IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, x; CRIMINAL DIVISION 0?0 1.3, COMMONWEALTH OF NO. 3932?16 in J3 V. WILLIAM H. COSBY, JR. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER SUR MOTION TO SUPPRESS EVIDENCE 1. Findings of Fact 1. The Defendant seeks to suppress the contents of a phone call recorded by the victim?s mother, Gianna Constand (hereinafter referred to as ?Mrs. Constand?), on or about January 17, 2005. 2. On January, 13, 2005, the victim told her mother of the alleged sexual assault which occurred in the Winter of 2004. Shortly thereafter, Mrs. Constand telephoned the Defendant?s answering service and left a message. Mrs. Constand was at her home in Pickering, Ontario, Canada. (Def. Mot. To Suppress at. 3?4; Commw. Response 1) 1.) 3. On January 16, 2005, the Defendant telephoned Mrs. Constand in Canada from his home in California. They had a conversation. (1i) 4. On January 17, 2005, the Defendant again telephoned Mrs. Constand at her home in Canada from his home in California. (Def. Sup. Mot. To Suppress at 2.) Mrs. Constand recorded this telephone call. Commw. Response 3.) 5. The call was legally recorded in Canada; however such a recording violates both California and laws regarding Wiretaps. (Def. Mot. To Suppress at 5; Commw. Response at 4.) 6. Neither party asserts that the application of California law is proper. (Def. Sup. Mot. To Suppress n. 2.) 7. Although the Court listened to the recorded phone the contents of the call are not relevant to the disposition of the Motion. transcript of the call is attached to the Commonwealth?s response as Exhibit a disc of the recording was admitted at the hearing as Exhibit CS- 1. II. A con?ict exists between law and Canadian law. Conclusions of Law . The Defendant contends that the recorded phone call violates the Wiretap Act and must, therefore, be suppressed. . ?If an interception of a wire or oral communication is made without prior compliance with the Act, evidence obtained as a result of the interception is subject to being suppressed.? Commonwealth v. Spence, 631 A.2d 666, 669 (Pa. Super. 1993); 18 Pa. C.S.A. 5721.1 . No prior authorization is required where all parties to the communication consent. 18 Pa. C.S.A. 5704(4). 4. The Wiretap Act criminally sanctions a person who, (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; (2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or (3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication. 18 Pa. C.S.A. 5703. 5. The Commonwealth contends that the Defendant did not have a realistic expectation of non?interception and, therefore, the call is not an ?oral communication? within the meaning of the Wiretap Act and the Act does not apply. 6. An oral communication is ?[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include any electronic communication.? 18 Pa. C.S.A. 5702. 2 wire communication is ?[a]ny aural transfer made in whole or in part through the use of facilities for the transmission of communication by wire, cable or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a telephone, telegraph or radio company for hire as a communication common carrier.? 18 Pa. C.S.A. 5702. In a telephone call is considered a wire communication. Commonwealth V. Deck, 954 A.2d 603, 608?09 (Pa. Super. 2008) (concluding ?that Section 5703 of the Wiretap Act prohibits the interception, disclosure or use of a telephone conversation as a wire communication under Section 5702, even if the telephone conversation is not also an oral communication under Section 5702?); Commonwealth v. DcBlase, 515 A.2d 564, 566 (Pa. Super. 1986)(concluding that wire communications include telephone conversations). Therefore, because the recording at issue constitutes a ?wire communication,? the Defendant?s expectation of privacy in the non- interception of the call is irrelevant and the admissibility of the recording hinges on a con?icts of law analysis. As noted in the findings of fact, a con?ict of law exists between the law of Canada, where the call was recorded, and the forum state. The Defendant contends that the issue of the admissibility of the tape is an evidentiary issue and is procedural in nature, therefore requiring the application of law. The Defendant further contends that even if the Wiretap Act is substantive law, law should apply. The Commonwealth contends that if the Wiretap Act does apply, it con?icts with Canadian law and Canadian law should apply. The Commonwealth contends that such a con?ict is substantive in nature. Canadian law only requires one party consent. Canada Criminal Code, R.S.C., 1985 c. C-46, 184. law requires the consent of all parties to avoid a Wiretap Act violation. 