are conducted, yield[]the potential for abuses. The safeguards against such abuses are reflected in the statutory scheme of regulation, which recognizes the essential role of the judiciary in supervising grand jury functions. 5 Id. at 503 — 504 (citing from In re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa. 89, 907 A.2d 505, 512(2006). Thus, Pennsylvania's grand jury process is 'strictly regulated, and the supervising judge has the singular role in maintaining the confidentiality of grand jury proceedings. The supervising judge has the continuing responsibility to oversee grand jury proceedings, a responsibility which includes insuring the solemn oath of secrecy is observed by all participants. Id. at 504 (citations and internal quotation marks omitted). The In re Dauphin County Court cited two cases that involved the appointment of a special prosecutor when there were allegations of grand jury leaks. The Court first cited to Lackawanna Common Pleas Court case, In re County Investigating Grand Jury VIII (Lack. Com. Pl. 2005). In that case there were allegations made, including, that e-mail communications had been exchanged between the Lackawanna District Attorney's Office and a newspaper reporter that divulged grand jury information, that a grand jury witness had been contacted by thp reporter a short time after the witness appeared before the grand jury and was questioned about private matters that had been disclosed only to the grand jury. In re Dauphin County, 19 A.30 at 504. A preliminary review by the common pleas court judge verified only the existence pf the ernails that werp exchanged between the reporter and a member of the District Attorney's office during the time the grand jury was conducting the relevant investigation. It was based upon this review that the common pleas court judge appointed a special prosecutor to investigate the allegations of a grand jury leak. Id. The Pennsylvania Supreme Court in In re Dauphin County cited an additional example involving a special prosecutor in connection with alleged grand jury leaks and the complex interest and values irnplicated in an appointment of an special prosecutor. The Court cited to Castellani v. Scranton Times, 598 Pa. 283, 956 A.2d 937(2008). In Castellani, the supervising judge appointed a special prosecutor to investigate allegations of grand jury leaks in 6 connection with a statewide investigating grand jury tasked with investigating allegations of abuse of the county prisoners by the prison guards. In re Dauphin County, 19 A.3d at 506. Not only is there strong precedent that permits a supervising judge to appoint a special prosecutor when there are allegations of grand jury leaks; but also, at the time I appointed the Special Prosecutor on May 29, 2014, by way of a court order, which was delivered to Chief Justice Ronald D. Castille, I wrote a letter to Chief Justice Oastille. In that letter, I explained what I had done and I ended the letter with the following language, "Please advise if you feel that I am in error or have exceeded my authority as the Supervising Grand Jury Judge." See, Exhibit "A", Letter dated May 29, 2014 to Chief Justice Castille. All of my letters to Chief Justice Castille have concluded with similar language. I have never been informed that I erred or exceeded my authority. Additionally, Special Agent Peifer argues in his Emergency Motion that "Where was no necessity for the appointment of a special prosecutor in this matter, since, according to publicly known facts several county District Attorneys had jurisdiction to investigate any 'leak by the OAG and prosecute any crime found to have been committed.'' See, Emergency Application for Extraordinary Relief 1/6/15 p. 8 1119. Special Agent Peifer is only correct to the extent that under the Grand Jury Act, Section 4551(d), 42 Pa.C.S.A, provides that ''[ijn any case where a multicounty investigating grand jury returns a presentment the supervising judge shall select the county for conducting the trial from among those counties having jurisdiction." 42 Pa.C.S. § 4551(d). However, at the time of the appointment of Special Prosecutor Carluccio there was no clear indication which county might ultimately have jurisdiction to prosecute criminal charges. It wasn't even known whether an investigation into the leak would have resulted in criminal charges. It could have resulted in a finding of conternpt. Asking a county District Attorney to use the resources of their office to investigate a matter for which they might never have jurisdiction is simply not appropriate. 7 The Supervising Judge of a Statewide Investigating Grand Jury must have the inherent authority to appoint a special prosecutor when appropriate. The Supervising Judge of a Statewide Investigating Grand Jury must have the inherent authority to use the resources of that Grand Jury to investigate breaches of grand jury secrecy, Without the inherent authority of the Supervising Judge to appoint a special prosecutor and use the resources of the grand jury, leaks of secret grand jury materials by members of the OAG would not be properly and timely addressed. Finally, without this authority the Supervising Judge would be severely hampered in carrying out the duties of the position. IV. An unjust result will occur if the requested relief is granted. Finally, if relief were to be granted, the result would be unjust. The maximum term of the Thirty-Fifth Statewide Investigating Grand Jury expires on January 16, 2015. Granting the requested relief would forever prevent the Thirty-Fifth Statewide Investigating Grand Jury from ever hearing the testimony of Special Agent Peifer. That would be unjust. This Grand Jury has heard the testimony of all of the other relevant witnesses in this matter. Asking Special Agent Peifer to tell the truth before the Thirty-Fifth Statewide Investigating Grand Jury is not prejudicial to him and does not merit Extraordinary Relief. Rather, it allows the Thirty-Fifth Statewide Investigating Grand Jury to finish its work regarding the allegation of the leak of secret Grand Jury information. A law enforcement officer such as a Special Agent should honor a subpoena and should tell the truth. 