Commonwealth v. Chiappini

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ZAPPALA, Justice.

We granted allowance of appeal in this matter limited to two issues (1) whether the trial court erred in admitting the testimony of Denise Chiappini, who was the Appellant’s wife at the time of the events to which she testified; and (2) whether the Appellant should have received credit towards his sentence for time served in a home confinement/electronic monitoring program. Regarding the first issue, we hold that the court did not err in allowing Denise Chiappini to testify about actions of the Appellant that she observed. As to the second issue, we hold that the Appellant is entitled to credit for 518 days spent in the home confinement/electronic monitoring program.

The Appellant was charged with arson, risking a catastrophe, and recklessly endangering another person in connection with a fire that occurred on the night of May 27, 1991, at a house in Scranton. The Appellant and his wife owned the house and had resided there from 1989 through the early part of spring of the same year. Expert testimony indicated that the fire had been burning for at least two hours before it was discovered at about 11:30 p.m., and that it was intentionally set and fueled by an accelerant. There was also evidence that the Appellant had sold some of the kitchen cabinets from the house and had increased the insurance coverage on the house prior to the fire.

In addition, the Commonwealth’s case included testimony by Denise Chiappini, who was divorced from the Appellant in 1992. The Appellant filed a motion in limine arguing that pursuant to 42 Pa.C.S. § 5914 she was not permitted to testify about what the Appellant had said or done that evening. The court ruled that she could not testify concerning statements made to her by the Appellant but that she could testify about his actions.

In summary, Denise Chiappini testified that on May 27, 1991, between 6:00 and 8:00 p.m., the Appellant and she went for a ride in their car, with her driving and the Appellant directing her, eventually reaching the vicinity of their previous residence. As they were travelling on a road behind the property, the Appellant got out of the car and ran into the woods in the direction of the house, disappearing from her view. While he was gone, she proceeded further down the road, turned the car around, and went back to the place where the Appellant had gotten out of the car. He reappeared from approximately the same place in the woods, got back in the car, and they returned home.

There are a number of difficulties involved in trying to delineate the parameters of the spousal confidential communications privilege to be applied in this case. At the outset, although 42 Pa.C.S. § 5914 was enacted in 1976 and made effective in June of 1978 as part of the Judicial Code, it is substantially a reenactment of legislation dating back to 1887, which itself had roots in the common law.¹ At the time this precept was first incorporated into the Commonwealth’s statutory law, the rules of construction held that statutes in derogation of the common law were to be strictly construed. Although this rule of construction has not been generally applicable since 1937, see 1 Pa.C.S. § 1928(a), it continues to apply to “[p]rovisions enacted finally prior to September 1, 1937 which are in derogation of the common law.” 1 Pa.C.S. § 1928(b)(8). Another rule of statutory construction, 1 Pa. C.S. § 1962, indicates that “[w]henever a statute is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing statute, the earlier statute shall be construed as continuing in active operation.” Thus the rule of strict construction continues to apply, despite the fact that Section 5914 was enacted in 1976.

Properly understood, this rule of strict construction presumes that common law rules, as developed and refined by the courts, are to continue as before, and are altered or abrogated by a statute only to the extent that the legislation specifically requires such a result. If a circumstance does not plainly fall within the language of such a statute, the courts do not attempt to “interpret” or “discern legislative intent” in order to apply the statute. Rather, the statute does not come into play at all and the courts are to apply the common law rule.

With respect to the rules regarding spousal testimony, not many years after the adoption of the Act of May 23, 1887, this Court observed that the Act “relates only to living husbands and wives, and makes no provision in the case of the death of either.... Hence the general authorities applicable without any reference to the act of 1887 are the ones which control the present question.” Dumbach v. Bishop, 183 Pa. 602, 608, 39 A. 38 (1898) (emphasis added). Likewise, as recently as 1977, in Commonwealth v. Borris, 247 Pa.Super. 260, 372 A.2d 451 (1977), the Superior Court recognized the distinction between applying the statutory rule and applying the common law rule in the case of marriages terminated by divorce. Speaking of the privilege governing “confidential communications made during a marriage, subsequently terminated by death or divorce,” the court stated, “The Act of 1887 does not contemplate those situations. See 2 Henry, Pennsylvania Evidence § 699 (4th Ed.1953). Our courts have followed the common law rule in those cases.” 372 A.2d at 454.

