Com. v. Kean

• Decision Date: 16 March 1989
• Parties: COMMONWEALTH of Pennsylvania v. Daniel KEAN, Appellant. COMMONWEALTH of Pennsylvania v. Lucile Mae KEAN, Appellant.
• Court: Pennsylvania Superior Court

Page 374

556 A.2d 374

382 Pa.Super. 587

COMMONWEALTH of Pennsylvania v. Daniel KEAN, Appellant.

COMMONWEALTH of Pennsylvania v. Lucile Mae KEAN, Appellant.

Superior Court of Pennsylvania.

Argued May 4, 1988.

Filed March 16, 1989.

David P. Truax, Meadville, for appellants.

Douglass W. Ferguson, Asst. Dist. Atty., Meadville, for Com., appellee.

Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.

BECK, Judge.

This case presents what the trial court described as a "strange search and seizure issue ... which may be unique in the annals of the criminal justice system...." The issue is whether the appellants' rights under the federal and state constitutions were violated when the court refused to suppress a videotape which showed the appellants participating in sexual activities in the bedroom of their home. This videotape had been surreptitiously recorded by two juveniles and was subsequently given to the police by the mother of one of them. The videotape was then viewed by the police without a search warrant. We find that under the Pennsylvania Constitution, appellants had a protected privacy interest in the images which had been secretly captured on the videotape. We conclude, nonetheless, that under all the facts of this case, the police did not act improperly when they viewed the tape without first obtaining a warrant. We therefore affirm the appellants' judgments of sentence.

I.

In reviewing a trial court's denial of a motion to suppress, we consider the evidence of the prosecution and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Lemanski, 365 Pa.Super. 332, 341-344, 529 A.2d 1085, 1089-1090 (1987); Commonwealth v. Weik, 360 Pa.Super. 560, 562, 521 A.2d 44, 45 (1987). Viewed in this light, the facts of the case are as follows.

The appellants, Daniel and Lucile Kean, are husband and wife. They are nearly sixty years of age and for many years they were highly respected members of the community. In 1986, Lucile Kean began to have sexual relations with two male juveniles with her husband's knowledge and approval. The juveniles, Alan and Steve, lived in the same neighborhood as the appellants and were under sixteen years of age when sexual contact was initiated. Alan lived next door to the appellants and resided with his half-sister and her husband, Kevin Kean; Kevin Kean was both Alan's brother-in-law and the appellants' son. Steve lived in a separate residence with his step-father and his mother. On several occasions, Alan and Steve arrived together at the appellants' house and proceeded to have sex with Lucile Kean while Daniel Kean watched.

Eventually, relations between the juveniles and the appellants took a turn for the worse. Alan and Steve borrowed the Keans' car without their permission and then became concerned that the Keans might notify the police. Alan and Steve were also afraid that Lucile Kean might falsely claim that the boys had forced her to participate in their sexual activities. Sometime during the summer of 1986, the boys decided to videotape one of their sexual encounters with the Keans. In this way, they hoped to gather evidence that Mrs. Kean's participation was consensual. They also reasoned that they could use the tape to blackmail the Keans into not reporting the unauthorized use of their vehicle.

In order to accomplish their objective, the boys removed a videocamera equipped with videotape from Kevin Kean's home. The camera and tape belonged to Kevin and were taken without his knowledge or permission. The boys then broke into the appellants' house when no one was home and planted the videocamera in the bedroom. They carefully concealed the camera under a pile of clothing so that only the lens protruded, and they focused the lens on appellants' bed. At midnight, the boys returned and were admitted into the house by the appellants. When the boys entered the bedroom, they secretly triggered the camera's recording mechanism before performing sexual acts with Mrs. Kean.

The following day, the boys once again broke into the appellants' home, this time to retrieve the camera. They took the camera back to Kevin's house where they watched the tape and made a duplicate by recording over another videotape which belonged to Kevin. The tape was approximately forty minutes long and showed Mr. Kean lying in bed next to Mrs. Kean while Mrs. Kean had sexual intercourse and oral sex with both Alan and Steve. Alan kept one copy of the tape for himself; this copy was later found by Kevin and erased. Alan gave the other copy to Steve who took it back to his own home.

