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decided: November 1, 1985.


Appeal from the Order of the Court of Common Pleas, Erie County, Criminal Division, entered on December 12, 1983, at No. 1347 of 1983.


Frank J. Scutella, Assistant District Attorney, Erie, for Commonwealth, appellant.

John Garhart, Erie, for appellee.

Del Sole, Hester and Feeney,*fn* JJ. Hester, J., files a concurring and dissenting opinion.

Author: Del Sole

[ 349 Pa. Super. Page 257]

This case involves an appeal by the Commonwealth from a pretrial order which suppressed the electronically recorded statements of Appellee, Sherman Clark. The Commonwealth sought to introduce conversations made between Sherman Clark, and Commonwealth informant, Richard McCullough. The trial court suppressed the recordings, reasoning that McCullough had not given his voluntary consent to the monitoring of his conversations. Also suppressed were the contents of a January 9, 1983, conversation between Sherman Clark and State Trooper C.B. Lewis. Suppression of this conversation was ordered because the District Attorney failed to comply with the review and authorization requirements of the Wiretapping and Electronic Surveillance Control Act of 1978, 18 Pa.C.S.A. § 5701, et seq. (the Act). Since we agree with the trial court, that McCullough's voluntary consent was lacking, we affirm the decision to suppress Appellee's statements made

[ 349 Pa. Super. Page 258]

    to Mr. McCullough. However, because we find that the trial court incorrectly interpreted the requirements imposed under the Act, we reverse that part of the Order which suppressed Appellee's January 9, 1983 conversation with the state trooper.

Initially, Appellee complains that the Suppression Order is not appealable by the Commonwealth. In its Brief, the Commonwealth avers that the prosecution of its case will be substantially handicapped by the Suppression Order. Accordingly, this appeal is properly before us. See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

We now turn to the facts of this case which can be briefly summarized as follows: On or about May 16, 1982, Appellee was charged with criminal conspiracy to commit insurance fraud, and other offenses involving stolen vehicles. Prior to that time, and during the course of their investigation of Appellee, the state police had made use of electronic surveillance techniques. Richard McCullough was the Commonwealth's agent for this surveillance.

Mr. McCullough's involvement in this case came about when he was arrested on charges dealing with the removal or falsification of motor vehicle identification numbers, and with receiving stolen property. Shortly thereafter, negotiations between McCullough, his attorney, and Assistant District Attorney Michael Cauley began. As a result of those discussions an agreement was reached. In return for McCullough's cooperation with the Commonwealth in their investigation of persons dealing in stolen vehicles, the charges against McCullough would be dropped for "lack of evidence". The agreement also provided that the charges would be refiled if McCullough failed to cooperate fully with the authorities. Under the agreement, McCullough was to be granted full immunity for any other uncharged violations to which he confessed. On October 15, 1982, McCullough provided the Pennsylvania State Police with a thirty page statement. In this statement McCullough admitted his guilt to the then pending charges, and detailed his and other's involvement in the movement of stolen

[ 349 Pa. Super. Page 259]

    vehicles. Thereafter, as agreed, the charges against McCullough were dismissed. Sometime during the next few days it was decided by the District Attorney's Office and the state police to begin an undercover operation using electronic surveillance. On October 19, 1982, McCullough was asked to consent to having his telephone conversation monitored, and/or to wearing a body transmitter. McCullough agreed, and signed a consent form. Further consent forms covering periods of approximately twenty days were obtained from McCullough. The surveillance lasted from October 1982 through at least February of 1983. During the course of this surveillance conversations between McCullough and Appellee were recorded.

Statements made by Appellee were also intercepted on January 8 and 9, 1983. these statements were made in a conversation between Appellee and Trooper C.B. Lewis, who was outfitted with a body recorder. The trial court suppressed statements made in the January 9th conversation between Appellee and the trooper.

