Commonwealth v. Boyer

282 A.3d 1161

COMMONWEALTH of Pennsylvania

v.Andre BOYER, Appellant

No. 1165 EDA 2021

Superior Court of Pennsylvania.

Submitted May 31, 2022

Filed September 8, 2022

Melissa B. Freeman, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.

OPINION BY STABILE, J.:

Appellant, Andre Boyer, appeals from the May 10, 2021 order entered in the Court of Common Pleas of Philadelphia County finding him guilty of indirect criminal contempt. 23 Pa.C.S.A. § 6114.^{1 ,2} Appellant argues that the trial court erred by denying his due process rights, that it lacked jurisdiction to enter the order, and that the evidence was insufficient to support a finding of indirect criminal contempt. Upon review, we affirm.

Appellant's conviction stems from the service of a subpoena directing him to appear as a witness in a grand jury investigation. As the trial court explained:

During the period of July, 2019 through March, 2021, the trial court was the supervising judge of the Thirtieth Investigating Grand Jury for Philadelphia County. As part of its responsibilities, the trial court swore in all witnesses who were to be presented to the investigating grand jury and presided over any proceedings related to the investigating grand jury, including violations of the oath of secrecy. On September 5, 2019 a hearing regarding grand jury investigation C-22 was held. The purpose of this hearing was to give Appellant the witness oath and the grand jury oath of secrecy.^[3] Initially, prior to Appellant being present and before the administration of the oaths to Appellant, the only parties present [were] the assigned Assistant District Attorney, Tracy Tripp, a court reporter, and the trial court.

During this initial portion of the hearing, the Commonwealth recounted that, prior to September 5, 2019, Sergeant Detective Gerry Rocks requested Andre Boyer [ ] to come to the District Attorney's Office. Sergeant Rocks did not inform Appellant that this was so he could be served with a grand jury subpoena related to grand jury investigation C-22. Appellant did not appear, instead, Appellant sent Sergeant Rocks an email accusing the District Attorney's Office of trying to trick him into coming in so that he could be arrested.

A few days later, Detective Frank Wallace served a grand jury subpoena on Appellant. He explained to Appellant it was a grand jury subpoena, told Appellant the date that he was requested to appear, and explained the sealing order and its impact on Appellant, i.e., Appellant is unable to discuss any of this information. Apparently, while Detective Wallace was serving the subpoena, Appellant was recording and live streaming all that was transpiring onto social media from his phone in his pocket. Appellant repeated what Detective Wallace explained to him to show his understanding of the subpoena and the sealing order and recorded all of this on his phone in his pocket. Within 15 to 20 minutes after serving the subpoena and getting in his car to leave, Detective Wallace received numerous notifications from police officers who recognized him from Appellant's live stream. The Commonwealth was notified by a detective in Internal Affairs that the service of the subpoena had been live streamed, but by the time they had been notified, Appellant's live streamed video was gone and could not be retrieved by the Commonwealth.

On September 5, 2019, Appellant appeared before [the] trial court related to grand jury investigation C-22 so that he could be sworn in as a witness, advised of his rights and duties as a witness, and so that he could receive the oath of secrecy related to grand jury witnesses. As is common in grand jury matters involving only the administration of oaths to witnesses, Appellant was not represented by an attorney. However, on this date during the administration of the witness oath, he was advised of his right to retain an attorney or have an attorney appointed to represent him during the time that he would be a witness testifying before the grand jury.

On this date, Appellant was informed about what the grand jury investigation was related to; who the target of that investigation was, and what information he would be asked to supply to the grand jury. At the September 5, 2019 hearing, the trial court issued a verbal order directing Appellant:

Again, Mr. Boyer, nothing that is being said in this room, nothing that you told Ms. Tripp about the nature of the investigation, and nothing about your testimony itself[,] what you say or what you learn during the course of this investigation as it relates to you being a witness before the Grand Jury is something you can reveal. You already revealed certain things on your blog or news media website. Obviously, that is not covered because that happened way before this conversation, but if there is anything that you learn as a result of you being a witness that cannot make it to your website. ... You have the obligation to give continuing information to Ms. Tripp. ... What you have to do is give the information that you have in your possession at the time that you are being asked questions, you are to be truthful and accurate.

