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filed: March 16, 1989.


Appeal from the judgment of sentence August 10, 1987, in the Court of Common Pleas of Crawford County, Criminal, No. 1986-747. Appeal from the judgment of sentence August 10, 1987, in the Court of Common Pleas of Crawford County, Criminal, No. 1986-748.


David P. Truax, Meadville, for appellants.

Douglass W. Ferguson, Assistant District Attorney, Meadville, for Com., appellee.

Cirillo, President Judge, and Beck and Popovich, JJ. Cirillo, President Judge files a concurring and dissenting statement. Popovich, J., concurs in the result.

Author: Beck

[ 382 Pa. Super. Page 590]

This case presents what the trial court described as a "strange search and seizure issue . . . which may be unique in the annals of the criminal justice system . . . ." The issue is whether the appellants' rights under the federal and state constitutions were violated when the court refused to suppress a videotape which showed the appellants participating in sexual activities in the bedroom of their home. This videotape had been surreptitiously recorded by two juveniles and was subsequently given to the police by the mother of one of them. The videotape was then viewed by the police without a search warrant. We find that under the Pennsylvania Constitution, appellants had a protected privacy interest in the images which had been secretly captured on the videotape. We conclude, nonetheless, that under all the facts of this case, the police did not act improperly when they viewed the tape without first obtaining

[ 382 Pa. Super. Page 591]

    a warrant. We therefore affirm the appellants' judgments of sentence.


In reviewing a trial court's denial of a motion to suppress, we consider the evidence of the prosecution and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Lemanski, 365 Pa. Super. 332, 341-344, 529 A.2d 1085, 1089-1090 (1987); Commonwealth v. Weik, 360 Pa. Super. 560, 562, 521 A.2d 44, 45 (1987). Viewed in this light, the facts of the case are as follows.

The appellants, Daniel and Lucile Kean, are husband and wife. They are nearly sixty years of age and for many years they were highly respected members of the community. In 1986, Lucile Kean began to have sexual relations with two male juveniles with her husband's knowledge and approval. The juveniles, Alan and Steve, lived in the same neighborhood as the appellants and were under sixteen years of age when sexual contact was initiated. Alan lived next door to the appellants and resided with his half-sister and her husband, Kevin Kean; Kevin Kean was both Alan's brother-in-law and the appellants' son. Steve lived in a separate residence with his step-father and his mother. On several occasions, Alan and Steve arrived together at the appellants' house and proceeded to have sex with Lucile Kean while Daniel Kean watched.

Eventually, relations between the juveniles and the appellants took a turn for the worse. Alan and Steve borrowed the Keans' car without their permission and then became concerned that the Keans might notify the police. Alan and Steve were also afraid that Lucile Kean might falsely claim that the boys had forced her to participate in their sexual activities. Sometime during the summer of 1986, the boys decided to videotape one of their sexual encounters with the Keans. In this way, they hoped to gather evidence that Mrs. Kean's participation was consensual. They also reasoned

[ 382 Pa. Super. Page 592]

    that they could use the tape to blackmail the Keans into not reporting the unauthorized use of their vehicle.

In order to accomplish their objective, the boys removed a videocamera equipped with videotape from Kevin Kean's home. The camera and tape belonged to Kevin and were taken without his knowledge or permission. The boys then broke into the appellants' house when no one was home and planted the videocamera in the bedroom. They carefully concealed the camera under a pile of clothing so that only the lens protruded, and they focused the lens on appellants' bed. At midnight, the boys returned and were admitted into the house by the appellants. When the boys entered the bedroom, they secretly triggered the camera's recording mechanism before performing sexual acts with Mrs. Kean.

The following day, the boys once again broke into the appellants' home, this time to retrieve the camera. They took the camera back to Kevin's house where they watched the tape and made a duplicate by recording over another videotape which belonged to Kevin. The tape was approximately forty minutes long and showed Mr. Kean lying in bed next to Mrs. Kean while Mrs. Kean had sexual intercourse and oral sex with both Alan and Steve. Alan kept one copy of the tape for himself; this copy was later found by Kevin and erased. Alan gave the other copy to Steve who took it back to his own home.

