DocketNumber： 442
Judges： Rowley, Cavanaugh, Beck, Tamilia, Kelly, Johnson, Hudock, Elliott, Saylor
Filed Date： 12/6/1995
Status： Precedential
Modified Date： 10/19/2024
This is an appeal from the judgments of sentence imposed following a jury trial in which Appellant was convicted of first degree murder, robbery, theft by unlawful taking or disposition, and receiving stolen property.
Appellant was charged with the murder of Piper Newland, a correction officer for the Fayette County Prison. In the early morning hours of January 5, 1992 Ms. Newland was found lying face down on North Gallatin Avenue in Uniontown, Pennsylvania. The victim died at 2:42 a.m. from extensive brain hemorrhage caused by two bullets fired at close range.
Appellant’s sister, Wendy Sue Kulenovic, testified that on January 4, 1992, between 6:00 and 8:00 p.m., her husband, Dwayne Kulenovic, and Appellant left her apartment located at 20/é Millview Street in Uniontown, which is located a few blocks from where the victim was found. At approximately 1:50 a.m., Appellant and Dwayne Kulenovic returned to the apartment where they stayed for a few minutes. Appellant returned between 2:15 and 2:30 a.m., awakened Wendy and confessed that he shot the black guard from the jail. Appellant was holding a cosmetic bag in his hand when he made this confession.
Paul Kuba, a friend of Appellant’s, received a tip that Appellant was involved with the murder of Ms. Newland. Kuba voluntarily went to the police and agreed to cooperate with the Fayette County District Attorney. Kuba agreed to wear an electronic transmitter while questioning Appellant about his involvement in Ms. Newland’s murder. On January 27, 1992 and February 6, 1992, Kuba wore the transmitter and entered Appellant’s sister’s apartment. Kuba admitted that he brought beer and whiskey for Appellant on these dates to “break the ice.” In a tape recorded conversation between Kuba, Appellant’s sister, her husband and Appellant, Appellant confessed that he shot the victim for fifty dollars. Kuba relayed the details of this confession to the jury.
The jury found Appellant guilty of first degree murder, robbery and related theft offenses. The trial court granted Appellant’s demurrer to criminal conspiracy and hindering apprehension or prosecution.
In his first three questions presented, Appellant alleges that the trial court erred when it denied his motion to suppress the tape recorded conversations between himself and Paul Kuba obtained through the use of electronic surveillance.
Our standard of review when reviewing a challenge to the trial court’s denial of a motion to suppress is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Morris, 537 Pa. 417, 420-22, 644 A.2d 721, 723 (1994), cert. den., — U.S. -, 115 S.Ct. 610, 130 L.Ed.2d 519 (1995). If the trial court denied the motion to suppress, we must consider only the Commonwealth’s evidence and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Mayhue, 536 Pa. 271, 299-300, 639 A.2d 421, 435 (1994). If the trial court’s factual findings are supported by the record, we may only reverse if the legal conclusions drawn from those factual findings are erroneous. Id.
Appellant does not dispute the trial court’s factual findings. Rather, he argues that this Court must reverse the trial court’s erroneous legal conclusion that the tape recorded conversations obtained via electronic surveillance were properly obtained and thus admissible. Appellant contends that this Court must follow our Supreme Court’s decision in Commonwealth v. Brian, supra, which held that “Article I, [Section] 8 of the Pennsylvania Constitution precludes the police from sending a confidential informer into the home of an individual to electronically record his conversations and transmit them back to the police.” Brion, 652 A.2d at 287. Appellant claims
In Commonwealth v. Brion, supra, our Supreme Court addressed the issue of whether the police may send a confidential informer into an individual’s home to electronically record his conversations and transmit them back to the police without violating Article I, Section 8 of the Pennsylvania Constitution. Brion argued that to do so the police must obtain judicial authorization. The police relied on section 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. sections 5701-5728, which authorizes investigative or law enforcement officers or persons acting at the request of law enforcement personnel to “intercept a wire, electronic or oral communication involving suspected criminal activities” if the officer or person consents to wear a body wire. 18 Pa.C.S.A. § 5704(2)(ii). Brion argued that this procedure violated Article I, Section 8 of the Pennsylvania Constitution which “protects the right of the people to be secure from unreasonable searches and seizures[.]” Commonwealth v. Schaeffer, 370 Pa.Super. 179, 182, 536 A.2d 354, 355 (1987), aff'd., 539 Pa. 272, 652 A.2d 294 (1994). Thus, Brion argued that his incriminating statements were illegally recorded and should be suppressed.
