J-S19035-24
2024 PA Super 310
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH JOHN LESCHINSKIE, JR. :
:
Appellant : No. 825 MDA 2023
Appeal from the Judgment of Sentence Entered April 18, 2023
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0000213-2019
BEFORE: DUBOW, J., BECK, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED: DECEMBER 23, 2024
Appellant, Joseph John Leschinskie, Jr., appeals from his judgment of
sentence of one to three months’ incarceration imposed after he was convicted
by a jury of Unlawful Use of an Audio or Video Device in Court.1 For the
reasons set forth below, we affirm.
On January 15, 2019, Appellant was charged with Unlawful Use of an
Audio or Video Device in Court, Obstructing the Administration of Law or Other
Government Function, and Disorderly Conduct for an incident in the
Northumberland County Courthouse on January 4, 2019, in which Appellant
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 5103.1(a).
J-S19035-24
recorded testimony at a summary trial on his cell phone. A one-day jury trial
of these charges was held on March 15, 2023.2
At the jury selection on March 13, 2023, two days before the trial, a
number of prospective jurors told the court that they had heard about the
case or Appellant in the newspaper or on social media. N.T. Jury Selection at
14-16, 20-21, 26, 43-45. After jury selection was complete, the trial court
announced that it was issuing a gag order prohibiting the Commonwealth, the
Assistant District Attorney trying the case, the District Attorney’s Office,
Appellant, and Appellant’s counsel from speaking to the media, issuing any
statements, or posting on social media about the case, and the
Commonwealth and Appellant consented to the issuance of such an order. Id.
at 59-62. The trial court issued a written gag order later that day which
ordered that “the parties to this proceeding shall not make any public
statements or comments in any form, including but not limited to oral, written,
video, electronically, including any form of social media, in any way related to
this case.” Trial Court Order, 3/13/23.
Between the completion of jury selection and the start of Appellant’s
trial, an article appeared in the local newspaper, the Daily Item, reporting a
statement by the District Attorney concerning Appellant’s candidacy for
Shamokin City Council that asserted that Appellant was prohibited from
____________________________________________
2 An earlier jury trial in June 2022 resulted in a mistrial for reasons that are
not at issue in this appeal.
-2-
J-S19035-24
holding office because he had felony drug convictions. N.T. Trial at 5-6;
Defense Ex. 1. On the morning of March 15, 2023, before trial started,
Appellant moved for a mistrial with prejudice on the ground that the District
Attorney’s statement that was quoted in the news story violated the trial
court’s gag order. N.T. Trial at 5-7; Appellant’s 3/15/23 Motion for Mistrial.
The trial court held an immediate hearing on this motion at which the court
reporter who transcribed the jury selection and the individual who sent out
the District Attorney’s communications to the media testified and copies of the
newspaper article and the District Attorney’s communications were put in
evidence. N.T. Trial at 13-39; Defendant’s Exhibits 1-4. Following this
hearing, the trial court denied the motion for a mistrial on the ground that
there was no violation of the gag order because the District Attorney’s
statements were made before any gag order was issued. N.T. Trial at 37-39.
Appellant’s trial then commenced. When the jurors were brought in, the trial
court asked the jurors before the trial proceeded whether any of them had
read, seen, or heard anything concerning the case or concerning Appellant
since they were selected as jurors, and no juror responded that he or she had
read, seen, or heard anything. Id. at 39-40.
Four witnesses testified for the Commonwealth at the trial: the
Pennsylvania state trooper who had testified at the January 4, 2019 summary
trial, which was Appellant’s appeal of a traffic citation for speeding, a deputy
sheriff and a police officer who witnessed the events that occurred in the
-3-
J-S19035-24
hallway outside the courtroom where the summary trial had been held, and a
detective to whom Appellant complained about the incident. The trooper
testified that he was the officer who conducted the traffic stop at issue and
testified at the summary trial and that when he and Appellant left the
courtroom after the summary trial, Appellant had his cell phone in his hand.
