finding 42 Pa.C.S. §§ 5984 and 5985 unconstitutional because they raise subjective fears of child witness above the rights of a defendant to confront his accuser face to face
How later courts described this case
- finding 42 Pa.C.S. §§ 5984 and 5985 unconstitutional because they raise subjective fears of child witness above the rights of a defendant to confront his accuser face to face
- condemning as unconstitutional Sections 5984 and 5985(a) because neither failed to limit the use of videotape in closed-circuit television to those instances in which a defendant’s right to face-to-face confrontation had been otherwise satisfied
- Child day care providers had no justifiable expectation of privacy once conversations, threats, arguments, and screams became audible in adjoining home, and adjoining homeowners recording of those did not constitute “oral communication” in violation of the Act
- defendants had no justifiable expectation that conversations in their home, which were loud enough to be heard through wall of their home into adjoining home, were not subject to being intercepted
Written by the judges who cited it.
The opinion
ZAPPALA, Justice,
concurring and dissenting.
I join the Majority Opinion with respect to the issue of the constitutionality of 42 Pa.C.S.A. §§ 5984 and 5985(a) but must dissent to the disposition of the suppression issue.
*194 To support its determination that the trial court erred in suppressing the tape recordings made by Ms. Wolfe, the majority concludes that the Loudens lost “whatever expectation of privacy they had that their secret discussion and conversation would not be overheard,” maj. op. p. 959, when the volume of those conversations became audible through a party wall which they shared with the Kulovichs. Not only does the majority’s determination depend on the thickness and acoustical soundness of a party wall but more importantly infringes upon an individual’s right to privacy in one’s own home.
Implicit in any discussion of an expectation that a communication will not be recorded, is a discussion of the right to privacy. In Commonwealth v. Henlen, 522 Pa. 514 , 564 A.2d 905 (1989), we relied upon our decision in Commonwealth v. Blystone, 519 Pa. 450 , 549 A.2d 81 (1988) cert, granted in part Blystone v. Pennsylvania, 489 U.S. 1096 , 109 S.Ct. 1567 , 103 L.Ed.2d 934 (1989) in determining what facts lead to a conclusion that no reasonable expectation of privacy exists in a particular situation. With respect to the right to privacy under Article I, Section 8 of the Pennsylvania Constitution, we stated in Blystone:
To determine whether one’s activities fall within the right of privacy, we must examine: first, whether Appellant has exhibited an expectation of privacy: and second, whether that expectation is one that society is prepared to recognize as reasonable. (Citations omitted.)
519 Pa. at 463 , 549 A.2d at 87 .
Unlike Henlen , the instant case involves conversations taking place in the sanctity of one’s home. If nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home. As then Justice Roberts stated in Commonwealth v. Shaw, 476 Pa. 543, 550 , 383 A.2d 496, 499 (1978):
*195 Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society. (Citations omitted).
In Shaw , the defendant was engaged in his own affairs on the second floor of his family’s home. The police were admitted to his family’s home to inquire of his knowledge of a recent robbery and killing. An eyewitness to the shooting had informed the police that one of the perpetrators was a friend of a man by the name of “Shaw.” When the police entered the house and called out to the defendant, a detective heard feet shuffling on the second floor. Because the defendant did not respond to the detective’s call, three police officers ran upstairs without a warrant or permission. We held in that instance that the governmental intrusion was unreasonable given the defendant’s legitimate expectation of privacy in his own home and therefore the intrusion violated the defendant’s right against unreasonable searches and seizures. While the facts of Shaw differ from the appeal now before us, the principle involved is identical. An individual has a constitutionally protected right to be secure in his home.
Clearly then, our case law recognizes that an individual can reasonably expect that his right to privacy will not be violated in his home through the use of any electronic surveillance.
In this instance, appellees had no reason to believe that their neighbor was secretly and electronically taping their conversation. Unlike the officer in Henlen who had no reasonable expectation that his conversation would not be recorded, appellees had no reason to expect their conversation to be recorded by Wolfe.
Based upon this record, I would conclude the appellees had a legitimate expectation that their conversations would not be subject to electronic surveillance. Therefore, the suppression court properly refused to permit the Commonwealth to introduce any tapes recorded by Ms. Wolfe. Such a ruling, however, would not preclude Ms. Wolfe from testifying about the conversations and sounds emulating from appellees’ residence.
CAPPY, J., joins in this concurring and dissenting opinion.