author: WIEAND, Judge:

text:
    498 A.2d 870
    COMMONWEALTH of Pennsylvania v. Donna DOTY, Appellant. COMMONWEALTH of Pennsylvania v. Gary KIRKWOOD, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed Aug. 16, 1985.
    Reargument Denied Oct. 8, 1985.

      Marshall E. Anders, Stroudsburg, for appellant (at No. 1301).

      William P. Carlucci, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Alan Ellis, Philadelphia, for appellant (at No. 1312).
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

Donna Doty and Gary Kirkwood were tried nonjury and were convicted of criminal conspiracy and possession with intent to deliver hashish and marijuana. At trial, the Commonwealth relied upon incriminating evidence acquired by placing a tap on the telephone serving the residence of Gary and Linda Kirkwood. On direct appeal, the principal argument made by Doty and Kirkwood is that the Pennsylvania Wiretapping and Electronic Surveillance Control Act of October 4, 1978, P.L. 831, No. 164, is unconstitutional or, if valid, that it was improperly applied in this case. We disagree. For this and other reasons appearing in this Opinion, we affirm the judgments of sentence imposed by the trial court.

It is well settled that a strong presumption of constitutionality attaches to statutes duly enacted by the legislature. Estate of Cox, 327 Pa.Super. 479, 483, 476 A.2d 367, 370 (1984) and cases there cited. Appellants bear the burden of demonstrating that the statute “clearly, palpably and plainly” violates the Constitution. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981); Estate of Cox, supra. Appellants’ argument that the Pennsylvania Wiretap Law is facially unconstitutional because it violates the right of privacy implicit in Article 1, Section 8 of the Pennsylvania Constitution is meritless. Article 1, Section 8 provides as follows:

Sec. 8. Security from searches and seizures
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or thing shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

This serves only to prohibit a nonconsensual electronic interception without warrant or court order issued upon probable cause. It does not prohibit all nonconsensual electronic interception of telecommunications. Commonwealth v. Hassine, 340 Pa.Super. 318, 354, 490 A.2d 438, 457 (1985). An argument similar to that made in this case was made to and rejected by the United States Court for the Eastern District of Pennsylvania in United States v. Geller, 560 F.Supp. 1309 (E.D.Pa.1983), aff'd sub nom., United States v. DeMaise, 745 F.2d 49 (3rd Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985).

Appellants argue that the Pennsylvania Wiretap Act has been drawn more broadly than Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, which preempted the right of individual states to enact less restrictive legislation, and that the Pennsylvania Act, therefore, is in violation of the Supremacy Clause of Article VI, Section 2 of the United States Constitution. The Pennsylvania Statute is less restrictive, they contend, because it (1) delegates authority to request wiretap orders to deputy attorney generals and assistant district attorneys, (2) expands upon Title Ill’s list of crimes in which a wiretap may be used to facilitate investigation, and (3) has less stringent requirements concerning minimization of the interception of nonpertinent communications.

The arguments pertaining to the delegation of authority to “assistants” and the listing of crimes need not detain us. The application for wiretap in this case was made by the District Attorney of Lycoming County and not by a deputy. The crimes being investigated, moreover, are also crimes listed in Title III at 18 U.S.C. § 2516(2). Thus, even if portions of the Pennsylvania Act are broader than Title III, those parts of the statute are severable and do not render the entire statute unconstitutional. See: Commonwealth v. Hoffman, 263 Pa.Super. 442, 451, 398 A.2d 658, 662 (1979). If some provisions of a statute are held to be invalid, the remaining provisions are not affected thereby unless the invalid provisions are so essentially and inseparably connected with the valid provisions that they cannot be executed in accordance with the legislative intent. Department of Education v. The First School, 471 Pa. 471, 478, 370 A.2d 702, 705 (1977); 1 Pa.C.S. § 1925. If the references in 18 Pa.C.S. §§ 5708 and 5713 to “assistants” and in § 5708 to those crimes which are not listed in 18 U.S.C. § 2516(2) are deleted from the statute, the remaining provisions are clearly capable of being executed to give effect to the legislature’s intent. See: United States v. Geller, supra at 1314 (18 Pa.C.S. §§ 5703 and 5704 are severable).

Title III provides that every order authorizing a wiretap shall contain a requirement that the interception be conducted so as to minimize the interception of communications not subject to seizure. It also provides that no order shall be valid, in the absence of a court approved extension, for more than thirty days. 18 U.S.C. § 2518(5). “Minimize” is not defined, and a list of the means or methods of minimizing interceptions has not been included in Title III. This omission in the language of the statute, however, has been remedied by judicial decision which holds that minimization must be determined on a case by case basis according to what is reasonable. Scott v. United States, 436 U.S. 128, 139-140, 98 S.Ct. 1717, 1724, 56 L.Ed.2d 168, 179 (1978). In determining the reasonableness of actual minimization, a reviewing court must consider many factors, including the nature of the investigation, the scope of the criminal activity, the normal use of the telephone facility, and the patterns of nonpertinent calls. Id. at 140-141, 98 S.Ct. at 1724-1725, 56 L.Ed.2d at 179-180. The authorizing order required by Title III, however, need only contain a general order to minimize. United States v. Vento, 533 F.2d 838, 852 (3d Cir.1976); United States v. Fino, 478 F.2d 35, 37 (2d Cir.1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974).

The Pennsylvania statute is more restrictive than Title III. The provisions of 18 Pa.C.S. § 5712(b) establish:

No order entered under this section shall authorize the interception of any wire or oral communication for a period of time in excess of that necessary under the circumstances. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this chapter by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by said order. Except as provided in subsection (c), no order entered under this section shall authorize the interception of wire or oral communications for any period exceeding 20 days. An extension or renewal of such an order may be granted for one additional period of not more than 20 days. No extension or renewal shall be granted unless an application for it is made in accordance with this section, and the judge makes the findings required by section 5710 (relating to grounds for entry of order).

It will be observed that the maximum duration of an intercept without extension is twenty days, not thirty days as allowed by the federal statute. It may also be observed that an order of authorization must include a provision that the reduction of hours of interception be used if possible as a means for minimizing, as compared to Title Ill’s general directive to minimize. Appellants interpret the state statute’s language “by making reasonable efforts ... to reduce the hours of interception ...” to mean that the reduction of hours of interception is sufficient minimization by itself. This, they contend, is less restrictive than Title III. We disagree with this interpretation.

A crucial factor in minimizing the interception of nonpertinent communications is the duration of the surveillance. United States v. Martin, 599 F.2d 880, 887 (9th Cir.1979). The legislature in Pennsylvania was aware of the importance of minimization and included a provision in the Pennsylvania statute requiring a directive in each authorizing order that the number of hours of interception be reduced as much as reasonably possible. 18 Pa.C.S. § 5712(b). This provision evidences the legislature’s overriding concern for an individual’s right of privacy. Appellants’ too literal reading of the statute is inconsistent with this legislative intent. The statute is uniformly more restrictive than Title III, and we find no basis for concluding that the legislature intended § 5712(b) to be less restrictive than Title III. The legislature required that the hours of interception be reduced and made this a critical means for minimizing; but it was not the only method for effecting minimization. Other means are also available and must be utilized, as suggested by Scott v. United States, supra, according to the circumstances of the case. Neither Title III nor the Pennsylvania statute requires that the means for minimizing be enumerated in each order authorizing an intercept. We conclude, for these reasons, that 18 Pa.C.S. § 5712(b) is not less restrictive than Title III and passes constitutional scrutiny.

It has generally been acknowledged that legislation which authorizes electronic surveillance infringes upon the right of privacy and, therefore, must be strictly construed. See: State v. Catania, 85 N.J. 418, 427 A.2d 537 (1981); In Re: Grand Jury Investigation, 287 So.2d 43 (Fla.1973). See also: People v. Evans, 78 Ill.App.3d 996, 34 Ill.Dec. 651, 398 N.E.2d 326 (1979). Appellants argue that a strict construction will suggest that the Pennsylvania statute, even if constitutional, was exceeded in the instant case.

