*1 tive to conclude that the Appellant may but have been response. the court’s prejudiced Accordingly, we must judgment vacate the of sentence and remand this matter to of Philadelphia the Court Common Pleas for a County sentencing hearing. new
It is so ordered.4
LARSEN, J., concurs in the result.
v. Publishing Company, Thom LOVERRO and Easton Preate, Jr., General, Attorney Ernest D. Intervenor.
Supreme Pennsylvania. Court of 2,
Reargued April
1990.
14,
Decided March
1991.
Dissenting
26,
Opinion March
Appellant
Penalty
4. The
also asserts that the Death
Statute is unconsti-
imposition
penalty
tutional since it mandates the
if the
of the death
aggravating
outweigh any mitigating
circumstances
circumstances.
Yards,
supra,
argument
has no merit. See Commonwealth v.
This
DeHart,
(1986)
Commonwealth v.
Commonwealth v.
512 Pa.
Ronald W. for Shipman, Thom Loverro. Cordts,
April Easton, L. for Easton Pub. Co. Preate, Jr., Gen., Ernest D. Atty. Graci, Chief, A. Robert Gen., Deputy Atty. Sarcione, Anthony Deputy Executive Gen., Atty. for Intervenor. Klein, Hatton,
Samuel E. Katherine Little, Laura Phil- E. adelphia, Philadelphia Inquirer, Philadelphia Amicus— News, et Daily al. Wallace, Langer,
Michele Teresa A. Philadelphia, for Ami- Newspaper Assoc., cus—American Publishers et al. NIX, C.J., FLAHERTY, Before ZAPPALA, CAPPY, PAPADAKOS JJ.
OPINION NIX, Chief Justice.
Judgment
case,
in this
Loverro,
v.
521 Pa.
(1989,
On
Pennsylvania
November
State Police
wiretap permit
obtained a
from the Attorney
pursu-
General
5704(2)(ii)1
ant to section
of the Wiretapping and Electronic
Exceptions
prohibition
interception
§
1.
5704.
on
and disclosure
of communications
chapter
shall
It
not be unlawful under this
for:
ment officer to
suspected criminal activities where:
acting
(2) Any investigative
at the direction or
intercept
[******]
or law enforcement officer or
request
a wire or oral communication
of an
investigative
or law enforce-
any person
involving
consent to such
(ii)
one of the
interception.
[******]
parties
to the communication has
However,
no
interception
given prior
under this
et
5701,
Act”),
(“the
18 Pa.C.S.
Act
Control
Surveillance
intercepted
Police
thereafter,
the State
seq.2
Shortly
and a con-
appellant
conversation between
telephone
intercepted
con-
individual,
Dickerson.
senting
Wayne
illegal gam-
appellant’s involvement
revealed
versation
The appellant
college
games.
on
football
activities
bling
pool selling
bookmaking,
charged with
subsequently
for trial on
being held over
After
conspiracy.
and
under Pa.
letter
discovery by
charges, appellant requested
compel
filed a motion to
305,
subsequently
R.Crim.P.
and
a rule to show cause
an order and
together with
discovery,
he
a tran-
demanding
produce
Attorney,
the District
upon
office
Attorney’s
call. The District
intercepted
of the
script
to the
transcript
copy
and attached
complied
Courts,
Division.3
Criminal
filed with the Clerk
response
Suppress. Section
Thereafter,
filed a Motion to
appellant
suppress.
motions to
Act4 authorizes
5721 of the
Attorney
deputy
General or a
paragraph
be made unless the
shall
General,
Attorney
designated writing by
...
attorney general
voluntary
that the consent
reviewed the facts and is satisfied
has
and has
interception
interception;
given prior approval
however such
for the
keeping
subject
recording
record
to the
shall
5714(a) (relating
recording
intercepted
requirements of section
General,
communications)
deputy attorney
Attorney
that the
attorney authorizing
attorney
general,
or assistant district
district
interception
of recorded evidence ob-
shall be the custodian
tained therefrom.
