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COMMONWEALTH PENNSYLVANIA v. DAVID A. GOODMAN (09/27/85)

filed: September 27, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DAVID A. GOODMAN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal at No. CC8204435.

COUNSEL

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.

Rochelle S. Friedman, Pittsburgh, for appellee.

Spaeth, President Judge, and Wickersham, Brosky, Wieand, Cirillo, Del Sole, Montemuro, Johnson and Popovich, JJ. Montemuro, J. files opinion in which Wieand, Cirillo, Del Sole and Johnson, JJ., join. Spaeth, President Judge, files concurring and dissenting opinion in which Brosky, J., joins. Wickersham, J., files concurring and dissenting opinion in which Popovich, J., joins.

Author: Montemuro

[ 347 Pa. Super. Page 406]

Herein, this court is asked to define the scope of the Attorney General's authority to investigate criminal offenses. In Commonwealth v. Carsia, 341 Pa. Super. 232, 491 A.2d 237 (1985), argued eo die as the present appeal, we held that the Attorney General's authority to prosecute criminal cases is limited to the specific instances set forth in Section 205(a)(1)-(8) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164, § 101 et seq., 71 P.S. § 732-205(a)(1)-(8).*fn1

[ 347 Pa. Super. Page 407]

That holding was based on the court's conclusion that the legislature intended the Commonwealth Attorneys Act to be the sole grant of authority to the Attorney General to prosecute criminal cases. In the present case, the Commonwealth, in the guise of the District Attorney of Allegheny

[ 347 Pa. Super. Page 408]

County, argues that under section 206*fn2 of the Commonwealth Attorneys Act, the Attorney General has the authority to investigate any criminal offense which he reasonably believes he has the authority to prosecute under section 205 of the Act. We agree.

The context in which this appeal arises is by virtue of a Commonwealth appeal from an order of the Honorable John W. O'Brien, Court of Common Pleas of Allegheny County, granting the suppression motion of the appellee David Goodman.*fn3 In reviewing this order, we were bound by the standard set forth by the supreme court in Commonwealth v. Hamlin, 503 Pa. 210, 215, 469 A.2d 137, 139 (1983), namely:

[I]n reviewing a suppression court's ruling the appellate court is bound by factual findings supported by the record. Commonwealth v. Wiggins, 472 Pa. 95, 371 A.2d 207 (1977); and, they may not substitute their own findings for those of the suppression court. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly

[ 347 Pa. Super. Page 409]

    lacking in evidence. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977).

See also, Commonwealth v. Chandler, 505 Pa. 113, 117, 477 A.2d 851, 853 (1984). The following facts were testified to at the suppression hearing.

On April 14, 1982, Charles Park, a security representative of the Bell Telephone Company, during examination of computer records, noticed that signal irregularities were emanating from a telephone service registered to the appellee. The irregularities were indicative of the use of a "blue box." A "blue box" is an electronic "tone generating" device which is used to circumvent the telephone company's billing apparatus and thereby obtain free telephone service. Park informed his supervisors of the possible use of the device. He then connected to the appellee's service a Dialed Number Recorder (DNR)*fn4 and a tape recorder. The DNR and tape recorder remained connected for a period of approximately twenty-six hours (from 2:00 P.M., April 15, 1982 to 4:15 P.M., April 16, 1982). During this period, eight conversations were intercepted and recorded.

On April 16 or 17, 1982, Robert Meinert, the head of the Bell Telephone security in Pittsburgh, contacted Special Agent Dennis Danask of the Bureau of Criminal Investigation (BCI), the investigative arm of the office of the Attorney General. Meinert informed Danask of the details of the investigation which Bell Telephone had conducted thus far.

Agent Danask relayed this information to Deputy Attorney General Lawrence Claus, who was in charge of criminal investigations in Western Pennsylvania. Claus told Danask that "without further information, we really couldn't make a decision as to whether or not it would be an area in which

[ 347 Pa. Super. Page 410]

    the Attorney General's Office had jurisdiction." (N.T. April 27, 1983 at 23).

