Opinion

Commonwealth v. Curley

2016 Pa. Super. 13
131 A.3d 994
2016 Pa. Super. LEXIS 31
2016 WL 285707

Court: Superior Court of Pennsylvania
Filed: Jan 22, 2016
Status: Published
Author: Bowes
On the bench: Bowes, Jenkins, Platt
Cited by: 6 cases
Authority: More cited than 58.7%

The opinion

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2016 PA Super 13

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

TIMOTHY M. CURLEY,

Appellant No. 299 MDA 2015

Appeal from the Order Entered January 14, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s):

CP-22-CR-0003614-2013

CP-22-CR-0005165-2011

BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

OPINION BY BOWES, J.: FILED JANUARY 22, 2016

Timothy M. Curley appeals from the order denying his pre-trial

motions to preclude the introduction of testimony of Attorney Cynthia

Baldwin1 and quash certain criminal charges against him based on violations

of the attorney-client privilege.2 We reverse the trial court’s order in which

____________________________________________

Ms. Baldwin is a former Justice of the Pennsylvania Supreme Court.

Consistent with the parties and trial court below, and to avoid confusion, we

have not referred to her as Justice Baldwin since she was not acting in a

judicial capacity.

We have jurisdiction over this appeal pursuant to the collateral order

doctrine codified at Pa.R.A.P. 313. See Commonwealth v. Schultz, __

A.3d __ (Pa.Super. 2015).

Retired Senior Judge assigned to the Superior Court.

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it found that no attorney client privilege existed. For the reasons that follow,

we hold that Ms. Baldwin was incompetent to testify as to Curley’s

communications with her. Accordingly, we quash the count of obstruction of

justice and the related conspiracy charge.

In these actions, the Commonwealth has charged Curley with two

counts of endangering the welfare of a child (“EWOC”), and one count each

of perjury, failure to report suspected child abuse, obstruction of justice, and

conspiracy.3 The charges stem from: 1) his treatment of allegations of

sexual misconduct against Gerald “Jerry” A. Sandusky, the former defensive

coordinator for the Penn State football team, and founder of a non-profit

charity serving underprivileged youth, the Second Mile; and 2) his testimony

pertaining to his handling of those matters before an investigating grand

jury.4

Curley is the former Athletic Director of the Pennsylvania State

University (“Penn State” or “University”). In 2009, the Pennsylvania Office

of Attorney General (“OAG”) began investigating allegations that Sandusky

____________________________________________

The Commonwealth filed a single conspiracy count, which included

conspiracy to commit perjury, obstruction of justice, and endangering the

welfare of a child.

Our recitation of the facts is based on the certified record, including the

grand jury presentments, unsealed testimony, and the factual findings of the

trial court. Insofar as Appellant’s testimony was not credited by the trial

court, we have not relied on that version of events. However, where the

testimony was not in dispute, we have considered it.

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sexually abused children over an extended period. As part of the

investigation, the OAG convened a statewide investigating Grand Jury.

During the course of the investigation, the OAG learned of sexual

misconduct by Sandusky that occurred while he was on the campus of Penn

State in 2001, as well as an incident involving inappropriate behavior with a

minor in 1998.

The grand jury investigation revealed the following regarding the 1998

matter. That incident involved an eleven-year-old boy. See Thirty-Third

Statewide Investigating Grand Jury Sandusky Presentment, at 18

(hereinafter Sandusky Presentment); see also Thirty Third Investigating

Grand Jury Presentment No. 29. Sandusky transported the victim from the

victim’s home to Penn State. Sandusky Presentment at 18. On the way to

the University, Sandusky placed his right hand on the boy’s thigh on multiple

occasions. Id. The pair lifted weights for approximately twenty minutes

before playing a game with a tape ball and cups. Id. Sandusky then

wrestled with the victim, before instructing the boy to shower. Id. The

youngster attempted to shower away from Sandusky, but Sandusky

beckoned him closer and told him that he warmed up a shower for the child.

Id. at 18-19. Sandusky grabbed the boy from around his waist, lifting him

into the air. Id. at 19. He also washed the boy’s back and bear hugged the

child from behind, before rinsing the child’s hair. Id.