Alan could not resist screening his copy of the videotape for two of his friends before his copy was erased. Perhaps as a result of this exposure, rumors concerning the existence of the tape began to circulate in the community. Steve's mother, Cherelynn, heard about the tape. When she asked Steve about it, Steve admitted without hesitation that he had his own copy. Cherelynn could not bear to watch the tape herself, so she asked her father Arthur to view the tape and tell her what was on it. Steve, without protest, handed the tape over to Arthur. Arthur took the tape to his house and viewed it on his own videorecorder. He then returned the tape to Cherelynn and informed her of its contents. Cherelynn then contacted a district justice who told her that the matter was outside his jurisdiction. At this point, Cherelynn placed the tape in her attic where it remained for the next several weeks. She later stated at the suppression hearing: "I wanted to make sure [the tape] got in the right hands, and I didn't know who to turn to." R.R. at 121.

Meanwhile, the Crawford County Children and Youth Services had received an anonymous report concerning the sexual activities of the appellants. The agency referred the matter to Officer Lloyd of the Pennsylvania State Police who interviewed Alan and Steve. Alan and Steve told Officer Lloyd about the tape. On October 24, 1986, Officer Lloyd came to Cherelynn's home and asked her if he could have the tape. Cherelynn voluntarily handed the tape over to Officer Lloyd. At this time, the tape contained no outer markings or labels and it was not possible to examine the contents of the tape with the naked eye. Without first securing a search warrant, Lloyd took the tape to the office of the district attorney where he and the district attorney played it on a videorecorder. After viewing the contents, Lloyd swore out a criminal complaint against the appellants.

Lucile Kean was charged with two counts of involuntary deviate sexual intercourse. ¹ In addition, Lucile Kean and Daniel Kean were each charged with two counts of conspiracy to commit involuntary deviate sexual intercourse and two counts of corruption of minors. Defense counsel for the Keans filed a pretrial motion to suppress the videotape which was denied. The Keans were jointly tried before a jury. Alan and Steve testified as Commonwealth witnesses, and the videotape was introduced into evidence and played at trial. On March 17, 1987, appellants were found guilty on all counts. Following the denial of post-trial motions, Lucile Kean was sentenced to a total of five to fifteen years imprisonment and Daniel Kean was sentenced to a total of twenty-three to seventy-two months imprisonment. Both parties filed timely notices of appeal from their judgments of sentence and the appeals were consolidated for review by this court.

The Keans raise two issues on appeal: 1) whether the admission of the videotape into evidence violated their constitutional rights; and 2) whether the trial court erred by failing to declare a mistrial after the assistant district attorney allegedly made certain improper and prejudicial remarks during closing argument. We find that the prosecutorial misconduct claim is meritless for the reasons stated in the opinion of the trial court. Trial Court Op. at 5-8. Although the suppression claim requires careful consideration, we conclude that the judgments of sentence must be affirmed.

II.

Appellants base their challenge to the admission of the videotape on both the fourth amendment of the United States Constitution and on article 1, section 8 of the Pennsylvania Constitution. We begin our analysis by reviewing the scope of these provisions, especially insofar as they relate to the conduct of private citizens.

The fourth amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In his influential concurring opinion in Katz v. United States, 389 U.S. 347, 360-62, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967), Justice Harlan interpreted the amendment as prohibiting unreasonable searches of areas and objects in which a defendant manifests a "reasonable expectation of privacy." Harlan defined this phrase with reference to a two-part standard: 1) whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy" and 2) whether this subjective expectation is "one that society is prepared to recognize as 'reasonable' ". Id. at 361, 88 S.Ct. at 516. This standard was later explicitly adopted by the United States Supreme Court and is now recognized as the central concept in federal search and seizure jurisprudence. See, e.g., Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979).

Article I, section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any person or things shall issue without describing them as nearly as may be, nor without probable cause,...