Doty argues first that the application was defective because it was signed by the District Attorney of Lycoming County without an affirmative showing that the Attorney General was incapacitated or unavailable. We reject this argument. It is premised not upon a strict construction of the statute but upon a suggested interpretation that is absurd and unwarranted. The pertinent statutory provision, found at 18 Pa.C.S. § 5708, is as follows:

The Attorney General, or, during the absence or incapacity of the Attorney General, a deputy attorney general designated in writing by the Attorney General or the district attorney or, during the absence or incapacity of the district attorney, an assistant district attorney designated in writing by the district attorney of the county wherein the interception is to be made, may make written application to any Superior Court Judge for an order authorizing the interception of a wire or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation involving suspected criminal activities____

A common sense reading of this section, particularly when it is read in conjunction with the legislative intent appearing when one reads the entire statute, makes it abundantly clear that authorization has been vested in the Attorney General and also in the several District Attorneys. It is only if these officers are unavailable or incapacitated that a deputy attorney general or assistant district attorney may be designated in writing by the Attorney General or District Attorney to make the necessary application. This clear intent will not be altered because of the absence of a comma following the words “Attorney General.” Punctuation does not control or affect the intention of the legislature. 1 Pa.C.S. § 1923(b).

The interpretation which we adopt is consistent with the following provisions of Title III appearing at 18 U.S.C. § 2516(2):

(2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made____

It is also consistent with and supported by the debate on the Pennsylvania statute in the General Assembly. There, Representatives Scirica and Caputo engaged in the following dialogue:

Mr. CAPUTO. Mr. Speaker, to establish legislative intent and to avoid what has been a successful challenge as to wiretaps in Federal courts on motions to suppress, you made a statement indicating that only the attorney general or a district attorney might file an application before the court?
Mr. SCIRICA. Yes, Mr. Speaker.
Mr. CAPUTO. Did you mean that only the district attorney; or would that privilege be extended to assistant district attorneys?
Mr. SCIRICA. It is the attorney general or the district attorney or his written designee in his absence.
Mr. CAPUTO. Do you think that should be in the bill?
Mr. SCIRICA. Yes, Mr. Speaker, that is in the bill.
Mr. CAPUTO. Is it in the bill?
Mr. SCIRICA. Yes
Mr. CAPUTO. Okay, if it is in there, you do not have to look it up. I think you should have that in there because otherwise the attorney himself, the district attorney, would have to be present.
Mr. SCIRICA. Yes, Mr. Speaker, on page 11 it says that the attorney general or in his absence or incapacity, the attorney general designated in writing; the same thing for the district attorney.

Legislative Journal, September 21, 1978, p. 3154.

For all these reasons, we conclude that the District Attorney of Lycoming County could properly make application for a wiretap without first showing that the Attorney General was unavailable or incapacitated.

An application for an order authorizing an intercept must be in writing and must contain, inter alia, a sworn statement by the investigating police officer which includes “the identity of the particular person, if known, committing the offense and whose communications are to be intercepted.” 18 Pa.C.S. § 5709(3)(i). See also: United States v. Donovan, 429 U.S. 413, 428, 97 S.Ct. 658, 668, 50 L.Ed.2d 652, 668 (1977). Doty’s argument that this was not done is erroneous. The application stated, “there is probable cause to believe that, in the course of the interception, wire and oral communications regarding these offenses will be intercepted from some or all of the following persons: Donna Doty, Melvin T. Walters, Bucky McFadden,____” (Emphasis added). This was an adequate identification to meet the statutory requirement.

A condition precedent to the issuance of an order authorizing an intercept is a determination by a judge of the Superior Court that “normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ____” 18 Pa.C.S. § 5710(a)(3). This is an objective standard; reliance cannot be placed solely upon a subjective belief by the Attorney General or District Attorney that normal investigative procedures will not likely succeed. In this aspect, it will be observed, the standard imposed by the Pennsylvania legislature is more stringent than the requirement imposed by Title III. It is designed to guarantee that wiretapping will not be resorted to in situations where traditional investigative techniques are adequate to expose crime. The requirement also suggests that a wiretap should not be employed as the initial step in a police investigation. See and compare: United States v. Kahn, 415 U.S. 143, 154 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225, 236 n. 12 (1974); United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341, 353 (1974). However, the Commonwealth is not required to show that all other investigative methods have been exhausted. See: United States v. Bailey, 607 F.2d 237, 241-242 (9th Cir.1979), cert. denied, Whitney v. United States, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980); United States v. Vento, supra, 533 F.2d at 849. In making this determination, moreover, the issuing authority may consider and rely upon the opinions of police experts. See: United States v. Canon, 404 F.Supp. 841, 845 (D.C.Ala. 1975). In reviewing the adequacy of the application to support the issuance of an order of authorization, we will interpret the application in a common sense manner, not overly technical, with due deference to the findings of the issuing authority. See: United States v. Vento, supra at 849; United States v. Armocida, 515 F.2d 29, 37-38 (3d Cir.1975), cert. denied, Conti v. United States, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84; United States v. Getter, supra, 560 F.Supp. at 1322-1323.

A review of the record in the instant case is persuasive that the application was adequate and that the authorization was properly issued. The application averred that normal investigative methods had been unsuccessful and expressed the opinion of the affiant that additional attempts would be fruitless. The prior unsuccessful investigation had included physical surveillance, undercover infiltration, the use of informants and a search of the Kirkwood residence. The affidavit, therefore, contained factual support for the opinion of the affiant, who was a specialist in vice and narcotics investigations. His opinion that continuing use of normal investigative techniques would be unsuccessful, in combination with the facts recited, was sufficient to permit the necessary finding by the issuing authority. Cf. United States v. Bailey, supra at 242; United States v. Vento, supra at 850; United States v. Armocida, supra at 38.

We reject appellant’s argument that the use of a wiretap was premature because the Commonwealth had not utilized an investigative Grand Jury or grants of immunity to persons engaged in drug trafficking in Lycoming County. As we have already observed, the statute did not require that the use of alternative methods of investigation be exhausted. The summoning of an investigative Grand Jury is not a normal investigative technique. The expense and involvement of resources, particularly in less populated counties, are sufficiently burdensome to render the summoning of an investigative Grand Jury a truly extraordinary method for ferreting out crime. Moreover, the prior unsuccessful attempts to pierce the drug market in Lycoming County supported the affiant’s belief that informants would refuse to testify even if granted immunity. They permitted the issuing authority to infer that offered grants of immunity would be less than adequate to disclose the source of drugs being distributed in Lycoming County.

We also reject appellant’s argument that a wiretap should not have been authorized in the absence of a prior attempt to prosecute on the basis of information then available. The Commonwealth is not required to forego additional investigation into an illegal drug conspiracy merely because it may already possess sufficient evidence to establish probable cause or even evidence sufficient to permit prosecutions of some of the conspirators. See: United States v. Bailey, supra; United States v. Armocida, supra.

An application for an order authorizing interceptions of telephone communications must contain, inter alia, the identity of the person, if known, committing the offense under investigation and whose communications are to be intercepted. It must also contain details about particular offenses, the type of communications to be intercepted, and must show that there is probable cause to believe that pertinent communications will be transmitted on the facility under surveillance. 18 Pa.C.S. § 5709(3). The standard for determining whether probable cause existed is the same as that used to determine cause for search warrants. See: United States v. Talbert, 706 F.2d 464, 467 (4th Cir.1983); United States v. Falcone, 505 F.2d 478, 481 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). The facts contained in the affidavit for a search warrant must be such that an independent, issuing authority, exercising reasonable caution, can conclude that the items sought are connected with criminal activity and that they will be found in the place to be searched. Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980); Commonwealth v. Ryan, 300 Pa.Super. 156, 167, 446 A.2d 277, 283 (1982). Similarly, in an application for a wiretap, the Commonwealth must establish probable cause to believe that (1) a person has or is about to commit one of the offenses enumerated in the statute, (2) that communications relating to that offense will be transmitted, and (3) that such communications will be intercepted on the facility under surveillance. See: United States v. Armocida, su pra, 515 F.2d at 35. Our review of the application in the instant case persuades us unequivocally that the application contained probable cause which was adequate to support the issuance of a wiretap order.

The September 30, 1981 wiretap order was the product of more than two years of investigative police work. Police had at various times conducted physical surveillance of the Kirkwood residence and had obtained pertinent information from confidential informants. The key informant was a member of the conspiracy. He had provided information concerning the sale of controlled substances, names of buyers, and an organizational chart. The same informant had stated that the telephone in the Kirkwood residence was being used to transmit messages concerning the sale of drugs. The telephone facility was listed under the name of Fritz Ladu, who in reality was Kirkwood’s dog. Information provided by informants regarding Kirkwood’s drug activities had been corroborated by police investigation. Information from informants that Kirkwood was selling drugs from his residence to named persons had been corroborated by use of a pen register and by toll records of the telephone company. A search of Kirkwood’s residence on April 30, 1981, pursuant to search warrant, had led to the seizure of drug paraphernalia. Finally, the Commonwealth’s key informant stated that he had observed marijuana in the Kirkwood residence and that Linda Kirkwood had told him she would sell marijuana to him inside the residence during the week of September 6-12, 1981, but that Kirkwood would then be going to Michigan on a fishing trip. Kirkwood did in fact go fishing in Michigan. The wiretap order was obtained after he returned to Lycoming County.

