Commonwealth v. Wright , 227 Pa. Super. 134 ( 1974 )

Opinion by

Jacobs, J.,

This is an appeal from a judgment of sentence, following a jury trial, on charges of bribery and corrupt solicitation.¹ The issues raised by the defendant-appellant on appeal involve the admissibility into evidence of a tape recording, the transfer of the case from the Philadelphia Municipal Court to the Philadelphia Court of Common Pleas, and the correctness of the lower court’s charge. For the reasons hereinafter stated, we affirm.

Appellant asserts that a tape recording was erroneously admitted into evidence over objection. It is his contention that the recording was not properly authenticated, that its poor quality and prejudicial nature precluded its evidentiary use, and that testimony relating to its custody in police hands was not credible. A brief summary of certain testimony and events at trial will be helpful to a disposition of this issue:

Officer James Malloy testified that on March 14, 1972, the defendant, James Wright, a Philadelphia police officer, approached Malloy. Malloy stated that the defendant handed him $250 to be divided among the members of Malloy’s squad for the purpose of influencing them to not arrest certain persons involved in the gambling operations of a specified individual.

Following this meeting, Malloy notified his superiors, who instructed him to arrange another meeting. Malloy contacted the defendant on April 7th and arranged to meet him at 49th Street and Woodland Avenue. Before proceeding to the meeting, Officer Malloy was equipped with a microphone and transmitting device. A tape recorder was installed in the trunk of Malloy’s car by Officer Thomas Howard who then started the recording device. Malloy proceeded to 49th and Woodland and parked his car.

Officer Joel Goodwin testified that he drove the defendant to 49th and Woodland at the request of the defendant who stated that he was to meet an informant. Officer Goodwin stated that the defendant left their car for a few minutes but due to the obstructed vision he could not state where the defendant had gone.

Officer Malloy testified that a few minutes after he parked his car, Wright approached the car, got in, and handed Malloy $275 to be divided among the members of his squad. Wright was arrested later the same day.

At a jury trial in the Court of Common Pleas for Philadelphia County the defendant-appellant was found not guilty on charges relating to the alleged incident of March 14, 1972. He was found guilty on charges of bribery and corrupt solicitation relating to the April 7th incident.

At the trial, the court permitted the Commonwealth to introduce into evidence the tape recording, which was of admittedly poor quality, of the April 7th meeting between Malloy and appellant. Counsel for appellant objected to the admission of the tape on several grounds. The trial court held a hearing on the admissibility of the tape, at which time the tape was played for the court out of the presence of the jury. The court concluded that the tape was of such poor technical quality that it would be inadmissible to prove the contents of the conversation. However, the court ruled that the tape was admissible for the limited purpose of showing “that a conversation was recorded.” With appropriate cautioning instructions, the tape was played to the jury.

With respect to the appellant’s contention that the tape was not properly authenticated, it is the general rule that there are two prerequisites to the admission of tape recordings into evidence. First, the recording must be identified as a true and correct reproduction of the statements made; and, secondly, the voices must be properly identified. Commonwealth v. Learner, 449 Pa. 76, 295 A.2d 272 (1972); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), cert. denied, 411 U.S. 986 (1973); Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955); see also Commonwealth v. Hart, 403 Pa. 652, 170 A.2d 850, cert. denied, 368 U.S. 881 (1961). The purpose of such a rule is to assure that the recording is what it purports to be. Where, as here, the recording purports to be only evidence of the existence of a certain conversation, not of its contents, it is properly authenticated by such testimony as existed here. Officer Malloy identified the voices on the tape as his own and that of James Wright, the appellant. Malloy further identified the conversation on tape as that which was held at 49th Street and Woodland Avenue. Additionally, Officer Howard testified that he installed the recording device prior to Malloy’s meeting with the defendant and subsequent to the meeting unlocked and removed the same tape. We find that the recording was properly authenticated.