21,
surveillance act was amended on October
2. The entire electronic
However,
1988,
changes
instituted.
because the
after this lawsuit was
not bear
the merits of the instant
effected
appeal,
the Amendment do
they appeared
are cited as
the sections herein
of trial.
time
majority
v.
of this Court in
The lower courts and the
Loverro,
(1989),
/”),
("Boettger
character-
521 Pa.
Publication was withheld the issuance of the which, 31, 1982, March court order dated denied the Motion 7, 1982, Suppress. April On editor managing ap- article, proved publication; including excerpts from the wiretap transcripts, published. Subsequently appellant was nolo contendere to the Boettger pled charges, was convict- ed and sentenced to a fine. 13, 1982,
On filed April against a civil action grounds: Loverro and Easton on two common tort law communication, any intercepted wire or oral or evidence derived therefrom, following grounds: on (1) (2) unlawfully intercepted. The communication was required The order of authorization if The is insufficient on its face. (3) interception unless made in accordance with section 5704 (relating exceptions prohibition interception on and disclosure communications) conformity of authorization or in accordance with the was not made in with the order of requirements of section effect). (relating to issuance of order and (b) days Procedure. —The motion shall be made at least ten trial, hearing, adversary proceeding before the was no not aware of the are to be heard in a or other unless there opportunity moving party to make the motion or the grounds for the motion. Motions co-indictees court, single hearing. consolidated filing aggrieved person, of such motion shall make aggrieved person intercepted available to the or his counsel the communication and evidence derived therefrom. granted, If the motion is intercepted the entire contents of all wire or oral communi- during any interception cations obtained mined to be in violation or after which is deter- (a) chapter under subsection of this therefrom, evidence derived shall not received evidence in the trial, hearing adversary proceeding. or other
515 created section by civil action and the invasion publication was alleged that It was of the Act.5 During 5703.6 of section provisions violation law tort action the common of September, proceedings as a defendant. The dropped and Loverro withdrawn was liability as to directed a verdict trial court Ea- 5725(a) ruling its based section pursuant The jury the statute. by unauthorized disclosure was ston’s (the $1,000.00 statu- damages “actual” returned a verdict $17,409.43 attor- minimum), damages and punitive no tory non obstante judgment Motions for fees and costs. ney’s interception, disclosure or use for unlawful 5. 5725. Civil action § wire, or oral communication electronic Any person whose wire or oral communi- (a) Cause of Action.— chapter of this intercepted, disclosed or used in violation is cation shall have a civil cause discloses or uses or or any any intercepts, against person who of action intercept, procures any person disclose other communication; use, from and shall be entitled to recover such person: such comput- (1) liquidated damages day damages, not less than Actual but violation, $1,000, day for each or $100 rate of ed higher. whichever is (2) (3) damages. Punitive litigation attorney’s costs reason- fee and other A reasonable ably incurred. Com- sovereign immunity. the extent that the (b) Waiver of —To officers, employees any or would be of its officials monwealth liability doctrine of sover- under this section shielded from eign immunity, purposes immunity hereby for the is waived such this section. brought pursuant to (c) is a defense to an action Defense.—It (a) good faith reliance on a court that the actor acted in subsection order or the chapter. provisions of this Interception, or oral communi- disclosure or use of wire 6. 5703. cations person guilty provided degree chapter, a Except in this as otherwise felony if he: of the third the contents of rived communication; or oral having mation (3) (2) willfully willfully interception of a wire or oral communication. communications, therefrom, knowing reason to discloses uses or obtained any [******] know, wire or oral endeavors to use the contents or endeavors through or evidence derived that the or having information was obtained communication, interception to disclose reason to know therefrom, of a wire any or evidence that the infor- other knowing or through wire or oral person de- veredicto and for a new trial were denied trial judge as the court sitting en on banc March appeal Superior Court, On judgment of the trial *6 court was reversed and judgment entered for Easton by a panel, one three-judge judge concurring.