Alan could not resist screening his copy of the videotape for two of his friends before his copy was erased. Perhaps as a result of this exposure, rumors concerning the existence of the tape began to circulate in the community. Steve's mother, Cherelynn, heard about the tape. When she asked Steve about it, Steve admitted without hesitation that he had his own copy. Cherelynn could not bear to watch the tape herself, so she asked her father Arthur to view the tape and tell her what was on it. Steve, without protest, handed the tape over to Arthur. Arthur took the tape to his house and viewed it on his own videorecorder. He then returned the tape to Cherelynn and informed her of its contents. Cherelynn then contacted a district justice

[ 382 Pa. Super. Page 593]

    who told her that the matter was outside his jurisdiction. At this point, Cherelynn placed the tape in her attic where it remained for the next several weeks. She later stated at the suppression hearing: "I wanted to make sure [the tape] got in the right hands, and I didn't know who to turn to." R.R. at 121.

Meanwhile, the Crawford County Children and Youth Services had received an anonymous report concerning the sexual activities of the appellants. The agency referred the matter to Officer Lloyd of the Pennsylvania State Police who interviewed Alan and Steve. Alan and Steve told Officer Lloyd about the tape. On October 24, 1986, Officer Lloyd came to Cherelynn's home and asked her if he could have the tape. Cherelynn voluntarily handed the tape over to Officer Lloyd. At this time, the tape contained no outer markings or labels and it was not possible to examine the contents of the tape with the naked eye. Without first securing a search warrant, Lloyd took the tape to the office of the district attorney where he and the district attorney played it on a videorecorder. After viewing the contents, Lloyd swore out a criminal complaint against the appellants.

Lucile Kean was charged with two counts of involuntary deviate sexual intercourse.*fn1 In addition, Lucile Kean and Daniel Kean were each charged with two counts of conspiracy to commit involuntary deviate sexual intercourse and two counts of corruption of minors. Defense counsel for the Keans filed a pretrial motion to suppress the videotape which was denied. The Keans were jointly tried before a jury. Alan and Steve testified as Commonwealth witnesses, and the videotape was introduced into evidence and played at trial. On March 17, 1987, appellants were found guilty

[ 382 Pa. Super. Page 594]

    on all counts. Following the denial of post-trial motions, Lucile Kean was sentenced to a total of five to fifteen years imprisonment and Daniel Kean was sentenced to a total of twenty-three to seventy-two months imprisonment. Both parties filed timely notices of appeal from their judgments of sentence and the appeals were consolidated for review by this court.

The Keans raise two issues on appeal: 1) whether the admission of the videotape into evidence violated their constitutional rights; and 2) whether the trial court erred by failing to declare a mistrial after the assistant district attorney allegedly made certain improper and prejudicial remarks during closing argument. We find that the prosecutorial misconduct claim is meritless for the reasons stated in the opinion of the trial court. Trial Court Op. at 5-8. Although the suppression claim requires careful consideration, we conclude that the judgments of sentence must be affirmed.


Appellants base their challenge to the admission of the videotape on both the fourth amendment of the United States Constitution and on article 1, section 8 of the Pennsylvania Constitution. We begin our analysis by reviewing the scope of these provisions, especially insofar as they relate to the conduct of private citizens.

The fourth amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In his influential concurring opinion in Katz v. United States, 389 U.S. 347, 360-62, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967), Justice Harlan interpreted the amendment as prohibiting unreasonable searches of areas and objects in which a defendant manifests a "reasonable expectation

[ 382 Pa. Super. Page 595]

    of privacy." Harlan defined this phrase with reference to a two-part standard: 1) whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy" and 2) whether this subjective expectation is "one that society is prepared to recognize as 'reasonable'". Id. at 361, 88 S.Ct. at 516. This standard was later explicitly adopted by the United States Supreme Court and is now recognized as the central concept in federal search and seizure jurisprudence. See, e.g., Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979).

Article I, section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Like the fourth amendment, this provision has been interpreted as protecting "those zones where one has a reasonable expectation of privacy." Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980). See also Commonwealth v. Blystone, 519 Pa. 450, 463, 549 A.2d 81, 87 (1988).*fn2 This court, however, is not bound by fourth amendment precedents when construing claims raised under article 1, section 8. The Pennsylvania Constitution provides broader coverage than its federal counterpart, and an expectation of privacy which is deemed unreasonable by federal courts may be recognized as legitimate in this jurisdiction. See Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987); Commonwealth v. Sell, supra n. 2; Commonwealth v. DeJohn, supra; Commonwealth v. Beauford,

[ 382 Pa. Super. Page 596327]

Pa. Super. 253, 475 A.2d 783 (1984) (extending protection afforded under article 1, section 8 beyond limits of fourth amendment).

