Com. v. Sears
| Citation | 616 A.2d 10,420 Pa.Super. 123 |
| Parties | COMMONWEALTH of Pennsylvania v. Robert J. SEARS, Appellant. |
| Decision Date | 06 November 1992 |
| Court | Superior Court of Pennsylvania |
Ronald A. Turo, Carlisle, for appellant.
Alison Taylor, Asst. Dist. Atty., Carlisle, for Com., appellee.
Before TAMILIA, JOHNSON and HESTER, JJ.
Robert Sears takes this appeal from judgment of sentence imposed February 11, 1992. Following a nonjury trial, appellant was found guilty of involuntary deviate sexual intercourse 1 and corruption of minors, 2 and subsequently sentenced to a total term of six (6) to twelve (12) years imprisonment.
The facts of this case, as found by the suppression court, are as follows.
United States Postal Inspector, Thomas Kochman, received information from the Lancaster County District Attorney in April, 1990, that defendant, Robert J. Sears, had been investigated for possible criminal violations involving minors. The District Attorney had information from a juvenile informant that defendant had showed him pictures of naked boys. The District Attorney also knew that Sears had a record in the State of Florida for child molestation. This information was relayed to the Postal Inspector since defendant had moved from Lancaster to Mechanicsburg, Cumberland County.
In April, 1990, Inspector Kochman commenced a Federal investigation of Sears' activities regarding children. He sent defendant the following letter:
I really don't know how to start this letter. Maybe I'm making a mistake. I found your name in a box of magazines that I found in the attic in his (my uncle's) house. I sent this letter to an address in Lancaster but they sent it back saying you moved with your new address. I hope you're still there. If I'm right I think we may have a lot of likes in common when it comes to our private lives. If you don't know what I'm talking about please destroy this letter. I might be out on a wrong limb. I hope I will hear from you in the future.
Defendant responded to this letter and two other letters that Inspector Kochman wrote to him. In these letters, defendant, inter alia, provided information as to his sexuality. In the last letter received by Inspector Kochman on June 6, 1990, defendant stated that he would be on vacation from June 13 to 21, and would "have an 8 yr. old for the week."
Inspector Kochman enlisted the assistance of Special Agent, Dennis Guzy, of the Office of the Attorney General of Pennsylvania, Child Abuse Prosecution Assistance Unit, to act in an undercover capacity. Because he was concerned that defendant had indicated he would have an eight-year-old boy staying with him as of June 13, Inspector Kochman obtained approval from a United States Attorney, and the Chief Postal Inspector, to utilize a consent interception of Agent Guzy calling defendant and posing as the letter writer. The telephone call was made on June 12. Part of the recorded conversation is set forth in an affidavit for a search warrant issued on June 13, 1990, for the search of defendant's residence. The warrant was obtained on the affidavit of Chief Rodney Whitcomb, of Mechanicsburg, relating the information he had received from Special Agent Dennis Guzy, as follows:
On June 7, 1990, Special Agent Guzy met with Postal Inspector Thomas Kochman, United States Postal Inspection Service, who stated that, pursuant to his duties as a child pornography specialist, he did review an investigation regarding Robert Sears, white male, current residence 203 East Main Street, Mechanicsburg, Cumberland County, Pennsylvania 17055.
Pursuant to that review, Kochman, in an undercover capacity, did, via U.S. Mail, contact Sears on April 24, 1990. An exchange of correspondence occurred between Kochman and Sears, in which Sears indicated he did have contact with an eight-year-old male named "Bobby". Furthermore, Sears indicated that this juvenile would be residing with him beginning June 14, 1990.
On June 8, 1990, Special Agent Guzy did receive information from Detective John Barwick, Sex Crimes Unit, Duvall County Sheriff's Office, that Sears had a series of arrests stemming from sexual contact with a seven-year-old juvenile male, an eight-year-old juvenile male, and a fifteen-year-old juvenile male. Additionally, information was received from Detective Barwick that Sears was convicted of child fondling, lasciviousness, and indecent assault on December 17, 1980, regarding the fifteen-year-old juvenile male. The remaining cases, relating to the seven-year-old male and the eight-year-old juvenile males, were dropped in consideration of the ages of the children.
On June 12, 1990, Special Agent Guzy, utilizing electronic surveillance equipment, administered by Inspector Kochman with the necessary approval, did telephonically contact Sears. At that time, Sears admitted to currently having an eight-year-old juvenile male named "Bobby" living with him. He further admitted deviate sexual contact with this juvenile male. Sears further stated he had a locked facility where he keeps pornographic material.
On June 13, Agency Guzy, while wearing a consent body wire that was also approved by the United States Attorney and the Chief Postal Inspector, and posing as the person who had written the three letters to defendant and who had talked to him on the telephone on June 12, went to defendant's residence. Defendant had the juvenile at the house, and after some conversation, offered the boy to Agent Guzy for the purposes of engaging in sexual acts. At that point, Agent Guzy signaled Agent Kochman, Chief Whitcomb, and another Mechanicsburg police officer who were waiting outside. They entered the house, and Chief Whitcomb arrested defendant on the current charges.
(Slip Op., Bayley, J., 6/6/91, pp. 1-4.) 3
The sole issue presented in this appeal is whether the trial court erred, as a matter of law, in allowing the Commonwealth to present testimony based on a federal consensual wiretap, where the Commonwealth failed to follow the strict procedures and requirements of the Pennsylvania Wiretap Act, by obtaining a court Order or prior approval of the Attorney General of Pennsylvania or the District Attorney of Cumberland County.
The Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq., provides, in pertinent part:
It shall not be unlawful under this chapter for:
. . . . .
(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, electronic or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communications; 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...
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