Com. v. Rodriquez

• Decision Date: 17 September 1986
• Parties: COMMONWEALTH of Pennsylvania v. Juan T. RODRIQUEZ, Appellant.
• Court: Pennsylvania Superior Court

Page 27

515 A.2d 27

356 Pa.Super. 543

COMMONWEALTH of Pennsylvania v. Juan T. RODRIQUEZ, Appellant.

Superior Court of Pennsylvania.

Argued April 23, 1986.

Filed Sept. 17, 1986.

Paul W. Kilgore, Lebanon, for appellant.

Before WICKERSHAM, BROSKY and WATKINS, JJ.

WICKERSHAM, Judge:

Juan T. Rodriquez appeals from the judgment of sentence entered against him by the Court of Common Pleas of Lebanon County following his conviction for a violation of the Controlled Substance, Drug, Device and Cosmetic Act. ¹

The evidence, viewed in the light most favorable to the Commonwealth as verdict-winner, disclosed that on August 10, 1983, appellant sold for $25.00 a packet of methamphetamine to Vicki Schauer, an individual who at the time was cooperating with Lebanon County law enforcement agencies by making the purchase while wearing electronic surveillance equipment. As a result of that sale, appellant was subsequently arrested and charged with one count of delivery of methamphetamine, in violation of section 13(a)(30) of the above act.

Appellant filed an omnibus pretrial motion seeking suppression of evidence, claiming that the sale was intercepted in violation of the Wiretapping and Electronic Surveillance Control Act ² and the United States and Pennsylvania Constitutions. He also sought to have the information quashed. On May 10, 1984, following a hearing before the Honorable G. Thomas Gates, P.J., appellant's motion was dismissed. Appellant's trial by jury on May 14-15, 1984 resulted in a verdict of guilty. Timely post-trial and supplemental post-trial motions were filed and denied. On July 3, 1985, appellant was sentenced to a term of imprisonment of four (4) to eight (8) years, plus payment of a $100.00 fine, costs, and restitution. This appeal timely followed.

Appellant raises nine issues for our consideration:

I. Did the Commonwealth fail to comply with the "Wiretapping and Electronic Surveillance Control Act" as to securing approval of consensual surveillance under section 5704?

II. Was the alleged consent of Vickie [sic] Schauer to participate in the electronic interception of oral communications the product of undue official coercion and inducement in violation of the "Wiretapping and Electronic Surveillance Act"?

III. Was the interception of communications of appellant made in violation of appellant's rights under [the] fourth amendment to the United States Constitution and article I, section 8 of the Pennsylvania Constitution?

IV. Does use of the content of the interception of communications of appellant violate appellant's right against self-incrimination afforded by the fifth amendment of the United States Constitution and article I, section 9 of the Pennsylvania Constitution?

V. Should the methamphetamine allegedly sold by appellant be suppressed under the exclusionary rule?

[VI. Was the defendant's arrest illegal?]

VII. Did the trial court err in allowing the jury to read an alleged transcript of the taped conversation while listening to the tape?

VIII. Did the trial court err by refusing to allow cross examination of the Commonwealth's chief witness as to [for] whom she would purchase drugs?

IX. Is the verdict contrary to the evidence, the weight of evidence, contrary to law, and/or is the evidence insufficient to sustain the verdict?

Brief for Appellant at 2-3. ³

After careful review of the record, the briefs of the parties, and the applicable law, we conclude that the opinion of Judge Gates, dated June 5, 1985, correctly and adequately addresses the last three issues and we see no need to discuss them further.

The first six issues all involve attacks on the ruling of the suppression court; these issues were raised in appellant's omnibus pretrial motion, and were rejected by the suppression court. "The appropriate standard for appellate review of the finding of a suppression court is for the appellate court to consider the evidence of the Commonwealth and so much of the defense evidence as fairly read in context of the record as a whole, remains uncontradicted." Commonwealth v. Duffy, --- Pa.Super. ----, ----, 512 A.2d 1253, 1255 (1986).

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). See also Commonwealth v. Whitney, --- Pa. ----, 512 A.2d 1152 (1986).

Appellant's basic contention is that the Commonwealth failed to comply with the Wiretapping and Electronic Surveillance Control Act [hereinafter "Wiretap Act"], and because of that failure, the contents of any intercepted conversations, all testimony as to what transpired, and the methamphetamine should have been suppressed. Appellant's first argument is that the Commonwealth failed to comply with section 5704(2)(ii) of the Wiretap Act. Section 5704(2)(ii) provides an exception to the general prohibition against interception of wire or oral communications:

§ 5704. Exceptions to prohibition on interception and disclosure of communications

It shall not be unlawful under this chapter for:

(1) ...

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:

(i) such officer or person is a party to the communication; or (ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

18 Pa.C.S. § 5704(2). Appellant contends that the district attorney failed to review any facts as to suspected future criminal activity of appellant, as required by section 5704(2)(ii). We are not persuaded by appellant's contention.

In order for law enforcement officers to use a civilian informant to intercept or record a conversation or transaction, they must secure the approval of the Attorney General or the district attorney, or their designated assistants. Here, that approval was secured. District Attorney Feeman testified that he received a written request for such approval on July 25, 1983, and gave his approval on August 10, 1983 in the form of a signed written memorandum. Copies of both writings were admitted at the suppression hearing and at trial. ⁴ The record also indicates that District Attorney Feeman, while reviewing the written request for approval, discussed it in detail with the county detective and the proposed informant.

There is no requirement in consensual cases that the target be identified or that probable cause to intercept a particular communication exist. Compare 18 Pa.C.S. § 5712(a)(2). All that is required is that the informant acts consensually, that his or her consent is voluntary, and that the informant acts under the direction of an investigative or law enforcement officer to intercept oral communications involving suspected criminal activities. The identity of the target is not required, but we note in this case that in the written request for approval, a Juan C. Rodriquez of Lebanon Village was listed as a target. While appellant's middle initial was incorrectly listed, he in fact testified at the suppression hearing that he was the only Juan Rodriquez who lived at that address.

Second, appellant contends that the informant's alleged consent to the interception of conversations between herself and appellant was a product of undue official coercion and inducement, and thus not voluntarily given as required by section 5704(2) of the Wiretap Act. We are not persuaded by appellant's argument in this regard either.

District Attorney Feeman interviewed the informant specifically to determine if her consent was voluntary. Aware that there was a pending drug charge against the informant in that county, ⁵ Mr. Feeman quizzed her thoroughly on whether anyone from a local or state law enforcement agency had ever made any promises, threats, or representations to her to induce her cooperation in the instant case. She answered negatively to all such questions. Mr. Feeman told her that her cooperation would be brought to the court's attention at the time she was sentenced, but the district attorney's office would make no further promises. The informant also testified that her consent was voluntary, that no one had promised, threatened, or made representations to her, other than the above statement by Mr. Feeman, concerning her cooperation in the wiretap.

Although her avowed reason for contacting the police department--because she felt there was too much drug trafficking and young children were starting to get involved in it--is somewhat unusual considering her admitted purchases of drugs prior to the instant...