The Commonwealth in its Brief, and the Pennsylvania District Attorney's Association in its Brief as Amicus Curiae, first argue that McCullough's consent was voluntary.*fn1

The relevant statutory provision is found in 18 Pa.C.S.A. § 5704(2)(ii), which permits interceptions where:

(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception

[ 349 Pa. Super. Page 260]

    is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; . . . (Emphasis Added)

The Act requires one party's prior consent, and a finding that the consent was voluntary. The Appellate courts of this Commonwealth have not defined the term "voluntary consent" as it relates to the Act. However, many reported decisions have considered what constitutes voluntary consent in interpreting an analogous federal statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.S. §§ 2510-2520.

It has been stated that it is not a simple task to determine whether a person's consent to the recording of a phone conversation was voluntary. Further, such a determination must be made from the totality of the circumstances.*fn2 If it is found that the party agreeing to the wiretap did so consciously, freely, and independently, and not as the result of a coercive overbearing of his will, his consent will be considered voluntary. United States v. Kelly, 708 F.2d 121, 125 (3d Cir.1983), citing: Culombe v. Connecticut, 367 U.S. 568, 604-605, 81 S.Ct. 1860, 1880-81, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); United States v. Sanford, 673 F.2d 1070, 1072 (9th Cir.1982); United States v. Brandon, 633 F.2d 773, 776 (9th Cir.1980). On the other hand, a person's consent is not rendered involuntary because his cooperation has been obtained in return for a promise of lenient treatment, or because the motivations for it were altruistic or self-seeking. United States v. Acavino, 467 F.Supp. 284, 287 (3d Cir.1979); United States v. Osser, 483 F.2d 727, 730 (3d Cir.1973).

[ 349 Pa. Super. Page 261]

The Commonwealth maintains that McCullough was not coerced into giving his consent. Citing United States v. Brandon, 633 F.2d 773 (9th Cir.1980) the Commonwealth claims that McCullough agreed to cooperate following a candid description of his predicament, and the manner in which he might benefit himself. In its Brief, the Commonwealth states, "Further the informant realized that if he did not cooperate, the worst that would occur would be that he would be put back to square one with the charges brought against him with all the legal rights and remedies that any individual would have should they be charged with a criminal offense. There was really no penalty for his failure to cooperate with the Commonwealth only a benefit if he chose to do so".

We disagree. The facts show that an agreement was reached between McCullough and the authorities whereby the charges against McCullough would be dropped in turn for his cooperation. McCullough's failure to cooperate would result in the reinstitution of the charges. This agreement did not contemplate the use of electronic surveillance. In order to fulfill his part of the bargain, McCullough gave a statement admitting guilt. Subsequent to supplying his written admission, McCullough was given the choice of whether or not to participate in the electronic surveillance. It was only after McCullough admitted his guilt that he was presented with this "choice". If McCullough failed to cooperate he would not be placed back to "square one" as the Commonwealth suggests. Although the same charges would be brought, this time the state police would have in their possession McCullough's written admission of guilt to the charges. McCullough had no viable alternative but to cooperate, and give his consent.

This is not the case where the police were merely pointing out the informant's situation, and thereby obtaining his consent. Nor, is it a case where the informant consented in hopes of lenient treatment. Rather, in this case, McCullough's consent came about following an unfair bargain. The police never explained to McCullough the extent of

[ 349 Pa. Super. Page 262]

"cooperation" which would be necessary before he could be assured that the original charges brought against him would not be reinstituted. McCullough was never informed that his further cooperation would be requested when he gave the police information about his and others illegal activities. The following question by Appellee's counsel, and the response given by McCullough describes the situation facing McCullough when he was asked to give his "voluntary consent":

Q. Sir, the essence of it is is that when you allowed these telephone conversations between my client and yourself to be recorded, you did so because you had no choice. You knew that if you didn't, the deal would go out the window and you would be prosecuted. Now, isn't that a true statement?

A. Yes.

The following exchange also occurred:

Q. (BY MR. AMBROSE) So, in essence Mr. McCullough, if you refused to do what Trooper Anderson asked you to do in relation to the recording of telephone calls and the signing of consents, the charges would be revived as you've already testified and the bottom line at that point in time was that you had no choice; they had you over a barrel; isn't that true.

MR. SCUTELLA: Objection, you Honor. It calls for a conclusion on that part of the witness. That's the matter before the Court, ...

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