Appeal from the Judgment of Sentence March 13, 1986 in the Court of Common Pleas of Lackawanna County, Criminal No. 83 CR 886.
Robert T. Gownley, Jr., Scranton, for appellant.
Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
Wieand, Olszewski and Cercone, JJ. Wieand, J., dissents.
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Appellant, Thomas Hashem, was arrested and charged with hindering apprehension or prosecution, pursuant to 18
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Pa.C.S.A. Sec. 5105,*fn1 and criminal conspiracy to hinder apprehension or prosecution, pursuant to 18 Pa.C.S.A. Sec. 903.*fn2 Appellant was convicted of both charges in a jury trial before the Honorable James M. Munley of the Court of Common Pleas of Lackawanna County. Appellant was subsequently sentenced to serve one to three years in prison on each charge, the sentences to be served concurrently. Appellant appeals from his judgment of sentence.
Although appellant raises fifteen points of error, the District Attorney of Lackawanna County did not take sufficient interest to file a brief.*fn3 We find that the comprehensive opinion of the Honorable James M. Munley adequately disposes of the following eleven issues: (1) whether the trial court erred in allowing Ernest Preate, Jr., the District Attorney of Lackawanna County, to give his opinion on the
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ultimate issue in this case; (2) whether the trial court erred in refusing to grant appellant's motion for a change of venue; (3) whether the trial court erred in allowing Detective Harry Rescigno, Officer Thomas Tell, and Michelle Kulick to give their opinions concerning voice identification of appellant; (4) whether the trial court erred in admitting Commonwealth exhibits one and two, the actual tapes of three wiretapped communications since the Commonwealth did not establish relevancy; (5) whether the trial court erred in denying appellant's motion to disqualify the Lackawanna County District Attorney's office from prosecuting this case; (6) whether the trial court erred in denying appellant's motion that District Attorney Ernest Preate, Jr.'s testimony should not be admitted since it was cumulative and in most cases, irrelevant; (7) whether the trial court erred in allowing the hearsay testimony of District Attorney Preate; (8) whether the argumentative manner of District Attorney Preate while testifying was prosecutorial misconduct; (9) whether the trial court erred in refusing to dismiss the charges under 18 Pa.C.S.A. Sec. 312, the deminimis infractions section; (10) whether the trial court erred in denying appellant's request for charges on the issues of identity and deminimis infractions; and (11) whether the Honorable James M. Munley erred in failing to disqualify himself as the trial judge. We therefore affirm the trial court's opinion regarding these eleven issues. (See Appendix.)
We, consequently, will discuss only the following four issues: (1) whether 18 Pa.C.S.A. Sec. 5718 of the Wiretapping and Electronic Surveillance Control Act is unconstitutional; (2) whether law enforcement officials complied with the requirements of 18 Pa.C.S.A. Sec. 5718; (3) whether the trial judge erred in allowing the jury to read Commonwealth exhibits three, four, and five, which are transcripts of three wiretapped communications offered into evidence at the trial; (4) whether the trial judge erred in refusing to strike for cause prospective jurors six and ten, thereby forcing appellant's counsel to use peremptory challenges on
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the two prospective jurors. For the reasons stated below, we affirm the trial court's judgment of sentence.
During 1982, the District Attorney of Lackawanna County, the Pennsylvania State Police, the Pennsylvania Attorney General, and the Scranton Police Department were all engaged in a coordinated investigation of illegal drug trafficking in Lackawanna County. Pursuant to this investigation, the District Attorney of Lackawanna County filed three applications with the Hon. Vincent A. Cirillo of the Superior Court for orders of authorization to intercept telephone conversations of certain named individuals, as well as other unnamed individuals. Appellant's name was not among those specifically listed in the applications. The applications stated that the telephone communications to be intercepted would pertain to offenses involving distribution and possession of controlled substances and conspiracy to commit such offenses, in violation of Pennsylvania's Controlled Substances Act. The three applications were approved by Judge Cirillo and docketed in the Superior Court as 45-1, 45-2, and 45-3.
