Com. v. Hashem

• Decision Date: 04 May 1987
• Citation: 525 A.2d 744,363 Pa.Super. 111
• Parties: COMMONWEALTH of Pennsylvania v. Thomas HASHEM, Appellant. 01004 Phila. 1986
• Court: Pennsylvania Superior Court

Page 744

525 A.2d 744

363 Pa.Super. 111

COMMONWEALTH of Pennsylvania v. Thomas HASHEM, Appellant.

01004 Phila. 1986

Superior Court of Pennsylvania.

Submitted Oct. 23, 1986.

Filed May 4, 1987.

[363 Pa.Super. 116] Robert T. Gownley, Jr., Scranton, for appellant.

Ernest D. Preate, Jr., Dist. Atty., Scranton, for Commonwealth, appellee.

Before WIEAND, OLSZEWSKI and CERCONE, JJ.

OLSZEWSKI, Judge:

Appellant, Thomas Hashem, was arrested and charged with hindering apprehension or prosecution, pursuant to 18 Pa.C.S.A. Sec. 5105, ¹ and criminal conspiracy to hinder apprehension or prosecution, pursuant to 18 Pa.C.S.A. Sec. 903. ² Appellant Although appellant raises fifteen points of error, the District Attorney of Lackawanna County did not take sufficient interest to file a brief. ³ We find that the comprehensive opinion of the Honorable James M. Munley adequately disposes of the following eleven issues: (1) whether the trial court erred in allowing Ernest Preate, Jr., the District Attorney of Lackawanna County, to give his opinion on the ultimate issue in this case; (2) whether the trial court erred in refusing to grant appellant's motion for a change of venue; (3) whether the trial court erred in allowing Detective Harry Rescigno, Officer Thomas Tell, and Michelle Kulick to give their opinions concerning voice identification of appellant; (4) whether the trial court erred in admitting Commonwealth exhibits one and two, the actual tapes of three wiretapped communications since the Commonwealth did not establish relevancy; (5) whether the trial court erred in denying appellant's motion to disqualify the Lackawanna County District Attorney's office from prosecuting this case; (6) whether the trial court erred in denying appellant's motion that District Attorney Ernest Preate, Jr.'s testimony should not be admitted since it was cumulative and in most cases, irrelevant; (7) whether the trial court erred in allowing the hearsay testimony of District Attorney Preate; (8) whether the argumentative manner of District Attorney Preate while testifying was prosecutorial misconduct; (9) whether the trial court erred in refusing to dismiss the charges under 18 Pa.C.S.A. Sec. 312, the deminimis infractions section; (10) whether the trial court erred in denying appellant's request for charges on the issues of identity and deminimis infractions; and (11) whether the Honorable James M. Munley erred in failing to disqualify himself as the trial judge. We therefore affirm the trial court's opinion regarding these eleven issues. (See Appendix.)

was convicted of both charges in a jury trial before the Honorable James M. Munley of the Court of Common Pleas of Lackawanna County. Appellant was subsequently sentenced to serve one to three years in prison on each charge, the sentences to be served concurrently. Appellant appeals from his judgment of sentence.

We, consequently, will discuss only the following four issues: (1) whether 18 Pa.C.S.A. Sec. 5718 of the Wiretapping and Electronic Surveillance Control Act is unconstitutional; (2) whether law enforcement officials complied with the requirements of 18 Pa.C.S.A. Sec. 5718; (3) whether the trial judge erred in allowing the jury to read Commonwealth exhibits three, four, and five, which are transcripts of three wiretapped communications offered into evidence at the trial; (4) whether the trial judge erred in refusing to strike for cause prospective jurors six and ten, thereby forcing appellant's counsel to use peremptory challenges on the two prospective jurors. For the reasons stated below, we affirm the trial court's judgment of sentence.