N.T. Trial at 72-76, 87-88. The trooper testified that he then heard Appellant
say “the Superior Court is going to like hearing this” and heard a recording of
his voice coming from Appellant’s cell phone. Id. at 76-77, 83-88.
The deputy sheriff testified that he was in the courtroom during the
summary trial and that the trooper testified at the summary trial. N.T. Trial
at 90-91. The deputy sheriff testified that as he walked past Appellant after
leaving the courtroom, he heard the trooper’s voice coming from Appellant’s
cell phone and heard Appellant say “they are going to love hearing this at the
appeals court.” Id. at 91-92, 97-98. The police officer likewise testified that
as she passed Appellant in the hallway outside the courtroom, she heard
Appellant saying that the appeals court would love to hear this or similar words
and heard a recording of the trooper’s voice. Id. at 105, 108-09.
The detective testified that Appellant came to his office on January 4,
2019 to complain that a sheriff had assaulted and injured him in this incident.
N.T. Trial at 56-57. The detective testified that when he asked Appellant about
what happened, Appellant said that the sheriff accused him of making a
recording. Id. at 57. The detective testified that he then asked Appellant if
-4-
J-S19035-24
he made a recording and that Appellant answered yes. Id. at 57, 66. The
detective also testified that on January 4, 2019, there were signs at the
entrances to the courtroom stating that all electronic devices must be turned
off before entering the courtroom. Id. at 60, 71.
At the close of the Commonwealth’s case, the trial court granted
Appellant’s motion for judgment of acquittal on the Obstructing the
Administration of Law or Other Government Function and Disorderly Conduct
charges. N.T. Trial at 112. Appellant did not testify and presented no
witnesses. Following closing arguments and the court’s charge, the jury
returned a verdict finding Appellant guilty of Unlawful Use of an Audio or Video
Device in Court. Id. at 128-29. On April 18, 2023, the trial court imposed a
sentence of one to three months’ incarceration to be served consecutive to
the sentence imposed for Appellant’s terroristic threats conviction in another
case, CP-49-CR-0000116-2021.3 N.T. Sentencing at 12-13; Sentencing
Order.
Appellant filed a timely post-sentence motion in which he asserted
claims that the statute under which he was convicted was unconstitutional,
that the evidence was insufficient to support his conviction, that his conviction
was against the weight of the evidence, and that the trial court erred in
denying his March 15, 2023 motion for a mistrial. On May 31, 2023, the trial
____________________________________________
3 That terroristic threats conviction is the subject of other appeals before this
Court.
-5-
J-S19035-24
court denied Appellant’s post-sentence motion. Trial Court Order, 5/31/23.
This timely appeal followed.
Appellant presents the following four issues for our review in this appeal:
I. Whether the Appellant’s conviction for Unlawful Use of An Audio
or Video Device in Court is unconstitutional?
II. Whether the evidence was insufficient to sustain a conviction
for Unlawful Use of An Audio or Video Device in Court?
III. Whether the Defendant’s conviction for Unlawful Use of An
Audio or Video Device in Court was against the weight of the
evidence?
IV. Whether the trial court erred/abused its discretion in denying
the Defendant’s request for a mistrial with prejudice?
Appellant’s Brief at 10 (suggested answers omitted). We conclude that none
of these issues has merit.
Section 5103.1 of the Crimes Code defines the offense of Unlawful Use
of an Audio or Video Device in Court as follows:
A person commits [this] offense if the person in any manner and
for any purpose uses or operates a device to capture, record,
transmit or broadcast a photograph, video, motion picture or
audio of a proceeding or person within a judicial facility or in an
area adjacent to or immediately surrounding a judicial facility
without the approval of the court or presiding judicial officer or
except as provided by rules of court.
18 Pa.C.S. § 5103.1(a). Section 5103.1 defines “judicial facility” as “a
courtroom, hearing room or judicial chambers used by the court to conduct
trials or hearings or any other court-related business or any other room made
available to interview witnesses.” 18 Pa.C.S. § 5103.1(c).