Boettger’s appeal allowance of granted was and this Court reversed the Superior Court. Petition for Certiorari was filed by Easton in the United States where, Supreme stated, Court as previously our judgment and the vacated matter remanded for further consider- ation in light Florida Star. In that case a newspaper, The Florida published its “Police Reports” section a account of a robbery brief and sexual assault. The account included the name of the victim. The story news was based a upon police report (copied by reporter-trainee) verbatim a had placed been in the press room of the Sheriffs Department. press Access to the reports room and made available therein were not restricted. A Florida statute makes it a misdemeanor of the second degree “print, publish or broadcast ... in any instrument of mass commu- nication” the name of the victim of sexual offense.7 newspaper The had an policy against internal publishing the names of sexual offense victims. victim,
The B.J.F., identified only sued the Sheriffs Department newspaper civilly negligent viola- tion of the criminal statute. The Department settled with $2,500. B.J.F. for The defended on newspaper grounds that imposing civil sanctions under the question statute in violated the First Amendment and that its publication of BJ.F.’s name was inadvertent. The trial court ruled the statute was constitutional and directed a on the verdict issue of negligence, finding newspaper negligent se. per $75,000 The jury $25,- awarded compensatory damages 000 in punitive damages.
An intermediate appellate court affirmed the trial court and the Supreme Court of Florida declined review. (1987). 7. Florida Stat. 794.03 Supreme Court the United appealed
Florida Star
newspaper publishes
which held that “where a
truth-
States
obtained,
lawfully
punishment
it has
ful information which
all,
imposed,
only
narrowly
if at
when
lawfully may
order____” 491
the highest
a
interest
tailored to state
added.) The
(Emphasis
at 2613.
109 S.Ct.
U.S.
pursu-
civilly
The Florida Star
liable
holding
conclusion
violated
First Amend-
Florida criminal statute
ant
the limited First Amend-
ment was reached
reliance
Publishing
Mail
principle
Daily
ment
set forth
Smith v.
(1979), in a
2667,
518 those interests was too precipitous and extreme to come Daily Mail within principle a “need” to use the a) means employed the government had, because: and use, failed to more limited means of deterring dissemination than the extremity of punishing b) truthful speech; negligence per se standard of the broad; civil action was too c) the Florida statute facially underinclusive.
II.
begin
We
our re-examination of the Act mindful of the
of teachings
and the principle that “when the
validity
an act
is
in question,
...
drawn
and even if a
serious
raised,
doubt
constitutionality
...
will
[we]
first ascertain whether a construction of the statute is
fairly possible
question
which
may be avoided.”
Ashwander v. Tennessee Valley
Authority,
297 U.S.
466, 483,
56 S.Ct.
(1936) (Mr.
Pa.C.S. § recordings of the inter- interceptions contents of of the of a court order is found by way obtained ceptions requiring The of section 5715 language section 5714.9 reports, granted pursu- final orders sealing applications, Act, and monitor’s records supporting papers to the ant of recorded inter- “transcriptions include explicitly does interest palpably The Act reveals the state’s ceptions.” illegal and invasions of citizens from abusive protecting its states: 9. 18 Pa.C.S. 5714 Recording intercepted communications § 5714. monitoring. Any communica- (a) Recording wire or oral — shall, chapter practicable, intercepted if tion in accordance with this recording comparable by tape method. The be recorded or other editing way protect or other such as will it from shall be done in a monitored, being interception the moni- Whenever an alteration. investigative or law enforcement officer certified tor shall be an practicable, (relating training), and where under section 5724 keep following: signed, written record which shall include the (1) The and hours of surveillance. date (2) intercepted The time and duration of each communication. known, (3) intercepted participant, conversation. The if each (4) summary intercepted of the content of each communication. A expiration recordings. Immediately upon (b) Sealing — records, thereof, the order or extensions or renewals tapes all monitor’s judge issuing recordings to the and other shall be transferred Custody tapes, of the or the order and sealed under his direction. recordings shall be maintained wherever the court directs. other
They destroyed except upon of the court and shall not be an order tapes, kept years. Duplicate or other in recordings may event shall be for ten pursuant section be made for disclosure or use (relating or use of contents of wire or oral 5717 communications or derivative to disclosure evidence). presence of the seal section, satisfactory explanation provided for its ab- this sence, prerequisite of the contents of shall be a for the disclosure communication, therefrom, any wire or oral or evidence derived 5717(b). under disclosure to law enforcement section [Authorizes proceedings.] testimony officers and in in criminal Intervenor, Attorney Pennsylvania, asserts the tran- General ground scription required to be sealed on the in this case was not sealing transcripts intercep- Attorney there are no mechanisms in the Act for tions authorized under section Attorney District General or the case, 5704(2)(ii). of the Because of our resolution here, attorney propriety of the actions of the assistant district bring applicability play question of section would is not a determinative factor. applicability into of the We, therefore, question leave the authorizations, papers, supporting to the section 5715 *9 giving their while law enforcement a needed tool.11 of or oral interception Unauthorized wire communications or of the of improper interceptions disclosure contents are degree.12 felonies of the third liability Strict a civil action for unlawful or use interception, provided.13 disclosure