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When Sandusky returned the child to the boy’s home, the child’s

mother noticed that his hair was wet and became upset when she discovered

that he had showered with Sandusky. Id. She reported the matter to

University Police, who initiated an investigation. Id. University Police

conducted a wiretap on Sandusky, with the permission of the boy’s mother,

recording two conversations. Id. Sandusky admitted to showering naked

with the child, and at one point stated that he wished he were dead. Id. at

20. He also told police that he hugged the child in the shower and admitted

that it was wrong. Id. No charges were ultimately filed.

The grand jury investigation also revealed that in 2001, former Penn

State assistant football coach, Michael McQueary, who had been a

quarterback at Penn State, witnessed Sandusky commit a sexual assault

against a minor victim in a locker room shower on the main campus of the

University in February of 2001. Id. at 6. McQueary, then a graduate

assistant, reported this incident to head football coach Joe Paterno the next

day, a Saturday. Id. at 7. Paterno, in turn, reported the matter to Curley

the following day. Id. Within two weeks of the shower incident, McQueary

met with Curley and Gary Schultz, the Vice President for Finance and

Business. Id. McQueary, who testified before the grand jury prior to

January 12, 2011, stated that he told the pair that he believed he saw

Sandusky having anal sex with a minor boy. Id.

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Curley was originally subpoenaed in December of 2010 to testify

before the investigating grand jury on January 12, 2011. Ms. Baldwin

alerted Curley to the subpoena on December 29, 2010, while Curley and she

were in Tampa, Florida for a Penn State football bowl game. 5 The pair

subsequently met, on January 3, 2011, after returning to State College, for

purposes of preparing Curley for his grand jury appearance. She agreed to

advise and be present for Curley’s grand jury testimony. Specifically, Ms.

Baldwin related to Curley that, as a grand jury witness, he was entitled to an

attorney who could attend and consult with him during his testimony. She

explained that he was free to retain a different attorney, but she could also

represent him at the proceeding as well.

According to Ms. Baldwin, she instructed Curley that she was general

counsel for Penn State and that any information he told her was not

confidential because she was the University’s attorney and could relate the

information to the Board of Trustees. Specifically, Ms. Baldwin set forth, “I

explained to him that I could go in [to the grand jury room], but I was

general counsel for Penn State, that there was no confidentiality. And I

emphasized that there was no confidentiality.[.]” N.T. Curley Hearing,

____________________________________________

Ms. Baldwin was also served a subpoena duces tecum, Grand Jury

Subpoena 1179, for University documents, which sought documents

referencing or related to Jerry Sandusky.

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11/20/14, at 93. She continued, “there was no confidentiality between Mr.

Curley and me because I was the university’s attorney. So what he told me

wasn’t going to be confidential….I mean, if the board asked, I would tell

them.” Id. at 93-94. Nevertheless, Ms. Baldwin did not relate this

information to the Board of Trustees. Further, Ms. Baldwin did not advise

Curley regarding his Fifth Amendment right against self-incrimination. Ms.

Baldwin also did not carefully elucidate the difference between representing

Curley in his individual capacity or as an agent of his employer, Penn State.

On the same morning of his scheduled grand jury appearance, agents

from the OAG interviewed Curley. Ms. Baldwin was present for that

interview. She also attended the OAG interview of Schultz that same day.

Following these interviews, but before Curley testified, Ms. Baldwin asked

Deputy Attorney General Jonelle Eshbach if Curley and Schultz were targets

of the criminal investigation. The prosecutor informed her that they were

not targets at that time.6

____________________________________________

Despite this representation, the OAG was aware that McQueary had told

investigators that he reported a sodomy to Schultz and Curley, and it knew

that there had not been a follow-up police investigation. Thus, at that time,

the OAG presumably had a basis upon which to charge Curley with failure to

report suspected child abuse. Hence, the claim was misleading. Moreover,

Ms. Baldwin would have been aware that Curley’s and Schultz’s recollection

of what McQueary told them was inconsistent since she was present for their

pre-testimony interviews. Specifically, Schultz acknowledged that the

behavior that was reported was sexual in nature, but Curley denied that

there was any indication of sexual misconduct. The OAG, outside the

(Footnote Continued Next Page)

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Prior to Curley’s testimony, the Grand Jury Supervising Judge, Judge

Barry Feudale, queried Ms. Baldwin regarding her representation of Schultz

and Curley in chambers in their presence. Specifically, the following

exchange occurred:

OAG: Judge, we’re here on Notice 29. We have some witnesses

to be sworn, Mr. Curley and Mr. Schultz.

