Com. v. Metts

• Citation: 669 A.2d 346,447 Pa.Super. 275
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joseph H. METTS, Appellant.
• Decision Date: 06 December 1995
• Court: Pennsylvania Superior Court

Page 346

669 A.2d 346

447 Pa.Super. 275

COMMONWEALTH of Pennsylvania, Appellee, v. Joseph H. METTS, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 11, 1995.

Filed Dec. 6, 1995.

Jack W. Connor, Uniontown, for appellant.

Peter U. Hook, Assistant District Attorney, Uniontown, Robert A. Graci, Deputy Attorney General, Harrisburg, for Commonwealth.

Before ROWLEY, President Judge, and CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.

HUDOCK, Judge:

This is an appeal from the judgments of sentence imposed following a jury trial in which Appellant was convicted of first degree murder, robbery, theft by unlawful taking or disposition, and receiving stolen property. ¹ We granted en banc review to determine the applicability of our Supreme Court's decision in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), which found Section 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa. C.S.A. sections 5701 et seq, violative of Article I, Section 8 of the Pennsylvania Constitution unless probable cause for the consensual electronic interception inside a suspect's home was first shown to a judge of this Court. Appellant would have us apply Brion retroactively; the Commonwealth urges prospective application only.

Appellant was charged with the murder of Piper Newland, a correction officer for the Fayette County Prison. In the early morning hours of January 5, 1992 Ms. Newland was found lying face down on North Gallatin Avenue in Uniontown, Pennsylvania. The victim died at 2:42 a.m. from extensive brain hemorrhage caused by two bullets fired at close range.

Appellant's sister, Wendy Sue Kulenovic, testified that on January 4, 1992, between 6:00 and 8:00 p.m., her husband, Dwayne Kulenovic, and Appellant left her apartment located at 20 1/2 Millview Street in Uniontown, which is located a few blocks from where the victim was found. At approximately 1:50 a.m., Appellant and Dwayne Kulenovic returned to the apartment where they stayed for a few minutes. Appellant returned between 2:15 and 2:30 a.m., awakened Wendy and confessed that he shot the black guard from the jail. Appellant was holding a cosmetic bag in his hand when he made this confession.

Paul Kuba, a friend of Appellant's, received a tip that Appellant was involved with the murder of Ms. Newland. Kuba voluntarily went to the police and agreed to cooperate with the Fayette County District Attorney. Kuba agreed to wear an electronic transmitter while questioning Appellant about his involvement in Ms. Newland's murder. On January 27, 1992 and February 6, 1992, Kuba wore the transmitter and entered Appellant's sister's apartment. Kuba admitted that he brought beer and whiskey for Appellant on these dates to "break the ice." In a tape recorded conversation between Kuba, Appellant's sister, her husband and Appellant, Appellant confessed that he shot the victim for fifty dollars. Kuba relayed the details of this confession to the jury.

The Commonwealth played an excerpt from the tape recorded conversation between Appellant and Kuba wherein Appellant confessed to shooting the victim.

The jury found Appellant guilty of first degree murder, robbery and related theft offenses. The trial court granted Appellant's demurrer to criminal conspiracy and hindering apprehension or prosecution. ²

In his first three questions presented, Appellant alleges that the trial court erred when it denied his motion to suppress the tape recorded conversations between himself and Paul Kuba obtained through the use of electronic surveillance.

Our standard of review when reviewing a challenge to the trial court's denial of a motion to suppress is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Morris, 537 Pa. 417, 420-22, 644 A.2d 721, 723 (1994), cert. den., 513 U.S. 1031, 115 S.Ct. 610, 130 L.Ed.2d 519 (1995). If the trial court denied the motion to suppress, we must consider only the Commonwealth's evidence and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Mayhue, 536 Pa. 271, 299-300, 639 A.2d 421, 435 (1994). If the trial court's factual findings are supported by the record, we may only reverse if the legal conclusions drawn from those factual findings are erroneous. Id.

