Com. v. Whiting

• Decision Date: 09 November 1995
• Citation: 668 A.2d 151,447 Pa.Super. 35
• Parties: COMMONWEALTH of Pennsylvania v. Thomas WHITING, Appellant. COMMONWEALTH of Pennsylvania v. David COOKE, Appellant.
• Court: Pennsylvania Superior Court

Page 151

668 A.2d 151

447 Pa.Super. 35

COMMONWEALTH of Pennsylvania v. Thomas WHITING, Appellant.

COMMONWEALTH of Pennsylvania v. David COOKE, Appellant.

Superior Court of Pennsylvania.

Argued Aug. 7, 1995.

Filed Nov. 9, 1995.

Richard J. Conn, Philadelphia, for Thomas Whiting.

Jean E. Purnell, Philadelphia (Submitted), for David Cooke.

Alan Sacks, Assistant District Attorney, Philadelphia, for the Commonwealth, appellee.

Before ROWLEY, President Judge, and CIRILLO and HOFFMAN, JJ.

HOFFMAN, Judge:

This is a consolidated nunc pro tunc appeal from appellant Thomas Whiting's November 3, 1988 judgment of sentence and from appellant David Cooke's February 9, 1989 judgment of sentence. Appellants raise the following issues for our review:

I. Did the Court err in permitting admission of tape recordings of [appellants] obtained in violation of procedures where ... the surveillance was conducted by a co-conspirator with no effective safeguards to assure reliability of the recordings?

II. Should the Court have suppressed post-indictment statements made by [appellants] where they were obtained by an agent of the Commonwealth in violation of [appellants'] Sixth Amendment rights under the Constitution of the United States and right to counsel under the Constitution of the Commonwealth of Pennsylvania?

III. Did the Court err in refusing to suppress evidence obtained by a Commonwealth Agent, a co-conspirator in the within matter, in the form of tape recorded post-arrest statements by [appellants] where [appellants] had asserted [their] right to refuse to make a statement following warnings pursuant to the Miranda decision?

IV. Did the Court err in refusing to suppress identification evidence obtained as the result of an unnecessarily suggestive pre-trial lineup procedure held despite the objection of [appellant Whiting]?

V. [Were appellants] denied a fair trial due to the Court's limiting the cross-examination of a key defense witness?

VI. Did the Court err in failing to properly instruct the jury pursuant to Commonwealth v. Kloiber?

VII. [Were appellants] denied a fair trial due to the Court's permitting the introduction of statements by a prosecution witness which were hearsay and violated the confrontation clause?

VIII. [Were appellants] denied a fair trial due to the Court's permitting the introduction of hearsay statements and opinion evidence by a police officer concerning the credibility of witnesses?

IX. [Were appellants] denied a fair trial due to the Court's permitting hearsay testimony of a complaining witness concerning instructions and opinions of a police artist?

X. [Were appellants] denied a fair trial due to the Court's overruling defense objections to the testimony of a witness concerning telephone conversations to which he was not a party?

XI. [Was appellant Whiting] denied a fair trial due to the Court's overruling objections to prosecution references to evidence which had not been admitted at trial during summation?

Appellant Whiting's Brief at 4. ¹ For the following reasons, we affirm.

Appellants' convictions arose from two armed robberies. The first robbery occurred on July 5, 1984 at around 8:00 p.m., as Dr. George Becker was closing his dental office for the evening. Appellants entered the office, demanded money, and appellant Whiting threatened Dr. Becker with a sawed-off shotgun. After restraining Dr. Becker, appellants fled with approximately $100. The next day, appellant Whiting entered the office of Edelstein Carpet Company with a sawed-off shotgun and demanded the payroll from William Hird and his secretary. Appellant Cooke guarded the door, and Hugh Keenan, a third perpetrator, was also present. The perpetrators fled with the payroll.

Shortly after the two incidents, appellants absconded to Florida. The third participant, Mr. Keenan, was arrested for an unrelated robbery. Hoping to receive a lenient sentence, Mr. Keenan provided the police with information which led to the arrest of appellants in Florida on November 7, 1984. Mr. Keenan also led the police to Diane Robinson, a co-conspirator who had driven the getaway car after the second robbery. In return for her testimony, Ms. Robinson was granted immunity. Appellants were each charged with two counts of robbery ² and two counts of criminal conspiracy. ³ Appellant Whiting was also charged with possessing an instrument of crime. ⁴

While in jail awaiting trial, appellants repeatedly telephoned Ms. Robinson and threatened her. When Ms. Robinson informed the police of the threats, the police asked her if she would consent to the placing of a recording device on her phone. She and her father, in whose name the phone was listed, agreed and signed a consent form. Thereafter, Ms. Robinson recorded a number of conversations in which appellants implicated themselves in the robberies and threatened Ms. Robinson, in an effort to dissuade her from testifying against them.

