HOUSE AMENDED
PRIOR PRINTER'S NO. 667 PRINTER'S NO. 1307
No. 635 Session of 1997
INTRODUCED BY GREENLEAF, O'PAKE, HECKLER, GERLACH, WAGNER,
COSTA, MURPHY, SALVATORE, TOMLINSON, ULIANA, RHOADES, AND
HART, MARCH 7, 1997
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
SEPTEMBER 23, 1997
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, further providing for the definition <--
3 of the offense of assault by prisoner; providing for
4 consecutive sentences in certain aggravated assault cases and
5 in cases involving assaults by prisoners and for aggravated
6 harassment by prisoner; and further providing for assault by
7 life prisoner SENTENCING FOR THE OFFENSE OF DRUG DELIVERY <--
8 RESULTING IN DEATH, FOR CERTAIN ASSAULTS BY PRISONERS, FOR
9 ARSON AND RELATED OFFENSES AND FOR WIRETAPPING AND ELECTRONIC
10 SURVEILLANCE; AND PROVIDING FOR A SPECIAL INDEPENDENT
11 PROSECUTOR'S PANEL.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Section 2703 of Title 18 of the Pennsylvania <--
15 Consolidated Statutes is amended to read:
16 SECTION 1. SECTIONS 2506 AND 2703 OF TITLE 18 OF THE <--
17 PENNSYLVANIA CONSOLIDATED STATUTES ARE AMENDED TO READ:
18 § 2506. DRUG DELIVERY RESULTING IN DEATH.
19 (A) GENERAL RULE.--A PERSON COMMITS MURDER OF THE THIRD
20 DEGREE WHO ADMINISTERS, DISPENSES, DELIVERS, GIVES, PRESCRIBES,
21 SELLS OR DISTRIBUTES ANY CONTROLLED SUBSTANCE OR COUNTERFEIT
1 CONTROLLED SUBSTANCE IN VIOLATION OF SECTION 13(A)(14) OR (30)
2 OF THE ACT OF APRIL 14, 1972 (P.L.233, NO.64), KNOWN AS THE
3 CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT, AND ANOTHER
4 PERSON DIES AS A RESULT OF USING THE SUBSTANCE.
5 (B) MANDATORY MINIMUM SENTENCE.--A PERSON CONVICTED UNDER
6 SUBSECTION (A) SHALL BE SENTENCED TO A [MANDATORY MINIMUM TERM
7 OF IMPRISONMENT OF FIVE YEARS] MINIMUM SENTENCE OF AT LEAST FIVE
8 YEARS OF TOTAL CONFINEMENT AND A FINE OF $15,000, OR SUCH LARGER
9 AMOUNT AS IS SUFFICIENT TO EXHAUST THE ASSETS UTILIZED IN AND
10 THE PROCEEDS FROM THE ILLEGAL ACTIVITY, NOTWITHSTANDING ANY
11 OTHER PROVISION OF THIS TITLE OR OTHER STATUTE TO THE CONTRARY.
12 [(C) PROOF OF SENTENCING.--PROVISIONS OF THIS SECTION SHALL
13 NOT BE AN ELEMENT OF THE CRIME. NOTICE OF THE APPLICABILITY OF
14 THIS SECTION TO THE DEFENDANT SHALL NOT BE REQUIRED PRIOR TO
15 CONVICTION, BUT REASONABLE NOTICE OF THE COMMONWEALTH'S
16 INTENTION TO PROCEED UNDER THIS SECTION SHALL BE PROVIDED AFTER
17 CONVICTION AND BEFORE SENTENCING. THE APPLICABILITY OF THIS
18 SECTION SHALL BE DETERMINED AT SENTENCING. THE COURT SHALL
19 CONSIDER EVIDENCE PRESENTED AT TRIAL, SHALL AFFORD THE
20 COMMONWEALTH AND THE DEFENDANT AN OPPORTUNITY TO PRESENT
21 NECESSARY ADDITIONAL EVIDENCE AND SHALL DETERMINE, BY A
22 PREPONDERANCE OF THE EVIDENCE, IF THIS SECTION IS APPLICABLE.]
23 (D) [MANDATORY] AUTHORITY OF COURT IN SENTENCING.--THERE
24 SHALL BE NO AUTHORITY IN ANY COURT TO IMPOSE ON AN OFFENDER TO
25 WHICH THIS SECTION IS APPLICABLE A LESSER SENTENCE THAN PROVIDED
26 FOR HEREIN OR TO PLACE THE OFFENDER ON PROBATION, PAROLE, WORK
27 RELEASE OR PRERELEASE OR TO SUSPEND SENTENCE. NOTHING IN THIS
28 SECTION SHALL PREVENT THE SENTENCING COURT FROM IMPOSING A
29 SENTENCE GREATER THAN PROVIDED HEREIN. SENTENCING GUIDELINES
30 PROMULGATED BY THE PENNSYLVANIA COMMISSION ON SENTENCING SHALL
19970S0635B1307 - 2 -
1 NOT SUPERSEDE THE MANDATORY SENTENCES PROVIDED HEREIN.
2 DISPOSITION UNDER SECTION 17 OR 18 OF THE CONTROLLED SUBSTANCE,
3 DRUG, DEVICE AND COSMETIC ACT SHALL NOT BE AVAILABLE TO A
4 DEFENDANT TO WHICH THIS SECTION APPLIES.
5 (E) [APPELLATE REVIEW] APPEAL BY COMMONWEALTH.--IF A
6 SENTENCING COURT REFUSES TO APPLY [THIS SECTION] SUBSECTION (B)
7 WHERE APPLICABLE, THE COMMONWEALTH SHALL HAVE THE RIGHT TO
8 APPELLATE REVIEW OF THE ACTION OF THE SENTENCING COURT. THE
9 APPELLATE COURT SHALL VACATE THE SENTENCE AND REMAND THE CASE TO
10 THE SENTENCING COURT FOR IMPOSITION OF A SENTENCE IN ACCORDANCE
11 WITH [THIS SECTION] SUBSECTION (B) IF IT FINDS THAT THE SENTENCE
12 WAS IMPOSED IN VIOLATION OF [THIS SECTION] SUBSECTION (B).
13 (F) FORFEITURE.--ASSETS AGAINST WHICH A FORFEITURE PETITION
14 HAS BEEN FILED AND IS PENDING OR AGAINST WHICH THE COMMONWEALTH
15 HAS INDICATED AN INTENTION TO FILE A FORFEITURE PETITION SHALL
16 NOT BE SUBJECT TO A FINE. NOTHING IN THIS SECTION SHALL PREVENT
17 A FINE FROM BEING IMPOSED ON ASSETS WHICH HAVE BEEN SUBJECT TO
18 AN UNSUCCESSFUL FORFEITURE PETITION.
19 § 2703. Assault by prisoner.
20 (a) Offense defined.--A person who [has been found guilty
21 and is awaiting sentence to imprisonment, or a person who has
22 been sentenced to imprisonment for a term of years in] is
23 confined in or committed to any local or county detention
24 facility, jail or prison or any State penal or correctional
25 institution or other State penal or correctional facility[,]
26 located in this Commonwealth[,] is guilty of a felony of the
27 second degree if he, while so confined or committed or while
28 undergoing transportation to or from such an institution or
29 facility in or to which he was confined or committed
30 intentionally or knowingly, commits an assault upon another with
19970S0635B1307 - 3 -
1 a deadly weapon or instrument, or by any means or force likely
2 to produce serious bodily injury. A person is guilty of this
3 offense if he intentionally or knowingly causes another to come
4 into contact with blood, seminal fluid, saliva, urine or feces
5 by throwing, tossing, spitting or expelling such fluid or
6 material when, at the time of the offense, the person knew, had
7 reason to know, should have known or believed such fluid or
8 material to have been obtained from an individual, including the
9 person charged under this section, infected by a communicable
10 disease, including, but not limited to, human immunodeficiency
11 virus (HIV) or hepatitis B.
12 (b) Consecutive sentences.--The court shall order that any
13 sentence imposed for a violation of subsection (a), or any
14 sentence imposed for a violation of section 2702(a) (relating to
15 aggravated assault) where the victim is a detention facility or
16 correctional facility employee, be served consecutively with the
17 person's current sentence.
18 Section 2. Title 18 is amended by adding a section to read:
19 § 2703.1. Aggravated harassment by prisoner.
20 A person who is confined in or committed to any local or
21 county detention facility, jail or prison or any State penal or
22 correctional institution or other State penal or correctional
23 facility located in this Commonwealth commits a felony of the
24 third degree if he, while so confined or committed or while
25 undergoing transportation to or from such an institution or
26 facility in or to which he was confined or committed,
27 intentionally or knowingly causes or attempts to cause another
28 to come into contact with blood, seminal fluid, saliva, urine or
29 feces by throwing, tossing, spitting or expelling such fluid or
30 material.
19970S0635B1307 - 4 -
1 Section 3. Section 2704 of Title 18 is amended to read:
2 § 2704. Assault by life prisoner.
3 Every person who has been sentenced to death or life
4 imprisonment in any penal institution located in this
5 Commonwealth, and whose sentence has not been commuted, who
6 commits an aggravated assault with a deadly weapon or instrument
7 upon another, or by any means of force likely to produce serious
8 bodily injury, is guilty of a crime, the penalty for which shall
9 be the same as the penalty for murder of the second degree. A
10 person is guilty of this offense if he intentionally or
11 knowingly causes another to come into contact with blood,
12 seminal fluid, saliva, urine or feces by throwing, tossing,
13 spitting or expelling such fluid or material when, at the time
14 of the offense, the person knew, had reason to know, should have
15 known or believed such fluid or material to have been obtained
16 from an individual, including the person charged under this
17 section, infected by a communicable disease, including, but not
18 limited to, human immunodeficiency virus (HIV) or hepatitis B.
19 SECTION 4. SECTION 3301(D), (H) AND (I) OF TITLE 18 ARE <--
20 AMENDED AND THE SECTION IS AMENDED BY ADDING A SUBSECTION TO
21 READ:
22 § 3301. ARSON AND RELATED OFFENSES.
23 * * *
24 (D) RECKLESS BURNING OR EXPLODING.--A PERSON COMMITS A
25 FELONY OF THE THIRD DEGREE IF HE INTENTIONALLY STARTS A FIRE OR
26 CAUSES AN EXPLOSION, OR IF HE AIDS, COUNSELS, PAYS OR AGREES TO
27 PAY ANOTHER TO CAUSE A FIRE OR EXPLOSION, WHETHER ON HIS OWN
28 PROPERTY OR ON THAT OF ANOTHER, AND THEREBY RECKLESSLY:
29 (1) PLACES AN UNINHABITED BUILDING OR UNOCCUPIED
30 STRUCTURE OF ANOTHER IN DANGER OF DAMAGE OR DESTRUCTION; OR
19970S0635B1307 - 5 -
1 (2) [PLACES ANY PERSONAL PROPERTY OF ANOTHER HAVING A
2 VALUE OF $5,000 OR MORE] PLACES ANY PERSONAL PROPERTY OF
3 ANOTHER HAVING A VALUE THAT EXCEEDS $5,000, OR IF THE
4 PROPERTY IS AN AUTOMOBILE, AIRPLANE, MOTORCYCLE, MOTORBOAT OR
5 OTHER MOTOR-PROPELLED VEHICLE IN DANGER OF DAMAGE OR
6 DESTRUCTION.
7 (D.1) DANGEROUS BURNING.--A PERSON COMMITS A SUMMARY OFFENSE
8 IF HE INTENTIONALLY OR RECKLESSLY STARTS A FIRE TO ENDANGER ANY
9 PERSON OR PROPERTY OF ANOTHER, WHETHER OR NOT ANY DAMAGE TO
10 PERSON OR PROPERTY ACTUALLY OCCURS.
11 * * *
12 (H) LIMITATIONS ON LIABILITY.--THE PROVISIONS OF SUBSECTIONS
13 (A), (B), (C), (D), (D.1) AND (E) SHALL NOT BE CONSTRUED TO
14 ESTABLISH CRIMINAL LIABILITY UPON ANY VOLUNTEER OR PAID
15 FIREFIGHTER OR VOLUNTEER OR PAID FIREFIGHTING COMPANY OR
16 ASSOCIATION IF SAID COMPANY OR ASSOCIATION ENDANGERS A
17 PARTICIPATING FIREFIGHTER OR REAL OR PERSONAL PROPERTY IN THE
18 COURSE OF AN APPROVED, CONTROLLED FIRE TRAINING PROGRAM OR FIRE
19 EVOLUTION, PROVIDED THAT SAID COMPANY OR ASSOCIATION HAS
20 COMPLIED WITH THE FOLLOWING:
21 (1) A SWORN STATEMENT FROM THE OWNER OF ANY REAL OR
22 PERSONAL PROPERTY INVOLVED IN SUCH PROGRAM OR EVOLUTION THAT
23 THERE IS NO FIRE INSURANCE POLICY OR NO LIEN OR ENCUMBRANCE
24 EXISTS WHICH APPLIES TO SUCH REAL OR PERSONAL PROPERTY;
25 (2) APPROVAL OR PERMITS FROM THE APPROPRIATE LOCAL
26 GOVERNMENT OR STATE OFFICIALS, IF NECESSARY, TO CONDUCT SUCH
27 PROGRAM OR EXERCISE HAVE BEEN RECEIVED;
28 (3) PRECAUTIONS HAVE BEEN TAKEN SO THAT THE PROGRAM OR
29 EVOLUTION DOES NOT AFFECT ANY OTHER PERSONS OR REAL OR
30 PERSONAL PROPERTY; AND
19970S0635B1307 - 6 -
1 (4) PARTICIPATION OF FIREFIGHTERS IN THE PROGRAM OR
2 EXERCISE IF VOLUNTARY.
3 (I) DEFENSES.--IT IS A DEFENSE TO PROSECUTION UNDER
4 SUBSECTIONS (C) [AND (D)], (D) AND (D.1) WHERE A PERSON IS
5 CHARGED WITH DESTROYING A VEHICLE, LAWFUL TITLE TO WHICH IS
6 VESTED IN HIM, IF THE VEHICLE IS FREE OF ANY ENCUMBRANCES, THERE
7 IS NO INSURANCE COVERING LOSS BY FIRE OR EXPLOSION OR BOTH ON
8 THE VEHICLE AND THE PERSON DELIVERS TO THE NEAREST STATE POLICE
9 STATION AT LEAST 48 HOURS IN ADVANCE OF THE PLANNED DESTRUCTION
10 A WRITTEN SWORN STATEMENT CERTIFYING THAT THE PERSON IS THE
11 LAWFUL TITLEHOLDER, THAT THE VEHICLE IS FREE OF ANY ENCUMBRANCES
12 AND THAT THERE IS NO INSURANCE COVERING LOSS BY FIRE OR
13 EXPLOSION OR BOTH ON THE VEHICLE.
14 * * *
15 SECTION 5. THE DEFINITIONS OF "ELECTRONIC COMMUNICATION,"
16 "ELECTRONIC, MECHANICAL OR OTHER DEVICE," "INTERCEPT,"
17 "INVESTIGATIVE OR LAW ENFORCEMENT OFFICER," "JUDGE," "PEN
18 REGISTER" AND "WIRE COMMUNICATION" IN SECTION 5702 OF TITLE 18
19 ARE AMENDED AND THE SECTION IS AMENDED BY ADDING DEFINITIONS TO
20 READ:
21 § 5702. DEFINITIONS.
22 AS USED IN THIS CHAPTER, THE FOLLOWING WORDS AND PHRASES
23 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
24 CONTEXT CLEARLY INDICATES OTHERWISE:
25 * * *
26 "ELECTRONIC COMMUNICATION." ANY TRANSFER OF SIGNS, SIGNALS,
27 WRITING, IMAGES, SOUNDS, DATA OR INTELLIGENCE OF ANY NATURE
28 TRANSMITTED IN WHOLE OR IN PART BY A WIRE, RADIO,
29 ELECTROMAGNETIC, PHOTOELECTRONIC OR PHOTO-OPTICAL SYSTEM,
30 EXCEPT:
19970S0635B1307 - 7 -
1 [(1) THE RADIO PORTION OF A CORDLESS TELEPHONE
2 COMMUNICATION THAT IS TRANSMITTED BETWEEN THE CORDLESS
3 TELEPHONE HANDSET AND THE BASE UNIT.]
4 (2) ANY WIRE OR ORAL COMMUNICATION.
