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filed: September 22, 1986.


Appeal from the Order entered October 15, 1985, Court of Common Pleas, Montgomery County, Criminal Division at No. 2349-85.


Mary A. Killinger, Assistant District Attorney, Norristown, for Com., appellant.

Henry T. Crocker, Pottstown, for appellee.

Wickersham, McEwen and Johnson, JJ. McEwen, J., files a concurring and dissenting opinion.

Author: Johnson

[ 357 Pa. Super. Page 73]

We are asked to decide whether the Pennsylvania Wiretap Act*fn1 permits an exception for the unauthorized interception of telephone conversations where the person who made the tape recordings was subsequently murdered. We are also asked to determine whether the sixth amendment right to counsel attaches to the pre-arrest use of a consensual body wire on the particular facts presented in this case. We find no justification for an exception to the Wiretap Act and affirm the suppression of the taped telephone conversations. We find that the sixth amendment right to counsel did not attach since adversary judicial criminal proceedings had not yet been initiated. Accordingly, we reverse that portion of the lower court order which suppressed the tape recordings made as a result of the body wire.

[ 357 Pa. Super. Page 74]

This case is an appeal from a suppression order. Testimony presented at a pre-trial hearing established the following facts. Millionaire real-estate developer David Swinehart was murdered in January of 1982. Prior to his death he installed a line-activated tape recorder on his estranged wife's private telephone line in order to obtain evidence for use in a divorce proceeding. The tape recordings document an illicit tryst between Mrs. Swinehart and Swinehart's 23 year old nephew. The tapes were obtained from three sources: Swinehart's car, his lawyer and from the recorder itself by the police after the killing based on information from Swinehart's girlfriend.

Swinehart's nephew, Thomas DeBlase, is the appellee in this case. He was questioned at Borough Hall by police following the murder and advised of his Miranda rights. He denied involvement in or knowledge of the murder but admitted to his romantic liaison with Mrs. Swinehart. Appellee expressed the desire to consult with counsel before further questioning and was released. He was questioned on a second occasion, following Miranda warnings, and he denied involvement in the murder. Following this, and before the end of January 1982, appellee took a polygraph test. In April of 1982 appellee appeared with counsel before an investigating grand jury. Appellee was not indicted or arrested at that time.

From November 1983 to March 1984 appellee's brother Jeffrey DeBlase cooperated with the Commonwealth and wore a body wire when he talked with appellee. A number of the conversations between Jeffrey and Thomas DeBlase were recorded. Appellee was not arrested at that time.

Rather, the Commonwealth did not move against appellee until May of 1985. Additional information was supplied by one Arthur Hall, who asserted that he had been present at the murder. Based on this information, appellee was arrested and charged on May 11, 1985 with the murder of his uncle, David Swinehart.

Appellee moved to suppress the tapes of the conversations between himself and Mrs. Swinehart, as well as the

[ 357 Pa. Super. Page 75]

    conversations taped by the police when appellee's brother was wearing a body wire. The lower court received testimony and heard argument. The court entered an order granting the suppression of the contents of tape recordings of Mrs. Swinehart's conversations with appellee, as well as the contents of the tape recordings made as a result of the body wire worn by Jeffrey DeBlase. The court denied suppression of the statements appellee made to police.

The Commonwealth appeals from the order granting the suppression and advances two arguments: 1) that reason and justice require that, within the narrow limits of the facts presented in the case, statements obtained as the result of the wiretap of Mrs. Swinehart's phone should be admissible as evidence during the prosecution of a first degree murder case, and 2) that since defendant had not been arrested and no critical stage of the prosecution was involved, the right to counsel did not attach. Accordingly, the Commonwealth believes that the statements obtained as a result of the consensual body wire should be admissible against the defendant at every stage of the trial.

We find no merit in the Commonwealth's first argument regarding the taped conversations of Mrs. Swinehart and appellee. The Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq., clearly prohibits the kind of activity in which Swinehart was engaged. The Act provides that a person is guilty of a third degree felony if he willfully intercepts any wire or oral communication. 18 Pa.C.S. § 5703. Wire communications include telephone conversations, such as the one here at issue. 18 Pa.C.S. § 5702. The person whose communication is intercepted in violation of the Act has a civil cause of action against the person who intercepted the communication. 18 Pa.C.S. § 5725. At any trial, hearing or adversary proceeding the person whose conversation is intercepted may move to suppress the contents of the intercepted communication. 18 Pa.C.S. § 5721.

[ 357 Pa. Super. Page 76]

The Commonwealth concedes that Swinehart "may" have been subject to criminal proceedings and a civil action for damages for recording the conversations. The Commonwealth asks this Court to create a public policy exception to the Act because the person who violated the Act was murdered. Such an exception is not provided for in the express language of the Act nor do we find that such an exception would be in keeping with the overall structure and provisions of the Act. The communications were intercepted in violation of the Act and were properly suppressed by the trial court.

The Commonwealth's second argument is that appellee was not entitled to suppression due to a violation of his right to counsel. The Commonwealth argues that appellee's right to counsel did not attach when the body wire was used since appellee had not yet been arrested and this was not a critical stage in the prosecution. We agree with the Commonwealth and, accordingly, find this evidence to be admissible.

We note that the conversations obtained through the use of the body wire are not in violation of the Wiretap Act. The police followed the procedures established in section 5704 for the interception. 18 Pa.C.S. § 5704. One of the parties to the communication, Jeffrey DeBlase, consented to the interception in advance. The First Assistant District Attorney of Montgomery County was officially designated by the District Attorney, and reviewed the police request for the body wire and the consent of Jeffrey DeBlase. The ...

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