Com. v. Clark

• Citation: 516 Pa. 599,533 A.2d 1376
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 07 December 1987
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Sherman Ross CLARK, Appellee.

Page 1376

533 A.2d 1376

516 Pa. 599

COMMONWEALTH of Pennsylvania, Appellant, v. Sherman Ross CLARK, Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 21, 1987.

Decided Dec. 7, 1987.

Michael J. Veshecco, Dist. Atty., Frank J. Scutella, Asst. Dist. Atty., Erie, for appellant.

Philip B. Friedman, Ambrose and Friedman, Leonard G. Ambrose, III, Erie, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION

NIX, Chief Justice.

The Commonwealth of Pennsylvania appeals, by allowance, the affirmance by the Superior Court of a pre-trial order entered by the Court of Common Pleas suppressing certain evidence obtained from a wiretap of intercepted telephone conversations. We granted review to consider a question of first impression in this Court. The issue to be addressed is whether the possibility of the refiling of criminal charges against an individual forecloses the individual's ability to voluntarily consent to a request by law enforcement authorities for a wiretap interception made pursuant to section 5704 of the Wiretapping and Electronic Surveillance Control Act of 1978, 18 Pa. C.S. § 5701 et seq. ("Act").

The pertinent facts in this appeal are as follows. On May 16, 1983, appellee Sherman Ross Clark was charged with criminal conspiracy to commit insurance fraud, criminal solicitation and various other offenses concerning stolen vehicles. The evidence to support these charges was substantially obtained through the cooperation of Richard McCullogh with the Pennsylvania State Police and the Erie County District Attorney.

Richard McCullogh was charged in October 1982 with receiving stolen property and receiving or falsifying vehicle registration numbers. Shortly thereafter, McCullogh and his attorney negotiated an agreement with the Erie County District Attorney, pursuant to which pending charges against McCullogh would be dropped in exchange for McCullogh providing information and cooperation to the Commonwealth which would lead to the apprehension of individuals who were dealing in stolen vehicles. The agreement further provided that McCullogh would not be charged for any other offenses to which he confessed; however, the agreement permitted the refiling of charges in the event McCullogh failed to fully cooperate with the authorities.

On October 15, 1982, McCullogh provided the State Police with a lengthy statement admitting his guilt as to the pending charges and describing his and others' involvement in various activities relating to stolen vehicles. The charges against McCullogh were, thereafter, promptly dismissed. ¹ On October 19, 1982, McCullogh was requested by Assistant District Attorney Michael Cauley to consent to having his telephone conversations monitored and to wearing a body transmitter, both for the purpose of his assisting in an undercover operation relating to the stolen vehicles activities which McCullogh had earlier described. ² McCullogh agreed to participate in the electronic surveillance and wiretaps, and executed fifteen consent forms to this effect during the course of the undercover activities. Several conversations between McCullogh and Clark were recorded during this period, and in due course, appellee was charged with various offenses relating to stolen vehicles.

Appellee filed an omnibus pre-trial motion seeking suppression of the electronically recorded statements, alleging, inter alia, that McCullogh's consent was not given voluntarily, and thus, the essential criterion for a one-party authorization as set forth in section 5704(2)(ii) of the Act was not satisfied. ³ The trial court agreed with appellee's argument to this effect, and suppressed all statements made by Sherman Ross Clark which were electronically recorded via Richard McCullogh. The order of the suppression court was appealed by the Commonwealth. The Superior Court, in affirming the lower court's holding on this point, reasoned that because McCullogh's assistance for the wiretap and surveillance operation was solicitedafter he provided a statement admitting guilt, McCullogh essentially was given no real choice as regards his participation in the electronic surveillance. According to the Superior Court, McCullogh, aware both of the District Attorney's prerogative pursuant to their agreement to refile charges and the inculpatory statement he had recently offered, "had no viable alternative but to cooperate, and give his consent." Commonwealth v. Clark, 349 Pa.Super. 255, 261, 502 A.2d 1375, 1378 (1985). Thus, because the Superior Court found McCullogh's consent to the surveillance to have been given involuntarily, Clark's statements to him were deemed to have been unlawfully intercepted. ⁴ The Commonwealth appeals the order of the Superior Court. We reverse.