N.T. 09/05/2019 at 26-29. The trial court further instructed Appellant, "... if you get more information from your sources about this, it doesn't come from your testimony, it comes from something else, are you allowed to publish that[?] And it pains me, but I suspect the answer is yes. In that publishing you certainly cannot say, oh, by the way this is a grand jury investigation." Id. at 29-30.

Prior to the date that he was scheduled to testify before the investigating grand jury, Appellant was arrested. Appellant was arrested by Detective Frank Wallace for a Violation of the Uniform Firearms Act (VUFA 6108)^[4]. Detective Wallace arrested Appellant prior to Appellant giving testimony because Appellant was informed of the warrant for his arrest and attempted to flee.

Subsequently, on August 23, 2020, Appellant posted a video to his media website, Philly Serpico News, titled, "Corruption in Philly Serpico News." The video and post stated that a Philadelphia 35^th District Detective arrested a grand jury witness moments before he was set to testify against a high-ranking Philly police boss, then put a contract hit out on his life. Appellant further alleges in his video that the subject of the grand jury matter is [that] a high-ranking staff inspector assaulted a Temple University student in his police car and that the grand jury is set to indict the high-ranking staff inspector.

On October 29, 2020, a hearing regarding grand jury investigation C-22 was held. The trial court issued a Rule to Show Cause as to why Appellant should not be held in indirect criminal contempt of a Court Order because Appellant had violated the trial court's order and the grand jury secrecy oath by posting the aforementioned video on August 23, 2020. At the time of the hearing, the post and video were still live on the website. Additional evidence and testimony was presented at a second hearing on this matter on April 20, 2021.

On May 6, 2021, a final hearing regarding grand jury investigation C-22 was held. The trial court had previously held its decision whether to find Appellant in indirect criminal contempt under advisement from the April 20, 2021 hearing. The trial court found Appellant to be in indirect criminal contempt of its verbal order issued on September 5, 2019. The trial court did not impose a fine or incarceration, but ordered that Appellant be precluded and ordered not to reference any additional grand jury material related to what he was told the investigation was about on his media website in written, oral, or audio format.

Trial Court Rule 1925(a) Opinion, 8/31/21, at 3-6 (some citations to notes of testimony from the May 6, 2019, October 29, 2020, April 20, 2021, and May 6, 2021 hearings omitted).

The trial court's May 10, 2021 order states:

Now, this 10^th day of May, 2021, [Appellant] having been found guilty of indirect criminal contempt of this court's order dated September 5, 2019, [Appellant] shall not post any grand jury materials or discuss any matters related to any grand jury investigation or targets on any news media website or social media websites.

[Appellant] is not to engage in any conversation or discussions related to grand jury materials, grand jury targets, or grand jury witnesses, related to their involvement with the grand jury, with anyone other than his attorney.

[Appellant] is not to utilize any video pertaining to grand jury materials, targets, witnesses, or individuals in any capacity.

If [Appellant] wishes to discuss these matters or utilize video for any purpose, he is to seek leave from the court to disclose these materials for these other purposes. Upon such motion a hearing will be scheduled.

Order, 5/10/21, at 1 (some capitalization omitted).

Appellant filed a timely appeal from the May 10, 2021 order. Both he and the trial court complied with Pa.R.A.P. 1925.

Appellant asks us to consider the following issues on appeal:

A. Due Process – Whether the trial court erred in denying Appellant's due process rights in violation of Article 1, Section 9 of the Pennsylvania Constitution and the 14^th Amendment of the U.S. Constitution, where there was no notice of an indirect criminal contempt charge prior to the contempt hearing commencing.

B. September 5, 2019 Nondisclosure Order

1. Verbal Order – Whether the trial court erred in finding indirect criminal contempt for violating an order, as the alleged violated verbal order given September 5, 2019, and not followed by a written order, is not enforceable to find Appellant in indirect contempt.

2. 42 Pa .C.S. § 4549(d) Cause Hearing – Whether the trial court lacked jurisdiction to enter a September 5, 2019 witness nondisclosure order where Appellant moved for the release of the unredacted transcript and there was no

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