Since the Act neither explicit exception makes nor autho- publication rization under by circumstances of press of contents wiretap transcriptions, avoid- ance of a clash between First Amendment and privacy rights undergirds the remand of this case for reconsidera- Star. light tion in of find We Easton is not liable. we Initially recognize transcripts this case do not fall within the category transcription recordation interceptions protected First, intended to be Act. by the when attorney copy the assistant district filed a of the interceptions pursuant records
monitor’s section and contents of obtained to 5704(2)(ii) day. to another Representatives pending passage 11. The in the debate House of the following Act included the remarks: Representative Speaker State Rhodes: "Mr. we have reached a point question providing adequate investiga- historical tive and general with the prosecutorial prosecutors attorney tools to our our and Pennsylvania problems organized to deal with corruption. wiretapping eavesdropping leg- crime and official This today we position islation send to the Senate must be in a to be adopted legisla- concurrence in the if we are Senate to meet tive deadlines the House and the Senate face at this late date in legislation. the session. This is critical I think the amendment properly offered Mr. Scirica restores balance that we think give proper wiretapping-eavesdropping must be in our statute to ability Pennsylvania law enforcement and at the same time not expose unjust improper the citizens of this Commonwealth privacy. strongly urge membership invasions of their support Mr. Scirica’s amendment.” 21, 1978, Legislative Representatives, September Journal —House of p. 3146. Scirica, Representative co-sponsor prime proponent State bill, stated: "Many organized operate of the businesses in crime behind a protective only by wiretap penetrated authority.” shield that can 21, 1978, Legislative Representatives, September p. Journal —House 5, supra. 12. See note 4, supra.
13. See note Division, Courts, Criminal with the Clerk transcript domain, of whether or irrespective in the public went *10 inadver- attorney district was assistant the action of the office in the clerk’s transcription the lodging The of tent.14 disclosure made it restricting access or with no notations official, law enforcement The intent of the record. public person an brought aggrieved by to an action while relevant or official for public officer a law enforcement against 5726,15 section or under employment from office removal in being public from the transcript the prevent does not record thereafter. Florida public of domain as a matter 2612. It is to be 491 U.S. at made, motion was Boettger’s discovery Mr. noted that when not, been, accompanied by request it could have but placed to be under seal. response for the Commonwealth’s in the information the Second, it said that cannot be intended to fell the class of conversations transcripts within highest order. a state interest protected by show, story in the news tapes printed from the excerpts alia, college on football gambling discussions about inter permitted Mr. Dickinson would be and whether games Mr. Boettger. his given continue to bet indebtedness sought of conversation to be type This is precisely attorney his actions here were testified that 14. The assistant district pp county discovery requests practice when are made. N.T. the 212, in his General, Attorney practice According it is standard to the 213. interceptions transcripts of made under to seal this state General, 5704(2)(ii). Attorney p. 19. Brief § employment from office or Action for removal 5726. right (a) Any aggrieved person shall have the Cause action. — against investigative bring an action in Commonwealth Court officer, public employee public or official or law enforcement officer’s, employee’s from office or seeking or removal officials officer, employee or employment grounds official on the that chapter. intentionally provisions of this If the violated the has officer, employee or has that such official court shall conclude chapter, provisions this the court intentionally fact violated officer, of said removal from office shall order the dismissal or employee. official brought pursuant (b) to an action Defense.—It is a defense (a) good court faith reliance on a that the actor acted in subsection chapter. provisions of this order or the uncovered authorized interceptions Act. The state’s interest our protecting right citizens’ to does not “right extend to protecting to privacy” in illegal endeavors. In a debate in House Representatives over the adoption an amendment seeking to eliminate mandatory cooperation telephone companies, the follow- ing concern ability about law enforcement authorities to trace intercepted conversations criminal activities was vigorously expressed: BRUNNER,
Mr. Mr. Speaker, maybe this is not respon- question, sive to it is your my but judgment that at the time, present law, under the present if one party to the consents, agency conversation can monitor that phone call. You do can today, they do it the cases of telephone obscene long calls. As party one consents to *11 monitoring, the this can done.