After approval of the applications, law enforcement officials began electronic surveillance of the telephones in the residences of the individuals specifically identified in the applications. The electronic surveillance continued for twenty-one days, from December 1, 1982, to December 21, 1982. During this period, hundreds of conversations relating to illegal drug sales and trafficking were intercepted and recorded.
On December 1, 1982, appellant's voice or name was intercepted during three different conversations, though his discussions did not pertain to the trafficking of illegal drugs per se. Rather, he warned Michelle Kulick*fn4 that the telephone was being electronically monitored by law enforcement officials, and he told her to warn several other individuals of this situation. Ms. Kulick's voice was later intercepted
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during another conversation in which she told the other person that appellant had warned her about the telephone being wiretapped. Appellant was consequently arrested on December 19, 1983, and charged with hindering apprehension or prosecution, 18 Pa.C.S.A. Sec. 5105, and criminal conspiracy to hinder apprehension or prosecution, 18 Pa.C.S.A. Sec. 903. On May 8 and 9, 1985, appellant was tried before a jury in the Court of Common Pleas of Lackawanna County, and was found guilty of both charges. After denial of his post-verdict motions, Appellant filed this appeal.
Appellant's first two issues concern the constitutionality and interpretation of 18 Pa.C.S.A. Sec. 5718 of the Wiretapping and Electronic Surveillance Control Act. 18 Pa.C.S.A. Sec. 5718 provides:
Interception of communications relating to other offenses.
When an investigative or law enforcement officer, while engaged in court authorized interceptions of wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in Section 5717(a) (relating to disclosure or use of contents of wire or oral communications or derivative evidence). Such contents and evidence may be disclosed in testimony under oath or affirmation in any criminal proceeding in any court of this Commonwealth or of another state or of the United States or before any state or Federal grand jury when in advance of such disclosure and on application to a court, the court finds that the contents were listed in the final report, pursuant to section 5712(e) relating to issuance or order and effect), and were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.
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This section is applicable only if, during the course of a judicially authorized and properly conducted electronic surveillance operation, law enforcement officers intercept wire or oral communications concerning crimes not mentioned in the original wiretap application. The original application must specify the criminal offenses that will be the focus of the wiretap operation. See 18 Pa.C.S.A. Sec. 5709. When conversations concerning crimes not mentioned in the original wiretap application are intercepted, the recordings may be offered into evidence at trial or other adversary proceedings only if the law enforcement officials intercepting the conversations properly comply with the statutory requirements of 18 Pa.C.S.A. Sec. 5718.
18 Pa.C.S.A. Sec. 5718 enunciates four requirements. First, an application must be made to a judge of the Superior Court to authorize evidentiary use of the recordings pertaining to crimes not mentioned in the original wiretap authorization. Second, the contents of the recordings must be listed in the final report, pursuant to 18 Pa.C.S.A. Sec. 5712(e), and filed with the judge of the Superior Court who originally approved the wiretap order. Third, the recorded conversations must be intercepted in accordance with the other provisions of the Wiretapping and Electronic Surveillance Control Act. Last, the application filed with the judge of the Superior Court must be made as soon as practicable.
Appellant's first contention regarding 18 Pa.C.S.A. Sec. 5718 is that the statutory section is unconstitutional since it is violative of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. In essence, appellant asserts that the "as soon as practicable" language of the statute does not provide an aggrieved individual with due process of law since the language is too vague to give a potential defendant fair notice of the time period in which law enforcement officials may seek to utilize the recordings as evidence of a criminal violation.
Before considering the merits of appellant's contention, however, we must first address two distinct questions concerning
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whether this issue is properly before this Court: (1) whether appellant properly preserved this issue for consideration on appeal, and (2) whether appellant violated Pa.R.A.P. 521 by failing to notify the Pennsylvania Attorney General regarding his intention to challenge the constitutionality of 18 Pa.C.S.A. Sec. 5718. For the reasons stated below, we find that appellant's constitutional issue is properly before this Court, and we will address the merits of appellant's contention.
