author: McEWEN, Judge:

text:
    475 A.2d 773
    COMMONWEALTH of Pennsylvania, Appellant, v. Catherine Spear FRIED, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1982.
    Filed April 13, 1984.
    Petition for Allowance of Appeal Denied Aug. 1, 1984.

      James B. Jordan, Assistant District Attorney, Media, for Commonwealth, appellant (at No. 1344) and appellee (at No. 1435).
    Norris E. Gelman, Media, for appellant (at No. 1435) and for appellee (at No. 1344).
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   McEWEN, Judge:

Catherine Spear Fried, hereinafter defendant, was convicted by a jury of first degree murder. Post-verdict motions were timely filed and argued before a court en banc which granted defendant a new trial on the grounds that the Commonwealth had failed to establish the corpus delicti of murder beyond a reasonable doubt prior to introducing certain admissions made by the defendant. The Commonwealth has appealed from the order of the court en banc, and argues that the corpus delicti was properly established and that the admissions made by the defendant were, therefore, properly admitted. The defendant has also filed an appeal, alleging that since the court en banc correctly concluded that the corpus delicti was not established, it was error to order a new trial as such a conclusion requires that she be discharged. While we agree that appellant is entitled to a new trial, we do so for reasons other than those expressed by the court en banc.

It is well-settled that before the Commonwealth may introduce a confession or admission made by an accused, it must first establish by independent evidence that a crime has in fact been committed. Commonwealth v. Smallwood, 497 Pa. 476, 483, 442 A.2d 222, 225 (1982); Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980); Commonwealth v. Moore, 466 Pa. 510, 513, 353 A.2d 808, 809 (1976); Commonwealth v. Cockfield, 465 Pa. 415, 420, 350 A.2d 833, 836 (1976); Commonwealth v. Elder, 305 Pa.Super. 49, 51, 451 A.2d 236, 237 (1982); Commonwealth v. Frison, 301 Pa.Super. 498, 504, 448 A.2d 18, 21 (1982). This evidentiary requirement, known as the corpus delicti rule, “is rooted in a hesitancy to convict one of crime on the basis of his own statements only. ‘The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed . . . .’ ” Commonwealth v. Moore, supra, 466 Pa. at 513, 353 A.2d at 809 quoting Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974). Accord Commonwealth v. Learner, 449 Pa. 76, 83, 295 A.2d 272, 275 (1972); Commonwealth v. Palmer, 448 Pa. 282, 286, 292 A.2d 921, 922 (1972); Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940); Commonwealth v. Herman, 288 Pa.Super. 219, 230, 431 A.2d 1016, 1022 (1981).

However, while the corpus delicti rule requires that the Commonwealth establish through independent evidence that a crime has occurred before the admissions of an accused may be admitted in evidence and the case submitted to the fact-finder, the threshold requirement that the corpus delicti of the crime be established “is not equivalent to the Commonwealth’s ultimate burden of proof. Although independent corroborative evidence is insufficient if it is merely equally as consistent with accident as with crime, Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967), the prosecution has no duty to exclude the possibility of accident in order to establish the corpus delicti. Before introducing an incriminating out-of-court statement the Commonwealth need not prove the existence of a crime beyond a reasonable doubt.” Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980) (citations omitted) (emphasis supplied). Accord Commonwealth v. Moore, supra 466 Pa. at 514 n. 2, 353 A.2d at 810 n. 2; Commonwealth v. Ware, supra 459 Pa. at 367 n. 43, 329 A.2d at 275 n. 43.

Thus, the rule requires the Commonwealth must sustain an initial burden of proof by preliminarily establishing to the satisfaction of the trial judge that the death occurred under circumstances which were more consistent with criminality than with natural causes or accident. Once the Commonwealth has sustained this initial and preliminary burden of proof, which is admittedly slight, the admissions of the accused become admissible. It is for the trial judge to decide whether the Commonwealth has sustained the burden of preliminarily establishing the corpus delicti. This preliminary burden of proof must be distinguished from the Commonwealth’s ultimate burden of proof, namely, the requirement that it establish beyond a reasonable doubt each and every element of the crime to the satisfaction of the fact-finder. It is only when the fact-finder— here, the jury — is satisfied beyond a reasonable doubt that each and every element of the crime has been established that a verdict of guilty may be rendered. When, in a jury trial, the corpus delicti of the crime is in issue and the Commonwealth seeks to use admissions of the accused as substantive evidence of the crime, the court, as we will hereinafter more carefully explain, must instruct the jury to first pass upon whether sufficient evidence, aside from any admissions made by the defendant, has been offered to establish beyond a reasonable doubt the corpus delicti of the crime. Only if the jury is first satisfied that the evidence, independent of the admissions of the defendant, establishes beyond a reasonable doubt the occurrence of the crime, may it proceed to consider the admissions of the defendant as substantive evidence of the guilt of the accused.

The defendant was indicted for the murder of her husband, Paul Fried, M.D. Thus, it was incumbent upon the Commonwealth to establish to the satisfaction of the judge the corpus delicti of murder by evidence independent of admissions made by Mrs. Fried. The corpus delicti of murder consists of evidence “ ‘that a human being is dead and that such death took place under circumstances which indicate criminal means or the commission of a felonious act.’ ” Commonwealth v. Ware, supra 459 Pa. at 365, 329 A.2d at 274 quoting Commonwealth v. Milliken, 450 Pa. 310, 317, 300 A.2d 78, 82 (1973). Accord Commonwealth v. Kingsley, 480 Pa. 560, 575, 391 A.2d 1027, 1035 (1978); Commonwealth v. Tallon, 478 Pa. 468, 473, 387 A.2d 77, 80 (1978) (Opinion in Support of Affirmance); Commonwealth v. Burns, 409 Pa. 619, 625, 187 A.2d 552, 556 (1963); Commonwealth v. Davis, 308 Pa.Super. 204, 213, 454 A.2d 92, 97 (1982) allocatur denied February 28, 1983; Common wealth v. Williams, 273 Pa.Super. 578, 582, 417 A.2d 1200, 1202 (1980).

The Commonwealth sought to establish at trial that the defendant, Mrs. Fried, had caused the death of her husband, Dr. Fried, during the early morning hours of July 23, 1976 by smothering him with a pillow while he slept. The defense contended that Dr. Fried died from natural causes. The Commonwealth was required to establish therefore, prior to introducing admissions made by appellant, that Dr. Fried’s death “took place under circumstances which indicate[d] criminal means. . . .” Commonwealth v. Ware, supra. The court en banc concluded that the evidence, independent of the admissions allegedly made by the defendant, as recited hereinafter, was insufficient to sustain the Commonwealth’s preliminary burden of establishing the corpus delicti of murder. We shall, therefore, recite the evidence produced during the trial which was relevant to the cause of Dr. Fried’s death, excluding admissions allegedly made by the defendant.

The defendant and Dr. Fried were married in July of 1975. The marriage was a stormy one which involved frequent arguments and occasional physical violence. At the time of Dr. Fried’s death on July 23, 1976, the parties were residing in separate residences.

Dr. Fried, who was approximately 61 years of age, had been treated for mild diabetes and hypertension and may have suffered a mild, “silent” heart attack prior to March of 1976. On March 2, 1976, Dr. Fried was brought by the defendant and the police rescue squad to the emergency room of Jefferson Hospital suffering from a non-lethal overdose of drugs and alcohol. Dr. Fried refused to be admitted and left the emergency room, against medical advice, a few hours later. Approximately two months thereafter, on April 29, 1976, Dr. Fried was again brought by the defendant and the rescue squad to the emergency room suffering from the combined effects of drugs and alcohol. Dr. Fried was admitted as a patient at this time for treatment of a drug and alcohol dependency as well as for treatment of a broken neck bone sustained in a fall a few days prior to his admission to the hospital. Upon release from the hospital one month later, Dr. Fried, still wearing a neck brace, moved into the defendant’s apartment in the Penn Towers Apartment building for a period of convalescence. When, early in July the police responded to a report concerning a disturbance at the Penn Towers Apartment and discovered the defendant and Dr. Fried arguing in the hallway outside of their apartment, Dr. Fried complied with the officers’ suggestion that he leave the apartment temporarily. Thereafter, on July 21, 1976, one of the same officers noticed a disturbance on the street outside of the Penn Towers Apartment building. The defendant and Dr. Fried were arguing and both were pulling at a small bag which Dr. Fried was trying to place in his receptionist’s car. The defendant, who was extremely agitated, insisted to the officer that he was under a duty to arrest Dr. Fried as he “was a doctor” ... “was a junkie” ... and “was prescribing his own narcotics.” The officer explained that he could not arrest Dr. Fried and after more discussion, all of the parties proceeded to the Central Detectives’ office. The defendant signed a complaint against Dr. Fried which resulted in his arrest for harassment. Dr. Fried then returned to his residence on Waverly Street.

