Appeal from the Order of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 960-86.
Patricia E. Coonahan, Assistant District Attorney, Cheltenham, for Com., appellant.
William A. Davis, Assistant Public Defender, Norristown, for appellee.
Popovich, Johnson and Hester, JJ. Johnson, J., files a concurring statement.
[ 366 Pa. Super. Page 439]
This is an appeal by appellant, the Commonwealth of Pennsylvania, from an order entered in the Montgomery County Court of Common Pleas discharging the defendant-appellee, Keith Jung. We quash.
The unusual issue here is unprecedented in this Commonwealth and concerns whether the proceeding below was a suppression hearing or a trial.
On February 6, 1986, appellee was tried before the Honorable Laurence A. Brown and found not guilty of assault
[ 366 Pa. Super. Page 440]
charges of his girlfriend, Naomi Ghen. During the course of the trial, a taped telephone conversation, recorded by appellee between Ms. Ghen and himself, was admitted into evidence over the Commonwealth's objections. Appellee was consequently charged with violations of the Wiretap and Electronic Surveillance Control Act, (hereinafter referred to as "Act"), pursuant to 18 Pa.C.S.A. § 5703(1), (2) and (3), as a result of the February 6, 1986, trial. On August 4, 1986, appellee waived his right to a trial by jury before the Honorable Horace A. Davenport. The Commonwealth called its first witness, Jacqueline Stevens, the official court reporter at appellee's prior trial, for the purpose of offering into evidence a copy of the transcript from the previous trial and the actual taped recording of the alleged wiretap. Appellee objected to this testimony being offered into evidence. Said objection was sustained by the trial court which ruled that the Act did not pertain to the conduct of private citizens. The Commonwealth requested the right to take an interlocutory appeal on the issue of the admission into evidence of the official transcript of appellee's prior trial and the taped recording of appellee's conversation with Ms. Ghen. The Commonwealth's motion was denied, and the trial court found the appellee not guilty of violations of the Act. The Commonwealth filed a timely appeal on September 2, 1986. On September 9, 1986, appellee filed a motion to quash the appeal, contending that the Commonwealth's appeal was not appropriate since the trial court's ruling was not made pursuant to a pre-trial suppression motion but was an evidentiary ruling made during the course of the trial. On December 30, 1986, this Court denied appellee's motion.
The Commonwealth presents two issues for our review on appeal: (1) whether the Act prohibits the non-consensual interception of telephone communications by a private individual; and, (2) whether the trial court erred by dismissing the criminal charges against the appellee.
Before considering the merits of the Commonwealth's appeal, this Court must first address appellee's contention
[ 366 Pa. Super. Page 441]
that the Commonwealth has no right of appeal under the instant circumstance.
In the case at bar, the trial court found the appellee not guilty of violations of the Act, 18 Pa.C.S.A. § 5703(1), (2) and (3), and dismissed the charges against him. (N.T., August 4, 1986, p. 14). Appellee argues that the verdict of acquittal by the trial court terminates subsequent prosecution of the appellee for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution. On the other hand, the Commonwealth argues that the trial court, as the trier of facts in the case, had not yet begun to hear evidence, and, therefore, double jeopardy had not attached. Rather, the Commonwealth contends that the total presentation of its case consisted of an offer of proof as to the testimony of its first witness, Jacqueline Steven, and that defense counsel objected at that point to the admission of said testimony into evidence. Thus, the Commonwealth characterizes defense counsel's objection as a suppression motion and the proceeding as a pre-trial hearing at which jeopardy had not attached, instead of a trial at which the trial court had begun to hear evidence.
After a careful study of the record and the applicable law, we believe that the Commonwealth's appeal must be quashed.
Instantly, the trial court's finding of "not guilty" unequivocally bars reprosecution of appellee for the same offense on the basis of double jeopardy. In Commonwealth v. Tillman, 501 Pa. 395, 397-98, 461 A.2d 795, 796-97 (1983), the Pennsylvania Supreme Court, adopting the numerous rulings of the United States Supreme Court on the importance of not putting a defendant twice in jeopardy following a verdict of acquittal, stated:
"Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, ...