In this case, therefore, where Peter and Denise Chiappini were no longer husband and wife at the time of trial, the question is not whether her testimony should have been excluded “pursuant to 42 Pa.C.S. § 5914.” The statute does not apply. Rather, the question is whether her testimony should have been excluded pursuant to the common law rule.

At this point we encounter another difficulty, namely presenting an accurate statement of the common law rule. The earliest of the cases quoted in Dumbach v. Bishop was Cornell v. Vanartsdalen, 4 Pa. 364 (1847), which stated:

The great object of these rules being to secure domestic happiness by prohibiting confidential communications from being divulged, the rule is the same to that extent, even though the other party is no longer in being, or has even been divorced and married to another person. The rule is the same in its spirit and extent, as that which excludes confidential communications made by a client to an attorney. And in analogy to this rule, it is held, that the wife, after the death of the husband, is competent to prove facts, coming to her knowledge from other sources not by means of her situation as wife, notwithstanding they relate to the transactions of her husband. The prohibition, where she is a competent witness, being divested of all interest, extends to confidential communications alone, or such as come to her knowledge from her domestic relation.

4 Pa. at 374 (first emphasis in original, second emphasis added). The latter emphasized phrase, being stated separately and in the disjunctive, might be taken to mean that matters coming to one’s knowledge from the domestic relation constitute something different from “confidential communications,” yet similarly protected from disclosure.

A similar inference might be drawn from another case quoted in Dumbach, i.e., Stephens v. Cotterell, 99 Pa. 188 (1882), which stated, “She is competent to testify to facts which came to her knowledge otherwise than through the confidential relations existing between her and her husband.” The corollary to this statement would be that she was incompetent to testify to facts which came to her knowledge through the confidential relations existing between her and her husband.²

The third case quoted in Dumbach v. Bishop, however, Robb’s Appeal, 98 Pa. 501 (1881), rejected the argument “that the disqualification incident to coverture continued after the death of [the witness’s] husband, and is not limited to what occurred in their confidential intercourse, but extends to all facts and transactions which came to her knowledge during their marital relations.” The Court observed, “While the principle thus broadly stated has sometimes been recognized, the better and more generally received opinion is that the disqualification is restricted to communications of a confidential nature, and does not embrace ordinary business transactions and conversations in which others have participated.” 98 Pa. at 503.

A later case citing to both Robb’s Appeal and Stephens v. Cotterell appears to give very limited scope to the “knowledge of facts gained through the marital relationship” as a class of information subject to the prohibition. In Stewart v. F.A. North Co., 65 Pa.Super. 195 (1916), the court allowed the testimony of the former wife of the plaintiff, called as a witness by the defendant in a civil action, regarding facts which could have come to the knowledge of someone other than the witness. The court stated, “we are unable to see that the knowledge possessed by Mrs. Stewart as to the contents of the cellar of the house in which she lived was in any sense a confidential matter or that it was acquired in her relation to her husband as a wife____It was knowledge of a physical fact, not communicated by the husband or having any relation to or association with their relation as husband and wife.” Subsequent cases citing F.A. North for the common law rule made no reference at all to “knowledge acquired in the relation of husband and wife.” See, e.g., Commonwealth v. Beddick, 180 Pa.Super. 221, 119 A.2d 590, 593 (“The disqualification that remains after the dissolution of the marriage is restricted to communications of a confidential nature.”); and Commonwealth v. Bonis, supra (same).

