Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 84-03-1075-1079. Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 84-03-1405-1408. Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 84-03-1409-1413. Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 84-03-1424-1428. Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 84-03-1429-1433. Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 84-03-1434-1438. Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 84-03-1472-1476. Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 84-03-1444-1447.
Rona S. Totoki, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
F. Emmett Fitzpatrick, Jr., Philadelphia, for appellees.
Wieand, Beck and Johnson, JJ. Beck, J., files a dissenting opinion.
[ 361 Pa. Super. Page 432]
Presently before the Court for review in this consolidated appeal are orders of the trial court suppressing evidence obtained by the Commonwealth via pen registers and telephone intercepts, as well as physical evidence subsequently seized pursuant to warrant. The trial court's suppression orders were based upon the absence of a neutral determination that probable cause existed for the use of pen registers.
In December, 1982, on the basis of information which had been provided by confidential informants, the Commonwealth began an investigation into illegal gambling operations in Philadelphia. In January, 1983, Pennsylvania State Troopers received information from a confidential informant about an illegal numbers operation that was being conducted in Philadelphia through telephone number (215) 271-7078. Records maintained by Bell Telephone Company of Pennsylvania revealed that this number had been assigned to the defendant, Richard Mastro, at Vollmer Street, in Philadelphia. A dialed number recorder (DNR) was installed on this telephone pursuant to an order entered on January 6, 1983 by the Honorable Michael J. Conroy of the Municipal Court of Philadelphia.*fn1 In subsequent orders entered on February 25, March 25, and May 24, 1983, Judge Conroy authorized the continued use of the DNR on Mastro's telephone for additional thirty day periods.
[ 361 Pa. Super. Page 433]
In February, 1983, law enforcement officers received further information from a second confidential informant that illegal sports bookmaking was being conducted by a man referred to as "Nick" at telephone number (215) 336-8460. Records maintained by Bell Telephone Company showed that this number had been subscribed to by defendant, Nicholas DeStefano, at 2438 Juniper Street in Philadelphia. On February 17, 1983, law enforcement officers obtained an order from Judge Conroy authorizing the installation of a pen register on DeStefano's telephone for a period of thirty days. This authorization was extended for additional thirty day periods by orders dated March 17, April 14, and May 4, 1983.
Information obtained through the pen register installed on Mastro's telephone disclosed a pattern of telephone calls made from Mastro's telephone to another telephone and transferred through call forwarding to telephone number (215) 389-8903. Bell Telephone Company's records revealed that this number had been subscribed to by Jerry DiJoseph,*fn2 located at 1604 South Clarion Street in Philadelphia. On March 4, 1983, Judge Conroy authorized the installation of a pen register on DiJoseph's telephone. Additional thirty day extensions were authorized on March 30 and May 4, 1983.
Based upon information obtained through these pen registers and through additional confidential informants and corroborated by independent police investigation and surveillance, law enforcement officials obtained authorization from the Honorable J. Sydney Hoffman of the Superior Court to install wiretaps on the telephones of Messrs. Mastro, DeStefano and DiJoseph. These wiretaps were installed on April 15, 1983. Interception of the telephone calls made on Mastro's and DeStefano's telephones terminated on April 26, 1983. Interception of DiJoseph's telephone conversations continued until May 4, 1983.
[ 361 Pa. Super. Page 434]
The investigation continued, and on May 9, 1983, law enforcement officials obtained search warrants for twenty-three locations, including the residences of each of the eight defendants. Pursuant to these warrants, the police seized physical evidence of corrupt organizations and illegal gambling. The eight defendants were arrested on December 8, 1983, and were charged with conspiracy, corrupt organizations and related offenses. The cases were consolidated on August 1, 1984.
All of the defendants filed pre-trial motions to suppress the evidence which had been obtained pursuant to the pen registers and wiretaps, as well as the physical evidence which had been seized pursuant to the search warrants. A hearing was held and, on September 17, 1984, the suppression court suppressed the evidence which had been obtained pursuant to the Mastro pen register. A decision regarding the remainder of the evidence sought to be suppressed was delayed until briefs could be submitted by the parties. On October 29, 1984, the suppression court ordered that this remaining evidence also be suppressed. On April 18, 1985, the suppression court filed formal findings of fact and conclusions of law.
[ 361 Pa. Super. Page 435]
In Commonwealth v. Beauford, 327 Pa. Super. 253, 269, 475 A.2d 783, 791 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985), a panel of this Court held that Article 1, section 8 of the Pennsylvania Constitution prohibited the installation and use of pen registers without a warrant issued upon probable cause. The Court rejected the reasoning of the United States Supreme Court in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which had earlier held that the use of a pen register was not a search under the Fourth Amendment of the Constitution of the United States. The Commonwealth contends in the instant appeal that the suppression court erred when it applied the Beauford requirement of probable cause retroactively to the pen registers which had been used in the instant case because these pen registers had been installed prior to the date on which Commonwealth v. Page 435} Beauford, supra, was decided. We are constrained to disagree. "[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question [has been] properly preserved at all stages of adjudication up to and including any direct appeal." Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). The Beauford court did not declare its ruling to be prospective only; and in the case sub judice, the issue of lack of probable cause has been properly preserved for review at all stages. Therefore, the Beauford rule is applicable to the facts of the instant case.
The Commonwealth also contends that only those defendants upon whose telephones the pen registers were installed have standing to challenge the evidence obtained from the pen registers. However, in Commonwealth v. Beauford, supra, this Court suppressed evidence which had been obtained through the use of pen registers as to each of six defendants despite the fact that all defendants had not had a pen register installed on their telephones. In rejecting the decision of the United States Supreme Court in Smith v. Maryland, supra, the Court said: "[W]e do not hesitate to say that a caller and the person he calls expect and are entitled to as much privacy in the fact that they are talking to one another as in what they say to each other." Commonwealth v. Beauford, supra 327 Pa. Super. at 266, 475 A.2d at 789 (emphasis added). From this we conclude that all defendants in the instant case have standing to challenge the evidence obtained through the pen registers which were installed on the telephones of Messrs. Mastro, DeStefano and DiJoseph.
The matter of probable cause was considered by this Court in Commonwealth v. Doty, 345 Pa. Super. 374, 498 A.2d 870 (1985). There we said:
The standard for determining whether probable cause existed [for a wiretap or a pen register] is the same as that used to ...