Mrs. Ruth Kennedy, a business partner of the defendant, testified that on July 21, 1976, she and Gerald Sklar delivered a suitcase to Dr. Fried at his Waverly Street home following this incident. Mrs. Kennedy testified that Dr. Fried “looked terrible — he had — he had on a bathrobe and the bathrobe was hanging open — that’s all he had on — and he was completely exposed at the time. He didn’t look like he knew — I don’t think he even knew who I was.” Mrs. Kennedy also testified that the defendant had told her that the following day, July 22, 1976, Dr. Fried had called her and requested that she bring a sandwich to him at the Waverly Street house. The defendant told Kennedy that she had purchased a hamburger and then stopped at the Waverly Street home of Mr. Norman Berman so that he might accompany her into the house while she delivered the sandwich to Dr. Fried. Mr. Berman did so and testified that he heard two voices conversing in normal tones while he waited on the first floor.

The same date, July 22, 1976, the defendant contacted Robert Brotman, M.D., Chief Psychiatrist of the out-patient clinic at Jefferson Hospital, by telephone at approximately 4:00 p.m., and told Dr. Brotman that she believed her husband to be in need of psychiatric help and wanted him to be evaluated, possibly for an emergency commitment. Dr. Brotman agreed to meet Mrs. Fried at his office the following morning and to proceed from there to the residence of Dr. Fried. The defendant and Ruth Kennedy arrived at Dr. Brotman’s office, as arranged, and proceeded to Dr. Fried’s home. They arrived at approximately noon and Dr. Brotman and Mrs. Kennedy remained downstairs while the defendant went up to the bedroom. Dr. Brotman testified that upon hearing the screams of the defendant, he ran up the stairs and saw Dr. Fried lying on his stomach naked between the bed and the night table. Dr. Brotman pronounced Dr. Fried dead and the police and medical examiner’s office were notified.

An investigation of the scene revealed no evidence of criminality. The defendant was interviewed and told investigators that Dr. Fried had a history of drug and alcohol abuse, that she had seen pills scattered in the bathroom and a bottle of whiskey in the kitchen on the previous day, and that a week earlier Dr. Fried had been under the influence of drugs and had assaulted her. Based upon his investigation at the scene and the information received from the defendant, Halbert Fillinger, M.D., Assistant Medical Examiner for the City of Philadelphia, executed a death certificate indicating that Dr. Fried had died as a result of suicide by ingestion of unknown substances. After Dr. Fillinger took blood, urine and stomach content samples, the body was released to a funeral home where it was embalmed. When Dr. Fried’s daughter, Mrs. Carlie Haas, insisted to Marvin Aronson, M.D., Chief Medical Examiner of Philadelphia, that it was impossible to believe that her father’s death was the result of suicide and requested an autopsy, Dr. Aronson refused to perform an autopsy unless Mrs. Haas executed an affidavit of criminality. Mrs. Haas refused to execute such an affidavit and instead retained Milton Halpern, M.D., former Medical Examiner for the City of New York, to perform an autopsy. Dr. Halpern performed the autopsy upon the embalmed body of Dr. Fried five days after the death, on July 27, 1976, with Dr. Aronson present as an observer for approximately 80% of the autopsy. Dr. Halpern issued on September 8, 1976, a lengthy report containing detailed descriptions of his observations as well as the results of chemical tests for alcohol and drugs and concluded that, based upon the autopsy and toxicological studies of body samples, Dr. Fried’s death had not been the result of suicide and was attributable to natural causes.

Thereafter, on January 17, 1977, the Philadelphia Medical Examiner’s office issued a report of the results of chemical analyses of the blood, urine and stomach content samples removed by Dr. Fillinger which confirmed Dr. Halpern’s findings that there was no alcohol and insufficient amounts of drugs to cause death. The body of Dr. Fried was then released by the Medical Examiner’s office and cremated on February 15, 1977. Dr. Aronson issued a second death certificate on May 9, 1977, in which the cause of death was listed as “undetermined”.

When Dr. Halpern died a few months after issuing his report, the Commonwealth retained Dr. Michael Baden, Deputy Chief Medical Examiner of New York City, as an expert witness. Since the body of Dr. Fried had been cremated prior to his retention, Dr. Baden based his opinions upon the medical and pathological evidence collected by Dr. Halpern and by the Office of the Medical Examiner. Dr. Baden testified at trial that it was his expert medical opinion, to a reasonable degree of medical certainty, that Dr. Fried died either as a result of natural causes or suffocation. Dr. Baden testified that “[t]he factors that are consistent with and suggestive of smothering, and which makes me feel that smothering is the most likely diagnosis, are the injuries to the face and neck, hemorrhages in the whites of the eyes — .” Dr. Baden was, however, unable to state that suffocation was, to a reasonable degree of medical certainty, the cause of death of Dr. Fried.' Rather, Dr. Baden testified that “on the basis of the information, on the basis of the information presented thus far, and I underline that, because in fairness there’s other information always applicable in determining the cause of death which we haven’t discussed, we never make it only in the autopsy, but on the basis of the information thus far, I would have to conclude, for purposes of the death certificate, that the cause of death is undetermined at this time, even though the most — it’s entirely consistent with and most suggestive, to my mind, of suffocation, I can’t rule out heart disease, I can’t prove it, so that I would have to leave it undetermined between suffocation and heart disease.” Dr. Baden testified that he could not give a cause of death, for purposes of a death certificate but that in his opinion, which was not based upon a reasonable degree of medical certainty, the cause of death was suffocation. Dr. Baden testified, however, that if death was caused by smothering, then that death was undoubtedly the result of a criminal agency.

Philadelphia Chief Medical Examiner Marvin Aronson, M.D., was called by the defense as an expert pathologist and testified that while he still did not have an opinion with a reasonable degree of medical certainty as to the cause of death of Dr. Fried, “the chances of the death in this instance, with the history as I know it of being related to criminality are less than the chances of it being related to natural death or to accident or to suicide, in my opinion.” Dr. Aronson also testified that it was his opinion that the defendant could not have held Dr. Fried down and smothered him as Gerald Sklar, a principal prosecution witness, had alleged.

The court en banc correctly concluded that the expert medical testimony on causation did not establish beyond a reasonable doubt that Dr. Fried’s death was the result of a homicide. However, “the proof necessary to establish the corpus delicti in order to render a confession admissible must be carefully distinguished from the Commonwealth’s ultimate burden of proof.” Commonwealth v. Moore, su pra 466 Pa. at 515, 353 A.2d at 810. Accord Commonwealth v. Byrd, supra 490 Pa. at 556, 417 A.2d at 179. “ ‘The corpus delicti is sufficiently established if the circumstances of the death are consistent with crime, even though they may also be consistent with’ other causes of death.” Commonwealth v. Tallon, supra 478 Pa. at 474, 387 A.2d at 80 quoting Commonwealth v. Frazier, 411 Pa. 195, 202, 191 A.2d 369, 373 (1963) (emphasis supplied). Accord Commonwealth v. Cockfield, supra 465 Pa. 420, 350 A.2d at 836; Commonwealth v. Boykin, 450 Pa. 25, 29, 298 A.2d 258, 260 (1972); Commonwealth v. Gockley, 411 Pa. 437, 454, 192 A.2d 693, 702 (1963); Commonwealth v. Ross, 403 Pa. 358, 367, 169 A.2d 780, 785 (1961); Commonwealth v. Williams, supra 273 Pa.Super. at 584, 417 A.2d at 1202.

