I'm going to have to back up a bit in my assessment of Pennsylvania being an all party state. Due to further research and a recent opinion IN THE SUPREME COURT OF PENNSYLVANIAWESTERN DISTRICTCOMMONWEALTH OF PENNSYLVANIA,Appelleev.KIRK REKASIE,Appellant: which can be found
here,
Pennsylvania case law seems to be changing the legal landscape in defining conversations from one phone to another as NOT concurrent with an expectation of privacy.
The High Court of Pennsylvania, in fact, specifically said in Rekasie, that based on Commonwealth v. Easton, 694 N.E.2d 1264, 1267-68 (Mass. 1998) one member of a telephone conversation cannot expect privacy in that conversation when they have no knowledge of the conditions inherent in the other end (i.e., extensions, speaker phone or other listening devices), even if the phone conversation originates in a private residence.
For our specific situation here, the conditions are a bit more comples.
In the context of a verbal communication, in Brion, our court held that Article I,Section 8 prevents police from sending a confidential informant into the home of an individual to electronically record his conversation by use of a body wire absent a priordetermination of probable cause by a neutral judicial authority. In finding a constitutionally-recognized expectation of privacy, our court’s primary focus was on the zone of privacy inthe home and the face-to-face conversations taking place therein.
The majority did not embrace an analysis based on the disclosure of information, which, as described above,and by the dissenters in Brion, would have resulted in no recognized expectation of privacy.Thus, contrary to the analysis utilized in White, our court, while still applying the Katz privacy expectation construct, found a legitimate expectation of privacy in face-to-faceconversations conducted within one’s home
From that reading, and although the party affecting the recording is not a member or agent of the police, the expectation of privacy in the home would see to outweigh the right to record.
However, there are exceptions which the Supreme Court of Pennsylvania have articulated in both telephone and oral communications within both the electronic and oral communications statutes.
Another exception to the wiretapping statutes is when there is not a reasonable expectation of privacy. The expectation of privacy will be lost when conversations are so loud that they can be heard through the common wall of two homes. In Commonwealth v. Louden, 536 Pa. 180, 638 A.2d. 953 (1994), the Supreme Court of Pennsylvania found that there was no violation of its state wiretapping statute when a sister-in-law recorded the obscene conversations, threats and arguments along with screams of the children that were emanating from her brother's home which was right next door to her own home. The two homes had a common wall. The conversations were loud enough to be heard through the common wall and, therefore, there was no expectation of privacy.
so, we come to the conclusion of this little analysis, which is, as the late Eric M. Noonan, Assistant Executive Deputy Attorney General stated:
The general rule in Pennsylvania is that electronic surveillance is illegal. For the purposes of this article, "electronic surveillance" shall include the interception (to include recording) of electronic (digital pagers, computers/e-mail, fax machines), oral (face-to-face conversations where there is an expectation of privacy/non-interruption) and wire (telephone conversations) communications. This general rule, and certain limited exceptions thereto, appear in Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. § 5701, et seq.
And THAT is why your friend's attorney suggested keeping note instead of recording the situation.