Mr. I am I WAGNER. not sure. do think not that can be done a criminal prosecution on that. At any hope rate —and I Mr. is Scirica and can listening answer this I am when finished—this is my concern: The kidnap- ping a unique problem, raises but I am concerned about I blackmail; am extortion; concerned about I am con- racket; cerned the about numbers and I am concerned about drug smuggling. you When are in the numbers racket, you when are in drug smuggling, person who is people involved does not call up say, and hey, do you want gamble tonight’s or, to on race I hey, have got 10 pounds He does not heroin. do that. He is at one of location, he only and handles It incoming calls. will do no accept While the Court is not to bound the statements made in debates, may legislative history floor held the aspect we look at the and floor debates during passage only guides the consideration and of the Act as to legislative ambiguous opaque intent in our clarification of this Unquestionably starting point statutory of the statute. However, always language construction is of the statute. a when "may statute a ascertaining is unclear court embark the task legislature Act, by reviewing necessity the intent of the attained, object to be under circumstances which it was enacted and 1921(c).” Coretsky mischief to be remedied. 1 Pa.C.S. v. Board 513, 517-18, Township, Commissioners Butler 520 Pa. 555 A.2d of 72, (1989). to is to the enforcement know what good people law not to know if someone is being They sold. do want pounds so or so It selling many kilos narcotics. many They difference to them. have to know does make a I do coming are from. not think the where calls important are as as the contents the conversation crimes, In types you a lot of would have source. I your know the of them. think with amendment source tool. we would lose this In I response, just my
Mr. BRUNNER. would that say places on an individual’s certainly premium amendment that, I believe, right But more than privacy. ratio, earlier, the way out the cost-benefit the bill pointed written, does not the inclusion of the presently justify is place amendment would present language. My simply with perspective, particularly this whole matter back to the benefit that the regard regard cost and with addition, course, provide, in present language would right talking about. we are Speaker. Thank Mr. you, MR. WAGNER. I do not Speaker,
Mr. I am not of the cost. aware I do not equipment. Quite understand frankly, electronic you dealing care costs are. are really what the When racket are with you dealing with numbers narcotics, coming to know are you have where the calls they saying. from. It little to know what are very does being know is tap phone; You what you It obvious. being telephone; said. are over the exchanged Numbers *12 being are deliveries are being placed; orders drugs for made; it is You know where the calls up. all set have to coming are from. amendment, if are go along you
I think with the you from enforce- going seriously away to take this tool law ment, added.) (Emphasis aside from the cost. Legislative Representatives September Journal-House of pp. 3150-51. 1978, 21,
Third, motion suppress the effect of the of the to denial protection remove intended officially any arguably 524 5721(b)17 transcript by
of the
the Act. Section
details the
be used
a motion
procedure
suppress
when
has been
on
glaringly
filed.
It is
silent
the effect of a denial of a
suppress motion to
the obvious reason
that
evidence
gained
if not
will
interception,
suppressed,
be used in
judicial
in the
proceedings
public
adversarial
thus
do-
main. To
to the contrary
produce
conclude
would
an ab-
result,
1
violating legislative
surd
intent.
Pa.C.S.
1922(1).18 This
not do.
may
we
v. Kennedy,
Goodman
§
313, 329
(1974).
also,
459 Pa.
A.2d 224
Lehigh
See
Valley
Commonwealth,
Co-op, Farmers v.
Employ-
Bureau of
Security, Department
ment
Labor and
498
Industry,
of
521,
(1982);
Pa.
