Commonwealth v. Selby

688 A.2d 698, 547 Pa. 31, 1997 Pa. LEXIS 106

• Court: Supreme Court of Pennsylvania
• Decided: January 14, 1997
• Docket: 56 E.D. Appeal Docket 1993
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

FLAHERTY, Chief Justice.

As in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), the sole issue in this case is whether an informer wearing a consensual wiretap may, without judicial approval, enter another individual’s home to record his conversations electronically for use by the police in an undercover investigation. We held in Brion that under Article I, Section 8 of the Pennsylvania Constitution, an individual’s right to privacy in his home should remain inviolate. The judgment of the Superior Court is reversed in part and affirmed in part.

The facts in Brion are virtually identical to those in the present case. In Brion, the police sent a confidential informer, wearing a wiretap, to Michael Brion’s home to purchase illegal drugs. The police failed to obtain judicial approval for the informer’s body wire. The informer entered Brion’s home and made the purchase, all the while transmitting the conversation to monitoring agents who recorded it and introduced it in Brion’s trial after the trial court denied a pretrial suppression motion.

Brion was found guilty on all charges. Post-verdict motions were filed alleging that the trial court erred when it failed to suppress the taped conversation, and the trial court granted Brion’s motion for a new trial. Superior Court reversed and we granted allocatur. On appeal, we held that “[bjecause there was no determination of probable cause by a neutral judicial authority, the ... body wire violated Article I, Section 8 and the tape recording ... should have been suppressed.” Brion at 262, 652 A.2d at 289. Accordingly, we reversed.

Appellant in the present case, Jerry Leon Selby, was charged with twenty-two criminal counts resulting from an investigation of drug trafficking in Lancaster, Pennsylvania. In the course of the investigation, the police sent an informer, wearing a consensual wiretap, into the appellant’s residence. The police failed to obtain judicial approval for the informer’s body wire.

At trial, the Commonwealth and defense counsel stipulated that the Commonwealth would proceed with only counts three and four. In count three, the Commonwealth alleged that appellant delivered a packet of heroin to a police informant at the informant’s home. In count four, the Commonwealth alleged that appellant delivered ten packets of heroin to the same individual (wearing a body wire), at appellant’s home.

Appellant filed an omnibus pretrial motion to suppress the tape recording of the transaction in count four on the basis that the recording was obtained in violation of both the United States and Pennsylvania Constitutions. The trial court denied the motion and after a jury trial appellant was convicted of both counts. The trial court denied appellant’s post-verdict motions and sentenced him to five to ten years imprisonment on count three and six to twelve years imprisonment on count four. The Superior Court affirmed and appellant filed a timely petition for allowance of appeal to this court. We granted allocatur, but held disposition of the case pending the outcome of Brion.

The Commonwealth mischaracterizes the issue as one not of constitutional rights but as one of retroactivity in the application of Brion and then engages in a laborious analysis of retroactivity. Since we held this case pending the outcome of Brion, it is clear that we expected this case to be controlled by the outcome of Brion. If this were not so, then retroactivity would be an issue.

Even if retroactivity were the issue, the general rule is that a “new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

Considered in the light of the Cabeza rule, the illogic of holding this case pending Brion and then reaching the opposite result in an analytically indistinguishable situation defies explanation. For these reasons, the order of the Superior Court with respect to count four is reversed and remanded for proceedings consistent with this opinion. The order of the Superior Court with respect to count three is affirmed.

NIGRO, J., concurs in the result. CASTILLE, J., files a dissenting opinion. NEWMAN, J., files a dissenting opinion in which CASTILLE, J., joins.