Judge Feudale: Represented by?

Ms. Baldwin: My name is Cynthia Baldwin, general counsel for

Pennsylvania State University.

Judge Feudale: Will you be providing representation for both of

those identified witnesses?

Ms. Baldwin: Gary is retired but was employed by the university

and Tim is still an employee.

Notes of Grand Jury Colloquy, 1/12/11, at 7-8. Ms. Baldwin did not

expressly state that she represented Curley solely in an agency capacity, nor

did she indicate that she did not represent him in his individual capacity.

The OAG did not express concern on the record over a potential conflict of

interest based on Ms. Baldwin appearing with both Curley and Schultz.

Judge Feudale, without requesting further clarification from Ms. Baldwin,

_______________________

(Footnote Continued)

presence of Ms. Baldwin, later explicitly told the grand jury supervising

judge that Schultz’s and Curley’s testimony was not consistent. N.T.,

4/13/11, at 10.

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then advised the two men of their rights as grand jury witnesses. In

relevant part, he set forth:

As witnesses before the Grand Jury, you’re entitled to

certain rights and subject to certain duties which I am now going

to explain to you. All of these rights and duties are equally

important and it’s important that you fully understand each of

them.

First, you have the right to the advice and assistance of a

lawyer. This means you have the right to the services of a

lawyer with whom you may consult concerning all matters

pertaining to your appearance before the Grand Jury.

You may confer with your lawyer at any time before,

during and after your testimony. You may consult with your

lawyer throughout your entire contact with the Grand Jury. Your

lawyer may be present with you in the Grand Jury room during

the time you’re actually testifying and you may confer with

her at that time.

You also may at any time discuss your testimony with your

lawyer and except for cause shown before this Court, you may

disclose your testimony to whomever you choose, if you choose.

You also have the right to refuse to answer any question pending

a ruling by the Court directing you to respond if you honestly

believe there are proper legal grounds for your refusal. In

particular, you have the right to refuse to answer any question

which you honestly believe may tend to incriminate you.

Should you refuse to answer any question, you may offer a

reason for your refusal, but you’re not obliged to do so. If you

answer some questions or begin to answer any particular

question, that does not necessarily mean you must continue to

answer your questions or even complete the answers you have

started.

Now, any answers you give to any question can and may

be used against you either for the purpose of a Grand Jury

Presentment, Grand Jury Report or a Criminal Information.

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In other words, if you’re uncertain as to whether you may

lawfully refuse to answer any question or if any other problem

arises during the course of your appearance before the Grand

Jury, you may stop the questioning and appear before me, either

alone or in this case with your counsel, and I will rule on that

matter whatever it may be.

Id. at 8-10 (emphases added).7

Curley entered the courtroom with Ms. Baldwin, who was seated

beside him during his testimony. At the outset, a deputy attorney general

asked Curley, “You have counsel with you?” N.T., Grand Jury Proceeding,

Notice No. 20, 1/12/11, at 3. Curley answered, “Yes, I do.” Id. The

prosecutor then asked, “Would you introduce her, please?” Id. Curley

responded, “My counsel is Cynthia Baldwin.” Id. Ms. Baldwin did not

indicate at that time that she represented Curley solely in an agency

____________________________________________

Judge Feudale, in an opinion addressing motions filed by Curley, seeking

quashal of the grand jury presentments, opined in dicta, “In hindsight,

perhaps I erred in not asking follow up question about the role of corporate

counsel Baldwin. I regret and perhaps committed error in not asking any

follow up questions but while I am unware of what the response would have

been, I fail to discern how such would persuade me at this stage why [the]

presentments should be dismissed.” Judge Feudale Opinion, 4/9/13, at 11.

