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COMMONWEALTH PENNSYLVANIA v. CLARENCE J. MEHALIC (03/01/89)

filed: March 1, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
CLARENCE J. MEHALIC, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Westmoreland County at Nos. 966, 967, and 968 C of 1985.

COUNSEL

Leonard I. Sharon, Lewiston, Maine, for appellant.

Daniel M. Myshin, Assistant District Attorney, Greensburg, for Com., appellee.

Brosky, Johnson and Melinson, JJ.

Author: Melinson

[ 382 Pa. Super. Page 267]

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Westmoreland County in which Appellant, Clarence J. Mehalic, was sentenced to serve a term of imprisonment as a result of his conviction on the charges of criminal conspiracy, criminal solicitation, simple possession of a controlled substance (two counts), possession with intent to deliver a controlled substance (two counts), and delivery of a controlled substance (two counts). We affirm.

On 6 April 1985, Phillip Topper was arrested at his parents' home in Emmitsburg, Maryland on drug-related charges. After his arrest, Topper met with agents of the United States Drug Enforcement Agency (hereinafter "DEA"), the Maryland State Police, and the Emmitsburg Police Department. The Maryland authorities negotiated a plea agreement with Topper in which he agreed to cooperate in providing a substantial felony prosecution.

Topper informed the DEA and Maryland authorities that his source for cocaine was Mehalic. The DEA arranged for Topper to place two intercepted telephone calls to Mehalic in order to arrange a controlled drug buy. A controlled buy was scheduled by Topper to occur on 22 April 1988 at the Donegal Exchange of the Pennsylvania Turnpike in Westmoreland County. All previous drug transactions between Mehalic and Topper had occurred in Westmoreland County and Mehalic is a resident of the county. Pennsylvania State Police arrested Mehalic at the interchange and charged him with criminal conspiracy (six counts), possession of a controlled substance (two counts), possession with intent to deliver a controlled substance (two counts), delivery of a controlled substance (two counts), and criminal solicitation.

Mehalic filed a pre-trial motion requesting, inter alia, the suppression of the tape recorded telephone calls between Topper and Mehalic. After a hearing, the motion was denied by the Honorable Donetta W. Ambrose.

The Honorable Charles H. Loughran Jr. presided over a jury trial at which Mehalic was convicted of seven of the

[ 382 Pa. Super. Page 268]

    thirteen drug related charges. Mehalic filed post-trial motions which were denied by Judge Loughran. On 26 January 1988, Mehalic was sentenced, as follows:

(a) two (2) to four (4) years of imprisonment and a Five Thousand Dollar ($5,000.00) fine for possession with intent to deliver a controlled substance, two (2) to four (4) years of imprisonment for criminal solicitation;

(b) two (2) to four (4) years of imprisonment for possession with intent to deliver a controlled substance to run concurrently with two (2) to four (4) years of imprisonment for delivery of a controlled substance and six (6) to twelve (12) months of imprisonment for possession of a controlled substance;

(c) two (2) to four (4) years of imprisonment for criminal conspiracy to run concurrently with (a) above.

Mehalic filed a motion for modification of the sentence. The motion was denied by Judge Loughran. This timely appeal follows.

On appeal, Mehalic presents four broad issues for our consideration, set forth in his brief as follows:

I. Whether Mehalic's conversations recorded by federal agents in violation of federal law should be excluded.

II. Whether a plea bargain wholly conditioned upon the return of a major felony prosecution violates due process.

III. Whether the lower court's rulings hindered counsel from accurately portraying the motives, character and bias of the key prosecution witness, Phillip Topper.

IV. Whether Mehalic's two to four year term of imprisonment is overly harsh as indicated by the undisputed evidence presented at sentencing.

Brief for Appellant at vi.

I. Admissibility of Tape Recorded Telephone Conversations

Initially, Mehalic contends that the trial court erred in failing to suppress the tape recorded telephone conversations between Mehalic and Topper. The tape recordings were made pursuant to a federal wiretapping statute, 18

[ 382 Pa. Super. Page 269]

U.S.C. Section 2510 et seq. Although both the Commonwealth and Mehalic concede that the recording were conducted in accordance with the guidelines delineated in the federal statute, the recording did not comply with the procedures for a consensual tape recording set forth in Sections 5704(2)(i) and (2)(ii) of this Commonwealth's Wiretapping and Electronic Surveillance Control Act, 18 Pa.Cons.Stat.Ann. Sections 5701 et seq. (hereinafter "Wiretapping Act"). Mehalic argues that the federal recordings are inadmissible in a state prosecution because they do not comply with the requirements of the Commonwealth's more restrictive wiretapping statute.