5 (3) ANY COMMUNICATION MADE THROUGH A TONE-ONLY PAGING
6 DEVICE.
7 (4) ANY COMMUNICATION FROM A TRACKING DEVICE (AS DEFINED
8 IN THIS SECTION).
9 * * *
10 "ELECTRONIC, MECHANICAL OR OTHER DEVICE." ANY DEVICE OR
11 APPARATUS, INCLUDING, BUT NOT LIMITED TO, AN INDUCTION COIL OR A
12 TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE, THAT CAN
13 BE USED TO INTERCEPT A WIRE, ELECTRONIC OR ORAL COMMUNICATION
14 OTHER THAN:
15 (1) ANY TELEPHONE OR TELEGRAPH INSTRUMENT, EQUIPMENT OR
16 FACILITY, OR ANY COMPONENT THEREOF, FURNISHED TO THE
17 SUBSCRIBER OR USER BY A PROVIDER OF WIRE OR ELECTRONIC
18 COMMUNICATION SERVICE IN THE ORDINARY COURSE OF ITS BUSINESS,
19 OR FURNISHED BY SUCH SUBSCRIBER OR USER FOR CONNECTION TO THE
20 FACILITIES OF SUCH SERVICE AND USED IN THE ORDINARY COURSE OF
21 ITS BUSINESS, OR BEING USED BY A COMMUNICATION COMMON CARRIER
22 IN THE ORDINARY COURSE OF ITS BUSINESS, OR BY AN
23 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER IN THE ORDINARY
24 COURSE OF HIS DUTIES.
25 (2) A HEARING AID OR SIMILAR DEVICE BEING USED TO
26 CORRECT SUBNORMAL HEARING TO NOT BETTER THAN NORMAL.
27 (3) EQUIPMENT OR DEVICES USED TO CONDUCT INTERCEPTIONS
28 UNDER SECTION 5704(15) (RELATING TO EXCEPTIONS TO PROHIBITION
29 OF INTERCEPTION AND DISCLOSURE OF COMMUNICATIONS).
30 * * *
19970S0635B1307 - 8 -
1 "HOME." THE RESIDENCE OF A NONCONSENTING PARTY TO AN
2 INTERCEPTION, PROVIDED THAT ACCESS TO THE RESIDENCE IS NOT
3 GENERALLY PERMITTED TO MEMBERS OF THE PUBLIC AND THE PARTY HAS A
4 REASONABLE EXPECTATION OF PRIVACY IN THE RESIDENCE UNDER THE
5 CIRCUMSTANCES.
6 * * *
7 "INTERCEPT." AURAL OR OTHER ACQUISITION OF THE CONTENTS OF
8 ANY WIRE, ELECTRONIC OR ORAL COMMUNICATION THROUGH THE USE OF
9 ANY ELECTRONIC, MECHANICAL OR OTHER DEVICE. THE TERM SHALL
10 INCLUDE THE POINT AT WHICH THE CONTENTS OF THE COMMUNICATION ARE
11 MONITORED BY INVESTIGATIVE OR LAW ENFORCEMENT OFFICERS.
12 "INVESTIGATIVE OR LAW ENFORCEMENT OFFICER." ANY OFFICER OF
13 THE UNITED STATES, OF ANOTHER STATE OR POLITICAL SUBDIVISION
14 THEREOF, OR OF THE COMMONWEALTH OR POLITICAL SUBDIVISION
15 THEREOF, WHO IS EMPOWERED BY LAW TO CONDUCT INVESTIGATIONS OF OR
16 TO MAKE ARRESTS FOR OFFENSES ENUMERATED IN THIS CHAPTER OR AN
17 EQUIVALENT CRIME IN ANOTHER JURISDICTION, AND ANY ATTORNEY
18 AUTHORIZED BY LAW TO PROSECUTE OR PARTICIPATE IN THE PROSECUTION
19 OF SUCH OFFENSE. [THE TERM SHALL INCLUDE, BUT NOT BE LIMITED TO,
20 EMPLOYEES OF THE PENNSYLVANIA CRIME COMMISSION, AUTHORIZED TO
21 INVESTIGATE CRIMES ENUMERATED IN SECTION 5708 (RELATING TO ORDER
22 AUTHORIZING INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS).]
23 "JUDGE." WHEN REFERRING TO A JUDGE AUTHORIZED TO RECEIVE
24 APPLICATIONS FOR, AND TO ENTER, ORDERS AUTHORIZING INTERCEPTIONS
25 OF WIRE, ELECTRONIC OR ORAL COMMUNICATIONS PURSUANT TO [THIS
26 CHAPTER] SUBCHAPTER B (RELATING TO WIRE, ELECTRONIC OR ORAL
27 COMMUNICATION), ANY JUDGE OF THE SUPERIOR COURT.
28 * * *
29 "PEN REGISTER." A DEVICE WHICH [RECORDS OR DECODES] IS USED
30 TO CAPTURE, RECORD OR DECODE ELECTRONIC OR OTHER IMPULSES WHICH
19970S0635B1307 - 9 -
1 IDENTIFY THE NUMBERS DIALED OR OTHERWISE TRANSMITTED, WITH
2 RESPECT TO WIRE OR ELECTRONIC COMMUNICATIONS, ON THE TARGETED
3 TELEPHONE [LINE TO WHICH THE DEVICE IS ATTACHED]. THE TERM
4 INCLUDES A DEVICE WHICH IS USED TO RECORD OR DECODE ELECTRONIC
5 OR OTHER IMPULSES WHICH IDENTIFY THE EXISTENCE OF INCOMING AND
6 OUTGOING WIRE OR ELECTRONIC COMMUNICATIONS ON THE TARGETED
7 TELEPHONE. THE TERM DOES NOT INCLUDE A DEVICE USED BY A PROVIDER
8 OR CUSTOMER OF A WIRE OR ELECTRONIC COMMUNICATION SERVICE FOR
9 BILLING, OR RECORDING AS AN INCIDENT TO BILLING, FOR
10 COMMUNICATION SERVICE PROVIDED BY THE PROVIDER, OR ANY DEVICE
11 USED BY A PROVIDER, OR CUSTOMER OF A WIRE COMMUNICATION SERVICE
12 FOR COST ACCOUNTING OR OTHER LIKE PURPOSES IN THE ORDINARY
13 COURSE OF BUSINESS.
14 * * *
15 "STATE." ANY STATE OF THE UNITED STATES, THE DISTRICT OF
16 COLUMBIA, THE COMMONWEALTH OF PUERTO RICO AND ANY TERRITORY OR
17 POSSESSION OF THE UNITED STATES.
18 "TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE." ANY
19 EQUIPMENT OR DEVICE CAPABLE OF INTERCEPTING ANY ELECTRONIC
20 COMMUNICATION WHICH CONTAINS ANY ELECTRONIC SERIAL NUMBER,
21 MOBILE IDENTIFICATION NUMBER, PERSONAL IDENTIFICATION NUMBER OR
22 OTHER IDENTIFICATION NUMBER ASSIGNED BY A TELECOMMUNICATION
23 SERVICE PROVIDER FOR ACTIVATION OR OPERATION OF A
24 TELECOMMUNICATION DEVICE.
25 * * *
26 "WIRE COMMUNICATION." ANY AURAL TRANSFER MADE IN WHOLE OR IN
27 PART THROUGH THE USE OF FACILITIES FOR THE TRANSMISSION OF
28 COMMUNICATION BY WIRE, CABLE OR OTHER LIKE CONNECTION BETWEEN
29 THE POINT OF ORIGIN AND THE POINT OF RECEPTION, INCLUDING THE
30 USE OF SUCH A CONNECTION IN A SWITCHING STATION, FURNISHED OR
19970S0635B1307 - 10 -
1 OPERATED BY A TELEPHONE, TELEGRAPH OR RADIO COMPANY FOR HIRE AS
2 A COMMUNICATION COMMON CARRIER. THE TERM [DOES NOT INCLUDE THE
3 RADIO PORTION OF A CORDLESS TELEPHONE COMMUNICATION TRANSMITTED
4 BETWEEN THE CORDLESS TELEPHONE HANDSET AND THE BASE UNIT]
5 INCLUDES ANY ELECTRONIC STORAGE OF SUCH COMMUNICATION.
6 SECTION 6. SECTION 5704 INTRODUCTORY PARAGRAPH AND (2), (5)
7 AND (9) OF TITLE 18 ARE AMENDED AND THE SECTION IS AMENDED BY
8 ADDING A PARAGRAPH TO READ:
9 § 5704. EXCEPTIONS TO PROHIBITION OF INTERCEPTION AND
10 DISCLOSURE OF COMMUNICATIONS.
11 IT SHALL NOT BE UNLAWFUL AND NO PRIOR COURT APPROVAL SHALL BE
12 REQUIRED UNDER THIS CHAPTER FOR:
13 * * *
14 (2) ANY INVESTIGATIVE OR LAW ENFORCEMENT OFFICER OR ANY
15 PERSON ACTING AT THE DIRECTION OR REQUEST OF AN INVESTIGATIVE
16 OR LAW ENFORCEMENT OFFICER TO INTERCEPT A WIRE, ELECTRONIC OR
17 ORAL COMMUNICATION INVOLVING SUSPECTED CRIMINAL ACTIVITIES,
18 INCLUDING, BUT NOT LIMITED TO, THE CRIMES ENUMERATED IN
19 SECTION 5708 (RELATING TO ORDER AUTHORIZING INTERCEPTION OF
20 WIRE, ELECTRONIC OR ORAL COMMUNICATIONS), WHERE:
21 [(I) SUCH OFFICER OR PERSON IS A PARTY TO THE
22 COMMUNICATION;]
23 (II) ONE OF THE PARTIES TO THE COMMUNICATION HAS
24 GIVEN PRIOR CONSENT TO SUCH INTERCEPTION. HOWEVER, NO
25 INTERCEPTION UNDER THIS PARAGRAPH SHALL BE MADE UNLESS
26 THE ATTORNEY GENERAL OR A DEPUTY ATTORNEY GENERAL
27 DESIGNATED IN WRITING BY THE ATTORNEY GENERAL, OR THE
28 DISTRICT ATTORNEY, OR AN ASSISTANT DISTRICT ATTORNEY
29 DESIGNATED IN WRITING BY THE DISTRICT ATTORNEY, OF THE
30 COUNTY WHEREIN THE INTERCEPTION IS TO BE MADE, HAS
19970S0635B1307 - 11 -
1 REVIEWED THE FACTS AND IS SATISFIED THAT THE CONSENT IS
2 VOLUNTARY AND HAS GIVEN PRIOR APPROVAL FOR THE
3 INTERCEPTION; HOWEVER SUCH INTERCEPTION SHALL BE SUBJECT
4 TO THE RECORDING AND RECORD KEEPING REQUIREMENTS OF
5 SECTION 5714(A) (RELATING TO RECORDING OF INTERCEPTED
6 COMMUNICATIONS) AND THAT THE ATTORNEY GENERAL, DEPUTY
7 ATTORNEY GENERAL, DISTRICT ATTORNEY OR ASSISTANT DISTRICT
8 ATTORNEY AUTHORIZING THE INTERCEPTION SHALL BE THE
9 CUSTODIAN OF RECORDED EVIDENCE OBTAINED THEREFROM; [OR]
10 (III) THE INVESTIGATIVE OR LAW ENFORCEMENT OFFICER
11 MEETS IN PERSON WITH A SUSPECTED FELON AND WEARS A
12 CONCEALED ELECTRONIC OR MECHANICAL DEVICE CAPABLE OF
13 INTERCEPTING OR RECORDING ORAL COMMUNICATIONS. HOWEVER,
14 NO INTERCEPTION UNDER THIS SUBPARAGRAPH MAY BE USED IN
15 ANY CRIMINAL PROSECUTION EXCEPT FOR A PROSECUTION
16 INVOLVING HARM DONE TO THE INVESTIGATIVE OR LAW
17 ENFORCEMENT OFFICER. THIS SUBPARAGRAPH SHALL NOT BE
18 CONSTRUED TO LIMIT THE INTERCEPTION AND DISCLOSURE
19 AUTHORITY PROVIDED FOR IN [SUBPARAGRAPH (I).] THIS
20 SUBCHAPTER; OR
21 (IV) THE REQUIREMENTS OF THIS SUBPARAGRAPH ARE MET.
22 IF AN ORAL INTERCEPTION OTHERWISE AUTHORIZED UNDER THIS
23 PARAGRAPH WILL TAKE PLACE IN THE HOME OF A NONCONSENTING
24 PARTY, THEN, IN ADDITION TO THE REQUIREMENTS OF
25 SUBPARAGRAPH (II), THE INTERCEPTION SHALL NOT BE
26 CONDUCTED UNTIL AN ORDER IS FIRST OBTAINED FROM THE
27 PRESIDENT JUDGE, OR HIS DESIGNEE WHO SHALL ALSO BE A
28 JUDGE, OF A COURT OF COMMON PLEAS, AUTHORIZING SUCH IN-
29 HOME INTERCEPTION, BASED UPON AN AFFIDAVIT BY AN
30 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER THAT ESTABLISHES
19970S0635B1307 - 12 -
1 PROBABLE CAUSE FOR THE ISSUANCE OF SUCH AN ORDER. NO SUCH
2 ORDER OR AFFIDAVIT SHALL BE REQUIRED WHERE PROBABLE CAUSE
3 AND EXIGENT CIRCUMSTANCES EXIST. FOR THE PURPOSES OF THIS
4 PARAGRAPH, AN ORAL INTERCEPTION SHALL BE DEEMED TO TAKE
5 PLACE IN THE HOME OF A NONCONSENTING PARTY ONLY IF BOTH
6 THE CONSENTING AND NONCONSENTING PARTIES ARE PHYSICALLY
7 PRESENT IN THE HOME AT THE TIME OF THE INTERCEPTION.
8 * * *
9 (5) ANY INVESTIGATIVE OR LAW ENFORCEMENT OFFICER, OR
10 COMMUNICATION COMMON CARRIER ACTING AT THE DIRECTION OF AN
11 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER OR IN THE NORMAL
12 COURSE OF ITS BUSINESS, TO USE A PEN REGISTER [OR], TRAP AND
13 TRACE DEVICE, OR TELECOMMUNICATION IDENTIFICATION
14 INTERCEPTION DEVICE AS PROVIDED IN [THIS CHAPTER] SUBCHAPTER
15 E (RELATING TO PEN REGISTERS, TRAP AND TRACE DEVICES AND
16 TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICES).
17 * * *
18 (9) A PERSON OR ENTITY PROVIDING ELECTRONIC
19 COMMUNICATION SERVICE TO THE PUBLIC TO DIVULGE THE CONTENTS
20 OF ANY SUCH COMMUNICATION:
21 (I) AS OTHERWISE AUTHORIZED IN THIS SECTION OR
22 SECTION 5717 (RELATING TO INVESTIGATIVE DISCLOSURE OR USE
23 OF CONTENTS OF WIRE, ELECTRONIC OR ORAL COMMUNICATIONS OR
24 DERIVATIVE EVIDENCE);
25 (II) WITH THE LAWFUL CONSENT OF THE ORIGINATOR OR
26 ANY ADDRESSEE OR INTENDED RECIPIENT OF THE COMMUNICATION;
27 (III) TO A PERSON EMPLOYED OR AUTHORIZED, OR WHOSE
28 FACILITIES ARE USED, TO FORWARD THE COMMUNICATION TO ITS
29 DESTINATION; OR
30 (IV) WHICH WERE INADVERTENTLY OBTAINED BY THE
19970S0635B1307 - 13 -
1 SERVICE PROVIDER AND WHICH APPEAR TO PERTAIN TO THE
2 COMMISSION OF A CRIME, IF SUCH DIVULGENCE IS MADE TO A
3 LAW ENFORCEMENT AGENCY.
4 A PERSON OR ENTITY PROVIDING ELECTRONIC COMMUNICATION SERVICE
5 TO THE PUBLIC SHALL NOT INTENTIONALLY DIVULGE THE CONTENTS OF
6 ANY COMMUNICATION (OTHER THAN ONE DIRECTED TO THE PERSON OR
7 ENTITY, OR AN AGENT THEREOF) WHILE IN TRANSMISSION OF THAT
8 SERVICE TO ANY PERSON OR ENTITY OTHER THAN AN ADDRESSEE OR
9 INTENDED RECIPIENT OF THE COMMUNICATION OR AN AGENT OF THE
10 ADDRESSEE OR INTENDED RECIPIENT.
11 * * *
12 (15) THE PERSONNEL OF A BUSINESS ENGAGED IN TELEPHONE
13 SALES BY MEANS OF WIRE, ORAL OR ELECTRONIC COMMUNICATION TO
14 INTERCEPT SUCH SALES COMMUNICATIONS WHERE SUCH INTERCEPTION
15 IS MADE FOR THE SOLE PURPOSE OF TRAINING, QUALITY CONTROL OR
16 MONITORING BY THE BUSINESS, PROVIDED THAT, THE PERSONNEL OF A
17 BUSINESS ENGAGED IN TELEPHONE SALES BY MEANS OF WIRE, ORAL OR
18 ELECTRONIC COMMUNICATIONS INFORMS THE CUSTOMER OR ANY OTHER
19 SUCH PERSON WHO IS A PARTY TO A SALES COMMUNICATION THAT THE
20 COMMUNICATION IS BEING INTERCEPTED AND MONITORED FOR TRAINING
21 PURPOSES OR TO ASSURE QUALITY OF SERVICE AND, PROVIDED
22 FURTHER, THAT THE CUSTOMER OR OTHER SUCH PARTY TO THE
23 COMMUNICATION GIVES PRIOR CONSENT TO THE INTERCEPTION. UNLESS
24 OTHERWISE REQUIRED BY FEDERAL OR STATE LAW, A COMMUNICATION
25 RECORDED PURSUANT TO THIS PARAGRAPH SHALL BE:
26 (I) MADE AVAILABLE TO ANY PARTY TO THE COMMUNICATION
27 UPON WRITTEN REQUEST, PROVIDED THAT THE REQUEST IS MADE
28 WITHIN ONE YEAR FROM THE DATE OF RECORDING.
29 (II) DESTROYED WITHIN SEVEN DAYS OF THE EXPIRATION
30 OF THAT ONE-YEAR TIME PERIOD.
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1 SECTION 7. SECTIONS 5708, 5709(3), 5710(A)(4) AND 5711 OF
2 TITLE 18 ARE AMENDED TO READ:
3 § 5708. ORDER AUTHORIZING INTERCEPTION OF WIRE, ELECTRONIC OR
4 ORAL COMMUNICATIONS.
5 [(A) AUTHORIZATION.--EXCEPT IN CASES REFERRED TO IN
6 SUBSECTION (B), THE] THE ATTORNEY GENERAL, OR, DURING THE
7 ABSENCE OR INCAPACITY OF THE ATTORNEY GENERAL, A DEPUTY ATTORNEY
8 GENERAL DESIGNATED IN WRITING BY THE ATTORNEY GENERAL, OR THE
9 DISTRICT ATTORNEY OR, DURING THE ABSENCE OR INCAPACITY OF THE
10 DISTRICT ATTORNEY, AN ASSISTANT DISTRICT ATTORNEY DESIGNATED IN
11 WRITING BY THE DISTRICT ATTORNEY OF THE COUNTY WHEREIN THE
12 INTERCEPTION IS TO BE MADE, MAY MAKE WRITTEN APPLICATION TO ANY
13 SUPERIOR COURT JUDGE FOR AN ORDER AUTHORIZING THE INTERCEPTION
14 OF A WIRE, ELECTRONIC OR ORAL COMMUNICATION BY THE INVESTIGATIVE
15 OR LAW ENFORCEMENT OFFICERS OR AGENCY HAVING RESPONSIBILITY FOR
16 AN INVESTIGATION INVOLVING SUSPECTED CRIMINAL ACTIVITIES WHEN
17 SUCH INTERCEPTION MAY PROVIDE EVIDENCE OF THE COMMISSION OF ANY
18 OF THE FOLLOWING OFFENSES, OR MAY PROVIDE EVIDENCE AIDING IN THE
19 APPREHENSION OF THE PERPETRATOR OR PERPETRATORS OF ANY OF THE
20 FOLLOWING OFFENSES:
21 (1) UNDER THIS TITLE:
22 SECTION 911 (RELATING TO CORRUPT ORGANIZATIONS)
23 SECTION 2501 (RELATING TO CRIMINAL HOMICIDE)
24 SECTION 2502 (RELATING TO MURDER)
25 SECTION 2503 (RELATING TO VOLUNTARY MANSLAUGHTER)
26 SECTION 2702 (RELATING TO AGGRAVATED ASSAULT)
27 SECTION 2706 (RELATING TO TERRORISTIC THREATS)
28 SECTION 2709(B) (RELATING TO HARASSMENT AND STALKING)
29 SECTION 2901 (RELATING TO KIDNAPPING)
30 SECTION 3121 (RELATING TO RAPE)
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1 SECTION 3123 (RELATING TO INVOLUNTARY DEVIATE SEXUAL
2 INTERCOURSE)
3 SECTION 3124.1 (RELATING TO SEXUAL ASSAULT)
4 SECTION 3125 (RELATING TO AGGRAVATED INDECENT
5 ASSAULT)
6 SECTION 3301 (RELATING TO ARSON AND RELATED OFFENSES)
7 SECTION 3302 (RELATING TO CAUSING OR RISKING
8 CATASTROPHE)
9 SECTION 3502 (RELATING TO BURGLARY)
10 SECTION 3701 (RELATING TO ROBBERY)
11 SECTION 3921 (RELATING TO THEFT BY UNLAWFUL TAKING OR
12 DISPOSITION)
13 SECTION 3922 (RELATING TO THEFT BY DECEPTION)
14 SECTION 3923 (RELATING TO THEFT BY EXTORTION)
15 SECTION 4701 (RELATING TO BRIBERY IN OFFICIAL AND
16 POLITICAL MATTERS)
17 SECTION 4702 (RELATING TO THREATS AND OTHER IMPROPER
18 INFLUENCE IN OFFICIAL AND POLITICAL MATTERS)
19 SECTION 5512 (RELATING TO LOTTERIES, ETC.)
20 SECTION 5513 (RELATING TO GAMBLING DEVICES, GAMBLING,
21 ETC.)
22 SECTION 5514 (RELATING TO POOL SELLING AND
23 BOOKMAKING)
24 SECTION 6106 (RELATING TO FIREARMS NOT TO BE CARRIED
25 WITHOUT A LICENSE)
26 (2) UNDER THIS TITLE, WHERE SUCH OFFENSE IS DANGEROUS TO
27 LIFE, LIMB OR PROPERTY AND PUNISHABLE BY IMPRISONMENT FOR
28 MORE THAN ONE YEAR:
29 SECTION 910 (RELATING TO MANUFACTURE, DISTRIBUTION OR
30 POSSESSION OF DEVICES FOR THEFT OF TELECOMMUNICATION
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1 SERVICES)
2 SECTION 3925 (RELATING TO RECEIVING STOLEN PROPERTY)
3 SECTION 3926 (RELATING TO THEFT OF SERVICES)
4 SECTION 3927 (RELATING TO THEFT BY FAILURE TO MAKE
5 REQUIRED DISPOSITION OF FUNDS RECEIVED)
6 SECTION 3933 (RELATING TO UNLAWFUL USE OF COMPUTER)
7 SECTION 4108 (RELATING TO COMMERCIAL BRIBERY AND
8 BREACH OF DUTY TO ACT DISINTERESTEDLY)
9 SECTION 4109 (RELATING TO RIGGING PUBLICLY EXHIBITED
10 CONTEST)
11 SECTION 4117 (RELATING TO INSURANCE FRAUD)
12 SECTION 4305 (RELATING TO DEALING IN INFANT CHILDREN)
13 SECTION 4902 (RELATING TO PERJURY)
14 SECTION 4909 (RELATING TO WITNESS OR INFORMANT TAKING
15 BRIBE)
16 SECTION 4911 (RELATING TO TAMPERING WITH PUBLIC
17 RECORDS OR INFORMATION)
18 SECTION 4952 (RELATING TO INTIMIDATION OF WITNESSES
19 OR VICTIMS)
20 SECTION 4953 (RELATING TO RETALIATION AGAINST WITNESS
21 OR VICTIM)
22 SECTION 5101 (RELATING TO OBSTRUCTING ADMINISTRATION
23 OF LAW OR OTHER GOVERNMENTAL FUNCTION)
24 SECTION 5111 (RELATING TO DEALING IN PROCEEDS OF
25 UNLAWFUL ACTIVITIES)
26 SECTION 5121 (RELATING TO ESCAPE)
27 SECTION 5504 (RELATING TO HARASSMENT BY COMMUNICATION
28 OR ADDRESS)
29 SECTION 5902 (RELATING TO PROSTITUTION AND RELATED
30 OFFENSES)
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1 SECTION 5903 (RELATING TO OBSCENE AND OTHER SEXUAL
2 MATERIALS AND PERFORMANCES)
3 SECTION 7313 (RELATING TO BUYING OR EXCHANGING
4 FEDERAL FOOD ORDER COUPONS, STAMPS, AUTHORIZATION CARDS
5 OR ACCESS DEVICES)
6 (3) UNDER THE ACT OF MARCH 4, 1971 (P.L.6, NO.2), KNOWN
7 AS THE TAX REFORM CODE OF 1971, WHERE SUCH OFFENSE IS
8 DANGEROUS TO LIFE, LIMB OR PROPERTY AND PUNISHABLE BY
9 IMPRISONMENT FOR MORE THAN ONE YEAR:
10 SECTION 1272 (RELATING TO SALES OF UNSTAMPED
11 CIGARETTES)
12 SECTION 1273 (RELATING TO POSSESSION OF UNSTAMPED
13 CIGARETTES)
14 SECTION 1274 (RELATING TO COUNTERFEITING)
15 (4) ANY OFFENSE SET FORTH UNDER SECTION 13(A) OF THE ACT
16 OF APRIL 14, 1972 (P.L.233, NO.64), KNOWN AS THE CONTROLLED
17 SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT, NOT INCLUDING THE
18 OFFENSE DESCRIBED IN CLAUSE (31) OF SECTION 13(A).
19 (5) ANY OFFENSE SET FORTH UNDER THE ACT OF NOVEMBER 15,
20 1972 (P.L.1227, NO.272).
21 (6) ANY CONSPIRACY TO COMMIT ANY OF THE OFFENSES SET
22 FORTH IN THIS SECTION.
23 [(B) EXCEPTION.--WHENEVER THE INTERCEPTION OF WIRE,
24 ELECTRONIC OR ORAL COMMUNICATION IS TO BE MADE BY AN
25 INVESTIGATIVE OFFICER EMPLOYED BY THE PENNSYLVANIA CRIME
26 COMMISSION, THE APPLICATION FOR THE AUTHORIZING ORDER SHALL BE
27 MADE BY THE ATTORNEY GENERAL OR, DURING THE ABSENCE OR
28 INCAPACITY OF THE ATTORNEY GENERAL, A DEPUTY ATTORNEY GENERAL
29 DESIGNATED IN WRITING BY THE ATTORNEY GENERAL.]
30 § 5709. APPLICATION FOR ORDER.
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1 EACH APPLICATION FOR AN ORDER OF AUTHORIZATION TO INTERCEPT A
2 WIRE, ELECTRONIC OR ORAL COMMUNICATION SHALL BE MADE IN WRITING
3 UPON THE PERSONAL OATH OR AFFIRMATION OF THE ATTORNEY GENERAL OR
4 A DISTRICT ATTORNEY OF THE COUNTY WHEREIN THE INTERCEPTION IS TO
5 BE MADE AND SHALL CONTAIN ALL OF THE FOLLOWING:
6 * * *
7 (3) A SWORN STATEMENT BY THE INVESTIGATIVE OR LAW
8 ENFORCEMENT OFFICER WHO HAS KNOWLEDGE OF RELEVANT INFORMATION
9 JUSTIFYING THE APPLICATION, WHICH SHALL INCLUDE:
10 (I) THE IDENTITY OF THE PARTICULAR PERSON, IF KNOWN,
11 COMMITTING THE OFFENSE AND WHOSE COMMUNICATIONS ARE TO BE
12 INTERCEPTED.
13 (II) THE DETAILS AS TO THE PARTICULAR OFFENSE THAT
14 HAS BEEN, IS BEING, OR IS ABOUT TO BE COMMITTED.
15 (III) THE PARTICULAR TYPE OF COMMUNICATION TO BE
16 INTERCEPTED.
17 (IV) [A] EXCEPT AS PROVIDED IN SECTION 5712(H)
18 (RELATING TO ISSUANCE OF ORDER AND EFFECT), A SHOWING
19 THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT SUCH
20 COMMUNICATION WILL BE COMMUNICATED ON THE WIRE
21 COMMUNICATION FACILITY INVOLVED OR AT THE PARTICULAR
22 PLACE WHERE THE ORAL COMMUNICATION IS TO BE INTERCEPTED.
23 (V) [THE] EXCEPT AS PROVIDED IN SECTION 5712(H), THE
24 CHARACTER AND LOCATION OF THE PARTICULAR WIRE
25 COMMUNICATION FACILITY INVOLVED OR THE PARTICULAR PLACE
26 WHERE THE ORAL COMMUNICATION IS TO BE INTERCEPTED.
27 (VI) A STATEMENT OF THE PERIOD OF TIME FOR WHICH THE
28 INTERCEPTION IS REQUIRED TO BE MAINTAINED, AND, IF THE
29 CHARACTER OF THE INVESTIGATION IS SUCH THAT THE
30 AUTHORIZATION FOR INTERCEPTION SHOULD NOT AUTOMATICALLY
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1 TERMINATE WHEN THE DESCRIBED TYPE OF COMMUNICATION HAS
2 BEEN FIRST OBTAINED, A PARTICULAR STATEMENT OF FACTS
3 ESTABLISHING PROBABLE CAUSE TO BELIEVE THAT ADDITIONAL
4 COMMUNICATIONS OF THE SAME TYPE WILL OCCUR THEREAFTER.
5 (VII) A PARTICULAR STATEMENT OF FACTS SHOWING THAT
6 OTHER NORMAL INVESTIGATIVE PROCEDURES WITH RESPECT TO THE
7 OFFENSE HAVE BEEN TRIED AND HAVE FAILED, OR REASONABLY
8 APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED OR ARE TOO
9 DANGEROUS TO EMPLOY.
10 * * *
11 § 5710. GROUNDS FOR ENTRY OF ORDER.