8 CONCLUSION I respectfully submit that this Emergency Application for Extraordinary Relief be denied. BY THE COURT: WILLIAM R. CARPENTER J. SUPERVISING JUDGE OF THE THIRTY- FIFTH STATEWIDE INVESTIGATING GRAND JURY 9 EXHIBIT "A" "A" PRESIDENT JUDGE PRESIDENT JUDGE COURT OF COURT OF COMMON PLEAS COMMON PLEAS WILLIAM J. J. FUR/3ER, JR. FURSER, JR. JUDGES ASSOCIATE JUDGES JUDGES • SENIOR JUDGES JOSEPH A. A. SMYTH SMYTH WILLIAM T. WILLIAM T. NICHOLAS STANLEY R. STANLEY OTT R. OTT S. GERALD CORSO S. CORSO BERNARD A. BERNARD A. MOORE CALVIN S. DRAYER. CALVIN S. DRAYER, JR. JR. WILLIAM R. R. CARPENTER CARPENTER H. ALBRIGHT KENT H. ALBRIGHT RHONDA LEE LEE DANIELE DANIELE ARTHUR R.R. TILSON EMANUEL A. SMANUEL A. BERTIN MONTGOMERY MONTGO MERY COUNTY COUNTY THOMAS M. THOMAS M. DELRICCI DELRICCI THIRTY-EIGHTH THIRTY-EIG JUDICIAL DISTRICT HTH JUDICIAL DISTRICT R. STEPHEN BARRETT R. THOMAS C. THOMAS C. BRANCA NORRISTOWN, NORRIS PENNSYLVANIA TOWN, PENNSY LVANIA STEVEN T. STEVEN O'NEILL T. O'NEILL 19404 19404 THOMAS P. THOMAS P. ROGERS ROGERS GARRETT D. GARRETT D. PAGE PAGE KELLY KELLY C. WALL , C. WALL CAR LUCCIO CAROLYN TORNETTA CARLUCCIO WENDY DEMCHICK-A DEMCHICKALLOY LLOY V!, PATRICIA E. E. COONAHAN LOIS EISNER LOIS EISNER MURPHY GARY GARY , S. SILOW S.• SILOW RICHARD P. HAAZ P. HAAZ CHERYL L. crIgRyt. L. AUSTIN GA IL A. GAIL A. WEILHEIMER STEVEN C. STEVEN C. TOLLIVER, TOLLIVER, SR. SR. May 29, 29, 2014 The Honorable Ronald D. D. Castille Chief Justice ChiefJusti ce ofPennsylvan Pennsylvania ia Supreme Court of of Pennsylvan Pennsylvania ia 1818 Market Street, Suite 3 Street, Suite 3730 730 Philadelphi Philadelphia, a, PA 19103 19103 Re: Statewide Investigati Re: Investigating ng Grand Juries Dear Chief Justice: Justice: Enclosed you will find an Order appointing a Special Enclosed Special Prosecutor to to investigate an allegation that secret Grand Jury informatio secret informationn from a prior Grand Jury was was released by someone inin the Attorney General's General's Office. Office. current supervisin As the current supervisingg Grand Jury Judge, Judge, this this matter was was brought brought to my attention. attention. My preliminary preliminary review included in camera sealed testimony testimony from two two individuals with knowledge knowledge.. II have decided that the matter is important important enough toto appoint a Special Prosecutor Prosecutor,, Thomas Thomas E. E. Carluccio, Esquire. Carluccio, Esquire. He is a former prosecutor, prosecutor, served in the Departmen of the Attorney General Departmentt of General in Delaware forfor fourteen fourteen years and a Special Special Assistant United States States Attorney. Attorney. In addition Tom has has done Grand Jury work, work, and is capable and reliable. honest, capable is honest, reliable. Please call me if you would like to discuss this further. this matter further. if you feel that Ilam Please advise if am in error or have exceeded my authority as the Supervisin Supervisingg Grand Jury Judge. Judge. Sincerel u 1.) William R. Carpenter, J. R. Carpenter, J. Supervisingg Judge Supervisin W RC/cns WRC/cns Cc. Cc. Thomas E. Carluccio, Esquire E. Carluccio, IN THE SUPREME IN COURT OF SUPREME COURT OF PENNSYLVANIA MIDDLE MIDDLE DISTRICT RE: IN RE: :: SUPREME COURT OF SUPREME COURT OF PENNSYLVANIA 2015 NO. 11 MM 2015 :: NO. STATEWIDE THIRTY -FIFTH STATEWIDE THE THIRTY-FIFTH PLEAS COMMON PLEAS :: MONTGOMERY COUNTY CQMMON INVESTIGATING GRAND JURY INVESTIGATING 2644 -2012 M.D. 2644-2012 :: M.D. OF SERVICE CERTIFICATE OF I,I, William R. Supervising Judge of the 35th Carpenter, Supervising R. Carpenter, Investigating Grand Jury, 35`h Statewide Investigating Jury, certify correct copy of the attached Opinion of January 9, that a true and correct 2015 was 9, 2015 forwarded to the persons set was forwarded set forth below via First Class Class Mail Mail on January 9, 2015. 9, 2015. WILLIAM R. CARPENTE , R. CARPENTE•, J. J. Judge Supervising Judge of Common Pleas Montgomery County Court of P.O. Box 311 P.O. 311 Norristown, PA 19404 Norristown, 19404 Prothonotary Irene Bi4zoso Prolhonotary Bizzoso Court of Pennsylvania Supreme Court Supreme Judicial Center Pennsylvania Judicial 601 601 Commonwealth Avenue 4500 Suite 4500 62575 P.O. Box 62575 P.O. 17106 Harrisburg, PA 17106 Harrisburg, Christopher P. Caputo, Esquire P. Caputo, 730 Main 730 Main Street 18507 Moosic, PA 18507 Moosic, Thomas E. Thomas Carluccio, Esquire E. Carluccio, Special Prosecutor Special 1000 Germantown Pike 1000 D3 Suite D3 Meeting, PA Plymouth Meeting, 19462 PA 19462 SEALED UNSEALED PER IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE MIDDLE DISTRICT COURT DATED AUGUST 26, 2015 IN RE: SPECIAL PROSECUTOR, : No. 1 MM 2015 THIRTY-FIFTH STATEWIDE : INVESTIGATING GRAND JURY : : : : ORDER PER CURIAM AND NOW, this 9th day of January, 2015, to the extent the Application for Stay seeks to stay enforcement of the subpoena issued to Petitioner by the Thirty-Fifth Statewide Investigating Grand Jury, it is GRANTED pending disposition of the Application for Extraordinary Relief. GOO UNSEALED PER Filed in Somme ORDER OF THE JAN 9 2015 COURT DATED AUGUST 26, 2015 kaiddlb FILED UNDER SEAL IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, PA SUPREME COURT OF PENNSYLVANIA IN RE: NO. 1 MM 2015 THE THIRTY-FIFTH STATEWIDE MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY M.D. 2644-2012 ANSWER OF SPECIAL PROSECUTOR TO THE EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF