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COMMONWEALTH PENNSYLVANIA v. MATTHEW WHITAKER (07/27/88)

decided: July 27, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MATTHEW WHITAKER, APPELLANT



Appeal from the Order of the Superior Court of September 20, 1985 at No. 2 Harrisburg 1984, Affirming the Order of the Court of Common Pleas of Lycoming County, Criminal Division, at No. 82-10, 410. 350 Pa. Super. 636, 503 A.2d 459 (1985).

COUNSEL

Emmanuel H. Dimitriou, Reading, for appellant.

Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Flaherty

[ 519 Pa. Page 79]

OPINION OF THE COURT

On May 20, 1983, in a trial by jury in the Court of Common Pleas of Lycoming County, the appellant, Matthew Whitaker, was found guilty of bookmaking and conspiracy to commit bookmaking. See 18 Pa.C.S. § 5514 (bookmaking); 18 Pa.C.S. § 903 (conspiracy). A sentence of one to four years imprisonment was imposed. An appeal was taken to the Superior Court, and, in a memorandum opinion and per curiam order, the judgment of sentence was affirmed, 350 Pa. Super. 636, 503 A.2d 459. The present appeal ensued.

At trial, various telephone communications of appellant were introduced into evidence, such communications having

[ 519 Pa. Page 80]

    been obtained through telephone wiretaps issued under provisions of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701, et seq., (hereinafter Wiretap Act). Various questions regarding the admissibility of this evidence are presented for our review. The Petition for Allowance of Appeal was granted in this case primarily to allow this Court to address certain issues of first impression involving interpretation of the Wiretap Act.*fn1 Upon review, however, it is apparent that most of the issues involve only questions as to whether the record adequately supports findings of fact made by the court of common pleas.

The first contention raised by appellant concerns the fact that the order authorizing the tap which intercepted his telephone conversations did not name him as one of the individuals whose communications were to be intercepted. The tap was not connected to appellant's telephones, but rather was connected to the telephones of another individual. The wiretap order named a number of other individuals, as well as "others yet unknown," as targets of the tap. This fact gains significance under 18 Pa.C.S. § 5712(a), which provides, "Each order authorizing the interception of any wire or oral communication shall state the following: . . . (2) The identity of, or a particular description of, the person, if known, whose communications are to be intercepted."

In the application seeking issuance of the wiretap order, appellant was not designated as one whose communications

[ 519 Pa. Page 81]

    would be intercepted. It is argued, therefore, that the absence of appellant's name from the list of individuals named in the application mandates exclusion of the evidence, under 18 Pa.C.S. § 5709(3)(i), which provides that an application "shall" include an affidavit specifying the "identity of the particular person, if known, committing the offense and whose communications are to be intercepted." The suppression court declined to suppress appellant's intercepted communications, however, reasoning that the foregoing statutory provision does not require that a person be named in a wiretap application unless there is probable cause to believe that such person's communications will be intercepted. On the basis that probable cause was lacking with respect to appellant, the suppression court ruled that the evidence against appellant need not be suppressed. We agree.

The foregoing statutory provision expressly limits the situations in which individuals are to be specified by name in an application, to wit, requiring identification of individuals who are "known," and who are "committing the offense," and only when it can be said that the individuals' communications "are to be intercepted." A determination as to ...


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