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Home My WebLink AboutCP-21-CR-1913-2006 (3) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : DAVID DECK : CP-21-CR-1907-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : TRACI M. GEORGIADIS : CP-21-CR-1908-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : JON GEORGIADIS : CP-21-CR-1913-2006 IN RE: DEFENDANT DAVID DECK’S MOTION TO PRECLUDE INTRODUCTION OF AUDIO TAPES BEFORE OLER, J. OPINION AND ORDER OF COURT OLER, J., April 23, 2007, Defendant David Deck has been charged in the instant matter with (a) ten counts of statutory sexual assault, (b) ten counts of involuntary deviate sexual intercourse, (c) ten counts of aggravated indecent assault, (d) twenty counts of indecent assault, and (e) 1 two counts of sexual abuse of children. For disposition at this time is a Motion To Preclude Introduction of Audio Tapes filed by Defendant Deck (hereinafter Defendant). The motion concerns a tape recording of a telephone conversation between Defendant, and the alleged victim, C.P. Defendant argues that, because he never gave consent to be 1 See generally Criminal Information of David Deck filed September 1, 2006. recorded, the tape was made in violation of Pennsylvania’s Wiretapping and Electronic 23 Surveillance Control Act and is inadmissible at trial. A hearing on this issue was held on March 21, 2007. For the reasons stated in this opinion, the Defendant’s Motion To Preclude Introduction of Audio Tapes will be granted and the Commonwealth will be prohibited from introducing into evidence at trial the audio tape which is the subject of the Defendant’s motion. STATEMENT OF FACTS Defendant is charged with (a) ten counts of statutory sexual assault, (b) ten counts of involuntary deviate sexual intercourse, (c) ten counts of aggravated indecent assault, (d) twenty counts of indecent assault, and (e) two counts of sexual abuse of children, 4 arising out of alleged incidents occurring between November 1, 2005 and July 6, 2006. These charges all stem from the Defendant’s alleged conduct with regard to C.P., a child 5 under the age of 16. The facts relevant to the present motion, based upon the evidence received at the hearing on Defendant’s motion held March 21, 2007, may be summarized as follows: On July 6, 2006, C.P. recorded on audio tape a telephone conversation between 6 her and Defendant, who received the call at his office. At the time of the recording, the 7 Defendant was unaware of, and had not consented to, the conversation’s being recorded. Defendant was also unaware that, at the time of the recording, there was another 8 individual present in the room with C.P. This recording was subsequently given to the 2 Act of October 4, 1978, P.L. 831, § 2, 18 Pa. C.S.A. § 5701 et seq. (2007 Supp.). 3 See generally Defendant’s Motion To Preclude Introduction of Audio Tapes, filed January 25, 2007 (hereinafter Defendant’s Motion To Preclude). 4 See generally Criminal Information, September 1, 2006. 5 See generally Affidavit of Probable Cause of Chief County Detective Les Freehling, filed July 7, 2006. 6 See generally N.T. of Hearing held on March 21, 2007 (hereinafter N.T. ___). 7 N.T. 27. 8 N.T. 28. 2 Fairview Township Police Department, which turned it over to Cumberland County officials after determining that the alleged criminal incidents had occurred in Cumberland 9 County. The present prosecution was then instituted. DISCUSSION Statement of Law Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. § 5701 et seq. (hereinafter the Wiretap Act), provides that a felony of the third degree is committed by any person who: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; (2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or (3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the 10 interception of a wire, electronic or oral communication. 11 The primary purpose of the Wiretap Act is the protection of privacy. Thus, “the provisions of the Wiretap Act must be strictly construed. Strict guidelines are contained within the Wiretap Act as to how and when electronic surveillance methods shall be 9 N.T. 5, 7, 9. 10 Act of October 4, 1978, P.L. 831, § 2, as amended, 18 Pa. C.S.A. § 5703 (2007 Supp.). 11 United Telephone Co. of Pennsylvania v. Pennsylvania Public Utility Commission, 676 See generally A.2d 1244 (Pa. Cmwlth. 1996). 3 permitted.” Dance v. Com., Pennsylvania State Police, 726 A.2d 4, 8 (Pa. Cmwlth. 1999). A “person” is defined in the Wiretap Act as “[a]ny employee, or agent of the United States or any state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation.” 18 Pa. C.S.A. § 5702. Clearly the individual that recorded the conversation sub judice is encompassed by this statutory definition. An “oral communication” is defined as “[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Id. The Pennsylvania Supreme Court has held that, “in determining what constitutes an “oral communication” under the Wiretap Act, the proper inquiries are whether the speaker had a specific expectation that the contents of the discussion would not be intercepted, and whether that expectation was justifiable under the existing circumstances. Agnew v. Dupler, 553 Pa. 33, 40, 717 A.2d 519, 523 (1998). A “wire communication” is defined as “[a]ny aural transfer made in whole or in part through the use of facilities for the transmission of communication by wire, cable or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a telephone, telegraph or radio company for hire as a communication common carrier. The term includes any electronic storage of such communication.” 18 Pa. C.S.A. § 5702. Whereas the definition of “oral communication” requires an expectation of non- interception to fall under the Wiretap Act, there is no such requirement for a “wire communication.” Also, for a “wire communication” to fall outside the ambit of the 12 Wiretap Act in the present context the parties involved must consent to its recording. 