We have been unable to find any cases which may be considered as the common law origins of the reference in Cornell v. Vanartsdalen or elsewhere to “matters coming to one’s knowledge through the marital relationship,” and thus we cannot declare with certainty how broadly that phrase was ever actually applied. Nevertheless, we must conclude that, considered as a type of information distinct from “confidential communications” it can have no place in the current formulation of the common law privilege. Indeed, this must have been the case beginning with the passage of the Act of May 23, 1887, which, with respect to marriages continuing in existence, limited the prohibition to “confidential communications.”³ It would be quite anomalous to hold that the prohibition is broader following dissolution of a marriage’ than it is where the marriage continues. Accordingly, we hold that the common law prohibition on testimony following termination of a marriage extends only to confidential communications made by one of the partners to the other.

The Appellant, however, suggests that acts may be considered communications, and thus subject to the prohibition against disclosure, where they are undertaken in reliance on the confidential nature of the marital relationship. The Appellant’s argument begins with a standard dictionary definition of “communicate” as “to impart knowledge of; make known.” According to the Appellant, his acts imparted knowledge and information to his wife, therefore they constituted communications. He further asserts that he acted in reliance on the confidence that the marital relationship inspired. This latter assertion is followed by reference to the public policy behind the privilege, i.e., “the preservation of marital harmony and the resultant benefits to society.” Finally, the Appellant identifies decisions from a number of other jurisdictions holding that the marital communications privilege precluded testimony by one spouse regarding acts performed by the other in reliance on the confidentiality of the husband-wife relationship.⁴ He argues that the reasoning offered by the courts in support of these decisions is persuasive and should be applied in the interpretation of Pennsylvania law.

The Commonwealth’s response to the definitional premise of the Appellant’s argument is that communication connotes an intention to impart knowledge or convey information. One person observing the actions or conduct of another may be said to acquire information from what he observes, but it is only if the actor intends to convey a meaning or message that communication is involved. The Commonwealth cites to authorities advancing the view that actions come within the privilege only when the acting spouse intends to convey a meaning to the observing spouse,⁵ and argues that several of the cases cited by the Appellant are in fact consistent with this analysis. Assuming arguendo that the Appellant’s actions can be considered communications, the Commonwealth proposes that they cannot be considered confidential because they were undertaken in a public place where anyone could have observed them.

Upon close examination of the many cases from other jurisdictions, we note two considerations that must be given due attention. First, as observed by the Virginia Supreme Court in Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9 (1949), and also by the West Virginia Supreme Court in State v. Robinson, 180 W.Va. 400, 376 S.E.2d 606 (1988), many decisions depend on the particular wording of the statutes of the respective states. Consequently, although they may be of some interest, they do not provide direct authority for discerning the contours of a common law rule. Second, as also observed in Menefee, “[njumerous conflicting decisions of other states and the divergent views of eminent textwriters evidence the fact that there exists a marked division of authority upon the subject.” 55 S.E.2d at 13. Even where the statement of the rule and purpose behind it are essentially the same, courts have reached different conclusions regarding the question of whether actions are protected from disclosure as “communications”.

We agree with the Commonwealth that although communication need not involve words, it must involve more than observation by one person of the conduct of another; it must involve the attribution of a message or meaning to that conduct.⁶ Whether particular sounds, gestures, or actions constitute “communications” depends in large measure on the context in which they occur. Thus it falls to the trial court to evaluate the offer of proof to determine whether the witness’s testimony would simply describe activity of the spouse that occurred in his or her presence or would disclose the conveyance of a message.⁷

Nor are we persuaded that the policy underlying the privilege requires that observations of conduct as well as verbal statements be protected from disclosure. Were we to accept this argument, the term “communication” would bring into the privilege the concept of “facts coming to one’s knowledge through the marital relationship.” As we have indicated above, since 1887 the statutory law of the Commonwealth has not regarded it as necessary, in protecting the integrity of intact marriages, to prohibit a person from testifying about such facts, and we consider it inappropriate to employ a different precept under the common law where the marriage no longer exists.

