Com. v. Harvey

• Citation: 348 Pa.Super. 544,502 A.2d 679
• Decision Date: 20 December 1985
• Docket Number: No. 744,744
• Parties: COMMONWEALTH of Pennsylvania v. Gilbert HARVEY, Appellant. Pitts. 1984.
• Court: Superior Court of Pennsylvania

Page 679

502 A.2d 679

348 Pa.Super. 544

COMMONWEALTH of Pennsylvania v. Gilbert HARVEY, Appellant.

No. 744 Pitts. 1984.

Superior Court of Pennsylvania.

Submitted April 9, 1985.

Filed Dec. 20, 1985.

Ronald L. Chicka, Mount Pleasant, for appellant.

John Driscoll, Dist. Atty., Greensburg, for Com., appellee.

Robert A. Graci, Chief Deputy Atty. Gen., Harrisburg, for the Attorney General, intervenors.

Before WIEAND, JOHNSON and MONTGOMERY, JJ.

WIEAND, Judge:

Gilbert Harvey was found guilty by a jury of possession of a controlled substance and possession with intent to deliver. Included among items of evidence relied upon by the Commonwealth at trial were tape recordings of conversations between Gilbert Harvey and Jeffrey Woods, an informant. These recordings had been made with Woods' consent pursuant to statutory authorization contained in 18 Pa.C.S. § 5704(2)(ii). On direct appeal from the judgment of sentence, Harvey contends that recorded evidence of these conversations should have been suppressed because the statute authorizing interception of personal and telephone conversations is unconstitutional. We disagree.

The Commonwealth's evidence showed that on September 1, 1982, Woods had telephoned appellant and had asked him to obtain cocaine for him. Appellant agreed to try. Some time later that evening, after a number of conversations both by telephone and in person, all of which were intercepted and recorded, Woods went to appellant's home. Woods was then wearing devices which transmitted his conversations to receivers monitored by the police, who recorded the communications received. After Woods had been at appellant's home for a brief period of time, Donald Payne arrived. Woods gave $300 to appellant who went out on the porch with Payne. When appellant re-entered the house, he gave Woods three packages of cocaine. Appellant also retained some of the cocaine for himself. Woods then left and turned the cocaine over to the police.

The Wiretapping and Electronic Surveillance Control Act, at 18 Pa.C.S. § 5704, 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; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

Appellant argues that legislative authorization to police to intercept communications with the prior consent of one of the parties: (1) violates the First Amendment of the United States Constitution and Article 1, Section 7 of the Pennsylvania Constitution because it has a chilling effect on free speech; (2) violates the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution because it permits warrantless searches; (3) is invalid because it vests unlimited discretion in the government; and (4) deprives citizens of due process of law because it allows law enforcement officials to record incriminating evidence against a person without giving that person the correlative right to record exculpatory conversations. Close examination of these contentions reveals that they are lacking in merit.

"The law is well settled that statutes duly enacted by the legislature are presumed to be constitutional.... A statute will not be held unconstitutional except upon a showing that the statute is 'clearly, palpably and plainly' in conflict with constitutional provisions." Commonwealth v. Leta, --- Pa.Super. ---, ---, 500 A.2d 85, 87 (1985), quoting Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981). See: Commonwealth v. Doty, 345 Pa.Super. 374, ---, 498 A.2d 870, 876 (1985); Estate of Cox, 327 Pa.Super. 479, 485, 476 A.2d 367, 370 (1984), and cases cited therein.

The First Amendment of the federal Constitution provides that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I. This guarantee is applicable to the states through the Fourteenth Amendment. See, e.g.: Brightbill v. Rigo, 274 Pa.Super. 315, 322 n. 2, 418 A.2d 424, 427 n. 2 (1980). Where a state statute unduly restricts a citizen's First Amendment rights, it will be held unconstitutional. See: American Future Systems, Inc. v. Pennsylvania State University, 688 F.2d 907 (3d Cir.), cert. dismissed, 459 U.S. 1093, 103 S.Ct. 583, 74 L.Ed.2d 941 (1982); American Civil Liberties Union v. City of Pittsburgh, 586 F.Supp. 417 (W.D.Pa.1984); Pennsylvania Accessories Trade Association v. Thornburgh, 565 F.Supp. 1568 (M.D.Pa.1983); Commonwealth ex rel. Specter v. Moak, 452 Pa. 482, 307 A.2d 884 (1973).

Appellant argues that Section 5704(2)(ii) has a chilling effect on free speech because it discourages citizens from conversing freely. However, Section 5704(2)(ii) does not either declare any type of speech or conduct illegal, or establish any barrier to the exercise of free speech. It does no more than provide a means for law enforcement officials to preserve already admissible evidence of criminal activity for use in later prosecutions. Appellant could not possibly argue that Woods should not be permitted to testify to the substance of conversations which the two men shared about the sale of a controlled substance. Their conversations were neither privileged nor protected from being overheard. Thus, in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834, 843-844 (1949), the Supreme Court said: "[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced or carried out by means of language, either spoken, written or printed." Section 5704(2)(ii) does not impair the freedom of citizens to assemble or to speak freely. It is not rendered invalid because it permits law enforcement officials to preserve evidence of criminal conduct disclosed in conversation. Appellant's argument that the statute chills free speech, therefore, is untenable.

Moreover, even if the statute were to have some "chilling effect" on free speech, that fact alone would not render it unconstitutional. In American Booksellers Association v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984), this Court upheld the constitutionality of a statute which prohibited the display of explicit sexual materials in commercial establishments where minors might be expected to be exposed to them. The plaintiffs had argued that the statute had a chilling effect on their First Amendment rights because booksellers were being forced to choose between censoring publications prior to public display or risking prosecution. We said:

the mere fact that booksellers might engage in self-censorship does not require invalidation of the statute.

The existence of a "chilling effect," even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action ...

... Just as the incidental "chilling effect" of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution.

Id. at 579, 481 A.2d at 940, quoting Younger v. Harris, 401 U.S. 37, 51-52, 91 S.Ct. 746, 754, 27 L.Ed.2d 669, 679-680 (1971).

Any tendency of 18 Pa.C.S. § 5704(2)(ii) to bring about self-censorship on the part of criminals engaged in conversations with other persons does not render the statute unconstitutional. The statute permits interception of communications "involving suspected criminal activities." Any chilling effect on the right of a person to speak freely about his criminal activities is a necessary incident to the important and necessary task of enforcing laws against socially harmful conduct.

Appellant's contention that the statute imposes an impermissible restraint on free speech in violation of Article 1, Section 7 of the Pennsylvania Constitution is also without merit. "Subjection to criminal liability for past conduct ... or following a hearing at which the defendant has the right to trial by jury, and the Commonwealth must prove the elements of the violation beyond a reasonable doubt ... does not constitute a prior restraint." American Booksellers Association v. Rendell, supra, 332 Pa.Super. at 578 n. 24, 481 A.2d at 940 n. 24.

Appellant's next contention is that Section 5704(2)(ii) violates the Fourth Amendment of the United States Constitution. He argues that actions of law enforcement officials in intercepting and recording his conversations without a warrant violated his Fourth Amendment right to be free from unreasonable searches and seizures. Again we disagree.

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons,...