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BAD IDEA #1459: Discussing your involvement in a shooting on a phone call with an inmate.

The PA Superior Court has decided the case of Commonwealth v. Mickel, No. 1459 WDA 2015 (June 22, 2016), holding that it was not error for the trial court to allow the introduction of a recorded telephone conversation between Mickel and a prison inmate in the Erie County prison.

FACTS

Mickel was arrested and charged with a number of crimes that arose out of a shooting. Before the trial began, he filed a motion in limine, requesting that the trial court exclude a recorded telephone conversation that occurred between him, a person named Barnett (who was an inmate in the Erie County Prison) and several other individuals.

In his Motion, Mickel demanded that the recorded telephone conversations be excluded at trial because he never received notice that the telephone conversation was subject to recording and monitoring. Accordingly, he claimed that he never gave “prior consent to the interception” of his oral communication and that the interception violated Pennsylvania’s Wiretap Act.

The trial court denied Mickel’s motion in limine and he proceeded to a jury trial.

During trial, the Commonwealth played a recorded telephone conversation between Mickel and Inmate Barnett, which was recorded on December 1, 2014, two days after the shooting. The recording began with Inmate Barnett placing a telephone call from inside the Erie County Prison, to an unknown female individual. Prior to accepting Inmate Barnett’s call, a recorded voice informed the female recipient that the telephone call was being placed by an inmate at the Erie County Prison and that the call was subject to recording and monitoring. The female accepted the call and Inmate Barnett told the female recipient to call a person named “Mumu” on her telephone, so that Inmate Barnett could speak with Mumu via a three-way line. The female recipient then telephoned Mumu and placed him directly on the call with Inmate Barnett. When Mumu was on the phone, Inmate Barnett told Mumu to telephone Mickel and place Mickel on a three-way conversation with them.

Mickel entered into the conversation and Inmate Barnett asked him to explain “what happened.” Mikel proceeded to describe the events on the night of the shooting, including that when he was attempting to leave the strip club, he saw the victim, with whom he had had a prior confrontation. The victim and his group of friends jumped and beat Mickel at the strip club.

That recorded conversation was heard by the jury, along with testimony from an eyewitness to the shooting at the strip club who testified that she saw Mickel shoot at the victim. The jury convicted Mickel of aggravated assault, firearms not to be carried without a license, possession of instruments of crime, and recklessly endangering another person.

ISSUE

Whether the trial court erred in denying Mickel’s motion in limine pertaining to the admissibility of intercepted prison recordings?

HOLDING

The prison recordings were lawfully intercepted and therefore properly admitted at trial by the trial court.

REASONING

The Superior Court first outlined the general principle behind the PA Wiretap Act, stating that it emphasizes the protection of privacy and must be strictly construed. The Wiretap Act generally prohibits the intentional interception, disclosure, or use of a wire, electronic or oral communication.

In examining the statute, the Superior Court noted that it shall not be unlawful and no prior court approval shall be required under this chapter for an investigative officer, a law enforcement officer or employees of a county correctional facility to intercept, record, monitor or divulge any telephone calls from or to an inmate in a facility under certain conditions, including (1) notifying all inmates of the facility shall in writing that their telephone conversations may be intercepted, recorded, monitored or divulged and (2) notifying persons who are calling into a facility to speak to an inmate that the call may be recorded or monitored.

Mickel argued that he did not hear the recorded message played at the beginning of the call, notifying the recipient of Inmate Barnett’s call that the call would be recorded. Therefore, because he was not notified of the recording, Mickel did not give his consent to the recording. Therefore, the recording violated the Wiretap Act and the admission of the recording at trial was in error.

The Superior Court rejected this argument, concluding that the listed conditions in the Wiretap Act simply do not include any requirement that each and every individual who speaks to an inmate on a telephone be notified that the call is being recorded. Accordingly, insofar as notification is concerned, the Act requires only that “all inmates of the facility be notified in writing that . . . their telephone conversations may be intercepted, recorded, monitored or divulged” and that “persons who are calling into the facility to speak to an inmate be notified that the call may be recorded or monitored.”

LINK TO CASE:

http://www.pacourts.us/assets/opinions/Superior/out/J-S33026-16o%20-%201027060827385651.pdf?cb=1

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