Based on the foregoing analysis, we conclude that the common pleas court did not err in permitting Denise Chiappini to testify about the Appellant’s actions in leaving their car at a certain location and returning some time later.

The second question we accepted for review is whether the Appellant should have received credit towards his sentence for time served in a home confinement/electronic monitoring program. The specific program that the Appellant was subject to was run by the Lackawanna County Prison authorities. Generally, the rules and regulations of the program specified that a participant in the program was considered an inmate of the Lackawanna County Prison and that his/her residence would be considered a jail without bars. Participation in the program was monitored by a non-removable ankle or wrist bracelet which the participant was required to wear at all times. A monitoring device was connected to a participant’s telephone and corrections personnel was permitted to enter the participant’s home in order to maintain this equipment. Additionally, the restrictions imposed by the program were monitored by telephone calls and visits by home detention staff members. A participant was required to cooperate with home detention staff and permit them to enter the residence upon request at any time of day or night.

The Appellant was initially tried on the charges against him and found guilty in March of 1993. During the pendency of his Motion for Arrest of Judgment and/or New Trial, he was subject to the Lackawanna County Home Confinement/Electronic Monitoring program. It appears that he was subject to the same restrictions after the common pleas court granted his motion and ordered a new trial, after the second trial resulted in guilty verdicts on January 18, 1995, and following the denial of post-verdict motions and imposition of sentence.⁸ Although at the time of sentencing the court allowed credit for the 518 days the Appellant had spent in the program to date, upon the Commonwealth’s motion that credit was later rescinded based on Shartle. Even so, the court refused the Commonwealth’s request to revoke bail pending appeal, and the Appellant has remained subject to the program since that time.

The parties agree that the issue before this Court is one of first impression and is whether a defendant is entitled to credit for time served in a home confinement/electronic monitoring program against his sentence for purposes of Section 9760 of the Sentencing Code, 42 Pa.C.S. § 9760.

Section 9760 states in relevant part:

After reviewing the information submitted under § 9737 (relating to report of outstanding charges in sentences) the Court shall give credit as follows:

(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending resolution of an appeal.

As the parties agree, the issue is whether the time Appellant spent subject to the home confinement/electronic monitoring program constitutes “time spent in custody”. The Sentencing Code does not set forth a definition of custody for purposes of Section 9760. Pursuant to the Statutory Construction Act, where a term is not defined by the Legislature, it shall be construed according to its common and approved usage. 1 Pa.C.S. § 1903(a). In the absence of any cases by this Court interpreting the word custody, the parties have referred us to cases discussing custody and imprisonment in the context of various legal proceedings.

Appellant cites to several cases from this Court and the United States Supreme Court characterizing the conditions and restrictions of bail and/or parole as sufficient to meet the definition of “custody”. The cases involved whether the courts had jurisdiction to entertain a petition for writ of habeas corpus. Specifically, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the habeas corpus statute allowed the district courts to grant habeas corpus “to a prisoner ... in custody in violation of the Constitution ... of the United States.” The Supreme Court held that for these purposes, “in custody” did not mean that a person must be confined to jail; rather, it was sufficient that they still be under the jurisdiction of the court and subject to a restraint of liberty. Similarly, in Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760 (Pa.1979), this Court held that to satisfy the custody requirement for a habeas corpus petition, it was sufficient that a person demonstrate that they [sic] were subject to restraints on their [sic] liberty “not shared by the public generally.” Id. at 763.

The Commonwealth, on the other hand, cites to the Superi- or Court’s opinion in Shartle and argues that this Court should adopt the Superior Court’s reasoning. In Shartle, the Superior Court interpreted this Court’s decisions in Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991) and Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991), as prohibiting credit for time served in an electronic monitoring program.

