Com. v. Bender

Decision Date25 October 2002
Citation811 A.2d 1016
PartiesCOMMONWEALTH OF PENNSYLVANIA, Appellant, v. Jon Gregory BENDER, Appellee.
CourtPennsylvania Superior Court

Joseph M. George, Assistant District Attorney, Uniontown, for Commonwealth, appellant. Paul D. Boas, Pittsburgh, for appellee.

Before: DEL SOLE, P.J., GRACI, and MONTEMURO,1 JJ.

OPINION BY GRACI, J.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 1 This is an appeal by the Commonwealth from an Opinion and Order entered in the Court of Common Pleas of Fayette County suppressing a tape-recorded conversation between Appellee, Jon Gregory Bender ("Bender"), and a confidential informant. We reverse.

¶ 2 At issue here is the admissibility of a tape-recorded conversation procured by the Pennsylvania State Police without a warrant. The informant, David Lint ("Lint"), notified police on May 17, 2001, that Bender had approached him about killing Bender's ex-girlfriend in exchange for $50,000. Lint was to meet with Bender on May 19, 2001, to discuss the details of the plan. Lint agreed to wear an audio recording device to the May 19 meeting and was further instructed by the police not to enter Bender's residence.

¶ 3 What transpired next is best summarized by the trial court:

Lint drove to [Bender]'s rural, two-and-one-half (2-1/2) acre property near the village of Banning, about six (6) miles outside of Dawson, Fayette County, and upon arrival observed [Bender] at his burn pile approximately fifteen (15) yards from the house, near a swing set and the edge of the woods. Lint testified that as he approached the burn pile [Bender] left the same and approached him as he stood in [Bender]'s yard. Lint then asked [Bender] if he was ready to go. [Bender] then went into his residence while Lint remained outside. Although [Bender] testified that Lint was on the porch, Lint stated that he was not but rather remained in the yard where he spoke to [Bender]'s mother while he waited for [Bender] to come back out. Even assuming that his testimony in this regard is credible, the record establishes that the typed transcript of the taped conversation at issue, provided to defense counsel by the District Attorney, sets forth statements made to [Bender] by his children who were in the house at the time and never observed outside by Lint.

Trial Court Opinion and Order, 11/30/01, at 1-2.2

¶ 4 The two men entered Lint's vehicle and, as the suppression court noted, the parties agree that more than ninety percent of the conversation occurred thereafter. N.T. Omnibus Pretrial Motion Proceedings, 11/27/01, at 34. During the course of the conversation in Lint's vehicle, Bender and Lint discussed the details of a plan whereby Lint would murder Bender's ex-girlfriend in exchange for a cash payment.

¶ 5 Bender was arrested and charged with solicitation to commit criminal homicide, 18 Pa.C.S.A. § 902/2501. On November 1, 2001, Bender filed an Omnibus Pre-Trial Motion to suppress the tape recording. The suppression court granted the motion following an evidentiary hearing. The Commonwealth filed a Notice of Appeal on December 21, 2001, certifying that the suppression court's order substantially handicapped its prosecution of Bender. The proceedings have been stayed pending resolution of the Commonwealth's appeal.

¶ 6 The Commonwealth raises the following issue for our review:

1. Whether the trial court erred in suppressing the tape recording since Bender had no expectation of privacy when he made the inculpatory statements?
II. DISCUSSION

¶ 7 We note preliminarily that the Commonwealth has "an absolute right of appeal to the Superior Court to test the validity of a pre-trial suppression order." Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 387 (1985). Such an appeal "is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution." Id. at 386. The Commonwealth has complied with this procedural requirement and this appeal is properly before us.

¶ 8 In reviewing an appeal by the Commonwealth from an order suppressing evidence,

we consider only the evidence of the defendant's witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. We are bound by only those factual findings made by the suppression court which are supported by the record, and thereafter must determine whether the legal conclusions and inferences drawn from those facts are legitimate. As a result, we may reverse only if the legal conclusions drawn from the factual findings are erroneous.

Commonwealth v. Lechner, 454 Pa.Super. 456, 685 A.2d 1014, 1015-1016 (1996) (citations omitted).