12 (A) APPLICATION.--UPON CONSIDERATION OF AN APPLICATION, THE
13 JUDGE MAY ENTER AN EX PARTE ORDER, AS REQUESTED OR AS MODIFIED,
14 AUTHORIZING THE INTERCEPTION OF WIRE, ELECTRONIC OR ORAL
15 COMMUNICATIONS ANYWHERE WITHIN THE COMMONWEALTH, IF THE JUDGE
16 DETERMINES ON THE BASIS OF THE FACTS SUBMITTED BY THE APPLICANT
17 THAT THERE IS PROBABLE CAUSE FOR BELIEF THAT ALL THE FOLLOWING
18 CONDITIONS EXIST:
19 * * *
20 (4) EXCEPT AS PROVIDED IN SECTION 5712(H) (RELATING TO
21 ISSUANCE OF ORDER AND EFFECT), THE FACILITY FROM WHICH, OR
22 THE PLACE WHERE, THE WIRE, ELECTRONIC OR ORAL COMMUNICATIONS
23 ARE TO BE INTERCEPTED, IS, HAS BEEN, OR IS ABOUT TO BE USED,
24 IN CONNECTION WITH THE COMMISSION OF SUCH OFFENSE, OR IS
25 LEASED TO, LISTED IN THE NAME OF, OR COMMONLY USED BY, SUCH
26 PERSON;
27 * * *
28 § 5711. PRIVILEGED COMMUNICATIONS.
29 NO OTHERWISE PRIVILEGED COMMUNICATION INTERCEPTED IN
30 ACCORDANCE WITH, OR IN VIOLATION OF, THE PROVISIONS OF THIS
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1 [CHAPTER] SUBCHAPTER SHALL LOSE ITS PRIVILEGED CHARACTER.
2 SECTION 8. SECTION 5712(E), (F) AND (G) OF TITLE 18 ARE
3 AMENDED AND THE SECTION IS AMENDED BY ADDING A SUBSECTION TO
4 READ:
5 § 5712. ISSUANCE OF ORDER AND EFFECT.
6 * * *
7 (E) FINAL REPORT.--WHENEVER AN INTERCEPTION IS AUTHORIZED
8 PURSUANT TO THIS SECTION, A COMPLETE WRITTEN LIST OF NAMES OF
9 PARTICIPANTS AND EVIDENCE OF OFFENSES DISCOVERED, INCLUDING
10 THOSE NOT STATED IN THE APPLICATION FOR ORDER, SHALL BE FILED
11 WITH THE COURT [AT THE TIME] AS SOON AS PRACTICABLE AFTER THE
12 AUTHORIZED INTERCEPTION IS TERMINATED.
13 (F) ASSISTANCE.--AN ORDER AUTHORIZING THE INTERCEPTION OF A
14 WIRE, ELECTRONIC OR ORAL COMMUNICATION SHALL, UPON REQUEST OF
15 THE APPLICANT, DIRECT THAT A PROVIDER OF ELECTRONIC
16 COMMUNICATION SERVICE SHALL FURNISH THE APPLICANT FORTHWITH ALL
17 INFORMATION, FACILITIES AND TECHNICAL ASSISTANCE NECESSARY TO
18 ACCOMPLISH THE INTERCEPTION UNOBTRUSIVELY AND WITH A MINIMUM OF
19 INTERFERENCE WITH THE SERVICES THAT SUCH SERVICE PROVIDER IS
20 AFFORDING THE PERSON WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED.
21 THE OBLIGATION OF A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE
22 UNDER SUCH AN ORDER MAY INCLUDE, BUT IS NOT LIMITED TO,
23 INSTALLATION OF A PEN REGISTER OR TRAP AND TRACE DEVICE AND
24 DISCLOSURE OF A RECORD OR OTHER INFORMATION OTHERWISE AVAILABLE
25 UNDER SECTION 5743 (RELATING TO REQUIREMENTS FOR GOVERNMENTAL
26 ACCESS), INCLUDING CONDUCTING AN IN-PROGRESS TRACE DURING AN
27 INTERCEPTION, PROVIDED THAT SUCH OBLIGATION OF A PROVIDER OF
28 ELECTRONIC COMMUNICATIONS SERVICE IS TECHNOLOGICALLY FEASIBLE.
29 ANY PROVIDER OF ELECTRONIC COMMUNICATION SERVICE FURNISHING SUCH
30 FACILITIES OR TECHNICAL ASSISTANCE SHALL BE COMPENSATED THEREFOR
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1 BY THE APPLICANT FOR REASONABLE EXPENSES INCURRED IN PROVIDING
2 THE FACILITIES OR ASSISTANCE. THE SERVICE PROVIDER SHALL BE
3 IMMUNE FROM CIVIL AND CRIMINAL LIABILITY FOR ANY ASSISTANCE
4 RENDERED TO THE APPLICANT PURSUANT TO THIS SECTION.
5 (G) ENTRY BY LAW ENFORCEMENT OFFICERS.--AN ORDER AUTHORIZING
6 THE INTERCEPTION OF A WIRE, ELECTRONIC OR ORAL COMMUNICATION
7 SHALL, IF REQUESTED, AUTHORIZE THE ENTRY OF PREMISES OR
8 FACILITIES SPECIFIED IN SUBSECTION (A)(3), OR PREMISES NECESSARY
9 TO OBTAIN ACCESS TO THE PREMISES OR FACILITIES SPECIFIED IN
10 SUBSECTION (A)(3), BY THE LAW ENFORCEMENT OFFICERS SPECIFIED IN
11 SUBSECTION (A)(1), AS OFTEN AS NECESSARY SOLELY FOR THE PURPOSES
12 OF INSTALLING, MAINTAINING OR REMOVING AN ELECTRONIC, MECHANICAL
13 OR OTHER DEVICE OR DEVICES PROVIDED THAT SUCH ENTRY IS
14 REASONABLY NECESSARY TO ACCOMPLISH THE PURPOSES OF THIS
15 [CHAPTER] SUBCHAPTER AND PROVIDED THAT THE JUDGE WHO ISSUES THE
16 ORDER SHALL BE NOTIFIED OF THE TIME AND METHOD OF EACH SUCH
17 ENTRY PRIOR TO ENTRY IF PRACTICAL AND, IN ANY CASE, WITHIN 48
18 HOURS OF ENTRY.
19 (H) ROVING WIRETAPS.--THE REQUIREMENTS OF SUBSECTION (A)(3)
20 RELATING TO THE SPECIFICATION OF THE FACILITIES FROM WHICH, OR
21 THE PLACE WHERE, THE COMMUNICATION IS TO BE INTERCEPTED DO NOT
22 APPLY IF:
23 (1) IN THE CASE OF AN APPLICATION WITH RESPECT TO THE
24 INTERCEPTION OF AN ORAL COMMUNICATION:
25 (I) THE APPLICATION IS MADE BY THE ATTORNEY GENERAL
26 OR A DEPUTY ATTORNEY GENERAL DESIGNATED IN WRITING BY THE
27 ATTORNEY GENERAL OR THE DISTRICT ATTORNEY OR A DEPUTY OR
28 ASSISTANT DISTRICT ATTORNEY DESIGNATED IN WRITING BY THE
29 DISTRICT ATTORNEY;
30 (II) THE APPLICATION CONTAINS A FULL AND COMPLETE
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1 STATEMENT AS TO WHY SUCH SPECIFICATION IS NOT PRACTICAL
2 AND IDENTIFIES THE PERSON COMMITTING THE OFFENSE AND
3 WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED; AND
4 (III) THE JUDGE FINDS THAT SUCH SPECIFICATION IS NOT
5 PRACTICAL.
6 (2) IN THE CASE OF AN APPLICATION WITH RESPECT TO A WIRE
7 OR ELECTRONIC COMMUNICATION:
8 (I) THE APPLICATION IS MADE BY THE ATTORNEY GENERAL
9 OR A DEPUTY ATTORNEY GENERAL DESIGNATED IN WRITING BY THE
10 ATTORNEY GENERAL OR THE DISTRICT ATTORNEY OR A DEPUTY OR
11 ASSISTANT DISTRICT ATTORNEY DESIGNATED IN WRITING BY THE
12 DISTRICT ATTORNEY.
13 (II) THE APPLICATION IDENTIFIES THE PERSON BELIEVED
14 TO BE COMMITTING THE OFFENSE AND WHOSE COMMUNICATIONS ARE
15 TO BE INTERCEPTED AND THE APPLICANT MAKES A SHOWING OF A
16 PURPOSE, ON THE PART OF THAT PERSON, TO THWART
17 INTERCEPTION BY CHANGING FACILITIES; AND
18 (III) THE JUDGE FINDS THAT SUCH PURPOSE HAS BEEN
19 ADEQUATELY SHOWN.
20 SECTION 9. SECTIONS 5713(A), 5713.1(B) AND (C), 5714, 5715,
21 5717, 5718, 5719 AND 5720 OF TITLE 18 ARE AMENDED TO READ:
22 § 5713. EMERGENCY SITUATIONS.
23 (A) APPLICATION.--WHENEVER, UPON INFORMAL APPLICATION BY THE
24 ATTORNEY GENERAL OR A DESIGNATED DEPUTY ATTORNEY GENERAL
25 AUTHORIZED IN WRITING BY THE ATTORNEY GENERAL OR A DISTRICT
26 ATTORNEY OR AN ASSISTANT DISTRICT ATTORNEY AUTHORIZED IN WRITING
27 BY THE DISTRICT ATTORNEY OF A COUNTY WHEREIN THE INTERCEPTION IS
28 TO BE MADE, A JUDGE DETERMINES THERE ARE GROUNDS UPON WHICH AN
29 ORDER COULD BE ISSUED PURSUANT TO THIS CHAPTER, AND THAT AN
30 EMERGENCY SITUATION EXISTS WITH RESPECT TO THE INVESTIGATION OF
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1 AN OFFENSE DESIGNATED IN SECTION 5708 (RELATING TO ORDER
2 AUTHORIZING INTERCEPTION OF WIRE, ELECTRONIC OR ORAL
3 COMMUNICATIONS), AND INVOLVING CONSPIRATORIAL ACTIVITIES
4 CHARACTERISTIC OF ORGANIZED CRIME OR A SUBSTANTIAL DANGER TO
5 LIFE OR LIMB, DICTATING AUTHORIZATION FOR IMMEDIATE INTERCEPTION
6 OF WIRE, ELECTRONIC OR ORAL COMMUNICATIONS BEFORE AN APPLICATION
7 FOR AN ORDER COULD WITH DUE DILIGENCE BE SUBMITTED TO HIM AND
8 ACTED UPON, THE JUDGE MAY GRANT ORAL APPROVAL FOR SUCH
9 INTERCEPTION WITHOUT AN ORDER, CONDITIONED UPON THE FILING WITH
10 HIM, WITHIN 48 HOURS THEREAFTER, OF AN APPLICATION FOR AN ORDER
11 WHICH, IF GRANTED, SHALL RECITE THE ORAL APPROVAL AND BE
12 RETROACTIVE TO THE TIME OF SUCH ORAL APPROVAL. SUCH INTERCEPTION
13 SHALL IMMEDIATELY TERMINATE WHEN THE COMMUNICATION SOUGHT IS
14 OBTAINED OR WHEN THE APPLICATION FOR AN ORDER IS DENIED,
15 WHICHEVER IS EARLIER. IN THE EVENT NO APPLICATION FOR AN ORDER
16 IS MADE, THE CONTENT OF ANY WIRE, ELECTRONIC OR ORAL
17 COMMUNICATION INTERCEPTED SHALL BE TREATED AS HAVING BEEN
18 OBTAINED IN VIOLATION OF THIS [CHAPTER] SUBCHAPTER.
19 * * *
20 § 5713.1. EMERGENCY HOSTAGE AND BARRICADE SITUATIONS.
21 * * *
22 (B) PROCEDURE.--A SUPERVISING LAW ENFORCEMENT OFFICER WHO
23 REASONABLY DETERMINES THAT AN EMERGENCY SITUATION EXISTS THAT
24 REQUIRES A WIRE OR ORAL COMMUNICATION TO BE INTERCEPTED BEFORE
25 AN ORDER AUTHORIZING SUCH INTERCEPTION CAN, WITH DUE DILIGENCE,
26 BE OBTAINED, AND WHO DETERMINES THAT THERE ARE GROUNDS UPON
27 WHICH AN ORDER COULD BE ENTERED UNDER THIS CHAPTER TO AUTHORIZE
28 SUCH INTERCEPTION, MAY INTERCEPT SUCH WIRE OR ORAL
29 COMMUNICATION. AN APPLICATION FOR AN ORDER APPROVING THE
30 INTERCEPTION MUST BE MADE BY THE SUPERVISING LAW ENFORCEMENT
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1 OFFICER IN ACCORDANCE WITH SECTION 5709 (RELATING TO APPLICATION
2 FOR ORDER) WITHIN 48 HOURS AFTER THE INTERCEPTION HAS OCCURRED
3 OR BEGINS TO OCCUR. INTERCEPTIONS PURSUANT TO THIS SECTION SHALL
4 BE CONDUCTED IN ACCORDANCE WITH THE PROCEDURES OF THIS [CHAPTER]
5 SUBCHAPTER. UPON REQUEST OF THE SUPERVISING LAW ENFORCEMENT
6 OFFICER WHO DETERMINES TO AUTHORIZE INTERCEPTIONS OF WIRE
7 COMMUNICATIONS UNDER THIS SECTION, A PROVIDER OF ELECTRONIC
8 COMMUNICATION SERVICE SHALL PROVIDE ASSISTANCE AND BE
9 COMPENSATED THEREFOR AS PROVIDED IN SECTION 5712(F) (RELATING TO
10 ISSUANCE OF ORDER AND EFFECT). IN THE ABSENCE OF AN ORDER, SUCH
11 INTERCEPTION SHALL IMMEDIATELY TERMINATE WHEN THE SITUATION
12 GIVING RISE TO THE HOSTAGE OR BARRICADE SITUATION ENDS OR WHEN
13 THE APPLICATION FOR THE ORDER IS DENIED, WHICHEVER IS EARLIER.
14 IN THE EVENT SUCH APPLICATION FOR APPROVAL IS DENIED OR IN ANY
15 OTHER CASE WHERE THE INTERCEPTION IS TERMINATED WITHOUT AN ORDER
16 HAVING BEEN ISSUED, THE CONTENTS OF ANY WIRE OR ORAL
17 COMMUNICATION INTERCEPTED SHALL BE TREATED AS HAVING BEEN
18 OBTAINED IN VIOLATION OF THIS [CHAPTER] SUBCHAPTER, AND AN
19 INVENTORY SHALL BE SERVED AS PROVIDED IN SECTION 5716 (RELATING
20 TO SERVICE OF INVENTORY AND INSPECTION OF INTERCEPTED
21 COMMUNICATIONS). THEREAFTER, THE SUPERVISING LAW ENFORCEMENT
22 OFFICER SHALL FOLLOW THE PROCEDURES SET FORTH IN SECTION 5713(B)
23 (RELATING TO EMERGENCY SITUATIONS).
24 (C) DEFENSE.--A GOOD FAITH RELIANCE ON THE PROVISIONS OF
25 THIS SECTION SHALL BE A COMPLETE DEFENSE TO ANY CIVIL OR
26 CRIMINAL ACTION BROUGHT UNDER THIS [CHAPTER] SUBCHAPTER OR ANY
27 OTHER STATUTE AGAINST ANY LAW ENFORCEMENT OFFICER OR AGENCY
28 CONDUCTING ANY INTERCEPTIONS PURSUANT TO THIS SECTION AS WELL AS
29 A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE WHO IS REQUIRED
30 TO PROVIDE ASSISTANCE IN CONDUCTING SUCH INTERCEPTIONS UPON
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1 REQUEST OF A SUPERVISING LAW ENFORCEMENT OFFICER.
2 * * *
3 § 5714. RECORDING OF INTERCEPTED COMMUNICATIONS.
4 (A) RECORDING AND MONITORING.--ANY WIRE, ELECTRONIC OR ORAL
5 COMMUNICATION INTERCEPTED IN ACCORDANCE WITH THIS [CHAPTER]
6 SUBCHAPTER SHALL, IF PRACTICABLE, BE RECORDED BY TAPE OR OTHER
7 COMPARABLE METHOD. THE RECORDING SHALL BE DONE IN SUCH A WAY AS
8 WILL PROTECT IT FROM EDITING OR OTHER ALTERATION. WHENEVER AN
9 INTERCEPTION IS BEING MONITORED, THE MONITOR SHALL BE AN
10 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER CERTIFIED UNDER SECTION
11 5724 (RELATING TO TRAINING), AND WHERE PRACTICABLE, KEEP A
12 SIGNED, WRITTEN RECORD WHICH SHALL INCLUDE THE FOLLOWING:
13 (1) THE DATE AND HOURS OF SURVEILLANCE.
14 (2) THE TIME AND DURATION OF EACH INTERCEPTED
15 COMMUNICATION.
16 (3) THE PARTICIPANT, IF KNOWN, IN EACH INTERCEPTED
17 CONVERSATION.
18 (4) A SUMMARY OF THE CONTENT OF EACH INTERCEPTED
19 COMMUNICATION.
20 (B) SEALING OF RECORDINGS.--IMMEDIATELY UPON THE EXPIRATION
21 OF THE ORDER OR EXTENSIONS OR RENEWALS THEREOF, ALL MONITOR'S
22 RECORDS, TAPES AND OTHER RECORDINGS SHALL BE TRANSFERRED TO THE
23 JUDGE ISSUING THE ORDER AND SEALED UNDER HIS DIRECTION. CUSTODY
24 OF THE TAPES, OR OTHER RECORDINGS SHALL BE MAINTAINED WHEREVER
25 THE COURT DIRECTS. THEY SHALL NOT BE DESTROYED EXCEPT UPON AN
26 ORDER OF THE COURT AND IN ANY EVENT SHALL BE KEPT FOR TEN YEARS.
27 DUPLICATE TAPES, OR OTHER RECORDINGS MAY BE MADE FOR DISCLOSURE
28 OR USE PURSUANT TO SECTION 5717 (RELATING TO INVESTIGATIVE
29 DISCLOSURE OR USE OF CONTENTS OF WIRE, ELECTRONIC OR ORAL
30 COMMUNICATIONS OR DERIVATIVE EVIDENCE). THE PRESENCE OF THE SEAL
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1 PROVIDED BY THIS SECTION, OR A SATISFACTORY EXPLANATION FOR ITS
2 ABSENCE, SHALL BE A PREREQUISITE FOR THE DISCLOSURE OF THE
3 CONTENTS OF ANY WIRE, ELECTRONIC OR ORAL COMMUNICATION, OR
4 EVIDENCE DERIVED THEREFROM, UNDER SECTION 5717(B).
5 § 5715. SEALING OF APPLICATIONS, ORDERS AND SUPPORTING PAPERS.
