Recorded Phone Conversation Ruled Inadmissible in Pennsylvania Sex Abuse Case

The Superior Court of Pennsylvania recently upheld a Trial Court’s decision that a taped phone conversation between a child and her alleged abuser was inadmissible at trial. David Deck, a resident of Cumberland County, was charged with statutory sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, and sexual abuse of children, when the child accusing Deck of the abuse gave police a tape-recorded phone conversation between the two parties.

Deck was living with his girlfriend and her minor daughter, who claimed that Deck was sexually abusing her. The child, attempting to obtain proof of the alleged abuse, phoned Deck while he was at his office and told him that he was on speakerphone. She did not mention, however, that she was recording the conversation on an answering machine tape. She then gave the taped conversation to police who later arrested and charged Deck with the crimes.

At Deck’s suppression hearing, the trial court ruled that the tape could not be admitted as evidence since Deck had not consented to the recording. The Commonwealth appealed to the Pennsylvania Superior Court who upheld the trial court’s ruling. The Court strictly interpreted the Wiretap Act, noting that state law could provide for greater, but not lesser, protection than the Federal Wiretap Act. The relevant sections of the Act define the crime of wiretapping, oral communication, wire communication, and aural transfer. The Commonwealth argued that the conversation between the parties was an oral transfer, which by statute, requires the party injured to have had a reasonable expectation of privacy during the conversation, in order to suppress; Deck’s office door was open during the phone conversation, thereby reducing his potential claim for reasonable expectation of privacy. However, the Court determined that the phone conversation was defined as a wire transfer, not requiring a reasonable expectation of privacy but rather consent. Since Deck never consented to the recording, the Court upheld the decision to suppress the recording at his trial.

Suppression of Evidence

In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed, and will take the appropriate actions.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.