OF DAVID PEIFER Thomas E. Carluccio, Special Prosecutor to the Investigatory Grand Jury hereby answers the Emergency Applicationfor Extraordinary Relieffiled by David Peifer, and states in support thereof as follows: 1. Admitted in part and Denied in part. It is admitted that the legal citations provided relate to the subject matter for which they assigned within this pleading. However, any assertion that such legal citations that together or separately dispositive to the underlying issues: (i) that the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury maintains the requisite legal authority to convene an investigation into allegations that statewide grand jury secrecy might have been compromised; (ii) that such legal authority was unconstitutional because it violated the separation of powers inherent in the Pennsylvania Constitution; and/or (iii) that the Supervising Judge did not maintain the requisite legal authority to appoint a Special Prosecutor — are all denied. To the contrary THE INVESTIGATING GRAND JURY ACT, and specifically 42 Pa.C.S. §4548(a) and § 4542 thereunder have both been appropriately met, as Page: I Received in Supreme Court JAN 9 2015 Middle reflected in formal records and pleadings before this Honorable Court, and both the said Act and such documentation are conclusive to establishing that the Supervising Judge maintains legal authority to convene and oversee the subject Thirty-Fifth Statewide Investigating Grand Jury, and to appoint a Special Prosecutor thereto. 2. —21.(inclusive). Denied. The facts and events are denied as characterized by Peifer in the underlying Application. By way of further answer, David Peifer has voluntarily submitted himself to the jurisdiction of this Honorable Court through his physical attendance before the Grand Jury under subpoena on 10/24/14 prior to the filing of the underlying Application where such appearance was not occasioned by the communication of a reservation of rights challenging the authority of the Supervising Judge, nor the appointment of a Special Prosecutor — and as such has effectively waived the right to pursue an argument challenging the legal authority of the Supervising Judge to empanel and supervise a statewide investigating grand jury in this matter and appointing a Special Prosecutor thereto. WHEREFORE,the Emergency Applicationfor Extraordinary Relieffiled by David Peifer should be denied, under law and for events which effectively render such arguments should be denied and/or deemed waived. Thomas E. Carluccio, Esquire Attorney I.D. No. # 81858 Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting, PA 19464-2484 (484)674-2899 Special Prosecutor of Investigating Grand Jury No. #35 DATED: Page: 2 VERIFICATION I, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35 appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into the operative events underlying the subject matter of the Emergency Application for Extraordinary Relieffiled of record with the Court by David Peifer, I hereby represent that the averments set forth in the foregoing Answer to the said Application are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Thomas E. Carluccio, Esquire Attorney I.D. No. # 81858 Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting, PA 19464-2484 (484)674-2899 Special Prosecutor of Investigating Grand Jury No. #35 0110011e GOO Fileo JAN 9 2.015 UNSEALED PER ORDER OF THE INAIddib COURT DATED FILED UNDER SEAL AUGUST 26, 2015 IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA SUPREME COURT OF PENNSYLVANIA IN RE: NO. 1 MM 2015 THE THIRTY-FIFTH STATEWIDE ; MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY : M.D. 2644-2012 ANSWER OF SPECIAL PROSECUTOR TO THE EMERGENCY APPLICATION FOR LEAVE TO FILE ORIGINAL PROCESS OF DAVID PEIFER Thomas E. Carluccio, Special Prosecutor("Respondent")to the Investigatory Grand Jury hereby answers the Emergency Applicationfor Leave to File Original Process filed by David Peifer("Applicant"), and states in support thereof as follows: 1. to 4. (inclusive) Admitted in part and Denied in part. It is admitted that the legal citations provided relate to the subject matter for which they assigned within this pleading. However, any assertion that such legal citations taken, together or separately, are dispositive to the underlying rights and standing ofthe Applicant to file this pleading is denied. WHEREFORE, the Emergency Application for Leave to File Original Process filed by David Peifer should be denied. Thomas E. Carluccio, Esquire Attorney I.D. No. # 81858 Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting, PA 19464-2484 (484)674-2899 DATED: AA Special Prosecutor of Investigating Grand Jury No. #35 Page: I Received in Supreme court JAN 9 2015 Middle VERIFICATION I, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35 appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into the operative events underlying the subject matter of the Emergency Application for Leave to File Original Process filed of record with the Court by David Peifer, 1 hereby represent that the averments set forth in the foregoing Answer to the said Application are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Thomas E. Carluccio, Esquire Attorney I.D. No. # 81858 Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting, PA 19464-2484 (484)674-2899 Special Prosecutor of Investigating Grand Jury No. #35 ouplo (t UNSEALED PER ORDER OF THE JAN 9 2015 COURT DATED AUGUST 26, 2015 Mid& FILED UNDER SEAL IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA SUPREME COURT OF PENNSYLVANIA IN RE: NO. 1 MM 2015 THE THIRTY-FIFTH STATEWIDE ; MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY : M.D. 2644-2012 ANSWER OF SPECIAL PROSECUTOR TO THE EMERGENCY APPLICATION FOR STAY OF GRAND JURY PROCEEDINGS OF DAVID PEIFER Thomas E. Carluccio, Special Prosecutor(-Respondent") to the Investigatory Grand Jury hereby answers the Emergency Applicationfor Stay ofGrand Jury Proceedings filed by David Peifer("ApplicanC), and states in support thereof as follows: 1. Admitted. 