During 1982, the District Attorney of Lackawanna County, the Pennsylvania State Police, the Pennsylvania Attorney General, and the Scranton Police Department were all engaged in a coordinated investigation of illegal drug trafficking in Lackawanna County. Pursuant to this investigation, the District Attorney of Lackawanna County filed three applications with the Hon. Vincent A. Cirillo of the Superior Court for orders of authorization to intercept telephone conversations of certain named individuals, as well as other unnamed individuals. Appellant's name was not among those specifically listed in the applications. The applications stated that the telephone communications to be intercepted would pertain to offenses involving distribution and possession of controlled substances and conspiracy to commit such offenses, in violation of Pennsylvania's Controlled Substances Act. The three applications were approved by Judge Cirillo After approval of the applications, law enforcement officials began electronic surveillance of the telephones in the residences of the individuals specifically identified in the applications. The electronic surveillance continued for twenty-one days, from December 1, 1982, to December 21, 1982. During this period, hundreds of conversations relating to illegal drug sales and trafficking were intercepted and recorded.

and docketed in the Superior Court as 45-1, 45-2, and 45-3.

On December 1, 1982, appellant's voice or name was intercepted during three different conversations, though his discussions did not pertain to the trafficking of illegal drugs per se. Rather, he warned Michelle Kulick ⁴ that the telephone was being electronically monitored by law enforcement officials, and he told her to warn several other individuals of this situation. Ms. Kulick's voice was later intercepted during another conversation in which she told the other person that appellant had warned her about the telephone being wiretapped. Appellant was consequently arrested on December 19, 1983, and charged with hindering apprehension or prosecution, 18 Pa.C.S.A. Sec. 5105, and criminal conspiracy to hinder apprehension or prosecution, 18 Pa.C.S.A. Sec. 903. On May 8 and 9, 1985, appellant was tried before a jury in the Court of Common Pleas of Lackawanna County, and was found guilty of both charges. After denial of his post-verdict motions, Appellant filed this appeal.

Appellant's first two issues concern the constitutionality and interpretation of 18 Pa.C.S.A. Sec. 5718 of the Wiretapping and Electronic Surveillance Control Act. 18 Pa.C.S.A. Sec. 5718 provides:

Interception of communications relating to other offenses.

When an investigative or law enforcement officer, while engaged in court authorized interceptions of wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in Section 5717(a) (relating to disclosure or use of contents of wire or oral communications or derivative evidence). Such contents and evidence may be disclosed in testimony under oath or affirmation in any criminal proceeding in any court of this Commonwealth or of another state or of the United States or before any state or Federal grand jury when in advance of such disclosure and on application to a court, the court finds that the contents were listed in the final report, pursuant to section 5712(e) relating to issuance or order and effect), and were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.

This section is applicable only if, during the course of a judicially authorized and properly conducted electronic surveillance operation, law enforcement officers intercept wire or oral communications concerning crimes not mentioned in the original wiretap application. The original application must specify the criminal offenses that will be the focus of the wiretap operation. See 18 Pa.C.S.A. Sec. 5709. When conversations concerning crimes not mentioned in the original wiretap application are intercepted, the recordings may be offered into evidence at trial or other adversary proceedings only if the law enforcement officials intercepting the conversations properly comply with the statutory requirements of 18 Pa.C.S.A. Sec. 5718.

18 Pa.C.S.A. Sec. 5718 enunciates four requirements. First, an application must be made to a judge of the Superior Court to authorize evidentiary use of the recordings pertaining to crimes not mentioned in the original wiretap authorization. Second, the contents of the recordings must be listed in the final report, pursuant to 18 Pa.C.S.A. Sec. 5712(e), and filed with the judge of the Superior Court who originally Appellant's first contention regarding 18 Pa.C.S.A. Sec. 5718 is that the statutory section is unconstitutional since it is violative of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. In essence, appellant asserts that the "as soon as practicable" language of the statute does not provide an aggrieved individual with due process of law since the language is too vague to give a potential defendant fair notice of the time period in which law enforcement officials may seek to utilize the recordings as evidence of a criminal violation.

approved the wiretap order. Third, the recorded conversations must be intercepted in accordance with the other provisions of the Wiretapping and Electronic Surveillance Control Act. Last, the application filed with the judge of the Superior Court must be made as soon as practicable.

Before considering the merits of appellant's contention, however, we must first address two distinct questions concerning whether this issue is properly before this Court: (1) whether appellant properly preserved this issue for consideration on appeal, and (2) whether appellant violated Pa.R.A.P. 521 by failing to notify the Pennsylvania Attorney General regarding his intention to challenge the constitutionality of 18 Pa.C.S.A. Sec. 5718. For the reasons stated below, we find that appellant's constitutional issue is properly before this Court, and we will address the merits of appellant's...