In determining whether appellant properly preserved this issue for appeal, we must first trace the path that the issue has traveled in reaching this Court. Appellant first raised the constitutionality question in his omnibus pretrial motion (motion to suppress wire or oral communications). The motion stated, in pertinent part:
15. The above mentioned intercepted conversations were not lawfully done and violate "Wiretapping and Electronic Surveillance Control Act" 18 Pa.C.S.A. 5701 et seq. and are violative of the defendant's rights under the 4th and 14th Amendments to the U.S. and Pa. Constitution and are violative of the defendant's rights under the Pa. Rules of Criminal Procedure.
Appellant's motion to suppress was denied, but he again raised the constitutional issue in his post-verdict motion for new trial and motion in arrest of judgment. This motion provided in pertinent part:
27. Judge Walsh erred in denying Defendant's PreTrial Motion in that Wiretapping and Electronic Surveillance Controlled (sic) Act under which the District Attorney appilied (sic) for the court order to intercept phone communications is unconstitutional and is violative of the Pennsylvania State Constitution and the United States Constitution.
Further, appellant's brief supporting this motion noted:
Section 5178 (sic) of the Wire Tap Law provides that when oral communications relating to offenses other than those specified in the order of authorization are intercepted that a certain procedure must be followed. This
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procedure does not afford an aggrieved person due process of law in that it is stated an application shall be made as soon as practicable. This is too vague.
In the Hashem case, the final report was filed in May of 1983 and the request to use said communications was made to Superior Court in January of 1985. This section of the Act as applied to the Defendant (Appellant) violates due process of law guaranteed to him under the 14th Amendment of the Pennsylvania and United States Constitution.
Defendant's (appellant) brief in support of the motion for new trial and motion in arrest of judgment at p. 21. Neither Judge Walsh's opinion supporting the order denying appellant's motion to suppress nor Judge Munley's opinion supporting the order denying appellant's post-verdict motions addresses the merits of appellant's constitutional challenge. The latter trial court opinion mentioned this issue only briefly:
Defendant's (appellant) allegations in paragraphs 25 and 27 claim error by Judge Walsh in denying Defendant's Omnibus Pre-Trial Motion. Again, Defendant has not introduced new evidence that would require us to override the decision of a judge of this court. We concur with the April 10, 1985 decision of Judge Walsh to deny Defendant's Motion to Suppress intercepted wire and oral communications, and will not disturb his findings in the absence of new evidence.
Trial court opinion of Judge Munley at pp. 766-767. In his appeal before this Court, appellant raises exactly the same issue that he raised in his post-verdict motions, and he phrased both issues, and his supporting arguments, exactly the same.
A comparison of appellant's constitutional contentions as raised in his suppression motion and before this Court reveals that the two are different. In both instances, appellant maintains that the intercepted communications violate his constitutional rights, specifically his rights under the Fourteenth Amendment. But three significant differences
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exist. First, appellant in his suppression motion stated without any factual specificity that the intercepted communications violate his rights under the Fourth Amendment and under the Pennsylvania Rules of Criminal Procedure. In his brief before this Court, appellant, however, does not mention either the Fourth Amendment or the Pennsylvania Rules of Criminal Procedure, thereby waiving any issues concerning them. Second, appellant's suppression motion merely stated that the intercepted communications violated his constitutional rights, but appellant's appellate brief specifically challenges the constitutionality of the "as soon as practicable" provision of 18 Pa.C.S.A. Sec. 5718 of the Wiretapping and Electronic Surveillance Control Act. Third, appellant's suppression motion did not provide any specific facts, circumstances or grounds supporting his constitutional claims, but appellant's appellate brief specifies that his due process rights were violated because of the nineteen-month delay between the filing of the final report and the application to use the intercepted communications.
