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COMMONWEALTH PENNSYLVANIA v. THOMAS DEAN HENLEN (10/11/89)

decided: October 11, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
THOMAS DEAN HENLEN, APPELLANT



Appeal from the Order of the Superior Court of Pennsylvania dated November 4, 1987 at No. 1732 Pittsburgh, 1986, reversing the Order entered December 8, 1986 by the Court of Common Pleas, Criminal Division, Mercer County at Nc. 463 Criminal, 1986. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.

Author: Zappala

[ 522 Pa. Page 515]

OPINION

We are asked to consider whether a violation of the Pennsylvania Wiretapping and Electronic Surveillance Act of 1978,*fn1 (hereinafter "Act") has occurred under the following novel circumstances.

Following a theft of an inmate's personal property at the Mercer County Jail, Trooper James D. Dibler of the Pennsylvania State Police made arrangements to interview Appellant Thomas Dean Henlen in connection with said theft. Appellant, a guard at the prison, and considered a suspect in the case, was interviewed by Trooper Dibler at the Mercer County Jail on June 19, 1986 for thirty to forty-five minutes. Trooper Dibler made some notes of the interview. He would have made a more complete report of the interview if he had obtained more information that he believed he could use against Appellant in court. Another guard at the prison was present at the interview for approximately eight to ten minutes. Appellant secretly recorded the conversation with a tape recorder that he had concealed upon his person.

On August 1, 1986, Appellant filed a complaint against Trooper Dibler for harassment, and gave the tape that he had recorded to the Internal Affairs Division of the Pennsylvania State Police.

[ 522 Pa. Page 516]

These facts, as stipulated to by the parties, resulted in Appellant being charged with violating 18 Pa.C.S. § 5703, which prohibits the interception, disclosure or use of wire or oral communications. Appellant filed a Petition for Habeas Corpus which the Court of Common Pleas of Mercer County granted, dismissing the charges against Appellant. On appeal, the Superior Court reversed the grant of the Petition for Habeas Corpus; reargument was requested and denied. We granted allocatur and now reverse.

The statute that Appellant was charged with violating has since been amended, but at the time Appellant was charged it provided:

§ 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 the third degree if he:

(1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication;

(2) willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication: or

(3) willfully uses or endeavors to use the contents of any wire or oral communications, or evidence derived therefrom, knowing or having reason to know that the information was obtained through ...


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