A.2d 948
O’Bannon,
447
v.
Zimmerman
551,
(1982);
442
Hilton,
497 Pa.
A.2d 674
v.
Schaefer
237,
(1977);
Kates,
Pa.
We look to this defense Assembly’s statutory General intent as 3, supra. 17. See note Presumptions ascertaining legislative
18. intent In ascertaining Assembly In the intention the General in the others, following among presumptions, enactment a statute the used; may be (1) Assembly a result That the General does not intend that is absurd, impossible execution unreasonable.
525 to decided remove the Representatives House of find the good “A on a court order authoriz- faith reliance language to a interception complete shall constitute a defense the ing it was deemed to be unnec- or criminal action” because civil However, conference when the bill was after essary.19 bodies, faith language “good the finally passed by both history had inserted. This on a court order” been reliance to earlier, the stricken was not intended language reflects intended, had General reinserted. If it been so be previously have enacted the eliminated Assembly would Moreover, find is an anomaly to otherwise language. statutory principles two of construction: disregards cardinal Assembly does not intend violate General “[T]he States____” of and General the United Constitution “[T]he public against any interest as intends to favor Assembly 1922(3) (5). teachings private interest.” 1 P.C.S. § us that disallow the reliance Star tell suit is order a defense the civil upon Easton court infirmity “timidity to run afoul the constitutional self-censorship” media to allowing punished from may result Broadcasting information. publishing certain truthful Cox
[C
orp
v. Cohn ]
supra, 420 U.S.
[469]
496, 43
Broadcasting
Cox
L.Ed.2d
[at 1046].
in the context of
noted this concern with overdeterrence
records,
public through
information
official court
made
self-suppression
appli
the fear of excessive media
but
released,
quali
as well to other information
without
cable
rule,
fication,
contrary
depriving
A
government.
rely
government’s implied
on the
protection
those who
dissemination,
would
of the lawfulness
representations
sifting
obligation
force
the media
onerous
you
taking
that
in the section that
are
Mr. Scirica. What we are
out
good
referring
provision
says:
on a
to is
“A
faith reliance
authorizing
interception
complete
shall constitute a
court order
defense to a civil or criminal action ...”
necessary.
an inadvertent
my opinion,
In
it is not
one,
be a
provide
We
that the violation must
willful
one,
tighten
we
the bill as much as
and we wanted to
asking to
it out.
possibly could. For that reason I am
amend
21, 1978,
September
Representatives
Legislative
Journal-House
p. 3147.
through government
releases,
press
reports, and pro-
*14
nouncements to prune out material arguably unlawful for
publication. This situation could inhere even where the
newspaper’s sole object was to reproduce, with no sub-
stantial change, the government’s rendition of the event
question.
in
535-536,
491
U.S.
The newspaper, awaiting the written issuance of the order denying the suppression motion, delayed publication until receipt thereof. this Clearly “good faith reliance upon a court order.”
Finally,
press,
in
States,
these United
a public
serves
purpose
although
private
is a
enterprise.
“The Press
Clause
the First
focuses specifically on the
[of
Amendment]
liberty to disseminate expression broadly and ‘comprehends
every
publication
sort of
which affords a vehicle of informa-
tion
Lovell v. Griffin,
opinion.’
444, 452,
U.S.
58
[303
666, 669,
(1938)
S.Ct.
Accordingly, judgment Superior of the Court revers- ing the court of pleas common is affirmed. B.J.F., 524, 543,
20. The dissent in the Florida Star v.
491 U.S.
2603, 2614,
agreement
noted
striking
with
I’s
a balance
right
privacy
between an individual’s
public
and "the interest
private telephone
disclosure of such
communications”
in favor of the
551,
4,
former.
491 U.S. at
n.