The trial court denied Brion’s motion to suppress and the tape recorded conversation was admitted at trial. Brion was convicted of possession and delivery of marijuana. The trial court reversed its suppression ruling when presented with Brion’s post-verdict motions and granted a new trial based on this Court’s en banc decision in Commonwealth v. Schaeffer, supra.
On appeal, a panel of this Court reversed the trial court and held that the Supreme Court’s decision in Commonwealth v.
Unlike ... Blystone ..., the instant case involves conversations taking place in the sanctity of one’s home. If nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home. As then-Justice Roberts stated in Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978): “Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” (Citations omitted).
Brion, 652 A.2d at 289 (footnote omitted).
Justice Zappala reiterated: “An individual has a constitutionally protected right to be secure in his home.” Id. Based on this well-established principle, the majority concluded:
*283 With respect to oral communications occurring within one’s home, interception pursuant to 18 Pa.C.S. [Section] 5704(2)(ii) can only be deemed constitutional under Article I, Section 8 if there has been a prior determination of probable cause by a neutral, judicial authority. In light of the General Assembly’s preference expressed elsewhere in the Act that probable cause determinations regarding other electronic surveillance be made by a judge of the Superior Court, 18 Pa.C.S. [Sections] 5708-5723, for consistency we believe that such procedures should be applied in fulfilling this probable cause/warrant requirement.
Id. 652 A.2d at 289.
Our Supreme Court did not address whether its decision in Brion should be retroactively applied. Appellant argues that we must apply the new law announced in Brion retroactively to the present appeal.
In the present case, when the trial court ruled on Appellant’s post-verdict motions, the Supreme Court’s decision in Brion had not been decided. The controlling precedent at the time was this Court’s decision in Commonwealth v. Schaeffer, supra.
Secondly, the trial court found that the present case is not controlled by our decision in Schaeffer (and now Brion) because Appellant was not entitled to the protections of the Fourth Amendment or Article I, Section 8, since he was not in his own home when his conversations were intercepted. The trial court noted that Appellant did not permanently reside in his sister’s apartment but was merely a “transient” occasional overnight guest. Therefore, the trial court reasoned that Appellant had no legitimate expectation of privacy in his sister’s apartment where he “sometimes” spent the night.
Our Supreme Court has recently explained the scope of protection guaranteed by the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution' in Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993). The Court explained:
The Fourth Amendment protects: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV; Pa. Const, art. 1, § 8. The protection of the Fourth Amendment [and Article I, Section 8 of the Pennsylvania Constitution] does not depend on a property right in the invaded place but does depend on whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.
An expectation of privacy is present when the individual, by his conduct, “exhibits an actual (subjective) expectation of privacy” and that the subjective expectation “is one that society is prepared to recognize as ‘reasonable.’ ” The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances. Additionally, a*285 determination of whether an expectation of privacy is legitimate or reasonable entails a balancing of interests.
Id. 620 A.2d at 1118 (citations omitted).
Applying these principles to the facts of the present case, we must determine whether Appellant had a “legitimate expectation of privacy” in his sister’s apartment and whether that expectation is “one that society is prepared to recognize as ‘reasonable.’ ” Commonwealth v. Oglialoro, 525 Pa. 250, 256, 579 A.2d 1288, 1290-91 (1990) (“The controlling consideration is whether the individual contesting the search and seizure entertains a legitimate expectation of privacy in the premises or area searched.”). To make these determinations we must examine the totality of the circumstances regarding Appellant’s presence in his sister’s apartment. Commonwealth v. Peterson, 408 Pa.Super. 22, 26-27, 596 A.2d 172, 174 (1991), aff'd., 535 Pa. 492, 636 A.2d 615 (1993).
Appellant’s sister, Wendy, testified at trial that Appellant did not permanently reside with her and her husband. Instead, she explained that Appellant and his girlfriend “sometimes” stayed with them. Wendy stated that she asked Appellant to leave her apartment on the day following the murder because she did not want his girlfriend, who had run away from home, to stay with him. Appellant left his sister’s apartment on the day following the murder but he returned and spent the night on several occasions after the murder. Furthermore, Appellant’s girlfriend, Della Robertson, testified that she and Appellant spent the night at the Kulenovics’ apartment for four or five days prior to January 4, 1992.