Ultimately, Judge Feudale ruled that he lacked jurisdiction to consider the

motions in question. We agree with Judge Feudale, to the limited extent

that he erred in neglecting to properly probe the scope of Ms. Baldwin’s

representation to ensure that Curley understood whether Ms. Baldwin was

acting to protect his interests or the University’s.

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capacity or that she was not representing him in a personal capacity. The

Commonwealth questioned Curley about the 1998 and 2001 incidents.8

The Commonwealth initially questioned Curley about the 2001 crime.

Curley testified that Paterno contacted him and Schultz and advised them

that he needed to meet with them regarding an incident reported to him by

graduate assistant football coach Michael McQueary. Id. at 4-5. Paterno

later met with Curley and Schultz. According to Curley, Paterno informed

them that McQueary witnessed Sandusky in the shower area with a child and

was uncomfortable with the activity occurring therein. Id. at 5. Curley

relayed that he and Schultz met with McQueary. Id. In Curley’s

recollection, McQueary related that Sandusky was horsing around in the

shower area and that it felt inappropriate. Id. at 7. Curley adamantly

denied that McQueary informed them that anal intercourse transpired

between Sandusky and the child. Id.

Curley stated that he reported the matter to University President, Dr.

Graham Spanier, and contacted Sandusky. He submitted that he also

reported the incident to Dr. Jack Raykovitz, then-executive director of the

Second Mile, after consulting with Spanier. Id. at 6. Curley further

instructed Sandusky to refrain from bringing young people into the athletic

____________________________________________

At the time, the Commonwealth referred to the 2001 shower crime as

occurring in 2002.

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facilities at Penn State. Id. at 10-11. He did not inform campus police of

the incident and indicated that he did not think that what had been reported

to him was a crime. Id. at 12. Curley acknowledged that there was no

follow up investigation into the 2001 report by McQueary. Id. at 13. He

also denied having any knowledge of a 1998 report of another shower

incident involving Sandusky and a child. Id. at 13-14. He maintained that

the 1998 matter and subsequent police investigation were not brought to his

attention. Id. at 15. Later-discovered email documents revealed that

Curley was aware of the 1998 incident.

The investigating grand jury recommended that Curley be charged

with perjury and failure to report on November 7, 2011. The

Commonwealth filed a criminal complaint against Curley.9 Curley retained

new counsel and notified Ms. Baldwin, who had retained her own attorney,

via letter that Curley did not waive any claim of attorney-client privilege with

respect to communications between Ms. Baldwin and him.

Meanwhile, the OAG, in December of 2011, expressed significant

frustration with Ms. Baldwin’s failure to comply with its document subpoena

request and threatened the University and ostensibly her with possible

contempt of court “and any other appropriate measures applicable to

____________________________________________

The crimes were held for court and the Commonwealth filed a criminal

information on January 19, 2012.

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obstruction against the institution and those individuals responsible for these

decisions.” Letter from OAG to Ms. Baldwin, 12/19/11, at 10.10

____________________________________________

Although the University was charged with complying with that subpoena

in December 2010, it was not until April 2012 that relevant documents were

turned over. Notably, although Ms. Baldwin informed University President,

Dr. Graham Spanier, of the subpoena and asked if he, Schultz, and Curley

had any documents, she apparently did not follow University protocol in

ensuring compliance with that subpoena. A grand jury report observed that

an “investigation into whether the University fully complied with the

subpoena determined that no effort was made to search the Athletic

Department, where Sandusky had been employed for over 30 years, or to

search any of the electronically stored data at the University or emails or

other documents[.]” Grand Jury Presentment No. 29, at 23. The Grand Jury

further concluded,

Penn State had in place a well-defined historical practice and

procedure for responding to subpoenas. Subpoenas that might

encompass electronically stored data (such as emails and

documents stored on a computer or network drive) would

routinely be sent to the specialized unit called the “SOS.” These

information technology professionals were trained and dedicated

to assembling responsive electronically stored date in response

to litigation needs or other legal process. None of the SOS

professionals were ever shown subpoena 1179, nor were they

directed to seek any information requested by subpoena 1179

before the arrests of Sandusky, Schultz and Curley.

