Com. v. Iannelli

• Decision Date: 27 December 1993
• Citation: 430 Pa.Super. 402,634 A.2d 1120
• Parties: COMMONWEALTH of Pennsylvania v. Robert IANNELLI, Appellant. COMMONWEALTH of Pennsylvania v. Kathryn YOHE, Appellant. COMMONWEALTH of Pennsylvania v. Rodney IANNELLI, Appellant. COMMONWEALTH of Pennsylvania v. Albert DIULUS, Appellant. COMMONWEALTH of Pennsylvania v. Ralph Raymond ROMANO, Appellant.
• Court: Pennsylvania Superior Court

Page 1120

634 A.2d 1120

430 Pa.Super. 402

COMMONWEALTH of Pennsylvania v. Robert IANNELLI, Appellant.

COMMONWEALTH of Pennsylvania v. Kathryn YOHE, Appellant.

COMMONWEALTH of Pennsylvania v. Rodney IANNELLI, Appellant.

COMMONWEALTH of Pennsylvania v. Albert DIULUS, Appellant.

COMMONWEALTH of Pennsylvania v. Ralph Raymond ROMANO, Appellant.

Superior Court of Pennsylvania.

Argued May 12, 1993.

Filed Oct. 18, 1993.

Reargument Denied Dec. 27, 1993.

Ellen M. Viakley, Pittsburgh, for appellants.

Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, for Com., appellee.

Before McEWEN, OLSZEWSKI and FORD ELLIOTT, JJ.

OLSZEWSKI, Judge.

These cases arose out of an investigation of illegal gambling activities in western Pennsylvania conducted by the Pennsylvania State Police and the Pennsylvania Attorney General's Office. The lead investigator was Trooper Robert Teagarden. In March of 1989, Trooper Teagarden contacted a confidential informant in Uniontown, Fayette County. The informant agreed to have his conversations with Joseph Georgianna tape recorded. During these conversations, the informant and Georgianna discussed line information (the odds on sporting events) and placed wagers on sporting events. Based upon the information uncovered, Trooper Teagarden applied for a search warrant for the toll records for Georgianna's phone. He also applied for a pen register to be placed on Georgianna's phone ¹ which reveals all outgoing calls made. Eventually, a trap and trace device was also placed on this phone line to trace incoming calls.

The trap and trace device revealed that phone calls from (412) 429-8033 were regularly received from 6:00 to 8:00 p.m., "prime time" betting hours. Telephone records revealed that Pasquale Romano subscribed to this number. In October 1989, a court-authorized pen register was placed on the Romano telephone. Subsequently, a trap and trace device was also authorized for that phone line. The evidence obtained from these devices and physical surveillance led the police to believe that Pasquale Romano and/or Ralph Raymond Romano were involved at a high level in a gambling organization. At times of heavy sports betting (Saturdays, Sundays and Monday nights), the number of calls placed from the Romano number increased dramatically. This pattern was consistent with bookmaking operations where a bettor places a call to a beeper and the bookmaker then calls the bettor. The monitoring of the Georgianna phone line supported this belief. When calls were placed to a beeper service from the Georgianna phone line, a call would be received moments later from the Romano phone. Based upon this information, this Court authorized a wiretap for the Romano phone.

Officer Teagarden monitored this wiretap from November 17, 1989, through December 6, 1989, documenting conversations between Ralph Raymond Romano ["Romano"] and several other people. The Romano wiretap also revealed numerous conversations regarding gambling activity between Robert Iannelli ["Iannelli"] and Romano. These would often occur after Romano called a beeper number and then Iannelli phoned Romano from cellular phones. These patterns were consistent with the earlier patterns between Georgianna and Romano. Accordingly, the police suspected that Romano was a lower level bookmaker reporting to Iannelli, a higher level bookmaker. As a result of this information, a wiretap was obtained for 551-6033 and 551-8197, the two cellular phones. ² In addition to authorizing these wiretaps, the Superior Court also authorized the use of pen registers and trap and trace devices.

The wiretaps revealed that Iannelli was running illegal numbers and lotteries. Romano, Albert Diulus ["Diulus"], and Kathryn Yohe ["Yohe"] all placed bets with Iannelli, acting as lower echelon bookmakers. In addition to the wiretapping, the police also performed physical surveillance and other investigations on appellants. Search warrants were authorized for numerous locations through which physical evidence was also obtained.