2. Admitted. 3, Denied. Respondent lacks sufficient knowledge or information to form a belief as to the truth of the allegations of this Paragraph, and therefore deny the same. 4. Denied. It is denied that the appointment of a Special Prosecutor in this matter was done without legal authority. To the contrary such appointment was made consistent with THE INVESTIGATING GRAND JURY ACT, and consistent with the plenary supervisory authority afforded under law and granted to the subject Supervising Judge, as occurred here, who undertook the appointment of the Special Prosecutor in the underlying matter. As such, it is denied the Page: 1 Received in Supreme Court JAN 9 2015 iddle Applicant has presented a meritorious Application. 5. Denied. Respondent lacks sufficient knowledge or information to form a belief as to the truth of the allegations of this Paragraph, and therefore deny the same. By way of further answer, the Respondent is not aware of any injury or damage that would be caused Applicant in testifying before the Thirty-Fifth Investigating Grand Jury under the subpoenas issued him. 6. Denied. It is denied the this Honorable Court's determination on the legality of the appointment the Special Prosecutor is a matter of immediate concern and of substantial public interest. To the contrary the appointment of the Special Prosecutor should not be at issue warranting immediate review. WHEREFORE,the Emergency Application for Stay of Grand Jury Proceedings filed by David Peifer should be denied. Li.••••• ' Thomas E. Carluccio, Esquire Attorney I.D. No. # 81858 Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting, PA 19464-2484 (484)674-2899 Special Prosecutor of Investigating Grand Jury No. #35 DATED: Page: 2 VERIFICATION I, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35 appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into the operative events underlying the subject matter of the Emergency Application for Stay of Grand Jury Proceedings filed of record with the Court by David Peifer, I hereby represent that the averments set forth in the foregoing Answer to the said Application are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Thomas E. Carluccio, Esquire Attorney I.D. No. # 81858 Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting, PA 19464-2484 (484)674-2899 Special Prosecutor of Investigating Grand Jury No. #35 UNSEALED PER Filea in 6utmeme Gourt ORDER OF THE JAN 9 2015 COURT DATED AUGUST 26, 2015 Middle FILED UNDER SEAL IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA SUPREME COURT OF PENNSYLVANIA IN RE: NO. 1 MM 2015 THE THIRTY-FIFTH STATEWIDE ; MONTGOMERY COUNTY COMMON PLEAS INVESTIGATING GRAND JURY : M.D. 2644-2012 MEMORANDUM OF LAW IN SUPPORT OF ANSWERS OF SPECIAL PROSECUTOR TO THE FOLLOWING FILINGS OF RECORD OF DAVID PEIFER: 1. THE EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF 2. THE EMERGENCY APPLICATION FOR STAY OF GRAND JURY PROCEEDINGS 3. THE EMERGENCY APPLICATION FOR LEAVE TO FILE ORIGINAL PROCESS Thomas E. Carluccio, Special Prosecutor to the Investigatory Grand Jury hereby submits this Memorandum of Law in support of his answers to three (3) pleadings of filed by David Peifer, being: (i) the Emergency Application for Extraordinary Relief; (ii) the Emergency Application for Stay of Grand Jury Proceedings; and (iii) the Emergency Application for Leave to File Original Process (collectively hereinafter sometimes referenced, the "Claims"). I. BACKGROUND In response to a subpoena, David Peifer initially testified before the Thirty-Fifth • Investigating Grand Jury on 10/24/14, with no communicated reservations of rights. Notwithstanding his prior conduct in testifying, Peifer has filed of record the three (3) aforementioned pleadings, all of which are designed to avoid his further testimony under Page: 1 Received in Supreme Court JAN 9 2015 iddie subpoena scheduled on 1/12/15. In seeking to avoid testifying Peifer has adopted a tact of challenging the subpoena requiring his 1/12/15 testimony, the legal authority of the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury to empanel and supervise the Thirty-Fifth Investigating Grand Jury, to appoint a Special Prosecutor thereto, and to seek this Honorable Court's imtnediate review. Supervising Judge, William R. Carpenter, has issued his Opinion of record with this Court on 1/9/15. Thomas E. Carluccio, Esq., as appointed Special Prosecutor has timely filed his Answers to the three Applications, and presents this Legal Memorandum in support thereof. II. ARGUMENT A. Peifer lacks standina to bring a Quo Warranto Action as expressed or implied in his Claims. In the interest of judicial economy, the Special Prosecutor adopts in full the discussion and legal analysis set forth in Supervising Judge Carpenter's Opinion as dispositive on the issues raised by Peifer in his Claims. The case law cited by Supervising Judge Carpenter is acknowledged to be prevailing law, and provides that an individual does not possess proper standing to undertake a Quo Warranto Action unless they distinguish themselves to maintain a special right or interest from that of the general public. Here, Peifer fails to distinguish himself as required. His only "damage or special interesr is an interest to avoid testifying before an investigating grand jury, where to do so has not been shown to be overzealously sought by the Special Prosecutor nor would result in damage to Peifer. Accordingly, is clear that Peifer has a lack of standing to pursue a Quo Warranto Action in this Page: 2 matter. B. Peifer has effectively waived an opposition to the appointment of the Special Prosecutor. As stated, Peifer has already voluntarily submitted himself to the jurisdiction of this Honorable Court and waived any claim to challenge the authority of the Special Prosecutor (and specifically relating to the authority to issue a subpoena) by virtue of Peifer's voluntary, and without reservation, appearance and testimony before the Thirty-Fifth Investigating Grand Jury. The authority of a Special Prosecutor to utilize the power of a subpoena on behalf of an investigating grand jury is clear. 