Com. v. McNeil
| Decision Date | 04 October 2002 |
| Citation | 808 A.2d 950 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Anyis Ali MCNEIL, Appellant. |
| Court | Pennsylvania Superior Court |
Before DEL SOLE, P.J., FORD ELLIOTT, JOYCE, STEVENS, MUSMANNO, ORIE MELVIN, LALLY-GREEN, KLEIN, and BENDER, JJ.
¶ 1 Appellant, Anyis Ali McNeil, appeals from the order entered by the Court of Common Pleas of Lehigh County on October 2, 2001, denying Appellant's Motion for Disclosure of the Audio Portion of Videotape (Motion) on the basis that the trial court lacked jurisdiction of the matter. We reverse, remand and relinquish jurisdiction.
¶ 2 The relevant facts are as follows. Appellant is charged with criminal homicide arising from an incident occurring outside AJ's Bar in Allentown, Pennsylvania on March 3, 2000. Appellant's Motion for Disclosure, 7/19/01 at 1, and Criminal Information, 5/7/00 at 1. On the evening of the homicide, the owner of AJ's Bar videotaped the interior of the bar. Appellant's Motion for Disclosure, 7/19/01, at 1. The videotape included both video and audio recordings. Id. The owner of AJ's Bar turned over to the Commonwealth both the audio and video recordings of the videotape. Id.
¶ 3 During discovery, the Commonwealth provided defense counsel with the video portion of the videotape. Id. The Commonwealth declined to provide the audio portion of the videotape absent a court order ordering such disclosure. N.T., 7/13/01, at 4-5. The Commonwealth refused to disclose the audio portions of the recordings in an attempt to protect itself from the potential for civil and criminal liability under Section 5725 of the Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"), 18 Pa.C.S.A. § 5725. This section addresses civil actions for unlawful interception, disclosure or use of wire, electronic or oral communication and provides for a defense for court-ordered disclosure. Id.
¶ 4 On July 19, 2001, Appellant filed a Motion with the trial court seeking disclosure. The Commonwealth joined the Motion, indicating it had no objection to providing the audio portion of the videotape if pursuant to an order.
¶ 5 On July 31, 2001, the trial court held a hearing and denied the Motion due to lack of jurisdiction. The trial court stated the following in its order denying the Motion:
NOW, this 31st day of July, 2001, upon consideration of the Motion for Disclosure of Audio Portion of Videotape, filed by defendant July 20, 2001; and upon consideration of the Rule to Show Cause filed by the undersigned on the same date; after oral argument held this date; and for the reasons articulated simultaneously on the record; it appearing that the undersigned does not have jurisdiction to enter within the requested order 1;
1 In his motion defendant seeks an Order directing the Commonwealth to permit defense counsel to hear the audio portion of a videotape taken by the owner of A.J.'s Bar inside the bar on the evening on which the criminal homicide which is the subject of this prosecution occurred. The homicide occurred outside the bar. However, the defendant contends that the movement and conversation of various individuals inside the bar may be relevant to their defense.
Previously, by agreement, the Commonwealth supplied the visual portion of the videotape to defense counsel. At that time the Commonwealth disclosed that the tape also contained an audio portion. The Commonwealth did not turn over the audio portion of the tape because of its concerns that to do so would violate the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. Sections 5701-5781. Section 5703(2) of the Act provides that anyone who intentionally discloses the contents of any wire, electronic or oral communication obtained through interception is guilty of a felony of the third degree. Sections 5725 and 5726 provide civil penalties including removal from office.
The parties agree that it would violate the Wiretap Act for the Commonwealth to turn over the requested audio portion of the tape to defendant without a court Order. The parties also agree that if a court Order is obtained upon which the Commonwealth acted in good faith, that there would be no violation of the Wiretap Act. See Sections 5725(c) and 5726(b). The Commonwealth also agrees that if a court Order issues authorizing it to turn over the audio portion, it will do so and will not interpose any discovery, relevancy, privilege, or other objections to the disclosure.