Despite the sparse evidence regarding Appellant’s living arrangements, we find enough to conclude he had a constitutionally protected expectation of privacy in the premises searched. The trial court correctly found that Appellant did not maintain a permanent residence and was an occasional guest at his sister’s apartment. Appellant apparently travelled between his sister’s and brother’s residences. However, Appellant’s status as a transient overnight guest does not automatically defeat his expectation of privacy. Appellant
We find that Appellant was entitled to the constitutional protection against unreasonable searches and seizures while he temporarily resided at his sister’s apartment. Appellant was legitimately at his sister’s apartment when the informer entered wearing a body wire. Wendy did not deny that Appellant had her permission to stay with her and her husband. Even after Wendy learned that Appellant killed Ms. Newland, she permitted him to spend the night at her apartment. Unlike the trial court, we find the facts in Commonwealth v. Ferretti, 395 Pa.Super. 629, 577 A.2d 1375 (1990), alloc. den., 527 Pa. 597, 589 A.2d 688 (1991), distinguishable from the present case. In Ferretti, this Court denied the appellant standing to object to the search of an apartment where the appellant hid after he terrorized and assaulted his ex-girlfriend. Id. 577 A.2d at 1381. The appellant arrived at his friend’s apartment at 5:00 p.m. and stayed there until the police arrived at approximately 11:00 p.m. that same night. After obtaining a search warrant, the police entered the apartment, handcuffed and arrested the appellant and seized a sawed-off shotgun from underneath the couch. The appellant filed a motion to suppress the gun on the grounds that the search warrant was defective. The trial court denied the motion to suppress and the appellant was found guilty of burglary, simple assault and recklessly endangering his ex-girlfriend.
On appeal, this Court affirmed the trial court’s ruling on the grounds that the appellant lacked standing to object to the
Unlike the appellant in Ferretti, the evidence in the present case clearly shows that Appellant was temporarily residing at his sister’s apartment where his conversations were recorded. Appellant was more than a guest visiting his sister for one evening. He had been staying there for several days in a row prior to the murder and he continued to occasionally spend the night prior to his arrest. Thus, Appellant has standing to assert a Fourth Amendment and Article 1, Section 8 claim.
Based on this conclusion, we find that the trial court erred when it concluded that the facts of Brion and Schaeffer are distinguishable from the instant case. In all three cases, the individual-appellant subject to the electronic monitoring had a legitimate expectation of privacy in the premises where the police sent an informer to intercept an oral communication regarding suspected criminal activity.
Alternatively, the trial court concluded that the law announced in the June 1,1993 order and opinion of our Supreme Court in Schaeffer should not be retroactively applied. The trial court did not have to address the retroactive application of our Supreme Court’s per curiam opinion rendered June 1, 1993 since it had been withdrawn on June 25, 1993. However, while Appellant’s appeal was pending before this Court, our Supreme Court rendered a final decision in Brion and Schaeffer on December 30, 1994. Thus, we are faced with the decision whether the new rule of law announced in Brion and Schaeffer should be retroactively applied. After balancing the various criteria which influence a decision regarding retroactive application of a new rule of law, we find that the relevant factors weigh in favor of prospective application only.
The decision whether to apply a new rule of law retroactively or prospectively is a matter of judicial discretion
The common law in Pennsylvania in both the civil and criminal context generally required the court to “apply the law in effect at the time of the appellate decision.” Blackwell, 589 A.2d at 1099; Commonwealth v. Cabeza, 503 Pa. 228, 232-34, 469 A.2d 146, 148 (1983). This principle favoring retroactive application furthers the goal of “evenhanded decision making” by guaranteeing similarly situated individuals on direct appeal the same- rights. Commonwealth v. Brown, 494 Pa. 380, 385-87, 431 A.2d 905, 908 (1981). Accordingly, “a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occur before the judgment becomes final.” Id. 431 A.2d at 906-07. “[U]n-less the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.” Cabeza, 469 A.2d at 148.
Although these precedents generally favored the retroactive . application of a new principle of law, Pennsylvania courts have also followed United States Supreme Court precedent and
“The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice.” (Footnote omitted).