109 S.Ct. at
n. 4. Yet Mr. Justice
(author
dissent)
White
"Surely
rights
also stated
of those
accused of crimes and those who are their victims must differ with
concerns____’’
respect
CAPPY, Justice, concurring. Nix in this of Mr. Chief Justice majority opinion I join the caution, how- Perhaps out an overabundance case. I believe ever, emphasize that which separately to write balancing compet- requiring in all cases paramount rights. ing constitutional B.J.F., 491 v. *15 one, cases such as this raised cases
special problems right which the tension between the involve “the hand, on the one press, accords to free First Amendment law statutes and common which various protections and publication personal privacy against accord to doctrines other____” information, truthful on the life—and Amer- American importance Given the vital rights and privacy of personal ican constitutional law—both publication, the media in truthful of the interests of special courts to take appellate Court advised Florida Star in this area. making overly broad decisions care avoid reasoned, significance and sensitivity As the “the Court Amendment in clashes between First presented the interest principles that rights on limited relying counsel privacy and context sweep broadly appropriate no more than at 2609. instant case.” 109 S.Ct. the remand of required
In which has action, comments on repeatedly Justice Marshall instant involving nature of decisions limited and fact-bound important it is I believe press. balancing to balance warning. simple heed It never the constitutional against citizen rights one constitutional rights citizen, of another full knowing well that the outcome require will derogation rights of one of the liti- gants.
Thus, the role of the court is to tread lightly, to balance
carefully
to decide each
only
case
on the facts before it.
We do not and should not sweep with so broad a brush that
we have limited ourselves in future cases in which the facts
would compel a different outcome. As Justice Marshall
states, “we
emphasized
have
each time that we were resolv-
ing this conflict
as it
only
arose
a discrete factual
context.”
This area of rigorous, law demands such a case-by-case development. To do otherwise is to give short shrift to the important constitutional interests that may arise in this Court in the future. Recognizing that the majority per- formed the delicate balancing required, I enthusiastically join opinion. its
ZAPPALA, Justice, dissenting.
I cannot concur in the majority’s tortuous attempt
coerce the result
in this case into cohering to what
is a
perceives
directive from the federal Supreme Court to
supply sufficient predicates to reverse our prior holding.
In so doing, the Majority strains the bounds
logic
reach an unnecessary
conclusion,
and unwarranted
again
to our
deferring
federal brethren rather than independently
applying its own
body
commonwealth’s
of constitutional
*16
precedent and
It
principle.
is clear to this writer that the
holding reached by
Supreme
the U.S.
in
Court
The Florida
B.J.F.,
524,
2603,
Star v.
491 U.S.
529 541, at 491 U.S. at S.Ct. order....” highest added) Maj. Opinion p. (Emphasis at 460 L.Ed.2d holding, majority completely framed the the thus Having judice its examine the case sub duty to abdicates ignores It clear to patently same is language. of that self in terms in granted for the relief predicate that the writer this to a state interest narrowly I indeed tailored Boettger was unquestionably distinguishes highest order. What us fact that in from the case before is the Florida Star statutory are with a strict scheme dealing we Boettger right, constitutional derogation is basic Star, right no such privacy, whereas Florida right prohibited. publication in the of which was existed material Thus, a state implicated there is contrary order. highest interest distinction, it next that would have been the
Having made reasoning have looked at the logical step majority for the set forth and examined the sanctions whether that narrowly protect Act indeed tailored in the were derogat- right Act in terms of the Analyzing interest. ed, the obvious conclusion that away one comes with properly was struck. balance give to
The of the Act was to law purpose sole enforce- and electronic eavesdropping the tools agencies ment of the Act surveillance, passage to the previous tools which right to given the individual’s strictly prohibited had been sacrifice to Act a limited passage privacy. this, of information derived the use right. that Because for strictly regulated, the Act is provided by tools from the intercept- use of this investigative prosecutorial and/or Act’s existence. is raison d’etre information ed not be available to Act information would this Without derived the information Only form. when anyone pursuant provi- is to its of the Act disclosed from the use court, does that sions, open introduced as evidence protection then lose its character same information said how it can be Act. I cannot fathom by the provided or that works limitation unreasonable this *17 530 upon the
hardship media or the First Amendment. The prohibition media, is not as to blanket but neither is the protection absolute as the individual. Each has the its possibility respective right may infringed upon. That is proper balance.