While the evidence of causation offered by the Commonwealth did not establish the cause of death beyond a reasonable doubt, it wAs sufficient to preliminarily establish the corpus delicti for the purpose of rendering admissible the admissions made by appellant. Moreover, the expert opinion rendered by Dr. Baden, that, under all of the attendant circumstances, suffocation was the most probable cause of death, distinguishes this case from those where the independent evidence was equally consistent with both a criminal and a non-criminal explanation for the loss or injury. See Commonwealth v. Moore, 466 Pa. 510, 515, 353 A.2d 808, 810 (1976). Cf. Commonwealth v. Leslie, 424 Pa. 331, 335, 227 A.2d 900, 903-904 (1967); Commonwealth v. Elder, 305 Pa.Super. 49, 451 A.2d 236 (1982); Commonwealth v. Moyer, 277 Pa.Super. 172, 419 A.2d 717 (1980); Commonwealth v. Winter, 174 Pa.Super. 35, 98 A.2d 221 (1953). While Dr. Aronson testified that it was his expert opinion that Dr. Fried’s death was most likely the result of natural or noncriminal causes, the conflicts in the expert testimony were for the fact-finder to resolve. Commonwealth v. Cartagena, 272 Pa.Super. 485, 489, 416 A.2d 560, 563 (1979). Similarly, the fact that Dr. Aronson observed the autopsy performed by Dr. Halpern while Dr. Baden had seen neither the body nor the autopsy performed thereon, was a factor to be considered by the jury, which was free to accept all, part or none of the expert testimony. Commonwealth v. Newman, 323 Pa.Super. 394, 400, 470 A.2d 976, 979 (1984); Commonwealth v. Owens, 315 Pa.Super. 400, 404, 462 A.2d 255, 257 (1983).

The admissions made by the defendant were, therefore, properly admitted into evidence, the corpus delicti having been preliminarily established by evidence independent of statements made by the defendant.

The court en banc awarded appellant a new trial on the grounds that the Commonwealth had failed to establish the corpus delicti beyond a reasonable doubt and ruled that, therefore, the admissions made by appellant were improperly admitted in evidence. We disagree and conclude that the Commonwealth presented sufficient evidence of the corpus delicti of the crime of murder to permit the introduction of admissions made by appellant. We are constrained, however, to affirm the order of the court en banc awarding appellant a new trial. It is well-settled that an appellate court “may affirm the action of the lower court on a different rationale than that advanced by the lower court. Commonwealth v. Meischke, 273 Pa.Super. 134, [139] n. 3, 416 A.2d 1126, 1128 n. 3 (1979).” Scantlin v. Ulrich, 318 Pa.Super. 407, 412, 465 A.2d 19, 21 (1983).

As we have observed, a confession or admission made by one accused of homicide is admissible once the corpus delicti has been established by evidence of a death under circumstances which are consistent with a felonious killing. However, before the case is submitted to the jury the trial court is required to instruct the members of the jury that they must first be convinced beyond a reasonable doubt of the existence of the corpus delicti before they may consider an admission of or a confession by an accused as evidence of the guilt of the accused. The Pennsylvania Supreme Court, in 1882, held that “when the Commonwealth has given sufficient evidence of the corpus delicti to entitle the case to go to the jury, it is competent to show a confession made by the prisoner connecting him with the crime. Under such circumstances the jury should first pass upon the sufficiency of the evidence of the corpus delicti. If it satisfies them beyond a reasonable doubt that a crime has been committed, then they are at liberty to give the confession such weight as it is entitled to, taking into view the circumstances surrounding it, and the extent to which it has been corroborated.” Gray v. Commonwealth, 101 Pa. 380, 386 (1882) (emphasis supplied). The Supreme Court reiterated the holding of Gray some sixty years later in Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155 (1943), when the Court noted that “the rule requires that the jury may not consider such confession as evidence of the defendant’s guilt of the crime charged, unless the Commonwealth shall have produced evidence sufficient to convince the jury beyond a reasonable doubt that the crime charged was committed by someone.” Id., 346 Pa. at 501, 31 A.2d at 157 (emphasis supplied). More recently, in Commonwealth v. Tallon, supra, Chief Justice Emeritus Henry X. O’Brien, author of the Opinion in Support of Affirmance , noted that “[i]t is the rule in this Commonwealth that before a jury can consider a defendant’s confession, it must be convinced beyond a reasonable doubt that the corpus delicti has been established.” Id. 478 Pa. at 475, 387 A.2d at 81 (emphasis supplied). See also Commonwealth v. Hanna, 267 Pa.Super. 15, 19, 405 A.2d 1280, 1282 (1979) allocatur denied, October 2, 1979.

The trial judge charged the jury on corpus delicti as follows:

Now, ladies and gentlemen of the jury, during the course of the testimony in this case the Commonwealth presented testimony from Mr. Selkow and Mr. Sklar. Now you must understand the following very clearly: You may not consider whatever these two men may have said as evidence against the defendant unless you first find that a crime was, in fact, committed. The Commonwealth has the burden of proving this matter by evidence independent of any of the statements or testimony given by either of Messrs. Selkow or Sklar.
You will note that the other evidence whatever it may be, if you find it such, need not rule out all possibility of accident, natural causes or suicide, or other non-criminal cause. It is enough if you are satisfied that the circumstances are more consistent with a criminal homicide having resulted from the crime of murder than from other causes that might be here involved. Accordingly, ladies and gentlemen, you may not consider the alleged statements of either Selkow or Sklar as evidence against the defendant unless you first find, beyond a reasonable doubt, that a crime was in fact committed. The Commonwealth has the burden of proving this matter by evidence independent of the statement itself, or whatever statements or testimony was given. Please remember, the other evidence that’s presented need not prove that the crime was committed by this defendant, but only that a crime was committed by someone. More precisely, therefore, ladies and gentlemen, you should remember this: You must disregard all the statements made by Michael Selkow and Gerald Sklar unless and until you are satisfied by other evidence that, first, Dr. Fried is dead, and secondly, that his death was probably caused by someone feloniously killing him.
A killing, ladies and gentlemen of the jury, is felonious if it is either murder or voluntary manslaughter.
You should remember, when considering this aspect of this case: The other evidence need not rule out all possibility of accident, suicide or natural causes. It is enough if you are satisfied that the circumstances are more consistent with death having been caused by a felonious killing them in some other way. [N.T. 8.113-8.115] (emphasis supplied).

Thus, while the trial court did at one point instruct the jurors that they were not to consider the admissions allegedly made by the defendant unless they were convinced beyond a reasonable doubt that a crime had been committed, the court repeatedly explained to the members of the jury that they need only find that Dr. Fried’s death was more consistent with a criminal homicide than with natural causes. At best, the jury was faced with two contradictory definitions of the Commonwealth’s burden of proving the corpus delicti. “Where a court gives two instructions, one erroneous and prejudicial and the other correct, reversible error occurs.” Commonwealth v. Cain, 484 Pa. 240, 249, 398 A.2d 1359, 1363 (1979). Accord Commonwealth v. Holloway, 212 Pa.Super. 250, 254, 242 A.2d 918, 920 (1968).

The Supreme Court, when faced with the issue we here consider, held that while “the evidence was amply sufficient to establish the existence of the corpus delicti, it was also consistent with and did not rule out the possibility of [natural causes]. Whether the death was due to [natural causes] or caused by the felonious act of another was one of the main issues to be determined. It was, therefore, logical and incumbent upon the jury to resolve this question in the first instance. The defendant’s connection with the crime was the next question for decision. In conjunction with this last question, his admissions were significant and for the jury’s consideration together with all of the evidence. However, where, as here, the evidence is in doubt as to the manner of the cause of death, the question of the existence of the corpus delicti should first be determined without consideration of the defendant’s admission of guilt. See Gray v. Commonwealth, 101 Pa. 380 (1882), and Commonwealth v. Puglise, 276 Pa. 235, 120 A. 401 (1923). Under the singular facts this case presents, the jury should have been so instructed in crystal clear terms. Unfortunately, this was not done.” Commonwealth v. Frazier, 411 Pa. 195, 203, 191 A.2d 369, 373 (1963).

We are constrained therefore, to affirm the order of the court en banc which awarded the defendant a new trial. This case is remanded for trial. Jurisdiction is relinquished.

WICKERSHAM and ROWLEY, JJ., concur in the result.

      . Both appeals are properly before this Court. Appellant argues that she is entitled to an absolute discharge while the Commonwealth argues “the sufficiency of the evidence establishing the corpus delicti, a question of law in a case such as this where a verdict of ‘not guilty' has not been rendered.” Commonwealth v. Moyer, 277 Pa.Super. 172, 174 n. 1, 419 A.2d 717, 718 n. 1 (1980). See Pa.R.A.P. 311(a).

      . The defendant's contention that she is entitled to an absolute discharge is meritless in light of our holding that the corpus delicti was established, thus rendering the admissions made by the defendant admissible in evidence. See Commonwealth v. Frazier, 411 Pa. 195, 201-202, 191 A.2d 369, 372-373 (1963).