6 APPLICATIONS MADE, FINAL REPORTS, AND ORDERS GRANTED PURSUANT
7 TO THIS [CHAPTER] SUBCHAPTER AND SUPPORTING PAPERS AND MONITOR'S
8 RECORDS SHALL BE SEALED BY THE COURT AND SHALL BE HELD IN
9 CUSTODY AS THE COURT SHALL DIRECT AND SHALL NOT BE DESTROYED
10 EXCEPT ON ORDER OF THE COURT AND IN ANY EVENT SHALL BE KEPT FOR
11 TEN YEARS. THEY MAY BE DISCLOSED ONLY UPON A SHOWING OF GOOD
12 CAUSE BEFORE A COURT OF COMPETENT JURISDICTION EXCEPT THAT ANY
13 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER MAY DISCLOSE SUCH
14 APPLICATIONS, ORDERS AND SUPPORTING PAPERS AND MONITOR'S RECORDS
15 TO INVESTIGATIVE OR LAW ENFORCEMENT OFFICERS OF THIS OR ANOTHER
16 STATE, ANY OF ITS POLITICAL SUBDIVISIONS, OR OF THE UNITED
17 STATES TO THE EXTENT THAT SUCH DISCLOSURE IS APPROPRIATE TO THE
18 PROPER PERFORMANCE OF THE OFFICIAL DUTIES OF THE OFFICER MAKING
19 OR RECEIVING THE DISCLOSURE. IN ADDITION TO ANY REMEDIES AND
20 PENALTIES PROVIDED BY THIS [CHAPTER] SUBCHAPTER, ANY VIOLATION
21 OF THE PROVISIONS OF THIS SECTION MAY BE PUNISHED AS CONTEMPT OF
22 THE COURT.
23 § 5717. [DISCLOSURE] INVESTIGATIVE DISCLOSURE OR USE OF
24 CONTENTS OF WIRE, ELECTRONIC OR ORAL COMMUNICATIONS
25 OR DERIVATIVE EVIDENCE.
26 (A) [INVESTIGATIVE ACTIVITIES.--]LAW ENFORCEMENT
27 PERSONNEL.--ANY INVESTIGATIVE OR LAW ENFORCEMENT OFFICER WHO,
28 [BY ANY MEANS AUTHORIZED BY THIS CHAPTER,] UNDER SUBSECTION
29 (A.1), (A.2) OR (B), HAS OBTAINED KNOWLEDGE OF THE CONTENTS OF
30 ANY WIRE, ELECTRONIC OR ORAL COMMUNICATION, OR EVIDENCE DERIVED
19970S0635B1307 - 27 -
1 THEREFROM, MAY DISCLOSE SUCH CONTENTS OR EVIDENCE TO ANOTHER
2 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER[, INCLUDING ANOTHER
3 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER OF ANOTHER STATE OR
4 POLITICAL SUBDIVISION THEREOF, OR MAKE USE OF SUCH CONTENTS OR
5 EVIDENCE] TO THE EXTENT THAT SUCH DISCLOSURE [OR USE] IS
6 APPROPRIATE TO THE PROPER PERFORMANCE OF THE OFFICIAL DUTIES OF
7 THE OFFICER MAKING OR RECEIVING THE DISCLOSURE.
8 (A.1) USE OF INFORMATION.--ANY INVESTIGATIVE OR LAW
9 ENFORCEMENT OFFICER WHO, BY ANY MEANS AUTHORIZED BY THIS
10 SUBCHAPTER, HAS OBTAINED KNOWLEDGE OF THE CONTENTS OF ANY WIRE,
11 ELECTRONIC OR ORAL COMMUNICATION OR EVIDENCE DERIVED THEREFROM
12 MAY USE SUCH CONTENTS OR EVIDENCE TO THE EXTENT SUCH USE IS
13 APPROPRIATE TO THE PROPER PERFORMANCE OF HIS OFFICIAL DUTIES.
14 (A.2) CIVILIANS.--ANY PERSON OTHER THAN AN INVESTIGATIVE OR
15 LAW ENFORCEMENT OFFICER WHO AS A PARTY TO THE COMMUNICATION HAS
16 OBTAINED KNOWLEDGE OF THE CONTENTS OF ANY WIRE, ELECTRONIC OR
17 ORAL COMMUNICATION, OR EVIDENCE DERIVED THEREFROM, MAY DISCLOSE
18 SUCH CONTENTS OR EVIDENCE TO AN INVESTIGATIVE OR LAW ENFORCEMENT
19 OFFICER.
20 (B) EVIDENCE.--ANY PERSON WHO BY ANY MEANS AUTHORIZED BY
21 THIS CHAPTER, HAS OBTAINED KNOWLEDGE OF THE CONTENTS OF ANY
22 WIRE, ELECTRONIC OR ORAL COMMUNICATION, OR EVIDENCE DERIVED
23 THEREFROM, MAY DISCLOSE SUCH CONTENTS OR EVIDENCE TO AN
24 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER AND MAY DISCLOSE SUCH
25 CONTENTS OR EVIDENCE WHILE GIVING TESTIMONY UNDER OATH OR
26 AFFIRMATION IN ANY CRIMINAL PROCEEDING IN ANY COURT OF THIS
27 COMMONWEALTH OR OF ANOTHER STATE OR OF THE UNITED STATES OR
28 BEFORE ANY STATE OR FEDERAL GRAND JURY OR INVESTIGATING GRAND
29 JURY.
30 [(C) OTHERWISE AUTHORIZED PERSONNEL.--ANY PERSON WHO, BY ANY
19970S0635B1307 - 28 -
1 MEANS AUTHORIZED BY THE LAWS OF ANOTHER STATE OR THE FEDERAL
2 GOVERNMENT, HAS OBTAINED KNOWLEDGE OF THE CONTENTS OF ANY WIRE,
3 ELECTRONIC OR ORAL COMMUNICATION, OR EVIDENCE DERIVED THEREFROM,
4 MAY DISCLOSE SUCH CONTENTS OR EVIDENCE TO AN INVESTIGATIVE OR
5 LAW ENFORCEMENT OFFICER AND MAY DISCLOSE SUCH CONTENTS OR
6 EVIDENCE WHERE OTHERWISE ADMISSIBLE WHILE GIVING TESTIMONY UNDER
7 OATH OR AFFIRMATION IN ANY PROCEEDING IN ANY COURT OF THIS
8 COMMONWEALTH.]
9 § 5718. INTERCEPTION OF COMMUNICATIONS RELATING TO OTHER
10 OFFENSES.
11 WHEN AN INVESTIGATIVE OR LAW ENFORCEMENT OFFICER, WHILE
12 ENGAGED IN COURT AUTHORIZED INTERCEPTIONS OF WIRE, ELECTRONIC OR
13 ORAL COMMUNICATIONS IN THE MANNER AUTHORIZED HEREIN, INTERCEPTS
14 WIRE, ELECTRONIC OR ORAL COMMUNICATIONS RELATING TO OFFENSES
15 OTHER THAN THOSE SPECIFIED IN THE ORDER OF AUTHORIZATION, THE
16 CONTENTS THEREOF, AND EVIDENCE DERIVED THEREFROM, MAY BE
17 DISCLOSED OR USED AS PROVIDED IN SECTION 5717(A) (RELATING TO
18 INVESTIGATIVE DISCLOSURE OR USE OF CONTENTS OF WIRE, ELECTRONIC
19 OR ORAL COMMUNICATIONS OR DERIVATIVE EVIDENCE). SUCH CONTENTS
20 AND EVIDENCE MAY BE DISCLOSED IN TESTIMONY UNDER OATH OR
21 AFFIRMATION IN ANY CRIMINAL PROCEEDING IN ANY COURT OF THIS
22 COMMONWEALTH OR OF ANOTHER STATE OR OF THE UNITED STATES OR
23 BEFORE ANY STATE OR FEDERAL GRAND JURY WHEN AUTHORIZED BY A
24 JUDGE WHO FINDS ON SUBSEQUENT APPLICATION THAT THE CONTENTS WERE
25 OTHERWISE INTERCEPTED IN ACCORDANCE WITH THE PROVISIONS OF THIS
26 [CHAPTER] SUBCHAPTER. SUCH APPLICATION SHALL BE MADE AS SOON AS
27 PRACTICABLE.
28 § 5719. UNLAWFUL USE OR DISCLOSURE OF EXISTENCE OF ORDER
29 CONCERNING INTERCEPTED COMMUNICATION.
30 EXCEPT AS SPECIFICALLY AUTHORIZED PURSUANT TO THIS [CHAPTER]
19970S0635B1307 - 29 -
1 SUBCHAPTER ANY PERSON WHO WILLFULLY USES OR DISCLOSES THE
2 EXISTENCE OF AN ORDER AUTHORIZING INTERCEPTION OF A WIRE,
3 ELECTRONIC OR ORAL COMMUNICATION IS GUILTY OF A MISDEMEANOR OF
4 THE SECOND DEGREE.
5 § 5720. SERVICE OF COPY OF ORDER AND APPLICATION BEFORE
6 DISCLOSURE OF INTERCEPTED COMMUNICATION IN TRIAL,
7 HEARING OR PROCEEDING.
8 THE CONTENTS OF ANY WIRE, ELECTRONIC OR ORAL COMMUNICATION
9 INTERCEPTED IN ACCORDANCE WITH THE PROVISIONS OF THIS [CHAPTER]
10 SUBCHAPTER, OR EVIDENCE DERIVED THEREFROM, SHALL NOT BE
11 DISCLOSED IN ANY TRIAL, HEARING, OR OTHER ADVERSARY PROCEEDING
12 BEFORE ANY COURT OF THE COMMONWEALTH UNLESS, NOT LESS THAN TEN
13 DAYS BEFORE THE TRIAL, HEARING OR PROCEEDING THE PARTIES TO THE
14 ACTION HAVE BEEN SERVED WITH A COPY OF THE ORDER, THE
15 ACCOMPANYING APPLICATION AND THE FINAL REPORT UNDER WHICH THE
16 INTERCEPTION WAS AUTHORIZED OR, IN THE CASE OF AN INTERCEPTION
17 UNDER SECTION 5704 (RELATING TO EXCEPTIONS TO PROHIBITION OF
18 INTERCEPTION AND DISCLOSURE OF COMMUNICATIONS), NOTICE OF THE
19 FACT AND NATURE OF THE INTERCEPTION. THE SERVICE OF INVENTORY,
20 ORDER, APPLICATION, AND FINAL REPORT REQUIRED BY THIS SECTION
21 MAY BE WAIVED BY THE COURT ONLY WHERE IT FINDS THAT THE SERVICE
22 IS NOT FEASIBLE AND THAT THE PARTIES WILL NOT BE PREJUDICED BY
23 THE FAILURE TO MAKE THE SERVICE.
24 SECTION 10. SECTION 5721 OF TITLE 18 IS REPEALED.
25 SECTION 11. TITLE 18 IS AMENDED BY ADDING A SECTION TO READ:
26 § 5721.1. EVIDENTIARY DISCLOSURE OF CONTENTS OF INTERCEPTED
27 COMMUNICATION OR DERIVATIVE EVIDENCE.
28 (A) DISCLOSURE IN EVIDENCE GENERALLY.--
29 (1) EXCEPT AS PROVIDED IN PARAGRAPH (2), NO PERSON SHALL
30 DISCLOSE THE CONTENTS OF ANY WIRE, ELECTRONIC OR ORAL
19970S0635B1307 - 30 -
1 COMMUNICATION, OR EVIDENCE DERIVED THEREFROM, IN ANY
2 PROCEEDING IN ANY COURT, BOARD OR AGENCY OF THIS
3 COMMONWEALTH.
4 (2) ANY PERSON WHO HAS OBTAINED KNOWLEDGE OF THE
5 CONTENTS OF ANY WIRE, ELECTRONIC OR ORAL COMMUNICATION, OR
6 EVIDENCE DERIVED THEREFROM, WHICH IS PROPERLY SUBJECT TO
7 DISCLOSURE UNDER SECTION 5717 (RELATING TO INVESTIGATIVE
8 DISCLOSURE OR USE OF CONTENTS OF WIRE, ELECTRONIC OR ORAL
9 COMMUNICATIONS OR DERIVATIVE EVIDENCE), MAY ALSO DISCLOSE
10 SUCH CONTENTS OR EVIDENCE IN ANY MATTER RELATING TO ANY
11 CRIMINAL, QUASI-CRIMINAL, FORFEITURE, ADMINISTRATIVE
12 ENFORCEMENT OR PROFESSIONAL DISCIPLINARY PROCEEDINGS IN ANY
13 COURT, BOARD OR AGENCY OF THIS COMMONWEALTH OR OF ANOTHER
14 STATE OR OF THE UNITED STATES OR BEFORE ANY STATE OR FEDERAL
15 GRAND JURY OR INVESTIGATING GRAND JURY. ONCE SUCH DISCLOSURE
16 HAS BEEN MADE, THEN ANY PERSON MAY DISCLOSE THE CONTENTS OR
17 EVIDENCE IN ANY SUCH PROCEEDING.
18 (3) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (2), NO
19 DISCLOSURE IN ANY SUCH PROCEEDING SHALL BE MADE SO LONG AS
20 ANY ORDER EXCLUDING SUCH CONTENTS OR EVIDENCE PURSUANT TO THE
21 PROVISIONS OF SUBSECTION (B) IS IN EFFECT.
22 (B) MOTION TO EXCLUDE.--ANY AGGRIEVED PERSON WHO IS A PARTY
23 TO ANY PROCEEDING IN ANY COURT, BOARD OR AGENCY OF THIS
24 COMMONWEALTH MAY MOVE TO EXCLUDE THE CONTENTS OF ANY WIRE,
25 ELECTRONIC OR ORAL COMMUNICATION, OR EVIDENCE DERIVED THEREFROM,
26 ON ANY OF THE FOLLOWING GROUNDS:
27 (1) UNLESS INTERCEPTED PURSUANT TO AN EXCEPTION SET
28 FORTH IN SECTION 5704 (RELATING TO EXCEPTIONS TO PROHIBITION
29 OF INTERCEPTION AND DISCLOSURE OF COMMUNICATIONS), THE
30 INTERCEPTION WAS MADE WITHOUT PRIOR PROCUREMENT OF AN ORDER
19970S0635B1307 - 31 -
1 OF AUTHORIZATION UNDER SECTION 5712 (RELATING TO ISSUANCE OF
2 ORDER AND EFFECT) OR AN ORDER OF APPROVAL UNDER SECTION
3 5713(A) (RELATING TO EMERGENCY SITUATIONS) OR 5713.1(B)
4 (RELATING TO EMERGENCY HOSTAGE AND BARRICADE SITUATIONS).
5 (2) THE ORDER OF AUTHORIZATION ISSUED UNDER SECTION 5712
6 OR THE ORDER OF APPROVAL ISSUED UNDER SECTION 5713(A) OR
7 5713.1(B) WAS NOT SUPPORTED BY PROBABLE CAUSE WITH RESPECT TO
8 THE MATTERS SET FORTH IN SECTION 5710(A)(1) AND (2) (RELATING
9 TO GROUNDS FOR ENTRY OF ORDER).
10 (3) THE ORDER OF AUTHORIZATION ISSUED UNDER SECTION 5712
11 IS MATERIALLY INSUFFICIENT ON ITS FACE.
12 (4) THE INTERCEPTION MATERIALLY DEVIATED FROM THE
13 REQUIREMENTS OF THE ORDER OF AUTHORIZATION.
14 (5) WITH RESPECT TO INTERCEPTIONS PURSUANT TO SECTION
15 5704(2), THE CONSENT TO THE INTERCEPTION WAS COERCED BY THE
16 COMMONWEALTH.
17 (6) WHERE REQUIRED PURSUANT TO SECTION 5704(2)(IV), THE
18 INTERCEPTION WAS MADE WITHOUT PRIOR PROCUREMENT OF A COURT
19 ORDER, OR WITHOUT PROBABLE CAUSE.
20 (C) PROCEDURE.--
21 (1) THE MOTION SHALL BE MADE IN ACCORDANCE WITH THE
22 APPLICABLE RULES OF PROCEDURE GOVERNING SUCH PROCEEDINGS. THE
23 COURT, BOARD OR AGENCY, UPON THE FILING OF SUCH MOTION, SHALL
24 MAKE AVAILABLE TO THE MOVANT OR HIS COUNSEL THE INTERCEPTED
25 COMMUNICATION AND EVIDENCE DERIVED THEREFROM.
26 (2) IN CONSIDERING A MOTION TO EXCLUDE UNDER SUBSECTION
27 (B)(2), BOTH THE WRITTEN APPLICATION UNDER SECTION 5710(A)
28 AND ALL MATTERS THAT WERE PRESENTED TO THE JUDGE UNDER
29 SECTION 5710(B) SHALL BE ADMISSIBLE.
30 (3) THE MOVANT SHALL BEAR THE BURDEN OF PROVING BY A
19970S0635B1307 - 32 -
1 PREPONDERANCE OF THE EVIDENCE THE GROUNDS FOR EXCLUSION
2 ASSERTED UNDER SUBSECTION (B)(3) AND (4).
3 (4) WITH RESPECT TO EXCLUSION CLAIMS UNDER SUBSECTION
4 (B)(1), (2) AND (5), THE RESPONDENT SHALL BEAR THE BURDEN OF
5 PROOF BY A PREPONDERANCE OF THE EVIDENCE.
6 (5) WITH RESPECT TO EXCLUSION CLAIMS UNDER SUBSECTION
7 (B)(6), THE MOVANT SHALL HAVE THE INITIAL BURDEN OF
8 DEMONSTRATING BY A PREPONDERANCE OF THE EVIDENCE THAT THE
9 INTERCEPTION TOOK PLACE IN HIS HOME. ONCE HE MEETS THIS
10 BURDEN, THE BURDEN SHALL SHIFT TO THE RESPONDENT TO
11 DEMONSTRATE BY A PREPONDERANCE OF THE EVIDENCE THAT THE
12 INTERCEPTION WAS IN ACCORDANCE WITH SECTION 5704(2)(IV).
13 (6) EVIDENCE SHALL NOT BE DEEMED TO HAVE BEEN DERIVED
14 FROM COMMUNICATIONS EXCLUDABLE UNDER SUBSECTION (B) IF THE
15 RESPONDENT CAN DEMONSTRATE BY A PREPONDERANCE OF THE EVIDENCE
16 THAT THE COMMONWEALTH OR THE RESPONDENT HAD A BASIS
17 INDEPENDENT OF THE EXCLUDED COMMUNICATION FOR DISCOVERING
18 SUCH EVIDENCE, OR THAT SUCH EVIDENCE WOULD HAVE BEEN
19 INEVITABLY DISCOVERED BY THE COMMONWEALTH OR THE RESPONDENT
20 ABSENT THE EXCLUDED COMMUNICATION.
21 (D) APPEAL.--IN ADDITION TO ANY OTHER RIGHT OF APPEAL, THE
22 COMMONWEALTH SHALL HAVE THE RIGHT TO APPEAL FROM AN ORDER
23 GRANTING A MOTION TO EXCLUDE IF THE OFFICIAL TO WHOM THE ORDER
24 AUTHORIZING THE INTERCEPT WAS GRANTED SHALL CERTIFY TO THE COURT
25 THAT THE APPEAL IS NOT TAKEN FOR PURPOSES OF DELAY. THE APPEAL
26 SHALL BE TAKEN IN ACCORDANCE WITH THE PROVISIONS OF TITLE 42
27 (RELATING TO JUDICIARY AND JUDICIAL PROCEDURE).
28 (E) EXCLUSIVENESS OF REMEDIES AND SANCTIONS.--THE REMEDIES
29 AND SANCTIONS DESCRIBED IN THIS SUBCHAPTER WITH RESPECT TO THE
30 INTERCEPTION OF WIRE, ELECTRONIC OR ORAL COMMUNICATIONS ARE THE
19970S0635B1307 - 33 -
1 ONLY JUDICIAL REMEDIES AND SANCTIONS FOR NONCONSTITUTIONAL
2 VIOLATIONS OF THIS SUBCHAPTER INVOLVING SUCH COMMUNICATIONS.
3 SECTION 12. SECTIONS 5722, 5724, 5725, 5726, 5743(D) AND
4 (E), 5744(B) AND 5747(D) OF TITLE 18 ARE AMENDED TO READ:
5 § 5722. REPORT BY ISSUING OR DENYING JUDGE.
6 WITHIN 30 DAYS AFTER THE EXPIRATION OF AN ORDER OR AN
7 EXTENSION OR RENEWAL THEREOF ENTERED UNDER THIS [CHAPTER]
8 SUBCHAPTER OR THE DENIAL OF AN ORDER CONFIRMING VERBAL APPROVAL
9 OF INTERCEPTION, THE ISSUING OR DENYING JUDGE SHALL MAKE A
10 REPORT TO THE ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS
11 STATING THE FOLLOWING:
12 (1) THAT AN ORDER, EXTENSION OR RENEWAL WAS APPLIED FOR.
13 (2) THE KIND OF ORDER APPLIED FOR.
14 (3) THAT THE ORDER WAS GRANTED AS APPLIED FOR, WAS
15 MODIFIED, OR WAS DENIED.
16 (4) THE PERIOD OF THE INTERCEPTIONS AUTHORIZED BY THE
17 ORDER, AND THE NUMBER AND DURATION OF ANY EXTENSIONS OR
18 RENEWALS OF THE ORDER.
19 (5) THE OFFENSE SPECIFIED IN THE ORDER, OR EXTENSION OR
20 RENEWAL OF AN ORDER.
21 (6) THE NAME AND OFFICIAL IDENTITY OF THE PERSON MAKING
22 THE APPLICATION AND OF THE INVESTIGATIVE OR LAW ENFORCEMENT
23 OFFICER AND AGENCY FOR WHOM IT WAS MADE.
24 (7) THE CHARACTER OF THE FACILITIES FROM WHICH OR THE
25 PLACE WHERE THE COMMUNICATIONS WERE TO BE INTERCEPTED.
26 § 5724. TRAINING.
27 THE ATTORNEY GENERAL AND THE COMMISSIONER OF THE PENNSYLVANIA
28 STATE POLICE SHALL ESTABLISH A COURSE OF TRAINING IN THE LEGAL
29 AND TECHNICAL ASPECTS OF WIRETAPPING AND ELECTRONIC SURVEILLANCE
30 AS ALLOWED OR PERMITTED BY THIS [CHAPTER] SUBCHAPTER, SHALL
19970S0635B1307 - 34 -
1 ESTABLISH SUCH REGULATIONS AS THEY FIND NECESSARY AND PROPER FOR
2 SUCH TRAINING PROGRAM AND SHALL ESTABLISH MINIMUM STANDARDS FOR
3 CERTIFICATION AND PERIODIC RECERTIFICATION OF COMMONWEALTH
4 INVESTIGATIVE OR LAW ENFORCEMENT OFFICERS AS ELIGIBLE TO CONDUCT
5 WIRETAPPING OR ELECTRONIC SURVEILLANCE UNDER THIS CHAPTER. THE
6 PENNSYLVANIA STATE POLICE SHALL CHARGE EACH INVESTIGATIVE OR LAW
7 ENFORCEMENT OFFICER WHO ENROLLS IN THIS TRAINING PROGRAM A
8 REASONABLE ENROLLMENT FEE TO OFFSET THE COSTS OF SUCH TRAINING.
9 § 5725. CIVIL ACTION FOR UNLAWFUL INTERCEPTION, DISCLOSURE OR
10 USE OF WIRE, ELECTRONIC OR ORAL COMMUNICATION.
11 (A) CAUSE OF ACTION.--ANY PERSON WHOSE WIRE, ELECTRONIC OR
12 ORAL COMMUNICATION IS INTERCEPTED, DISCLOSED OR USED IN
13 VIOLATION OF THIS [CHAPTER] SUBCHAPTER SHALL HAVE A CIVIL CAUSE
14 OF ACTION AGAINST ANY PERSON WHO INTERCEPTS, DISCLOSES OR USES
15 OR PROCURES ANY OTHER PERSON TO INTERCEPT, DISCLOSE OR USE, SUCH
16 COMMUNICATION; AND SHALL BE ENTITLED TO RECOVER FROM ANY SUCH
17 PERSON:
18 (1) ACTUAL DAMAGES, BUT NOT LESS THAN LIQUIDATED DAMAGES
19 COMPUTED AT THE RATE OF $100 A DAY FOR EACH DAY OF VIOLATION,
20 OR $1,000, WHICHEVER IS HIGHER.
21 (2) PUNITIVE DAMAGES.
22 (3) A REASONABLE ATTORNEY'S FEE AND OTHER LITIGATION
23 COSTS REASONABLY INCURRED.
24 (B) WAIVER OF SOVEREIGN IMMUNITY.--TO THE EXTENT THAT THE
25 COMMONWEALTH AND ANY OF ITS OFFICERS, OFFICIALS OR EMPLOYEES
26 WOULD BE SHIELDED FROM LIABILITY UNDER THIS SECTION BY THE
27 DOCTRINE OF SOVEREIGN IMMUNITY, SUCH IMMUNITY IS HEREBY WAIVED
28 FOR THE PURPOSES OF THIS SECTION.
29 (C) DEFENSE.--IT IS A DEFENSE TO AN ACTION BROUGHT PURSUANT
30 TO SUBSECTION (A) THAT THE ACTOR ACTED IN GOOD FAITH RELIANCE ON
19970S0635B1307 - 35 -
1 A COURT ORDER OR THE PROVISIONS OF THIS [CHAPTER] SUBCHAPTER.
2 § 5726. ACTION FOR REMOVAL FROM OFFICE OR EMPLOYMENT.
