Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 8509211.
Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellant.
Shelley Stark, Assistant Public Defender, Pittsburgh, for appellee.
Rowley, Johnson and Montgomery, JJ.
[ 367 Pa. Super. Page 81]
This is an appeal by the Commonwealth from the pretrial court's grant of appellee's motion to suppress a certain recorded conversation and the transcript thereof. Finding the suppression court's reliance upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and its progeny to be misplaced, we reverse the order of the suppression court and remand for further proceedings.
We initially note that the Commonwealth has set forth in its statement of jurisdiction that the entry of the suppression order in question substantially handicapped the prosecution, thereby properly invoking the jurisdiction of this court to entertain the appeal from an otherwise interlocutory order. In light of our Supreme Court's holding in Commonwealth v. Dugger, 506 Pa. 537, 545-46, 486 A.2d 382, 386 (1985), we will entertain the within appeal.
The Commonwealth argues that the trial court's suppression order was erroneous for two reasons: (1) appellee's Sixth Amendment right to counsel was not violated by the Commonwealth's interception of his second telephone call to the Commonwealth witness; and, (2) interrogation, as contemplated by Massiah and its progeny, did not occur in the instant case. For the following reasons, we agree with the Commonwealth on both claims.
Appellee was charged with criminal homicide. During a pretrial conference, a potential prosecution witness informed the Commonwealth that she had been at a party with the defendant and his co-defendant. The victim arrived at the party with the co-defendant, who secured a drink and returned to a truck with the victim. Appellee then entered the kitchen of the house where the party was held and said that they were going to "roll" and kill the victim. Appellee was also reported as saying that he was going to get a knife for that purpose. He showed the witness a knife before he left the party with his co-defendant and the victim. A copy of the interview report was immediately given to defense counsel. Within two hours of disclosure of the
[ 367 Pa. Super. Page 82]
report, appellee, through a third party, called the witness at home and asked her to change her story. Appellee suggested that if she were asked why her testimony differed from the reported statement, she should indicate that she was forced to make the initial statement by the police. Appellee also indicated that he would call again the following day between 4:00 p.m. and 5:30 p.m. to ensure her cooperation. The witness notified the police of the telephone call, and wiretap procedures were initiated through the District Attorney's Office. Appellee telephoned the witness at 5:20 p.m. on the prearranged date and the conversation was recorded.
The Commonwealth proposed to offer the transcript and/or the tape recording through the direct testimony of the witness as evidence of consciousness of guilt. Defense counsel objected on the grounds that the witness acted as a state agent at the time of the telephone call, that appellant had been charged, arraigned and was represented by counsel, therefore raising the question as to the legality of the offer in light of Massiah and other cases. The suppression court found that the witness interrogated appellee in violation of his Sixth Amendment rights by asking appellee what he wanted her to say and granted the suppression motion.
It is clear that that the Massiah court found that the Sixth Amendment only forbids deliberate elicitation of incriminating remarks. Cf., e.g., Kuhlmann v. Wilson, 477 U.S. 436, 457, 106 S.Ct. 2616, 2629, 91 L.Ed.2d 364, 383 (1986); and United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186, 65 L.Ed.2d 115, 122 (1980). The activity which formed the basis for the suppression court's ...