      . Dr. Fried was admitted on April 29, 1976, and discharged on May 29, 1976. The attending physician, Dr. Griffith testified at trial that Dr. Fried was an active alcoholic and drug addict at the time of his admission to the hospital.

      . Dr. Fried had called his receptionist earlier in the day and requested that she pick him up at the Penn Towers and assist him in moving his possessions back to his Waverly Street home.

      . Another witness, Gerald Sklar, testified that he visited the Waverly Street house with the defendant on the evening of July 22, and observed the defendant take a glass of liquor upstairs to Dr. Fried. Sklar testified that the defendant had told him that between the alcohol and the sedatives he had taken, Dr. Fried would be rendered "immobile.” Sklar testified that the defendant suggested that he go back to the house alone or with her and kill her husband, both of which suggestions he refused.

      . Dr. Fried may not have been cooking for himself at this time. Mrs. Davis, a neighbor, lestified that Dr. Fried had also asked her to bring a sandwich to him on the 21st or 22nd of July. Mrs. Davis delivered the requested sandwich to Dr. Fried, who was in bed at the time.

      . The toxicological findings upon the samples taken by Deputy Medical Examiner Fillinger were not reported until six months later on January 17, 1977, and refuted the conclusion that Dr. Fried's death had been the result of suicide.

      . The toxicological study of Dr. Halpern disclosed that there were prescription drugs in amounts within a high-therapeutic dosage range in the body. No traces of alcohol remained. Dr. Halpern’s report included the following conclusions:
      There is no evidence either from the circumstances or the autopsy or chemical examination that the deceased committed suicide in any manner. There is ample autopsy evidence that extensive disease which reasonably can be considered as the basis of a natural death with symptomatology during life to account for the use of various medications.

      . Dr. Baden based his testimony upon a review of the following: (1) descriptions of the corpse; (2) descriptions of hemorrhages and abrasions to the neck, face and trunk of the decedent and of hemorrhages in the white of the eyes contained in the report prepared by Dr. Halpern, who performed the autopsy; (3) colored photographs of the body taken by Dr. Halpern during the autopsy, showing both internal hemorrhages and external abrasions to the neck and face; (4) tissue samples removed from the body at the autopsy and preserved by Dr. Halpern, including heart tissue samples; (5) toxicological analysis of stomach fluid blood and urine samples; (6) photographs showing the position of the body at the time of discovery; (7) hospital and medical records of the deceased; and (8) reports and records maintained by the Philadelphia Medical Examiner’s Office.

      . The autopsy report of Dr. Halpern had described internal hemorrhages to the neck and head, and abrasions of the face, all of which Dr. Halpern concluded had been sustained after death. Dr. Halpern had also noted petichel hemorrhages in the white part of the eyes, a sign which Dr. Baden testified was more indicative of suffocation although not dispositive of such standing alone. Bleeding in the neck and facial area, according to Dr. Baden, would have occurred while Dr. Fried was alive and these marks suggested a struggle during which pressure was applied to the neck and head. Dr. Aronson testified that in his expert opinion the internal hemorrhages were a result of the embalming process and that the petichel hemorrhages were caused by drying out of the conjunctivae while the body was in the custody of the funeral director or the Medical Examiner’s office.

      . Q. Dr. Baden: "Can you tell this jury that suffocation, to a reasonable medical certainty, was the cause of death of Dr. Fried?"
      A. "No, I cannot say that to the jury — .”

      . The evidence of admissions allegedly made by defendant concerning the death of her husband was provided by Commonwealth witnesses Gerald Sklar and Michael Selkow. Both testified that defendant had admitted killing her husband by placing a pillow over his face and holding it there while he struggled and died. Sklar had previously been convicted of murder based upon statements he had made in an attempt to be admitted to the Federal Witness Protection Program and to secure a promise from the federal government of a guaranteed salary, guaranteed admission and graduation from Harvard Law School, a new identity and assistance in establishing a civil law practice in a western state. Sklar alleged that Selkow had asked him to arrange for the murder of two of Selkow's business associates. Sklar was convicted of both murders. Selkow was never charged in connection with the deaths and contended that the statements made by Sklar concerning Selkow’s involvement were part of an extortion scheme. FBI Agent Paul Cryan testified at Mrs. Fried’s trial that Sklar informed him during an interview conducted to determine Sklar’s eligibility for the Federal Witness Protection Program that Dr. Fried had died from natural causes and that shortly thereafter Sklar, Selkow and another individual had burglarized the Waverly Street home of Dr. Fried. The defense contended that Sklar had fabricated the statements allegedly made by the defendant just as he had fabricated the story of Selkow’s involvement in the murders of Edward Rauer and Abraham Fishman. See Commonwealth v. Sklar, 497 Pa. 404, 441 A.2d 1201 (1982).

      . Veldorale, The Principle of Corpus Delicti and the Evidence Pertaining Thereto, 39 Temple Law Quarterly 1, 41-43 (1965); See Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U.Pa.Law Rev. 638, 674-675 (1955).

      . Justice O’Brien authored the Opinion in Support of Affirmance in which Justices Roberts and Pomeroy joined. Chief Justice Eagen, Justice Nix and Justice Manderino voted to reverse the conviction on the grounds that the corpus delicti had not been established.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    475 A.2d 783
    COMMONWEALTH of Pennsylvania v. Ida BEAUFORD, Appellant. COMMONWEALTH of Pennsylvania v. Karin GUINN, Appellant. COMMONWEALTH of Pennsylvania v. Ulysses MATTHEWS, Appellant. COMMONWEALTH of Pennsylvania v. Michael Patrick HAYES, Appellant. COMMONWEALTH of Pennsylvania v. Cynthia O. FORCINO, Appellant. COMMONWEALTH of Pennsylvania v. Raymond Joseph MURTHA, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1983.
    Filed April 13, 1984.
    Reargument Denied June 18, 1984.
    Petition for Allowance of Appeal Granted Nov. 29, 1984.

      Timothy J. Gorbey, Media, for appellants (at Nos. 3351, 247 & 1136).
    John Rogers Carroll, Media, for appellants (at Nos. 1763, 1798 & 2666).
    Sheldon Kovach, Assistant District Attorney, Media, for Com., appellee.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   CIRILLO, Judge:

These consolidated, direct appeals raise an issue of first impression in this Commonwealth: whether the utilization by law enforcement agencies of pen registers or dialed number recorders (DNRs) requires a judicial order based upon probable cause. We hold that such an order is required, and reverse the judgments of sentence.

Each of the six appellants was arrested in March of 1981 after searches of their individual residences revealed various illegal gambling paraphernalia and, as to certain appellants, controlled substances. After separate non-jury trials, each appellant was convicted of lotteries and gambling.

Following their convictions, each appellant argued motions for a new trial, all of which were subsequently denied and sentences imposed. Notices of appeal were filed and appeals consolidated to this Court.

Viewing the evidence in the light most favorable to the verdict winner, Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), the record discloses that an investigation into alleged illegal gambling activities in Delaware County during January of 1981 revealed that Cynthia O. Forcino was operating an illegal numbers operation from her residence in Drexel Hill. On February 10, 1981, the police submitted an application to the trial court for an order permitting the installation of a DNR on Forcino’s telephone line to monitor the numbers dialed from that unit. The trial court granted the application on the same day.

On February 11, 1981 a confidential informant contacted the police with information concerning Forcino’s numbers operation. The informant told of personally witnessing Forcino taking bets by telephone in her residence. The informant gave a description of Forcino, her address, telephone number, and the vehicles she drove and also stated thát Forcino had eight to ten numbers writers with whom she kept in contact by telephone. Through subsequent checks the police substantially corroborated the informant’s tips.

Thereafter, an order was secured from the trial court for DNR monitoring of the telephone number registered to appellant Karin Guinn, as police had subsequently received information from the same informant stating that Forcino would be forwarding her incoming calls to that number.

On February 27 and March 2, 1981 the confidential informant spoke with police and informed them that Forcino had told him that she was moving her gambling operation telephone number. On each occasion the informant gave police the new number. Checks of the new telephone numbers by police revealed the names and addresses of the parties to whom these numbers were registered. Subsequent police surveillance also confirmed the presence of one of Forcino’s vehicles parked outside those addresses. The authorities then secured orders for the installation of DNRs for those telephone numbers received from the informant.

