Commonwealth v. Schultz

133 A.3d 294

COMMONWEALTH of Pennsylvania, Appellee

v.Gary Charles SCHULTZ, Appellant.

No. 280 MDA 2015

Superior Court of Pennsylvania.

Argued Aug. 11, 2015.

Filed Jan. 22, 2016.

Reargument Denied March 30, 2016.

Thomas Farrell, Pittsburgh, for appellant.

Amy Zapp, Office of the Attorney General, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, JENKINS, and PLATT,^* JJ.

OPINION BY BOWES, J.:

Gary Charles Schultz appeals from the order denying his pre-trial motions to preclude the introduction of testimony of Attorney Cynthia Baldwin¹ and to quash certain criminal charges against him based on violations of the attorney-client privilege.² After careful review, we reverse the trial court's order in which it found that Schultz was properly represented by Ms. Baldwin during his grand jury testimony as an agent of Penn State and that no attorney-client privilege existed. For the reasons that follow, we also hold that Schultz was constructively denied counsel during his grand jury testimony and that Ms. Baldwin was incompetent to testify as to her communications with him. Accordingly, we quash the counts of perjury, obstruction of justice, and the conspiracy charge.

Part I: Factual and Procedural Background

In these actions, the Commonwealth has charged Schultz 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

Schultz is a retired Senior Vice President for Finance and Business for the Pennsylvania State University ("Penn State" or "University"). As part of the responsibilities in that position, Schultz oversaw Penn State campus police. In 2009, the Pennsylvania Office of Attorney General ("OAG") began investigating allegations that Sandusky 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, 11/4/11, at 18 (hereinafter Sandusky Presentment). 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.

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 later 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 Athletic Director Tim Curley the following day. Id. Within two weeks of the shower incident, McQueary met with Curley and Schultz. Id. McQueary, who testified before the grand jury prior to January 12, 2011, said that he told the pair that he believed he saw Sandusky having anal sex with a minor boy. Id.

Schultz was originally subpoenaed in December of 2010 to testify before the investigating grand jury on January 12, 2011. At the time, Schultz was no longer employed by Penn State, having been retired for approximately a year and one-half.⁵ Subpoenas were also issued for Curley and Paterno. Penn State general counsel, Attorney Baldwin, accepted service of the subpoena on Schultz's behalf with his permission.⁶ Ms. Baldwin also agreed, at the request of Penn State President Dr. Graham Spanier, to advise and be present for Schultz's grand jury testimony. N.T., 10/26/12, at 14. Ms. Baldwin met one time with Schultz prior to his testimony. That meeting occurred on January 5, 2011.⁷ Ms. Baldwin related to Schultz that, as a grand jury witness, he was entitled to an attorney who could be present and consult with him during his testimony and that he could retain his own lawyer. N.T. Schultz Hearing, 11/20/14, at 10–12; see id. at 55. She indicated that she had spoken with Curley and Paterno and that no conflict existed between their recollection and Schultz's and she felt comfortable appearing on behalf of both Curley and him. Id. at 54. Paterno retained separate counsel.

Ms. Baldwin did not advise Schultz regarding his Fifth Amendment right against self-incrimination. Ms. Baldwin also did not explain the difference between her representation of Schultz in his individual capacity or as an agent of his former employer, Penn State. Nonetheless, she did inform Schultz that any information he told her was not confidential insofar as she could relay it to the University Board of Trustees. Id. at 54. Ms. Baldwin set forth,

I did tell Mr. Schultz that I was Penn State's general counsel. I could go in. I was going in with Mr. Curley. I was not going in with Mr. Paterno. Mr. Paterno got his own counsel.

I told him that as long as there was no conflict, that I could go in with him.

Id. Ms. Baldwin did not inform the Board of Trustees of Schultz's statements to her.

On the morning of his scheduled grand jury appearance, agents from the OAG interviewed Schultz before he testified. Present for that interview was Attorney Baldwin. Ms. Baldwin also attended the OAG interview of Tim Curley that same day. Following these interviews, but before Schultz testified, Ms. Baldwin inquired with a deputy attorney general if Schultz and Curley were targets of the criminal investigation. The prosecutor, Deputy Attorney General Jonelle Eshbach, informed her that they were not targets at that time.⁸ Id. at 17 (Schultz testified, "And while we were there, Ms. Eshbach came in the room and talked with Ms. Baldwin. And I recall Ms. Baldwin asking her, are my clients a target of the grand jury investigation. And I recall Ms. Eshbach saying not at this time."); see also id. at 60 (Ms. Baldwin set forth, "[Ms. Eshbach] said, no, that they weren't targets but I don't know.").

Prior to Schultz's testimony, Judge Barry Feudale, the Grand Jury Supervising Judge, 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 Schultz 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 Schultz and Curley. Judge Feudale, without requesting further clarification from Ms. Baldwin, 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

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