Appeal from the Judgment of Sentence of of July 2, 1986 in the Court of Common pleas of Beaver County, Criminal Division, No. 255 of 1985.
Stanton D. Levenson, Pittsburgh, for appellant.
John L. Brown, Jr., Assistant District Attorney, Freedom, for Com., appellee.
Brosky, Del Sole and Cercone, JJ. Brosky, J., files a concurring opinion.
[ 362 Pa. Super. Page 551]
This is an appeal from a judgment of sentence entered on July 2, 1986 after a jury convicted appellant, Shelby Scott Adams, of delivery of marijuana and of conspiracy to deliver marijuana. Post-trial motions were denied and appellant was sentenced to one and one-half (1 1/2) to five (5) years imprisonment and to pay a fine in the amount of $25,000.00.
Appellant raises the following two issues on appeal: (1) whether a valid consensual wiretapping pursuant to the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701 et seq., requires that consent be given prior to each intercepted communication; and (2) whether statements made by the Commonwealth's attorney in his summation constituted impermissible prosecutorial misconduct. The trial court answered both of these inquiries in the negative and we affirm its order based on those findings.
From 1980 to 1984, appellant was involved with John Maruca and another co-conspirator, in an ongoing conspiracy to buy, sell and distribute marijuana. Appellant was operating out of St. Petersburg, Florida, Maruca was in Beaver, Pennsylvania, and the third conspirator was in State College, Pennsylvania. In February, 1984, Mr. Maruca was arrested on drug-related charges. Pursuant to plea bargain negotiations an agreement was reached whereby
[ 362 Pa. Super. Page 552]
Maruca agreed to plead guilty to one count of conspiracy and to cooperate with agents of the Office of the Attorney General of Pennsylvania in its effort to gather evidence against his cohorts. Maruca's cooperation was to be in the form of consensual wiretapping. In return, the Commonwealth promised to recommend to the court that Maruca receive a probationary sentence.
The Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5726, in general, makes criminal the willful interception of any wire or oral communication. Id., § 5703(1). However, the Act contains an exception at § 5704 which provides that it shall not be unlawful for:
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities 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 is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; . . .
In compliance with § 5704(2)(ii), Deputy Attorney General Joseph Peters was properly designated, in writing, by the Attorney General to approve the use of consensual electronic surveillance. Peters initially conducted a personal interview with Maruca to determine if Maruca had voluntarily given his consent to the use of an electronic phone tap. After the personal interview, which satisfied Peters that Maruca's consent was voluntary a written consent form was completed and executed by Maruca. This form established a ten day time period during which the Bureau of
[ 362 Pa. Super. Page 553]
Narcotics Investigation and Drug Control would make electronic interceptions. All interceptions that would occur during the particular ten day period were authorized and consented to in advance. When the ten days expired, the Deputy Attorney General interviewed Maruca on the telephone to determine the voluntariness of his consent to a second ten day period of interceptions. After the interview, Maruca executed a second memorandum of consent form. This procedure was repeated until Maruca had signed six consent forms authorizing interceptions during six ten day inclusive time periods.*fn1 The interceptions yielded tape ...