As a result of monitoring the various DNRs, the evidence revealed substantial numbers of outgoing and incoming calls of short duration (one minute or less) between the hours of noon and 7:00 p.m., Monday through Saturday among the various telephone lines used by Forcino and Guinn. The remaining four appellants were implicated by evidence of frequent calls made during the monitored time period from the Forcino and Guinn monitored telephones, to numbers registered to appellants.

Separate search warrants for each appellant were secured and executed on March 6, 1981, resulting in each appellant’s arrest and the confiscation of gambling materials and, in the case of Forcino and Hayes, controlled substances. Each appellant subsequently filed motions to suppress, which were denied.

Appellants raise various challenges to the searches and seizures conducted in this case, but the issue which most concerns us is the legality of the DNR monitoring which later led to the searches of appellants’ residences. Appellants contend the monitoring was both constitutionally and statutorily unlawful.

Before explaining why we accept appellants’ constitutional argument, we review the statutory argument to lay the groundwork for our holding.

I

Appellants argue that under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701-5726, the police were required to obtain authorization from a Superior Court judge before installing DNRs. The argument turns on a distinction drawn between “pen registers” and DNRs.

The Act, in general, makes criminal the willful interception of any wire or oral communication. Id. § 5703(1).

“Intercept” is defined by the Act as the “[a]ural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device.” Id. § 5702.

The Act defines “contents” as:

“Contents.” As used with respect to any wire or oral communication, is any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.

The Act provides conditions under which law enforcement authorities may obtain legal authorization to intercept wire or oral communications. In brief, the Act provides that such authorization may issue only from a Superior Court judge upon application from the Attorney General or a district attorney or their designees. The requirements for such an application and order are detailed at id., §§ 5708-5710, 5712.

Section 5704 of the Act enumerates certain activities which it holds not to be unlawful. Specifically, section 5704(5) states that it shall not be unlawful for “[a]ny investigative or law enforcement officer ... to use a pen register.” “Pen register” is defined in section 5702 as:

A mechanical or electronic device which attaches to a particular telephone line, and which records outgoing numbers dialed by a particular telephone, but does not:
(1) monitor the contents of any communication; or
(2) record the origin of any incoming communications.

Case law has held that a pen register bears the following characteristics: 1) it is a mechanical or electronic device, 2) usually installed at a central telephone company facility on an individual telephone line, 3) which records numbers dialed by the subject telephone on a paper tape by monitoring the electrical impulses caused by dialing, and 4) records on the tape the time the numbers are dialed. See United States v. New York Telephone Company, 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977); Commonwealth v. Stehley, 235 Pa.Super. 150, 338 A.2d 686 (1975).

The Hekimian Model 110 Dialed Number Recorders utilized in the instant case have, in addition to the functions described in the traditional definition of pen registers above, the capability of monitoring: 1) the length of time the targeted telephone is off the hook on outgoing calls and 2) the date and length of time the targeted telephone is off the hook on incoming calls.

Appellants argue that these additional characteristics, specifically the capability of the DNRs to determine that an incoming call was completed, amount to an ability to “monitor the contents” of a communication, so that a DNR is removed from the statutory definition of a pen register. Consequently, they argue, a DNR falls under the authorization requirements of the Act.

We disagree, and find that the technical differences between a pen register and the DNRs used in this case are immaterial under the Act, as neither technically permits “[a]ural acquisition of the contents” of any communication. See United States v. New York Telephone Co., supra.

II

Appellants’ constitutional claim is that, notwithstanding the Act, neither a pen register nor a DNR may be installed by law enforcement authorities without a judicial order based on probable cause. Since the court orders authorizing installation of the DNRs in this case indisputably were not based on records establishing probable cause, appellants argue that the evidence gathered through use of the DNRs was unconstitutionally obtained.

The constitutional issue posed was expressly reserved in Commonwealth v. Stehley, supra, and has not heretofore been decided for this Commonwealth.

The right upon which appellants rely is recognized in both the fourth amendment to the federal constitution and article 1, § 8 of the Pennsylvania Constitution, which states:

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 seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Embodied in the constitutional statements of the principle, however, is a right to privacy older than either the federal or state constitution. Commonwealth v. Palms, 141 Pa.Super. 430, 15 A.2d 481 (1940). The right to be free from unreasonable searches and seizures is at the foundation of our body politic, in direct line with “the proud boast of an Englishman that his home was his castle and that as long as he obeyed the law, the King and his army could not enter it against his will.” Id., 141 Pa.Superior Ct. at 439,15 A.2d at 485.

We are a long way from castles; today government has at its disposal electronic eyes and ears capable of detecting the actions of people on the far side of the globe, not to mention around the corner and in the home. But we still cherish our privacy, and today the constitutional prohibition against unreasonable searches and seizures extends beyond the home to protect the individual against unwarranted government intrusions into any area where the individual may harbor a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Commonwealth v. Morrison, 275 Pa. Super. 454, 418 A.2d 1378 (1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); Commonwealth v. Gabrielle, 269 Pa.Super. 338, 409 A.2d 1173 (1979); Commonwealth v. Adams, 234 Pa.Super. 475, 341 A.2d 206 (1975).

The Commonwealth’s position is that it has already been conclusively decided that the information obtainable through use of a pen register — that is, information concerning the numbers dialed from a particular telephone — is outside the constitutionally protected sphere of privacy. In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), a 5-3 majority of the United States Supreme Court held that use of a pen register is not a “search” under the fourth amendment to the United States Constitution, thus affirming the decision of a divided Maryland Court of Appeals that the fourth and fourteenth amendments did not preclude Maryland authorities from installing pen registers without probable cause. Smith v. State, 283 Md. 156, 389 A.2d 858 (1978).

The Smith majority found that a telephone caller could entertain no legitimate expectation of privacy in the numbers he dialed because the telephone company and its employees as a matter of course had access to this information. Finding that a caller voluntarily conveyed this information to the telephone company, the Court determined that the Constitution imposed no restriction on third-party access to the information.

The court relied on its own decision in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), which held that police could gain access to a depositor’s bank records on less than probable cause. The Court in Miller had expressed its belief that a bank depositor had no legitimate expectation of privacy in financial information that he voluntarily conveyed to the bank and its employees in the ordinary course of business. By logically extending this rationale to telephone records, the Smith Court was able to conclude that a caller could not reasonably expect them to remain private either. The next step for the Court was to note that a pen register revealed no more information than telephone records contained. Hence, in conclusion, using a pen register to record the numbers dialed from a personal telephone was not a fourth amendment “search,” and could be engaged in by law enforcement officials without probable cause.

The fallacy in the Commonwealth’s reliance on Smith is the implicit assumption that our state constitution provides no greater protection against the installation and use of pen registers than the federal constitution provides. Although Smith conclusively decides the extent of the fourth amendment guarantee in this area, appellants have also asserted their rights under article 1, § 8 of the Pennsylvania Constitution. We turn now to the state constitutional claim.

Preliminarily, it cannot be doubted that this state has the constitutional power to guard individual rights, including the right to be free from unreasonable searches and seizures, more zealously than the federal government does under the United States Constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983); Kroger Co. v. O’Hara Township, 481 Pa. 101, 392 A.2d 266 (1978); Commonwealth v. Harris, 429 Pa. 215, 239 A.2d 290 (1968); Commonwealth v. Walsh, 314 Pa.Super. 65, 460 A.2d 767 (1983). “The present function of state constitutions is as a second line of defense for those rights protected by the federal constitution and as an independent source of supplemental rights unrecognized by federal law.” Note, The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1367 (1982) (emphasis added). Commentators urge state governments to reflect deeply before deciding whether state constitutional provisions affecting individual liberties conform to similar provisions in the federal constitution. W. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 501 (1977); Note, The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan.L.Rev. 297 (1977).

In our effort to delineate the protection afforded to privacy interests under our state constitution, we have a particularly instructive precedent in Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979) (Opinion by O’Brien, J., joined by Eagen, C.J., and Nix, J.; Manderino, J., concurred in the holding but dissented on other grounds; Roberts, J., concurred specially), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980). There our own Supreme Court expressly rejected the reasoning in Miller and held that police can gain access to banking records only through a warrant based on probable cause. Our state high court thus extended more privacy protection to banking records under article 1, § 8, than the United States Supreme Court provides under the federal constitution.