Appellants argue that information obtained from the confidential informants was stale. Although some of the information derived from informants was not current, the delay in acting thereon occurred while police made efforts to corroborate and confirm the same. This they were able to do by other, fresher information obtained during a continuing investigation of suspected drug trafficking in Lycoming County. The information from which probable cause was found to exist was not impermissibly stale.

Minimization of the interception of communications not subject to seizure is a crucial requirement of a lawful wiretap. Scott v. United States, supra; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Without minimization, surveillance of telephone conversations amounts to a general search and an unreasonable intrusion into a citizen’s privacy. The purpose of minimization is to reduce the scope of an intrusion while at the same time allowing legitimate law enforcement aims to be pursued. An overly restrictive interpretation of the minimization requirement will make it impossible to use a telephone intercept as an effective method for investigating activities of organized crime, such as drug trafficking, gambling, political corruption, etc., which invariably are carried on in secret. See: United States v. Cox, 567 F.2d 930 (10th Cir.1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1496, 55 L.Ed.2d 522 (1978). This is why minimization must be a question of what is reasonable and practical under the circumstances of each case. Scott v. United States, supra, 436 U.S., at 140, 98 S.Ct. at 1724, 56 L.Ed.2d at 179; United States v. Armocida, supra, 515 F.2d at 42. The Commonwealth has the burden of proving at a suppression hearing that the manner in which the wiretap was conducted did not impose a greater invasion of privacy than was reasonably necessary under the circumstances. See: United States v. Armocida, supra at 43. See also: Commonwealth v. Ryan, 296 Pa.Super. 222, 226-228, 442 A.2d 739, 741-742 (1982). Circumstances to be considered include, but are not limited to, the nature of the investigation, the length of calls, the percentage of pertinent calls, whether calls are repeatedly between the same parties, whether the contents of calls are ambiguous, whether coded or guarded language is used, and whether patterns develop during the surveillance. Scott v. United States, supra.

We have painstakingly reviewed the transcript of intercepted communications in this casé, and we conclude that minimization was adequate. The investigation involved an allegedly widespread but relatively close knit conspiracy to traffic in drugs. The objectives of the investigation were to ascertain the scope of the conspiracy and identify the conspirators. The Commonwealth possessed information that the tapped telephone facility was being used extensively in furtherance of the conspiracy. Information obtained by use of a pen register tended to confirm this and showed that the facility was being used almost continuously. Twenty-four hour a day surveillance, therefore, was not unreasonable. The Commonwealth performed extrinsic minimization by terminating the surveillance eight days prior to the order’s termination date. Termination, it has been said, is the most effective means of minimizing. See: United States v. Chavez, 533 F.2d 491, 493 (9th Cir.1976), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837.

Intrinsic minimization, however, is also required. Scott v. United States, supra. Intrinsic minimization is most frequently achieved by a pre-set plan, with court approval and supervision. One of the factors to consider in reviewing the reasonableness of the monitor’s minimization is the extent of judicial supervision. See: United States v. Hyde, 574 F.2d 856, 869 (5th Cir.1978); United States v. Harvey, 560 F.Supp. 1040, 1075 (S.D.Fla.1982). An initial minimization plan depends upon information known at the time of the application, and usually is less stringent. Where it is a course of conduct embracing multiple parties and extending over a long period of time that is being investigated, the initial plan may properly authorize interception of all communications during their entire durations or for substantial portions thereof. See: United States v. Abascal, 564 F.2d 821, 827 (9th Cir.1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978); United States v. Chavez, supra at 493-494. This is especially so where coded or guarded language is used, or where information concerning the extent of a conspiracy, the identity of the conspirators, and other details of the conspiracy are sought. See: United States v. Abascal, supra; United States v. Chavez, supra. If information obtained during the course of surveillance allows a more restrictive interception of communications, subsequent plans should be modified accordingly. Scott v. United States, supra. If a pattern of nonpertinent communications develops, maximum minimization becomes necessary. United States v. Abascal, supra at 827; United States v. Chavez, supra at 494.

Appellants contend that the Commonwealth failed to introduce any evidence of intrinsic minimization at the suppression hearing. The record belies this contention. The Commonwealth introduced into evidence the transcript of intercepted communications, the minimization plans, the monitor’s plan review log, progress reports, monitor’s logs, and the final report. Assistant District Attorney William Carlucci testified that he prepared the minimization plans, obtained their approval from the authorizing judge, instructed the monitor concerning minimization, visited the command post to ensure the monitor’s review of the plan at each shift change and to listen to tapes to check on the minimization actually performed. He also made progress reports to the authorizing judge and submitted a final report.

The initial minimization plan provided that all calls would be intercepted to determine whether they pertained to the conspiracy. All communications believed to be pertinent were to be monitored throughout their duration. If a monitor believed a particular communication to be nonpertinent, interception was terminated for a period of two minutes. Thereafter, the monitor would again intercept communications to determine whether the same had become pertinent. An initial intercept was not permitted to continue for more than five minutes, and subsequent interceptions were limited to periods of one minute. The interception of privileged communications was prohibited. The five minute period was not unreasonable where, as here, a closely knit conspiracy was being investigated. See: United States v. Hinton, 543 F.2d 1002, 1012 (2d Cir.1976), cert. denied, Bates v. United States, 429 U.S. 1066, 97 S.Ct. 796, 50 L.Ed.2d 783 (1977). Only five nonpertinent calls were intercepted for more than three minutes and forty seconds during the twelve days of surveillance; and minimization was performed during all but one of those five calls. Approximately 45% of the 227 calls intercepted appeared to be pertinent to the investigation. Intercepted communications had used guarded language. After the first week of surveillance, the limit on the initial interception period was reduced to three minutes.

Appellants argue that the Commonwealth failed to recognize patterns or categories of nonpertinent communications and consequently failed to minimize interception of these calls. Appellants have been unable to identify any such communications; and our review of the record does not disclose an inadequate minimization with respect to such calls. The only repetitive calls that might have been non-pertinent were communications between Linda Kirkwood and a woman addressed as Nina or Sherry. The transcript of intercepted communications discloses, however, that the monitors quickly determined these communications to be nonpertinent and progressively minimized the interceptions of such calls.

Contrary to appellants’ argument, a subjective evaluation of the monitors’ good faith execution of the minimization plan was not required by the Fourth Amendment. Scott v. United States, supra. The conduct of the monitors must be reviewed objectively in light of known facts and circumstances. The Pennsylvania statute, similarly, does not require subjective evaluation. It provides that interception may not be authorized for a period of time in excess of that necessary under the circumstances, that interception must begin and end as soon as practicable, and that interception of nonpertinent communications must be minimized by reasonable efforts whenever possible. 18 Pa.C.S. § 5712(b). This is an objective standard. We will not alter the legislature’s expressed intent by requiring proof of a subjectively proper state of mind on the part of the monitors.

Assistant District Attorney Carlucci testified that the monitors had complied with the minimization plans. His testimony was supported by the transcript of intercepted communications. The use of the facility in furtherance of the conspiracy had been extensive, the language of pertinent communications had been extremely guarded, numerous calls had been of short duration, and no clear patterns of nonpertinent communications had developed. These circumstances had rendered it difficult for the monitors to determine whether communications were pertinent. We conclude, in view of all these circumstances, that the minimization performed by the monitors was reasonable. Because the minimization was reasonable, we do not consider whether the penalty for inadequate minimization with respect to some calls must be suppression of information derived from all calls intercepted.

A final report is required by 18 Pa.C.S. § 5712(e) and “shall be filed with the court at the time the authorized surveillance is terminated.” Neither the federal statute nor the law of any other state has a comparable requirement. This requirement of the Pennsylvania statute has not heretofore been interpreted by an appellate court of this Commonwealth. Appellants argue that a final report must be filed simultaneously with the termination of the surveillance and that a failure to file the same simultaneously results in a need to suppress all information acquired during the surveillance. The Commonwealth, on the other hand, would interpret this section of the Pennsylvania statute to require the filing of a final report within a reasonable time after surveillance is terminated. In view of other safeguards built into the statute, the Commonwealth argues also that suppression is an inappropriate response to a failure to file the final report timely.

