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COMMONWEALTH PENNSYLVANIA v. SHERMAN ROSS CLARK (06/06/88)

filed: June 6, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
SHERMAN ROSS CLARK, APPELLEE



Appeal from the Order entered December 12, 1983 in the Court of Common Pleas of Erie County, Criminal Division, at No. 1347 of 1983.

COUNSEL

Frank J. Scutella, Assistant District Attorney, Erie, for Com., appellant.

Leonard G. Ambrose, III, Erie, for appellee.

Del Sole, Hester and Feeney,*fn* JJ.

Author: Del Sole

[ 374 Pa. Super. Page 309]

This case is before us upon remand from the Pennsylvania Supreme Court.

In our initial examination of the case we addressed two issues presented by the Commonwealth. See: Commonwealth v. Clark, 349 Pa. Super. 255, 502 A.2d 1375 (1985). After reviewing the facts we concluded that the trial court correctly ruled that conversations recorded between Appellee and Commonwealth informant, Richard McCullough had to be suppressed since the consent issued by Mr. McCullough was not voluntary. However because we found the review and authorization requirements of the Wiretapping and Electronic Surveillance Control Act of 1978, 18 C.S.A. § 5701, et seq. (the Act) were complied with regarding a recorded conversation between Appellee and a state trooper on January 9, 1983, we reversed the trial court order which suppressed their contents.

The Supreme Court granted the Commonwealth's request for review to consider "whether the possibility of the refiling

[ 374 Pa. Super. Page 310]

    of criminal charges against an individual forecloses the individual's ability to voluntarily consent to a request by law enforcement authorities for a wiretap interception." Commonwealth v. Clark, 516 Pa. 599, 533 A.2d 1376, 1377 (1987). With regard to this issue the Supreme Court reversed this court's earlier decision and held that Mr. McCullough's consent was freely given. The Supreme Court also noted that the trial court suppressed these same conversations because it found other instances of non-compliance with the provisions of the Act, including the issuance of blanket consents and the failure to the Assistant District Attorney to review the facts prior to authorizing the interceptions. Since these matters were not treated by this court in our initial review of the case, the Supreme Court ordered the case to be remanded "for resolution of the remaining issues." Id., 516 Pa. at 611, 533 A.2d at 1382.

We now consider whether the trial court properly ruled that the provisions of 18 Pa.C.S. § 5704(2)(ii) were not complied with by the Commonwealth in this case. The relevant portion of the statute at issue provides an exception to the general prohibition against the interception or disclosure of communications. It reads in pertinent part:

It shall not be unlawful under this chapter for . . .

(2) Any investigation 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 an interception. However, no interception under this paragraph shall be made unless the Attorney General, or the district attorney, or a assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and ...


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