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COMMONWEALTH PENNSYLVANIA v. WILLIAM MCELHENNY (05/25/84)

filed: May 25, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM MCELHENNY, APPELLANT



No. 1336 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 2100-2101 August Term, 1977.

COUNSEL

Gilbert B. Abramson, Philadelphia, for appellant.

Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cavanaugh, Brosky and Popovich, JJ. Popovich, J., concurs in the result.

Author: Brosky

[ 329 Pa. Super. Page 242]

This appeal is taken from judgment of sentence imposed for conviction of third degree murder. The only issue raised which will be addressed here is whether the admission at trial of evidence which was inadmissible at the time the crime was committed violates the ex post facto clauses of the Constitutions of the Commonwealth and of these United States.*fn1 We find that there is no such violation and, accordingly, affirm.*fn2

The evidence in question here is a tape recording of a telephone call made by appellant to the police emergency number. Appellant made some incriminating statements during this call which were automatically recorded. At the time the recording was made it was legally made but could not be used as evidence in court. The then effective statute, 18 Pa.C.S. § 5702(c)(1)(ii), required that appellant give his written consent to the tape coming into evidence. Before

[ 329 Pa. Super. Page 243]

    this case came to trial that statute was repealed and a new one took its place under which this evidence was admissible.*fn3 The tape recording was then admitted into evidence at trial.

Appellant contends that the admission at trial of this evidence which was inadmissible at the time the crime was committed violates the ex post facto clauses of the Federal and State constitutions.

The United States Constitution provides that "No state shall . . . pass any . . . ex post facto law . . ." U.S. Const. Article 1, § 10. The basic definition of the ex post facto clause was laid down in 1798 in the landmark case of Calder v. Bull, 3 Dall. (U.S.) 386 at 390, 1 L.Ed. 648 at 650 (1798). The parameters set in Calder have been followed and amplified in the case law of the succeeding 18 decades. One portion of Calder is relevant to the issue before this Court.

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. . . . 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of ...


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