Appellant does not dispute the trial court's factual findings. Rather, he argues that this Court must reverse the trial court's erroneous legal conclusion that the tape recorded conversations obtained via electronic surveillance were properly obtained and thus admissible. Appellant contends that this Court must follow our Supreme Court's decision in Commonwealth v. Brion, supra, which held that "Article I, [Section] 8 of the Pennsylvania Constitution precludes the police from sending a confidential informer into the home of an individual to electronically record his conversations and transmit them back to the police." Brion, 652 A.2d at 287. Appellant claims that Brion and the consolidated case of Commonwealth v. Schaeffer, 539 Pa. 271, 272, 652 A.2d 294 (1994), which were both decided on December 30, 1994, must be applied retroactively to his case.

In Commonwealth v. Brion, supra, our Supreme Court addressed the issue of whether the police may send a confidential informer into an individual's home to electronically record his conversations and transmit them back to the police without violating Article I, Section 8 of the Pennsylvania Constitution. Brion argued that to do so the police must obtain judicial authorization. The police relied on section 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. sections 5701-5728, which authorizes investigative or law enforcement officers or persons acting at the request of law enforcement personnel to "intercept a wire, electronic or oral communication involving suspected criminal activities" if the officer or person consents to wear a body wire. 18 Pa.C.S.A. § 5704(2)(ii). Brion argued that this procedure violated Article I, Section 8 of the Pennsylvania Constitution which "protects the right of the people to be secure from unreasonable searches and seizures[.]" Commonwealth v. Schaeffer, 370 Pa.Super. 179, 182, 536 A.2d 354, 355 (1987), aff'd., 539 Pa. 272, 652 A.2d 294 (1994). Thus, Brion argued that his incriminating statements were illegally recorded and should be suppressed.

The trial court denied Brion's motion to suppress and the tape recorded conversation was admitted at trial. Brion was convicted of possession and delivery of marijuana. The trial court reversed its suppression ruling when presented with Brion's post-verdict motions and granted a new trial based on this Court's en banc decision in Commonwealth v. Schaeffer, supra. ³

On appeal, a panel of this Court reversed the trial court and held that the Supreme Court's decision in Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff'd., 494 U.S. 299 (1990), overruled our Court's en banc decision in Schaeffer sub silentio. ⁴ Our Supreme Court granted allocatur and reversed our Court's decision. The Supreme Court distinguished the holding in Blystone on the basis that the police informer in Blystone did not enter the defendant's home to electronically record his conversations. Justice Zappala, writing for the majority in Brion, noted:

Unlike ... Blystone ..., the instant case involves conversations taking place in the sanctity of one's home. If nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home. As then-Justice Roberts stated in Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978): "Upon closing the door of one's home to the outside world, a person may legitimately expect the highest degree of privacy known to our society." (Citations omitted).

Brion, 652 A.2d at 289 (footnote omitted).

Justice Zappala reiterated: "An individual has a constitutionally protected right to be secure in his home." Id. Based on this well-established principle, the majority concluded:

With respect to oral communications occurring within one's home, interception pursuant to 18 Pa.C.S. [Section] 5704(2)(ii) can only be deemed constitutional under Article I, Section 8 if there has been a prior determination of probable cause by a neutral, judicial authority. In light of the General Assembly's preference expressed elsewhere in the Act that probable cause determinations regarding other electronic surveillance be made by a judge of the Superior Court, 18 Pa.C.S. [Sections] 5708-5723, for consistency we believe that such procedures should be applied in fulfilling this probable cause/warrant requirement.

Id. 652 A.2d at 289.

Our Supreme Court did not address whether its decision in Brion should be retroactively applied. Appellant argues that we must apply the new law announced in Brion retroactively to the present appeal.

In the present case, when the trial court ruled on Appellant's post-verdict motions, the Supreme Court's decision in Brion had not been decided. The controlling precedent at the time was this Court's decision in Commonwealth v. Schaeffer, supra. ⁵ The trial court refused to apply our en banc decision in Schaeffer for three reasons. First, the trial court concluded that Appellant did not raise the issue that the tape recorded conversations were an illegal search and seizure pursuant to the Fourth Amendment of the federal constitution and Article I, Section 8 of the Pennsylvania Constitution either pre-trial or during trial. According to the trial court, Appellant did not raise the illegal search issue until he filed supplemental post-verdict motions. Hence, the trial court ruled that Appellant had not properly...