In Kriston, a person convicted of violating 75 Pa.C.S. § 3731 (driving under the influence) for a second time was sentenced to thirty days, the mandatory minimum sentence under 75 Pa.C.S. § 3731(e)(1)(h), to twenty-three months imprisonment. He began serving his sentence on June 15, 1987. Ten days later, the warden of the prison, without the knowledge or consent of the sentencing court, transferred him to an electronic monitoring program, which required him to remain confined in his home⁹ and subjected him to the possibility of unannounced visits and random drug and alcohol testing. When he applied for parole at the end of July, the court denied his petition and directed that he serve the remaining twenty days of the thirty day mandatory minimum sentence. Superior Court affirmed, holding that time spent in the home monitoring program did not satisfy the statutorily mandated minimum term of imprisonment specified in Section 3731.

On appeal, we reversed the Superior Court’s decision based upon our conclusion that it would be manifestly unjust to deny appellant Kriston credit for that portion of his sentence which he served in the electronic home monitoring program after his transfer into the program by the prison warden.¹⁰ Although we reversed on this ground, we also discussed the Superior Court’s determination that a defendant convicted of driving under the influence could not serve the mandated term of “imprisonment” specified in Section 3731 in an electronic/home monitoring program. In approving this portion of the Superi- or Court’s analysis, we noted that the term “imprisonment” used by the Legislature in Section 3731 was not specifically defined. Thus, applying statutory construction principles, we sought to determine the common and ordinary meaning of imprisonment. We concluded that imprisonment only encompassed confinement in a correctional or similar rehabilitative institution, and that alternative sentencing programs were not included within the common and ordinary meaning of the term.

One month after Kriston, we decided Conahan. In that case, we were also asked to decide whether the defendant could satisfy the mandatory term of imprisonment specified in Section 3731 for driving under the influence by applying the time he voluntarily spent in an inpatient alcohol rehabilitation facility towards the sentence.¹¹ Following a motor vehicle accident, Appellant Conahan was arrested for driving under the influence. Prior to pleading guilty for the charge, he voluntarily commenced inpatient treatment for alcoholism, which lasted ninety-five days. After completing the program, he was sentenced as a second time offender to a term of imprisonment of thirty days to one year. The trial court credited Conahan with the ninety-five days he spent in rehabilitation and granted immediate parole.

On appeal, the Superior Court reversed and determined that the word imprisonment used in Section 3731 did not encompass inpatient treatment programs. We disagreed and again we looked to the common and ordinary meaning of the term imprisonment set forth in Section 3731. Referring to our analysis in Kriston, we held that:

successful completion of this custodial inpatient rehabilitation, which took place in three hospitals, falls within the common meaning of “imprisonment” and is a sufficient “institutional setting” as contemplated by this Court in Kriston.

We rejected the Commonwealth’s assertion that the Legislature intended imprisonment as used in 3731 to mean jail and not other forms of custody. We stated:

We recognize that the term “imprisonment” immediately conjures the image of being involuntarily confined behind bars. However, the dictionary definition and common usage is more encompassing. “Imprisonment” is defined as:

The act of putting or confining a man in prison. The restraint of a man’s personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion. It is not a necessary part of the definition that the confinement should be in a place usually appropriated to the purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Every confinement of the person is an “imprisonment,” whether it be in a prison, or in a private house, or even by forcibly detaining one in the public streets. Any unlawful exercise or show of force by which person is compelled to remain where he does not wish to be. Black’s Law Dictionary (5th ed.1979).

Conahan, 589 A.2d at 1109.

The Superior Court in Shartle was asked to determine whether the trial court erred by not giving the defendant credit for pre-trial time served in a home electronic monitoring program. In that case, the defendant sought credit for twenty-two days she spent under house arrest subject to electronic monitoring as a condition of being released on her own recognizance between her arraignment and her preliminary hearing. Citing Kriston and Conahan, the Superior Court concluded that time spent in custody for purposes of 42 Pa.C.S. § 9760(1) must be “the equivalent of time served in an institutional setting,” id. at 877, and thus held that credit for the twenty-two days was properly denied.

With this background, we note that none of the cases cited by the parties is dispositive of the issue raised here. Although the Commonwealth asks us to adopt the reasoning, employed by the Superior Court in Shartle, which is factually similar to this case, we decline to do so based upon our determination that the court incorrectly concluded that our decisions in Kriston and Conahan were controlling.