The constitutional issues raised by appellant in his suppression motion and in his appeal are different, and as such, are potentially troublesome since a claim of error not properly preserved for appellate review will not, as a rule, be considered by this Court on appeal. See Commonwealth v. Albert, 335 Pa. Super. 424, 426, 484 A.2d 775, 776 (1984). Two reasons, however, persuade us to decide the merits of appellant's contention that 18 Pa.C.S.A. Sec. 5718 violates the due process clause of the Fourteenth Amendment. First, in his suppression motion did contend that the intercepted communications violated his rights under the Fourteenth Amendment, and we believe that the motion has sufficient grounds supporting the claim, pursuant to Pa.R.Crim.P. 323(d),*fn5 to preserve the issue for appellate review in this case, especially considering the underdeveloped state of
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Pennsylvania law concerning evidentiary use of intercepted communications relating to crimes not mentioned in the original wiretap application. See Commonwealth v. Beauford, 327 Pa. Super. 253, 260 n. 6, 475 A.2d 783, 786-787 n. 6 (1985) (suppression motions stating that "the information used to obtain dialed number orders (DNR) is insufficient and the orders themselves were legally and constitutionally unjustified," citing Art. I, Sec. 8 of Pennsylvania Constitution, and the Fourth and Fourteenth Amendments of the Federal Constitution, were sufficiently particular, pursuant to Pa.R.Crim.P. 323(d), especially given the underdeveloped state of Pennsylvania law concerning DNR use).
Second, even if appellant's due process challenge to the criminal wiretap statute was not properly raised in the motion to suppress and, consequently, not properly preserved for appellate review, we can consider appellant's due process challenge as if it had been properly raised in the court below. In Commonwealth v. Paul, 177 Pa. Super. 289, 111 A.2d 374 (1955), the defendant asserted for the first time on appeal a due process challenge against a criminal statute making the operation or conduct of a lottery a misdemeanor. This Court stated:
His (defendant) present position is that "having been convicted under a statute which fails to meet the requirements of Due Process," he is entitled to have his conviction reversed. It is settled law that matters not raised in, or considered by, the court below cannot be invoked on appeal . . . This rule applies even when, as here, the question raised is a constitutional one.
We could, of course, dispose of this appeal by invoking the rule above stated. We prefer, however, to consider the question raised by the defendant as if it had been properly raised in the court below.
Id., 177 Pa. Superior Ct. at 291, 111 A.2d at 375 (citations omitted). Accord Commonwealth v. Page, 451 Pa. 331, 334 n. 4, 303 A.2d 215, 217 n. 4 (1973) ("While generally we will not consider issues, on direct appeal, which were not presented in post-trial motions, we have enumerated an
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exception to the rule when, as here, the issue (constitutionality of criminal statutes proscribing abortion) is one of public policy"); Haagen v. Patton, 193 Pa. Super. 186, 191-192, 164 A.2d 33, 35 (1960) (as a general rule, the appellate court will refuse to consider matters which were not raised in the court below, but this rule does not apply where questions of jurisdiction or public policy are involved).
We next address whether appellant improperly failed to notify the Pennsylvania Attorney General, pursuant to Pa.R.A.P. 521(a),*fn6 concerning his intention to challenge the constitutionality of 18 Pa.C.S.A. Sec. 5718. Our review of the record reveals that no such notice was given, but we believe that appellant was not required to notify the Attorney General in this case. A plain reading of the language of Pa.R.A.P. 521(a) reveals a party has the duty to notify the Attorney General of a constitutional challenge to a statute only "in any matter in an appellate court to which the Commonwealth or any officer thereof, acting in his official capacity, is not a party." In addition, Commonwealth v. Hassine, 340 Pa. Super. 318, 490 A.2d 438 (1985), interpreting Pa.R.A.P. 521(a), stated:
Appellant's failure to notify the Attorney General pursuant to Pa.R.A.P. 521(a) would normally constitute a waiver of his constitutional challenge. However, this court, in the interest of judicial economy and because the plain language of Rule 521(a) exempts the challenging party from his obligation where the Commonwealth is a party, has adopted the policy of addressing the merits of these constitutional challenges.
