Com. v. Myers

CourtSuperior Court of Pennsylvania
Citation676 A.2d 662,450 Pa.Super. 482
PartiesCOMMONWEALTH of Pennsylvania v. Robert Arthur MYERS, Appellant.
Decision Date11 June 1996

Donald E. Lewis, Meadville, for appellant.

Mark D. Waitlevertch, Assistant District Attorney, Meadville, for the Commonwealth, appellee.



Once again, we are called upon to determine whether a defendant's comments were "oral communications" within the Wire-tapping and Electronic Surveillance Control Act (Act), 18 Pa.C.S.A. § 5701, et seq. Finding that such comments were properly within the Act, we reverse and remand for retrial.

On October 1, 1993, Larry Whitmore met with Pennsylvania State Trooper Danny Lloyd concerning two 1989 robberies of a Ponderosa steakhouse. After implicating appellant Robert Arthur Myers in these crimes, Whitmore consented to wearing an electronic recording device on his body while attempting to elicit incriminating statements from Myers. Further, Whitmore agreed that his encounter with Myers would take place on October 14, 1993.

On the date of the encounter, Whitmore, who had been fitted with a body recorder and transmitter, travelled to Myers' home, which was on a large isolated plot of land. What transpired next is best summarized by the trial court:

[Whitmore] found [Myers] not at home and walked from [Myers'] home to his parents' residence up the road. Before he got to [Myers'] parents' residence, [Myers] came out to greet him and they walked back to [Myers'] residence.

During the course of a subsequent approximately 15 minute conversation, [Myers] made statements that could constitute inculpatory evidence with respect to the current prosecution.

Whitmore had been instructed that he should not engage in conversation that might be incriminating to [Myers] while in [Myers'] residence. Accordingly, once Whitmore and [Myers] arrived at [Myers'] trailer, [Myers] went inside and apparently sat on a couch and Whitmore attempted to stay out of the trailer and talk to [Myers] from a porch adjoining the trailer. Whitmore did indicate on one occasion he went in briefly to get a beer from the refrigerator and then returned to the porch area. He further testified that during their conversation there was no screen door in place and the door to the trailer was left open and the couch on which the defendant was seated was about two feet to the left of the door.

Opinion, 10/26/94 at 3-4.

On November 12, 1993, the Pennsylvania State Police filed charges against Myers concerning the steakhouse robberies. Subsequently, Myers filed a motion to suppress the tape which Whitmore's body recorder had produced. Said motion was denied by the trial court, and, consequently, the Commonwealth introduced the tape into evidence at Myers' jury trial. Ultimately, the jury found Myers' guilty on two counts of robbery, for which he was later sentenced to 10-to-30 years imprisonment plus restitution. In this timely appeal, Myers contends the trial court erred in refusing to suppress the tape produced by Whitmore's body recorder, because the Commonwealth had failed to obtain an order from a Superior Court judge authorizing this recording.

The Wiretapping and Electronic Surveillance Control Act (the Act) prescribes criminal penalties for wiretapping and other interceptions of oral communications. Commonwealth v. Brion, 539 Pa. 256, 258, 652 A.2d 287, 288 (1994); 18 Pa.C.S.A. § 5703. The Act also authorizes law enforcement officers to engage in such activities subject to a stringent procedure for showing probable cause before a Superior Court judge. Brion, supra. See 18 Pa.C.S.A. §§ 5708-5726. If an order from a Superior Court judge is not obtained, however, an aggrieved person in any trial "may move to suppress the contents of any ... oral communication [on the ground that] [t]he communication was unlawfully intercepted." 18 Pa.C.S.A. § 5721(a).

Instantly, the Commonwealth concedes that the police never obtained a Superior Court order authorizing its recording. Nevertheless, the Commonwealth attempts to circumvent this requirement by alleging that Myers' statements to Whitmore were not "oral communications" and, thus, the Act should not apply. We disagree.

An "oral communication," for purposes of the Act, is "[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 Pa.C.S.A. § 5702. A great deal of ink has been expended in this state's law books, however, attempting to define what constitutes such a justified expectation. During recent years, this issue has been jostled between our esteemed court and our state's distinguished Supreme Court. The aftermath of this activity: our state has been left with a coherent and just approach for making such a determination.

In Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc ), Judge Cirillo wrote upon the subject in a most eloquent and insightful manner. In Schaeffer, a police informant brought a recorder inside the defendant's home and, unbeknownst to the defendant, taped his incriminating statements. Since the police had not obtained a proper Superior Court order authorizing the recording, the defendant sought its suppression. Upon the case reaching our court en banc, Judge Cirillo identified the issue as being "whether society recognizes as legitimate the ordinary expectation of the individual that his words are not being electronically recorded and transmitted beyond the four walls of his home or office." Id. at 206, 536 A.2d at 368. After noting that the defendant's right to privacy was clearly implicated in this inquiry, our distinguished colleague found that, ordinarily, a person does not expect that a visitor to his home brings along "the added intrusion of the government's recording or listening." Id.

Seven years later, our state's highest court expressly approved Judge Cirillo's scholarly analysis. Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994). In so doing, the Supreme Court reversed a three-judge panel decision of this court which had found that our court's en banc decision in Schaeffer had been overruled sub silentio by subsequent Supreme Court cases. Commonwealth v. Brion, 381 Pa.Super. 83, 552 A.2d 1105 (1989), rev'd, 539 Pa. 256, 652 A.2d 287 (1994). More importantly, however, the Supreme Court offered valuable insight into the interplay between a person's right to privacy and his/her expectation that his/her oral communication is not subject to interception. Specifically, the Supreme Court stated that

[w]e reiterate [ ] that the Act requires that a person uttering an oral communication, as that term is defined under the Act, must have a specific expectation that the contents of a discussion will not be electronically recorded. However, this expectation must be justifiable under the existing circumstances. Implicit in any discussion of an expectation that a communication will not be recorded is a discussion of the right to privacy.

Brion, 539 Pa....

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4 cases
  • Com. v. Bender
    • United States
    • Superior Court of Pennsylvania
    • October 25, 2002
    ...conclusion, the suppression court relied upon two cases: Commonwealth v. Darush, 740 A.2d 722 (Pa.Super.1999) and Commonwealth v. Myers, 450 Pa.Super. 482, 676 A.2d 662 (1996). ¶ 11 We first note that Darush was reversed and remanded subsequent to the suppression court's decision. See Commo......
  • Commonwealth v. Schafkopf
    • United States
    • Superior Court of Pennsylvania
    • December 17, 2021 isolated feature of a physical layout such as an open door is not, in and of itself, dispositive. See Commonwealth v. Myers , 676 A.2d 662 (Pa. Super. 1996) (reasonable expectation of privacy existed despite open door because communication was between childhood friends in remote area); C......
  • Commonwealth v. Schafkopf
    • United States
    • Superior Court of Pennsylvania
    • December 17, 2021 isolated feature of a physical layout such as an open door is not, in and of itself, dispositive. See Commonwealth v. Myers, 676 A.2d 662 (Pa. Super. 1996) (reasonable expectation of privacy existed despite open door because communication was between childhood friends in remote area); Co......
  • Commonwealth v. Brill
    • United States
    • Superior Court of Pennsylvania
    • May 31, 2023
    ...... subject to interception, and any interception may potentially. run afoul of the Wiretap Act. See, e.g., Commonwealth v. Myers , 676 A.2d 662, 663, 665 (Pa. Super. 1996) (holding. that, where defendant was seated inside his rural home and. was conversing with his ......

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