3 (A) CAUSE OF ACTION.--ANY AGGRIEVED PERSON SHALL HAVE THE
4 RIGHT TO BRING AN ACTION IN COMMONWEALTH COURT AGAINST ANY
5 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER, PUBLIC OFFICIAL OR
6 PUBLIC EMPLOYEE SEEKING THE OFFICER'S, OFFICIAL'S OR EMPLOYEE'S
7 REMOVAL FROM OFFICE OR EMPLOYMENT ON THE GROUNDS THAT THE
8 OFFICER, OFFICIAL OR EMPLOYEE HAS INTENTIONALLY VIOLATED THE
9 PROVISIONS OF THIS [CHAPTER] SUBCHAPTER. IF THE COURT SHALL
10 CONCLUDE THAT SUCH OFFICER, OFFICIAL OR EMPLOYEE HAS IN FACT
11 INTENTIONALLY VIOLATED THE PROVISIONS OF THIS [CHAPTER]
12 SUBCHAPTER, THE COURT SHALL ORDER THE DISMISSAL OR REMOVAL FROM
13 OFFICE OF SAID OFFICER, OFFICIAL OR EMPLOYEE.
14 (B) DEFENSE.--IT IS A DEFENSE TO AN ACTION BROUGHT PURSUANT
15 TO SUBSECTION (A) THAT THE ACTOR ACTED IN GOOD FAITH RELIANCE ON
16 A COURT ORDER OR THE PROVISIONS OF THIS [CHAPTER] SUBCHAPTER.
17 § 5743. REQUIREMENTS FOR GOVERNMENTAL ACCESS.
18 * * *
19 (D) REQUIREMENTS FOR COURT ORDER.--A COURT ORDER FOR
20 DISCLOSURE UNDER SUBSECTION (B) OR (C) SHALL BE ISSUED ONLY IF
21 THE INVESTIGATIVE OR LAW ENFORCEMENT OFFICER SHOWS THAT THERE
22 [IS REASON TO BELIEVE] ARE SPECIFIC AND ARTICULABLE FACTS
23 SHOWING THAT THERE ARE REASONABLE GROUNDS TO BELIEVE THAT THE
24 CONTENTS OF A WIRE OR ELECTRONIC COMMUNICATION, OR THE RECORDS
25 OR OTHER INFORMATION SOUGHT, ARE RELEVANT AND MATERIAL TO [A
26 LEGITIMATE INVESTIGATIVE OR LAW ENFORCEMENT INQUIRY] AN ONGOING
27 CRIMINAL INVESTIGATION. A COURT ISSUING AN ORDER PURSUANT TO
28 THIS SECTION, ON A MOTION MADE PROMPTLY BY THE SERVICE PROVIDER,
29 MAY QUASH OR MODIFY THE ORDER IF THE INFORMATION OR RECORDS
30 REQUESTED ARE UNUSUALLY VOLUMINOUS IN NATURE OR COMPLIANCE WITH
19970S0635B1307 - 36 -
1 THE ORDER WOULD OTHERWISE CAUSE AN UNDUE BURDEN ON THE PROVIDER.
2 (E) NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING
3 INFORMATION UNDER THIS [CHAPTER] SUBCHAPTER.--NO CAUSE OF ACTION
4 SHALL LIE AGAINST ANY PROVIDER OF WIRE OR ELECTRONIC
5 COMMUNICATION SERVICE, ITS OFFICERS, EMPLOYEES, AGENTS OR OTHER
6 SPECIFIED PERSONS FOR PROVIDING INFORMATION, FACILITIES OR
7 ASSISTANCE IN ACCORDANCE WITH THE TERMS OF A COURT ORDER,
8 WARRANT, SUBPOENA OR CERTIFICATION UNDER THIS [CHAPTER]
9 SUBCHAPTER.
10 § 5744. BACKUP PRESERVATION.
11 * * *
12 (B) CUSTOMER CHALLENGES.--
13 (1) WITHIN 14 DAYS AFTER NOTICE BY THE INVESTIGATIVE OR
14 LAW ENFORCEMENT OFFICER TO THE SUBSCRIBER OR CUSTOMER UNDER
15 SUBSECTION (A)(2), THE SUBSCRIBER OR CUSTOMER MAY FILE A
16 MOTION TO QUASH THE SUBPOENA OR VACATE THE COURT ORDER,
17 COPIES TO BE SERVED UPON THE OFFICER AND WRITTEN NOTICE OF
18 THE CHALLENGE TO BE GIVEN TO THE SERVICE PROVIDER. A MOTION
19 TO VACATE A COURT ORDER SHALL BE FILED IN THE COURT WHICH
20 ISSUED THE ORDER. A MOTION TO QUASH A SUBPOENA SHALL BE FILED
21 IN THE COURT WHICH HAS AUTHORITY TO ENFORCE THE SUBPOENA. THE
22 MOTION OR APPLICATION SHALL CONTAIN AN AFFIDAVIT OR SWORN
23 STATEMENT:
24 (I) STATING THAT THE APPLICANT IS A CUSTOMER OF OR
25 SUBSCRIBER TO THE SERVICE FROM WHICH THE CONTENTS OF
26 ELECTRONIC COMMUNICATIONS MAINTAINED FOR THE APPLICANT
27 HAVE BEEN SOUGHT; AND
28 (II) CONTAINING THE APPLICANT'S REASONS FOR
29 BELIEVING THAT THE RECORDS SOUGHT ARE NOT RELEVANT TO A
30 LEGITIMATE INVESTIGATIVE OR LAW ENFORCEMENT INQUIRY OR
19970S0635B1307 - 37 -
1 THAT THERE HAS NOT BEEN SUBSTANTIAL COMPLIANCE WITH THE
2 PROVISIONS OF THIS SUBCHAPTER IN SOME OTHER RESPECT.
3 (2) SERVICE SHALL BE MADE UNDER THIS SECTION UPON THE
4 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER BY DELIVERING OR
5 MAILING BY REGISTERED OR CERTIFIED MAIL A COPY OF THE PAPERS
6 TO THE PERSON, OFFICE OR DEPARTMENT SPECIFIED IN THE NOTICE
7 WHICH THE CUSTOMER HAS RECEIVED PURSUANT TO THIS [CHAPTER]
8 SUBCHAPTER. FOR THE PURPOSES OF THIS SECTION, THE TERM
9 "DELIVERY" HAS THE MEANING GIVEN THAT TERM IN THE
10 PENNSYLVANIA RULES OF CIVIL PROCEDURE.
11 (3) IF THE COURT FINDS THAT THE CUSTOMER HAS COMPLIED
12 WITH PARAGRAPHS (1) AND (2), THE COURT SHALL ORDER THE
13 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER TO FILE A SWORN
14 RESPONSE, WHICH MAY BE FILED IN CAMERA IF THE INVESTIGATIVE
15 OR LAW ENFORCEMENT OFFICER INCLUDES IN ITS RESPONSE THE
16 REASONS WHICH MAKE IN CAMERA REVIEW APPROPRIATE. IF THE COURT
17 IS UNABLE TO DETERMINE THE MOTION OR APPLICATION ON THE BASIS
18 OF THE PARTIES' INITIAL ALLEGATIONS AND RESPONSES, THE COURT
19 MAY CONDUCT SUCH ADDITIONAL PROCEEDINGS AS IT DEEMS
20 APPROPRIATE. ALL SUCH PROCEEDINGS SHALL BE COMPLETED AND THE
21 MOTION OR APPLICATION DECIDED AS SOON AS PRACTICABLE AFTER
22 THE FILING OF THE OFFICER'S RESPONSE.
23 (4) IF THE COURT FINDS THAT THE APPLICANT IS NOT THE
24 SUBSCRIBER OR CUSTOMER FOR WHOM THE COMMUNICATIONS SOUGHT BY
25 THE INVESTIGATIVE OR LAW ENFORCEMENT OFFICER ARE MAINTAINED,
26 OR THAT THERE IS REASON TO BELIEVE THAT THE INVESTIGATIVE OR
27 LAW ENFORCEMENT INQUIRY IS LEGITIMATE AND THAT THE
28 COMMUNICATIONS SOUGHT ARE RELEVANT TO THAT INQUIRY, IT SHALL
29 DENY THE MOTION OR APPLICATION AND ORDER THE PROCESS
30 ENFORCED. IF THE COURT FINDS THAT THE APPLICANT IS THE
19970S0635B1307 - 38 -
1 SUBSCRIBER OR CUSTOMER FOR WHOM THE COMMUNICATIONS SOUGHT BY
2 THE GOVERNMENTAL ENTITY ARE MAINTAINED, AND THAT THERE IS NOT
3 REASON TO BELIEVE THAT THE COMMUNICATIONS SOUGHT ARE RELEVANT
4 TO A LEGITIMATE INVESTIGATIVE OR LAW ENFORCEMENT INQUIRY, OR
5 THAT THERE HAS NOT BEEN SUBSTANTIAL COMPLIANCE WITH THE
6 PROVISIONS OF THIS [CHAPTER] SUBCHAPTER, IT SHALL ORDER THE
7 PROCESS QUASHED.
8 (5) A COURT ORDER DENYING A MOTION OR APPLICATION UNDER
9 THIS SECTION SHALL NOT BE DEEMED A FINAL ORDER, AND NO
10 INTERLOCUTORY APPEAL MAY BE TAKEN THEREFROM. THE COMMONWEALTH
11 OR INVESTIGATIVE OR LAW ENFORCEMENT OFFICER SHALL HAVE THE
12 RIGHT TO APPEAL FROM AN ORDER GRANTING A MOTION OR
13 APPLICATION UNDER THIS SECTION.
14 § 5747. CIVIL ACTION.
15 * * *
16 (D) DEFENSE.--A GOOD FAITH RELIANCE ON:
17 (1) A COURT WARRANT OR ORDER, A GRAND JURY SUBPOENA, A
18 LEGISLATIVE AUTHORIZATION OR A STATUTORY AUTHORIZATION;
19 (2) A REQUEST OF AN INVESTIGATIVE OR LAW ENFORCEMENT
20 OFFICER UNDER SECTION 5713 (RELATING TO EMERGENCY
21 SITUATIONS); OR
22 (3) A GOOD FAITH DETERMINATION THAT SECTION 5704(10)
23 (RELATING TO EXCEPTIONS TO PROHIBITIONS OF INTERCEPTION AND
24 DISCLOSURE OF COMMUNICATIONS) PERMITTED THE CONDUCT
25 COMPLAINED OF;
26 IS A COMPLETE DEFENSE TO ANY CIVIL OR CRIMINAL ACTION BROUGHT
27 UNDER THIS [CHAPTER] SUBCHAPTER OR ANY OTHER LAW.
28 * * *
29 SECTION 13. THE HEADING OF SUBCHAPTER E OF CHAPTER 57 OF
30 TITLE 18 IS AMENDED TO READ:
19970S0635B1307 - 39 -
1 SUBCHAPTER E
2 PEN REGISTERS, TRAP AND TRACE DEVICES,
3 AND TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICES
4 SECTION 14. SECTIONS 5771, 5772 HEADING AND (A), 5773, 5774,
5 5775 AND 5781 OF TITLE 18 ARE AMENDED TO READ:
6 § 5771. GENERAL PROHIBITION [OF PEN REGISTER AND TRAP AND TRACE
7 DEVICE USE; EXCEPTION] ON USE OF CERTAIN DEVICES AND
8 EXCEPTION.
9 (A) GENERAL RULE.--EXCEPT AS PROVIDED IN THIS SECTION, NO
10 PERSON MAY INSTALL OR USE A PEN REGISTER OR A TRAP AND TRACE
11 DEVICE OR A TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE
12 WITHOUT FIRST OBTAINING A COURT ORDER UNDER SECTION 5773
13 (RELATING TO ISSUANCE OF AN ORDER FOR [A PEN REGISTER OR A TRAP
14 AND TRACE DEVICE] USE OF CERTAIN DEVICES).
15 (B) EXCEPTION.--THE PROHIBITION OF SUBSECTION (A) DOES NOT
16 APPLY WITH RESPECT TO THE USE OF A PEN REGISTER [OR], A TRAP AND
17 TRACE DEVICE OR A TELECOMMUNICATION IDENTIFICATION INTERCEPTION
18 DEVICE BY A PROVIDER OF ELECTRONIC OR WIRE COMMUNICATION
19 SERVICE:
20 (1) RELATING TO THE OPERATION, MAINTENANCE AND TESTING
21 OF A WIRE OR ELECTRONIC COMMUNICATION SERVICE OR TO THE
22 PROTECTION OF THE RIGHTS OR PROPERTY OF THE PROVIDER, OR TO
23 THE PROTECTION OF USERS OF THE SERVICE FROM ABUSE OF SERVICE
24 OR UNLAWFUL USE OF SERVICE; [OR]
25 (2) TO RECORD THE FACT THAT A WIRE OR ELECTRONIC
26 COMMUNICATION WAS INITIATED OR COMPLETED IN ORDER TO PROTECT
27 THE PROVIDER, ANOTHER PROVIDER FURNISHING SERVICE TOWARD THE
28 COMPLETION OF THE WIRE COMMUNICATION OR A USER OF THE SERVICE
29 FROM FRAUDULENT, UNLAWFUL OR ABUSIVE USE OF SERVICE[, OR]; OR
30 (3) WITH THE CONSENT OF THE USER OF THE SERVICE.
19970S0635B1307 - 40 -
1 (B.1) LIMITATION.--A GOVERNMENT AGENCY AUTHORIZED TO INSTALL
2 AND USE A PEN REGISTER UNDER THIS CHAPTER SHALL USE TECHNOLOGY
3 REASONABLY AVAILABLE TO IT THAT RESTRICTS THE RECORDING OR
4 DECODING OF ELECTRONIC OR OTHER IMPULSES TO THE DIALING AND
5 SIGNALING INFORMATION UTILIZED IN CALL PROCESSING.
6 (C) PENALTY.--WHOEVER INTENTIONALLY AND KNOWINGLY VIOLATES
7 SUBSECTION (A) IS GUILTY OF A MISDEMEANOR OF THE THIRD DEGREE.
8 § 5772. APPLICATION FOR AN ORDER FOR [PEN REGISTERS AND TRAP
9 AND TRACE DEVICES] USE OF CERTAIN DEVICES.
10 (A) APPLICATION.--THE ATTORNEY GENERAL OR A DEPUTY ATTORNEY
11 GENERAL DESIGNATED IN WRITING BY THE ATTORNEY GENERAL OR A
12 DISTRICT ATTORNEY OR AN ASSISTANT DISTRICT ATTORNEY DESIGNATED
13 IN WRITING BY THE DISTRICT ATTORNEY MAY MAKE APPLICATION FOR AN
14 ORDER OR AN EXTENSION OF AN ORDER UNDER SECTION 5773 (RELATING
15 TO ISSUANCE OF AN ORDER FOR [A PEN REGISTER OR A TRAP AND TRACE
16 DEVICE] USE OF CERTAIN DEVICES) AUTHORIZING OR APPROVING THE
17 INSTALLATION AND USE OF A PEN REGISTER [OR], A TRAP AND TRACE
18 DEVICE OR A TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE
19 UNDER THIS [CHAPTER] SUBCHAPTER, IN WRITING, UNDER OATH OR
20 EQUIVALENT AFFIRMATION, TO A COURT OF COMMON PLEAS[.] OR TO ANY
21 SUPERIOR COURT JUDGE WHEN AN APPLICATION FOR AN ORDER
22 AUTHORIZING INTERCEPTION OF WIRE OR ELECTRONIC COMMUNICATIONS IS
23 OR HAS BEEN MADE FOR THE TARGETED TELEPHONE OR ANOTHER
24 APPLICATION FOR INTERCEPTION UNDER THIS SUBCHAPTER HAS BEEN MADE
25 INVOLVING THE SAME INVESTIGATION.
26 * * *
27 § 5773. ISSUANCE OF AN ORDER FOR [A PEN REGISTER OR A TRAP AND
28 TRACE DEVICE] USE OF CERTAIN DEVICES.
29 (A) IN GENERAL.--UPON AN APPLICATION MADE UNDER SECTION 5772
30 (RELATING TO APPLICATION FOR AN ORDER FOR [PEN REGISTERS AND
19970S0635B1307 - 41 -
1 TRAP AND TRACE DEVICES] USE OF CERTAIN DEVICES), THE COURT [OF
2 COMMON PLEAS] SHALL ENTER AN EX PARTE ORDER AUTHORIZING THE
3 INSTALLATION AND USE OF A PEN REGISTER [OR], A TRAP AND TRACE
4 DEVICE OR A TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE
5 WITHIN THE JURISDICTION OF THE COURT IF THE COURT FINDS THAT
6 THERE IS PROBABLE CAUSE TO BELIEVE THAT INFORMATION RELEVANT TO
7 AN ONGOING CRIMINAL INVESTIGATION WILL BE OBTAINED BY SUCH
8 INSTALLATION AND USE ON THE TARGETED TELEPHONE [LINE TO WHICH
9 THE PEN REGISTER IS TO BE ATTACHED].
10 (B) CONTENTS OF ORDER.--AN ORDER ISSUED UNDER THIS SECTION
11 SHALL:
12 (1) SPECIFY:
13 (I) THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT
14 INFORMATION RELEVANT TO AN ONGOING CRIMINAL INVESTIGATION
15 WILL BE OBTAINED [ON THE TELEPHONE LINE TO WHICH THE PEN
16 REGISTER OR TRAP AND TRACE DEVICE IS TO BE ATTACHED] FROM
17 THE TARGETED TELEPHONE.
18 (II) THE IDENTITY, IF KNOWN, OF THE PERSON TO WHOM
19 IS LEASED OR IN WHOSE NAME IS LISTED THE [TELEPHONE LINE
20 TO WHICH THE PEN REGISTER OR TRAP AND TRACE DEVICE IS TO
21 BE ATTACHED.] TARGETED TELEPHONE, OR IN THE CASE OF THE
22 USE OF A TELECOMMUNICATION IDENTIFICATION INTERCEPTION
23 DEVICE, THE IDENTITY, IF KNOWN, OF THE PERSON OR PERSONS
24 USING THE TARGETED TELEPHONE.
25 (III) THE IDENTITY, IF KNOWN, OF THE PERSON WHO IS
26 THE SUBJECT OF THE CRIMINAL INVESTIGATION.
27 (IV) [THE NUMBER AND, IF KNOWN,] IN THE USE OF PEN
28 REGISTERS AND TRAP AND TRACE DEVICES ONLY, THE PHYSICAL
29 LOCATION OF THE [TELEPHONE LINE TO WHICH THE PEN REGISTER
30 OR TRAP AND TRACE DEVICE IS TO BE ATTACHED, AND, IN THE
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1 CASE OF A TRAP AND TRACE DEVICE, THE GEOGRAPHICAL LIMITS
2 OF THE TRAP AND TRACE ORDER] TARGETED TELEPHONE.
3 (V) A STATEMENT OF THE OFFENSE TO WHICH THE
4 INFORMATION LIKELY TO BE OBTAINED BY THE PEN REGISTER
5 [OR], TRAP AND TRACE DEVICE OR THE TELECOMMUNICATION
6 IDENTIFICATION INTERCEPTION DEVICE RELATES.
7 (2) DIRECT, UPON THE REQUEST OF THE APPLICANT, THE
8 FURNISHING OF INFORMATION, FACILITIES AND TECHNICAL
9 ASSISTANCE NECESSARY TO ACCOMPLISH THE INSTALLATION OF THE
10 PEN REGISTER UNDER SECTION 5771 (RELATING TO GENERAL
11 PROHIBITION [OF PEN REGISTER AND TRAP AND TRACE DEVICE USE;
12 EXCEPTION).] ON USE OF CERTAIN DEVICES AND EXCEPTION).
13 (3) IN THE CASE OF A TELECOMMUNICATION IDENTIFICATION
14 INTERCEPTION DEVICE, DIRECT THAT ALL INTERCEPTIONS BE
15 RECORDED AND MONITORED IN ACCORDANCE WITH SECTION 5714(A)(1)
16 AND (2) AND (B) (RELATING TO RECORDING OF INTERCEPTED
17 COMMUNICATIONS).
18 (C) TIME PERIOD AND EXTENSIONS.--
19 (1) AN ORDER ISSUED UNDER THIS SECTION SHALL AUTHORIZE
20 THE INSTALLATION AND USE OF A PEN REGISTER [OR], TRAP AND
21 TRACE DEVICE OR A TELECOMMUNICATION IDENTIFICATION
22 INTERCEPTION DEVICE FOR A PERIOD NOT TO EXCEED 30 DAYS.
23 (2) EXTENSIONS OF SUCH AN ORDER MAY BE GRANTED BUT ONLY
24 UPON AN APPLICATION FOR AN ORDER UNDER SECTION 5772 AND UPON
25 THE JUDICIAL FINDING REQUIRED BY SUBSECTION (A). THE PERIOD
26 OF EACH EXTENSION SHALL BE FOR A PERIOD NOT TO EXCEED 30
27 DAYS.
28 (D) NONDISCLOSURE OF EXISTENCE OF PEN REGISTER [OR], TRAP
29 AND TRACE DEVICE OR A TELECOMMUNICATION IDENTIFICATION
30 INTERCEPTION DEVICE.--AN ORDER AUTHORIZING OR APPROVING THE
19970S0635B1307 - 43 -
1 INSTALLATION AND USE OF A PEN REGISTER [OR], A TRAP AND TRACE
2 DEVICE OR A TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE
3 SHALL DIRECT THAT:
4 (1) THE ORDER BE SEALED UNTIL OTHERWISE ORDERED BY THE
5 COURT.
6 (2) THE PERSON OWNING OR LEASING THE [LINE TO WHICH THE
7 PEN REGISTER OR A TRAP AND TRACE DEVICE IS ATTACHED] TARGETED
8 TELEPHONE, OR WHO HAS BEEN ORDERED BY THE COURT TO PROVIDE
9 ASSISTANCE TO THE APPLICANT, NOT DISCLOSE THE EXISTENCE OF
10 THE PEN REGISTER [OR], TRAP AND TRACE DEVICE OR
11 TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE OR THE
12 EXISTENCE OF THE INVESTIGATION TO THE LISTED SUBSCRIBER, OR
13 TO ANY OTHER PERSON, UNLESS OR UNTIL OTHERWISE ORDERED BY THE
14 COURT.
15 § 5774. ASSISTANCE IN INSTALLATION AND USE OF [PEN REGISTERS OR
16 TRAP AND TRACE DEVICES] CERTAIN DEVICES.
17 (A) PEN [REGISTERS] REGISTER.--UPON THE REQUEST OF AN
18 APPLICANT UNDER THIS SUBCHAPTER, A PROVIDER OF WIRE OR
19 ELECTRONIC COMMUNICATION SERVICE, LANDLORD, CUSTODIAN OR OTHER
20 PERSON SHALL FORTHWITH PROVIDE ALL INFORMATION, FACILITIES AND
21 TECHNICAL ASSISTANCE NECESSARY TO ACCOMPLISH THE INSTALLATION OF
22 THE PEN REGISTER UNOBTRUSIVELY AND WITH A MINIMUM OF
23 INTERFERENCE WITH THE SERVICES THAT THE PERSON SO ORDERED BY THE
24 COURT ACCORDS THE PARTY WITH RESPECT TO WHOM THE INSTALLATION
25 AND USE IS TO TAKE PLACE, IF ASSISTANCE IS DIRECTED BY A COURT
26 ORDER AS PROVIDED IN SECTION 5773(B)(2) (RELATING TO ISSUANCE OF
27 AN ORDER FOR [A PEN REGISTER OR A TRAP AND TRACE DEVICE] USE OF
28 CERTAIN DEVICES).
29 (B) TRAP AND TRACE DEVICE.--UPON THE REQUEST OF AN APPLICANT
30 UNDER THIS SUBCHAPTER, A PROVIDER OF A WIRE OR ELECTRONIC
19970S0635B1307 - 44 -
1 COMMUNICATION SERVICE, LANDLORD, CUSTODIAN OR OTHER PERSON SHALL
2 INSTALL THE DEVICE FORTHWITH ON THE APPROPRIATE LINE AND SHALL
3 FURNISH ALL ADDITIONAL INFORMATION, FACILITIES AND TECHNICAL
4 ASSISTANCE, INCLUDING INSTALLATION AND OPERATION OF THE DEVICE
5 UNOBTRUSIVELY AND WITH A MINIMUM OF INTERFERENCE WITH THE
6 SERVICES THAT THE PERSON SO ORDERED BY THE COURT ACCORDS THE
7 PARTY WITH RESPECT TO WHOM THE INSTALLATION AND USE IS TO TAKE
8 PLACE, IF INSTALLATION AND ASSISTANCE ARE DIRECTED BY A COURT
9 ORDER AS PROVIDED IN SECTION 5773. UNLESS OTHERWISE ORDERED BY
10 THE COURT, THE RESULTS OF THE TRAP AND TRACE DEVICE SHALL BE
11 FURNISHED TO THE APPLICANT DESIGNATED IN THE COURT ORDER AT
12 REASONABLE INTERVALS DURING REGULAR BUSINESS HOURS FOR THE
13 DURATION OF THE ORDER.
14 (C) COMPENSATION.--A PROVIDER OF WIRE OR ELECTRONIC
15 COMMUNICATION SERVICE, LANDLORD, CUSTODIAN OR OTHER PERSON WHO
16 FURNISHES FACILITIES OR TECHNICAL ASSISTANCE PURSUANT TO THIS
17 SECTION SHALL BE REASONABLY COMPENSATED FOR REASONABLE EXPENSES
18 INCURRED IN PROVIDING THE FACILITIES AND ASSISTANCE.
19 (D) NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING
20 INFORMATION UNDER THIS [CHAPTER] SUBCHAPTER.--NO CAUSE OF ACTION
21 SHALL LIE IN ANY COURT AGAINST ANY PROVIDER OF A WIRE OR
22 ELECTRONIC COMMUNICATION SERVICE, ITS OFFICERS, EMPLOYEES,
23 AGENTS OR OTHER SPECIFIED PERSONS FOR PROVIDING INFORMATION,
24 FACILITIES OR ASSISTANCE IN ACCORDANCE WITH THE TERMS OF A COURT
25 ORDER UNDER THIS SUBCHAPTER.
26 (E) DEFENSE.--A GOOD FAITH RELIANCE ON A COURT ORDER OR A
27 STATUTORY AUTHORIZATION IS A COMPLETE DEFENSE AGAINST ANY CIVIL
28 OR CRIMINAL ACTION BROUGHT UNDER THIS SUBCHAPTER OR ANY OTHER
29 LAW.
30 § 5775. REPORTS CONCERNING [PEN REGISTERS] CERTAIN DEVICES.