In addition to a final report, the Pennsylvania statute provides that the court shall cause an inventory to be filed. See: 18 Pa.C.S. § 5716. This must be accomplished “[w]ithin a reasonable time but not later than 90 days after the termination of the period of the order or of extensions or renewals thereof.” Id. The function of a final report, the Commonwealth suggests, is to assist the supervising judge in fulfilling his duty of causing an inventory to be filed. If this be so, the ninety day time period for filing the inventory would have significance in determining the time for filing a final report.

The provisions of 18 Pa.C.S. § 5720 establish that the contents of intercepted communications shall not be disclosed in any court of the Commonwealth “unless not less than ten days before the trial, hearing or proceeding the parties to the action have been served with a copy of the order, the accompanying application and the final report under which the interception was authorized____” This section too has relevance in determining the time within which the legislature intended that a final report be filed.

We conclude that it would be an unreasonable interpretation of 18 Pa.C.S. § 5712(e) and serve no essential purpose to require suppression of all evidence obtained by an intercept whenever the final report is not filed simultaneously with the termination of surveillance. The final report must contain “a complete list of names of participants and evidence of offenses discovered.” Id. For the preparation of such a report, a reasonable amount of time must be allowed.

The final report in this case was filed 42 days after the surveillance had been terminated but more than ten days before it was to be disclosed in any proceedings before the court. The delayed filing was approved by the issuing authority. Was this delay unreasonable? We think not. Not only was the delay sanctioned by the issuing authority but it caused no prejudice. The final report was filed within the ninety day period within which to file the inventory and did not violate the time constraints of 18 Pa.C.S. § 5720.

It is unnecessary that we determine whether a total failure to file a final report constitutes a violation of 18 Pa.C.S. § 5712(e) which requires suppression of the contents of intercepted communications. See: 18 Pa.C.S. § 5721(a)(3). Where a final report is filed within a reasonable time following termination of the surveillance, suppression is not warranted. Federal courts, which have considered whether suppression is necessary where an inventory has been served late, have uniformly held that evidence will not be suppressed in the absence of prejudice resulting from the tardy filing. See: United States v. Barletta, 565 F.2d 985 (8th Cir.1977); United States v. Chun, 503 F.2d 533 (9th Cir.1974); United States v. Harvey, supra, 560 F.Supp. at 1057; United States v. Lilla, 534 F.Supp. 1247, 1273 (N.D.N.Y.1982), rev’d on other grounds, 699 F.2d 99 (2d Cir.1983); United States v. Lawson, 334 F.Supp. 612 (E.D.Pa.1971). In addition, the Supreme Court of Pennsylvania has held that suppression of evidence is an inappropriate remedy except where suppression is necessary to protect fundamental constitutional rights. See: Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985). See also: Commonwealth v. Goodman, 500 Pa.Super. 1117 (1985). We conclude, therefore, that suppression of the contents of the intercepted communications was not required under the circumstances of this case because of the date on which the final report was filed; and the trial court properly so held.

Appellants have made several additional arguments not directed against wiretap evidence. Kirkwood argues that the evidence was insufficient to support the jury’s verdict. We will not recite the evidence here. Suffice it to say that clearly it was sufficient to sustain Kirkwood’s convictions. Similarly, we reject his argument that the record failed to demonstrate an ability on his part to pay fines of $20,000 as imposed by the court. There is enough to show a lifestyle enabling him to pay the fine assessed. Doty argues that probable cause did not exist to search her residence because the information in the affidavit was obtained by using an illegal wiretap. Because we have held that the wiretap was legal, this argument must fail.

Finally, appellants contend that the suppression court erred when it held that they lacked standing to challenge the legality of the searches conducted of the other’s residence or vehicle. In holding as it did, the court relied upon a decision of this Court in Commonwealth v. Layman, 290 Pa.Super. 244, 434 A.2d 735 (1981), which, in interpreting the Pennsylvania Constitution, had applied and followed the decision of the United States Supreme Court in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Rawlings held that a defendant did not have “automatic standing” to challenge the search of and seizure from property owned and/or controlled by another but that standing depended upon the totality of the circumstances. In Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), decided after the trial court’s decision in the instant case, the Supreme Court of Pennsylvania overruled Layman and held that a defendant had “automatic standing” to challenge the validity of searches and seizures under the Pennsylvania Constitution. In this case, appellants had been charged, inter alia, with conspiracy to possess and deliver controlled substances. The substances seized during searches of their residences and Kirkwood’s vehicle were introduced to sustain charges against both appellants. Therefore, they had standing to challenge the legality of the several searches.

Nevertheless, an examination of the affidavits for warrants to search appellant’s residences and Kirk-wood’s vehicle discloses clearly the existence of probable cause to issue the search warrants. The pre-trial suppression court made findings of probable cause after a hearing in which both appellants participated. Although their challenge to the existence of probable cause was limited because of the court’s ruling regarding standing, the issue of probable cause for each search warrant was fully litigated. The existence of probable cause in each case must be determined by examining the written affidavit for each warrant. Our own examination of these affidavits discloses the existence of such cause. Perhaps this is why Kirkwood, on appeal, has not challenged the suppression court’s finding that probable cause existed to search his residence and vehicle. Doty has not contended that there was any specific inadequacy in the affidavits for the Kirkwood searches. Similarly, she has not alleged any additional facts that would have been sufficient to destroy the existence of probable cause appearing in the written affidavit. Certainly she had no greater expectation of privacy with respect to Kirkwood’s residence and car than Kirkwood, himself, had in his own home and vehicle. Moreover, Doty’s only challenge to the search of her own residence was based upon an asserted illegality of the wiretap. Kirkwood, like Doty, has not indicated to the court any facts that would support a finding that the affidavit for the warrant to search Doty’s residence failed to establish probable cause. It is abundantly clear, therefore, that even though the suppression court incorrectly held that appellants lacked standing, neither party can point to any basis on which the court could have suppressed the contraband found in the other’s residence or in the Kirkwood vehicle.

The judgments of sentence are affirmed.

      . 18 Pa.C.S. § 5701 et seq.

      . See: State v. McGillicuddy, 342 So.2d 567, 568 (Fla.App.1977); State v. Dowdy, 222 Kan. 118, 120-123, 563 P.2d 425, 427-428 (1977); State v. Siegel, 266 Md. 256, 270, 292 A.2d 86, 94 (1972); Commonwealth v. Vitello, 367 Mass. 224, 245, 327 N.E.2d 819, 833 (1975); People v. Shapiro, 50 N.Y.2d 747, 762, 409 N.E.2d 897, 906, 431 N.Y.S.2d 422, 430 (1980); Commonwealth v. Trignani, 334 Pa.Super. 526, 532 n. 3, 483 A.2d 862, 865 n. 3 (1984); 18 U.S.C. § 2516(2).

      . Section 2518(5) provides:
      (5) No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.

      . Some of the more restrictive provisions include: a designated supervising attorney, § 5712(c); certified monitors, § 5714(a); monitor’s logs, § 5714(a); and final reports, § 5712(e).

      . Kirkwood’s contention that the order did not meet the particularity requirement of § 5712(a)(4) has been waived. He did not argue the same issue to the suppression court.

      . 18 Pa.C.S. § 5712(c) provides that the Court shall "require the attorney general or the district attorney, or their designees, to be responsible for the supervision of the interception.”


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    498 A.2d 887
    COMMONWEALTH of Pennsylvania v. Daniel ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1985.
    Filed Sept. 6, 1985.

      Dante G. Bertani, Public Defender, Greensburg, for appellant.
    Terrance G. Faye, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   OLSZEWSKI, Judge:

This appeal follows judgment of sentence for robbery and criminal conspiracy to commit robbery. The convictions result from appellant’s part in the armed robbery of a gas station in Greensburg, Pennsylvania.

Appellant filed timely post-trial motions which were considered and denied by the trial court. Commonwealth filed a notice of its intent to proceed under the mandatory sentencing provision of 42 Pa.C.S. Sec. 9712. Appellant responded with a motion to prevent imposition of the mandatory sentence. The court denied the motion and sentenced appellant to a five to ten year term of imprisonment.

Appellant presents four issues. He alleges first that: the prosecutor in his opening statement unduly prejudiced appellant’s case; the evidence failed to establish that appellant had placed the victim in fear of serious bodily harm; and withdrawal of a plea offer denied appellant due process. After reviewing the record and briefs, we deem these issues meritless. We adopt, for purposes of allocatur, the lower court’s opinion.

Appellant’s fourth issue challenges the constitutionality of the Mandatory Sentencing Act, 42 Pa.C.S. Sec. 9712, et seq. He raises a battery of arguments. For the reasons below, we dismiss his challenge.