With respect to the contention that the poor technical quality of the tape recording militated against its admission, we must recognize the general rule that the admissibility of evidence is a matter within the discretion of the trial court. Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972); Commonwealth v. Fennell, 444 Pa. 1, 278 A.2d 884 (1971); see Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968); Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102, cert. denied, 361 U.S. 882 (1959). Such a rule has been applied to tape recordings. United States v. Bryant, 480 F.2d 785 (2d Cir. 1973); United States v. Frasier, 479 F.2d 983 (2d Cir. 1973); United States v. Avila, 443 F.2d 792 (5th Cir.), cert. denied, 404 U.S. 944 (1971); United States v. Weiser, 428 F.2d 932 (2d Cir. 1969), cert. denied, 402 U.S. 949 (1971); United States v. Carlson, 423 F.2d 431 (9th Cir.), cert. denied, 400 U.S. 847 (1970).

In the instant case, the trial court ruled that the tape recording, due to its poor technical quality, would be admissible only for the limited purpose of showing that a conversation was recorded. Evidence which is admissible for one purpose does not become inadmissible merely because it would be inadmissible if offered for another purpose, Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968), and we cannot say that for the purpose of corroborating the fact that a conversation was recorded the tape was without evidentiary value. Considering the evidentiary purpose which the tape served it has a probative value even though substantial portions are inaudible. State v. Zicarelli, 122 N.J. Super. 225, 300 A.2d 154 (1973), cert. denied, 414 U.S. 875 (1974). Certainly, the tape recording showed that some conversation took place between the time the recording device was installed and removed. Officer Malloy testified that he was, during that time, at 49th Street and Woodland Avenue. Other evidence placed the appellant at the same location during that time period. The recording has probative value to that extent and was admissible for that purpose. The “tape had probative value for reasons other than what was said. Inaudibility had no relevance to those reasons.” State v. Zicarelli, supra at 240, 300 A.2d at 162; cf. Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972). See United States v. Skillman, 442 F.2d 542 (8th Cir.), cert. denied, 404 U.S. 833 (1971); cf. People v. Hanggi, 265 Cal. App. 2d Supp. 969, 70 Cal. Rptr. 540 (1968).

Nor was the tape’s admission so unfairly prejudicial as to outweigh its probative value, thus constituting an abuse of discretion by the lower court.² The court gave a fully adequate instruction that the jury was to disregard any discernible content of the recorded conversation, Commonwealth v. Fennell, supra; Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); see Bialeck v. Pittsburgh Brewing Co., supra; United States v. Shillman, supra, and the Commonwealth’s version of the conversation as to content had been previously testified to by Officer Malloy, who was available for cross-examination. See United States v. Bryant, supra; State v. Zicarelli, supra.

With respect to the chain of custody argument, we have examined the entire record and find that defendant’s contention that the recording was therefore inadmissible is without merit. Cf. Commonwealth v. Mazarella, 279 Pa. 465, 124 A. 163 (1924).

Appellant also assigns as error the certification and transfer of his case from the Philadelphia Municipal Court to the Philadelphia Court of Common Pleas. With this contention we cannot agree. Section 18 of the Philadelphia Municipal Court Act³ is intended to prevent the backlogging of cases in the municipal court. In accordance with General Court Regulation 71-16 of the Philadelphia Court of Common Pleas the trial judge validly acted within his authorized discretion in approving the certification.

Appellant’s third contention on appeal is a challenge to the court’s charge to the jury on the offenses of bribery and corrupt solicitation. We note that with respect to each error alleged, defendant-appellant neither objected to nor requested correction of the charge before the jury retired to deliberate.⁴ Pa. R. Crim. P. 1119(b) states that “[n]o portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires . . .”. Therefore these issues will not be considered by this Court on appeal unless basic and fundamental error is shown to exist. Commonwealth v. Jennings, 442 Pa. 18, 274 A.2d 767 (1971). We find no error in the charge which would qualify as basic and fundamental error.

Judgment affirmed.

1 Act of June 24, 1939, P. L. 872, §§ 303-04, as amended, 18 P.S. §§ 4303-04, revealed, Act of December 6, 1972, P. L. 1482, No. 334, § 5.

2 It is a well-settled rule that the admission of evidence which may tend to inflame the minds of the jury is admissible at the trial court’s discretion, and an appellate court will reverse only upon a showing of abuse of discretion. Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972); Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968).

3 Act of October 17, 1969, P. L. 259, § 18, as amended, 17 P.S. § 711.18 (Supp. 1973-74).

4 Appellant did object to the court’s refusal to include two of bis points for charge. However, both of those points were incorrect statements of the law and properly refused by the court. Appellant did not further object.