42 Pa.C.S. §4542 provides authority to the Special Prosecutor to compel the attendance of investigating witnesses, and provides in relevant part as follows: §4542 Investigative resources of the grand jury "The power to compel the attendance of investigating witnesses; the power to compel the testimony of investigating witnesses under oath; the power to take investigating testimony from witnesses who have been granted immunity; the power to require the production of documents, records and other evidence;..." In addressing the authority to subpoena a witness, Judge Savitt adroitly opined in his seminal publication, Pennsylvania Grand Jurv Practice, quoted in IN RE: Special Investigating Grand Jury ofApril 26. 1984, 37 PA. D &C 3d 516) 1986 at page 520: "lt can be seen from a reading of these excerpts from the act that broad subpoena power is vested in the investigating authority. The rationale is apparent. Without such authority, how could a prosecutor effectively investigate and ferret out crime? To follow the narrow construction that appellants desire would have a chilling effect on any and all types of investigation. It would defeat the very purpose of the act." Judge Savitt, Pennsylvania Grand Jury Practice, §21.04(A)(3) at p. 92-93, §21.04(C)(3) at p. 96 (1983). In conclusion, it is irrefutable that under the facts and events associated with the Special Prosecutor's issuance service of a subpoena in this matter, Peifer testimony before the Thirty- Fifth Investigating Grand Jury is to be appropriately compelled. Page: 3 C. The appointment of Special Prosecutor Carluccio was proper. In short, both statutory and case law, including without limitation 42 §4544 of THE INVESTIGATING GRAND JURY ACT are clear that upon Order of the Pennsylvania Supreme Court to empanel a multicounty investigating grand jury, the designated Supervising Judge has the legal authority and plenary supervising authority to appoint a Special Prosecutor. All requirements under 42§4544, including without limitation the Application of the Attorney General for an Order to convene a multicounty investigating grand jury, an Order of the Supreme Court to such effect, designation of a Supervising Judge, and his/her appointment of a Special Prosecutor are all appropriately and lawfully found in the underlying matter. Further, there is sufficient legal precedent for a Supervising Judge to appoint a special prosecutor and/or oversee grand jury proceedings. See In re Dauphin County Fourth Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014); In Re Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006); In re June 1979 Allegheny County Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980). Castellani v. The Scranton Times, 956 A.2d 937(PA. 2008). Again, Supervising Judge Carpenter's legal analysis, in addition to the above, is adopted here as though more fully set forth herein. In view of the foregoing, there was no improprieties in both the authority of Supervising Judge Carpenter, and in his subsequent appointment of Special Prosecutor Carluccio which warrant a review of the concern, and to quash the subpoena served upon Peifer. As such, his testimony should proceed without further incident. Page:4 D. There is no_uniust result to Peifer should his Claims be denied. As stated in the answers to the Claims of Special Prosecutor Carluccio, the only real issue confronting Peifer is a subpoena for his appearance to testify before the Thirty-Fifth Investigating Grand Jury. Contrary to his assertions, there are no immediate concerns nor substantial public interests that compel an emergency review of the appointment of the Special Prosecutor, nor into the subpoena itself. Further, as stated, Peifer has articulated no damages to him personally in honoring the subpoena and offering testimony. As such, his testimony should proceed without further incident. III. CONCLUSION For the foregoing reasons, and under both the statutory and case law authority referenced in Supervising Judge Carpenter's Opinion dated 1/9/2015, together with that offered herein, and due to Peifer's prior submission to the jurisdiction of this Honorable Court and acceptance of the authority of the Special Prosecutor by virtue of a prior appearance before the same Thirty-Fifth Investigating Grand Jury under a similar subpoenas as that addressed in the Claims— accordingly the Application should be denied and/or deemed waived. Thomas E. Carluccio, Esquire Attorney I.D. No. # 81858 Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting,PA 19464-2484 (484)674-2899 Special Prosecutor of Investigating Grand Jury No. #35 DATED: Page:5 IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA SUPREME COURT OF PENNSYLVANIA IN RE: NO. 1 MM 2015 THE THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY MONTGOMERY COUNTY COMMON PLEAS M.D. 2644-2012 CERTIFICATE OF SERVICE Thomas E. Carluccio, Esquire do hereby certify that a true and correct copy ofthe following: 1. Answer of Special Prosecutor to Emergency Application for Extraordinary Relief; 2. Answer of Special Prosecutor to the Emergency Application for Stay of Grand Jury Proceedings; 3. Answer of Special Prosecutor to the Emergency Application for Leave to File Original Process; and 4. Memorandum of Law