Appellant argues first that Sec. 9712 violates due process by failing to require notice in the information of Commonwealth’s intention to proceed under the Mandatory Sentencing Act. The Act does require the Commonwealth to give notice after conviction but before sentencing of its intention to proceed under Sec. 9712. 42 Pa.C.S. Sec. 9712(b). To the extent that visible possession of a firearm during the commission of an offense operates as an “aggravating circumstance” triggering application of the Act, notice post-conviction, pre-sentencing satisfies due process concerns.

It is only mandatory that the accused is informed, in the indictment, of the crime he is charged with, and any aggravating circumstances; and that he be informed, as required by due process, before receiving the enhanced sentence of the possibility of additional punishment; and that he be given the opportunity to be heard concerning the aggravated penalty.

Commonwealth v. Lee, 454 Pa. 526, 532-533, 312 A.2d 391, 394-395 (1973) (Eagen, J., concurring) (citations omitted). The information in the instant case charges that “the said actor did point a Ruger handgun at one Daniel Musgrove, an attendant at Rosey’s Mobil Station and did remove the sum of One Hundred Eighty Seven Dollars ($187.00) from the said victim.” On the facts of this case, we conclude that appellant received adequate notice of the applicability of the act.

Our Supreme Court has considered and rejected appellant’s next argument, that use of a preponderance of the evidence standard of proof to determine applicability of the act violates due process. Commonwealth v. Wright, 508 Pa. —, 494 A.2d 354 (1985). Too, appellant’s contention that the act improperly denies him the right to have a jury make the relevant factual determinations must fail. The Court in Wright explicitly approved the legislative definition: “Provisions of this section (Sec. 9712) shall not be an element of the crime____” Id, 508 Pa. at---, 494 A.2d at 357. The right to a trial by jury does not attach where: “The determination to be made will at most have bearing on the duration of the confinement, a question which has traditionally been committed to the discretion of the sentencing court.” Id., 508 Pa. at —, 494 A.2d at 362.

Appellant’s argument that the Act, by vesting unbridled discretion in the prosecutor to determine when the mandatory sentencing provisions will apply, violates both due process and the separation of powers doctrine misapprehends the nature of the Act. It is true that the language of Sec. 9712(b) would at first blush seem to empower the prosecutor to decide when and to whom the statute applies. The obligatory language of Sec. 9712, however, makes clear that the mandatory minimum sentence shall be imposed in all cases in which the sentencing court has determined that the conditions of Sec. 9712 are met. The requirement that the Commonwealth give notice of its intention to proceed under Sec. 9712 serves to ensure that the due process concerns are met. See supra; see also 1 Pa.C.S. Sec. 1921(a) (“Every statute shall be construed, if possible, to give effect to all its provisions.”)

Finally appellant contends that the Act violates Article V, Section 10(c) of the Pennsylvania Constitution and the separation of powers doctrine. The gravamen of appellant’s argument is that the Act unconstitutionally dictates the burden of proof at the sentencing hearing and the manner in which evidence must be considered. Article II, Section 1 of the Pennsylvania Constitution “vests the legislative power of the Commonwealth in the general assembly.” “The legislature has the exclusive power to determine the Commonwealth, and it alone can prescribe the punishments to be meted out for crime.” Commonwealth ex rel. Green v. Court of Oyer and Terminer and Quarter Sessions, 176 Pa.Super. 103, 106, 106 A.2d 896, 898 (1954). Ancillary to this power, the legislature may properly set the parameters of a court’s discretion in imposing sentence. Id.; see Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942); Commonwealth v. Stone, 229 Pa.Super. 24, 323 A.2d 184 (1974); see also Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernez v. United States, 450 U.S. 333, 342, 344, 101 S.Ct. 1137, 1143, 1145, 67 L.Ed.2d 275 (1981) quoting Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Article V, Section 10(c) goes to the Supreme Court’s rule-making authority. We find no conflict here.

Judgment of sentence affirmed.

APPENDIX

IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

vs.

DANIEL ANDERSON, Defendant.

No. 11 C 1983

OPINION

The Defendant, Daniel Anderson, was found guilty of the charges of Robbery, Felony I and Criminal Conspiracy after a jury trial.

The defendant was one of two individuals involved in the robbery of Rosey’s Mobil Gas Station located in the City of Greensburg, Pennsylvania. The robbery was perpetrated by use of a handgun.

The Greensburg Police upon arriving at the scene followed two sets of tracks in the fresh snow to 1340 Poplar Street. The officers spoke with the residents, Mrs. Joanne Anderson and her son, the defendant, Daniel Anderson. A search was conducted of the residence at which time the officers confiscated certain clothing used in the robbery, a .44 magnum revolver, and One-Hundred Eighty-seven ($187.00) Dollars in cash. The defendant made oral and written statements both at his residence and at the police station implicating himself in the robbery.

Defendant’s Motion for a New Trial and/or In Arrest of Judgment presents three (3) issues for consideration by this Court:

1. Whether the prosecutor’s opening statement prejudiced the jury, thereby necessitating a new trial.
2. Whether the evidence was sufficient to convict the defendant of the offenses charged beyond a reasonable doubt.
3. Whether the defendant was deprived of due process by the district attorney’s withdrawal of a plea offer in this case.

It has long been held that the language of a prosecuting officer in an opening statement which will justify a reversal must be such that its unavoidable effect is to so prejudice the jury against the accused, as to prevent a finding of a true verdict. Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970) and Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). The language used by the prosecutor in this case was not such that its unavoidable effect was to prejudice the jury against the accused. The comment objected to by the defendant provides, in pertinent part, as follows:

Now each of you has been selected to serve as a juror on a criminal case. For many of you, or perhaps even for all of you, this is a first time experience. A criminal case is rather unusual. A criminal case is not a fight or an argument between two individual people; rather, a criminal case is a case in which the Commonwealth, specifically the citizens of Westmoreland County, have charged a member of society with violating a specific law.
You will hear reference in any criminal case to a victim, but in any criminal case the true victim is society, the Commonwealth—(T.T. p. 33).

The opening statement viewed in its totality, contained evidence the Commonwealth in good faith expected to develop and did not merely make assertions intended to inflame the passions of the jury.

In addressing the sufficiency of the evidence, this Court must accept as true all the evidence upon which the finder of fact could properly have reached its verdict in favor of the Commonwealth. It is necessary to give the Commonwealth the benefit of all reasonable inferences arising from that evidence. Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976); Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973).

The defendant took the stand and admitted that he had entered into an agreement with Joseph Saflin to rob the gas station. He admitted that he did go to the gas station, that he used a .44 magnum revolver and pointed the revolver at Danny Musgrove in order to receive money from him. Clearly, under Pennsylvania law, the defendant’s conduct is enough to establish the offenses charged. It is not necessary that any additional oral threats be made by the defendant, nor is it necessary that the victims make statements regarding the fear that they may or may not have been under at the time of the robbery. Commonwealth v. Hurd, 268 Pa.Super. 24, 407 A.2d 418 (1979); Commonwealth v. Mays, 248 Pa.Super. 318, 375 A.2d 116 (1977).

The defendant’s final assertion is that he was deprived of his due process right by the withdrawal of a plea offer in this case. According to the defendant, a plea bargain had been reached to amend the information to change the robbery offense section from Section 3701(a)(l)(ii) to Section 3701(a)(l)(iv).

The Commonwealth asserts that a plea bargain was never reached and at all times the case remained on the Criminal Trial List. The Defendant has the burden of establishing on the record of this proceeding that there was a plea bargain agreement. The record is silent as to any plea bargain agreement. At no time prior to trial did the defendant raise the issue or seek a hearing demanding any specific performance of a plea bargain agreement. Defendant has failed to establish a plea bargain agreement, and further, to timely raise this issue prior to trial.

For the above-mentioned reasons, the Court enters the following Order:

Dated: September 7, 1984.

      . We note that appellant failed to file a motion to modify sentence. Our court has recently ruled that a claim addressing the constitutionality of the Mandatory Sentencing Act goes to the legality of the sentence and so cannot be waived. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985).

      . Because the question is not before us, we decline to speculate whether the due process requirement would be met in an instance where the indictment or information fails to allege visible possession of a firearm during commission of the offense.

      . The distinction is not illusory. If Commonwealth believes that it cannot establish by a preponderance of the evidence the elements of Sec. 9712, notice need not be given.


author: TAMILIA, Judge:

text:
    498 A.2d 891
    COMMONWEALTH of Pennsylvania v. Earl PALMER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1985.
    Filed Sept. 6, 1985.
    See also 276 Pa.Super. 473, 419 A.2d 555.