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1 (A) ATTORNEY GENERAL.--THE ATTORNEY GENERAL SHALL ANNUALLY
2 REPORT TO THE ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS ON
3 THE NUMBER OF ORDERS FOR PEN REGISTERS [AND], TRAP AND TRACE
4 DEVICES AND TELECOMMUNICATION IDENTIFICATION INTERCEPTION
5 DEVICES APPLIED FOR BY INVESTIGATIVE OR LAW ENFORCEMENT AGENCIES
6 OF THE COMMONWEALTH OR ITS POLITICAL SUBDIVISIONS.
7 (B) DISTRICT ATTORNEY.--EACH DISTRICT ATTORNEY SHALL
8 ANNUALLY PROVIDE TO THE ATTORNEY GENERAL INFORMATION ON THE
9 NUMBER OF ORDERS FOR PEN REGISTERS [AND], TRAP AND TRACE
10 DEVICES, AND TELECOMMUNICATION IDENTIFICATION INTERCEPTION
11 DEVICES APPLIED FOR ON FORMS PRESCRIBED BY THE ATTORNEY GENERAL.
12 § 5781. EXPIRATION OF CHAPTER.
13 THIS CHAPTER EXPIRES DECEMBER 31, [1999] 2004, UNLESS
14 EXTENDED BY STATUTE.
15 SECTION 15. TITLE 18 IS AMENDED BY ADDING A CHAPTER TO READ:
16 CHAPTER 93
17 SPECIAL INDEPENDENT PROSECUTOR'S PANEL
18 SUBCHAPTER
19 A. PRELIMINARY PROVISIONS
20 B. GENERAL PROVISIONS
21 C. AUTHORITY AND DUTIES OF INDEPENDENT COUNSEL
22 D. MISCELLANEOUS PROVISIONS
23 SUBCHAPTER A
24 PRELIMINARY PROVISIONS
25 SEC.
26 9301. SHORT TITLE OF CHAPTER.
27 9302. DEFINITIONS.
28 § 9301. SHORT TITLE OF CHAPTER.
29 THIS CHAPTER SHALL BE KNOWN AND MAY BE CITED AS THE
30 INDEPENDENT COUNSEL AUTHORIZATION ACT.
19970S0635B1307 - 46 -
1 § 9302. DEFINITIONS.
2 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
3 SHALL HAVE, UNLESS THE CONTEXT CLEARLY INDICATES OTHERWISE, THE
4 MEANINGS GIVEN TO THEM IN THIS SECTION:
5 "GENERAL COUNSEL." THE GENERAL COUNSEL OF THE COMMONWEALTH.
6 "GROUNDS TO INVESTIGATE." INFORMATION WHICH WOULD LEAD A
7 REASONABLE PERSON TO SUSPECT THAT A CRIME IS BEING OR HAS BEEN
8 COMMITTED.
9 "INDEPENDENT COUNSEL." A PERSON APPOINTED BY THE SPECIAL
10 INDEPENDENT PROSECUTOR'S PANEL UPON THE REQUEST OF A SPECIAL
11 INVESTIGATIVE COUNSEL.
12 "PANEL." THE SPECIAL INDEPENDENT PROSECUTOR'S PANEL
13 ESTABLISHED UNDER THIS CHAPTER.
14 "SPECIAL INVESTIGATIVE COUNSEL." A PERSON APPOINTED BY THE
15 GENERAL COUNSEL TO CONDUCT A PRELIMINARY INVESTIGATION UNDER
16 THIS CHAPTER.
17 SUBCHAPTER B
18 GENERAL PROVISIONS
19 SEC.
20 9311. ORGANIZATION OF PANEL.
21 9312. PRELIMINARY INVESTIGATION.
22 9313. CONDUCT OF PRELIMINARY INVESTIGATION.
23 9314. DETERMINATION THAT FURTHER INVESTIGATION NOT WARRANTED.
24 9315. DETERMINATION THAT FURTHER INVESTIGATION IS WARRANTED.
25 9316. CONTENTS OF APPLICATION.
26 9317. DISCLOSURE OF INFORMATION.
27 9318. LIMITATION ON JUDICIAL REVIEW.
28 9319. DUTIES OF PANEL.
29 § 9311. ORGANIZATION OF PANEL.
30 (A) COMPOSITION AND SELECTION.--THE SPECIAL INDEPENDENT
19970S0635B1307 - 47 -
1 PROSECUTOR'S PANEL SHALL BE COMPOSED OF ONE JUDGE OF THE
2 COMMONWEALTH COURT AND TWO JUDGES, INCLUDING SENIOR JUDGES, OF
3 THE COURTS OF COMMON PLEAS OF THE COMMONWEALTH. THE MEMBERS OF
4 THE PANEL SHALL BE CHOSEN BY LOT. THE PROCEDURE SHALL BE
5 DETERMINED BY AND SUPERVISED BY THE COURT ADMINISTRATOR OF
6 PENNSYLVANIA IN THE ADMINISTRATIVE OFFICE OF PENNSYLVANIA
7 COURTS. THE ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS SHALL
8 DISCLOSE TO THE PUBLIC THE MEMBERSHIP OF THE PANEL.
9 (B) TERM OF MEMBERS.--EACH MEMBER OF THE PANEL SHALL HOLD
10 OFFICE FOR A TERM OF THREE YEARS. JUDGES WHO ARE MEMBERS OF THE
11 PANEL AND ARE REQUIRED TO RETIRE UNDER SECTION 16 OF ARTICLE V
12 OF THE CONSTITUTION OF PENNSYLVANIA SHALL ALSO VACATE THEIR
13 POSITIONS ON THE PANEL UNLESS ASSIGNED UNDER CHAPTER 7 OF THE
14 RULES OF JUDICIAL ADMINISTRATION. A JUDGE WHO IS OTHERWISE
15 REMOVED FROM OFFICE SHALL AUTOMATICALLY FORFEIT THE POSITION
16 HELD BY THAT JUDGE ON THE PANEL.
17 (C) VACANCIES.--ANY VACANCY IN THE PANEL SHALL BE FILLED
18 ONLY FOR THE REMAINDER OF THE THREE-YEAR PERIOD IN WHICH THE
19 VACANCY OCCURS AND IN THE SAME MANNER AS INITIAL ASSIGNMENTS TO
20 THE PANEL WERE MADE.
21 (D) DECISIONS BY MAJORITY VOTE.--ALL DECISIONS OF THE PANEL
22 SHALL BE BY MAJORITY VOTE OF THE MEMBERS.
23 (E) CLERK.--THE PROTHONOTARY OF COMMONWEALTH COURT SHALL
24 SERVE AS THE CLERK OF THE PANEL AND SHALL PROVIDE SUCH SERVICES
25 AS ARE NEEDED BY THE PANEL.
26 (F) RESTRICTION.--NO MEMBER OF THE PANEL WHO PARTICIPATED IN
27 A FUNCTION CONFERRED ON THE PANEL UNDER THIS CHAPTER INVOLVING
28 AN INDEPENDENT COUNSEL SHALL BE ELIGIBLE TO PARTICIPATE IN ANY
29 JUDICIAL PROCEEDING CONCERNING A MATTER WHICH INVOLVES THE
30 INDEPENDENT COUNSEL AND WHICH INVOLVES THE EXERCISE OF THE
19970S0635B1307 - 48 -
1 INDEPENDENT COUNSEL'S OFFICIAL DUTIES, REGARDLESS OF WHETHER THE
2 INDEPENDENT COUNSEL IS STILL SERVING IN THAT OFFICE.
3 § 9312. PRELIMINARY INVESTIGATION.
4 (A) PRELIMINARY INVESTIGATION WITH RESPECT TO CERTAIN
5 COVERED PERSONS.--THE GENERAL COUNSEL SHALL APPOINT A SPECIAL
6 INVESTIGATIVE COUNSEL TO CONDUCT A PRELIMINARY INVESTIGATION IN
7 ACCORDANCE WITH THIS CHAPTER WHENEVER THE GENERAL COUNSEL
8 RECEIVES INFORMATION SUFFICIENT TO CONSTITUTE GROUNDS TO
9 INVESTIGATE WHETHER ANY PERSON DESCRIBED IN SUBSECTION (C) MAY
10 HAVE COMMITTED ANY OF THE FOLLOWING:
11 (1) AN OFFENSE WHICH IS CLASSIFIED HIGHER THAN A
12 MISDEMEANOR OF THE SECOND DEGREE.
13 (2) AN OFFENSE WHICH IS CLASSIFIED HIGHER THAN A SUMMARY
14 OFFENSE AND WHICH INVOLVES A BREACH OF THE PUBLIC TRUST. THIS
15 PARAGRAPH INCLUDES A VIOLATION OF THE ACT OF JUNE 3, 1937
16 (P.L.1333, NO.320), KNOWN AS THE PENNSYLVANIA ELECTION CODE,
17 OR THE ACT OF OCTOBER 4, 1978 (P.L.883, NO.170), REFERRED TO
18 AS THE PUBLIC OFFICIAL AND EMPLOYEE ETHICS LAW.
19 (B) PRELIMINARY INVESTIGATION WITH RESPECT TO PERSONS NOT
20 LISTED IN SUBSECTION (C).--THE ATTORNEY GENERAL SHALL REQUEST
21 THE GENERAL COUNSEL TO APPOINT A SPECIAL INVESTIGATIVE COUNSEL
22 TO CONDUCT A PRELIMINARY INVESTIGATION UNDER THE JURISDICTION
23 ESTABLISHED OR CONFERRED UNDER SECTION 205(B) OF THE ACT OF
24 OCTOBER 15, 1980 (P.L.950, NO.164), KNOWN AS THE COMMONWEALTH
25 ATTORNEYS ACT, AND WHERE THE ATTORNEY GENERAL DETERMINES THAT AN
26 INVESTIGATION OR PROSECUTION OF THE PERSON, WITH RESPECT TO THE
27 INFORMATION RECEIVED, BY THE ATTORNEY GENERAL OR OTHER OFFICER
28 OF THE ATTORNEY GENERAL'S OFFICE MAY RESULT IN A PERSONAL,
29 FINANCIAL OR POLITICAL CONFLICT OF INTEREST. IN ADDITION, THE
30 ATTORNEY GENERAL MAY REQUEST THE GENERAL COUNSEL TO APPOINT A
19970S0635B1307 - 49 -
1 SPECIAL INVESTIGATIVE COUNSEL TO CONDUCT A PRELIMINARY
2 INVESTIGATION WHERE THE ATTORNEY GENERAL DETERMINES THAT AN
3 INVESTIGATION OR PROSECUTION OF THE PERSON, WITH RESPECT TO THE
4 INFORMATION RECEIVED, BY THE ATTORNEY GENERAL OR OTHER OFFICER
5 OF THE ATTORNEY GENERAL'S OFFICE MAY RESULT IN A PERSONAL,
6 FINANCIAL OR POLITICAL CONFLICT OF INTEREST.
7 (C) PERSONS TO WHOM SUBSECTION (A) APPLIES.--THE PERSONS
8 REFERRED TO IN SUBSECTION (A) ARE AS FOLLOWS:
9 (1) THE ATTORNEY GENERAL, ANY DEPUTY ATTORNEY GENERAL OR
10 ANY INDIVIDUAL WORKING IN THE ATTORNEY GENERAL'S OFFICE WHO
11 IS DEFINED AS A "PUBLIC EMPLOYEE" UNDER THE PUBLIC OFFICIAL
12 AND EMPLOYEE ETHICS LAW.
13 (2) ANY INDIVIDUAL WHO LEAVES ANY OFFICE OR POSITION
14 DESCRIBED IN PARAGRAPH (1) DURING THE INCUMBENCY OF THE
15 ATTORNEY GENERAL WITH OR UNDER WHOM SUCH INDIVIDUAL SERVED IN
16 THE OFFICE OR POSITION, PLUS ONE YEAR AFTER SUCH INCUMBENCY,
17 BUT IN NO EVENT LONGER THAN A PERIOD OF THREE YEARS AFTER THE
18 INDIVIDUAL LEAVES THE OFFICE OR POSITION.
19 (3) ANY INDIVIDUAL WHO HELD AN OFFICE OR POSITION
20 DESCRIBED IN PARAGRAPH (1) DURING THE INCUMBENCY OF ONE
21 ATTORNEY GENERAL AND WHO CONTINUED TO HOLD THE OFFICE OR
22 POSITION FOR NOT MORE THAN 90 DAYS INTO THE TERM OF THE NEXT
23 ATTORNEY GENERAL, DURING THE ONE-YEAR PERIOD AFTER THE
24 INDIVIDUAL LEAVES THE OFFICE OR POSITION.
25 (4) THE CHAIRMAN AND TREASURER OF THE PRINCIPAL CAMPAIGN
26 COMMITTEE SEEKING THE ELECTION OR REELECTION OF THE ATTORNEY
27 GENERAL, AND ANY OFFICER OF THAT COMMITTEE EXERCISING
28 AUTHORITY AT THE STATE LEVEL, DURING THE INCUMBENCY OF THE
29 ELECTED ATTORNEY GENERAL.
30 (D) EXAMINATION OF INFORMATION TO DETERMINE NEED FOR
19970S0635B1307 - 50 -
1 PRELIMINARY INVESTIGATION.--IN DETERMINING UNDER SUBSECTION (A)
2 WHETHER GROUNDS TO INVESTIGATE EXIST, THE GENERAL COUNSEL SHALL
3 CONSIDER ONLY THE SPECIFICITY OF THE INFORMATION RECEIVED AND
4 THE CREDIBILITY OF THE SOURCE OF THE INFORMATION. THE GENERAL
5 COUNSEL SHALL DETERMINE WHETHER GROUNDS TO INVESTIGATE EXIST NO
6 LATER THAN 30 DAYS AFTER THE INFORMATION IS FIRST RECEIVED. IF
7 WITHIN THAT 30-DAY PERIOD THE GENERAL COUNSEL DETERMINES THAT
8 THE INFORMATION IS NOT SPECIFIC OR IS NOT FROM A CREDIBLE
9 SOURCE, THEN THE GENERAL COUNSEL SHALL CLOSE THE MATTER. IF
10 WITHIN THAT 30-DAY PERIOD THE GENERAL COUNSEL DETERMINES THAT
11 THE INFORMATION IS SPECIFIC AND FROM A CREDIBLE SOURCE, THE
12 GENERAL COUNSEL SHALL, UPON MAKING THAT DETERMINATION, APPOINT A
13 SPECIAL INVESTIGATIVE COUNSEL TO COMMENCE A PRELIMINARY
14 INVESTIGATION WITH RESPECT TO THAT INFORMATION. IF THE GENERAL
15 COUNSEL IS UNABLE TO DETERMINE, WITHIN THAT 30-DAY PERIOD,
16 WHETHER THE INFORMATION IS SPECIFIC AND FROM A CREDIBLE SOURCE,
17 THE GENERAL COUNSEL SHALL, AT THE END OF THAT 30-DAY PERIOD,
18 APPOINT A SPECIAL INVESTIGATIVE COUNSEL TO COMMENCE A
19 PRELIMINARY INVESTIGATION WITH RESPECT TO THAT INFORMATION. IF A
20 SPECIAL INVESTIGATIVE COUNSEL IS APPOINTED, THE SPECIAL
21 INVESTIGATIVE COUNSEL MAY ONLY ACCEPT THE APPOINTMENT WHEN SUCH
22 APPOINTMENT WOULD NOT CONFLICT WITH THE RULES GOVERNING
23 PROFESSIONAL CONDUCT.
24 § 9313. CONDUCT OF PRELIMINARY INVESTIGATION.
25 (A) IN GENERAL.--A PRELIMINARY INVESTIGATION CONDUCTED UNDER
26 THIS CHAPTER SHALL BE OF MATTERS AS THE SPECIAL INVESTIGATIVE
27 COUNSEL CONSIDERS APPROPRIATE IN ORDER TO MAKE A DETERMINATION
28 UNDER THIS SECTION OR SECTION 9314 (RELATING TO DETERMINATION
29 THAT FURTHER INVESTIGATION NOT WARRANTED) OF WHETHER FURTHER
30 INVESTIGATION IS WARRANTED WITH RESPECT TO EACH POTENTIAL
19970S0635B1307 - 51 -
1 VIOLATION OR ALLEGATION OF A VIOLATION OF CRIMINAL LAW. THE
2 SPECIAL INVESTIGATIVE COUNSEL SHALL MAKE THE DETERMINATION NO
3 LATER THAN 90 DAYS AFTER THE PRELIMINARY INVESTIGATION IS
4 COMMENCED. THE SPECIAL INVESTIGATIVE COUNSEL SHALL PROMPTLY
5 NOTIFY THE PANEL OF THE DATE OF THE COMMENCEMENT OF THE
6 PRELIMINARY INVESTIGATION.
7 (B) LIMITED AUTHORITY OF SPECIAL INVESTIGATIVE COUNSEL.--
8 (1) IN CONDUCTING PRELIMINARY INVESTIGATIONS UNDER THIS
9 CHAPTER, THE SPECIAL INVESTIGATIVE COUNSEL SHALL HAVE NO
10 AUTHORITY TO CONVENE GRAND JURIES, PLEA BARGAIN, GRANT
11 IMMUNITY OR ISSUE SUBPOENAS.
12 (2) THE SPECIAL INVESTIGATIVE COUNSEL SHALL NOT BASE A
13 DETERMINATION UNDER THIS CHAPTER THAT INFORMATION WITH
14 RESPECT TO A VIOLATION OF CRIMINAL LAW BY A PERSON IS NOT
15 SPECIFIC AND FROM A CREDIBLE SOURCE UPON A DETERMINATION THAT
16 THE PERSON LACKED THE STATE OF MIND REQUIRED FOR THE
17 VIOLATION OF CRIMINAL LAW. THE SPECIAL INVESTIGATIVE COUNSEL
18 SHALL NOT BASE A DETERMINATION UNDER THIS CHAPTER THAT THERE
19 ARE NO REASONABLE GROUNDS TO BELIEVE THAT FURTHER
20 INVESTIGATION IS WARRANTED UPON A DETERMINATION THAT THE
21 PERSON LACKED THE STATE OF MIND REQUIRED FOR THE VIOLATION OF
22 CRIMINAL LAW INVOLVED UNLESS THERE IS CLEAR AND CONVINCING
23 EVIDENCE THAT THE PERSON LACKED THE REQUIRED STATE OF MIND.
24 (C) EXTENSION OF TIME FOR PRELIMINARY INVESTIGATION.--THE
25 SPECIAL INVESTIGATIVE COUNSEL MAY APPLY TO THE PANEL FOR A
26 SINGLE EXTENSION, FOR A PERIOD OF NO MORE THAN 60 DAYS, OF THE
27 90-DAY PERIOD REFERRED TO IN SUBSECTION (A). THE PANEL MAY, UPON
28 A SHOWING OF GOOD CAUSE, GRANT THE EXTENSION.
29 § 9314. DETERMINATION THAT FURTHER INVESTIGATION NOT WARRANTED.
30 (A) NOTIFICATION OF PANEL.--IF THE SPECIAL INVESTIGATIVE
19970S0635B1307 - 52 -
1 COUNSEL UPON COMPLETION OF A PRELIMINARY INVESTIGATION UNDER
2 THIS CHAPTER DETERMINES THAT THERE ARE NO REASONABLE GROUNDS TO
3 BELIEVE THAT FURTHER INVESTIGATION IS WARRANTED, THE SPECIAL
4 INVESTIGATIVE COUNSEL SHALL PROMPTLY SO NOTIFY THE PANEL, AND
5 THE PANEL SHALL HAVE NO POWER TO APPOINT AN INDEPENDENT COUNSEL
6 WITH RESPECT TO THE MATTERS INVOLVED.
7 (B) FORM OF NOTIFICATION.--THE NOTIFICATION SHALL CONTAIN A
8 SUMMARY OF THE INFORMATION RECEIVED AND A SUMMARY OF THE RESULTS
9 OF THE PRELIMINARY INVESTIGATION. THE SUMMARY SHALL BE
10 CONFIDENTIAL AND NOT SUBJECT TO PUBLIC DISCLOSURE, EXCEPT THAT
11 THE PERSON WHO WAS THE SUBJECT OF THE INVESTIGATION MAY REQUEST
12 A COPY OF THE SUMMARY FROM THE PANEL.
13 § 9315. DETERMINATION THAT FURTHER INVESTIGATION IS WARRANTED.
