finding sufficient evidence of obstruction of justice where defendant and co-conspirator withheld documents that should have been turned over to the Office of Attorney General pursuant to subpoenas and altered documents prior to producing them
How later courts described this case
- finding sufficient evidence of obstruction of justice where defendant and co-conspirator withheld documents that should have been turned over to the Office of Attorney General pursuant to subpoenas and altered documents prior to producing them
- “[T]he conflict of interest provisions of the Ethics Act are neither so vague as to encourage arbitrary or discriminatory enforcement, nor do they lack sufficient definiteness such that an ordinary person *1026 could not understand and predict what conduct is prohibited.”
- “Whether a political party, a charity, or an individual’s bank account is the ultimate recipient of the misappropriated funds and resources is irrelevant to establishing a violation of the conflict of interest provision of the Ethics Act.”
- Concurring and Dissenting Statement by Fitzgerald, J.
Written by the judges who cited it.
The opinion
Justice FITZGERALD
files a concurring and dissenting statement.
CONCURRING AND DISSENTING STATEMENT BY FITZGERALD, J.
I join in the majority opinion to reject Appellant’s constitutional and sufficiency of the evidence challenges. I respectfully dissent because, in my view, Appellant, at the pretrial hearing upon the claim of prosecutorial misconduct, established a prima facie case that the Office of the Attorney General (“the OAG”), contrary to its policy, destroyed potentially material evidence in witness interview notes before transposition into the formal record of investigation (ROI). Under the circumstances of this case, I further conclude that Appellant demonstrated the need for an evidentiary hearing to establish a complete record to support a resolution of his claim that OAG acted in bad faith. Therefore, I concur in part, and dissent in part.
On July 1, 2011, Appellant joined in a defense pretrial motion to dismiss the charges due to prosecutorial misconduct. The joint motion included a request for an evidentiary hearing to (1) account for the materials destroyed, (2) establish the dates of the destruction, (3) determine the identity of the individual who directed and destroyed the materials, and (4) discover any documentation of the destruction. Joint Mot. to Dismiss Due to Prosecutorial Misconduct, 7/1/11, at 9. The OAG responded that the motion for dismissal was procedurally improper, requested an unconstitutional form of relief, and was mer-itless. Commonwealth’s Resp. to Defs.’ Joint Mot. to Dismiss Due to Prosecutorial Misconduct, 7/18/11, at 2. In addressing the merits of the defense motion, the OAG averred that it destroyed the handwritten *1129 investigation notes pursuant to its policy, only after the details of all original handwritten notes were transposed into the ROI. Id. at 5.
The trial court heard arguments on July 20, 2011. Counsel for codefendant Jill Seaman noted that the ROI did not include summaries for 94 of the 183 witnesses who testified before the grand jury, or for 64 of the 85 potential trial witnesses named by the Commonwealth. N.T., 7/20/11, at 93-94. The OAG asserted that “the policy was followed in these prosecutions.” Id. at 118. Defendants jointly reiterated their request for an evidentiary hearing, arguing, in relevant part, that the dates of destruction “are critical. It is a measure of the degree of misconduct and it will reveal the intent when those dates of destruction are known.” Id. at 119-20.
The trial court questioned OAG’s counsel regarding a passage in the grand jury transcript indicating that there had been a “disastrous proffer session.” Id. at 125. The court asked, “Now you said your policy says that has to be transposed into the ROI. Would this disastrous proffer session be part of the ROI?” Id. The OAG replied, “The reason that some of the notes I don’t believe were transposed into the ROI is because it is preserved in the grand jury testimony, which is actually more verbatim than what would be in the report.” Id. (emphasis added).
The trial court, on July 29, 2011, denied the joint defense request for an evidentia-ry hearing and motion to dismiss. Order, 7/29/11, at 1. The court recognized that the request for dismissal or an evidentiary hearing did not present straightforward Brady 1 claims and “would perhaps better have been raised under the framework announced in Commonwealth v. Snyder, 599 Pa. 656 , 963 A.2d 396 (2011)[,]” which no party cited. Order at 3 & n. 1. Nevertheless, the court concluded (1) the subject notes were destroyed pursuant to the OAG’s policy; (2) the destruction of the notes was not a per se violation of Brady; and (3) that the defense failed to establish a right to relief. Id. at 3-4. Although the court acknowledged arguments that not all notes were properly memorialized in the ROI and that the grand jury transcripts did not adequately capture “possible underlying inconsistent statements,” it determined that adequate relief was possible through “broad latitude on cross examination to explore any such statements and present issues of credibility to the jury.” Id. at 4. In sum, the court found that the destruction of the notes did not rise to the level of a due process violation. Id.
Since the majority opinion has thoroughly discussed and summarized the governing law regarding the destruction of evidence, I reiterate only that the controlling issue “is thus limited to whether the OAG destroyed the interview notes in bad faith.” See Majority Op. at 1112. Although I agree with the majority’s exposition of the law, I differ in the application of the law to the circumstances of this case.
Instantly, the policy relied upon by the OAG required that “[a]ny details within original handwritten investigative notes ... be transposed into the investigative report.” OAG Chief Mem. 2001-02, 7/24/11 (emphasis added). At the hearing on the joint defense motion to dismiss, the OAG indicated that some notes might not have been incorporated into the ROI, but justified those omissions based on the presence of grand jury transcripts. See N.T. at 125. The OAG’s policy itself, however, provides no exception for omitting the transposition of notes based on “substantially more verbatim” records or grand jury transcripts. The OAG, furthermore, *1130 provided no explanation responsive to the allegations that the ROI did not include summaries for more than half of the witnesses who testified before the grand jury and that the ROI did not contain summaries for more than three-quarters of the potential trial witnesses named by the Commonwealth.
Although “evidence destroyed outside a standard procedure is not ipso facto destroyed in bad faith[,]” Snyder, 963 A.2d at 406 , I conclude disputed issues of material fact exist regarding the OAG’s representation that it complied with its policy, which were not expressly resolved by the trial court. Thus, I would hold that an eviden-tiary hearing was required. Cf. Commonwealth v. Chapman, 255 Pa.Super. 265 , 386 A.2d 994, 1004-05 (1978) (remanding for hearing to develop record regarding Brady claim). Moreover, if it is shown that evidence was destroyed in violation of the policy, then further inquiry into the circumstances surrounding the destruction of the evidence, as well as the nature of the evidence destroyed, would be necessary to determine the OAG’s intent.
Thus, I concur in part and dissent in part.
. Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963).