The Herald, Sharon, Pa.

March 1, 2013

Court rejects DA's bid to show silent movie to jury

By Joe Pinchot
Herald Staff Writer

MERCER COUNTY — The Mercer County District Attorney’s Office has lost another round in its bid to use at trial silent video footage shot surreptitiously inside an alleged drug dealer’s home.

District Attorney Robert G. Kochems said he’s mulling whether to seek a third round of arguments - before the state Supreme Court.

Gerald Dunnavant, 63, of Farrell, was charged by Mercer County Drug Task Force with delivery and possession of crack cocaine and conspiracy for allegedly selling nearly an ounce of crack to an informant Sept. 29, 2010, in his home.

The task force was investigating Lindsey Lowe II, 32, of Farrell, and others and the informant talked to Lowe about a deal, police said.

Lowe had sold almost half an ounce of crack to an informant Sept. 23, 2010, but he told the informant he would send his “man” for the Sept. 29 deal, police said.

The sale ended up occurring in Dunnavant’s home at 335 Fruit Ave., Farrell. The informant was wearing a buttonhole camera that recorded images but not sound.

Mercer County Assistant Public Defender Charles F. Gilchrest, representing Dunnavant, asked to keep the video from trial, arguing the footage violated Dunnavant’s right to privacy.

Mercer County Common Pleas Court Judge John C. Reed agreed with the defense and said the videotaping was a civil rights violation. He ruled that it could not be used at trial.

The prosecution which called the video footage its “best evidence” of what happened inside Dunnavant’s house, appealed to Superior Court.

Prosecutors said the informant could testify about what he observed inside Dunnavant’s living room, and argued that the silent recording of the living room “does not constitute any greater invasion of privacy.”

In an opinion posted Wednesday, a three-judge panel of Superior Court said the video footage was a warrantless search of Dunnavant’s home, affirming Reed’s decision to bar it from trial.

Kochems said he is considering appealing.

“I am disappointed in the decision as it leaves a number of issues undecided,” Kochems said.

Among those issues is whether it matters that the home was being used as a business, and how the jury should be told why the footage stops at Dunnavant’s door.

Lowe pleaded guilty Feb. 11 to a charge of criminal use of a cellular telephone, and is sentencing is pending. Prosecutors agreed not to purse charges of drug possession and possession with intent to deliver from the drug deals.