Com. v. Parrella

• Citation: 610 A.2d 1006,416 Pa.Super. 131
• Parties: COMMONWEALTH of Pennsylvania v. Victor Martin PARRELLA, Jr., Appellee.
• Decision Date: 03 June 1992
• Court: Pennsylvania Superior Court

Page 1006

610 A.2d 1006

416 Pa.Super. 131

COMMONWEALTH of Pennsylvania v. Victor Martin PARRELLA, Jr., Appellee.

Superior Court of Pennsylvania.

Argued Sept. 11, 1991.

Filed June 3, 1992.

David J. Flower, Dist. Atty., Somerset, for Com., appellant.

Robert D. Gleason, Johnstown, for appellee.

Before CAVANAUGH, BECK and KELLY, JJ.

KELLY, Judge:

In this Opinion we are called upon to determine whether the trial court properly ordered the suppression of tape recordings of conversations between the appellee and his deceased estranged wife in the prosecution of the appellee for criminal homicide pursuant to 18 Pa.C.S.A. § 5721. The tapes and derivative evidence in controversy was uncovered through the unconsented recording of conversations between the appellee and his estranged wife, which occurred in an apartment on the night of her death. The tapes were made through the use of an improvised interception system consisting of an electronic baby monitor and tape recorder that was surreptitiously installed by the appellee's girlfriend in the apartment where she resided with the appellee. We affirm.

The relevant facts for the purposes of this appeal as discerned from the stipulations of the parties and the transcript of the preliminary hearing are as follows. The appellee, Victor M. Parrella, Jr., is charged with criminal homicide in connection with the death of his estranged wife, Donna Jean Parrella. In Count III of his Application for Omnibus Pre-Trial Relief, the appellee motioned to suppress the contents of tape recordings of conversations between himself and his estranged wife, which were recorded on the night of her death, January 19-20, 1990. The tape recordings were taken by private individuals acting without color of state authority in an apartment located directly above the Mountain House Tavern in Point Borough, Somerset County. The apartment was orally leased by Shelly Lea Horner on a week by week basis where the appellee also resided.

On January 19, 1990, after having been advised by the appellee that he intended to meet with his estranged wife that evening in the apartment, Ms. Horner purchased a Fisher Price Baby Monitor and several blank tapes at a local department store. The baby monitor consisted of two parts, a monitor which would pick up all sounds in the room where it was placed, and a receiver, which would transmit the sound. Ms. Horner then installed the monitor in a drop ceiling in the apartment bedroom and placed the receiver next to a tape recorder on a porch adjacent to one of the apartment windows.

At approximately 11:30 p.m. on January 19, 1990, Ms. Horner turned on the receiver and the tape recorder. Ms. Horner then returned to the Mountain House Tavern below and sat with two friends, Sandra Feldbauer and William Hill. Neither the appellee nor the decedent had any knowledge that their conversations inside the apartment were being recorded.

At approximately 1:00 a.m. on January 20, 1990, Ms. Horner and Ms. Feldbauer testified that they heard a loud thumping noise emanating from the apartment. Ms. Feldbauer also testified that while she was changing the tape in the tape recorder outside the apartment, she heard the appellee say, "Why am I holding a gun to the head of someone I really want to be with?" Additionally, Raymond Wiencek, who resided in the apartment next door, testified that he had previously heard arguing coming from the Horner-Parrella apartment. Mr. Wiencek further testified that at approximately 1:00 a.m., he heard a loud noise which sounded like a gunshot and then heard the appellee repeating over and over, "Donna, are you all right?" However, the police were not notified at that time. Ms. Horner subsequently retrieved the tapes and went to Ms. Feldbauer's brother's apartment where she, Ms. Feldbauer and several others listened to the tapes. Sometime later on the morning of January 20, 1990, Ms. Horner and Ms. Feldbauer returned to the Horner-Parrella apartment to remove Ms. Horner's personal belongings. At that time, Ms. horner discovered blood on the carpet in the apartment. The police were subsequently contacted and the tapes were turned over to them.

Shortly thereafter, the appellee was arrested and charged with criminal homicide. A preliminary hearing was held before District Justice Joseph A. Cannoni who ordered the appellee held for trial. The appellee then filed a motion to suppress the tapes and all derivative evidence alleging the tapes were recorded in violation of the Wiretapping and Electronic Surveillance Act, 18 Pa.C.S.A. § 5701 et seq. (the Act); thus, the tapes and all derivative evidence must be suppressed pursuant to 18 Pa.C.S.A. § 5721. A hearing was held before the Honorable John M. Cascio. Judge Cascio then granted the appellee's motion to suppress the tapes and all derivative evidence. The Commonwealth filed a timely appeal wherein it has alleged that the trial court's order suppressing the tapes seriously impairs its ability to present its case and prove the charges of criminal homicide against the appellee. ¹

On appeal, the Commonwealth raises two issues for our review.