in Support of the Answers of the Special Prosecutor to the aforementioned pleadings all in response to the previous filings of David Peifer has been filed of record with the Pennsylvania Supreme Court on the 9th day of January, 2015, and copies of the filed pleadings have been directed on the 9th day of January, 2015 by first class U.S. Mail, postage prepaid, to all parties in interest, as follows: Christopher P. Caputo, Esq. The Hon. William R. Carpenter 730 Main Street Court of Common Pleas of Montgomery County Moosic, PA 18507 P.O. Box 311 Norristown, PA 19404-0311 T omaS Carluccio, Esquire 6 ‘,/L- -- Attorney I.D. No. # 81858 Plymouth Greene Office Campus 1000 Germantown Pike, Suite D-3 Plymouth Meeting, PA 19464-2484 (484)674-2899 Special Prosecutor of Investigating Grand Jury No. #35 FILED 1/13/2015 Supreme Court Middle District SEALED UNSEALED PER IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE MIDDLE DISTRICT COURT DATED AUGUST 26, 2015 IN RE: SPECIAL PROSECUTOR, No. 1 MM 2015 THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY APPLICATION FOR LEAVE TO FILE RESPONSE AND NOW, this 13th day of January, 2015, comes David Peifer, by counsel. Christopher P. Caputo, Esquire, and presents the following: 1. The Honorable Judge Carpenter, and Specially Appointed Prosecutor Thomas Carluccio have filed Memorandum and Opinion respectively supplementing the Special Prosecutor's Answer to David Peifer's claim for quo warranto, the Opinion and ;Memorandum raise a New Matter regarding whether Judge Carpenter proceeded under the authority and Order of the Supreme Court, as the Order Appointing Special Prosecutor predated any contact with the Supreme CoOrt on the matter, and the Supreme Court provided no Authority and or Order prior to the Appointment of the Special Prosecutor Mr. Carluccio. (See Exhibit "A" — letter of Honorable Judge Carpenter to Supreme Court). 2. The Honorable Court's Opinioni and the Special Prosecutor's Memorandum aver and allege that the authority to appoint a Special Prosecutor is found in 42 Pa. C.S.A. 4544, the Grand Jury Act, as well as in re: Dauphin County Fourth Investigative Grand Jury, 19 A.3d 491 (2014). 42 Pa. C.S.A. 4544 speaks specifically to empaneling and applying for the empanelment of the RECEIVED 1/13/2015 Supreme Court Middle District SEALED Grand Jury, it offers no guidance, and it is silent as to the appointment of a Special Prosecutor. In re: Dauphin County Fourth Investigative Grand Jury, likewise offers no guidance relative to the statutory authority, or authority of a sitting Judge to appoint a special prosecutor, such act superseding the authority of the District Attorney of the County in which the criminal act was alleged to have occurred. 3. David Peifer has standing to bring his claim for relief under quo warranto, as he has sustained specific and real damages pursuant to the Special Prosecutors threat, intimidationj and accusations that he committed perjury, and was the leak of grand jury information to the public. 4. This matter is of significant ; importance to the public as it involves constitutional concepts as to the,rights of the public, the authority of the court, and the issues of separation of powers and checks and balances. In the absence of allowing review of David Peifer's response this Honorable Court will not have the opportunity to review facts which would be significant in assisting them in coming to a just conclusion of the matter. WHEREFORE, based on the above it is requested that the Supreme Court grant this Leave to file a response and consider same in determining the outcome of David Peifers claim for quo warranto. SEALED Respectfully submitted, CAPUTO & MARIOTTI, P.C. alte)P Christopher P. Caputo, Esquir Atty. ID 73446 730 Main Street Moosic, PA 18507 (570) 342-9999 EXHIBIT A PRESIDENT JUDGE COURT OF COMMON PLEAS WILLIAM J. funlits. Jo. A 8*OCIATIC JUDGES SIC041011 JUINSCS JOSEPH A. So y'rpi WILLTAN T. MICNOLAIE STARLET R. OTT R. OERALD Coss* BERNARD A. MOORE CALVIN IV ORAYeR. JR. WILLIAM R. CARPENTER Kam's' N. Atentoscr RHONDA LEE OANIELE ARTHUR R. TR-soto EMANUEL A. RERTIN MONTGOMERY COUNTY THONAS M. Din.Riccf THIRTy•EsoriEN JUDICIAL DisTinocT R. STEPNICH BAMTT TROmAs C. BRANCA NORRISTOWN„PEN.NSYLVANIA STEVEN T. O'NEILL 1E1404 THOMAS P. Rooters GARRETT D. PARE KELLY C. WALL C•ROLYN TORNETTA CARLUCCI* WENDT DEmICHICE.ALLOT PATRICIA E. COON...NAN Lois Emmen NualipTIT GARY S. SsLow RICHARD P. MA Az CNERTL L. AusTiN GAM A. WEILHEIMER STEVEN C. TOLLIVER, SR. May 29, 2014 The Honorable Ronald D. Castille Chief Justice of Pennsylvania Supreme Court of Pennsylvania 1818 Market Street, Suite 3730 Philadelphia, PA 19103 Re: Statewide Investigating Grand Juries Dear Chief Justice: Enclosed you will find an Order appointing a Special Prosecutor to investigate an allegation that secret Grand Jury information from a prior Grand Jury iis released by someone in the Attorney General's Office. As the current supervising Grand Jury Judge, this matter was brought to my attention. My preliminary review included in camera sealed testimony from two individuals with knowledge. I have decided that the matter is important enough to appoint a Special Prosecutor, Thomas E. Carluccio, Esquire. He is a former prosecutor, served in the Departrnent ofthe Attorney General in Delaware for fourteen years and a Special Assistant Unitett States Attorney. In addition Tom has done Grand Jury work, and is honest, capable and reliable. Please call me if you would like to discuss this matter further. Please advise if you feel that I am in error or havecameeded my authority as the Supervisi ng Grand Jury Judge. Since-v:0 4R William R. Carpenter, J. Supervising Judge WRC/cns Cc. Thomas E. Carluccio, Esquire SEALED CERTIFICATE OF SERVICE Pursuant to Pa.R.App.P.121 and 122 the,undersigned certifies