14 (A) APPLICATION FOR APPOINTMENT OF INDEPENDENT COUNSEL.--THE
15 SPECIAL INVESTIGATIVE COUNSEL SHALL APPLY TO THE PANEL FOR THE
16 APPOINTMENT OF AN INDEPENDENT COUNSEL IF:
17 (1) THE SPECIAL INVESTIGATIVE COUNSEL, UPON COMPLETION
18 OF A PRELIMINARY INVESTIGATION UNDER THIS CHAPTER, DETERMINES
19 THAT THERE ARE REASONABLE GROUNDS TO BELIEVE THAT FURTHER
20 INVESTIGATION IS WARRANTED; OR
21 (2) THE 90-DAY PERIOD REFERRED TO IN SECTION 9313(A)
22 (RELATING TO CONDUCT OF PRELIMINARY INVESTIGATION) AND ANY
23 EXTENSION GRANTED UNDER SECTION 9313(C) HAVE ELAPSED AND THE
24 SPECIAL INVESTIGATIVE COUNSEL HAS NOT FILED A NOTIFICATION
25 WITH THE PANEL UNDER SECTION 9314(A) (RELATING TO
26 DETERMINATION THAT FURTHER INVESTIGATION NOT WARRANTED).
27 (B) RECEIPT OF ADDITIONAL INFORMATION.--IF AFTER SUBMITTING
28 A NOTIFICATION UNDER SECTION 9314(A) THE SPECIAL INVESTIGATIVE
29 COUNSEL RECEIVES ADDITIONAL INFORMATION SUFFICIENT TO CONSTITUTE
30 GROUNDS TO INVESTIGATE THE MATTERS TO WHICH THE NOTIFICATION
19970S0635B1307 - 53 -
1 RELATED, THE SPECIAL INVESTIGATIVE COUNSEL SHALL:
2 (1) CONDUCT AN ADDITIONAL PRELIMINARY INVESTIGATION AS
3 THE SPECIAL INVESTIGATIVE COUNSEL CONSIDERS APPROPRIATE FOR A
4 PERIOD OF NO MORE THAN 90 DAYS AFTER THE DATE ON WHICH THE
5 ADDITIONAL INFORMATION IS RECEIVED.
6 (2) OTHERWISE COMPLY WITH THE PROVISIONS OF THIS
7 SUBCHAPTER WITH RESPECT TO THE ADDITIONAL PRELIMINARY
8 INVESTIGATION TO THE SAME EXTENT AS ANY OTHER PRELIMINARY
9 INVESTIGATION UNDER THIS CHAPTER.
10 § 9316. CONTENTS OF APPLICATION.
11 ANY APPLICATION FOR THE APPOINTMENT OF AN INDEPENDENT COUNSEL
12 UNDER THIS CHAPTER SHALL CONTAIN SUFFICIENT INFORMATION TO
13 ASSIST THE PANEL IN SELECTING AN INDEPENDENT COUNSEL AND IN
14 DEFINING THAT INDEPENDENT COUNSEL'S PROSECUTORIAL JURISDICTION
15 SO THAT THE INDEPENDENT COUNSEL HAS ADEQUATE AUTHORITY TO FULLY
16 INVESTIGATE AND PROSECUTE THE SUBJECT MATTER AND ALL MATTERS
17 RELATED TO THAT SUBJECT MATTER.
18 § 9317. DISCLOSURE OF INFORMATION.
19 EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER, NO OFFICER OR
20 EMPLOYEE OF THE OFFICE OF SPECIAL INVESTIGATIVE COUNSEL OR THE
21 OFFICE OF INDEPENDENT COUNSEL MAY, WITHOUT LEAVE OF THE PANEL,
22 DISCLOSE TO ANY INDIVIDUAL OUTSIDE THE OFFICE OF SPECIAL
23 INVESTIGATIVE COUNSEL OR OFFICE OF INDEPENDENT COUNSEL ANY
24 NOTIFICATION, APPLICATION OR ANY OTHER DOCUMENT, MATERIAL OR
25 MEMORANDUM SUPPLIED TO THE PANEL UNDER THIS CHAPTER. NOTHING IN
26 THIS CHAPTER SHALL BE CONSTRUED AS AUTHORIZING THE WITHHOLDING
27 OF INFORMATION FROM THE GENERAL ASSEMBLY.
28 § 9318. LIMITATION ON JUDICIAL REVIEW.
29 THE DETERMINATION OF THE SPECIAL INVESTIGATIVE COUNSEL UNDER
30 THIS CHAPTER TO APPLY TO THE PANEL FOR THE APPOINTMENT OF AN
19970S0635B1307 - 54 -
1 INDEPENDENT COUNSEL SHALL NOT BE REVIEWABLE IN ANY COURT.
2 § 9319. DUTIES OF PANEL.
3 (A) APPOINTMENT AND JURISDICTION OF INDEPENDENT COUNSEL.--
4 (1) UPON RECEIPT OF AN APPLICATION, THE PANEL SHALL
5 APPOINT AN APPROPRIATE INDEPENDENT COUNSEL AND SHALL DEFINE
6 THAT INDEPENDENT COUNSEL'S PROSECUTORIAL JURISDICTION. THE
7 APPOINTMENT SHALL OCCUR NO LATER THAN 30 DAYS AFTER THE
8 RECEIPT OF THE APPLICATION.
9 (2) THE PANEL SHALL APPOINT AS INDEPENDENT COUNSEL AN
10 INDIVIDUAL WHO HAS APPROPRIATE EXPERIENCE AND WHO WILL
11 CONDUCT THE INVESTIGATION AND ANY PROSECUTION IN A PROMPT,
12 RESPONSIBLE AND COST-EFFECTIVE MANNER. THE PANEL SHALL SEEK
13 TO APPOINT AS INDEPENDENT COUNSEL AN INDIVIDUAL WHO WILL
14 SERVE TO THE EXTENT NECESSARY TO COMPLETE THE INVESTIGATION
15 AND ANY PROSECUTION WITHOUT UNDUE DELAY. THE PANEL MAY NOT
16 APPOINT AS AN INDEPENDENT COUNSEL ANY PERSON WHO HOLDS ANY
17 OFFICE OF PROFIT OR TRUST WITH THE COMMONWEALTH. NO PERSON
18 WHO IS SERVING AS A SPECIAL INVESTIGATIVE COUNSEL MAY BE
19 APPOINTED OR SERVE AS AN INDEPENDENT COUNSEL IN THE MATTER
20 FOR WHICH THEY HAD BEEN APPOINTED TO INVESTIGATE AS SPECIAL
21 INVESTIGATIVE COUNSEL. IF AN INDEPENDENT COUNSEL IS
22 APPOINTED, THE INDEPENDENT COUNSEL MAY ONLY ACCEPT THE
23 APPOINTMENT WHEN SUCH APPOINTMENT WOULD NOT CONFLICT WITH THE
24 RULES GOVERNING PROFESSIONAL CONDUCT.
25 (3) IN DEFINING THE INDEPENDENT COUNSEL'S PROSECUTORIAL
26 JURISDICTION, THE PANEL SHALL ASSURE THAT THE INDEPENDENT
27 COUNSEL HAS ADEQUATE AUTHORITY TO FULLY INVESTIGATE AND
28 PROSECUTE THE SUBJECT MATTER WITH RESPECT TO WHICH THE
29 SPECIAL INVESTIGATIVE COUNSEL HAS REQUESTED THE APPOINTMENT
30 OF THE INDEPENDENT COUNSEL AND ALL MATTERS RELATED TO THAT
19970S0635B1307 - 55 -
1 SUBJECT MATTER. JURISDICTION SHALL ALSO INCLUDE THE AUTHORITY
2 TO INVESTIGATE AND PROSECUTE THE FOLLOWING OFFENSES WHICH MAY
3 ARISE OUT OF THE INVESTIGATION WITH RESPECT TO WHICH THE
4 SPECIAL INVESTIGATIVE COUNSEL'S REQUEST WAS MADE:
5 (I) AN OFFENSE CLASSIFIED HIGHER THAN A MISDEMEANOR
6 OF THE SECOND DEGREE.
7 (II) AN OFFENSE WHICH IS CLASSIFIED HIGHER THAN A
8 SUMMARY OFFENSE AND WHICH INVOLVES A BREACH OF THE PUBLIC
9 TRUST. THIS PARAGRAPH INCLUDES A VIOLATION OF THE ACT OF
10 JUNE 3, 1937 (P.L.1333, NO.320), KNOWN AS THE
11 PENNSYLVANIA ELECTION CODE, OR THE ACT OF OCTOBER 4, 1978
12 (P.L.883, NO.170), REFERRED TO AS THE PUBLIC OFFICIAL AND
13 EMPLOYEE ETHICS LAW.
14 (4) THE PANEL SHALL DISCLOSE THE IDENTITY OF THE
15 INDEPENDENT COUNSEL UPON APPOINTMENT.
16 (B) EXPANSION OF JURISDICTION.--
17 (1) THE PANEL UPON THE REQUEST OF THE GENERAL COUNSEL
18 MAY EXPAND THE PROSECUTORIAL JURISDICTION OF AN INDEPENDENT
19 COUNSEL. THE EXPANSION MAY BE IN LIEU OF THE APPOINTMENT OF
20 ANOTHER INDEPENDENT COUNSEL.
21 (2) IF THE INDEPENDENT COUNSEL DISCOVERS OR RECEIVES
22 INFORMATION ABOUT POSSIBLE VIOLATIONS OF CRIMINAL LAW BY
23 PERSONS AS PROVIDED IN SECTION 9312 (RELATING TO PRELIMINARY
24 INVESTIGATION) WHICH ARE NOT COVERED BY THE PROSECUTORIAL
25 JURISDICTION OF THE INDEPENDENT COUNSEL, THE INDEPENDENT
26 COUNSEL MAY SUBMIT THE INFORMATION TO THE GENERAL COUNSEL. IN
27 ACCORDANCE WITH THIS SUBCHAPTER, THE GENERAL COUNSEL SHALL
28 APPOINT A SPECIAL INVESTIGATIVE COUNSEL TO CONDUCT A
29 PRELIMINARY INVESTIGATION OF THE INFORMATION, EXCEPT THAT THE
30 PRELIMINARY INVESTIGATION SHALL NOT EXCEED 30 DAYS FROM THE
19970S0635B1307 - 56 -
1 DATE THE INFORMATION IS RECEIVED. IN MAKING THE
2 DETERMINATIONS REQUIRED BY THIS SUBCHAPTER, THE SPECIAL
3 INVESTIGATIVE COUNSEL SHALL GIVE GREAT WEIGHT TO ANY
4 RECOMMENDATIONS OF THE INDEPENDENT COUNSEL.
5 (3) IF THE SPECIAL INVESTIGATIVE COUNSEL DETERMINES,
6 AFTER ACCORDING GREAT WEIGHT TO THE RECOMMENDATIONS OF THE
7 INDEPENDENT COUNSEL, THAT THERE ARE NO REASONABLE GROUNDS TO
8 BELIEVE THAT FURTHER INVESTIGATION IS WARRANTED, THE SPECIAL
9 INVESTIGATIVE COUNSEL SHALL PROMPTLY SO NOTIFY THE PANEL, AND
10 THE PANEL SHALL HAVE NO POWER TO EXPAND THE JURISDICTION OF
11 THE INDEPENDENT COUNSEL OR TO APPOINT ANOTHER INDEPENDENT
12 COUNSEL WITH RESPECT TO THE MATTERS INVOLVED.
13 (4) THE PANEL SHALL EXPAND THE JURISDICTION OF THE
14 APPROPRIATE INDEPENDENT COUNSEL TO INCLUDE THE MATTERS
15 INVOLVED OR SHALL APPOINT ANOTHER INDEPENDENT COUNSEL TO
16 INVESTIGATE THE MATTERS IF:
17 (I) THE SPECIAL INVESTIGATIVE COUNSEL DETERMINES
18 THAT THERE ARE REASONABLE GROUNDS TO BELIEVE THAT FURTHER
19 INVESTIGATION IS WARRANTED; OR
20 (II) THE 30-DAY PERIOD REFERRED TO IN PARAGRAPH (2)
21 ELAPSES WITHOUT A NOTIFICATION TO THE PANEL THAT NO
22 FURTHER INVESTIGATION IS WARRANTED.
23 (5) IF THE INDEPENDENT COUNSEL DISCOVERS OR RECEIVES
24 INFORMATION ABOUT POSSIBLE VIOLATIONS OF CRIMINAL LAW BY
25 PERSONS OTHER THAN THOSE PROVIDED FOR IN SECTION 9312 AND
26 WHICH ARE NOT COVERED BY THE PROSECUTORIAL JURISDICTION OF
27 THE INDEPENDENT COUNSEL AND A REQUEST FOR EXPANSION UNDER
28 THIS SUBSECTION HAS NOT BEEN MADE BY THE GENERAL COUNSEL OR
29 THE REQUEST FOR EXPANSION UNDER THIS SUBSECTION HAS BEEN
30 DENIED BY THE PANEL, THE INDEPENDENT COUNSEL SHALL SUBMIT THE
19970S0635B1307 - 57 -
1 INFORMATION TO THE APPROPRIATE LAW ENFORCEMENT AUTHORITY.
2 (C) RETURN FOR FURTHER EXPLANATION.--UPON RECEIPT OF A
3 NOTIFICATION UNDER THIS SUBCHAPTER THAT THERE ARE NO REASONABLE
4 GROUNDS TO BELIEVE THAT FURTHER INVESTIGATION IS WARRANTED WITH
5 RESPECT TO INFORMATION RECEIVED UNDER THIS CHAPTER, THE PANEL
6 SHALL HAVE NO AUTHORITY TO OVERRULE THIS DETERMINATION BUT MAY
7 RETURN THE MATTER TO THE SPECIAL INVESTIGATIVE COUNSEL FOR
8 FURTHER EXPLANATION OF THE REASONS FOR THE DETERMINATION.
9 (D) VACANCIES.--IF A VACANCY IN OFFICE ARISES BY REASON OF
10 THE RESIGNATION, DEATH OR REMOVAL OF AN INDEPENDENT COUNSEL, THE
11 PANEL SHALL APPOINT AN INDEPENDENT COUNSEL TO COMPLETE THE WORK
12 OF THE INDEPENDENT COUNSEL WHOSE RESIGNATION, DEATH OR REMOVAL
13 CAUSED THE VACANCY, EXCEPT THAT, IN THE CASE OF A VACANCY
14 ARISING BY REASON OF THE REMOVAL OF AN INDEPENDENT COUNSEL, THE
15 PANEL MAY APPOINT AN ACTING INDEPENDENT COUNSEL TO SERVE UNTIL
16 ANY JUDICIAL REVIEW OF THE REMOVAL IS COMPLETED.
17 SUBCHAPTER C
18 AUTHORITY AND DUTIES OF INDEPENDENT COUNSEL
19 SEC.
20 9331. AUTHORITIES.
21 9332. COMPENSATION AND TRAVEL EXPENSES.
22 9333. ADDITIONAL PERSONNEL.
23 9334. ASSISTANCE OF PENNSYLVANIA STATE POLICE.
24 9335. REFERRAL OF OTHER MATTERS TO INDEPENDENT COUNSEL.
25 9336. DISMISSAL OF MATTERS.
26 9337. REPORTS BY INDEPENDENT COUNSEL.
27 9338. INDEPENDENCE FROM OFFICE OF ATTORNEY GENERAL.
28 9339. STANDARDS OF CONDUCT APPLICABLE TO INDEPENDENT COUNSEL,
29 PERSONS SERVING IN OFFICE OF INDEPENDENT COUNSEL AND
30 THEIR LAW FIRMS.
19970S0635B1307 - 58 -
1 9340. CUSTODY OF RECORDS OF INDEPENDENT COUNSEL.
2 9341. COST CONTROLS AND ADMINISTRATIVE SUPPORT.
3 9342. LEGISLATIVE OVERSIGHT.
4 9343. REMOVAL OF INDEPENDENT COUNSEL AND TERMINATION OF OFFICE.
5 9344. AUDITS.
6 9345. RELATIONSHIP WITH OFFICE OF ATTORNEY GENERAL.
7 9346. VENUE.
8 § 9331. AUTHORITIES.
9 NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN INDEPENDENT
10 COUNSEL APPOINTED UNDER THIS CHAPTER SHALL HAVE, WITH RESPECT TO
11 ALL MATTERS IN THE INDEPENDENT COUNSEL'S PROSECUTORIAL
12 JURISDICTION ESTABLISHED UNDER THIS CHAPTER, FULL POWER AND
13 INDEPENDENT AUTHORITY TO EXERCISE ALL INVESTIGATIVE AND
14 PROSECUTORIAL FUNCTIONS AND POWERS OF THE OFFICE OF ATTORNEY
15 GENERAL, THE ATTORNEY GENERAL AND ANY OTHER OFFICER OR EMPLOYEE
16 OF THE OFFICE OF ATTORNEY GENERAL. INVESTIGATIVE AND
17 PROSECUTORIAL FUNCTIONS AND POWERS SHALL INCLUDE, BUT ARE NOT
18 LIMITED TO:
19 (1) CONDUCTING PROCEEDINGS BEFORE GRAND JURIES AND OTHER
20 INVESTIGATIONS.
21 (2) PARTICIPATING IN COURT PROCEEDINGS AND ENGAGING IN
22 ANY LITIGATION, INCLUDING CIVIL AND CRIMINAL MATTERS, THAT
23 THE INDEPENDENT COUNSEL CONSIDERS NECESSARY.
24 (3) APPEALING ANY DECISION OF A COURT IN ANY CASE OR
25 PROCEEDING IN WHICH THE INDEPENDENT COUNSEL PARTICIPATES IN
26 AN OFFICIAL CAPACITY.
27 (4) REVIEWING ALL DOCUMENTARY EVIDENCE AVAILABLE FROM
28 ANY SOURCE.
29 (5) DETERMINING WHETHER TO CONTEST THE ASSERTION OF ANY
30 TESTIMONIAL PRIVILEGE.
19970S0635B1307 - 59 -
1 (6) RECEIVING APPROPRIATE SECURITY CLEARANCES AND, IF
2 NECESSARY, CONTESTING IN COURT, INCLUDING, WHERE APPROPRIATE,
3 PARTICIPATING IN AN IN CAMERA PROCEEDING, ANY CLAIM OF
4 PRIVILEGE OR ATTEMPT TO WITHHOLD EVIDENCE ON GROUNDS OF
5 SECURITY.
6 (7) MAKING APPLICATIONS TO ANY STATE COURT FOR A GRANT
7 OF IMMUNITY TO ANY WITNESS, CONSISTENT WITH APPLICABLE
8 STATUTORY REQUIREMENTS, OR FOR WARRANTS, SUBPOENAS OR OTHER
9 COURT ORDERS, AND EXERCISING THE AUTHORITY VESTED IN THE
10 ATTORNEY GENERAL OR A DISTRICT ATTORNEY.
11 (8) INSPECTING, OBTAINING OR USING THE ORIGINAL OR A
12 COPY OF ANY TAX RETURN IN ACCORDANCE WITH APPLICABLE STATUTES
13 AND REGULATIONS.
14 (9) INITIATING AND CONDUCTING PROSECUTIONS IN ANY COURT
15 OF COMPETENT JURISDICTION, FRAMING AND SIGNING INDICTMENTS,
16 FILING INFORMATION AND HANDLING ALL ASPECTS OF ANY CASE IN
17 THE NAME OF THE COMMONWEALTH.
18 (10) CONSULTING WITH THE DISTRICT ATTORNEY FOR THE
19 COUNTY IN WHICH ANY VIOLATION OF LAW WITH RESPECT TO WHICH
20 THE INDEPENDENT COUNSEL IS APPOINTED WAS ALLEGED TO HAVE
21 OCCURRED.
22 § 9332. COMPENSATION AND TRAVEL EXPENSES.
23 AN INDEPENDENT COUNSEL APPOINTED UNDER THIS CHAPTER SHALL
24 RECEIVE COMPENSATION AT THE PER DIEM RATE EQUAL TO THE ANNUAL
25 RATE OF BASIC PAY PAYABLE TO THE ATTORNEY GENERAL. AN
26 INDEPENDENT COUNSEL AND PERSONS APPOINTED UNDER SECTION 9333
27 (ADDITIONAL PERSONNEL) SHALL BE ENTITLED TO THE PAYMENT OF
28 TRAVEL EXPENSES.
29 § 9333. ADDITIONAL PERSONNEL.
30 FOR THE PURPOSES OF CARRYING OUT THE DUTIES OF THE OFFICE OF
19970S0635B1307 - 60 -
1 INDEPENDENT COUNSEL, THE INDEPENDENT COUNSEL MAY APPOINT, FIX
2 THE COMPENSATION AND ASSIGN THE DUTIES OF THE EMPLOYEES THE
3 INDEPENDENT COUNSEL CONSIDERS NECESSARY, INCLUDING, BUT NOT
4 LIMITED TO, INVESTIGATORS, ATTORNEYS AND NECESSARY EXPERTS TO
5 ASSIST WITH THE CRIMINAL INVESTIGATION. THE POSITIONS OF THESE
6 EMPLOYEES ARE EXEMPTED FROM THE COMPETITIVE SERVICE. EMPLOYEES
7 SHALL BE COMPENSATED AT LEVELS NOT TO EXCEED THOSE PAYABLE FOR
8 COMPARABLE POSITIONS IN THE OFFICE OF ATTORNEY GENERAL.
9 § 9334. ASSISTANCE OF PENNSYLVANIA STATE POLICE.
