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
Contents
For the Defense - Volume 1, Issue 3 - 2016 - 1
For the Defense - Volume 1, Issue 3 - 2016 - 2
For the Defense - Volume 1, Issue 3 - 2016 - Contents
For the Defense - Volume 1, Issue 3 - 2016 - 4
For the Defense - Volume 1, Issue 3 - 2016 - 5
For the Defense - Volume 1, Issue 3 - 2016 - 6
For the Defense - Volume 1, Issue 3 - 2016 - 7
For the Defense - Volume 1, Issue 3 - 2016 - 8
For the Defense - Volume 1, Issue 3 - 2016 - 9
For the Defense - Volume 1, Issue 3 - 2016 - 10
For the Defense - Volume 1, Issue 3 - 2016 - 11
For the Defense - Volume 1, Issue 3 - 2016 - 12
For the Defense - Volume 1, Issue 3 - 2016 - 13
For the Defense - Volume 1, Issue 3 - 2016 - 14
For the Defense - Volume 1, Issue 3 - 2016 - 15
For the Defense - Volume 1, Issue 3 - 2016 - 16
For the Defense - Volume 1, Issue 3 - 2016 - 17
For the Defense - Volume 1, Issue 3 - 2016 - 18
For the Defense - Volume 1, Issue 3 - 2016 - 19
For the Defense - Volume 1, Issue 3 - 2016 - 20
For the Defense - Volume 1, Issue 3 - 2016 - 21
For the Defense - Volume 1, Issue 3 - 2016 - 22
For the Defense - Volume 1, Issue 3 - 2016 - 23
For the Defense - Volume 1, Issue 3 - 2016 - 24
For the Defense - Volume 1, Issue 3 - 2016 - 25
For the Defense - Volume 1, Issue 3 - 2016 - 26
For the Defense - Volume 1, Issue 3 - 2016 - 27
For the Defense - Volume 1, Issue 3 - 2016 - 28
For the Defense - Volume 1, Issue 3 - 2016 - 29
For the Defense - Volume 1, Issue 3 - 2016 - 30
For the Defense - Volume 1, Issue 3 - 2016 - 31
For the Defense - Volume 1, Issue 3 - 2016 - 32
For the Defense - Volume 1, Issue 3 - 2016 - 33
For the Defense - Volume 1, Issue 3 - 2016 - 34
For the Defense - Volume 1, Issue 3 - 2016 - 35
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For the Defense - Volume 1, Issue 3 - 2016 - 37
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For the Defense - Volume 1, Issue 3 - 2016 - 40
For the Defense - Volume 1, Issue 3 - 2016 - 41
For the Defense - Volume 1, Issue 3 - 2016 - 42
For the Defense - Volume 1, Issue 3 - 2016 - 43
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For the Defense - Volume 1, Issue 3 - 2016 - 45
For the Defense - Volume 1, Issue 3 - 2016 - 46
For the Defense - Volume 1, Issue 3 - 2016 - 47
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For the Defense - Volume 1, Issue 3 - 2016 - 49
For the Defense - Volume 1, Issue 3 - 2016 - 50
For the Defense - Volume 1, Issue 3 - 2016 - 51
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For the Defense - Volume 1, Issue 3 - 2016 - 53
For the Defense - Volume 1, Issue 3 - 2016 - 54
For the Defense - Volume 1, Issue 3 - 2016 - 55
For the Defense - Volume 1, Issue 3 - 2016 - 56
For the Defense - Volume 1, Issue 3 - 2016 - 57
For the Defense - Volume 1, Issue 3 - 2016 - 58
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For the Defense - Volume 1, Issue 3 - 2016 - 60
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For the Defense - Volume 1, Issue 3 - 2016 - 65
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For the Defense - Volume 1, Issue 3 - 2016 - 67
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For the Defense - Volume 1, Issue 3 - 2016 - 78
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