Iannelli, Romano and Diulus were charged with one count of criminal conspiracy, 18 Pa.C.S.A. § 903, one count of corrupt organizations, 18 Pa.C.S.A. § 911, twelve counts of pool selling and bookmaking, 18 Pa.C.S.A. § 5514 and twelve counts of lotteries, 18 Pa.C.S.A. § 5512. Yohe was charged with one count of criminal conspiracy, one count of corrupt organizations and five counts of pool selling and bookmaking. The four cases were joined for trial. Appellants filed pre-trial motions, arguing, among other things, that the wiretap evidence and other physical evidence should be suppressed. The trial court denied the motions and conducted a non-jury trial. Appellants were convicted on all counts except violating the Corrupt Organizations Act. The trial court imposed sentences on April 27, 1992. For criminal conspiracy, the trial court sentenced Iannelli, Romano and Diulus to 8 to 23 months imprisonment, plus costs and a $10,000 fine. They also received a $5,000 fine, costs, and 5 years of probation for one count of bookmaking and pool selling, to run consecutively to the imprisonment. Sentence on the remaining counts was suspended. Yohe was sentenced to two years probation, plus costs for criminal conspiracy; no other penalty was imposed on the remaining counts. Post-trial motions were filed, argued and denied. These timely appeals followed. These appeals have been consolidated by stipulation of the parties. Iannelli filed a brief with this Court in which the other three appellants join. ³

On appeal, six issues are presented for our review. The first issue is common to all appellants, including Rodney. The remaining issues pertain only to Iannelli and Rodney. Appellants allege that the evidence obtained pursuant to wiretaps should have been suppressed because:

A. The orders authorizing electronic surveillance, pen registers and trap and trace devices were not issued by a court of competent jurisdiction;

B. The orders authorizing pen registers and the governing statute limited surveillance to outgoing calls, but the pen registers installed measured the date, time and duration of incoming calls;

C. There was no probable cause for the electronic surveillance of the (412) 551-6033 and (412) 551-8197 phone lines.

D. The Wiretapping and Electronic Surveillance Control Act is unconstitutional.

In addition to the wiretap questions, the Iannellis claim that:

the description of property in the search warrants were unconstitutionally overbroad;

the affidavit for three search warrants did not provide probable cause to believe that evidence subject to seizure would be found at the places to be searched;

the search warrant for a garage was tainted by prior illegality of other search warrants;

the evidence was insufficient evidence to convict him of twenty of the twenty-four pool selling and bookmaking and lotteries counts;

the monitors' logs containing summaries of the intercepted telephone conversations were improperly admitted into trial.

We find no merit to any of these issues and affirm the judgments of sentence.

I. SUPPRESSION OF WIRETAP EVIDENCE

In the first issue, appellants argue that the wiretap evidence should have been suppressed for various reasons. In reviewing the denial of a motion to suppress evidence, we must first determine

whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution's witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings, we may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Medley, 531 Pa. 279, 283, 612 A.2d 430, 432 (1992); McElrath v. Commonwealth, 405 Pa.Super. 431, 435, 592 A.2d 740, 742 (1991). In this case, the trial court denied appellants' motion to suppress. Its findings of fact and conclusions of law are not part of the record before us. The suppression court is required to place findings and conclusions on the record pursuant to Pa.R.Crim.P Rule 323(i), 42 Pa.C.S.A. Failure to do so can be problematic:

Both this Court and our Supreme Court have expressly disapproved of this practice and have, when necessary, vacated judgment of sentence and remanded for a new suppression hearing. Where possible, however, we have looked to the trial court's resolution of post-trial motions, as well as the record, in order to determine the propriety of suppression orders in these situations.

Commonwealth v. Gelber, 406 Pa.Super. 382, 394, 594 A.2d 672, 678 (1991), alloc. denied, 529 Pa. 667, 605 A.2d 332 (1992) (citations omitted). Here, we can ascertain the propriety of the suppression order without the benefit of the trial court's findings. Accordingly, we are not required to vacate and remand, but can address the suppression issue raised by appellants.

A. Lack of Competent Jurisdiction

Appellants first allege that the Superior Court lacks jurisdiction to issue wiretaps. Specifically, they argue that because § 741 of the Judicial Code establishes that "[t]he Superior Court shall have no original jurisdiction," this section is violated when judges of this Court authorize wiretaps. This argument, however, incorrectly presumes that issuing a wiretap is an act of original jurisdiction. We acknowledge that we must make factual determinations as to whether the wiretap applicants have established a sufficient basis upon which to enter an order. 18 Pa.C.S.A. § 5710. Moreover, the reviewing judge

may inquire in camera as to the identity of any informants or any other additional information concerning the basis upon which the investigative or law enforcement officer or agency has applied for the order of authorization which the judge finds relevant in order to determine if there is probable cause pursuant to this section.

Id. Despite these factfinding powers, we...