that a true and correct copy of the foregoing document was served upon the individual listed below on the date indicated by electronic transmission and fist class United States Mail: Thomas E. Carluccio, Esq. Special Prosecutor 1000 Germantown Pike, Suite D3 Plymouth Meeting, PA 19462 E-mail: mailtO:tomc3@comcast.net Honorable Mliam R. Carpenter Montgomery County Courthouse 2 East Airy Street P.O. Box 311; Norristown, PA 19404-0311 E-mail: cserafinmontcopa.orq CAPUTO & MARIOTTI, P.C. Date: January 13, 2015 Christopher P. Caputo, Esquire Atty. ID 73446 730 tvlain Street Moosic, PA 18507 (570) 342-9999 SEALED IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: SPECIAL PROSECUTOR, : No. 1 MM 2015 THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY RESPONSE BY DAVID PEIFER TO MEMORANDUM OF LAW OF SPECIAL PROSECUTOR THOMAS CARLUCCIO AND OPINION OF THE HONORABLE JUDGE CARPENTER Facts and History: David Peifer Special Agent in Charge of the Office of Attorney General by and through counsel, responds to the facts and claims made in the Memorandum of Law filed by the Special Prosecutor Thomaš Carluccio and the Opinion filed by the Honorable Court, Judge Carpenter, answ'pring David Peifer's claim for quo warranto relief. SUPERVISING JUDGE AUTHORITY The facts of the instant matter are that some time prior to or on May 29, 2014 the Honorable Judge Carpenter was apprised that a leak from a prior grand jury occurred. In response thereto, he appointed a Special Prosecutor, Thomas Carluccio, to investigate and prosecute the matter,' ultimately determined to be a leak from a 2009 grand jury presided over by Judge Riccardo Jackson, not Judge Carpenter. Judge Carpenter was not the Supervising Judge of the Grand Jury from which the leak was alleged to have occurred five years later. The authority cited by the Court and Special Prosecutor speak only to the supervising Judge of the Grand Jury instituting and SEALED conducting and having the authority to aPpoint a Special Prosecutor to investigate a leak from the Grand Jury over which that Supervising Judge presides. Additionally none of the cases cited by Judge Carpenter, or Mr. Carluccio makes statutory reference, or any reference to a Rule, or a section of any of the codes in Pennsylvania which provide authority for the appointment of a Special Prosecutor under circumstances as found in the instant action. The Honorable Court cited In Re Dauphin County Fourth Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014) and the Special Prosecutor cited In Re: Twenty- Fourth Investigating Grand Jury, 907 A.2d 505 (Pa. 2006) In re: June 1979 Allegheny County Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980) and Castellani v. Scranton Times, L.P., 956 A.2d 937 (Pa. 2008). While each of the casès cited involve an instance where the presiding judge of a grand jury from which the leak was alleged to have occurred appointed a Special ProsecUtor to investigate the leak, none of the cases references any statutory authority for the appointment whatsoever. Additionally, in each one of those cases, it was the presiding judge of the grand jury for which a leak was alleged to have occurred that appointed the Special Prosecutor to investigate only, not prosecute, the circumstances surrounding the alleged leak. The cited cases provide no guidance to the Court regarding the appointment by a Common Pleas Judge of a Special Prosecutor to investigate the alleged leak of the grand jury which occurred under the supervision of a separate and different Judge. Additionally none of the Orders Appointing the Special Prosecutors in those cases provided for the overly broad, and specific powers to a Special Prosecutor to investigate and prosecute any criminal acts that he sees fit. In the absence of a specific statute SEALED providing the Honorable Court with the authority to appoint a Prosecutor with wide ranging powers as was completed here by Judge Carpenter, this appointment is null and void. 42 Pa. C.S.A. § 4544 has been cited as the authority under which Judge Carpenter appointed Mr. Carluccio. This section of the Grand Jury Act speaks only to the empaneling of a grand jury, and is silent regarding the authority to appoint a special prosecutor therefore the reliance on 42 pa. C.S.A. 4544 is misplaced. David Peifer specifically challenges the Appointment of a Special Prosecutor, not how the Grand Jury was empanelled. Mr. Carluccio's special appointment predated any Order or authority provided by the Supreme Court to Judge Carpenter bn this matter, as is established by Judge Carpenter's May 29, 2014 letter to JUstice Castille, as that letter categorically establishes that Judge Carpenter simply Ordered the Appointment, and made Justice Castille aware of it, and no other procedures were followed prior to ordering the Special Prosecutor's Appointment to assurance that the authority of an elected District Attorney of any appropriate County was not superseded by the appointment. Based on the facts, the appointment as it occurred supersedes the authority of the sitting District Attorney a point bolstered by the fact that if the newspapers are to be believed, Mr. Carluccio has provided his presentment, and criminal charges to be prosecuted by the District Attorney of Montgomery County. Mr. Carluccio, again if the papers are to be believed, has sent this matter to the District Attorney of Montgomery County to prosecute, even though the appointment by Judge Carpenter provides hirn with the complete power to prosecute the matter on his own. Clearly he has determined SEALED that for him to prosecute and pursue this matter any further would supersede the authority of the sitting District Attorney in Montgomery County. In conclusion relative to the authority of the supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury to appoint