On April 21, 1982, Agent Danask and Deputy Attorney General Claus met with Park and Meinert of Bell Telephone to discuss the incident. They were informed that on two of the calls, the appellee had identified himself as "Attorney Goodman." Claus later testified that he felt that this fact gave rise to the possibility of investigation and prosecution by the Attorney General under the authority granted by Section 205(a)(2) of the Commonwealth Attorneys Act, which authorizes the Attorney General to prosecute cases involving corrupt organizations under 18 Pa.C.S. § 911. We note further that at this time there was an informal discussion between Claus and Allegheny County Assistant District Attorney wherein it was agreed that the case should proceed through the Attorney General's Office.

On April 26, 1982, based on the information received from Bell Telephone, Agent Danask applied for and executed a warrant to search the appellee's office/residence. The warrant application set forth the information received from Park and Meinert and alleged violations of 18 Pa.C.S. § 910, prohibiting the manufacture, distribution or possession of devices for theft of telecommunications services, and 18 Pa.C.S. § 3926, theft of services. The application further stated that the objective of the search was to locate and seize "blue boxes" or components, paraphernalia or manuals concomitant thereto.

The search was executed by BCI agents. A device which was identified as a "blue box" was discovered and seized. In the course of searching for another device, the agents found a sawed-off shot gun, and they were told by appellee that several automatic weapons were on the premises. While two BCI agents secured the premises, a second warrant was obtained for the seizure of the shotgun. Subsequently, a third warrant was obtained for the seizure of several automatic weapons.

On May 12, 1982, Agent Danask filed a criminal complaint against appellee charging him with possession of a

[ 347 Pa. Super. Page 411]

    device for the theft of telecommunications services,*fn5 theft of services,*fn6 and multiple counts of prohibited offensive weapons.*fn7 After the complaint was filed, but prior to the preliminary hearing, the Office of the Attorney General, upon review of the evidence, determined that a basis for the Attorney General's prosecution of the case did not exist. The case was turned over to the Allegheny County District Attorney's office which assumed the prosecution.

Several pretrial motions were filed seeking the dismissal of the informations and suppression of the evidence. These motions were denied. However, on April 8, 1983, the appellee filed a motion to suppress evidence, which the lower court treated as an amendment to the appellee's omnibus pretrial motion. After hearings and arguments, on April 28, 1983, the lower court granted the motion to suppress on the ground that the Attorney General's Office lacked "jurisdiction" to investigate the incident and that suppression was appropriate. A Commonwealth motion for reconsideration was denied and a timely appeal was taken to this court.

The Commonwealth raises two issues:

I. The suppression court erred in concluding that the execution of the search warrant by agents of the Attorney General was in contravention of the Attorney General's authority to investigate.

II. The court below erred in ruling that suppression was the necessary remedy for an alleged violation of the Commonwealth Attorneys Act.

We shall discuss them ad seriatim.

I. THE ATTORNEY GENERAL'S AUTHORITY TO INVESTIGATE.

The scope of the Attorney General's authority to investigate a criminal offense is set forth in section 206 of the Commonwealth Attorneys Act. See n. 2 supra. The clause relevant to our immediate discussion is that which reads:

[ 347 Pa. Super. Page 412]

"The Attorney General shall have the power to investigate any criminal offense which he has the power to prosecute under section 205." The Commonwealth asserts that, at the time of the investigation and based upon the information available, the Attorney General's Office had a reasonable belief the investigation and prosecution of the appellee was within its authority under sections 206(a) and 205(a)(2) (relating to corrupt organizations) and 205(a)(7) (relating to investigative grand juries) of the Commonwealth Attorneys Act. It asserts that the power to investigate criminal offenses must necessarily be broader than the power to prosecute those offenses because

[t]he decision to initiate a prosecution under § 732-205 will arise where the [A]attorney [G]eneral is made aware of facts that justify his commencement of a prosecution. Normally, information first brought to the [A]attorney [G]eneral's attention will be an insufficient basis upon which to render a decision to prosecute. Instead, initial facts will require further investigation to determine whether an activity arises to a crime that warrants prosecution by the [A]attorney [G]eneral under 205.