I. WHETHER THE LOWER COURT ERRED IN RULING THAT THE CONVERSATION BETWEEN THE DEFENDANT AND THE ALLEGED DECEDENT/VICTIM WAS A PROTECTED "ORAL COMMUNICATION" WITHIN THE MEANING OF THE WIRETAP AND ELECTRONIC SURVEILLANCE CONTROL ACT, 18 Pa.C.S.A. SECTION 5701, ET SEQ., THAT IS, THAT THE ORAL COMMUNICATION WAS UTTERED BY A PERSON WHO POSSESSED A REASONABLE EXPECTATION OF PRIVACY SUCH THAT THE COMMUNICATION WOULD NOT BE SUBJECT TO INTERCEPTION UNDER CIRCUMSTANCES JUSTIFYING SUCH EXPECTATION WHERE THE CONVERSATION OCCURRED UNDER CIRCUMSTANCES WHERE INDIVIDUALS NOT PARTY TO THE CONVERSATION

ARE ABLE TO HEAR THE CONVERSATION WITHOUT ELECTRONIC OR MECHANICAL DEVICES.

II. ASSUMING ARGUENDO THAT THE CONVERSATION AT ISSUE IS A PROTECTED "ORAL COMMUNICATION," WHETHER SUCH AN INTERPRETATION OF THE WIRETAP AND ELECTRONIC SURVEILLANCE CONTROL ACT UNCONSTITUTIONALLY INFRINGES ON THE RIGHT OF AN APARTMENT TENANT TO BE AWARE OF ACTIVITIES IN HER APARTMENT AS PART OF HER RIGHTS OF "POSSESSING AND PROTECTING PROPERTY" AS GUARANTEED BY ARTICLE I, SECTION 1 OF THE PENNSYLVANIA CONSTITUTION.

(Commonwealth's Brief at 2).

We note at the outset that because Ms. Horner and Ms. Feldbauer were private individuals who were not acting under color of state authority, their non-consensual recording of the appellee's and decedent's conversation was not "state action," and therefore, is not subject to suppression under the exclusionary rule of the United States Constitution's Fourth Amendment prohibition against unreasonable search and seizure or under Article I, Section 8 of the Pennsylvania Constitution. See Commonwealth v. Kean, 382 Pa.Super. 587, 556 A.2d 374, appeal denied, 525 Pa. 596, 575 A.2d 563 (1989); Commonwealth v. Borecky, 277 Pa.Super. 244, 419 A.2d 753 (1980).

The Commonwealth contends in its first issue that the trial court erred in suppressing the tapes under 18 Pa.C.S.A. § 5721. The Commonwealth argues that the fact the appellee may have had expectation that his conversation with his estranged wife was not subject to interception is not conclusive, as the expectation of privacy must also be reasonable. The Commonwealth asserts that because limited portions of the appellee's and decedent's conversations were clearly audible through the naked ear to people standing outside the apartment, the parties lost any reasonable expectation of privacy; thus, their conversations were properly recorded. We disagree.

The focus and purpose of the Wiretapping and Electronic Surveillance Control Act is the protection of privacy. Commonwealth v. DeMarco, 396 Pa.Super. 357, 371, 578 A.2d 942 (1990) (emphasis in original). Section 5703 of the Act sets forth the law concerning the interception, disclosure, or use of wire, electronic, or oral communication as follows.

Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:

(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;

(2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or

(3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.

The statute defines "intercept" as the "aural acquisition or other acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device. 18 Pa.C.S.A. § 5702. See also Commonwealth v. Henlen, 522 Pa. 514, 516, 564 A.2d 905, 906 (1989); Commonwealth v. Kean, supra, 382 Pa.Super. at 597 n. 2, 556 A.2d 374. Accordingly, we find that Ms. Horner's and Ms. Feldbauer's use of an electronic baby monitor and receiver in conjunction with a tape recorder in order to record the conversations of the appellee and the decedent in the apartment to be an interception pursuant to 18 Pa.C.S.A. § 5702 and 5703.

However, the Act provides exceptions to the general prohibitions on the interceptions and disclosure of wire and oral communication. 18 Pa.C.S.A. § 5704(2) permits properly authorized investigative or law enforcement officers to intercept wire or oral communications involving criminal activities. 18 Pa.C.S.A. § 5704(2)(ii) also permits the interception of oral communication by a private individual who is one of the parties to a communication, if that private individual has given their prior consent and the attorney general, district attorney, or their...