Id.

Ms. Baldwin did assert in her grand jury testimony that she was

dependent on the Athletic Department, the President’s office, and Vice

President’s office to comply with the subpoena. Ms. Baldwin also informed

the supervising grand jury judge in April of 2011 that she “had the IT

people—I’ve been pushing the IT people and I believe that we can cull those

[documents] out for you, that we can do all of those.” N.T., 4/13/11, at 27.

However, the grand jury report reveals that, in addition to the SOS unit,

other individuals employed in the Penn State information technology

(Footnote Continued Next Page)

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Subsequently, the Commonwealth and Ms. Baldwin entered into discussions

about her testifying before the grand jury regarding the responses of Curley,

Schultz, and Spanier pertaining to her document requests related to

Sandusky. See N.T., Grand Jury Conference, 10/22/12, at 2 (“the Office of

Attorney General has been conversing with Cynthia Baldwin’s counsel and

eventually Cynthia Baldwin in the context of a proffer discussion.”).

On June 22, 2012, Ms. Baldwin, through counsel, responded to

Curley’s invocation of the attorney-client privilege. She asserted that she

was counsel for Penn State, that she had acted solely in an agency capacity

in representing Curley, and that she did not represent him in an individual

capacity before the grand jury. In correspondence, Curley again invoked his

attorney-client privilege to Judge Feudale and Ms. Baldwin, and copied the

letter to the OAG and counsel for Penn State.

New general counsel for Penn State, Michael Mustokoff, asked Judge

Feudale for a conference concerning the privilege issues prior to Ms. Baldwin

testifying before the grand jury on October 22, 2012. Mr. Mustokoff agreed

that Penn State waived the privilege for itself, but explicitly declined to

waive the University’s privilege as to communications between Ms. Baldwin

and Schultz and Curley. Specifically, Mr. Mustokoff wrote,

_______________________

(Footnote Continued)

department maintained that they were not asked to locate such documents.

Grand Jury Presentment No. 29, at 23-24.

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We have waived the University’s privilege as to those documents

with two critical exceptions:

...

(2) any communications between Justice Baldwin and Messrs.

Schultz and Curely. We have previously shared our concerns

about the Schultz/Curley communications with you and

memorialized them in our October 2, 2012 letter to Judge

Feudale.

Letter from Michael Mustokoff to Chief Deputy Attorney General Frank Fina,

10/19/12, at 1.

In preparation for Ms. Baldwin’s grand jury appearance, Judge Feudale

conducted a conference with Mr. Mustokoff, the OAG, and Ms. Baldwin’s

attorney on October 22, 2012. Curley’s attorney was not permitted to

attend. Counsel for Penn State astutely noted that it could not waive any

privilege that Curley might have and again declined to waive its privilege as

to communications between Ms. Baldwin and Curley. The OAG, via Attorney

Frank Fina, submitted at that time that it would not question Ms. Baldwin

about matters that could involve potential confidential communications

between Curley and Ms. Baldwin. Attorney Fina expressly set forth,

But at this point, Your Honor, we are willing to put Miss Baldwin

in the grand jury without addressing any of the issues related to

the testimony of Mr. Schultz and Mr. Curley and conversations

she had with them about that testimony and put that—put those

matters on hold until we get a Court determination regarding the

privilege and we can address that later on.

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N.T., Grand Jury Conference, 10/22/15, at 6.11 Shortly thereafter, Attorney

Fina declared, “There may well be [privilege] claims down the road by

[counsel for Schultz and Curley], and perhaps even counsel for Graham

Spanier; but that is, you know, the risk that the Commonwealth is ready to

bear because we believe that we are soundly within the [University] waiver.”

Id. at 11.

Judge Feudale, relying on the representations of Attorney Fina, stated,

I’m satisfied based on what you placed on the record that [Ms.

Baldwin] is clearly able to proceed on testimony with the

stipulation that you communicated that you’re not going to get

into an inquiry as to her representation and what that meant

with regard to Mr. Curley, Mr. Schultz, and perhaps, as you said,

also Mr. Spanier.

