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COMMONWEALTH PENNSYLVANIA v. THOMAS PHILLIPS (02/22/88)

filed: February 22, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS PHILLIPS, APPELLANT



Appeal from the judgment of sentence November 21, 1986 in the Court of Common Pleas of Mercer County, Criminal, No. 640 of 1985.

COUNSEL

William F. Cercone, Jr., Pittsburgh, for appellant.

Kenneth K. McCann, Assistant District Attorney, Mercer, for Com., appellee.

Beck, Johnson and Hester, JJ.

Author: Beck

[ 373 Pa. Super. Page 195]

Appellant was found guilty by a jury of unlawfully delivering and possessing cocaine. On appeal, appellant challenges the constitutionality of § 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.Cons.Stat.Ann. § 5701 et. seq. (Purdon 1983). In the alternative, appellant argues that the applicable requirements of the Act, even if constitutional, were not properly followed in this case. He also raises numerous allegations of trial and sentencing errors. None of these claims contain merit. We therefore affirm appellant's judgment of sentence.

Appellant's conviction followed a state and federal drug investigation in the Sharon-Farrell area of Mercer County. During the investigation, the state police used as an informant one Anthony Hueston. When the investigating officials believed that the targeted individuals would not deal

[ 373 Pa. Super. Page 196]

    with unfamiliar persons, they directed Hueston to directly purchase the drugs. This method was used in appellant's case. The police then made the decision to equip Hueston with a body recorder during a drug transaction between Hueston and appellant. Hueston consented to wear the wire, and authorization was obtained from an Assistant Attorney General for interception. The recording itself was made during a drug transaction between Hueston and appellant while they were in appellant's car. This recording was admitted into evidence at appellant's trial.

Appellant claims that this recording should have been suppressed because the agents failed to obtain a court order to intercept the communications at issue, pursuant to 18 Pa.Cons.Stat.Ann. §§ 5708-12 (Purdon 1987). Those sections provide for authorization by a Superior Court Judge for the interception of wire or oral communications. However, since Hueston was a party to the communication and voluntarily consented*fn1 to wearing the body wire, no court order was necessary under the statute. Section 5704(2)(ii) provides that it is not 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 the district attorney . . . has ...


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