Dissenting:
¶ 1 I respectfully disagree with the majority’s reversal of the trial court’s order which granted WPXI access to the audiotape of Upshur’s phone call for the purpose of recording it. In its Opinion, the majority makes the distinction between the manner in which WPXI has access to the information contained on the audiotape, in the form of audiotape or transcript, because the audiotape is not part of the record and it would cause pre-trial publicity prejudicial to the case. However, I believe that once the audiotape was played at the preliminary hearing, the contents became part of the record and were revealed to the media and anyone who attended. Because of the public openness of the preliminary hearing, I would agree with the trial court that WPXI should be granted access to the audiotape.
¶2 The United States Supreme Court has held that the First and Fourteenth Amendments to the United States Constitution protect the right of the press and the public to attend criminal trial proceedings. See Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Accord Commonwealth v. Fenstermaker, 515 Pa. 501, 504, 530 A.2d 414, 416 (1987). The tradition of keeping proceedings and records of the criminal justice system open to public observation is based upon the First Amendment of the Constitution of the United States and upon Article I, sections 9 and II of the Pennsylvania Constitution. Id., at 506, 530 A.2d at 417. “Article I, section 9 provides, ‘In all criminal prosecutions the accused hath a right to... a speedy public trial...,’ and Article I, section 11 states, ‘All courts shall be open.’ ” Id., at 506, 530 A.2d at 417. We have held that the United States Constitution and Pennsylvania Constitution extend this right of access to preliminary hearings. See Commonwealth v. Murray, 348 Pa.Super. 439, 502 A.2d 624, 626 (1985).
¶ 3 A defendant may make a stenographic record of a preliminary hearing. Pa.R.Crim.P. 542(C)(5). Further, a defendant may make notes himself, or he may make a mechanical or electronic recording of the preliminary hearing. Id. Considering the public’s and the media’s right of access to preliminary hearings, WPXI could also have taken notes and have obtained a copy of the stenographic record. The majority notes that WPXI could have requested a transcript of the preliminary hearing. Majority opinion, at 503. In this instance, I also would further WPXI’s access to record the preliminary hearing in a manner consistent with the defendant’s right to make a record pursuant to Pa. R.Crim.P. 542(C)(5). As I would have found that WPXI could have recorded the preliminary hearing with its own recording device, I believe that WPXI could have access to the audiotape to make a copy of the phone call that was played at the preliminary hearing. Therefore, I would affirm the trial court’s grant of access to WPXI for the purpose of recording the audiotape.
¶ 4 I also disagree that granting WPXI access to the audiotape would subject Ups-hur to greater public scrutiny and, thus, sensationalize the case. With respect to Sixth Amendment considerations, in the usual case, pre-trial publicity does not automatically render a fair trial impossible. Fenstermaker, at 513, 530 A.2d at 420 (citation omitted). Moreover, one who claims a denial of a fair trial because of pre-trial publicity must show actual prejudice in the empanelling of the jury or show that the pre-trial publicity was so pervasive or inflammatory such that prejudice may be presumed. Commonwealth v. Wright, 865 A.2d 894, 911 (Pa.Super.2004) *507(citation omitted). I would be reluctant to declare, based solely on the Commonwealth’s characterization of the audiotape as “vivid, powerful and potentially inflammatory,” that the release of the audiotape will cause Upshur to have an unfair trial even before the empanelment of the jury and the commencement of trial. Thus, I would conclude that permitting WPXI to record the audiotape would not be so prejudicial as to prohibit access to the audiotape.
¶ 5 Because I would find that WPXI had a right of access to the audiotape for the purpose of recording it and that the release of the audiotape would not prejudice the Commonwealth’s case, I would grant WPXI access to the audiotape of the phone call played at the preliminary hearing for the purpose of recording it. I do not believe that WPXI’s access to the audiotape should be limited to a transcript. For these reasons, in giving deference to the reasoning of the trial court, I would conclude that it did not abuse its discretion by granting WPXI access to the audiotape of the phone call for the purpose of recording it. Accordingly, I would affirm the order of the trial court.