Id. at 11-12.12

____________________________________________

Pa.R.Prof.Conduct 3.10 precludes a prosecutor from subpoenaing an

attorney to appear before a grand jury where the prosecutor is seeking to

compel the attorney to provide evidence regarding a person who is or has

been represented by the attorney. The rule reads in its entirety,

A public prosecutor or other governmental lawyer shall not,

without prior judicial approval, subpoena an attorney to appear

before a grand jury or other tribunal investigating criminal

activity in circumstances where the prosecutor or other

governmental lawyer seeks to compel the attorney/witness to

provide evidence concerning a person who is or has been

represented by the attorney/witness.

Pa.R.Prof.Conduct 3.10.

The Commonwealth did not raise any argument that Ms. Baldwin could

testify regarding any privileged communications as a result of the crime-

fraud exception to the attorney-client privilege. See In re Investigating

(Footnote Continued Next Page)

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Despite the foregoing representations by Mr. Fina, a number of the

Commonwealth’s questions to Ms. Baldwin before the grand jury implicated

confidential communications.13 According to Ms. Baldwin’s grand jury

testimony, Curley told her prior to his testimony that he did not have any

documents relating to the 1998 and 2001 Sandusky matters. The

Commonwealth specifically inquired of Ms. Baldwin,

OAG: Again, staying with Mr. Curley, did he get back to you at

any point and tell you whether or not he had evidence or

materials that would be responsive to the Subpoena 1179?

Ms. Baldwin: Right. Yes.

OAG: What did he say?

Ms. Baldwin: No, he didn’t have any materials.

OAG: And your conversations with those three

gentlemen: Schultz, Spanier, and Curley, were specific

correct? They involved e-mails, paper files, any information—

Ms. Baldwin: Anything that could—any document—documents

that they had whether they be electronic or nonelectronic.

_______________________

(Footnote Continued)

Grand Jury of Philadelphia County, 593 A.2d 402, 406-407 (Pa. 1991)

(crime-fraud exception excludes from protection those communications

between an attorney and client that are made for the purpose of committing

a crime or fraud).

In light of Attorney Fina’s representation to Judge Feudale, and mindful of

Pa.R.Prof.Conduct 3.10, we find his subsequent questioning of Ms. Baldwin,

absent prior judicial approval on the privilege question, to be highly

improper.

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OAG: Is it fair to say they assured you they would go through

their e-mails and talk to their staff and find anything that was

responsive?

Ms. Baldwin: They said they would check and get back to me.

OAG: So Mr. Curley gets back to you and says there is nothing?

Ms. Baldwin: Correct.

N.T., 10/26/12, at 17-18 (emphasis added). These inquiries related to

compliance with the subpoena duces tecum and directly incriminated Curley

in the commission of the crime of obstruction of justice.

Following Ms. Baldwin’s testimony, that same day, in a second

presentment, the grand jury recommended additional charges against Curley

for obstruction of justice and conspiracy to commit obstruction of justice,

conspiracy to commit perjury, and conspiracy to commit EWOC. The

Commonwealth filed a criminal complaint on November 1, 2012, alleging

that Curley committed the crimes of EWOC, obstruction of justice, and

conspiracy to commit obstruction of justice, conspiracy to commit perjury,

and conspiracy to commit EWOC. It also consolidated Curley’s case with

prosecutions against Schultz and Spanier.

Preliminary hearings for Curley, Schultz and Spanier were held on July

29, 2013 and July 30, 2013. Ms. Baldwin did not testify. The magisterial

district court determined that a prima facie case existed against Curley and

the cases proceeded to the court of common pleas. Curley filed pre-trial

motions to preclude Ms. Baldwin’s testimony due to a breach of the

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attorney-client privilege, to quash the grand jury presentment, and to

suppress his own grand jury testimony and dismiss those charges that arose

out of that testimony based on a lack of adequate counsel.

The court conducted a hearing on December 17, 2013. In support of

his pre-trial motions, Curley also sought to call Mr. Fina, Ms. Baldwin, and

expert witnesses to testify regarding Ms. Baldwin’s deficient representation.