-6-
J-S19035-24
In his first issue, Appellant argues that this statute violates the First
Amendment to the United States Constitution and Article I, Section 7 of the
Pennsylvania Constitution. Because a challenge to the constitutionality of a
statute is a question of law, our standard of review of this issue is de novo,
and our scope of review is plenary. Commonwealth v. Papp, 305 A.3d 62,
70 (Pa. Super. 2023).
Appellant asserts that private citizens have a constitutional right under
the First Amendment and Article I, Section 7 to make their own audio or video
recordings of court proceedings and that because Section 5103.1 bars such
recordings it is unconstitutional. We do not agree. Although there is no case
law specifically addressing Section 5103.1, the United States Supreme Court,
this Court, and numerous other courts throughout the country have held that
prohibiting audio and video recording of court proceedings does not violate
the First Amendment.
In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), in
addressing claims for release of tape recordings in the custody of a court, the
United States Supreme Court specifically held that there is no constitutional
right to record live witness testimony in a trial.
Id. at 610. This Court, in
Commonwealth v. Davis,
635 A.2d 1062 (Pa. Super. 1993), addressed and
rejected a First Amendment challenge to a judicial order prohibiting
videotaping of court proceedings, holding that prohibiting such recording was
a reasonable time, place, and manner restriction.
Id. at 1065-70. The federal
-7-
J-S19035-24
courts have also repeatedly held that prohibitions on recording court
proceedings do not violate the First Amendment. E.g., Conway v. United
States, 852 F.2d 187, 188 (6th Cir. 1988); United States v. Edwards,
785
F.2d 1293, 1285-96 (5th Cir. 1986); United States v. Yonkers Board of
Education,
747 F.2d 111, 112-14 (2d Cir. 1984); United States v.
Hastings,
695 F.2d 1278, 1282-84 (11th Cir. 1983); Shavlik v. Snohomish
County Superior Court,
2019 WL 2616631, at *7 (W.D. Wash. June 26,
2019); McKay v. Federspeil,
22 F.Supp.3d 731, 734-36 (E.D. Mich. 2014),
aff’d on other ground, McKay v. Federspiel,
823 F.3d 862 (6th Cir. 2016);
United States v. Moussaoui,
205 F.R.D. 183, 184-86 (E.D. Va. 2002).
Nothing in Section 5103.1 or the nature of Appellant’s recording makes
these precedents inapplicable. Section 5103.1 is content neutral, as it
prohibits recording “for any purpose.” 18 Pa.C.S. § 5103.1(a). Although no
issues of privacy of jurors or harm to the defendant were present here, as the
proceeding was Appellant’s own trial and it was a non-jury summary trial, that
does not make the reasons for prohibiting recording irrelevant. The portion
of the proceeding that Appellant recorded was a witness’s testimony, not
Appellant’s own actions or testimony. The courts, including this Court in
Davis, have specifically recognized the potential impact on witnesses as an
important reason for prohibiting recording. Davis, 635 A.2d at 1068;
Yonkers Board of Education,
747 F.2d at 114; Hastings,
695 F.2d at 1283-
84.
-8-
J-S19035-24
Appellant does not cite any precedent that justifies recognizing a
constitutional right to record court proceedings. Only three of the cases that
he cites, Whiteland Woods, L.P. v. Township of West Whiteland, 193
F.3d 177 (3d Cir. 1999), Fields v. City of Philadelphia,
862 F.3d 353 (3d
Cir. 2017), and a New York state trial court decision, People v. Boss,
701
N.Y.S.2d 891 (N.Y. Sup. 2000), involve any claim of a constitutional right to
record others. None of these cases provides persuasive authority to disregard
the overwhelming body of precedent rejecting a constitutional right to record
judicial proceedings.
Neither Whiteland Woods nor Fields recognized any constitutional
right to record courtroom proceedings. In Whiteland Woods, the United
States Court of Appeals for the Third Circuit held that there was no First
Amendment right to videotape a township planning commission, citing with
approval and relying on cases upholding the constitutionality of prohibitions
on recording judicial proceedings. 193 F.3d at 180-84. In Fields, the Third
Circuit recognized a First Amendment right to record police officers conducting
official police activity in public places.