At the outset, we note that Kriston and Conahan solely involved the interpretation of the term “imprisonment” for purposes of the offense of driving under the influence of Section 3731 of the Motor Vehicle Code. Here, we are concerned with the meaning of the term “custody” used in Section 9760 of the Sentencing Code. The Commonwealth posits that the term custody is identical to the term imprisonment and that a defendant could only receive credr; pursuant to Section 9760 for time spent in prison or a similar institution. On the other hand, Appellant asserts that “custody,” while encompassing “imprisonment,” is not so limited as the Commonwealth suggests. We agree with Appellant.

The terms imprisonment and custody, although synonymous, are not identical. As Appellant advocates, the term custody is broader than the term imprisonment. Imprisonment is but one form of custody. In drafting Section 9760 of the Sentencing Code, the Legislature chose to use the term custody rather than the more restrictive term imprisonment. Given that we do not find these terms to be identical, we cannot disregard the different terminology used in Section 9760 and Section 3731 as the Superior Court did in Shartle. As a matter of policy, the legislature has chosen to give credit “against the maximum term and any minimum term ... .for which a prison sentence is imposed .... for time spent in custody prior to trial, during trial, pending sentence and pending resolution of an appeal.” (Emphasis added). It is not the prerogative of this Court to disregard or change the language employed by the legislature in enacting a statutory provision. Accordingly, we reject the limited interpretation of the term custody advocated by the Commonwealth, which would exclude forms of legal restraint other than imprisonment.

In determining whether a person has spent time in custody it is necessary to examine the extent of control exercised by those in authority. The type of technology employed in this case has made it possible for prison authorities to restrain and severely limit a person’s freedom by limiting his ability to move about freely to the confines of his home. The restrictions placed upon Appellant here went well beyond the restrictions typically employed by a court in releasing a defendant on his own recognizance or upon a condition that a defendant not leave the jurisdiction of the court.¹²

Based on the foregoing, we conclude that the 518 days that Appellant was subjected to this home confinement/electronic monitoring program provided sufficient restraints on his liberty to constitute time spent in custody for purposes of Section 9760 of the Sentencing Code.¹³

Accordingly, the judgment of sentence is affirmed in part and the matter is remanded to the common pleas court for computation of credit for' 518 days under Section 9760 in accordance with this decision.

Jurisdiction is relinquished.

Justice NIGRO files a concurring opinion. Justice CAPPY files a concurring and dissenting opinion. Justice CASTILLE files a concurring and dissenting opinion. Justice SAYLOR files a concurring and dissenting opinion.

1 . Section 5914, entitled "Confidential communications between spouses,” states, "Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.”

2 . Without direct citation, this Court made a similarly broad statement in Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411 (1964), which is quoted by the Appellant: "Confidential communications between them and facts which have come to their knowledge through the marital relationship cannot be divulged by either without the consent of the other.” Id. at 413. Wilkes involved a man on trial for killing his son. Both men were engaged in illicit relationships with the same woman. The shooting occurred when the son, looking for the woman, broke down the door of his father's house and attempted to enter. The evidence in question consisted of five "lurid and vulgar love letters” written by Wilkes to the woman and answered by her on the back, which, by showing the relationship between the defendant, his son, and the woman, were relevant to demonstrating a possible motive for the killing. The letters had been found by the defendant’s estranged wife when she went to her husband’s house to retrieve clothes for her daughter shortly after the shooting. The wife turned the letters over to the mortician, who then gave them to the police.