Upon reviewing the act, the undersigned concludes that this court does not have jurisdiction to authorize the disclosure. We conclude, rather, that exclusive jurisdiction for such authorization lies in the Superior Court of Pennsylvania. Section 5725(c) provides as follows: "It is a defense to an action brought pursuant to subsection (a) that the actor acted in good faith reliance on a court order or the provisions of this chapter." (Emphasis added.) Section 5726(b) contains a similar provision including the term "court order."
"Court" is defined in Section 5702 as follows:
The sections containing the defense of acting in reliance on a court Order are contained in subchapter B of the Wiretap Act (18 Pa.C.S.A. Sections 5703-5728). Subchapter C is contained in Sections 5741-5748. Accordingly, we conclude that under the express provisions of the statute, only the Superior Court can authorize the dissemination.
IT IS ORDERED that the Motion for Disclosure of Audio Portion of Videotape is denied, without prejudice for defendant to seek the requested relief from the Superior Court of Pennsylvania or other appropriate court.
Trial Court Order, 7/31/01, at 1-3.
¶ 6 Appellant filed an Application for Ancillary Relief to this Court which we denied on October 29, 2001. Appellant also filed a Motion to Certify Interlocutory Order for Appeal with the trial court. On October 2, 2001, the trial court granted Appellant's Motion to Certify Interlocutory Order for Appeal. The interlocutory appeal is presently before us.
¶ 7 Appellant raises one issue on appeal:
I. Whether the Court of Common Pleas of Lehigh County had jurisdiction to grant the petition for the disclosure of the audio portion of the videotape or whether such jurisdiction is exclusively in the Superior Court?
¶ 8 We review the question as to whether the disclosure request is a matter over which the Superior Court has jurisdiction under the Wiretap Act, or a discovery matter over which the Court of Common Pleas has jurisdiction. We conclude that since the request here is a discovery request, the Court of Common Pleas of Lehigh County has the jurisdiction to rule upon a disclosure request that has possible Wiretap Act implications.
¶ 9 First, we address the Wiretap Act, particularly the Commonwealth's concern about potential civil liability should it disclose the audio portion. 18 Pa.C.S.A. § 5725 provides:
18 Pa.C.S.A. § 5725. The Commonwealth asserts it will disclose "under a court order" to qualify for the defense found in 18 Pa.C.S.A. § 5725(c).1
¶ 10 The § 5725(c) term "court order" includes an order of the Court of Common Pleas. In 1991, our Supreme Court held that the § 5725(c) term "court order" is not limited to Superior Court orders unsealing wiretap transcripts and embraces an order of the Court of Common Pleas. See, Boettger v. Loverro, 526 Pa. 510, 587 A.2d 712 (1991)
. In Boettger, a newspaper published an article containing quotes from transcripts of wiretapped conversations only after the written issuance of a court order denying the defendant's suppression motion of those transcripts. The criminal defendant brought a civil action under the Wiretap Act against the newspaper. Our Supreme Court held that the newspaper was entitled to the § 5725(c) defense because it had exercised "good faith reliance on a court order." Id. at 720.
¶ 11 Our Supreme Court explained that the "court order" referred to in § 5725(c) was not limited to an order unsealing the transcript of the wiretap. Id. at 719-720. The Court recognized that the Wiretap Act contained no definition of "court order." Id. The Court then concluded that both the plain meaning of the language and the legislative history led to a conclusion that a "court order" included orders of the Courts of Common Pleas. Id. at 720. Thus, the court order denying the suppression motion in Boettger was a court order for the purpose of the § 5725(c) defense. Id.
¶ 12 In 1993, our Supreme Court emphasized that a "court order" was necessary to trigger the good faith defense under § 5725(c) in a civil action for disclosure of intercepted communications to taxing authorities. Boettger v. Miklich, 534 Pa. 581, 633 A.2d...
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