862 F.3d at 359-60. Fields, however,
not only did not involve recording of a court proceeding, but also made clear
that it was not holding that there is a First Amendment right to record in all
places or circumstances, stating that “[w]e do not say that all recording is
protected” and citing Whiteland Woods.
Id. at 360.
-9-
J-S19035-24
The New York trial court in Boss recognized a right to televise court
proceedings under the First Amendment. 701 N.Y.S.2d at 893-95. That
ruling, however, is inconsistent with later appellate decisions in the same state
which hold that no such constitutional right exists. Courtroom Television
Network LLC v. State, 833 N.E.2d 1197, 1200–03 (N.Y. 2005); Santiago
v. Bristol,
709 N.Y.S.2d 724, 726 (N.Y. App.Div. 2000). It therefore is not
even valid precedent in New York, let alone a basis to disregard the weight of
precedent holding that there is no First Amendment right to record judicial
proceedings, including decisions of this Court and the United States Supreme
Court.
Appellant argues that even if there is no First Amendment right to record
court proceedings, such a right should be recognized under Article I, Section
7 of our Constitution. That contention is without merit. Article I, Section 7
does provide broader protection than the First Amendment from some
content-based restrictions on speech. Oberholzer v. Galapo, 322 A.3d 153,
176 (Pa. 2024); Pap’s A.M. v. City of Erie,
812 A.2d 591, 605-13 (Pa. 2002).
Article I, Section 7, however, does not provide broader protection than the
First Amendment for all claims alleging an unconstitutional restriction on
speech. Oberholzer, 322 A.3d at 176.
Article I, Section 7 is co-extensive with the First Amendment where
content-neutral restrictions related to judicial proceedings are challenged.
S.B. v. S.S., 243 A.3d 90, 112-13 (Pa. 2020) (Article I, Section 7 is co-
- 10 -
J-S19035-24
extensive with First Amendment with respect to constitutionality of gag order
in child custody case); see also Oberholzer, 322 A.3d at 176 (citing the
upholding of a ban on taking of pictures in courthouse in In re Mack, 126
A.2d 679 (Pa. 1956), as an example of where Article I, Section 7 is co-
extensive with the First Amendment). Because Section 5103.1 of the Crimes
Code is a content-neutral regulation of behavior in court proceedings, Article
I, Section 7 does not provide any broader protection than the First
Amendment. Moreover, there is no basis to conclude that our Supreme Court
would view Article I, Section 7 as creating a right to record court proceedings,
as it has promulgated court rules, Rule 112 of the Rules of Criminal Procedure
and Rule 1910 of the Rules of Judicial Administration, that specifically prohibit
the recording of such proceedings. Pa.R.Crim.P. 112(A), (C); Pa.R.J.A. 1910.
Appellant also contends that even if recording of testimony can be
prohibited, Section 5103.1 is unconstitutionally overbroad because it prohibits
photographing and recording of people in a courtroom when court is not in
session, recording in areas “adjacent to or immediately surrounding a judicial
facility,” and photographing of ceremonies in courtrooms, such as weddings
and adoptions. We do not agree. A statute can be held unconstitutional due
to overbreadth only if it restricts a substantial amount of constitutionally
protected conduct in comparison to the conduct that it permissibly prohibits.
Commonwealth v. Davidson, 938 A.2d 198, 208 (Pa. 2007);
Commonwealth v. Hendrickson,
724 A.2d 315, 317-18 (Pa. 1999). In
- 11 -
J-S19035-24
addition, an overbreadth challenge is weaker where the statute prohibits
conduct rather than pure speech. Hendrickson, 724 A.2d at 318; Papp, 305
A.3d at 74.
Section 5103.1 prohibits conduct, “us[ing] or operat[ing] a device to
capture, record, transmit or broadcast,” not pure speech, and does not
prohibit a substantial amount of protected activity in comparison to the
conduct that it legitimately bars. The fact that it applies regardless of whether
court is in session does not make its restrictions overbroad, as the need to
protect witnesses exists when they are at court before and after the court is
in session. Although the statute applies to areas “adjacent to or immediately
surrounding a judicial facility,” that does not restrict a substantial amount of
conduct outside the court proceeding, as Section 5103.1 narrowly defines
“judicial facility” as the courtroom itself, a hearing room, a judicial chambers,
and a room where witnesses are being interviewed, not the entire building
that houses the court. 18 Pa.C.S. § 5103.1(c). The prohibition on recording
is thus limited to the rooms where judicial proceedings occur or witnesses are
located and to persons going to and coming from such rooms.