Wilkes argued that admission of the letters "in effect permitted the wife to testify or give evidence against her husband, contrary to the provisions of the Act of May 23, 1887." 199 A.2d at 413. The Act was clearly applicable because Wilkes and his wife were separated but not divorced. However, the Court’s discussion deviated from the language of the Act, and seems to have reverted to the common law rule, by adding the phrase "and facts which have come to their knowledge through the marital relationship”. The analysis was further confused by intermixing the rule prohibiting testimony against a spouse, and the prohibiting testimony regarding to confidential communications. For these reasons, the value of Wilkes as precedential authority is suspect. Nevertheless it lends some support to the view that considered generically, without regard to distinctions between statute and common law, the prohibition was understood as applying to “confidential communications between [spouses] and facts which have come to their knowledge through the marital relationship." Id.

3 . For purposes of this analysis, it matters not whether the legislature intentionally avoided referring to "facts coming to one's knowledge through the marital relationship” or simply did not consider such to be a part of the common law being codified.

4 . In the portion of his brief devoted to this argument, the Appellant cites People v. Daghita, 299 N.Y. 194, 86 N.E.2d 172 (1949), Shepherd v. State, 257 Ind. 229, 277 N.E.2d 165 (1971), Arnold v. State, 353 So.2d 524 (Ala. 1977), and State v. Holmes, 101 N.C.App. 229, 398 S.E.2d 873 (1990), aff'd, 330 N.C. 826, 412 S.E.2d 660 (1992). Elsewhere, he cites Whitehead v. Kirk, 104 Miss. 776, 61 So. 737 (1913), and State v. Smith, 384 A.2d 687 (Me. 1978). Also cited are State v. Carpenter, 83 Ohio App.3d 842, 615 N.E.2d 1103 (1992), State v. Robinson, 180 W.Va. 400, 376 S.E.2d 606 (1988), People v. Burton, 6 Ill.App.3d 879, 286 N.E.2d 792 (1972), State v. Robbins, 35 Wash.2d 389, 213 P.2d 310 (1950), and Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9 (1949), and several later cases from some of these same states which follow the already cited precedent.

5 . The Commonwealth cites and discusses United States v. Estes, 793 F.2d 465 (2d Cir.1986), and McCormick on Evidence (4th ed.1992), Vol. 1, p. 296.

6 . Cf. Pa. Rule of Evidence 801(a)(2) ("A statement’ is ... nonverbal conduct of a person, if it is intended by the person as an assertion.")

7 . In this regard it must be recognized that the preliminary question of whether a communication is involved is separate from the issues of confidentiality and whether the claim of privilege is valid. Thus the presumption of confidentiality does not attach until it has first been established by the person claiming benefit of the privilege that the conduct should be construed as a communication. See State v. Smith, 384 A.2d 687, 691 n. 4 (Me.1978) (applying Maine statute extending privilege to "marital communications” and case law interpretation of statute as limited to "confidential communications").

8 . We note that on March 30, 1995, the trial court granted Appellant’s motion for bail pending post-sentence motions and/or appeal. At that time, the court increased Appellant’s bail by $50,000 and upon motion by the Commonwealth, the court removed a condition of Appellant’s bail that had been ordered previously on January 18, 1995, that the Appellant remain on the “electronic monitoring device — home confinement program of the Lackawanna County Probation [0]ffice.” Interestingly, the Commonwealth made this request believing that Appellant would receive credit for this time against his sentence. The Commonwealth stated in its motion that it sought to prevent Appellant from receiving credit against his sentence for time spent on the “home confinement program.” Appellee's Motion for Reconsideration of Conditions of Bail at 1.

Subsequently, the Commonwealth filed a motion for reconsideration of bail and requested that the court re-impose home confinement/electronic monitoring as a condition of bail following the Superior Court's decision in Commonwealth v. Shartle, 438 Pa.Super. 403, 652 A.2d 874 (1995), petition for allowance of appeal denied, 663 A.2d 690 (Pa.1995). wherein the court held that a defendant is not entitled to credit for time spent in the home confinement/electronic monitoring program. The court granted the Commonwealth's motion and, once again, Appellant was subject to the program.

9 . The electronic device would signal if the defendant moved more than 100 feet of his telephone.