This is
a situation where the
precluded
media is being
that,
from disclosing something
but for the
legislation,
would be free
do. This
clearly
the distinguishing
feature
the case sub
and its relation
to the Florida
judice
Star scenario. This is a situation
where,
but for the legisla-
tion, the disclosure would
illegal.
be absolutely
Reasoning
from this
in
Boettger
premise, the majority
distinguished
present
factual situation from
presented
those
in the
cases,
Cox line of
v.
Smith
Mail
Daily
Publishing Compa-
ny,
97,
2667,
443
99
61
(1979),
U.S.
S.Ct.
Cox
L.Ed.2d 399
Cohn,
Broadcasting Corp.
v.
469,
420
1029,
U.S.
95 S.Ct.
43
(1975);
328
Landmark Communications
L.Ed.2d
Inc. v.
Virginia,
829,
1535,
435
98
(1978);
U.S.
S.Ct.
56 L.Ed.2d
Oklahoma
Company v.
Publishing
District Court of
Oklahoma,
430 U.S.
The majority justification next seeks for its position by that, finding the in because information transcripts the contained discussions and gambling illegal about other ac- the tivity, did not fall within a of transcripts class conversa- protected by tions intended to a “state be interest of the highest Id., order”. pp. 521-524. This presumption is ludicrous and without completely support. content of the conversation not germane, is it is the interception and disclosure which is protected, regardless of its per- later significance ceived in illegality. Nowhere the Act is it provided that at the moment it is intercepted deemed an illegal conversation concerns the of activity, provisions the disappear Act the and conversation can be disclosed to the interception world. Where the be prohibit- would otherwise ed, the application hindsight test would be absurd. the
Finally, majority holds that the act of denying the suppress motion to the use of the intercepts any removed protections by intended the Act. It reasons that the Order an denying suppression, Act, was order under 5725 of the provides the position defense those in Appellant disclose protected “good who conversation for faith finding reliance on a court order”. This again not Act, bui! effect functioning in misperceives only guts it. that, the denial provided Act is it in the
Nowhere evidence, dis- be intercepted may suppress a motion all, by only if at may presumed, a result Such closed. autho- by the Act to so disclose. Those those authorized using purpose do for the only so disclose may rized open Act in under the as evidence obtained information Act. purpose This the intended and sole court. matter, here chose to If, Appellee this whole throughout did, trial, or, if as he nolo contendré before plead reason, unnecessary deemed it Attorney, District court, perogative, is his open obtained use the evidence the Act provisions obtained under the then the evidence to do so those authorized not have been disclosed would could not have and therefore the contents court open Only particular at that by Appellant. thus disclosed been information was used as protected in time point where authorized, one so could the open evidence court if type he so safely published, point have Appellant desired, word, expression off color colloquialism, every had been revealed. comment that undeniably clearly proper comports This result Act. result spirit only with the letter and It is *20 citizen’s derogate the Act’s ability which validates conversations, or legal in his most intimate right rests that the use predicate That on validity otherwise. gathered strong is a tool for the prosecu- of the information It by used law tion crime enforcement officials. is for It’s collection and disclosure is purpose. that only that If that purpose. furtherance of permitted only unnecessary, posses- so does the purpose use becomes officials sion use of the information those authorized a media or general public. only as the time well operative interest in that information becomes individual’s court, as no would open its and use in one upon disclosure it then should. deny
This result assures the confidence of our citizenry that Act, necessary liberties, while a on burden their will be strictly policed so as to that ensure not be will abused. This Court has stated that we would strictly enforce the Act provisions purpose. Common- exactly Hasham, wealth v. No. 152 Appeal (Filed E.D. Dkt. Janu- 4, 1991), ary slip opinion at 8. p.
For reasons I these dissent from the about face of my brethren the majority and would affirm the decision reached this Court based distinc- tions between that case and as the U.S. Supreme requested Court that we consider. J.,
PAPADAKOS, joins this dissenting opinion.
v. Wassel, wife, Appellees. Robert WASSEL and Loretta B. his Supreme Pennsylvania. Court of
Argued Jan. 1991. Decided March notes Florida Star As Justice Marshall (1989), there are 2603, 105 524, 109 L.Ed.2d S.Ct. U.S.