The court precluded those witnesses from testifying. After receipt of

memoranda from the parties, the court scheduled additional hearings on

November 20-21, 2014, to consider testimony regarding the scope of the

alleged attorney-client privilege between Ms. Baldwin and Schultz, Curley,

and Spanier. The court precluded testimony from all witnesses except Ms.

Baldwin and the three defendants. It also prevented Curley and his counsel

from being present during the testimony of his co-defendants. Ms. Baldwin,

however, was present for the testimony of all three men and testified after

each of them.

Thereafter, in an order entered on January 14, 2015, the trial court

concluded that Curley was not denied counsel during his grand jury

testimony on January 12, 2011, because Ms. Baldwin represented him as an

agent of Penn State. It further held that Ms. Baldwin did not represent

Curley in an individual capacity and that her subsequent testimony did not

violate the attorney-client privilege because there was no privilege. Curley

then filed this interlocutory appeal, raising three issues for our review.

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I. Where the Pennsylvania Grand Jury Act guarantees all

witnesses the right to assistance of counsel and where

appellant did not waive his right to counsel, did the

attorney-client privilege personally attach when he was

represented by employer’s general counsel and

subpoenaed to give testimonial evidence before the grand

jury?

II. Whether, in this case, the applicable legal standard to

establish the existence of the individual attorney-client

privilege is controlled by this Court’s opinion in

Commonwealth v. Mrozek[,657 A.2d 997 (Pa.Super.

1995),] and the grand jury context in which the

representation arose?

III. Whether appellant’s counsel violated attorney-client

privilege when she testified at the grand jury regarding

their private communication without first obtaining his

waiver of privilege?

Appellant’s brief at 5.

In the companion case of Commonwealth v. Schultz, __ A.3d __

(Pa.Super. 2015), decided today, we outlined the basis of our jurisdiction to

consider an interlocutory appeal regarding issues pertaining to the attorney-

client privilege. For reasons outlined therein, Appellant’s contentions

relative to the attorney-client privilege are properly before this Court.14

____________________________________________

Unlike the appellant in Schultz, Curley does not seek to quash his

perjury charge that arose from his grand jury testimony based on a denial of

counsel during that testimony. Curley did originally seek to address that

issue by filing with the trial court a motion to certify its order under 42

Pa.C.S. § 702(b), to allow an interlocutory appeal by permission. The trial

court denied that motion. Curley, subsequent to the filing of this appeal,

petitioned this Court for review under Pa.R.A.P. 1311, however, the Court

(Footnote Continued Next Page)

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In Schultz, supra, we also set forth the general principles of law

governing the attorney-client privilege as follows.

An issue concerning whether a communication is protected

by the attorney-client privilege presents a question of law. In re

Thirty-Third Statewide Investigating Grand Jury, supra at

215. Hence, our standard of review is de novo and our scope of

review is plenary. Id. “Although now embodied in statute, the

attorney-client privilege is deeply rooted in the common law.

Indeed, it is the most revered of the common law privileges.”

Commonwealth v. Chmiel, 738 A.2d 406, 414 (Pa. 1999)

(internal citations omitted). In a criminal matter, “counsel shall

not be competent or permitted to testify to confidential

communications made to him by his client, nor shall the client be

compelled to disclose the same, unless in either case this

privilege is waived upon the trial by the client.” 42 Pa.C.S. §

5916.

This Court has opined, “Where legal advice of any kind is

sought from a professional legal adviser in his capacity as such

the communications relating to the purpose made in confidence

by the client are at this instance permanently protected from

disclosure by himself or by the legal adviser except the

protection may be waived.” In re Gartley, 491 A.2d 851,

858 (Pa.Super. 1985) (quoting 8 Wigmore, Evidence §§ 2292 at

554 (McNaughton rev. 1961)). Almost a century ago, our

Supreme Court posited,

the circle of protection is not so narrow as to exclude

communications, a professional person may deem

unimportant to the controversy, or the briefest and

lightest talk the client may choose to indulge with his

legal adviser, provided he regards him as such at

the moment. To found a distinction on such a

ground, would be to measure the safety of the

confiding party by the extent of his intelligence and

_______________________

(Footnote Continued)

denied that petition without prejudice to Curley to pursue that issue in this

appeal. He did not seek relief on that basis. See footnote 14, infra at 23.