¶ 9 We first note that we are not bound by the suppression court's conclusion that "the record is not clear as to which, if any, incriminatory statements were made by [Bender] prior to entering the car," as that finding has no support in the record. Lechner, 685 A.2d at 1015. A contextual reading of the transcript of the intercepted conversation shows that nothing incriminating was said before the parties entered Lint's car. In fact, no words were exchanged between Lint and Bender until Bender exited his home and rejoined Lint somewhere between the home and Lint's vehicle. At that point Bender said "I'm goin"' to one of his children, Transcription of Interception, 5/19/01, at 3:24, and presumably the two men entered Lint's vehicle immediately thereafter. Regardless of the timing of the aforementioned series of events, approximately one page of the transcription passes before Bender makes any statements that could be regarded as inculpatory. Id. at 5:22-24.

¶ 10 We turn next to the legitimacy of the legal conclusions and inferences drawn by the suppression court from the facts. Crucial to the suppression court's decision was the presence of the children's voices in the recording. The court reasoned that in order to record the children, Lint must have entered the "curtilage"3 surrounding Bender's residence. In the suppression court's view, this tainted the recording in its entirety and rendered it inadmissible. In reaching this conclusion, the suppression court relied upon two cases: Commonwealth v. Darush, 740 A.2d 722 (Pa.Super.1999) and Commonwealth v. Myers, 450 Pa.Super. 482, 676 A.2d 662 (1996).

¶ 11 We first note that Darush was reversed and remanded subsequent to the suppression court's decision. See Commonwealth v. Darush, 567 Pa. 458, 787 A.2d 420 (2002)

.4 In Darush, a consenting undercover law enforcement officer placed and recorded a telephone call to Darush at his home. Darush asked the agent to call him at his shop approximately twenty minutes later and provided the agent with that number. The agent complied and recorded the second conversation. The suppression court excluded both taped conversations on the grounds that "under current caselaw, absent prior judicial approval, Darush's rights as against unreasonable searches and seizures were violated by the taping of his conversation in his home, regardless of the agent's consent to the recording." Darush, supra, at 724 (emphasis added). This Court agreed and affirmed the decision in the published opinion relied upon by the suppression court in the instant case, 740 A.2d 722. On appeal, our Supreme Court reversed and remanded Darush for reconsideration in light of Commonwealth v. Rekasie, 566 Pa. 85, 778 A.2d 624 (2001)5. On remand, this Court, applying Rekasie, reversed the suppression order and remanded Darush's case to the trial court.

¶ 12 Commonwealth v. Myers, 450 Pa.Super. 482, 676 A.2d 662 (1996),appeal denied, 562 Pa. 668, 753 A.2d 816 (2000), also involved the admissibility of a taped recording of inculpatory statements made to an informant. In Myers, the conversation occurred while Myers sat on a couch inside of his rural home and the informant stood just outside the door on the porch. Myers' motion to suppress the tape was unsuccessful. On appeal, Myers argued that the trial court erred in refusing to suppress the tape since the Commonwealth had violated the Wiretapping and Electronic Surveillance Control Act (the "Wiretap Act"), 18 Pa.C.S.A. § 5704(2)(ii), by failing to obtain an order based on probable cause from a Superior Court judge authorizing the recording, as required by Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1995). The Commonwealth countered that Myers' statements to the informant were not "oral communications" as defined in 18 Pa. C.S.A. § 5702,6 and therefore not within the purview of the Wiretap Act. This Court rejected the Commonwealth's argument, finding that Myers had a justified expectation of non-interception of his conversation and, therefore, the Wiretap Act was applicable. Myers, 676 A.2d at 665. Since the Wiretap Act and the Brion requirements were not satisfied, suppression was mandated.

¶ 13 While Darush and Myers are arguably instructive in the resolution of Bender's case, neither case is controlling. Darush recognized the sanctity of the home, however its application is necessarily limited by Rekasie to telephonic conversations. Myers stands for the proposition, consistent with Brion, that a person conversing in his home with another individual has a reasonable expectation of non-interception such that the conversation is an "oral communication" subject to the strictures of the Wiretap Act. Myers recognized that the Wiretap Act distinguished between the expectation of privacy and the expectation of non-interception. Myers, 676 A.2d at 664. Quoting our en banc opinion in Commonwealth v. McIvor, 448 Pa.Super. 98, 670 A.2d 697, 701 (1996) (en banc), the Court in Myers reiterated that

in Pennsylvania, our Legislature has determined that that [sic] although intercepting a communication to which one is a party may not be a violation of a constitutional privacy interest, it so threatens the private nature of...

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