We must question whether, under our state constitution, there is a valid distinction between privacy interests in telephone records and privacy interests in banking records — a distinction the Smith Court rejected in fourth amendment analysis. In deciding whether to part ways with the constitutional interpretation espoused in Smith, we can draw on the wise counsel taken by the DeJohn Court when it decided that Miller should not be followed:

“For a state court interpreting a state constitution, opinions of the United States Supreme Court are like opinions of sister state courts or lower federal courts. While neither binding in a constitutional sense nor precedential in a jurisprudential one, they are entitled to whatever weight their reasoning and intellectual persuasiveness warrant. One would expect a state court to deal carefully with a Supreme Court opinion and to explain forthrightly why it found itself constrained to reason differently. But such a difference in reasoning should be no more alarming that the differences which impel one judge to dissent from another’s opinion, one court to disagree with another, or the judges of any court to disagree with a precedent established by their predecessors.” Falk, The State Constitution: A More Than “Adequate” Nonfederal Ground, 61 Calif.L.Rev. 273, 283-84 (1973).

486 Pa. at 44, 403 A.2d at 1289.

Having considered this counsel, and the jealousness with which the right to privacy in telephonic communications traditionally has been guarded in Pennsylvania, we strongly believe we should reject the Smith reasoning and extend the DeJohn holding to information obtainable through use of a pen register.

We begin with our reasons for rejecting Smith.

According to the Smith majority a caller who dials a telephone in our society should expect that the police will have complete access to the numbers dialed because he provides them to the telephone company. The logic of this position escapes us. For all practical purposes an individual in America today has very little choice about whether the telephone company will have access to the numbers he dials and the frequency of times he dials them. The company has a virtual monopoly over vital communications media, and the individual must accept that this information will be collected by the company for billing purposes. It is quite another thing to suggest that the telephone caller should therefore expect that the company will turn this information over to a third party without legal process for a purpose unrelated to providing telephone service.

On the contrary, we are convinced that a person picking up a telephone in his home or office fully expects that the number he is about to dial will remain as private as the contents of the communication he is about to have. That number provides a strong, sometimes conclusive inference as to whom is being called, unquestionably a private matter. The caller certainly evidences no intention to shed his veil of privacy merely because he chooses to use the telephone to make private contacts. In modern-day America the telephone call is a nearly indispensable tool used to conduct the widest range of business, government, political, social, and personal affairs. Certainly the vast majority of calls are unrelated to criminal enterprise, and yet the vast majority of callers would not think of allowing the destination of their every call to be recorded by the police. Attaching a pen register to a phone line may reveal secrets as innocent as daily calls to mother. On the other hand, such surveillance might also reveal frequent calls to an illicit lover, or suspected organized crime figures, or suspected gamblers and bookmakers. Obviously, access to information about who is talking to whom, even without direct access to the contents of what they are saying, can be a powerful tool for either good or bad ends. In any case we do not hesitate to say that a caller and the person he calls expect and are entitled to as much privacy in the fact they are talking to one another as in what they say to each other.

The fact that the telephone company and its employees in the course of providing telephone service collect information on the numbers dialed from a particular phone does not alter one whit the ordinary expectation that the prying eyes of government or anyone else will be kept in the dark absent legal process. Indeed, an expectation to the contrary — that information provided to the telephone company for a limited record-keeping purpose automatically becomes available to the police for criminal investigatory purposes— should have no foundation in a free society. The legislature of this Commonwealth has explicitly recognized that information accessed by the telephone company does not thereby enter the public domain, or the field of scrutiny open to the police. In its anti-wiretap statutes the General Assembly has repeatedly exempted communications common carriers, acting in the scope of their business, from the statutory ban against intercepting telephone calls, while maintaining strict controls over resorts to wiretapping by law enforcement authorities. Compare 18 Pa.C.S. § 5703 with § 5704(1) and §§ 5708-5710. Cf. Act of April 7, 1976, P.L. 69, No. 30, sec. 1, § 5702; Act of Dec. 27,1974, P.L. 1007, No. 327, sec. 4, § 5705(c)(1); Act of June 27, 1973, P.L. 69, No. 29, sec. 1, § 5702(b).

We thus appraise Smith as manifestly unpersuasive.

Moreover, our constitutional interpretation derives independent support from Pennsylvania’s long history of affording special protection to the privacy interest inherent in a telephone call. For most of this century the legislature absolutely prohibited wiretapping by law enforcement authorities, and imposed both civil and criminal liability for violations. See Act of Dec. 6, 1972, P.L. 1482, No. 334, §§ 5701-5704. Justice Roberts commented on this absolute ban:

Hence, the Legislature has determined as a matter of state public policy that the rights of any caller to the privacy of his conversation is of greater societal value than the interest served by permitting eavesdropping and wiretapping.

Commonwealth v. Papszycki, 442 Pa. 234, 239, 275 A.2d 28, 30 (1971).

This state’s prohibition on investigative wiretapping of any sort continued in force until the provisions of the 1972 act were replaced by the Wiretapping and Electronic Surveillance Control Act of Oct. 4, 1978, P.L. 831, No. 164, 18 Pa.C.S. §§ 5701-5726. The new act for the first time allows wiretapping for police investigative purposes, but only after a strict showing of need by the attorney general or a district attorney before a Superior Court judge. 18 Pa.C.S. §§ 5708-5710. The remarks of Mr. Rhodes, who reported the proposed act out of the House Judiciary Committee, reflect the caution with which the General Assembly approached this sensitive area:

Briefly, Mr. Speaker, supporting the position of Representative Scirica, I hope the membership will understand that the guiding philosophy behind our version of SB 191 and this set of amendments is that we wanted to limit the amount of wiretapping that would follow the enactment of this statute, because we have had this long prohibition in Pennsylvania and we really do not know what is going to happen after we enact this statute. We want to limit it as much as possible to protect individual rights and give law enforcement the necessary tools.
If it turns out that various features of the amendment or the statute overly prohibit or limit the action of law enforcement, we could always expand it. But I think, Mr. Speaker, the people of the state want to start modestly in this area of eavesdropping and wiretapping with all the transgressions that we know about in the last decade, and they would greatly support our adoption of the amendment before us now.

House Legislative Journal at 3147 (1978) (emphasis supplied). The legislature further evidenced its intention to “start modestly in this area of eavesdropping and wiretapping” by attaching an automatic five-year repealer to the act. Act of Oct. 4, 1978, P.L. 831, No. 164, § 3 (extended for another five years by Act of Dec. 2, 1983, P.L. 501, No. 67, sec. 2, § 5727).

Although it is true the use of pen registers by law enforcement authorities is exempted from the strict requirements of the Act, 18 Pa.C.S. §§ 5704(5), we do not consider this to be an expression of opinion by the legislature that use of pen registers is free from constitutional restraints as well. The far-reaching consequences of such a position would fly directly in the face of the legislative intent to forge a modest start in electronic surveillance. If any law enforcement officer could, with or without probable cause or even reasonable suspicion, use a pen register on his own authority to record every number dialed by any citizen in Pennsylvania from a residential, business, or government phone, the pen register clearly could become a powerful weapon threatening invasion not only of the individual’s intimate privacy, but also his political liberty, including his rights to associate, to express his views, and even to think in freedom. See D. King, Wire Tapping and Electronic Surveillance: A Neglected Constitutional Consideration, 66 Dick.L.Rev. 17 (1961); Reporters Committee for Freedom of the Press v. American Telephone & Telegraph Co., 593 F.2d 1030 (D.C.Cir.1978) (Dissenting Opinion by Wright, C.J., Part II.C.I), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979); compare G. Orwell, 1984 (1949).

The importance of the citizen’s right to privacy in telephonic communications, and the potential for abuse in a system where indiscriminate use of pen registers is allowed, have led us to the conclusion that an individual’s expectation of privacy in the telephone numbers he calls is reasonable, legitimate, and therefore constitutionally protected against government surveillance and intrusion without probable cause. Pa. Const, art. 1, § 8; Commonwealth v. DeJohn, supra; Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); cf. Commonwealth v. Papszycki, supra; Commonwealth v. Baldwin, 282 Pa.Super. 82, 422 A.2d 838 (1980).

We hold that the installation and use of pen registers and DNRs by law enforcement authorities is limited to those situations in which an order issues upon probable cause. Our holding is in accord with well-reasoned decisions in our sister states where the state constitutional right to be free from unreasonable searches and seizures precludes the government from without probable cause using pen registers to record telephone numbers dialed in privacy. People v. Blair, 25 Cal.3d 640, 602 P.2d 738, 159 Cal.Rptr. 818 (1979); People v. Sporleder, 666 P.2d 135 (Colo.1983); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (applied to toll billing records); see also Dissenting Opinions by Stewart and Marshall, JJ., in Smith v. Maryland, supra.

