The opinion
WIEAND, Judge,
dissenting:
Thomas Hashem was arrested and charged with hindering apprehension or prosecution 1 because he had called Michelle Kulick, whose telephone was being electronically monitored by law enforcement officials, to warn her of the intercept. The only basis for the charge against Hashem was his intercepted telephone call to Michelle Kulick. A criminal complaint was issued against Hashem without pri- or judicial authority to disclose the contents of the intercepted conversation, as is required by 18 Pa.C.S. § 5718. Both the charges against Hashem and his subsequent conviction, therefore, were tainted by the Commonwealth’s violation of the Pennsylvania Wiretap and Electronic Surveillance Control Act. The majority affirms the subsequent conviction. I dissent. In my opinion, the conviction was based on an illegal disclosure of information obtained in a telephone intercept.
Section 5718 of the Crimes Code provides as follows:
*162 When an investigative or law enforcement officer, while engaged in court authorized interceptions of wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in section 5717(a) (relating to disclosure or use of contents of wire or oral communications or derivative evidence). Such contents and evidence may be disclosed in testimony under oath or affirmation in any criminal proceeding in any court of this Commonwealth or of another state or of the United States or before any state or Federal grand jury when in advance of such disclosure and on application to a court, the court finds that the contents were listed in the final report, pursuant to section 5712(e) (relating to issuance of order and effect), and were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.
18 Pa.C.S. § 5718 (emphasis added). As the majority has observed, this statute makes clear that before law enforcement officials can properly use intercepted telephone conversations as evidence of crimes not listed in the original wiretap application, “(1) the contents of the conversations must be listed in the final report pursuant to 18 Pa.C.S.A. Sec. 5712(e); (2) the conversations must be intercepted in accordance with the other provisions of the wiretap act; (3) an application to use the recordings must be made to a judge of the Superior Court; and (4) the application must be made as soon as practicable.” Majority Op. at 131.
In the instant case, the representatives of the Commonwealth disclosed the substance of the intercepted conversation without prior authorization to do so. Unauthorized disclosures occurred when representatives of the Commonwealth filed a criminal complaint against Hashem; when they established a prima facie case against him at the preliminary hearing; and when the District Attorney filed a *163 criminal information. It was not until all of these disclosures had been made and almost twenty months after the final report had been filed without any reference to criminal activity by Hashem that the Commonwealth finally moved to amend the final report and requested a judge of the Superior Court to authorize disclosure of evidence of the new and unrelated offense which Hashem allegedly had committed. This was too late. When the Commonwealth filed charges and produced evidence thereof by using an unauthorized disclosure of an intercepted communication, it violated the statutory mandate. A prosecution based on such an illegality, in my judgment, was irremediably tainted and should not be permitted.
In United States v. Marion, 535 F.2d 697 (2d Cir.1976), a justice of the New York State Supreme Court had authorized taps to be placed on the telephones of two establishments in Manhattan. The wiretaps had been authorized for the purpose of intercepting communications relating to the state offenses of grand larceny by extortion, felonious assault, conspiracy and possession of dangerous weapons. During the subsequent electronic surveillance, two conversations between defendant and others were intercepted in which defendant discussed, inter alia, the delivery of an unregistered gun. Several months later, defendant appeared before a federal grand jury which had been conducting an investigation of possible violations of federal law, including interferences with interstate commerce by threats and violence and interstate travel and transportation in aid of racketeering. During his testimony defendant was questioned about conversations which had been intercepted during the state authorized wiretaps. After giving inconsistent and unconvincing explanations for the recorded statements, the defendant was indicted by the grand jury on charges of perjury and obstruction of justice. Prior to trial, defendant moved to have the indictment dismissed because the evidence obtained from the state authorized wiretaps had been presented to the federal grand jury in violation of 18 U.S.C. *164 § 2517 (5). 2 More specifically, defendant alleged that the statute had been violated by the government’s failure to file an application to obtain authorization for the use of the intercepted communications prior to using them before the grand jury. The district court denied defendant’s motion and, after trial by jury, defendant was convicted on all counts. On appeal, the Court of Appeals reversed. 3 It held that the statute had, in fact, been violated. In so holding, the Court construed the “as soon as practicable” language in Section 2517 to mean that if law enforcement officials are to use intercepted communications as evidence of crimes other than those listed in the order authorizing the wiretap, they must file an application and obtain judicial approval “as soon as practicable” after they learn (or should reasonably have learned) of the relevant contents of the communications. Id. at 707 . “In all events, however, approval of the serendipitous interceptions must be obtained before their contents or fruits are used ... in any criminal or grand jury proceeding.” Id. at 704 n. 14 (emphasis in original). Because the government in Marion had failed to obtain judicial approval before disclosing the contents of the intercepted communications in the grand jury proceedings, the Court determined that the statute had been violated. This violation, the Court held, required that defendant’s conviction be reversed. The Court said:
[B]ut for the two challenged conversations, [defendant] would not have been called before the grand jury. His testimony before that body, arguably “derived from” those calls, and recordings of the interceptions, constituted the Government’s principal evidence in his federal trial for perjury and obstruction of justice. Under these cir *165 cumstances, his conviction for perjury and the first count of obstruction of justice are irremediably tainted by the § 2517(5) violation.