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recording should be utilized as evidence of the crime. The length or breadth of a criminal investigation cannot be ascertained or predicted with mathematical certainty, and setting arbitrary time limits in the statute would only hinder the progress of criminal investigations. By setting an "as soon as practicable" standard, the statute balances both considerations of fairness and practicality. A judge of the Superior Court must decide if an application meets the statutory requirements, including whether the application was made as soon as practicable. The "as soon as practicable" requirement, consequently, sets a reasonable limit on the amount of time in which law enforcement officials may seek to use recorded conversations as evidence of criminal activity by a person; it does not, however, arbitrarily limit the amount of time law enforcement agencies have to complete their investigations and determine whether the recorded conversations pertain to some type of criminal activity. Fourth, the statute does not allow law enforcement officials free rein to record conversations of individuals and later use the recordings as evidence of criminal activity by the individuals. To comply with this statute, the original wiretap request (noting the crimes to be intercepted) has to be approved by a judge of the Superior Court pursuant to the provisions of the Wiretapping and Electronic Surveillance Control Act, and the operation of the wiretap must be in compliance with the statutory requirements of the act. Further, use of any recorded conversation as evidence of crimes not mentioned in the original application must be approved by a judge subsequent to the recording of the conversation. This practice checks any arbitrary or discriminatory actions by law enforcement officials since the judge can assess the circumstances of each case to determine if the requirements of 18 Pa.C.S.A. Sec. 5718 have been met. We therefore reject appellant's contention as meritless.
Appellant's next contention regarding 18 Pa.C.S.A. Sec. 5718 is that the requirements of the section were not complied with in this case since neither his name, nor his conversations, were mentioned in the original final report
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on the wiretap operation, and law enforcement officials waited twenty-six months to apply for use of the recordings as evidence of appellant's alleged crimes, which were not mentioned in the original wiretap authorization. Appellant was arrested on December 19, 1983, and charged with hindering, and conspiracy to hinder, apprehension or prosecution because of what he said during several telephone conversations that were legally recorded on December 17, 1982. The wiretap operation, as previously noted, was authorized to record conversations regarding illegal drug sales and trafficking in violation of the Controlled Substances Act. The final reports on this wiretap operation were filed with Judge Cirillo on May 6, 1983, but appellant's name, the charges later brought against him, and the contents of his conversations were not listed in this final report.
After his arrest, appellant in March 1984 filed a motion to suppress the evidence against him, contending its use would violate 18 Pa.C.S.A. Sec. 5718. In January 1985, the District Attorney of Lackawanna County filed a supplemental file report on the December 1982 wiretap operation, listing for the first time appellant's name, the charges against him, and the contents of his conversations. In addition, the district attorney in January 1985 made an application to Judge Cirillo pursuant to 18 Pa.C.S.A. Sec. 5718 to make evidentiary use of appellant's recorded conversations from the wiretaps docketed at 45-1, 45-2, and 45-3. Judge Cirillo entered an order on January 3, 1985, approving the district attorney's application to utilize appellant's recorded conversations. On April 10, 1985, Judge Walsh of the Court of Common Pleas of Lackawanna County entered an order denying appellant's motion to suppress the evidence; and on May 8 and 9, 1985, appellant was tried and convicted of the charges against him in a jury trial presided over by Judge Munley of the Court of Common Pleas of Lackawanna County.
In Pennsylvania, law enforcement officials seeking to use recorded conversations as evidence of crimes not listed in
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the original wiretap application must comply with the four requirements of 18 Pa.C.S.A. Sec. 5718. As previously discussed supra, the four requirements of the statute are: (1) the contents of the conversations must be listed in the final report pursuant to 18 Pa.C.S.A. Sec. 5712(e); (2) the conversations must be intercepted in accordance with the other provisions of the wiretap act; (3) an application to use the recordings must be made to a judge of the Superior Court; and (4) the application must be made as soon as practicable. Requirements (2) and (3) are not at issue in this case. No question has been raised about the manner in which the wiretap operation was conducted, and an application to use the recordings was made to Judge Cirillo. Requirements (1) and (4), however, concerning the timing of both the final report and the application, are at issue in this case.