On the present appeal, the parties have not addressed issues concerning the retrospective application of newly-announced constitutional rules. However, principles of retro-activity as well as fairness and justice clearly dictate that appellants receive the benefit of the rule announced today. See United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982) (Opinion by Nix, J.); cf. State v. Hunt, supra (applying rule prospectively). Further enlargement on the retrospectivity question must await future cases.

Appellants’ convictions are reversed and their cases remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . 18 Pa.C.S. § 5512.

      . Id. § 5513.
      Appellant Murtha was also convicted of poolselling and bookmaking, § 5514, appellant Forcino of possession of a controlled substance, 35 Pa.S. § 780-113(a)(16), and appellant Hayes of both possession and possession with intent to deliver a controlled substance, 35 Pa.S. § 780-113(a)(16), (a)(30).

      . The informant had told the authorities that the numbers operation was based on the illegal day number and the Pennsylvania Daily Number, both of which are determined at 7:00 p.m. Monday through Saturday.

      . The search warrant applications recite the following numbers of telephone calls during the hours of 12:00 noon to 7:00 p.m. Monday through Saturday, among the various appellants:
      Beauford: from 2/20/81 — 3/4/81—50 calls from Guinn # Matthews: from 2/20/81 — 3/4/81—33 calls from Guinn #

      Hayes: from 2/17/81 — 3/4/81—9 calls from Forcino # from 2/20/81 — 3/4/81—54 calls from Guinn #
      Murtha: from 2/17/81 — 3/4/81—11 calls from Forcino #

      The evidence also indicates that during the periods monitored Forcino’s number received a total of 330 calls and Guinn’s number 580 calls.

      . According to the Commonwealth, it obtained the orders "[i]n an abundance of caution and in order to more readily obtain the cooperation of the telephone company. . . .” Brief for Appellee at 8. The form applications for the orders state in conclusory fashion that the numbers to be monitored were being used to place and accept illegal bets, and that DNR monitoring of the numbers would aid in investigating the illegal activity. The applications contain no evidence upon which a determination of probable cause could be made.

      . The Commonwealth argues that this claim was not stated specifically enough in appellants' suppression motions, and was continually "developed and refined” throughout pretrial proceedings. The Commonwealth would have us conclude that the claim was waived because the "grounds” for the claim were not stated with sufficient particularity pursuant to Pa.R.Crim.P. 323(d).
      We reject this contention. The identical suppression motions filed on behalf of appellants Hayes, Forcino, and Murtha state that "the information used to obtain the DNR orders is insufficient and the orders themselves were legally and constitutionally unjustified,” and in the next paragraph cite to article 1, § 8 of the Pennsylvania Constitution and to the fourth and fourteenth amendments to the federal constitution.
      The supplemental omnibus pretrial motions filed on behalf of appellants Beauford, Guinn, and Matthews, although not citing to specific constitutional provisions, allege that "there was no probable cause or insufficient probable cause for the issuance” of the DNR orders, and that the defendants’ constitutional rights had therefore been violated. The motions for these defendants also reserved the right to advance more specific grounds for the suppression of evidence upon the hearing of the motions.

        The cases of all six appellants were consolidated for hearing, by which time the Commonwealth certainly had been made aware that each appellant was challenging the constitutionality of the DNR orders. It is hard to imagine how the motions could have led the Commonwealth to think otherwise than that lack of probable cause was the “ground” for the challenge. Especially given the undeveloped state of Pennsylvania law concerning DNR use, we believe the motions were sufficiently particular.

      . The Hunt decision predicating seizure of toll billing and pen register searches on a constitutional standard is especially relevant to this case because New Jersey’s Wiretapping and Electronic Surveillance Act served as a model for Pennsylvania’s. House Legislative Journal at 3146 (1978). See N.J.S.A. 2A:156-1 et seq., as amended.

      . We do not intend by our holding to require that applications to install pen registers in all cases follow the form prescribed for search warrant applications in Pa.R.Crim.P. 2006. Certain features of the model application and warrant set out in Rule 2006 are not easily adaptable to applications to install pen registers. However, pen register applications must comply with Pa.R.Crim.P. 2003(a) and (b), which require that evidence establishing probable cause for issuance of a warrant appear in writing within the four corners of the affidavits submitted to the issuing authority. Commonwealth v. Turner, 284 Pa.Super. 395, 425 A.2d 1161 (1981); and see Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978). This requirement directly effectuates the constitutional mandate that warrants issue only on probable cause, “supported by oath or affirmation subscribed to by the affiant.”

      . Blair and Sporleder each followed precedent holding that a person may legitimately expect a bank to use records of his financial transactions only for business purposes. See Burrows v. Superior Court of San Bernardino County, 13 Cal.3d 238, 529 P.2d 590, 118 Cal.Rptr. 166 (1974) (cited in DeJohn ); Charles v. DiGiacomo, 612 P.2d 1117 (Colo. 1980).


author: MONTEMURO, Judge:

text:
    475 A.2d 792
    COMMONWEALTH of Pennsylvania v. Richard PAPROCKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 22, 1983.
    Filed April 13, 1984.
    Petition for Allowance of Appeal Denied Aug. 14, 1984.

      Richard J. Hodgson, Norristown, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   MONTEMURO, Judge:

This matter is before the court on the appeal of Richard Paprocki from the denial of his motion in arrest of judgment on the basis of Pa.R.Crim.P. 1100 (hereinafter “Rule 1100”). As with many alleged Rule 1100 violations, the procedural history of this case is long and tortuous.

Appellant was arrested on July 11, 1980, and charged with burglary, theft by unlawful taking, receiving stolen property, and criminal conspiracy.

After a preliminary hearing, appellant was bound over for trial on all charges. Appellant’s first trial commenced on November 17, 1980. On that same date, a mistrial was declared as a result of improper questioning by the prosecutor. Appellant’s second trial commenced the following day, November 18, 1980. On November 25, 1980, another mistrial was declared, this time because the jury was deadlocked.

On February 23, 1981, appellant filed an omnibus pretrial motion to suppress evidence. On February 24, 1981, appellant filed a motion to dismiss on double jeopardy grounds. Both motions were ordered by the court as rules returnable at the time of trial. Trial had been scheduled for February 25, 1981.

On February 25, 1981, the case was called for trial a third time. At that time, appellant’s motion to dismiss was heard and denied. Appellant decided to take an immediate appeal on the denial of this motion. A colloquy was held on the record wherein appellant confirmed that he wished to appeal the double jeopardy issue in this posture rather than pursue it on posttrial motions after possible conviction. Appellant’s notice of appeal was filed that day, February 25, 1981. No further action was taken by the lower court during the pendency of this double jeopardy appeal.

On August 19, 1981, appellant withdrew his appeal and the Superior Court remanded the record on August 20, 1981. The appellant was scheduled for trial on November 24, 1981. The case was called on that date and the Commonwealth and counsel for appellant agreed to pass the case until December 7, 1981. Thereafter, on December 7, 1981, appellant filed the instant motion to dismiss on the ground that both Rule 1100 and his constitutional rights to a speedy trial had been violated. Appellant’s motion to dismiss was denied and the case was again continued, upon the Commonwealth’s request, to December 14, 1981. Trial was held on December 14 and 15, 1981, and a jury returned a verdict of guilty on all charges.

Timely posttrial motions were filed by appellant consisting of both a motion for a new trial and a motion in arrest of judgment. The lower court granted the motion for a new trial on the basis that evidence admitted at the trial should have been suppressed. The motion in arrest of judgment which dealt with the speedy trial violations was denied by the court. The Commonwealth appealed the lower court’s grant of a new trial, prompting appellant to file a cross appeal from the lower court’s denial of his motion in arrest of judgment. The Commonwealth has since withdrawn its appeal, leaving for our disposition appellant’s contention that the lower court erred in failing to grant his motion in arrest of judgment under Rule 1100.

The period of time which appellant challenges as violative of Rule 1100 runs from the date of the mistrial declared on November 25, 1980. Appellant acknowledges that under Rule 1100, the Commonwealth had 120 days from the declaration of mistrial in which to bring him to trial. Common wealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980); Commonwealth v. Legree, 256 Pa.Super. 128, 389 A.2d 634 (1978); Pa.R.Crim.P. 1100, Comment. He then asserts that he was not brought to trial until December 14, 1981, a period of 384 days later, out of which 176 days are excluded by virtue of his appeal on the double jeopardy issue, and 13 days are excluded by virtue of his agreement to continue the case from November 24, 1981, until December 7, 1981. Thus, he calculates that his date of trial was 195 countable days after declaration of mistrial, which exceeds the allowable limit of 120 days.