Nevertheless, both the fourth amendment and article 1, section 8 were designed to serve the same vital function -- to prevent government officials from unjustifiably invading the privacy of individuals. Thus, both state and federal constitutional limitations on "unreasonable searches and seizures" apply exclusively to the conduct of persons who are acting as instruments or agents of the state. Commonwealth v. Goldhammer, 322 Pa. Super. 242, 469 A.2d 601 (1983), aff'd 507 Pa. 236, 489 A.2d 1307, rev'd sub nom. on other grounds, Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985). The federal courts have clearly established that the fourth amendment does not provide a remedy for the victims of unreasonable private searches. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). Similarly, we have held that article I, section 8 does not require the exclusion of evidence wrongfully obtained by a private party. Commonwealth v. Dingfelt, 227 Pa. Super. 380, 323 A.2d 145 (1974). See also Simpson v. Unemployment Compensation Board, 69 Pa. Commw. 120, 450 A.2d 305 (1982), 3 cert. denied, 464 U.S. 822, 104 S.Ct. 88, 78 L.Ed.2d 97 (1983).

In the case sub judice, the Commonwealth's chief exhibit was a videotape which would never have been created if not for an extraordinary invasion of the appellants' privacy. This invasion, however, was carried out by two juveniles who were clearly not acting at the behest of any government authority. We conclude that no constitutional violation occurred when Alan and Steve broke into appellants' home and concealed a video camera in the bedroom. Although we in no way condone the juveniles' actions, this

[ 382 Pa. Super. Page 597]

    private misconduct did not render the evidence inadmissible.*fn3


Appellants, however, maintain that their constitutional rights were infringed by Officer Lloyd, while Lloyd was acting in his official capacity as a police investigator. In their motion to suppress, in post-trial motions, and on appeal to this court, appellants have specifically argued that Lloyd conducted an unreasonable search when he played the videotape on a videorecorder in the District Attorney's Office. This visual inspection of the film was a form of state action and as such was subject to constitutional constraints. We must therefore proceed to determine if this inspection was prohibited by the federal or state constitutions.


Appellants concede that Lloyd had probable cause to believe that the tape would reveal that appellants had committed several criminal offenses. They claim that Lloyd should have obtained a search warrant before viewing any images on the videotape which could not be seen with the

[ 382 Pa. Super. Page 598]

    naked eye. In support of this claim, they primarily rely on Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980).

The petitioners in Walter owned several hundred pornographic films which 5 were shipped on consignment by a private carrier from St. Petersburg, Florida to Atlanta, Georgia. The carrier misdelivered twelve cartons of films to a private company which had no connection with the petitioners' business. After opening the cartons, employees of the company observed that the films were stored in boxes which were labeled with explicit descriptions of homosexual activities. One employee attempted without success to view the content of the films by holding them up to the light. The company then contacted agents of the Federal Bureau of Investigation who screened several of the films on a projector without the benefit of a warrant. Petitioners were tried and convicted of violating federal obscenity laws and the convictions were overturned by the United States Supreme Court. In the opinion announcing the judgment of the Court, Justice Stevens concluded that ". . . the unauthorized exhibition of the films constituted an unreasonable invasion of their owner's constitutional interest in privacy." 447 U.S. at 654, 100 S.Ct. at 2400. Thus, the films should not have been admitted into evidence. See also Stanley v. Georgia, 394 U.S. 557, 571-572, 89 S.Ct. 1243, 1251-1252, 22 L.Ed.2d 542 (1969) 6 (Stewart, J., concurring) (expressing view that warrantless screening of film violated fourth amendment rights of film owner); United States v. Haes, 551 F.2d 767 (8th Cir.1977) (holding that warrantless screening of film violated fourth amendment rights of film owner).

We agree with appellants that if they had a constitutionally protected privacy interest in the videotape, an examination of the videotape by the police with the aid of a videorecorder would have been a search subject to the warrant requirement. However, we must determine at the outset whether appellants had a ...

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