18 Pa. C.S.A. 5704 5703. The Wiretap Act does not address this particular factual scenario where a communication is interception outside of borders and later sought to be admitted in a court, although Legislature could have addressed this scenario. Where a con?ict of laws in procedural in nature, the law of the forum state applies. Commonwealth v. Sanchez, 716 A.2d 1221, 1223-1224 (Pa. 1998) 3 16. In cases where the substantive laws of con?ict with those of a sister state, courts take a ?exible approach which permits analysis of the policies and interests underlying the particular issue before the court. at 1223 (adopting same standard for criminal cases that is used in civil cases). 17. similar, interests?oriented approach is appropriate for resolution of con?icts between the law of a state of the United States and the law of another country-that is to say, in cases that do have an international dimension.? Sinha v. Sinha, 834 A.2d 600, 605 (Pa. Super. 2003) (emphasis in the original). 18. A substantive right is defined as a right to equal enjoyment of fundamental rights, privileges and immunities; distinguished from a procedural right. By contrast, procedural law is that which prescribes the methods of enforcing rights or obtaining redress for their invasion; as distinguished from the substantive law which gives or defines the right. Sanchez, 716 A.2d at 1224 (internal citations and quotations omitted). 19. The Wiretap Act is substantive law. Larrison v. Larrison, 750 A.2d 895, 898 (Pa. Super. 2000) (noting that con?ict between wiretap law consent requirements and New York wiretap law consent requirements is not procedural); Commonwealth v. Housman. 986 A.2d 822, 841 (Pa. 2009) 20. While the alleged crimes charged in this case took place in at a time when both the Defendant and the victim were living in the phone call at issue was placed from California to Canada. has no interest in, or control over, the actions of a Canadian citizen in her home in Canada. SQ, Larrison, 750 A.2d at 898 (stating ?[w]hile this Commonwealth has an interest in protecting its citizens from having telephone conversations recorded without proper consent, we, as the courts of this Commonwealth, have no power to control the activities that occur within a sister Housman, 986 A.2d at 842 (stating ?[a]lthough has an interest in preventing 2In Larrison, a call was placed from to New York and recorded. The recording was permissible under New York law but violative of the Wiretap Act. The Court stated, ?[the recipient of the phone call] did not violate any New York state law in obtaining the recording of the telephone conversation. has no state interest in a recording of a telephone conversation placed to New York, even if the recording is later used in the Courts.? 750 A.2d at 898. its citizens from being tape?recorded without the proper consent, we cannot control our sister states' otherwise legal 21. Therefore, because Canada has a greater interest in the ability of their citizens to legally record phone calls with one party consent, this Court ?nds that Canadian law is applicable to this issue and the phone call was legally recorded. Based on the foregoing, the Court issues the following: I . ORDER .f?rig'lt- ii clay of September, 2016, upon consideration of the And now, this ?Defendant?s Motion to Suppress The Recording of A Telephone Call Obtained in Violation of Wiretapping and Electronic Surveillance Control Act,? ?led August 3, 2016, the ?Defendant?s Supplemental Motion to Suppress The Recording of A Telephone Call Obtained in Violation of Wiretapping and Electronic Surveillance Control Act,? ?led August 12, 2016, the Commonwealth?s Response thereto, filed September 1, 2016, and after hearing before the undersigned on September 6, 2016, based upon the arguments of counsel and evidence adduced, and after consideration of the ?Defendant?s Memorandum of Law in Response to the Commonwealth?s Response to Defendant?s Motion To Suppress The Recording of a Telephone 3 Housman involved a Defendant?s statement to police in Virginia about a murder in which was tape recorded with one of?cer?s consent, as required by Virginia?s wiretap law. The recording was later admitted in the Defendant?s trial for ?rst degree murder. The Court found that Virginia law applied as ?no state interest would be advanced in analyzing the legality of the tape recording under law because it did not occur in and none of our police of?cers participated in appellant's questioning.?? 986 A.2d at 842. Call Obtained in Violation of Wiretapping and Electronic Surveillance Control Act,? filed September 9, 2016, the Defendant?s Motion to Suppress is hereby DENIED in its entirety. BY THE COURT: i. . L'v in I: STEVEN J. Copy of the above Order mailed September 2016 to the following: Kevin R. Steele, Esq. (District Attorney?s Of?ce) Brian McMonagle, Esq. ?ourt'Adm inisiration Criminal Division . ,x m, If fr tar-?5 f! "viz-?If ?f .33/4. Secretary