The lower court adopted the position taken by the Commonwealth that remand of the record following appellant’s withdrawal of his double jeopardy appeal triggered a new 120 day period in which the Commonwealth could bring the appellant to trial. Thus, the lower court counted 120 days from August 20, 1981, excluded 13 days from the agreed continuance from November 24, 1981, to December 7, 1981, and determined that only 103 out of the 120 days had expired when appellant was brought to trial on December 14, 1981.

The issue squarely before us is whether the appeal on the double jeopardy issue merely tolled the running of time under Rule 1100, or whether disposition of that appeal precipitated a completely new period of time under Rule 1100(e).

It is clear that time which transpires while a matter is on appeal cannot be assessed against the Commonwealth for -speedy trial computations. After an appeal is taken, neither the lower court nor other governmental units may proceed further in the matter. Pa.R.A.P. 1701(a). At the very best, therefore, an appeal acts as an automatic stay of the operation of Rule 1100. Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981); Commonwealth v. Norman, 262 Pa.Super. 45, 396 A.2d 476 (1978).

The lower court went further than this, however, and held not that appeal time was excludable, but that the appeal created a fresh running of time commencing with remand of the record from the appellate court. The lower court found that section (e) of Rule 1100 provided for a renewed 120 days period here. Rule 1100(e) states:

(1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.
(2) When an appellate court has granted a new trial, or’ has affirmed an order of a trial court granting a new trial, the new trial shall commence within one hundred and twenty (120) days after the appellate court remands the record to the trial court. The date of remand shall be the date as it appears in the appellate court docket.

The literal focus of this section is to allow the Commonwealth a fresh start once a new trial has been ordered.

Section (e) of Rule 1100 has been interpreted to encompass not only specific orders of new trial following postverdict motions or appeals, but also orders of mistrial, Commonwealth v. Manley, supra; Commonwealth v. Legree, supra; and orders withdrawing, rejecting and successfully challenging a guilty plea, Commonwealth v. Bytheway, 290 Pa.Super. 148, 434 A.2d 173 (1981). See also Pa.R.Crim.P. 1100, Comment. The common denominator among all these orders is that each has the effect of definitively announcing for the first time that a new trial is necessary. Thus, after believing that a defendant had reached a point in the criminal justice system wherein guilt had been determined and Rule 1100 was no longer a concern, the Commonwealth is suddenly notified that it must start the whole guilt determination process “anew”. Under such circumstances, the Commonwealth is entitled to “a new” period of 120 days in which to adjust its schedule to retry a defendant.

These same concerns are not apparent in the situation at bar. Herein, the Commonwealth was advised by the order of mistrial of November 25, 1980, that the whole guilt determination process would have to be done over. At that point, the new 120 day period attached and the Commonwealth was alerted to be vigilant of reinstated Rule 1100 considerations. The appeal on double jeopardy grounds, even though its outcome would affect whether or not retrial would ever be held, did not change the fact that the whole guilt determination process had already been recommenced.

There exists a substantive basis for distinguishing between orders which in essence grant a new trial, and orders which simply dismiss any impediments to the occurrence of that trial. To disallow a new 120 day period in the former situation would require the Commonwealth to bring a defendant to trial twice within one period, Commonwealth v. Bytheway, supra; while to disallow a new 120 period in the latter situation would not have that effect. While we note that the difficulties in scheduling a particular retrial would be comparable following orders which in essence grant a new trial, as well as following orders which simply dismiss any impediments to a new trial, the concern which the additional 120 days period seems to have been designed to meet involves the impact on the Commonwealth’s total caseload and not a narrow interest of how long it takes to coordinate an individual retrial.

In many instances, an appeal will be taken early on in the running of the Rule 1100 period. After remand of the record, therefore, most of the original period will be left, giving the Commonwealth ample time in which to arrange its trial lists. If this is not the case, the remedy for the Commonwealth under Rule 1100 is to file for an extension, which it would certainly be entitled to if the remaining period after disposition of an appeal were brief. To hold otherwise would reset the Rule 1100 clock after every appeal, whether additional time is needed or not. This would derogate the purposes for which Rule 1100 was created, and we decline to accept the Commonwealth’s position.

This reasoning, that an appeal acts only as a stay of time under Rule 1100, is reflected by the computation of time in two cases: Jones v. Commonwealth, supra; and Commonwealth v. Norman, supra. In Jones, trial commenced with a hearing on the defendant’s motion to suppress. Suppression was granted and the Commonwealth chose to take an immediate appeal since the prosecution would have been severely handicapped if unable to use the suppressed evidence. The appeal took two and one-half years and the defendant was brought to trial approximately one month thereafter. The supreme court stated that, even assuming that “trial” had not commenced with the suppression hearing, the appeal acted as an automatic supersedeas of the operation of Rule 1100, and so the defendant was tried within the original 180 days allotted.

In Norman, a new trial had been ordered on appeal. The record was remanded to the lower court on August 9, 1977. Thereupon, the defendant filed a motion to quash on double jeopardy grounds which reached this court, as well as a Rule 1100 argument. After dismissing the double jeopardy contention, we stated that the appeal acted as a stay of the time running from August 9, 1977, and upon remand of the record the Commonwealth had the balance of the 120 day period from August 9, 1977, in which to bring the defendant to retrial.

Similarly, we hold here that appellant’s double jeopardy appeal merely worked a stay on the operation of Rule 1100. Retrial must have been commenced within the 120 day period from November 25, 1980. Our analysis does not end with this determination, however, since we must evaluate whether the timely events of February 25, 1981, constituted a commencement of trial.

Rule 1100 does not directly define the parameters of “commencement of trial”, but states only that “trial shall be deemed to commence on the date the trial judge calls the case to trial. . . .” Pa.R.Crim.P. 1100(b). Our adoption of the Comment to Rule 1100, see Commonwealth v. Machi, 294 Pa.Super. 338, 439 A.2d 1230 (1982) (and cases cited therein); provides greater illustration:

It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial, (emphasis added).

The Comment then cites to Jones v. Commonwealth, supra, for the proposition that the hearing of motions reserved for the time of trial can be a “commencement of trial.”

We find that the facts of the February 25, 1981, hearing here are analogous to the facts of Jones, and so conclude that the hearing was a first step in the retrial of appellants for the purposes of Rule 1100.

As noted earlier, Jones involved a hearing and order of suppression which was immediately appealed by the Commonwealth. The court in Jones found that this motion to suppress had been expressly made “returnable at the time of trial before the trial judge”, that on the day of the hearing the prosecution was prepared to proceed to trial, and that the procession of the guilt determining process from this first step was interrupted only by appellate review which flowed directly from the defendant’s own motions and which did not evidence abuse by the Commonwealth. Thus, the Jones court held that hearing on the motion to suppress was the commencement of the trial and thereafter the Commonwealth had properly presumed that this timely commencement of trial foreclosed later collateral attack on the defendant’s conviction on Rule 1100 grounds.

In the case before us, appellant’s motion to dismiss was filed on February 24, 1981, and was specifically made “Returnable at the time of trial before the Trial Judge.” Trial had been set for the following day, and the matter was, in fact, called to trial at 10:27 a.m. on the morning of February 25, 1981. The motion to dismiss was dealt with first, and upon the trial court’s denial of the motion, counsel for the appellant advised the court that the appellant wished to take a direct appeal from that ruling. Subsequently, an on-the-record colloquy was conducted in which the appellant verified that he understood that he could proceed with trial, but had opted to proceed with the appeal instead. Thus, absent appellant’s own decision to appeal from his own motion, the case would have proceeded on February 25, 1981. Under these circumstances, hearing on appellant’s motion to dismiss constituted commencement of trial.

Commencement of trial on February 25, 1981, occurred 92 days following the declaration of mistrial on November 25, 1980. Such commencement being within 120 days, there is no violation of Rule 1100.

Accordingly, the order of the lower court is affirmed.

      . 18 Pa.C.S.A. § 3502.

      . Id. § 3921.

      . Id. § 3925.

      . Id. § 903.

      . At the trial which took place on December 14 and 15, 1981, appellant was tried on only three of the four original charges. The receiving stolen property charge was not in the case.

      . The posttrial motions were timely filed in accordance with an extension of time granted by the lower court.

      . We treat the withdrawal of the double jeopardy appeal the same as if the appellate court had disposed of the claim by order.