For the Defense - Volume 1, Issue 3 - 2016 - 17

Ethics CORNER wasn't set up, both Barnetts would receive harsh sentences. Like a good client, Barnett advised Benyo of this offer. Benyo was hesitant to believe that Martocci, or any ADA would be involved, and stated that the evidence was insufficient to use. Sometime afterwards, Barnett recorded a conversation with Steele, without Steele's knowledge, in which Steele again repeated her offer and directly implicated Martocci. After recording the conversation, Barnett texted a message to Benyo stating "got her." The plot thickened: In Barnett's drug case, Benyo filed a Motion for an Evidentiary Hearing and submitted the recording, along with several related text messages between Barnett and Steele, into evidence. The Motion sought to determine whether the District Attorney's Office, through the actions of ADA Frank Martocci, had interfered with Barnett's Sixth Amendment right to counsel. Judge Tesla, of the Court of Common Pleas of Beaver County, denied the motion holding that the alleged improper conduct was a matter for the Disciplinary Board, and had no bearing in Barnett's case. In a "stranger than fiction" plot reversal, the Motion for the Evidentiary Hearing became the basis for the charges against Benyo. In response to the Motion For the Evidentiary Hearing, the Beaver County District Attorney's Office referred Benyo to the Pennsylvania Attorney General for prosecution for violating the Wiretap Act in using and disseminating the transcript of the recording made by Barnett to the Pennsylvania State Police and Judge Tesla. Benyo was then charged by the Attorney General with (1) disclosing the contents of a wire, electronic or oral communication in violation of 18 Pa.C.S. §5703 (2); and (2) intentionally using or endeavoring to use the contents of a wire, electronic or oral communication knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of 18 Pa.C.S. §5703(3). The charges focused on the disclosure of the conversation illegally recorded by Barnes. Benyo represented himself. A preliminary hearing was held, after which all charges were bound over for trial. Benyo submitted a Petition for Habeas Corpus and an Amended Petition for Habeas Corpus. The petitions asserted two primary legal defenses: first, that, as applied, the statute violated Benyo's First Amendment rights, relying on Bartnicki v. Vopper, 532 U.S. 514 (2001); and second, that the interception of the information was not illegal because a cell phone was used to record the conversation, and a cell phone is excluded from the statutory definition of an electronic device, relying on Commonwealth v. Spence, 625 Pa. 84, 91 A.3d 44 (2014). In Bartnicki v. Vopper, the Supreme Court held that the First Amendment protects an individual from prosecution for using or sharing an intercepted communication as long as the individual obtained the intercepted communication Vol. 1, Issue 3 | For The Defense 17

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016