Appellant’s remaining overbreadth claim, that Section 5103.1
criminalizes the recording of weddings and adoptions is simply inaccurate.
Section 5103.1 only prohibits recording “without the approval of the court or
presiding judicial officer or except as provided by rules of court.” 18 Pa.C.S.
§ 5103.1(a). Both the Rules of Judicial Administration and the Rules of
- 12 -
J-S19035-24
Criminal Procedure specifically permit judges to authorize the recording of
such ceremonial proceedings. Pa.R.J.A. 1910(B)(2); Pa.R.Crim.P. 112(B).
Because prohibiting the recording of court proceedings does not violate
the First Amendment or Article I, Section 7 of our Constitution and Section
5103.1 does not significantly restrict activities outside its legitimate reach,
Appellant’s constitutional challenge to his conviction fails.
In his second issue, Appellate argues that that the evidence admitted at
trial was insufficient to support his conviction. The standard of review
applicable to this issue is well established:
When reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth, were sufficient to prove every
element of the offense beyond a reasonable doubt. The facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. The Commonwealth may
sustain its burden of proving every element of the crime beyond
a reasonable doubt by means of wholly circumstantial evidence.
Papp, 305 A.3d at 81 (quoting Commonwealth v. Collins, 286 A.3d 767
(Pa. Super. 2022)) (brackets omitted). Appellant contends that the evidence
here was insufficient because it allegedly did not prove two elements of the
offense of Unlawful Use of an Audio or Video Device in Court, that he recorded
a court proceeding and that he did not have approval of the court to record
the proceeding.
Contrary to Appellant’s contentions, the evidence was sufficient to prove
both of these elements. The Commonwealth introduced testimony that
- 13 -
J-S19035-24
immediately upon leaving a courtroom where a summary trial of Appellant’s
traffic citation had just been held, Appellant played the voice of a person who
had testified at the summary trial on his cell phone and that while the witness’s
voice played on his phone, Appellant said that an appellate court would “like”
or “love” hearing that recording. N.T. Trial at 72-77, 83-88, 90-92, 97-98,
105, 108-09. That evidence alone is sufficient for the jury to infer that
Appellant recorded the witness’s testimony in the courtroom. In addition, the
Commonwealth introduced testimony that Appellant admitted later that day
that he had recorded in the courtroom. Id. at 57.
The evidence was likewise sufficient to for the jury find that Appellant
did not have approval of the court to record the proceedings. The trooper,
who was present at the summary trial as a witness, testified that no
permission to record was announced in the courtroom. N.T. Trial at 73. The
jury could infer that no one privately gave Appellant permission to record from
the testimony because his behavior was inconsistent with a belief that he was
allowed to record the proceeding. The Commonwealth’s evidence showed that
Appellant tried to conceal the fact that his phone had a recording of the
summary trial and kept trying to do things to his phone after the deputy sheriff
confronted him and told him that he had to return to the courtroom because
he had recorded the proceeding. Id. at 76-77, 92-93, 101-02. In addition,
in response to the deputy sheriff’s question as to whether he had recorded the
proceeding, Appellant first contended that that he did not record it, then
- 14 -
J-S19035-24
claimed that he did not know that recording was prohibited, and never claimed
that he had been given permission to record. Id. at 92, 105-06, 109.
Appellant’s third issue, the claim that the verdict was against the weight
of the evidence, likewise fails. A new trial may be granted on the ground that
the verdict is against the weight of the evidence only where the verdict was
so contrary to the evidence that it shocks the trial court’s sense of justice.