Mehalic cites cases from other jurisdictions in support of his proposition.*fn1 However, we have previously addressed this issue in Commonwealth v. Trignani, 334 Pa. Super. 526, 483 A.2d 862 (1984) and Commonwealth v. Taraschi, 327 Pa. Super. 179, 475 A.2d 744 (1984). In Trignani, the Bureau of Alcohol, Tobacco and Firearms of the United States Department of the Treasury was conducting an investigation into an arson. An electronic listening device was attached to a federal informant with his full knowledge and consent in order to gather evidence for the investigation. Numerous face to face conversations and telephone conversations between the informant and other persons were intercepted by federal authorities and a Pennsylvania State Trooper in the joint investigation. Trignani moved to suppress the admission of the recordings into evidence. The motion was denied and several conversations were played to the jury at trial. Post-trial motions challenging the admissibility of the recorded conversations were filed and denied.

A panel of this court considered the admissibility, in a Commonwealth prosecution, of the conversations intercepted pursuant to federal law. Appellant argued that the Commonwealth failed to get an order from this court expressly

[ 382 Pa. Super. Page 270]

    authorizing the interception of oral or wire communications, thereby knowingly circumventing the requirements of the Wiretapping Act by obtaining a wiretap pursuant to federal law. We noted that the Appellant did not present any evidence to convince us that the Commonwealth deliberately circumvented the dictates of the Commonwealth statute. Further, we held that Section 5717(c) of the Commonwealth's Wiretapping Act clearly expressed the intent of the legislature that "the contents of any wire or oral communication which is intercepted pursuant to federal authority may be admissible evidence in Pennsylvania courts." Trignani, 334 Pa. Super. at 531-532, 483 A.2d 862.*fn2

"We must conclude that the use in this Commonwealth of taped conversations secured through a legally authorized federal wiretap is not in contravention of the Pennsylvania Anti-wiretap statute, and that any evidence disclosed by such means may be admissible in our courts. To reach any other result would severely hamper the detection and apprehension of members of organized crime syndicates and would impose severe restrictions on this Commonwealth's law enforcement personnel."

Trignani, 334 Pa. Super. at 534, 483 A.2d 862.

Here, the DEA intercepted communications pursuant to the federal wiretapping statute. There is no contention contained in Mehalic's brief either that the interception violated the federal statute or that the law enforcement officials of the Commonwealth knowingly attempted to circumvent the provisions of the Commonwealth's Wiretapping Act. In light of the holdings of this court in Trignani

[ 382 Pa. Super. Page 271]

    and Taraschi,*fn3 and considering the plain language of Section 5717(c) of the Wiretapping Act, we find that the trial court did not err in admitting the recordings into evidence at trial.

II. Plea Agreement Contingent Upon Substantial Prosecution

We now turn to a consideration of whether the trial court erred in permitting Topper to testify on behalf of the Commonwealth. Mehalic argues that it was a violation of the Due Process Clause of the Fifth Amendment of the United States Constitution to permit Topper, who had entered into a plea agreement with Maryland law enforcement officials, to testify against Mehalic. The plea agreement provided, in pertinent part:

6. That if Phil's cooperation does not result in a substantial felony prosecution, this plea bargain will be cancelled, however, the State agrees that none of the information furnished by Phil pursuant to the plea bargain will be utilized in the prosecution against him. Additionally, the Defendant retains the right to contest the warrant and any other aspect of the prosecution by appropriate motion. If Phil is convicted, the State will advise the sentencing Judge of his cooperation.

Commonwealth's Trial Exhibit No. 2. Mehalic urges us to construe the language of this agreement to mean that Topper's plea bargain would have been cancelled unless Mehalic had been convicted; thus, his testimony was corrupt and not admissible at trial. The Commonwealth counterargues that Topper's plea agreement was unaffected by the success or failure of the prosecution of Mehalic. The trial court held that "Topper had already been sentenced [by the State of ...


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