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COMMONWEALTH PENNSYLVANIA v. JOHN A. BARONE (04/05/89)

filed: April 5, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN A. BARONE, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 85-11,042.

COUNSEL

Craig P. Miller, Lock Haven, for appellant.

Kenneth Osokow, Assistant District Attorney, Williamsport, for Com., appellee.

Wieand, Beck and Cercone, JJ.

Author: Wieand

[ 383 Pa. Super. Page 284]

John A. Barone was charged with possession and delivery of a controlled substance as a result of an alleged sale of 2.3 grams of cocaine to Donald Kenyon in Barone's home on April 24, 1985. Kenyon, a police informant, was wearing a concealed recording device, which enabled law enforcement officials to record the conversation between Barone and Kenyon at the time of the sale. Barone was arrested on September 19, 1985, waived his right to a preliminary hearing, and filed a motion to suppress the recording made by police at the time of the sale. Hearings were held, but the motion to suppress was denied. Barone thereafter waived his right to trial by jury, and the charges against him were heard by the trial court on a case-stated basis. Barone was

[ 383 Pa. Super. Page 285]

    found guilty; post-verdict motions were denied; and Barone was sentenced to serve a term of imprisonment for not less than six months nor more than twenty-three months.*fn1

On direct appeal, this Court, in a memorandum decision, held that the decision in Commonwealth v. Schaeffer, 370 Pa. Super. 179, 536 A.2d 354 (1987) (en banc), allocatur granted, 520 Pa. 596, 552 A.2d 251 (1988),*fn2 was determinative that a warrantless, recorded interception of a person's conversation in his own home, even with the consent of the other party to the conversation, was an unreasonable search and seizure under Article I, § 8 of the Pennsylvania Constitution. Accordingly, we reversed Barone's conviction and remanded for a new trial. The Supreme Court granted allocatur and by per curiam order directed as follows:

The petition for allowance of appeal is granted, the order of the Superior Court is reversed pursuant to Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), and the case is remanded to Superior Court for further proceedings to dispose of respondent's remaining appellate issues.

Commonwealth v. Barone, 520 Pa. 118, 552 A.2d 1048 (1989). After further review, as directed by the Supreme Court, we find no basis for reversing and affirm the judgment of sentence.

The first of appellant's remaining contentions is that the Wiretapping and Electronic Surveillance Act, 18 Pa.C.S. § 5701 et seq., is unconstitutional because it denies ordinary citizens the right to record their own conversations while at the same time permitting law enforcement officials to record conversations in which they or ...


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