Com. v. Proetto

• Citation: 771 A.2d 823,2001 PA Super 95
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert D. PROETTO, Appellant.
• Decision Date: 28 March 2001
• Court: Superior Court of Pennsylvania

771 A.2d 823

2001 PA Super 95

COMMONWEALTH of Pennsylvania, Appellee, v. Robert D. PROETTO, Appellant.

Superior Court of Pennsylvania.

Argued October 24, 2000.

Filed March 28, 2001.

Tommaso V. Lonardo, Allentown, for appellant.

Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Before DEL SOLE, JOHNSON and BECK, JJ.

DEL SOLE, J.:

¶ 1 Appellant, Robert Proetto, was convicted of criminal solicitation, obscene and other sexual materials and performances, and corruption of minors. After his sentencing, Appellant filed this appeal. After reviewing the record and briefs, and the applicable statutory and constitutional law, we affirm.

¶ 2 Appellant, while a police officer, was arrested for criminal solicitation, dissemination of obscene materials and corruption of minors. These charges stemmed from his communications with a 15-year-old girl over the Internet.

¶ 3 The 15-year-old complainant, "E.E.," was connected to the Internet and while on the Internet was using the screen name "Ellynn." She was in a public chat room when she began receiving private chat messages from Appellant, who was using the screen name "CR907." While in this public chat room, E.E. was invited to enter a private chat room and converse "real time" with the person using the name "CR907." Appellant informed E.E. that he was a police officer working for the Colonial Regional Police Department and e-mailed her a picture of him in police uniform, telling her 907 was his badge number. E.E. informed Appellant that she was 15 years of age. Logs, printed hard copies of their on-line conversations, reflect that Appellant asked E.E. to videotape herself in the nude masturbating with her legs spread. Appellant also expressed interest in performing numerous sexual acts with her. While making these comments, Appellant stated that he had to be careful because E .E. was only 15 years old. Subsequently, Appellant transmitted to E.E. via e-mail a file containing a photograph of his erect penis.

¶ 4 During the next week, E.E. and Appellant chatted several more times. During these chats, Appellant made explicit remarks and repeatedly expressed his desire to talk on the telephone, meet, and engage in sexual acts with this 15-year-old girl. After each chat with CR907, E.E. logged, or saved, the Internet chat messages.

¶ 5 Shortly thereafter, E.E. reported these incidents to the Bristol Borough Police Department. Detective Randy Morris was assigned to investigate the charges. E.E. gave Detective Morris a diskette containing logs of the chat dialogues, e-mail messages and the two photographs Appellant had e-mailed to her. Detective Morris instructed E.E. to cease all communication with Appellant, but to page him the next time that Appellant was observed online. ¶ 6 A few days later, E.E. contacted Detective Morris when she saw CR907 in another public chat room. Detective Morris entered the chat room using the screen name "Kelly15F" and initiated conversation with Appellant. During that chat, Appellant wrote to Kelly15F that he would not mind kissing a 15-year-old as long as she would not tell anybody. He also suggested she make a nude videotape of herself in exchange for his sending her nude photographs of himself. Detective Morris made a log of the chat. The next day the matter was referred to the Bucks County District Attorney's Office and Appellant was subsequently arrested.

¶ 7 Appellant was charged with committing Criminal Solicitation,¹ Obscene and Other Sexual Materials and Performances,² and Corruption of Minors.³

¶ 8 Appellant filed an omnibus pre-trial motion requesting various pre-trial relief, including the suppression of evidence and statements. Appellant sought to suppress the communications and pictures sent to E.E. and Kelly15F via e-mail and chat rooms. Appellant asserted that the e-mail and chat messages were intercepted in violation of the Pennsylvania Wiretap Act, Article I Section 8 of the Constitution of the Commonwealth of Pennsylvania, the Fourth Amendment of the United States Constitution and the Pennsylvania Rules of Criminal Procedure.⁴ A pre-trial hearing was held and the trial court denied Appellant's motions to suppress. After a nonjury trial, Appellant was sentenced to a term of six months to twenty-three months, and placed on intermediate punishment with the first six months to be served on house arrest. This appeal was timely filed.

¶ 9 On appeal, Appellant presents the following questions:

I. Did the lower court err, when it admitted evidence seized by the Commonwealth without prior court approval consisting of private Internet chat communications?

II. Did the lower court err, when it failed to impose constitutional protection to communication conducted on a computer connected to the Internet through telephone lines?

III. Did the lower court err, in failing to rule that,[sic] interceptions of private computer chat communications violate the Pennsylvania Wiretap Act, when done without prior authorization?

IV. Did the lower court err, in failing to suppress the alleged statements of the Appellant? V. Did the lower court err, in finding that the evidence was sufficient as a matter of law to convict the Appellant beyond a reasonable doubt?

Appellant's Brief at 3

Whether the trial court erred in failing to suppress the electronically transmitted communications sent by Appellant.

¶ 10 The first four questions presented by Appellant involve the same substantive issue. The sum of the issues is whether the trial court erred in failing to suppress the electronically transmitted communications of Appellant, on grounds that such statements were obtained by means violative of the Pennsylvania Wiretap Act and/or Appellant's constitutional rights. These issues present a case of first impression in this jurisdiction. These issues will be addressed simultaneously.

¶ 11 In reviewing a trial court's denial of a motion to suppress, the appellate court's responsibility is to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993).

¶ 12 There are two distinct categories of electronic communications involved in this case. First are those received by E .E. from Appellant and then forwarded to Detective Morris by E.E. Second are those statements received by Detective Morris directly from Appellant, while Detective Morris was using the moniker "Kelly15F." We will address each category separately.

1. Communications received by E.E. and subsequently forwarded to Detective Morris.

¶ 13 With regard to the first set of communications, the Pennsylvania Wiretapping and Electronic Surveillance Control Act is not applicable.

¶ 14 Section 5703 of the Act provides:

§ 5703. Interception, disclosure or use of wire, electronic or oral communications

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.

18 Pa.C.S.A. § 5703.

¶ 15 For an action to be in violation of the Act, the statements must have been "intercepted". The Act defines "intercept" as:

"Intercept." Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device. The term shall include the point at which the contents of the communication are monitored by investigative or law enforcement officers.

18 Pa.C.S.A. § 5702.

¶ 16 The communications at issue in this case were not intercepted. The messages were sent directly to E.E. After receiving these communications, E.E. subsequently forwarded the messages to Detective Morris. The acquisition of the communications was not contemporaneous with their transmission. The reasoning of the Fifth Circuit in United States v. Turk, 526 F.2d 654 (5th Cir.1976), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976), is both persuasive and instructive. In Turk, the Fifth Circuit interpreted the term "interception" in the context of the Federal Wiretap Act, as amended by the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510-2521, 18 U.S.C. §§ 2701-2711, which in pertinent part is identical to the Pennsylvania Wiretapping and Electronic Surveillance Act. See 18 U.S.C. § 2510(4); 18 Pa.C.S.A. § 5702 (definition of "interception"). The Fifth Circuit held that the Secret Service did not intercept certain communications, because the acquisition of the contents of those communications was not contemporaneous with their transmission. Id. at 658-659. In other words, when the conversation took place, it was not recorded contemporaneously by the government. Id. Accordingly, the Fifth Circuit held that an intercept "requires participation by the one charged with an `interception' in the contemporaneous acquisition of the communication through the use of the device." Id. at 658. While this case is not binding on this Court, we agree with the interpretation of "intercept" as set forth in Turk, as it applies to electronic communications.

¶ 17 In this case, there was no contemporaneous acquisition of the communication. Rather, E.E. received the communication and...