10 . Appellant likewise argues manifest injustice; however, in light of our determination that custody for purposes of Section 9760 encompasses the home confinement/electronic monitoring program employed here, we need not address this alternative argument.

11 . Although we referred to Section 9760 in our discussion in Conahan, we did not specifically address the issue of what constitutes custody for purposes of that section.

12 . We note that our discussion is limited to the specific program employed in this case. Whether other programs fall within the meaning of the term custody is a question that will need to be examined in each individual case.

The dissent, on the other hand, would hold that one is precluded from receiving credit for time spent in an electronic monitoring program in all cases simply because the restrictions of the program are placed upon a defendant pursuant to a bail arrangement. The dissent states, "[t]o equate such restrictions of release with 'custody' for purposes of computing a sentence of incarceration ignores the very nature of bail. Because appellant was released on bail, and therefore was not in custody,' I would hold that he is ineligible for credit for time spent in the home confinement/electronic monitoring program.” Dissenting Opinion at 504.

The dissent’s analysis misses the point. If a person is actually restrained while on bail, as in this case pursuant to the home confinement/electronic monitoring program, he or she is not "released” as a matter of law simply because the constraint is made pursuant to a bail arrangement. As noted above, the legislature contemplated that credit should be given for time spent in custody prior to trial. The legislature did not limit credit to instances of imprisonment and/or incarceration. Thus, as one can remain in custody, as in this case, pursuant to a bail arrangement, a case by case analysis of what constitutes custody for purposes of Section 9760 is necessary.

13 . The dissent addresses an issue that was never raised or argued by the Commonwealth, namely, whether the County Intermediate Punishment Act, 61 P.S. 1101-1114, which specifies the types of alternative sentencing options available to sentencing courts, is dispositive of what constitutes custody for purposes of Section 9760 of the Sentencing Act. Specifically, the dissent notes that Appellant "never had a right to, nor even a legitimate expectation of, a sentence consisting in whole or in part of home confinement/electronic monitoring for arson." Dissenting Opinion at 506. The dissent arrives at this conclusion by noting that Appellant was ineligible as a matter of law to receive a sentence of home confinement/electronic monitoring for his arson convictions as he was not eligible for a sentence of intermediate punishment, i.e., home confinement. Thus, the dissent would hold that because Appellant was not entitled to receive an ultimate sentence of home confinement pursuant to the Sentencing Code and the County Intermediate Punishment Act, he is precluded from receiving credit for time spent in such program as such program cannot be equated with custody for purposes of Section 9760.

As noted, this issue was never raised or argued by the Commonwealth, but is raised for the first time by the dissent. Moreover, relying on an issue that was never argued or briefed by the parties raises more questions than answers. For instance, were we to consider this issue and conclude as the dissent does that the County Intermediate Punishment Act controls how we interpret custody for purposes of Section 9760, it is likely that our analysis in Conahan would have to be overruled. In that case appellant Conahan "never had a right to, nor even a legitimate expectation of, a sentence consisting in whole or in part" of inpatient treatment. As Justice Cappy notes in footnote 1 of the opinion, the Legislature had only recently amended the County Intermediate Punishment Act so as to permit sentencing courts the option of imposing intermediate punishment of this nature. Conahan, 589 A.2d at 1110 n. 1. Thus, pursuant to the dissent’s analysis, since Conahan could never have received an ultimate sentence of rehabilitation, he should not have been allowed to receive credit pursuant to Section 9760 for the time he spent in a rehabilitation facility.

Also problematic is the fact that according to the dissent, as discussed in footnote 12, one could never receive credit for time spent in a home confinement/electronic monitoring program as a condition of bail. However, this appears to be internally inconsistent with the dissent’s analysis regarding application of the Intermediate Punishment Act in that the dissent’s analysis seems to contemplate that in some instances, where intermediate punishment may be imposed as one’s ultimate sentence, credit for purposes of custody pursuant to Section 9760 may be warranted.

Again, these points illustrate the wisdom of courts refraining from considering issues that were not argued and/or briefed by the parties.