No. 01856 Philadelphia 1983, Appeal from the Judgment of Sentence of June 29, 1983 in the Court of Common Pleas of Bucks County, Criminal Division, No. 3207/1981
Nino V. Tinari, Philadelphia, for appellant.
Christopher J. Serpico, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Tamilia, Johnson and Hester, JJ.
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Anthony Trignani, the appellant, was charged with criminal solicitation*fn1 to commit first degree murder and criminal attempt*fn2 after a series of recorded conversations, taking place between May 28 and June 3, 1981, indicated that the appellant attempted to persuade William Hill, a federal
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informant, to murder Anthony Sanutti. Appellant's pre-trial motion to suppress this evidence was denied by the lower court. On January 8, 1982, the appellant was convicted by a jury of the above charges. Post-trial motions were filed and an Order denying the motions was entered on March 29, 1983. On June 29, 1983, the appellant was sentenced to prison for a term of four to eight years. Appellant then instituted this appeal, in which he alleges that the introduction of these tape recordings into evidence was improper because their interception was not authorized by a Superior Court judge, as required by Sections 5708 and 5709 of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5726. After thoroughly and independently reviewing the record, the Opinion of the lower court, and the arguments presented by both parties, we affirm the judgment of sentence.
The facts indicate that a criminal investigation of an arson was being conducted by the Bureau of Alcohol, Tobacco and Firearms of the United States Department of Treasury. To assist them in this investigation, an electronic eavesdropping device was attached to federal informant, William Hill, with his full knowledge and consent. The attachment of this body transmitter served the dual purpose of protecting Mr. Hill, as well as gathering evidence concerning the ongoing investigation.
On May 28, 1981, William Hill, while equipped with the body transmitter, met with the appellant and one Fred E. Sutliff at Denny's Restaurant in Middletown Township, Bucks County, Pennsylvania. The conversation which took place between these three individuals was recorded and intercepted by federal agent, Douglas Morgan, and Pennsylvania State Trooper, Charles Conley. During this meeting, a conversation occurred in which the appellant attempted to solicit William Hill to murder Anthony Sanutti. Subsequently, there were several telephone calls from Hill to the appellant's residence. These telephone conversations were intercepted and recorded by agent Morgan and trooper Hill pursuant to William Hill's written consent. During these
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telephone conversations, the appellant made further attempts to solicit William Hill to murder Anthony Sanutti.
On June 3, 1981, the appellant again met with William Hill at Ida's Diner in Croydon, Bucks County, Pennsylvania. During this meeting, Hill once again was equipped with a body transmitter and the conversations were intercepted and recorded by federal agent Morgan and state trooper Conley. At this meeting, appellant mentioned the sum of $50,000 to Hill and arranged that Hill meet him that evening at 700 Annin Street, Philadelphia, where appellant's sister lived so that appellant could deliver a revolver to Hill. At the conclusion of the meeting, Hill met with Morgan and other federal agents, as well as Conley, whereupon he was followed to Annin Street in Philadelphia. Hill then sounded the horn in his automobile and the appellant came out of the house to deliver a gun to him. Throughout this meeting, Hill, as previously, was equipped with a body transmitter and the entire conversation was intercepted and recorded by federal agent Morgan and trooper Conley. During the trial, tapes made from the several conversations between the appellant and Hill were presented to the jury.
This case raises the question of whether tape recorded conversations made under federal law are admissible in Pennsylvania courts under Section 5717(c) of Pennsylvania's Wiretapping and Electronic Surveillance Control Act. 18 Pa.C.S.A. §§ 5701-5726. Section 5717(c) provides as follows:
(c) Otherwise authorized personnel -- Any person who, by any means authorized by the laws of another state or the Federal Government, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence where otherwise admissible while giving testimony under oath or affirmation in any proceeding and in any court of this Commonwealth.
Thus, Section 5717(c) is a clear expression of the legislative intent that the contents of any wire or oral communication
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which is intercepted pursuant to federal authority may be admissible evidence in Pennsylvania courts. 1 Pa.C.S.A. § 1921(b).
The appellant contends that because no application for an order authorizing the interception of oral and wire communications was made through a Superior Court judge as required by 18 Pa.C.S.A. §§ 5708 and 5709, the taped conversations should have been suppressed. Specifically, the appellant argues that the Commonwealth attempted to circumvent the more stringent requirements of the Pennsylvania Wiretapping and Electronic Surveillance Control Act by obtaining a wiretap under federal law when it had always intended to use the wiretap for purposes of a state prosecution.*fn3
We note, however, that the taped conversations were obtained under the authority of 18 U.S.C. § 2511(2)(c),*fn4 which expressly permits consensual eavesdropping of this
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nature. Since these interceptions were authorized pursuant to federal law, they clearly fall within the ambit of 18 Pa.C.S.A. § 5717(c). Moreover, in the recent case of Commonwealth v. Taraschi, 327 Pa. Super. 179, 475 A.2d 744 (1984), this Court held that tape recordings obtained by federal agents pursuant to federal law were admissible under 18 Pa.C.S.A. § 5717(c). In Taraschi, supra, the wiretaps were performed by federal agents who were acting under "color of law" when they consented to the interception of their communications. 18 U.S.C. § 2511(2)(c). Judge Cavanaugh, in his Opinion, held that these tape recordings were admissible under 18 Pa.C.S.A. § 5717(c), since they were "authorized by the laws of . . . the Federal Government," notwithstanding the fact that no application was made for a court order pursuant to Sections 5708 and 5709 of this Commonwealth's anti-wiretap statute, and that these recordings were obtained during a joint investigation by federal and state officers. Commonwealth v. Taraschi, supra, 327 Pa. Superior Ct. at 195-196, 475 A.2d at 752-753.
Appellant has failed to present any evidence to convince us that the Commonwealth attempted to circumvent the Pennsylvania statute. At trial, federal agent Douglas Morgan testified that the body transmitter was placed on William Hill with his total consent and was authorized by a federal court order for the informant's protection since he was involved in the Federal Witness Protection Program. Additionally, Morgan testified that he was hoping to obtain information through Hill regarding an ongoing arson investigation. While the trial court made no specific finding that this investigation was conducted jointly between state and federal officers, the fact that trooper Conley introduced federal agent Morgan to Hill and was present during the taping of the conversations ...