Commonwealth v. Clark

502 A.2d 1375, 349 Pa. Super. 255, 1985 Pa. Super. LEXIS 9894
Supreme Court of Pennsylvania·Decided November 1, 1985·No. 1550·Published·Cited by 8 cases

Opinions

DEL SOLE, Judge:

This case involves an appeal by the Commonwealth from a pretrial order which suppressed the electronically recorded statements of Appellee, Sherman Clark. The Commonwealth sought to introduce conversations made between Sherman Clark, and Commonwealth informant, Richard McCullough. The trial court suppressed the recordings, reasoning that McCullough had not given his voluntary consent to the monitoring of his conversations. Also suppressed were the contents of a January 9, 1983, conversation between Sherman Clark and State Trooper C.B. Lewis. Suppression of this conversation was ordered because the District Attorney failed to comply with the review and authorization requirements of the Wiretapping and Electronic Surveillance Control Act of 1978, 18 Pa.C.S.A. § 5701, et seq. (the Act). Since we agree with the trial court, that McCullough’s voluntary consent was lacking, we affirm the decision to suppress Appellee’s statements made [258]*258to Mr. McCullough. However, because we find that the trial court incorrectly interpreted the requirements imposed under the Act, we reverse that part of the Order which suppressed Appellee’s January 9, 1983 conversation with the state trooper.

Initially, Appellee complains that the Suppression Order is not appealable by the Commonwealth. In its Brief, the Commonwealth avers that the prosecution of its case will be substantially handicapped by the Suppression Order. Accordingly, this appeal is properly before us. See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

We now turn to the facts of this case which can be briefly summarized as follows: On or about May 16,1982, Appellee was charged with criminal conspiracy to commit insurance fraud, and other offenses involving stolen vehicles. Prior to that time, and during the course of their investigation of Appellee, the state police had made use of electronic surveillance techniques. Richard McCullough was the Commonwealth’s agent for this surveillance.

Mr. McCullough’s involvement in this case came about when he was arrested on charges dealing with the removal or falsification of motor vehicle identification numbers, and with receiving stolen property. Shortly thereafter, negotiations between McCullough, his attorney, and Assistant District Attorney Michael Cauley began. As a result of those discussions an agreement was reached. In return for McCullough’s cooperation with the Commonwealth in their investigation of persons dealing in stolen vehicles, the charges against McCullough would be dropped for “lack of evidence”. The agreement also provided that the charges would be refiled if McCullough failed to cooperate fully with the authorities. Under the agreement, McCullough was to be granted full immunity for any other uncharged violations to which he confessed. On October 15, 1982, McCullough provided the Pennsylvania State Police with a thirty page statement. In this statement McCullough admitted his guilt to the then pending charges, and detailed his and other’s involvement in the movement of stolen [259]*259vehicles. Thereafter, as agreed, the charges against McCullough were dismissed. Sometime during the next few days it was decided by the District Attorney’s Office and the state police to begin an undercover operation using electronic surveillance. On October 19, 1982, McCullough was asked to consent to having his telephone conversation monitored, and/or to wearing a body transmitter. McCullough agreed, and signed a consent form. Further consent forms covering periods of approximately twenty days were obtained from McCullough. The surveillance lasted from October 1982 through at least February of 1983. During the course, of this surveillance conversations between McCullough and Appellee were recorded.

Statements made by Appellee were also intercepted on January 8 and 9, 1983. these statements were made in a conversation between Appellee and Trooper C.B. Lewis, who was outfitted with a body recorder. The trial court suppressed statements made in the January 9th conversation between Appellee and the trooper.

The Commonwealth in its Brief, and the Pennsylvania District Attorney’s Association in its Brief as Amicus Curiae, first argue that McCullough’s consent was voluntary.1

The relevant statutory provision is found in 18 Pa.C.S.A. § 5704(2)(ii), which permits interceptions where:

(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the intercep[260]*260tion is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; ... (Emphasis Added)

The Act requires one party’s prior consent, and a finding that the consent was voluntary. The Appellate courts of this Commonwealth have not defined the term “voluntary consent” as it relates to the Act. However, many reported decisions have considered what constitutes voluntary consent in interpreting an analogous federal statute, Title III of the Omnibus Crime Control and Safé Streets Act of 1968, 18 U.S.C.S. §§ 2510-2520.

It has been stated that it is not a simple task to determine whether a person’s consent to the recording of a phone conversation was voluntary. Further, such a determination must be made from the totality of the circumstances.2 If it is found that the party agreeing to the wiretap did so consciously, freely, and independently, and not as the result of a coercive overbearing of his will, his consent will be considered voluntary. United States v. Kelly, 708 F.2d 121, 125 (3d Cir.1983), citing: Culombe v. Connecticut, 367 U.S. 568, 604-605, 81 S.Ct. 1860, 1880-81, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); United States v. Sanford, 673 F.2d 1070, 1072 (9th Cir.1982); United States v. Brandon, 633 F.2d 773, 776 (9th Cir.1980). On the other hand, a person’s consent is not rendered involuntary because his cooperation has been obtained in return for a promise of lenient treatment, or because the motivations for it were altruistic or self-seeking. United States v. Acavino, 467 F.Supp. 284, 287 (3d Cir.1979); United States v. Osser, 483 F.2d 727, 730 (3d Cir.1973).

[261]*261The Commonwealth maintains that McCullough was not coerced into giving his consent. Citing United States v. Brandon,

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Commonwealth v. Clark, 502 A.2d 1375, 349 Pa. Super. 255, 1985 Pa. Super. LEXIS 9894 (Pa. 1985).

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