Ordinarily, any deficiency in an agreement entered into between law enforcement authorities and an individual may not be asserted by one who is not a party to that understanding. However, Clark's standing to question the voluntariness of McCullogh's consent, and thus, to challenge the lawfulness of the interception, is statutorily authorized. Section 5721 of the Act provides in pertinent part:

(a) Motion to suppress.--Any aggrieved person in any trial, hearing, or other adversary proceeding in or before any court or other authority of this Commonwealth may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on any of the following grounds:

(1) The communication was unlawfully intercepted.... ⁵

18 Pa.C.S. § 5721(a)(1).

The Act enumerates several exceptions to the general prohibition against the interception and disclosure of wire and oral communications. The pertinent exception in this appeal is § 5704(2)(ii), which provides as follows:

It shall not be unlawful under this chapter for:

....

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:

....

(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception. (Emphasis added)

18 Pa.C.S. § 5704(2)(ii).

Thus, the lawfulness of the interception and the subsequent admissibility at Clark's trial of the statements he made to McCullogh are dependent upon whether McCullogh, a party to the conversation, voluntarily consented to the interception. The question of what constitutes voluntary consent under the Act, or alternatively, what circumstances would vitiate voluntariness under the Act are issues of first impression in this Court.

We have identified several useful avenues for guidance in this definitional pursuit: cases interpreting the federal analogue to section 5704(2)(ii), section 2511(2)(c) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, ⁶ and decisions of the United States Supreme Court and of this Court which address voluntariness in the consent exception under Fourth Amendment search and seizure analysis, and in the confession context. It should be self-evident that consent must be given voluntarily in order for the first two types of governmental actions posited here to be lawful. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968); Commonwealth v. Hubbard, 472 Pa. 259, 274, 372 A.2d 687, 694 (1977); Commonwealth v. Mamon, 449 Pa. 249, 255, 297 A.2d 471, 475 (1972). The same is true with regard to confessions. A confession is admissible only when it is made voluntarily, a requirement which is satisfied when the confession is the " 'product of an essentially free and unconstrained choice by its maker.... His will [must not have] been overborne and his capacity for self-determination critically impaired.' " Commonwealth v. Smith, 470 Pa. 220, 225, 368 A.2d 272, 275 (1977), quoting Commonwealth v. Alston, 456 Pa. 128, 133, 317 A.2d 241, 243 (1974). See also Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986). However, determining whether the voluntariness requirement has been satisfied in a particular case entails a factual inquiry, which must be determined by the court "from the totality of the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973); United States v. Kelly, 708 F.2d 121, 125 (3d Cir.1983), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983); Commonwealth v. Hubbard, supra, 472 Pa. at 275, 372 A.2d at 694.

It is recognized that consent is not voluntary where it is the product of coercion or duress, either expressed or implied. Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. at 2047; United States v. Kelly, supra, 708 F.2d at 125; Commonwealth v. Harris, 429 Pa. 215, 219, 239 A.2d 290, 293 (1968); Commonwealth v. Hubbard, supra, 472 Pa. at 275, 372 A.2d at 694; Commonwealth v. Mamon, supra, 449 Pa. at 256, 297 A.2d at 495. Thus, the courts must determine in a particular case whether the consent given was so tainted as to render the action involuntary and thus require the suppression of the proferred evidence.

While an inducement based upon threats or promises of illegitimate action would vitiate voluntariness, United States v. Kolodziej, 706 F.2d 590, 594 (5th Cir.1983), a decision to consent is not rendered involuntary merely because it is induced by a desire to avoid the possibility of a well-founded prosecution. As the...