      Marilyn J. Gelb, Philadelphia, for appellant.

      Alan J. Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence for first degree murder. Because the crime was committed prior to enactment of 42 Pa.C.S.A. § 9711, the death sentence rendered by the jury was vacated and life imprisonment imposed. See Commonwealth v. Story, 497 Pa. 278, 440 A.2d 488 (1982).

The conviction stems from appellant’s strangulation slaying of a 71 year old female resident of the apartment building in which he resided, and his necrophilic mutilation of the body. Shortly after the murder, appellant was questioned for approximately 24 hours by police, and released for lack of probable cause to arrest. One month later he lured another woman to the apartment, now vacant, in which the killing had occurred, raped and strangled her. She survived the attack, ran outside and identified appellant as her assailant to a passing police officer, whereupon appellant was taken into custody. Three days thereafter a “bring-down” order authorizing appellant’s temporary removal from the Philadelphia House of Detention was presented by police who transported him to the Police Administration Building for interrogation concerning the murder. Appellant was told that he was being arrested for the murder, Mirandized, and during the course of the questioning which followed the arrest, appellant confessed, giving police the statement which forms the basis for the first issue raised upon appeal.

Appellant contends, in a tripartite argument, that the admission of his confession at trial was reversible error. The first rung of his syllogistic ladder is that the bring-down order under the auspices of which he was transferred to police headquarters for questioning, violated the habeas corpus statute, 12 P.S. § 1887, repealed eff. June 27, 1978, rendering his custody unconstitutional, and, as a necessary adjunct, its fruits tainted beyond admissibility. The basis for this argument is that the ex parte order, which both sides stipulated had not been signed by a judge of competent jurisdiction, but only approved by the district attorney’s office and stamped by a court clerk, is not a legal writ, as the statute requires, rendering illegal the transfer it authorized. Appellant further argues that his (re)arrest was without probable cause since only information concerning the rape augmented police evidence already available at the first (inconclusive) interrogation. This argument, too, is bottomed, somewhat unsteadily, on the invalidity of the bring-down. Appellant seems to be equating his physical removal from one place to the other with his arrest, and ascribing to the former, as necessary, the evidentiary underpinnings of the latter. The third step in the construct is that the confession was involuntary because appellant was denied assistance of counsel.

The suppression judge propounded the paradox that although the customary bring-down procedure for transferring detainees was, besides being a clear violation of the statute, “frought (sic) with the potential for constitutional and statutory violations” (Slip Op. of 6-9-77 at 3), requiring some remedial action in the form of a Rule of Criminal Procedure, no constitutional violation had occurred because the statute violated was a civil one, with concommittant civil penalty. In addition, the court found that because there was probable cause to arrest, custody under the bring-down order was valid, and that because the interrogation was for a crime not yet charged, i.e., the homicide, it was not a critical stage in the prosecution of that crime requiring the presence of counsel. It was further concluded that appellant was in any event aware of his right to counsel and had waived it. As a coda, it is pointed out that the Public Defender Association in Philadelphia, appellant’s counsel for the rape charges, does not represent homicide defendants.

Although the court’s assessment of the bring-down procedure is sound, the use made of it in formulating a resolution in this case, provided no direction for future use. The familiarity of long usage does not alter the fundamental illegality of the procedure; whether it is civilly or criminally so is irrelevant, since no penalty of any kind was imposed upon the violator(s).

We begin our analysis with the assumption that bring-down orders are proper, if and when executed with the judicial niceties observed, Commonwealth v. Broaddus, 458 Pa. 261, 342 A.2d 746 (1974). “There is nothing sinister or secretive about this procedure and it is a practice commonly used, not only in Philadelphia County, but in other counties of the Commonwealth.” Broaddus, supra; Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). However, in both Dickerson and Broaddus an actual Order was involved, representing permission sought from and granted by a court aware of the objective sought. In Commonwealth v. Trunk, 311 Pa. 555, 167 A. 333 (1933), our Supreme Court declined to determine the presence or otherwise of legal warrant in a letter from the district attorney to the warden of the prison, requesting a defendant’s release to the custody of police officers for purposes of interrogation. However, even in Trunk the Court found, without defining it, that there is a proper way of taking an accused from jail in order to exercise what was termed the right of the district attorney and investigating officers to interview him. The operative term, however, with respect to lawful execution of the procedure, is 'Order’, that is, the judicial writ required by the statute.

The definition of writ (legal being a redundancy) as it appears in Black’s Law Dictionary offers no surprises:

Writ. An order issued from a court requiring the performance of a specified act, or giving authority to have it done. A precept in writing, issuing from a court of justice, addressed to a sheriff or other officer of the law, or directly to the person whose action the court desires to command, either as the commencement of a suit or other proceeding or as incidental to its progress, and requiring the performance of a specified act, or giving authority and commission to have it done.

It is clear that the document utilized in this case, a form initialed by the district attorney, and stamped by a clerk, is an unsatisfactory substitute for an “order issued from a court,” habituation notwithstanding.

While it is true that court approval may in some, if not most, instances amount only to a formality, dispensing with it nonetheless encroaches not only upon the court’s prerogatives but upon the detainee’s constitutional rights. As Justice Manderino points out in his dissent from the (legally proper) ex parte Order in Broaddus,

“An accused (a citizen presumed innocent) is entitled, under the fourth amendment to the Federal Constitution, and Article I, section 8, of the Pennsylvania Constitution, to be secure in his person ... The first seizure of an accused (a citizen presumed innocent) pursuant to probable cause supports incarceration. It does not support successive arbitrary seizures shuffling an accused (a citizen presumed innocent) from place to place." Id. 458 Pa. at 275, 342 A.2d 753, 754. (Emphasis and parentheses in original.)

It is unquestionable that such cavalier treatment by adversarial authorities without the knowledge of the court is an invasion of rights which demands redress in appellant’s case, albeit not that requested, and for future detainees, prophylaxis. The question of remedy remains, and is dependent upon resolution of appellant’s other averments of error in regard to his confession. These present very little challenge.

The addition of information concerning the alleged rape was quite sufficient to supply police with probable cause to arrest appellant for the murder. And, although the suppression judge erred in determining that appellant’s interrogation was not a critical stage in the prosecution of the homicide, he was correct in finding that appellant had waived the presence of counsel. The absence of merit in these issues is a determinative factor in the process of fashioning an antidote to the clear statutory violation.

Appellant has alleged no prejudice from the bring-down itself. Such claims as he makes are directed toward the physical fact of the bring-down as a sort of “proximate cause" of the harm occasioned by the interrogation which followed. Because we have found probable cause in the arrest, and no violation of the right to counsel, we cannot therefore ascribe to the ex parte action such injury as to warrant suppression of the statement, or indeed to impose its condition precedent, a new trial marked by the absence of the statement. We see no reason why the civil penalty prescribed by the statute cannot be fashioned in such a way as to serve as a deterrent to future violations by the authorities involved, as appears to be the legislative intent.

Henceforth, given the absence of statute or rules to afford relief, bring-downs must, to safeguard the constitutional rights of pre-trial detainees, be by court order. Continued abuse most assuredly will result in more definitive sanctions.

Judgment of sentence affirmed.

      . Appellant has raised nine other issues. Of these, none merit our attention.

      . § 1887. Removal of prisoner by illegal process
      Any person being committed to any prison, or in custody of any officer, sheriff, jailer, keeper or other person, or his under officer or deputy, for any criminal or supposed criminal matter, shall not be removed from the said prison or custody, into any other prison or custody, unles it be by habeas corpus or some other legal writ, or where the prisoner is delivered to the constable or other inferior officer, to be carried to some common jail, or where any person is sent by any judge or justice, having proper authority, to some common workhouse or house of correction, or where the prisoner is removed from one place to another within the same county, in order to his or her trial or discharge in due course of law, or in case of sudden fire or infection or other necessity; and if any person or persons shall, after such commitment as aforesaid, make out, sign, countersign and issue any warrant or warrants for such removal, except as before excepted, then he or they shall forfeit to the prisoner or party grieved two hundred pounds, to be recovered by the prisoner or party grieved, in manner aforesaid.1 1785, Feb. 18, 2 Sm.L. 275, § 12.
      1 Section 1883 of this title.

      . We fail to see the relevance of this since presumably appointed counsel could be made available.

      . "Bring-down” and "bring-up” are interchangable terms in the context.


author: SPAETH, President Judge:

text:
    498 A.2d 895
    FRANK B. BOZZO, INC., a Corporation v. ELECTRIC WELD DIVISION OF the FORT PITT DIVISION OF SPANG INDUSTRIES, INC., a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1984.
    Filed Sept. 13, 1985.