12 18 Pa. C.S.A. § 5704(4) reads: It shall not be unlawful and no prior court approval shall be required under this chapter for: … 4 The Commonwealth Court has held that “the Wiretap Act prohibits even a private individual from recording his or her own telephone conversation unless that individual has the consent of all parties to the conversation.” Barasch v. Pennsylvania Public Utility Com'n, 133 Pa. Cmwlth. 285, 295, 576 A.2d 79, 84 (Pa. Cmwlth. 1990). It is a well-settled rule of statutory construction that “the specific controls the general.” Act of December 6, 1972, P.L. 1339, § 3, 1 Pa. C.S.A. § 1933. With respect to the admissibility of evidence obtained in violation of the Wiretap Act, the Pennsylvania Supreme Court has stated that, “[s]ince the Legislature in this statute clearly elevated individual privacy over any contribution to the social good that would be obtained by permitting wiretapping and monitoring of private conversation without the consent of both parties, . . . it follows that . . . no evidence concerning the contents of [the defendant’s] telephone conversations [obtained in violation of the Wiretap Act] can be admitted except by testimony of those with whom [the defendant] spoke directly.” Commonwealth v. McCoy, 442 Pa. 234, 241, 275 A.2d 28, 31-32 (1971). Application of Law to Facts The main dispute between the Defendant and the Commonwealth in the present context is whether the recording of the conversation sub judice constituted an interception of an “oral” or “wire” communication. Defendant argues that, based on the statutory 13 language, the recording at issue was a “wire communication.” Defendant argues further that, if the recording in question was an interception of a “wire communication,” the recording must be suppressed because the Defendant never consented to the recording of 14 the conversation. The Commonwealth argues that the recording at issue was an interception of an A person, to intercept a wire, electronic or oral communication, where all parties to the communication have given prior consent to such interception. 13 Defendant’s Brief in Support of Motion To Preclude Introduction of Audio Tapes, 4, filed April 3, 2007. 14 Id. 5 “oral communication,” the recording of which was prohibited only if Defendant had “an 15 expectation that such communication [was] not subject to interception.” 18 Pa. C.S.A. § 5702. The Commonwealth argues that, based on the circumstances of the telephone call itself, and the nature of the conversation, the Defendant could not have had a reasonable expectation of non-interception. After careful consideration of the briefs submitted by both sides, and of the definitions contained in the Wiretap Act, the court is of the view that the communication in question between Defendant and C.P. was a “wire communication.” The different definitions ascribed to “oral communication” and “wire communication” in the Wiretap Act indicate that the legislature did not intend the terms to be synonymous. The latter term describes a more specific form of communication than the former. To the extent that the statute is perceived to be internally conflicted in the sense that both terms can be read as applying to the same communication, the more specific provision must prevail. Since the telephonic communication sub judice was a “wire communication,” the rule that “all parties to the communication must [have] consent[ed] to the interception” is operative. Commonwealth v. Jung, 366 Pa. Super. 438, 449, 531 A.2d 498, 503 (1987). Based upon the foregoing, the following order will be entered: ORDER OF COURT rd AND NOW, this 23 day of April, 2007 upon consideration of Defendant David Deck’s Motion To Preclude Introduction of Audio Tapes, and the briefs of both the Defendant and the Commonwealth, following a hearing held on March 21, 2007, and for the reasons stated in the accompanying opinion, the Defendant’s motion is granted and the audio tape recording which is the subject of Defendant’s motion is suppressed. 15 See generally Commonwealth’s Memorandum of Law in Opposition of Pre-trial Relief, filed April 3, 2007. 6 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jamie M. Keating, Esquire Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Attorney for the Commonwealth Mathew R. Gover, Esquire NEALON, GOVER & PERRY 2411 North Front Street Harrisburg, PA 17110 Attorney for Defendant David Deck George Mantangos, Esquire 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorney for Defendants Traci M. Georgiadis and Jon Georgiadis 7 8 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : DAVID DECK : CP-21-CR-1907-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : TRACI M. GEORGIADIS : CP-21-CR-1908-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : JON GEORGIADIS : CP-21-CR-1913-2006 IN RE: DEFENDANT DAVID DECK’S MOTION TO PRECLUDE INTRODUCTION OF AUDIO TAPES BEFORE OLER, J. ORDER OF COURT rd AND NOW, this 23 day of April, 2007 upon consideration of Defendant David Deck’s Motion To Preclude Introduction of Audio Tapes, and the briefs of both the Defendant and the Commonwealth, following a hearing held on March 21, 2007, and for the reasons stated in the accompanying opinion, the Defendant’s motion is granted and the audio tape recording which is the subject of Defendant’s motion is suppressed. 2 BY THE COURT, ______________________ J. Wesley Oler, Jr., J. Jamie M. Keating, Esquire Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Attorney for the Commonwealth Mathew R. Gover, Esquire NEALON, GOVER & PERRY 2411 North Front Street Harrisburg, PA 17110 Attorney for Defendant David Deck George Mantangos, Esquire 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorney for Defendants Traci M. Georgiadis and Jon Georgiadis