Superior Court 7/9/08 - COMMONWEALTH OF PENNSYLVANIA v. DAVID C. DECK, TRACI M. GEORGIADIS, JOHN F. GEORGIADIS, JR.

COMMONWEALTH OF PENNSYLVANIA v. DAVID C. DECK, TRACI M. GEORGIADIS, JOHN F. GEORGIADIS, JR.
No. 884 MDA 2007 2008 PA Super 150 Atlantic: n/a Filed: 7/9/2008
Appeal from the Order entered on April 23, 2007, in the Court of Common Pleas of Cumberland County, Criminal Division, at No(s). CP-21-CR-0001907-2006, CP-21-CR-0001908-2006, CP-21-CR-0001913-2006
Before: STEVENS, LALLY-GREEN, and FITZGERALD, JJ.
Opinion by: LALLY-GREEN, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the trial court’s order entered on April 23, 2007, granting the motion to preclude introduction of audio tapes filed by Appellee, David C. Deck (“Deck”). We affirm.

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The relevant facts and procedural history may be summarized as follows. In July of 2006, Deck resided with his girlfriend and her minor daughter, C.P. C.P. sought to prove to her mother and the police that Deck was engaging in sexual relations with her. C.P. knew that the police used recording devices to monitor conversations, based on her participation in a previous police investigation. On July 6, 2006, C.P. telephoned Deck at his place of work. Deck was in his office with the door open when he took C.P.’s call. At the start of their conversation, C.P. told Deck that she had placed him on the speakerphone. Without Deck’s knowledge or consent, C.P. recorded the conversation on a cassette tape in an answering machine. Later in the day, C.P. went to the Fairview Township Police Department and gave the tape of the telephone conversation to Officer Tyson Baker.

¶ 3 On September 1, 2006, at Criminal Action No. CP-21-CR-0001907-2006, Deck was charged with statutory sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, and sexual abuse of children. 18 Pa.C.S.A. §§ 3122.1, 3123(a)(7), 3125, 3126(a)(8), 6312, 306.1

¶ 4 On December 20, 2006, Deck filed a motion to preclude introduction of the audio tape. Deck asserted that the tape recording of his telephone conversation with C.P. was inadmissible at any proceeding against him because it was made in violation of the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act” or “Act”), 18 Pa.C.S.A. § 5701 et seq.

¶ 5 Following a hearing, on April 23, 2007, the trial court granted Deck’s motion and suppressed the tape recording. The trial court determined that the telephone conversation between Deck and C.P. was a wire 1 On September 1, 2006, the Commonwealth also charged John F. Georgiadis, Jr. and Traci M. Georgiadis with engaging in involuntary deviate sexual intercourse with C.P. at Criminal Action No. CP-21-CR-0001908-2006 and Criminal Action No. CP-21-CR-0001913-2006, respectively. On September 1, 2006, the Commonwealth filed a notice of trial joinder, notifying the parties that it intends to try these two cases and Deck’s case together.

¶ 6 The Commonwealth raises the following issue:
1. Did the trial court err in suppressing an audio
tape of a telephone conversation between the 40
year-old defendant and the 15 year-old victim
where, the defendant did not have an
expectation of privacy which society is willing to
recognize as reasonable?