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filed: April 21, 1989.


Appeal from the Order Entered February 12, 1988, In the Court of Common Pleas of Cambria County, Criminal Division No. 0548-87


James B. Yelovich, District Attorney, Somerset, for Com.

Michael L. Stibich, Somerset, for appellee.

Melinson, Watkins and Cercone, JJ. Melinson, J., files a concurring statement.

Author: Cercone

[ 384 Pa. Super. Page 163]

This is an appeal by the Commonwealth from the lower court's order granting a new trial for defendant/appellee. The issue to be decided is whether, in a prosecution under the Wiretapping and Electronic Surveillance Control Act (hereinafter "the Act"),*fn1 the Commonwealth or the defendant has the burden to prove the presence or lack of authority or consent to intercept and disclose information derived from a wiretapping or electronic surveillance operation.

The appellee in this case was charged with three violations under § 5703 of the Act*fn2 for unlawfully intercepting a wire communication and disclosing and using its contents. He was found guilty by a jury of intercepting and disclosing, and not guilty of using the contents of the communication.

The events which gave rise to the charges and conviction of appellee are as follows: the appellee was a police officer in Richland Township, a suburb of Johnstown in Cambria County. He was also a partner in Richland Cleaners, a dry cleaning establishment located in the Township. Together with a friend of his, appellee installed an interceptor/recording device on his telephone at the cleaning establishment for the purpose of monitoring any incoming or outgoing calls made or received by a female employee at the establishment, with whom appellee was romantically involved. As it turned out, no phone calls were made or received by the female employee. However, a telephone call by one of the employees, a minor, was intercepted on the recording device or tape disclosing that the minor was involved in a series of burglaries. Appellee spoke to several police officers on the force about this information and

[ 384 Pa. Super. Page 164]

    played the tape for them several times. This activity on the part of the appellee resulted in criminal charges against the minor and his co-defendants and the indictment and conviction of appellee on wiretapping charges. The lower court granted appellee a new trial because, in its opinion, the Commonwealth failed to carry the burden of proving that appellee lacked authority or consent to a wiretapping operation, which authority or consent the court found to be essential elements of the crime. We respectfully disagree with the lower court on both procedural and substantive grounds and reverse the lower court's grant of a new trial.

In Commonwealth v. Mott, 372 Pa. Super. 133, 539 A.2d 365 (1988) we said:

Moreover, the law is settled in Pennsylvania that since the trial court denied the demurrer and the appellant thereafter presented a defense, his ability to challenge the propriety of the order denying the demurrer is foreclosed. See Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Olds, 322 Pa. Super. 442, 469 A.2d 1072 (1983). At this point a challenge to the correctness of the trial judge's ruling can only be regarded as a challenge to the sufficiency of the evidence. Commonwealth v. Hammock, 319 Pa. Super. 497, 466 A.2d 653 (1983).

Id., 372 Pa. Superior Ct. at 139-140, 539 A.2d at 368 (footnote omitted).

In this case, defendant/appellee's demurrer was denied and appellee's counsel then chose to proceed with the presentation of his client's defense. In this procedural process, the jury is the recipient and sifter of all the evidence presented in the case by the Commonwealth and by the appellee in seeking the truth. The Commonwealth's evidence pertaining to the appellee's playing of the tapes for the information of his fellow police officers was sufficient to show that he had willfully and knowingly installed an interceptor/recording device on his telephone. This information was unsolicited. Chief of Police James Mock testified that no one in his police department in Richland Township,

[ 384 Pa. Super. Page 165]

    including appellee, had either local or state authority to intercept wire communications. This testimony coming from the Chief concerning his information and knowledge about the operation of his department was evidence for consideration by the jury and if believed was enough to prove appellee's lack of authority to operate a wiretapping device beyond a reasonable doubt. The verdict indicated the jury's acceptance of the Chief's testimony. The appellee fortified his non-authority and lack of consent on cross examination as follows:

Q. Did you have any authorization to conduct a wiretap of that phone?

A. I didn't believe it was a wiretap, sir.

Q. Just answer my question, did you have any authorization yes or no, please?

A. No.

As to the issue of whether any person gave appellee consent to conduct the wiretap operation, the only persons who could do so, other than officials under properly recognized duties which Chief Mock testified did not exist in his department, were the minor employee and his co-defendants. Clearly, they did not give appellee consent in aid of their own arrest and incrimination.

We find all the evidence presented in this case to amply and sufficiently support the verdict that appellee was in violation of the Act beyond a reasonable doubt.

Even if this case were without procedural difficulties, we find the substantive issue, as to which party has the burden of proving either the lack or the presence of authority or consent to conduct a wiretapping operation, in favor of the Commonwealth's position.

Section 5703 of the Act, supra, under which appellee was charged and convicted reads as follows:

§ 5703. Interception, disclosure or use of wire or oral communications

Except as otherwise provided in this chapter, a person is guilty of a felony of ...

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