Mr. Carluccio, there is no statutory authority cited by either the Court, or the Special Prosecutor, and the case law referenced by the Judge and the Special Prosecutor does not outline a set of i circumstances, or a legal premise upon w hich the appointment which occurred in this instance is appropriate. STANDING While the prosecutor and Honorable Court claim the quo warranto is but a veiled motion to quash a subpoena, the facts belie this assessment, and concurrently establish harm to David Peifer, and therefore establish standing on his behalf. David Peifer on three separate occasions was served with subpoena and appeared before the grand jury on three separate occasions without filing motions to quash the subpoenas with the Honorable Court. (See Exhibit B, C, and 0 — grand jury subpoenas issued July 2014; September 2014; December 2014). In fact Peifer testified twice before tti?e grand jury under oath and on the record in July 2014 and in October 2014. The Spe4ial Prosecutor issued a third subpoena upon Peifer, and Peifer appeared, on DecembEir 19, 2014 in Norristown, at which time the Special Prosecutor denied him access to !the grand jury. Also on that same day the Special Prosecutor threatened Peifer accusing him of perjury, and being the grand jury leak. Only after this intimidation, and threat, was it apparent that Carluccio's authority to charge David Peifer and prosecute Peifer, a thirty-seven year law enforcement veteran, SEALED was detrimental to Peifer and causes Peifer specific harm. Based on the threats levied at Peifer by Carluccio on December 19, 2014, and the authority granted Carluccio by the Judge's Order Appointing him Special Prosecutor, Peifer has standing and has alleged specific and particular damages and harm. Conclusion The Honorable Court should find ttie appointment of Mr. Carluccio null and void and grant the relief requested in the claim for quo warranto.. Respectfully submitted, CAPUTO & MARIOTTI, P.C. Christopher P. Capuio, Esquire Atty. ID 73446 730 Main Street Moosic, PA 18507 (570) 342-9999 EXHIIBIT B Ina ATIN G GRAND JURY STATEWIDE INVESTIG -- •-------- SUBPOENA --- PENNSYLVANIA :SUOREME COURT OF TO: DAVID PEIFER 176 M.D. MISC. DKT. 2012 COMMON PLEAS :MONTGOMERY COUNTY :M.D. 2644-2012 ATEWIDE ann ear as a wit nes s bef ore the PENNSYLVANIA ST WO) ORDERED to r and Van Buren D JU RY , 100 0 Mad iso n Avenue (corner of Troope INVESTIGATING GR AN 'elock A.M. n, Pen nsy lva nit i, on Tue sday, July 29, 2014, at 8:00.0 tow the Commonwealth of Roads), Third Floor, Norris ege d violations of the laws of evi den ce reg ard ing all to testify and give until excused. Pennsylvania and to remain D: 2. YOU are further ORDERE will make you liable end ma y cau se a war ran t to be issued for your arrest and FAILURE to att tempt of Court. under penalty of law for con faaam DATED: July 18, 2014 lion. William R. Carpenter Supervising Judge Attorney General any que sti ons abo ut you r appearance, contact Deputy If you have 4.674.2899, Thomas Carluevio, at.48 Subpoena: 1163 EXHIBIT C Ott ATING GRAND JURY STATEWIDE INVESTIG SUBPOENA- ---- PENNSYLVANIA :SUPREME COURT OF TO: DAVID PE1FER :NO.!176 M.D. MISC. DK T. 2012 COMMON PLEAS :MONTGOMERY COUNTY :M.D. 2644-2012 STATEWIDE ear as a wit nes s bef ore the PENNSYLVANIA YOU are ORDERED to app 1. Trooper and Van Buren JU RY , 100 0 Mad ison Avenue (corner of INVESTIGATING GR AN D at 8:00 O'clock tow n, Pen nsy lva nia , on Mon day, September 15, 2014, of Roads), Third Floor, Norris s of the Commonwealth giv e evi den ce reg ard ing alleged violations of the law A.M. to testify and until excused. Pennsylvania and to retnain 2. YOU are further ORDERED: you liable a war ran t to be iss ued for you r arrest and will make se FA I LURE', to attend may cau con tem pt of Court. under penalty of law for fatki Æ avifie"./er DATED: September 8, 2014 ter Hon, William R. Carpen Supervising Judge ey General ons about you r app ear anc e, contact Deputy Attorn If you have any questi .674.2899. Thomas Carluccio, at 484 wi hnnena: 1374 EXHIBIT D RY STATEWIDE INVESTIGATING GRAND JU SUBPOENA TO: David C. Peifer :SUPREME COURT OF PENNSYLVANIA :NO. 176 M.D. MISC. DKT. 2012 AS :MONTGOMERY COUNTY COMMON PLE :M.D. 2644-2012 re the PENNSYLVANIA STATEWIDE I. YOU are ORDERED to appear as a witness befo Buren son Avenue (corner of Trooper and Van INVESTIGATING GRAND JURY, 1000 Madi ay, s), Thir d Floo r, Norr isto wn, Penn sylv ania ; on Monday, January 12, 2015 through Frid Road tions of fy:and give evidence regarding alleged viola January 16, 2015, at 8:00 O'clock A.M. to testi and to remain until excused. the laws of the Commonwealth of Pennsylvania Please report on Monday, January 12, 2015 2. YOU are further ORDERED: liable issued for your arrest and will make you FAILURE to attend may cause a warrant to be t. under penalty of law for contempt of Cour ,a1,4leetk, DATED: December 3, 2014 Hon. William R. Carpenter Supervising Judge Thomas any ques tion s abou t your appe arance, contact Special Prosecutor If you have Carluccio, at 484.674.2899. Notice: 123 Subpoena: 1624 SEALED UNSEALED PER IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE MIDDLE DISTRICT COURT DATED AUGUST 26, 2015 IN RE: SPECIAL PROSECUTOR, : No. 1 MM 2015 THIRTY-FIFTH STATEWIDE : INVESTIGATING GRAND JURY : : : : ORDER PER CURIAM AND NOW, this 24th day of April, 2015, the Application for Leave to File Original Process is GRANTED, and the Application for Extraordinary Relief is DENIED. See In re Thirty-Fifth Statewide Investigating Grand Jury, ___ A.3d ___, 2015 WL 1441830 (Pa. 2015). It is further ordered that the Application for Leave to File a Response is DISMISSED AS MOOT, and the stay entered on January 9, 2015, is DISSOLVED. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2831062. Public record. Not legal advice.