      Beth A. Frailey, Pittsburgh, for appellant.
    Richard S. Dorfzaun, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   SPAETH, President Judge:

This is an appeal from a judgment entered in an action for breach of contract. The judgment includes an award of interest from the date of the breach. Appellant argues that the award is improper to the extent that it included interest on sums that were not fixed or ascertainable. We hold that with respect to such sums, compensation for delay in the nature of interest may nevertheless be awarded if in the circumstances of the case justice so requires. We therefore reverse and remand with instructions to the trial court to apply this standard, and to enter an award accordingly.

The action arose on appellee’s claim that appellant had breached a contract to deliver a particular sort of steel mesh for appellee to use in paving a road. After trial, in 1978, judgment was entered in appellee’s favor. On appeal, we affirmed the judgment as to liability but reversed and remanded for a new trial on damages. Bozzo v. Electric Weld, 283 Pa.Super. 35, 423 A.2d 702 (1980), aff'd 495 Pa. 617, 435 A.2d 176 (1981). At the trial on damages the jury awarded appellee $96,646.10, of which $47,774.93 was for increased overhead and administrative costs, $25,592.23 for increased equipment costs, $15,657.37 for increased steel mesh costs, and $2,872.28 for increased material costs. The trial court then molded the verdict to add $43,049.19, representing 6% interest from the date on which the contract was breached.

Appellant accepts the jury’s award of damages but challenges the trial court’s addition of interest. Appellant argues that in a breach of contract action, prejudgment interest is recoverable only where the “damages ... awarded were ascertainable at the time of the breach in accordance with the two prerequisites to the running of interest, i.e., a debt liquidated with some degree of certainty and a fixed duty to pay.” Brief for Appellant at 20. Applying this proposition, appellant concludes that the only prejudgment interest to which appellee is entitled is interest on such amount as represents “the difference in cost between F mesh and J mesh ... because these damages are ascertainable by mathematical computation from established market prices for mesh.” Id. at 23. “The trial court”, appellant states, “properly added interest on that amount.” Id. Otherwise, in appellant’s view, the court erred, for the other damages awarded by the jury were neither liquidated nor ascertainable. Id. at 24.

The contract here in question represented a transaction in “goods” within the Uniform Commercial Code, 13 Pa.C.S. §§ 2101 et seq. Id. §§ 2102, 2105. Although the U.C.C. does not expressly provide whether interest may be awarded as compensation for delay, it does provide the damages available to a buyer for breach of contract. These damages include “incidental and consequential damages.” See 13 Pa.C.S. § 2712 (buyer that has covered “may recover ... any incidental or consequential damages____”); id. § 2713 (measure of damages for nondelivery or repudiation is “difference between the market price ... and the contract price, together with any incidental and consequential damages----”); id. § 2714 (where buyer has accepted nonconforming goods, “[i]n a proper case any incidental and consequential damages ... may also be recovered”). The U.C.C. defines a buyer’s incidental and consequential damages as follows:

§ 2715. Incidental and consequential damages of buyer
(a) Incidental damages.—Incidental damages resulting from the breach of the seller include:
(1) expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected;
(2) any commercially reasonable charges, expenses or commissions in connection with effecting cover; and
(3) any other reasonable expense incident to the delay or other breach.
(b) Consequential damages.—Consequential damages resulting from the breach of the seller include:
(1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(2) injury to person or property proximately resulting from any breach of warranty.
13 Pa.C.S. § 2715.

Comment 1 to § 2715 states that subsection (a)

is intended to provide reimbursement for the buyer who incurs reasonable expenses in connection with the handling of rightfully rejected goods or goods whose acceptance may be justifiably revoked, or in connection with effecting cover where the breach of the contract lies in non-conformity or non-delivery of the goods. The incidental damages listed are not intended to be exhaustive but are merely illustrative of the typical kinds of incidental damage.

We think that under § 2715(a)(3), appellee may recover prejudgment interest as an “[ijncidental damage[] resulting from [appellant’s] breach” if that interest represents a “reasonable expense incident to the delay or other breach.” Id. Let us assume that because of appellant’s delay or other breach, appellee had to spend money it would not otherwise have spent. That money could have been earning interest. Depending on the particular circumstances, the loss of that interest may have been a “reasonable expense incident to [appellant’s] delay or other breach.”

This conclusion is consistent with the general purpose of the U.C.C. In particular, the U.C.C. provides that “the remedies provided by this title shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this title or by other rule of law.” 13 Pa.C.S. § 1106 (emphasis added). Here, the jury found, and appellant does not dispute, that appellant’s breach caused appellee to spend $96,656.10 at various times during 1974 and 1975, and that appellant is obliged to reimburse appellee for these expenses. Whether those expenses are described as liquidated or ascertainable damages, or by any other adjective, the fact remains that because of appellant’s failure to pay them, appellee may have incurred reasonable expense in the form of lost interest. If this is so, then, to be “put in as good a position as if [appellant] had fully performed”, 13 Pa.C.S. § 1106, appellee’s damages must include payment of the interest it was unable to earn because the money on which it could have earned the interest had to be spent to meet the expenses incident to appellant’s breach of contract.

Appellant insists, however, that “[t]here is no precedent to support a discretionary award of prejudgment interest in this case.” Brief for Appellant at 28. We disagree with this statement. To the contrary, an examination of the precedents discloses that the common law of Pennsylvania is in accord with the provision of the U.C.C. that a buyer may recover as incidental damages “any ... reasonable expense incident to the delay or other breach.” 13 Pa.C.S. § 2715(a)(3).

We may start by considering contract actions where the breach was a failure to pay either a fixed sum or a sum mathematically ascertainable, as, for example, by reference to market prices. In this type of case an award of prejudgment interest has been characterized as a right to which the plaintiff is entitled, see Palmgreen v. Palmers Garage, 383 Pa. 105, 108, 117 A.2d 721, 722 (1955), and this is true even if there was a bona fide dispute as to the amount of the debt, id. See also Restatement Contracts § 337(a), adopted in Penneys v. Pennsylvania Railroad Co., 408 Pa. 276, 183 A.2d 544 (1962); Restatement Contracts Second § 354(1). The justification for an award of prejudgment interest is that because the defendant knew or at least could have learned the amount of his debt, he should have tendered that amount to the plaintiff. Since he did not, and by failing to do so caused the delay of litigation, he has deprived the plaintiff of the use of that amount from the date of the breach to the date of the satisfaction of the judgment. Or to state it conversely, the defendant has for that period had the use of money now known to have been the plaintiffs. See generally, 5 Corbin on Contracts, §§ 1047, 1048 (1964), Restatement Second Contracts § 354, Comment d.

Where, however, the contract action is to recover an amount that is neither liquidated nor ascertainable, the defendant is unable to make a tender because he does not know what amount will satisfy his obligation. Because of this inability, some states have held that in such cases prejudgment interest may not be awarded. Corbin, supra, § 1048, note 3 (collecting cases). This rule has been criticized on the ground that “[i]n every case the plaintiff has suffered injury that ought to have been made good at once. If it had been made good, he would have had the use of all the money so paid him____ The principle of full compensation requires that he should receive the value of this use in the form of interest.” Id., 408 Pa. at 288,183 A.2d 544. To the same effect, the United States Supreme Court has stated: “It has been recognized that a distinction in this respect, simply as between cases of liquidated and unliquidated damages, is not a sound one. Whether the case is of one class or the other, the injured party has suffered a loss which may be regarded as not fully compensated if he is confined to the amount found to be reasonable as of the time of the breach and nothing is added for the delay in obtaining the award of damages.” Funkhouser v. Preston, 290 U.S. 163, 168, 54 S.Ct. 134, 136, 78 L.Ed. 243 (1933) (footnote omitted). Similarly, both Restatements of Contracts state that in cases where the debt is neither liquidated nor ascertainable, interest may be allowed as “justice requires”, “on the amount that would have been just compensation if it had been paid when performance was due.” See Restatement Contracts § 337(b); Restatement Second Contracts § 354(2).