The first requirement concerns the filing of a final report at the conclusion of a wiretap operation. 18 Pa.C.S.A. Sec. 5718 states that a final report in compliance with 18 Pa.C.S.A. 5712(e) and a list of the contents of the recordings must be filed with the judge supervising the wiretap operation. 18 Pa.C.S.A. Sec. 5712(e), entitled "Final Report," states: "Whenever a surveillance is authorized pursuant to this section, a complete list of names of participants and evidence of offenses discovered, including those not stated in the application for order, shall be filed with the court at the time the authorized surveillance is terminated." In essence, the two statute sections, taken together, seem to indicate that upon termination of a wiretap operation, a final report listing both participants and evidence of offenses discovered, including those crimes not mentioned in the original application, must be filed with the judge supervising the wiretap operation. But Commonwealth v. Doty, 345 Pa. Super. 374, 498 A.2d 870 (1985), cert. denied, U.S. , 107 S.Ct. 185, 93 L.Ed.2d 119 (1986), which is the only case previously interpreting the final report requirement of the Wiretapping and Electronic Surveillance Control Act, more liberally construed the timing aspect of the
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final report. Noting that neither the federal wiretap statute nor the wiretap law of any other state has a final report requirement, the Court stated:
We conclude that it would be an unreasonable interpretation of 18 Pa.C.S.A. Sec. 5712(e) and serve no essential purpose to require suppression of all evidence obtained by an intercept whenever the final report is not filed simultaneously with the termination of surveillance. The final report must contain "a complete list of names of participants and evidences of offenses discovered." (18 Pa.C.S.A. Sec. 5712(e)). For the preparation of such a report a reasonable amount of time must be allowed.
Id., 345 Pa. Superior Ct. at 405, 498 A.2d at 885. In addition, Doty also noted that the determination of whether a delay in filing a final report is unreasonable hinges on the prejudice to the defendant caused by the delay. Id. Furthermore, Doty seemed to indicate that prejudice was not present if a defendant receives notice more than ten days before an adversary proceeding where the Commonwealth intends to introduce recorded conversations as evidence of the crimes charged. Accord 18 Pa.C.S.A. Sec. 5720. We explicitly conclude that a delay in filing a final report is unreasonable only if the defendant is prejudiced by the delay. Further, a significant factor in determining if a defendant is prejudiced is the point in time before an adversary proceeding when he receives notice regarding the prosecution's intention to utilize the recorded conversations as evidence to substantiate criminal charges in the adversary proceeding.
In the present case, appellant's trial was on May 8 and 9, 1985. In January 1985, the Lackawanna County District Attorney's office filed a supplemental final report listing appellant's name and the contents of his recorded conversations from the December 1982 wiretap operation. Even though the supplemental final report was filed twenty-six months after the conversations were originally recorded in December 1982, the report was still filed approximately four months prior to appellant's trial. Consequently,
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appellant, had sufficient notice that the recorded conversations would be introduced as evidence of the criminal charges against him. Therefore, he suffered no prejudice from the twenty-six-month delay in filing the final report since he was aware four months in advance of trial that the tapes containing his conversations would be offered into evidence.
The other requirement of 18 Pa.C.S.A. Sec. 5718 at issue in this case is the fourth requirement, which states that the application to a judge to utilize recorded conversations concerning crimes not listed in the original application must be made "as soon as practicable." The phrase as found in 18 Pa.C.S.A. Sec. 5718 has previously not been interpreted by a Pennsylvania appellate court.
The same phrase, however, is found in the federal statute, 18 U.S.C. Sec. 2517(5), that is analogous to 18 Pa.C.S.A. Sec. 5718. 18 U.S.C. Sec. 2517(5) provides:
When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order or authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of the section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.
The Pennsylvania and federal statutes, concerning qualification of recorded conversations for use as evidence of criminal offenses not mentioned in the original wiretap authorization, are substantially similar. The only significant difference is that the federal statute, unlike the Pennsylvania statute, does not require the filing of a final report listing the identity of the parties and the contents of the recorded
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conversations. But both statutes require law enforcement officials to make an application as soon as practicable to an appropriate judge to qualify for evidentiary use recorded conversations ...