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COMMONWEALTH PENNSYLVANIA v. ANTHONY L. LETA (09/13/85)

filed: September 13, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ANTHONY L. LETA, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. FRANK RICHARD PRICCI, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. JOSEPH O. BALDASSARI, APPELLANT



No. 1390 Philadelphia, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 82-10, 405. No. 1422 Philadelphia, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 82-10409. No. 2261 Philadelphia, 1983, Appeal from Judgment to Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 82-10, 400.

COUNSEL

Peter T. Campana, Williamsport, for appellant (at 1390).

William T. Hall, Scranton, for appellant (at 1422).

James M. Zipay, Scranton, for appellant (at 2261).

Peter J. Hart, Philadelphia, for Commonwealth, appellee.

Wieand, Del Sole and Popovich, JJ.

Author: Wieand

[ 346 Pa. Super. Page 555]

Frank Pricci and Joseph Baldassari of Scranton, Pennsylvania, and Anthony Leta of Williamsport, Pennsylvania,

[ 346 Pa. Super. Page 556]

    were tried non-jury before the Honorable Albert E. Acker, specially presiding, and were found guilty of bookmaking*fn1 and criminal conspiracy.*fn2 At trial, the Commonwealth relied upon incriminating evidence acquired by placing a tap on several telephones serving appellants' respective premises. On direct appeal, the principal arguments made by appellants are that the Pennsylvania Wiretapping and Electronic Surveillance Control Act of October 4, 1978, P.L. 831, No. 164, 18 Pa.C.S. § 5701 et seq., is unconstitutional and, if valid, that it was improperly applied against them. We find no merit in these arguments and affirm.

The law is well settled that statutes duly enacted by the legislature are presumed to be constitutional. Estate of Cox, 327 Pa. Super. 479, 485, 476 A.2d 367, 370 (1984) and cases cited therein. A statute will not be held unconstitutional except upon a showing that the statute is "clearly, palpably and plainly" in conflict with constitutional provisions. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981).

Baldassari contends that the Pennsylvania Act is in violation of the United States Constitution's Fourth Amendment. He argues that the Pennsylvania statute is modeled after Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., which was held unconstitutional in United States v. Whitaker, 343 F.Supp. 358 (E.D.Pa. 1972) because of a lack of specificity. However, Whitaker was subsequently reversed by the Third Circuit, United States v. Whitaker, 474 F.2d 1246 (3rd Cir. 1973), cert. denied, 412 U.S. 953, 93 S.Ct. 3003, 37 L.Ed.2d 1006, and is not controlling of our decision. Other circuit courts have upheld Title III in the face of various constitutional challenges. See: United States v. ...


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