Miller, 417 A.2d at 136 (citing Stovall v. Denno, 388 U.S. at 297, 87 S.Ct. at 1970). Our Supreme Court continued:
The purpose to be served by the new rule should receive primary consideration. “Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect.” Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion). Conversely, the same standard “strongly supports prospectivity for a decision amplifying the evi*290 dentiary exclusionary rule,” Desist [v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969) (plurality opinion) ], the primary purpose of which is to deter unlawful police conduct.
Miller, 417 A.2d at 136 (footnote omitted). In other words, “[w]here the purpose of the new standard affects the truth finding function, thereby raising serious questions about the accuracy of prior guilty verdicts, the new rule has been given complete retroactive effect.” Commonwealth v. McCormick, 519 A.2d at 447 (citing Williams v. United States, 401 U.S. at 653, 91 S.Ct. at 1152-53).
In United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the Supreme Court of the United States announced a modified approach to the common law rule regarding retroactive application of a new rule of law. The Court explained that where a court announces a new rule of criminal procedure which represents “a clear break with the past,” the new rule should be prospectively applied. Id. at 549, 102 S.Ct. at 2587. The Pennsylvania Supreme Court applied the rationale of Johnson in the case of Commonwealth v. Geschwendt, supra. In Geschwendt, the Court applied the decision in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), regarding the jury instruction in insanity defense cases, prospectively because the new rule was “a clear break with the past.” Geschwendt, 454 A.2d at 997. See also Commonwealth v. Gray, 509 Pa. 476, 486-88, 503 A.2d 921, 927 (1985) (decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which was adopted by the Pennsylvania Supreme Court was retroactively applied because it did not create any new rights in the defendant).
In the most recent case addressing retroactivity of a new rule of criminal law, Commonwealth v. Parker, supra, this Court considered whether our Supreme Court’s decision in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), would be retroactively applied. Lively refined the evidence law regarding the admissibility of prior inconsistent statements. The Court noted the common law principle favoring retroactive application, yet recognized that “a sweeping rule of
[Prospective application of judicial decisions is warranted only when all of the following conditions are met:
(1) the decision establishes a new principle of law by either overruling dear past precedent or involves an issue of first impression, the resolution of which was not clearly foreshadowed, (2) the merits of purely prospective application of the new decision outweigh the disadvantages, based on the history of the rule in question, its purpose and effect, and whether a retrospective application would retard operation of the new law, and (3) the inequity of a retroactive application of the new rule outweighs the benefit of such an application.
Batoff v. Commonwealth, Bureau of Professional and Occupational Affairs, 158 Pa.Commw. 267, 271, 631 A.2d 781, 783 (1993), citing Chevron Oil Co. v. Huson, [404 U.S. 97, 106-107, 92 S.Ct. 349, 355-356, 30 L.Ed.2d 296 (1971)].
Parker, 644 A.2d at 1250.
Applying these principles to the facts of the present case, we find that a prospective application of Brion is warranted. We arrive at this conclusion after carefully examining and balancing relevant criteria including the purpose of the new rule, the reliance by law enforcement personnel on the prior law, the impact on the administration of justice, and the extent the decision was foreshadowed by prior precedent.
Our Supreme Court’s rulings in Brion and Schaeffer were based on the fundamental principle that individuals are guaranteed by Article I, Section 8 of the Pennsylvania Constitution freedom from “unreasonable” governmental invasions of privacy in their own home. The purpose of requiring a “prior determination of probable cause by a neutral, judicial authority,” before the police may send an informant wearing a body
The result in Brion expanded the scope of the exclusionary rule; it did not enhance or assure the reliability of the appellant’s trial or guilty verdict. The exclusionary rule, which was first applied to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), protects one’s constitutional right against unreasonable searches and seizures by “depriving law enforcement officials of the benefits derived from using unlawfully obtained information.” Commonwealth v. Brown, 470 Pa. 274, 282, 368 A.2d 626, 630 (1976). Applying Brion retroactively to the present case would not further this deterrent purpose since the police conduct, which is now declared to be unconstitutional, was not unconstitutional when it occurred. When the police intercepted Appellant’s incriminating conversation with Paul Kuba, they were not obligated to appear before this Court and present probable cause to use a body wire. The police and investigative officers justifiably relied on the precise language
The third factor in the Stovall test, the administrative burden associated with retroactively applying Brion, also supports our decision to deny Appellant the benefit of the new rule. A retroactive application of Brion would require new trials in all cases where the Commonwealth introduced the defendant’s incriminating statements which were intercepted without a probable cause determination by this Court. We note the administrative hurdles caused by a retroactive application of a rule of criminal procedure:
[Ordering new trials would ... involve[ ] not only expense and effort but the inevitable risk of unavailable witnesses and faulty memories; the authorities might not have had the evidence they once had and might have been foreclosed from obtaining other evidence they might have secured had they known the evidence they were using was constitutionally suspect.
