Appeal from the Order of December 8, 1986, in the Court of Common Pleas, Criminal Division, of Mercer County, No. 463 Criminal 1986.
Kenneth K. McCann, Assistant District Attorney, Mercer, for appellant.
Robert G. Kochems, Assistant Public Defender, Mercer, for appellee.
Rowley, Johnson and Montgomery, JJ.
This is an appeal by the Commonwealth from an order granting appellee, Thomas Henlen's, petition for a Writ of Habeas Corpus and dismissing the charges against him for a violation of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5703. We reverse.
The facts have been stipulated to be as follows:
1. Sometime prior to June 19, 1986, a theft of an inmate's personal property occurred at the Mercer County Jail and Trooper James D. Dibler of the Pennsylvania State Police was ordered to investigate the same on March 26, 1986.
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. On or about June 19, 1986, Trooper Dibler made arrangements to interview Mr. Henlen concerning the theft.
3. Mr. Henlen was a suspect in the theft case.
4. On June 19, 1986, Mr. Henlen was interviewed by Trooper Dibler at the Mercer County Jail for thirty to forty-five minutes, concerning the theft case.
5. Officer Stonebraker, another guard at the Jail, was present at Mr. Henlen's request for eight to ten minutes.
6. Trooper Dibler did not know he was being taped, did not see the tape recorder and would not have agreed to ...