Commonwealth v. Clemons, 200 A.3d 441, 463 (Pa. 2019);
Commonwealth v. James,
268 A.3d 461, 468 (Pa. Super. 2021). Our
review of the denial of a motion for a new trial based on weight of the evidence
is limited. We review whether the trial court abused its discretion in
concluding that the verdict was not against the weight of the evidence, not
whether the verdict, in this Court’s opinion, was against the weight of the
evidence. Clemons,
200 A.3d at 463-64; Commonwealth v. Delmonico,
251 A.3d 829, 837 (Pa. Super. 2021).
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge …. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014) (quoting
Commonwealth v. Clay,
64 A.3d 1049 (Pa. 2013)) (brackets omitted).
The trial court found that the verdict did not shock its sense of justice.
Trial Court Rule 1925(a) Statement; N.T., 5/30/23, at 26-27, 29. That was
not an abuse of discretion, as the testimony detailed above was sufficient for
- 15 -
J-S19035-24
the jury to conclude that Appellant recorded the trooper’s testimony at the
summary trial on his cell phone without permission from the court and there
was no evidence contradicting that testimony or negating its credibility.
Appellant argues that the verdict was against the weight of the evidence
because the recording that Appellant made was not introduced in evidence
and the witnesses could not say that they recognized specific testimony from
the summary trial in the recording of the trooper that that they heard on
Appellant’s phone. Appellant’s Brief at 14, 21-22. That argument is without
merit. Neither of these facts makes the verdict contrary to the evidence, as
the witnesses’ testimony that they heard the trooper’s voice on Appellant’s
phone showed that he had recorded the trooper, there was substantial
circumstantial evidence from the timing of the playing of the recording and
Appellant’s statement of intent to use it in an appeal from which it could
reasonably be concluded that the recording was of testimony in the summary
trial, and there was evidence that Appellant admitted recording the
proceeding.
In his final issue, Appellant argues the trial court erred in denying his
motion for a mistrial because the District Attorney made a statement to the
press that violated the trial court’s gag order and asserts that the District
Attorney’s statement prejudiced him because it referred to his prior criminal
record. This issue fails because the contentions on which it is based are
unsupported, and indeed contradicted, by the record.
- 16 -
J-S19035-24
The record unequivocally shows that no gag order was in effect at the
time that the District Attorney made his statements to the press. The court
stamp on the written gag order shows that it was issued at 3:21 p.m. on March
13, 2023. Trial Court Order, 3/13/23. Although the trial court made clear
before the written order that it would be issuing a gag order, the transcript of
the jury selection shows that this expression of intent to issue a gag order
occurred after 12:49 p.m. on March 13, 2023. N.T. Jury Selection at 59-62.
The documents introduced in evidence at the trial court’s hearing on the
motion for a mistrial demonstrate that the District Attorney’s communications
with the press occurred at 8:41 a.m. on March 13, 2023, and at 10:58 a.m.
on March 13, 2023, hours before anyone in the District Attorney’s Office had
any reason to believe that any gag order had been or would be issued. N.T.
Trial at 22-35; Defendant’s Exhibits 2, 4. Moreover, the District Attorney’s
communications do not show a motive to influence this case, as they were in
response to Appellant’s recent filing of his candidacy for political office and
commented solely on his candidacy and inability to hold office, not on this trial
or criminal case. Defendant’s Exhibits 2-4.
In addition, there is no evidence that the District Attorney’s statements
caused Appellant prejudice, as there is nothing in the record indicating that
any of the jurors read or heard about those statements. After the news story
appeared, the trial court specifically asked the jurors if they had “read, seen,
heard, observed anything relating to this case since you were selected as
- 17 -
J-S19035-24
jurors” or “read any articles, seen any videos, anything relating to [Appellant]
since Jury Selection.” N.T. Trial at 40. No juror responded that he or she had
seen or heard anything about the case or about Appellant. Id. Given the
absence of any violation of the trial court’s order and the absence of any
prejudice to Appellant, the trial court’s denial of the motion for a mistrial was
entirely proper.
For the foregoing reasons, we conclude that none of Appellant’s issues
merits relief. We accordingly affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/23/2024
- 18 -
