In the Superior Court’s recent decision in Commonwealth v. Deck, 2008 Pa. Super. 150 (Pa. Super. 2008), the Court strictly construes the provisions of the Wiretapping and Electronic Surveillance Act (“Wiretap Act”), 18 Pa.C.S. Sec. 5701 et seq. and upholds the privacy protections afforded by the statute for a defendant whose telephone conversation was illegally recorded.

In Deck, an alleged victim of various sex crimes records a conversation with the defendant on a cassette tape in an answering machine. The alleged victim tells him that he is on speaker phone, and he has the conversation from his office while the office door is open. The alleged victim does not obtain the defendant’s consent to record the conversation, as the defendant does not know he is being recorded. The alleged victim makes the recording to prove to her mother and police that the defendant engaged in sexual relations with her.

Prior to trial, the defendant files a motion to preclude introduction of the audio recording into evidence. The trial court suppresses the audio tape, and the Commonwealth appeals to the Superior Court.

The Superior Court affirms the trial court’s suppression of the audio recording in Deck. There is no dispute among the parties in this case that the telephone conversation is a “wire communication” under the Wiretap Act, a type of communication protected under the statute. However, the Commonwealth argues that the recording should not have been suppressed under the statutory exclusionary rule under Section 5721.1(b) of the Wiretap Act because the defendant had no reasonable expectation of privacy in his conversation with the alleged victim.

The Superior Court does not delve into the defendant’s expectation of privacy, holding that the speaker’s expectation of privacy is irrelevant to whether the evidence should be precluded. The Court comes to this conclusion for two reasons. First, the Wiretap Act does not require an expectation of privacy on the part of the speaker to protect wire communications. Second, the Wiretap Act is modeled after it Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which authorizes states to adopt wiretap statutes that afford more, but not less, protection than federal law.

The Commonwealth then asks the Court to carve out an exception in this case, which is not provided for in the statute. The Court declines to carve out an exception for an alleged sexual assault victim to prove wrongdoing to the authorities because that would ignore the clear statutory language created by the legislature in the comprehensive Wiretap Act. The legislature omitted such language, and the Court does not have the authority to add it.

This case demonstrates a clear violation of the Wiretap Act and the subsequent protection of privacy by the Court. Some may argue that the relevant evidence precluded by the Court in this case unjustly hindered a prosecution. However, the privacy concerns protected by the Wiretap Act in this case are protected, and the holding of this case will help to deter individuals from illegally recording telephone conversations in the future .

The Wiretap Act is a comprehensive statutory scheme created by the legislature. The legislature created the statutory exclusionary rule in the Wiretap Act as part of a statutory scheme to designed to deter illegal interception of wire, electronic or communications. In the world we live in, our privacies rights are constantly being stripped away in the name of law enforcement. When a court protects privacy rights, there may be a few times where someone can not by prosecuted because evidence is obtained unlawfully. However, justice is served in knowing that the upholding of privacy laws such as the Wiretap Act protects everyone from illegal invasions of privacy.