Williams, 401 U.S. at 654, 91 S.Ct. at 1153. These same considerations apply in the instant case and favor a prospective application.
Finally, we recognize that our Supreme Court decided an issue of first impression in Brion and established a “clear break” with established statutory law. Although our Supreme Court did not specifically overrule prior precedent,
Moreover, the decision in Brion was not clearly foreshadowed. After this Court’s en bane decision in Schaeffer, our Supreme Court rendered its decision in Blystone. Blystone specifically rejected the appellant’s argument that section 5704(2)(ii) violated Article I, Section 8 of the Pennsylvania Constitution. Blystone, 549 A.2d at 86-87. In cases decided subsequent to Blystone, this Court interpreted Blystone as overruling the en banc decision in Schaeffer. This Court specifically stated in Brion:
While not expressly overruling Schaeffer, the broad-sweeping language of Blystone clearly overrules our prior decision. Our Supreme Court clearly did not except from its holding the factual situation where the warrantless participant monitoring occurred in the defendant’s home. Therefore we must conclude that Blystone overrules our decision in Schaeffer.
Brion, 552 A.2d at 1108.
Our Supreme Court interpreted Blystone in the same manner when it rendered a per curiam order remanding Commonwealth v. Barone, 375 Pa.Super. 613, 541 A.2d 25 (1988), in Commonwealth v. Barone, 520 Pa. 118, 552 A.2d 1048 (1989). The Court specifically stated:
The petition for allowance of appeal is granted, the order of the Superior Court is reversed pursuant to Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), and the case is remanded to Superior Court for further proceedings ____
Barone, 552 A.2d at 1048.
Thus, our Supreme Court’s own interpretation was that Blystone overruled our en banc decision in Schaeffer, thus making it difficult to foreshadow the result reached in Brion.
Appellant raises an additional argument as to why the tape recorded conversations between him and the informer should have been suppressed by the trial court. He alleges that the Commonwealth did not adhere to the dictates of section 5704(2)(ii) of the Wiretap Act. The relevant section of the Act provides in pertinent part:
It shall not be unlawful under this chapter for:
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities where:
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception shall be made unless the ... district attorney ... of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception[.]
18 Pa.C.S.A. § 5704(2)(ii).
Appellant claims that the Commonwealth failed to prove that the interception of his conversations was necessary to discover “suspected criminal activities.” Appellant contends that the Commonwealth must suspect current or future criminal activity, not merely past criminal activity before obtaining the district attorney’s authorization of a wiretap.
Temporal restrictions, such as “ongoing,” “current,” and “contemporaneous,” are not suggested in the language of [Section] 5704(2)(ii). We have not adopted this limitation. Instead, we require that the Commonwealth must have “reasonable grounds” for the monitoring.
Id. 622 A.2d at 333. See also Commonwealth v. Phillips, 373 Pa.Super. 193, 200-02, 540 A.2d 933, 937 (1988) (Section 5704(2)(ii) incorporates the reasonable grounds standard); Commonwealth v. Hassine, 340 Pa.Super. 318, 351-53, 490 A.2d 438, 456 (1985) (court rejects the appellant’s narrow interpretation of “suspected criminal activities”).
In the present case the police had “reasonable grounds” to suspect that Appellant committed the murder and was continually trying to conceal such crime. We find no violation of the Wiretap Act by the Commonwealth and accordingly reject Appellant’s claim that the tape recordings should have been suppressed on this ground.
In his third argument challenging the suppression ruling, Appellant claims that his due process rights were violated as a result of the police conduct during the electronic surveillance. Appellant contends that the police directly furnished him, a minor, with alcohol to induce him to make incriminating statements.