Id. at 704 n. 15.
In the instant case, as in Marion , the Commonwealth used the intercepted communications as the sole basis for charging Hashem with a criminal offense. It also used his intercepted conversation as evidence to establish a prima facie case at appellant’s preliminary hearing. It did so without having included a reference thereto in the necessary final report of the authorized intercept and without obtaining judicial authorization to disclose the communication pertaining to a separate offense. This was a clear violation of Section 5718. Because the same serendipitous interception formed the sole basis for the facts alleged in the information, as well as the principal evidence at trial, I would hold that the information and subsequent conviction were “irremediably tainted” by the Commonwealth’s violation of Section 5718.
Moreover, I am unable to conclude, as does the majority, that the Commonwealth’s application to disclose the unrelated offense was filed “as soon as practicable.” The mandatory language of the statute, as the Court of Appeals held in United States v. Marion, supra, requires that the application be made as soon as practicable after law enforcement officials learn or should have learned the significance of the intercepted communication. Here, the communication was intercepted on December 1,1982; Hashem was arrested for hindering apprehension or prosecution on December 19, 1983; and application was made to a judge of the Superior Court to use the intercept in January, 1985. The application to use the intercepted call was filed only after Hashem, in March, 1984, had moved to suppress the intercepted conversation because of the Commonwealth’s failure to comply with 18 Pa.C.S. § 5718. The Commonwealth knew that Hashem had warned Kulick of the tap on her phone when law enforcement agents intercepted Hash-em’s call; and the Commonwealth certainly understood the *166 significance of the intercepted call when, on December 19, 1983, it caused Hashem to be arrested for hindering apprehension or prosecution. Still, the Commonwealth did not act to obtain authority to disclose Hashem’s intercepted telephone call for another thirteen months. Indeed, the Commonwealth waited more than seven months after the defendant had moved to suppress the same before it moved to amend its final report and obtain authorization to use the intercept as evidence at trial. Under these circumstances, I am unable to agree with my brethren of the majority that the Commonwealth moved “as soon as practicable.” For these reasons, I would reverse the judgment of sentence and order appellant discharged.
I must respectfully disagree also with the majority when it holds that it was proper for the court to allow the District Attorney to take the stand as a Commonwealth witness and testify, in response to questions asked by his assistant, that Hashem’s telephone call had hindered the District Attorney’s investigation of drug dealers in the Scranton area. 4
In Commonwealth v. Russell, 456 Pa. 559 , 322 A.2d 127 (1974), the defendant was convicted of murder in the first degree, aggravated robbery, burglary, and conspiracy. At trial, the court had permitted a former district attorney to testify that the defendant had been arrested “only after very, very careful scrutinizing of the evidence and independent interrogation of other witnesses ... [and o]nly when there was no doubt, no doubt whatsoever, that he had masterminded the crime.” Id., 456 Pa. at 562-563 , 322 A.2d at 129 . On appeal, the Supreme Court held that this was error because the witness’ testimony “was a clear expres *167 sion of guilt on the central issue of the case, i.e. conspiracy.” Id. The Court explained:
This Court has consistently made it clear we will not allow the district attorneys of this Commonwealth to express their personal opinion or beliefs on issues which are within the province of the jury, when such opinions are not based on fair arguments from the evidence presented. See Commonwealth v. Lipscomb, [455], Pa. [525], 317 A.2d 205 (1974); Commonwealth v. Toth, 455 Pa. 154 , 314 A.2d 275 (1974); Commonwealth v. Revty, 448 Pa. 512 , 295 A.2d 300 (1972); Commonwealth v. Potter, 445 Pa. 284 , 285 A.2d 492 (1971). We believe the instant case fits squarely within this line of cases. As recently as Lipscomb , we made it emphatically clear that expression of personal belief has no place in the argument of a district attorney to the jury. Herein the former assistant district attorney not only expressed his opinion on the guilt of [defendant], but he also expressed an opinion on the believability of the defense witnesses who exonerated [defendant], and these expressions of personal belief were without proper foundation. We, therefore, rule that a district attorney, whether he be a witness or a prosecutor, may not make improper statements of this nature, which clearly prejudice the accused. To do so is to violate the rights of the accused, and the professional standards which this Court demands and which society deserves.