10 (A) CARRYING OUT FUNCTIONS.--AN INDEPENDENT COUNSEL MAY
11 REQUEST ASSISTANCE FROM THE PENNSYLVANIA STATE POLICE IN
12 CARRYING OUT THE FUNCTIONS OF THE INDEPENDENT COUNSEL, AND THE
13 PENNSYLVANIA STATE POLICE SHALL PROVIDE THAT ASSISTANCE, WHICH
14 MAY INCLUDE THE USE OF THE RESOURCES AND PERSONNEL NECESSARY TO
15 PERFORM THE INDEPENDENT COUNSEL'S DUTIES.
16 (B) PAYMENT OF AND REPORTS ON EXPENDITURES OF INDEPENDENT
17 COUNSEL.--UPON THE REQUEST OF THE GOVERNOR, THE GENERAL ASSEMBLY
18 SHALL APPROPRIATE THE NECESSARY FUNDS TO THE STATE TREASURER FOR
19 THE USE AND OPERATION IN EXECUTING THE DUTIES AND
20 RESPONSIBILITIES OF THE POSITION OF INDEPENDENT COUNSEL. UPON
21 THE REQUEST OF THE GOVERNOR, THE GENERAL ASSEMBLY SHALL
22 APPROPRIATE THE NECESSARY FUNDS TO THE PENNSYLVANIA STATE POLICE
23 FOR COSTS INCURRED WHEN RENDERING ASSISTANCE TO THE INDEPENDENT
24 COUNSEL AS PROVIDED FOR UNDER SUBSECTION (A). THE STATE
25 TREASURER SHALL SUBMIT TO THE GENERAL ASSEMBLY, NO LATER THAN 30
26 DAYS AFTER THE END OF EACH FISCAL YEAR, A REPORT ON AMOUNTS PAID
27 DURING THAT FISCAL YEAR FOR EXPENSES OF INVESTIGATIONS AND
28 PROSECUTIONS BY INDEPENDENT COUNSEL. EACH REPORT SHALL INCLUDE A
29 STATEMENT OF ALL PAYMENTS MADE FOR ACTIVITIES OF INDEPENDENT
30 COUNSEL.
19970S0635B1307 - 61 -
1 § 9335. REFERRAL OF OTHER MATTERS TO INDEPENDENT COUNSEL.
2 AN INDEPENDENT COUNSEL MAY ASK THE PANEL TO REFER TO THE
3 INDEPENDENT COUNSEL MATTERS RELATED TO THE INDEPENDENT COUNSEL'S
4 PROSECUTORIAL JURISDICTION, AND THE PANEL MAY REFER THESE
5 MATTERS. IF THE ATTORNEY GENERAL REFERS A MATTER TO AN
6 INDEPENDENT COUNSEL ON THE ATTORNEY GENERAL'S OWN INITIATIVE,
7 THE INDEPENDENT COUNSEL MAY ACCEPT THE REFERRAL IF THE MATTER
8 RELATES TO THE INDEPENDENT COUNSEL'S PROSECUTORIAL JURISDICTION.
9 § 9336. DISMISSAL OF MATTERS.
10 THE INDEPENDENT COUNSEL SHALL HAVE FULL AUTHORITY TO DISMISS
11 MATTERS WITHIN THE INDEPENDENT COUNSEL'S PROSECUTORIAL
12 JURISDICTION WITHOUT CONDUCTING AN INVESTIGATION OR AT ANY
13 SUBSEQUENT TIME BEFORE PROSECUTION.
14 § 9337. REPORTS BY INDEPENDENT COUNSEL.
15 (A) REQUIRED REPORTS.--AN INDEPENDENT COUNSEL SHALL:
16 (1) FILE WITH THE PANEL, WITH RESPECT TO THE SIX-MONTH
17 PERIOD BEGINNING ON THE DATE OF HIS APPOINTMENT AND WITH
18 RESPECT TO EACH SIX-MONTH PERIOD THEREAFTER UNTIL THE OFFICE
19 OF THAT INDEPENDENT COUNSEL TERMINATES, A REPORT WHICH
20 IDENTIFIES AND EXPLAINS MAJOR EXPENSES, SUMMARIZES ALL OTHER
21 EXPENSES INCURRED BY THAT OFFICE DURING THE SIX-MONTH PERIOD
22 WITH RESPECT TO WHICH THE REPORT IS FILED AND ESTIMATES
23 FUTURE EXPENSES OF THAT OFFICE.
24 (2) BEFORE THE TERMINATION OF THE INDEPENDENT COUNSEL'S
25 OFFICE UNDER SECTION 9343(B) (RELATING TO REMOVAL OF
26 INDEPENDENT COUNSEL AND TERMINATION OF OFFICE), FILE A FINAL
27 REPORT WITH THE PANEL, SETTING FORTH FULLY AND COMPLETELY A
28 DESCRIPTION OF ALL PROSECUTIONS. ALL OTHER INFORMATION SHALL
29 BE CONFIDENTIAL AND NOT SUBJECT TO PUBLIC DISCLOSURE.
30 (B) DISCLOSURE OF INFORMATION IN REPORTS.--THE PANEL MAY
19970S0635B1307 - 62 -
1 RELEASE TO THE GENERAL ASSEMBLY, THE GOVERNOR, THE STATE
2 TREASURER, THE PUBLIC OR ANY APPROPRIATE PERSON THE PORTIONS OF
3 A REPORT MADE UNDER THIS SECTION AS THE PANEL CONSIDERS
4 APPROPRIATE. THE PANEL SHALL MAKE ANY ORDERS AS ARE APPROPRIATE
5 TO PROTECT THE RIGHTS OF ANY INDIVIDUAL NAMED IN THE REPORT AND
6 TO PREVENT UNDUE INTERFERENCE WITH ANY PENDING PROSECUTION. THE
7 PANEL MAY MAKE ANY PORTION OF A FINAL REPORT FILED UNDER
8 SUBSECTION (A)(2) AVAILABLE TO ANY INDIVIDUAL NAMED IN THE
9 REPORT FOR THE PURPOSES OF RECEIVING WITHIN A TIME LIMIT SET BY
10 THE PANEL ANY COMMENTS OR FACTUAL INFORMATION THAT THE
11 INDIVIDUAL MAY SUBMIT. THE COMMENTS AND FACTUAL INFORMATION, IN
12 WHOLE OR IN PART, MAY IN THE DISCRETION OF THE PANEL BE INCLUDED
13 AS AN APPENDIX TO THE FINAL REPORT.
14 § 9338. INDEPENDENCE FROM OFFICE OF ATTORNEY GENERAL.
15 EACH INDEPENDENT COUNSEL APPOINTED UNDER THIS CHAPTER AND THE
16 PERSONS APPOINTED BY THAT INDEPENDENT COUNSEL UNDER SECTION 9333
17 (RELATING TO ADDITIONAL PERSONNEL) ARE SEPARATE FROM AND
18 INDEPENDENT OF THE OFFICE OF ATTORNEY GENERAL.
19 § 9339. STANDARDS OF CONDUCT APPLICABLE TO INDEPENDENT COUNSEL,
20 PERSONS SERVING IN OFFICE OF INDEPENDENT COUNSEL AND
21 THEIR LAW FIRMS.
22 (A) RESTRICTIONS ON EMPLOYMENT WHILE INDEPENDENT COUNSEL AND
23 APPOINTEES ARE SERVING.--DURING THE PERIOD IN WHICH AN
24 INDEPENDENT COUNSEL IS SERVING UNDER THIS CHAPTER, THE
25 INDEPENDENT COUNSEL AND ANY PERSON ASSOCIATED WITH A FIRM WITH
26 WHICH THE INDEPENDENT COUNSEL IS ASSOCIATED MAY NOT REPRESENT IN
27 ANY MATTER ANY PERSON INVOLVED IN ANY INVESTIGATION OR
28 PROSECUTION UNDER THIS CHAPTER. DURING THE PERIOD IN WHICH ANY
29 PERSON APPOINTED BY AN INDEPENDENT COUNSEL UNDER SECTION 9333
30 (RELATING TO ADDITIONAL PERSONNEL) IS SERVING IN THE OFFICE OF
19970S0635B1307 - 63 -
1 INDEPENDENT COUNSEL, THE PERSON MAY NOT REPRESENT IN ANY MATTER
2 ANY PERSON INVOLVED IN ANY INVESTIGATION OR PROSECUTION UNDER
3 THIS CHAPTER.
4 (B) POSTEMPLOYMENT RESTRICTIONS ON INDEPENDENT COUNSEL AND
5 APPOINTEES.--
6 (1) EACH INDEPENDENT COUNSEL AND EACH PERSON APPOINTED
7 BY THAT INDEPENDENT COUNSEL UNDER SECTION 9333 MAY NOT FOR
8 THREE YEARS FOLLOWING THE TERMINATION OF SERVICE UNDER THIS
9 CHAPTER OF THAT INDEPENDENT COUNSEL OR APPOINTED PERSON, AS
10 THE CASE MAY BE, REPRESENT ANY PERSON IN ANY MATTER IF THAT
11 INDIVIDUAL WAS THE SUBJECT OF AN INVESTIGATION OR PROSECUTION
12 CONDUCTED BY THAT INDEPENDENT COUNSEL UNDER THIS CHAPTER.
13 (2) EACH INDEPENDENT COUNSEL AND EACH PERSON APPOINTED
14 BY THAT INDEPENDENT COUNSEL UNDER SECTION 9333 MAY NOT FOR
15 ONE YEAR FOLLOWING THE TERMINATION OF SERVICE UNDER THIS
16 CHAPTER OF THAT INDEPENDENT COUNSEL OR APPOINTED PERSON, AS
17 THE CASE MAY BE, REPRESENT ANY PERSON IN ANY MATTER INVOLVING
18 ANY INVESTIGATION OR PROSECUTION UNDER THIS CHAPTER.
19 (C) ONE-YEAR BAN ON REPRESENTATION BY MEMBERS OF FIRMS OF
20 INDEPENDENT COUNSEL.--ANY PERSON WHO IS ASSOCIATED WITH A FIRM
21 WITH WHICH AN INDEPENDENT COUNSEL IS ASSOCIATED OR BECOMES
22 ASSOCIATED AFTER TERMINATION OF SERVICE OF THAT INDEPENDENT
23 COUNSEL UNDER THIS CHAPTER MAY NOT FOR ONE YEAR FOLLOWING THE
24 TERMINATION REPRESENT ANY PERSON IN ANY MATTER INVOLVING ANY
25 INVESTIGATION OR PROSECUTION UNDER THIS CHAPTER.
26 (D) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING
27 WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS
28 SUBSECTION:
29 "ASSOCIATED WITH A FIRM." A PERSON WHO IS AN OFFICER,
30 DIRECTOR, PARTNER OR OTHER MEMBER OR EMPLOYEE OF A LAW FIRM.
19970S0635B1307 - 64 -
1 "FIRM." A LAW FIRM, WHETHER ORGANIZED AS A PARTNERSHIP OR
2 CORPORATION.
3 § 9340. CUSTODY OF RECORDS OF INDEPENDENT COUNSEL.
4 (A) TRANSFER OF RECORDS.--UPON TERMINATION OF THE OFFICE OF
5 INDEPENDENT COUNSEL, THAT INDEPENDENT COUNSEL SHALL TRANSFER TO
6 THE BUREAU OF ARCHIVES AND HISTORY OF THE PENNSYLVANIA
7 HISTORICAL AND MUSEUM COMMISSION ALL RECORDS WHICH HAVE BEEN
8 CREATED OR RECEIVED BY THAT OFFICE. BEFORE THIS TRANSFER, THE
9 INDEPENDENT COUNSEL SHALL CLEARLY IDENTIFY WHICH OF THESE
10 RECORDS ARE SUBJECT TO THE PENNSYLVANIA RULES OF CRIMINAL
11 PROCEDURE AS GRAND JURY MATERIALS.
12 (B) MAINTENANCE, USE AND DISPOSAL OF RECORDS.--RECORDS
13 TRANSFERRED TO THE BUREAU OF ARCHIVES AND HISTORY UNDER THIS
14 SECTION SHALL BE MAINTAINED, USED AND DISPOSED OF AS PROVIDED BY
15 LAW.
16 § 9341. COST CONTROLS AND ADMINISTRATIVE SUPPORT.
17 (A) COST CONTROLS.--AN INDEPENDENT COUNSEL SHALL:
18 (1) CONDUCT ALL ACTIVITIES WITH DUE REGARD FOR EXPENSE.
19 (2) AUTHORIZE ONLY REASONABLE AND LAWFUL EXPENDITURES.
20 (3) PROMPTLY UPON TAKING OFFICE ASSIGN TO A SPECIFIC
21 EMPLOYEE THE DUTY OF CERTIFYING THAT EXPENDITURES OF THE
22 INDEPENDENT COUNSEL ARE REASONABLE AND MADE IN ACCORDANCE
23 WITH LAW.
24 (B) OFFICE OF ADMINISTRATION POLICIES.--AN INDEPENDENT
25 COUNSEL SHALL COMPLY WITH THE ESTABLISHED POLICIES OF THE OFFICE
26 OF ADMINISTRATION OF THE GOVERNOR RESPECTING EXPENDITURES OF
27 FUNDS, EXCEPT TO THE EXTENT THAT COMPLIANCE WOULD BE
28 INCONSISTENT WITH THE PURPOSES OF THIS CHAPTER.
29 § 9342. LEGISLATIVE OVERSIGHT.
30 (A) OVERSIGHT OF CONDUCT OF INDEPENDENT COUNSEL.--AN
19970S0635B1307 - 65 -
1 INDEPENDENT COUNSEL APPOINTED UNDER THIS CHAPTER SHALL SUBMIT TO
2 THE GENERAL ASSEMBLY A REPORT DETAILING ALL MONEYS EXPENDED AS
3 REQUIRED UNDER SECTION 9337(A)(1) (RELATING TO REPORTS BY
4 INDEPENDENT COUNSEL). IN ADDITION, THE INDEPENDENT COUNSEL SHALL
5 SUBMIT ANNUALLY A REPORT ON THE ACTIVITIES OF THE INDEPENDENT
6 COUNSEL, INCLUDING A DESCRIPTION OF THE PROGRESS OF ANY
7 INVESTIGATION OR PROSECUTION CONDUCTED BY THE INDEPENDENT
8 COUNSEL. THE REPORT MAY OMIT ANY MATTER THAT IN THE JUDGMENT OF
9 THE INDEPENDENT COUNSEL SHOULD BE KEPT CONFIDENTIAL BUT SHALL
10 PROVIDE INFORMATION ADEQUATE TO JUSTIFY THE EXPENDITURES THAT
11 THE OFFICE OF THE INDEPENDENT COUNSEL HAS MADE.
12 (B) INFORMATION RELATING TO IMPEACHMENT.--AN INDEPENDENT
13 COUNSEL SHALL ADVISE THE HOUSE OF REPRESENTATIVES OF ANY
14 SUBSTANTIAL AND CREDIBLE INFORMATION WHICH THE INDEPENDENT
15 COUNSEL RECEIVES IN CARRYING OUT THE INDEPENDENT COUNSEL'S
16 RESPONSIBILITIES UNDER THIS CHAPTER THAT MAY CONSTITUTE GROUNDS
17 FOR AN IMPEACHMENT. NOTHING IN THIS CHAPTER SHALL PREVENT THE
18 GENERAL ASSEMBLY OR EITHER HOUSE THEREOF FROM OBTAINING
19 INFORMATION IN THE COURSE OF AN IMPEACHMENT PROCEEDING.
20 § 9343. REMOVAL OF INDEPENDENT COUNSEL AND TERMINATION OF
21 OFFICE.
22 (A) REMOVAL, REPORT ON REMOVAL AND TERMINATION.--
23 (1) AN INDEPENDENT COUNSEL APPOINTED UNDER THIS CHAPTER
24 MAY BE REMOVED FROM OFFICE ONLY BY THE PERSONAL ACTION OF THE
25 GENERAL COUNSEL AND ONLY FOR GOOD CAUSE, PHYSICAL DISABILITY,
26 MENTAL INCAPACITY OR ANY OTHER CONDITION THAT SUBSTANTIALLY
27 IMPAIRS THE PERFORMANCE OF THE INDEPENDENT COUNSEL'S DUTIES.
28 FOR PURPOSES OF THIS PARAGRAPH, THE TERM "GOOD CAUSE"
29 INCLUDES, BUT IS NOT LIMITED TO, VIOLATIONS OF ANY ETHICAL
30 RULES GOVERNING THE INDEPENDENT COUNSEL, THE ATTORNEY GENERAL
19970S0635B1307 - 66 -
1 OR DISTRICT ATTORNEYS.
2 (2) IF AN INDEPENDENT COUNSEL IS REMOVED FROM OFFICE,
3 THE GENERAL COUNSEL SHALL PROMPTLY SUBMIT TO THE PANEL, THE
4 JUDICIARY COMMITTEE OF THE SENATE AND THE JUDICIARY COMMITTEE
5 OF THE HOUSE OF REPRESENTATIVES A REPORT SPECIFYING THE FACTS
6 FOUND AND THE ULTIMATE GROUNDS FOR THE REMOVAL. THE
7 COMMITTEES MAY MAKE AVAILABLE TO THE PUBLIC THE REPORT,
8 EXCEPT THAT EACH COMMITTEE MAY, IF NECESSARY TO PROTECT THE
9 RIGHTS OF ANY INDIVIDUAL NAMED IN THE REPORT OR TO PREVENT
10 UNDUE INTERFERENCE WITH ANY PENDING PROSECUTION, POSTPONE OR
11 REFRAIN FROM PUBLISHING ANY OR ALL OF THE REPORT. THE PANEL
12 MAY RELEASE ANY OR ALL OF THE REPORT IN ACCORDANCE WITH
13 SECTION 9337(B) (RELATING TO REPORTS BY INDEPENDENT COUNSEL).
14 (3) AN INDEPENDENT COUNSEL REMOVED FROM OFFICE MAY
15 OBTAIN JUDICIAL REVIEW OF THE REMOVAL IN A CIVIL ACTION
16 COMMENCED IN THE COMMONWEALTH COURT. THE INDEPENDENT COUNSEL
17 MAY BE REINSTATED OR GRANTED OTHER APPROPRIATE RELIEF BY
18 ORDER OF THE COMMONWEALTH COURT. A MEMBER OF THE PANEL MAY
19 NOT HEAR OR DETERMINE ANY SUCH CIVIL ACTION OR ANY APPEAL OF
20 A DECISION IN ANY SUCH CIVIL ACTION.
21 (B) TERMINATION OF OFFICE.--
22 (1) AN OFFICE OF INDEPENDENT COUNSEL SHALL TERMINATE
23 WHEN THE INDEPENDENT COUNSEL:
24 (I) NOTIFIES THE PANEL THAT THE INVESTIGATION OF ALL
25 MATTERS WITHIN THE PROSECUTORIAL JURISDICTION OF THE
26 INDEPENDENT COUNSEL OR ACCEPTED BY THE INDEPENDENT
27 COUNSEL, AND ANY RESULTING PROSECUTIONS, HAVE BEEN
28 COMPLETED; AND
29 (II) FILES A FINAL REPORT IN COMPLIANCE WITH SECTION
30 9337.
19970S0635B1307 - 67 -
1 (2) THE PANEL SHALL DETERMINE ON ITS OWN MOTION WHETHER
2 TERMINATION IS APPROPRIATE UNDER THIS SUBSECTION NO LATER
3 THAN TWO YEARS AFTER THE APPOINTMENT OF AN INDEPENDENT
4 COUNSEL OR THE REPORTED EXPENDITURES OF THE INDEPENDENT
5 COUNSEL HAVE REACHED $2,000,000, WHICHEVER OCCURS FIRST, AND
6 AT THE END OF EACH SUCCEEDING ONE-YEAR PERIOD.
7 § 9344. AUDITS.
8 BY DECEMBER 31 OF EACH YEAR, AN INDEPENDENT COUNSEL SHALL
9 PREPARE A STATEMENT OF EXPENDITURES FOR THE FISCAL YEAR THAT
10 ENDED ON THE IMMEDIATELY PRECEDING JUNE 30. AN INDEPENDENT
11 COUNSEL WHOSE OFFICE IS TERMINATED PRIOR TO THE END OF THE
12 FISCAL YEAR SHALL PREPARE A STATEMENT OF EXPENDITURES WITHIN 90
13 DAYS OF THE DATE ON WHICH THE OFFICE IS TERMINATED. THE AUDITOR
14 GENERAL SHALL AUDIT EACH STATEMENT AND REPORT THE RESULTS OF
15 EACH AUDIT TO THE APPROPRIATE COMMITTEES OF THE GENERAL ASSEMBLY
16 NO LATER THAN MARCH 31 OF THE YEAR FOLLOWING THE SUBMISSION OF
17 THE STATEMENT.
18 § 9345. RELATIONSHIP WITH OFFICE OF ATTORNEY GENERAL.
19 WHENEVER A MATTER IS IN THE PROSECUTORIAL JURISDICTION OF AN
20 INDEPENDENT COUNSEL OR HAS BEEN ACCEPTED BY AN INDEPENDENT
21 COUNSEL UNDER SECTION 9335 (RELATING TO REFERRAL OF OTHER
22 MATTERS TO INDEPENDENT COUNSEL), THE OFFICE OF ATTORNEY GENERAL,
23 THE ATTORNEY GENERAL, ALL OTHER OFFICERS AND EMPLOYEES OF THE
24 OFFICE OF ATTORNEY GENERAL AND ANY DISTRICT ATTORNEY SHALL
25 SUSPEND ALL INVESTIGATIONS AND PROCEEDINGS REGARDING THAT MATTER
26 AND SHALL TURN OVER TO THE INDEPENDENT COUNSEL ALL MATERIALS,
27 FILES AND OTHER DATA RELATING TO THAT MATTER.
28 § 9346. VENUE.
29 THE PROPER VENUE FOR ALL PROSECUTIONS CONDUCTED BY THE
30 INDEPENDENT COUNSEL SHALL BE DETERMINED IN ACCORDANCE WITH THE
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1 PENNSYLVANIA RULES OF CRIMINAL PROCEDURE. FOR THE PURPOSES OF
2 CONVENIENCE AND FAIRNESS, THE PANEL MAY, HOWEVER, SET THE VENUE
3 IN ANY OTHER COUNTY ON ITS OWN MOTION OR AT THE REQUEST OF THE
4 INDEPENDENT COUNSEL OR ON PETITION OF THE DEFENDANT.
5 SUBCHAPTER D
6 MISCELLANEOUS PROVISIONS
7 SEC.
8 9351. SEVERABILITY OF CHAPTER.
9 9352. EXPIRATION OF CHAPTER.
10 § 9351. SEVERABILITY OF CHAPTER.
11 THE PROVISIONS OF THIS CHAPTER ARE SEVERABLE. IF ANY
12 PROVISION OF THIS CHAPTER OR ITS APPLICATION TO ANY PERSON OR
13 CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY SHALL NOT AFFECT
14 OTHER PROVISIONS OR APPLICATIONS OF THIS CHAPTER WHICH CAN BE
15 GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION.
16 § 9352. EXPIRATION OF CHAPTER.
17 THIS CHAPTER SHALL EXPIRE FIVE YEARS AFTER THE DATE OF THE
18 ENACTMENT OF THIS CHAPTER, EXCEPT WITH RESPECT TO ANY MATTERS
19 PENDING BEFORE AN INDEPENDENT COUNSEL THAT IN THE JUDGMENT OF
20 THE INDEPENDENT COUNSEL REQUIRE CONTINUATION. MATTERS SHALL BE
21 CONTINUED UNTIL THE INDEPENDENT COUNSEL DETERMINES THE MATTERS
22 ARE COMPLETED.
23 Section 4 16. This act shall take effect in 60 days. AS <--
24 FOLLOWS:
25 (1) THE AMENDMENT OR ADDITION OF 18 PA.C.S. §§ 2506,
26 3301(D), (H) AND (I) AND CH. 93 SHALL TAKE EFFECT IN 60 DAYS.
27 (2) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT
28 IMMEDIATELY.
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