Appellant's brief at 15-16.

Initially, we note that this argument is not applicable logically to those sections of the Commonwealth Attorneys Act wherein the Attorney General's authority is invoked by request. See 71 P.S. § 732-205(a)(3) (request of district attorney); 71 P.S. § 732-205(a)(5) (request of president judge); 71 P.S. § 732-205(a)(6) (referral by Commonwealth agency). Rather, it is an assertion that the Attorney General must have some factual basis upon which to determine whether to invoke his authority to prosecute corruption of state officials under 71 P.S. § 732-205(a)(1), corrupt organizations under 71 P.S. § 732-205(a)(2), or medicaid fraud under 71 P.S. § 732-205(a)(8); or upon which to determine when he must petition to supersede a county district attorney under 71 P.S. § 732-205(a)(4), or convene an investigative grand jury under 71 P.S. § 732-205(a)(7) and 71 P.S. § 732-206(b). The argument is essentially that the Attorney

[ 347 Pa. Super. Page 413]

General must have the authority to investigate allegations of criminal conduct which, if proven, would give rise to criminal charges which can be prosecuted by the Attorney General.

The appellee, on the other hand, argues that:

[T]he clear intent of the Act is to allow the Attorney General to investigate and subsequently prosecute only certain crimes. All other crimes are left to the numerous and qualified local law enforcement agencies. It is absurd to adopt the Commonwealth's rationale. Under that theory the Attorney General's Office could investigate every possible crime, and once they would determine it does not fall under their jurisdiction, then turn it over to local authorities. It is much more logical to assume that local authorities are to investigate crimes. Once the investigation showed that the Attorney General would have jurisdiction, the case is then turned over to the Attorney General's Office. Not only is this the clear intent of the Act, but it also alleviates the legal evidentiary problems created by the seizure of evidence by authorities without jurisdiction. Clearly, allowing the local authorities to gather and seize the evidence eliminates the risk of suppression of the evidence due to lack of jurisdiction.

Appellee's brief at 8.

The resolution of this issue depends upon the legislature's intendment as to the investigative powers of the Attorney General 1 Pa.C.S. §§ 1901, 1921. Section 206 replaced that part of the section of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, art. IX, § 904, et seq., 71 P.S. § 294, which gave the Attorney General the power, and the duty to "investigate any violations, or alleged violations, of the laws of the Commonwealth which may come to its notice." The present section is much more limited in scope, and obviously evidences a legislative intent to decrease the extent of the Attorney General's investigative authority.

[ 347 Pa. Super. Page 414]

On the other hand, we refuse to accept a construction of section 206 which would denude the Attorney General of his investigative powers. It would be ludicrous to conclude that the Attorney General's investigative powers, namely, the power and authority to uncover evidence of criminal conduct which could lead to criminal prosecution, is limited to only those situations wherein it is certain that the investigation will lead to prosecutions authorized by section 205 of the Commonwealth Attorneys Act. If this were the legislature's intent, the result would be a virtual paralysis of the Attorney General's investigative powers. Because such a result would be both absurd and unreasonable, we find it unacceptable. We do not believe the legislature intended such a result. 1 Pa.C.S. § 1922(1).

However, we must also heed the legislature's mandate that the Attorney General's investigative authority extends only to "any criminal offense which he has the power to prosecute." This provision must be given some meaningful effect.

This court must now decide a question of law upon which there is no authority to provide guidance. The previous statute, and the case law interpreting that statute, was much different and cannot be relied on as an accurate barometer of the legislature's intent.*fn8 The legislative history of section 206, as set forth in JOINT STATE GOVERNMENT COMMISSION: TASK FORCE ON THE OFFICE ...


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