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knowledge, and to expose to betrayal these very

anxieties which prompt those in difficulty to seek the

ear of him in whom they trust, in season and out of

season. The general rule is[] that all professional

communications are sacred.

Alexander v. Queen, 253 Pa. 195, 203 (Pa. 1916). More

recently, our Supreme Court declared,

The purposes and necessities of the relation between

a client and his attorney require, in many cases, on

the part of the client, the fullest and freest disclosure

to the attorney of the client's objects, motives and

acts. This disclosure is made in the strictest

confidence, relying upon the attorney's honor and

fidelity. To permit the attorney to reveal to

others what is so disclosed, would be not only a

gross violation of a sacred trust upon his part,

but it would utterly destroy and prevent the

usefulness and benefits to be derived from

professional assistance. Based upon

considerations of public policy, therefore, the

law wisely declares that all confidential

communications and disclosures, made by a

client to his legal adviser for the purpose of

obtaining his professional aid or advice, shall

be strictly privileged; -- that the attorney shall not

be permitted, without the consent of his client, --

and much less will he be compelled -- to reveal or

disclose communications made to him under such

circumstances." 2 Mecham on Agency, 2d Ed., §

2297.

Commonwealth v. Maguigan, 511 A.2d 1327, 1333-1334 (Pa.

1986) (emphasis added). Our Supreme Court has further

opined,

Recognizing that its purpose is to create an

atmosphere that will encourage confidence and

dialogue between attorney and client, the privilege

is founded upon a policy extrinsic to the protection of

the fact-finding process. Estate of Kofsky, 487 Pa.

473, 409 A.2d 1358 (1979). The intended

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beneficiary of this policy is not the individual client so

much as the systematic administration of justice

which depends on frank and open client-attorney

communication. In re Search Warrant B-21778,

513 Pa. 429, 521 A.2d 422, 428 (1987); Estate of

Kofsky, supra.

In re Investigating Grand Jury No. 88-00-3505, 593 A.2d

402 (Pa. 1991). In addition, “in Pennsylvania, the attorney-

client privilege operates in a two-way fashion to protect

confidential client-to-attorney or attorney-to-client

communications made for the purpose of obtaining or providing

professional legal advice.” Gillard v. AIG Ins. Co., 15 A.3d 44,

59 (Pa. 2011).

The attorney-client relationship exists not only in one-on-

one situations between an individual and an attorney, but it can

also exist in a corporate environment in which general counsel or

legal staff is present. “When the client is a corporation, the

privilege extends to communications between its attorney and

agents or employees authorized to act on the corporation's

behalf.” In re Condemnation by City of Philadelphia in

16.2626 Acre Area, 981 A.2d 391, 396 (Pa.Cmwlth. 2009)

(citing Upjohn Co. v. United States, 449 U.S. 383 (1981)). In

Upjohn, the United States Supreme Court analyzed the scope of

the attorney-client privilege when the client is a corporation.

Although Upjohn itself did not involve warnings or a discussion

of a lawyer’s explanation regarding the scope of his

representation, the Supreme Court observed that, under certain

situations, information about the extent of the attorney-client

relationship between a corporate counsel and an employee might

be necessary. As a result of that case, “Upjohn warnings” have

evolved that specifically inform a corporate employee that

corporate counsel represents the corporation and not the

individual, and that the corporation possesses the attorney-client

privilege. See Grace M. Giesel, Upjohn Warnings, the Attorney-

Client Privilege, and Principles of Lawyer Ethics: Achieving

Harmony, 65 U. Miami L. Rev. 109, 110-111 (Fall 2010).

In addition to the traditional attorney-client relationship

and the corporate environment, the attorney-client privilege also

can exist in the context of co-defendants and their attorney or

attorneys. When multiple defendants and their counsel engage

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in a common defense, the privilege is not waived by the sharing

of confidential information among the parties for the benefit of

the joint defense. See Commonwealth v. Scarfo, 611 A.2d

242 (Pa.Super. 1992), superseded by statute on other ground as

stated in Commonwealth v. Buck, 709 A.2d 892 (Pa. 1998);