Appellant bases his claim on the principle of law that “police involvement in criminal activity can be so outrageous that a prosecution will be barred on due process grounds.” Commonwealth v. Lindenmuth, 381 Pa.Super. 398, 402-04, 554 A.2d 62, 64 (1989), alloc. den., 522 Pa. 624, 564 A.2d 916 (1989) (citing United States v. Twigg, 588 F.2d 373 (3rd Cir.1978) and Commonwealth v. Mathews, 347 Pa.Super. 320,
Finally, Appellant raises two issues with regard to the trial court’s evidentiary rulings. First he claims that he should have been permitted to call Robert Phillips to testify in his defense. In his offer of proof Appellant claimed that Phillips would have testified that Dwayne Kulenovie offered to sell him a revolver on January 7, 1992, two days following the murder of Ms. Newland, and that the gun Dwayne offered to sell him was not the same gun as Commonwealth exhibit number 6. Appellant argued that this evidence was relevant to show that Dwayne possessed another gun on the night of the murder. The trial court rejected Appellant’s proffer concluding that the fact that Dwayne might have possessed another gun on the night of the murder was irrelevant.
The trial court has the discretion to determine whether evidence is relevant and properly admitted. Commonwealth v. Owens, 437 Pa.Super. 64, 75-77, 649 A.2d 129, 135 (1994). Absent an abuse of that discretion, this Court will not reverse a trial court’s decision that evidence is not relevant and thus inadmissible. Id.
We agree with the trial court that Phillips’ proffered testimony was irrelevant to Appellant’s defense. We may not consider the additional reasons why Phillips’ testimony was relevant which Appellant included in Ms appellate brief for the first time. “The party specifying the purpose for which the testimony is admissible cannot argue on appeal that the evidence was admissible for a purpose other than that offered at trial.” Commonwealth v. Newman, 382 Pa.Super.
Appellant also claims that the trial court erred by permitting the Commonwealth witnesses, Earl Mayfield and Judith Sparks, to testify. Appellant complains that neither witness could remember the exact date when Appellant and Dwayne spent the night at their house and thus should not have been permitted to testify.
In essence, Appellant challenges the weight, and not the admissibility of Mayfield and Spark’s testimony. The trier of fact, not the court, must determine the credibility of the witnesses and the weight to be accorded to their testimony. Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). The jury was free to believe all, part, or none of the evidence presented by these two witnesses. Id. Thus, we reject Appellant’s final claim.
Judgments of sentence affirmed.
. 18 Pa.C.S.A. §§ 2502(a), -3701(a)(l)(i), 3921(a) and 3925(a), respectively.
. 18 Pa.C:S.A. §§ 903 and 5105(a)(3).
. In Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc), this Court held that the police must obtain a search warrant based on probable cause before sending a confidential informer into a person’s home to electronically record one’s conversation and transmit it back to police. Id. 536 A.2d at 355.
. In Commonwealth v. Blystone, supra, our Supreme Court rejected the appellant's argument that a warrantless, consensual monitoring conducted in compliance with section 5704(2)(ii) of the Wiretap Act violated Article I, Section 8 of the Pennsylvania Constitution. Blystone, 549 A.2d at 88. The Supreme Court found the rationale in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), reh. denied, 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 (1971) (plurality opinion), persuasive where the United States Supreme Court reasoned:
If the conduct and revelations made of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
Id. at 751, 91 S.Ct. at 1126.
In Blystone, our Supreme Court did not address the issue as to where the defendant’s conversation was intercepted and recorded. Thus, it was unclear if the Supreme Court would have ruled differently if the interception occurred in the defendant's home.
. Appellant argued in his brief in support of his post-verdict motions that a per curiam order and opinion issued by our Supreme Court on June 1, 1993 were the controlling law and should be retroactively applied to his case. In that June 1, 1993 order and opinion, our Supreme Court, affirmed by an equally divided court, this Court’s en banc decision in Schaeffer. Neither Appellant or the trial court recognized that our Supreme Court granted reargument in Schaeffer on June 25, 1993 and the June 1, 1993 order and opinion were withdrawn.
. See Commonwealth v. McCormick, 359 Pa.Super. 461, 470-476, 519 A.2d 442, 447-449 (1986), for a chronological review of the various approaches followed by the Pennsylvania courts when deciding whether to apply a new rule of law retroactively.
. See infra, n. 4.
. As an alternative basis to deny Appellant's claim regarding the admissibility of Sparks' testimony, Appellant did not object to her testimony at trial and thus waived any objection. Commonwealth v. Butts, 495 Pa. 528, 532, 434 A.2d 1216, 1219 (1981) (party must make specific timely objection to proffered testimony at trial to preserve issue for appellate review).