Commonwealth v. Russell, supra, 456 Pa. at 563-564 , 322 A.2d at 129-130 .
In the instant case, appellant had been charged with hindering apprehension or prosecution and criminal conspiracy to do the same. The District Attorney testified that in his opinion appellant’s conduct in warning Michelle Kulick that her phone had been tapped and urging her to warn others of the wiretap had, in fact, hindered an on-going investigation. The District Attorney’s expression of opinion was not, as the trial court’s opinion suggests, an isolated comment that was unlikely to have an effect on the jury’s *168 deliberations. Rather, the witness stated his opinion regarding the effect of appellant’s conduct on no less than six occasions. 5 He did so without any cautionary instructions from the trial court to the jury that it should not consider the witness’ opinion in determining appellant’s guilt or innocence. This, in my judgment was erroneous and prejudicial. It was especially harmful in view of evidence that, even after appellant’s warning, law enforcement officials were able to gather sufficient intercepted information to arrest and convict more than fifty persons for various drug offenses. Whether Hashem had committed a prohibited act with intent to hinder apprehension or prosecution was an *169 issue for the jury; it did not call for an expression of opinion by the District Attorney. Therefore, even if the Commonwealth had not violated 18 Pa.C.S. § 5718, I would hold that appellant was entitled to a new trial.
. 18 Pa.C.S. § 5105.
. This section of the statute is substantially similar to 18 Pa.C.S. § 5718. For the text of the federal statute see, supra, majority opinion at 754-755.
. Defendant had also been charged with an additional count of obstruction of justice based upon his failure to adequately explain another intercepted communication in which he had discussed a plan to destroy the property of another in order to influence a pending corporate vote. His conviction on this count was affirmed for reasons not here relevant.
. The District Attorney proved to be an argumentative witness. Not only did he argue with defense counsel when objections were made during the course of his testimony, but he also argued against those objections directly to the trial judge. What the District Attorney attempted, and indeed was permitted to do, was play the dual role of advocate and witness while he was on the stand. In my judgment this was egregiously improper. By permitting the witness to play this dual role, the court added credence to his testimony and created a substantial likelihood of prejudice to the defense.
. The District Attorney testified, inter alia, as follows:
Q: Could you tell us what ... information you received [about appellant’s warning], and what you did in respect to it?
A: ... And my initial — my initial feeling was that ...
that placed in jeopardy the entire operation.
Q: Go ahead.
A: By telling the — Michelle— ... that, in my view ... placed in jeopardy this entire operation that we had done.
N.T. at 141-142.
Q: My question, Mr. Preate, is, what was the information you received ... and what effect did it have on this investigation.
A: ... we had to do certain things. And we felt that now the wire was in jeopardy.
N.T. at 143-144.
Q: Once the call came in, you were leading the investigation, what did you do; what action did you take.
A: What happened after that was that we began to make an assessment of the operation to date. And we decided that we had to move quickly at that point, to gather whatever evidence we could, in the course of the investigation, to try to pull it all together, because it was now in jeopardy.
N.T. at 145.
Q: Would you explain how [the investigation] was changed?
A: The whole investigation was now placed, as I indicated, in jeopardy____
N.T. at 150.
Q: Would you tell us specifically what [about the investigation] was changed?
A: It was hindered.
N.T. at 152.