The common law in Pennsylvania is in accord with the Restatement view, although the cases express that view differently than do the Restatements. Thus, the cases draw a distinction between, on the one hand, interest as such, which is said to be recoverable only where the breach was a failure to pay a fixed sum or a sum mathematically ascertainable, and on the other hand, “compensation for delay”, which is said to be “in the nature of interest” and is measured by the legal rate of interest. For example, in Richards v. Citizen’s Natural Gas Company, 130 Pa. 37, 18 A. 600 (1889), it is said:

Interest as such is recoverable only where there is a failure to pay a liquidated sum due at a fixed day, and the debtor is in absolute default. It cannot, therefore, be recovered in actions of tort, or in actions of any kind where the damages are not in their nature capable of exact computation, both as to time and amount. In such cases the party chargeable cannot pay or make tender until both the time and the amount have been ascertained, and his default is not therefore of that absolute nature that necessarily involves interest for the delay. But there are cases sounding in tort, and cases of unliquidated damages, where not only the principle on which the recovery is to be had is compensation, but where also the compensation can be measured by market value, or other definite standards. Such are cases of the unintentional conversion or destruction of property, etc. Into these cases the element of time may enter as an important factor, and the plaintiff will not be fully compensated unless he receive, not only the value of his property, but receive it, as nearly as may be, as of the date of his loss. Hence it is that the jury may allow additional damages, in the nature of interest, for the lapse of time. It is never interest as such, nor as a matter of right, but compensation for the delay, of which the rate of interest affords the fair legal measure.
Id., 130 Pa. at 39-40, 18 A. at 600.

And see Marrazzo v. Scranton Nehi Bottling Co., Inc., 438 Pa. 72, 76-77, 263 A.2d 336, 337 (1970) (collecting cases).

Whether this distinction is a mere play on words is not for us to say, and is of no importance. What is important is that even where the breach was not the failure to pay a fixed or ascertainable sum, still the buyer may be entitled to recover “compensation for delay.” To be sure, recovery will not be “a matter of right,” as it is with “interest.” Marazzo v. Scranton Nehi Bottling Co., Inc., supra, 438 Pa. at 75, 263 A.2d at 337. Rather, it will be “an issue for the finder of fact, the resolution of which depends upon all the circumstances of the case”. Id.

In considering whether “the circumstances of the case” warrant an award of “compensation for delay”, the Supreme Court has said that “one important element” will be whether the fault for nonpayment rests with the defendant or the plaintiff. Marrazzo v. Scranton Nehi Bottling Co., Inc., supra, 438 Pa. at 75, 263 A.2d at 338. If, for example, the delay occurred because the defendant was obliged to resist an excessive demand by the plaintiff, it may well be that no damages for delay are warranted. Id. Stated generally, the inquiry must be whether in the circumstances of the cases “the plaintiff will not be fully compensated unless he receive” compensation for delay. Richards v. Citizen Natural Gas Company, supra 130 Pa. at 40, 18 A. at 600.

Professor Dobbs, in his treatise on remedies, sets forth an analysis essentially the same as the Supreme Court’s. Although he does not distinguish between interest as such and compensation for delay, he emphasizes that compensation is the most important consideration and that whether the plaintiff has been fully compensated will depend upon the circumstances of the case. Thus he states:

Courts have seemed to feel that it would be unfair to award interest on sums due from the defendant if he could not ascertain what those sums were and pay them to end the accrual of interest. This is the basis for the rule that affords interest only on liquidated or ascertainable claims but not on others. This attitude won’t bear scrutiny. If the plaintiff has actually lost the use of his money, or the use of any other form of property, and if compensation is the goal of damages, he should be entitled to interest or some other measure of his loss whether the exact sum due him as principal is ascertainable or not. It is no more unfair to the defendant to hold him for interest on a sum he could not ascertain in advance than it is to hold him for the unascertainable sum itself, if interest does indeed measure the plaintiff’s loss of use of the money or property. It is not, of course, a foregone conclusion that the plaintiff has lost interest or other use value of money or property, merely because moneys or properties due him were detained. But neither is it a foregone conclusion that he has no loss.
Cases denying an award of interest also seem to assume that the defendant has received no gains by holding moneys due the plaintiff. Here again, this assumption may be correct in some cases, but it is certainly not in all of them. The landowner who does not pay his contractor when due may have a bona fide belief that no further sum is due. But if he is wrong and the contractor was entitled to the sum of $10,000 on June 1, then the landowner who delays payment for two years has had the use or use value of that $10,000 for a two year period. Either the landowner had the money in which case he could have invested it and produced the interest, or he would have had to borrow the money and pay the interest. In the former case, it is not unfair to make him disgorge the interest earned, or that which could have been earned by safe investment, not because he is a wrongdoer, but because he earned the interest by use of the plaintiffs money. In the latter case, the principle is much the same, except that the landowner has saved the payment of interest on a loan that would have been required if he was to pay the contractor when the money was due. Full acceptance of all this does not compel the award of interest in every case. It compels only the abandonment of the analysis based on liquidated or ascertainable claims. What remains when all the talk of liquidated and ascertainable claims is excised is a fairly rational collection of guidelines. (1) Would an award of interest duplicate any other elements already awarded? (2) Was there actually any loss by the plaintiff, and if not (3) was there any unjust gain by the defendant reasonably measurable in terms of interest? (4) Was there a contract between the parties on which the claim is based, and if so, does the nature of the contract indicate an intent to either charge or forego interest in the situation before the court? The answers to these questions would furnish a reasonable guide to the award of interest. Since courts have moved steadily toward more liberal grants of interest, and have increasingly departed from standards based upon liquidation of claims it seems reasonably likely that some such set of guidelines, of approximately, if not exactly, this order, will affect decisions—subject, of course, to local statutes.
D. Dobbs, Remedies 173-174 (1974).

We therefore conclude that under both the U.C.C. and the common law of Pennsylvania, in an action for breach of contract the factfinder may in a proper case award damages for delay. Where the breach was the failure to pay a fixed or ascertainable sum, the damages will be awarded in the form of “interest as such” and as “a matter of right.” Marrazzo v. Scranton Nehi Bottling Co., Inc., supra, and cases there collected. Otherwise, the damages will be awarded as necessary to ensure that in the particular circumstances of the case, the plaintiff has been fully compensated. Id. Such damages are designated not “interest as such” but rather “compensation for delay” “in the nature of interest”, and are measured by the legal rate of interest. Id. The test for determining whether the plaintiff has been fully compensated has been variously stated, by the cases (“depends upon all the circumstances of the case”), the U.C.C. (“reasonable expense incident to the delay or other breach”), and the Restatements (“as justice requires”). The differences in these statements, however, are in our judgment stylistic only, not substantive.

In the present case, after the jury had returned its verdict, the parties agreed that the trial court should determine whether appellee was entitled to damages for delay. The court then awarded, as we have mentioned, $43,049.19, representing 6% interest on the verdict from the date on which the contract was breached. In its opinion in support of this award the trial court properly rejected appellant’s argument that the award should have been limited to interest on only so much of the verdict as represented damages for appellant’s failure to pay a fixed or ascertainable sum. Slip op. of tr. ct. at 21-26. The court did not, however, explain by what reasoning it had determined that the interest it awarded should be from the date on which the contract was breached. Rather, the court’s discussion is limited to an examination of the law regarding when damages for delay may be granted, with no application of that law to the particular facts of this case.

A similar situation arose in Marrazzo v. Scranton Nehi Bottling Co., Inc., supra. There too the trial judge merely stated that interest was to be paid from a certain date. The court en banc expressed the opinion that the record did not support such an award, and that “in fairness to all parties”, a later date was “more appropriate.” Id. 438 Pa. at 76, 263 A.2d at 338. The Supreme Court held that the court en banc had erred, for nothing on the record demonstrated either that the trial judge had “employed the proper legal standard or what circumstances he considered in arriving at his decision.” Id. Pointing out that “[a]ll circumstances relevant to the delay must be developed and analyzed,” the Court vacated the judgment as to interest and remanded “so that the trial court can make findings of fact and conclusions of law as to the delay and determine whether compensation for that delay should be part of the final award.” Id., 438 Pa. at 77, 263 A.2d at 338. On the record before us, the same order is required.

The judgment as to interest is vacated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Comment as to Restatement Second Contracts § 354 states that that “[s]ection does not deal with the injured party’s right to interest to compensate him for expenditures occasioned by the breach.” The comment then refers to § 347, which provides, as do 13 Pa.C.S. § 2712-2715, that an injured party has a right to damages which include "any other loss, including incidental and consequential loss, caused by the breach____”

      . Judge, now Chief Judge, ALDISERT of the Court of Appeals for the Third Circuit has described it as "a charming legal fiction in the true ancient Roman fictio, fictiones sense ...” American Enka Co. v. Wicaco Machine Corporation, 686 F.2d 1050, 1056 (3d Cir.1982).

      . Appellant also argues that the trial court erred in not admitting certain testimony into evidence. We do not discuss this argument, for the trial court’s opinion adequately disposes of it.