On January 22, 1985 and February 19, 1985 appellants filed motions to suppress the tape-recorded conversations, and appellant Whiting filed a motion to suppress an identification based on a lineup. After extensive hearings from March 15, 1985 to July 19, 1985, both motions were denied. Following a six day trial, the jury found appellants guilty of all charges. Post-verdict motions were denied by an en banc panel consisting of the Honorable Marvin R. Halbert, who presided over the pre-trial motions and the trial itself, the Honorable Levy Anderson, and the Honorable Bernard J. Avellino. Thereafter, on November 3, 1988 appellant Whiting was sentenced to thirty (30) to sixty (60) years imprisonment. On February 9, 1989 appellant Cooke was sentenced to fifteen (15) to thirty (30) years imprisonment. Timely appeals were not filed, but the appellants' rights to appeal were eventually reinstated and this consolidated appeal nunc pro tunc is now properly before us.

In their first three issues, appellants assert that the trial court improperly admitted the phone conversations recorded by Ms. Robinson. Specifically, appellants contend that the recordings violated: (1) the Wiretapping and Electronic Surveillance Control Act of 1978; (2) appellants' Sixth Amendment guarantee to assistance of counsel; and (3) appellants' Fifth Amendment right against self-incrimination.

Preliminarily, we note that when reviewing an order entered by the suppression court, we must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Burnside, 425 Pa.Super. 425, 429, 625 A.2d 678, 680 (1993). Where the evidence has not been suppressed, it is our duty to "consider only the evidence for the defense as fairly remains uncontradicted." Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). When evidence supports the trial court's findings of fact, we will not reverse unless the conclusions drawn from those facts are erroneous. Commonwealth v. Quiles, 422 Pa.Super. 153, 156, 619 A.2d 291, 292 (1993) (en banc ).

Appellants first argue that the recordings were made in violation of the Wiretapping and Electronic Surveillance Control Act. The Wiretapping Act provides that: "Any wire, electronic ⁵ or oral communication interception intercepted in accordance with this chapter shall, if practicable, be recorded by tape or other comparable method. The recording shall be done in such a way as will protect it from editing or other alteration." 18 Pa.C.S. § 5714(a). Furthermore, the statute provides that where practicable, a written record should be kept, logging the time, duration, and content of the interception. Id.

In the instant case,

[p]rior to the taping of these calls, Robinson was instructed on how to operate the recording device, and [was] specifically told not to edit or tamper with the tape recorder or the tapes at all. She was also instructed on how to call for the "time and weather," how to document when the call came in....

Trial Court Op., June 28, 1990, at 9-10. Moreover, each time Ms. Robinson received a call from appellants, she contacted the detectives assigned to the case, who would pick up the used tape from her house and replace it with a new tape. Finally, the logging method was as follows: (1) Ms. Robinson phoned for the time and weather at the end of each call; (2) the calls were all collect, and therefore appeared on the phone bill with the specific date and time; and (3) the detectives logged the tapes in a book at the District Attorney's office after picking them up from Ms. Robinson. Under these circumstances, we will not upset the trial court's decision that these consensual recordings were sufficiently protected from alteration or editing and that the logging was adequate. Quiles, supra; 18 Pa.C.S. § 5714. Cf. Commonwealth v. Frank, 357 Pa.Super. 442, 448, 516 A.2d 64, 68 (1986) ("Electronic interception of oral conversations is lawful when accompanied by the consent of one of the parties to the conversation.").

Appellants next argue that the use of the recorded conversations amounted to a denial of their Sixth Amendment right to counsel and their Fifth Amendment right against self-incrimination. We disagree.

Where the government obtains statements after the right to counsel has attached, we must examine whether a defendant's Sixth Amendment right have been violated. See Commonwealth v. Moose, 529 Pa. 218, 225-26, 602 A.2d 1265, 1268-69 (1992). However, we have stated:

"the Sixth Amendment is not violated whenever--by luck or happenstance--the state obtains incriminating statements from the accused after the right to counsel has attached," a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant...