concurring and dissenting:
I agree that appellee’s conversation of January 9, 1983, recorded by Trooper C.B. Lewis, should not have been suppressed and join in the portion of the majority opinion which discusses that matter.
I disagree that McCullough’s consent to the wiretapping operation was involuntary. My disagreement is not with the majority’s statement of the law, but in applying the law to the facts set forth in the record. I believe McCullough’s consent was not only voluntary, but eager, and would hold that the intercepted conversations should be admissible against appellant at his trial. I therefore respectfully dissent.
As the majority states, the wiretap was voluntary if McCullough consented consciously, freely and independently and not as a result of a coercive overbearing of his will. United States v. Kelly, 708 F.2d 121, 125 (1983). Consent to a wiretap is not voluntary if it is coerced, either by explicit or implicit means or by implied threat or covert force. Id., citing Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854, 863 (1973). A consent otherwise voluntary is not vitiated due to self-seeking motives or expectations of personal benefit. Id., citing United States v. Moskow, 588 F.2d 882, 891 (3d Cir.1978); United States v. Osser, 483 F.2d 727, 730 (3d Cir.1973). Voluntariness is a question of fact to be determined from the totality of the circumstances. Id., citing Schneckloth, supra, 412 U.S. at 227, 93 S.Ct. at 2047, 36 L.Ed.2d at 863.
Applying the foregoing law, the majority opinion concludes that McCullough’s will was overborne by the thirty-page confession he had given prior to the request for *266wiretapping. It assumes that McCullough’s agreement to cooperate “did not contemplate the use of electronic surveillance,” and that it was “an unfair bargain.”
Based on extensive review of the record, I disagree with the conclusion and the assumptions. In October of 1982, the Pennsylvania State Police filed a warrant against McCullough charging him with receiving stolen property and removing or falsifying vehicle identification numbers. Shortly thereafter, McCullough’s attorney, Dennis Williams, contacted the District Attorney’s office and initiated the negotiations that resulted in all charges against McCullough being dismissed for lack of evidence in return for his cooperating with the authorities. When McCullough made the agreement, he certainly did not think it was unfair. He was very happy to trade his cooperation for dismissal of the charges against him. Exactly what the agreement contemplated is admittedly vague because it explicitly required only McCullough’s continued cooperation, but it is an overstatement to say it “did not contemplate the use of electronic surveillance.” A few days after the agreement when the police asked McCullough to begin wiretapping, he did not respond by saying the request was beyond the scope of his agreement.
On the contrary, he thought at the time it was exactly the sort of cooperation the agreement included. This is substantiated by numerous exchanges which occurred during the lengthy examination and cross examination of this witness.
For instance, on direct examination, McCullough was asked about signing the consent forms and answered, “I did it voluntarily.” Appendix at 493. He was then asked by Assistant District Attorney Scutella:
Q Now when you say you did this voluntarily, these— when you had these communications intercepted voluntarily, can you explain that to the Court what you mean by that?
A It’s something that I wanted to do. I had no charges hanging over my head at that time.
*267Q You say you wanted to do it?
A Yeah.
Q Would you rather not have done it?
A It’s something that I wanted to do.
Q I understand that it’s something that you wanted to do, but would you rather not have done it?
A Yes, I would rather have not done it.
Q By you saying that you would have rather not done it, how did you come to the fact that you did do it then?
A I did it because it’s something that I wanted to do. Not wanting to do it is, to me, is just like not wanting to go to work. You got to go.
Q All right, but there had to come a time in your mind when you made a decision either to do it or not to do it; is that correct?
A I made a decision along with in the presence of [my attorney] Dennis Williams that I wanted to do this.
Id. at 493-95. The colloquy illustrates the conflicting language McCullough used to describe his state of mind. He “wanted to do it,” even though he would “rather not have done it,” like not wanting to go to work but recognizing that he had to go. McCullough’s final answer is significant in that his attorney was never present when he signed a consent form, but had been present when he made the original agreement to cooperate. Id. at 529.
Subsequently, during cross-examination by Mr. Ambrose, appellee’s counsel, it was suggested that McCullough had to do things the police told him to do even if he didn’t want to do them, and McCullough answered, “I did what I felt was right.” Id. at 501. Mr. Ambrose continued:
Q The question, sir, was this: you testified that after the arrangement was made, you would have to do things that the state police told you to do, correct?
A That’s correct.
*268Q And you would have to do some of these things whether you wanted to do them or not, true?
A That’s true.
Q Okay.
A But I wanted to do those things.
Q You wanted to do those things. That’s what you’re saying today?
A There’s things I had to do. I’d get up at four o’clock in the morning to go meet someone. It’s something I didn’t want to do, but I wanted to meet that person. There is a difference.
Q Well, sir, in order to get the benefits that were given to you, you’ve agreed you had to do certain things, and some of the things that you had to do you might not want to have done but they were done under the direction of Trooper Anderson; is that correct?
A If you could name those things, I could probably agree.
Q I’m going to name — I’m going to be very specific. One of the things after you cut your deal, one of the things you had to do was agree to allow telephone conversations between yourself and Mr. Manta and Mr. Clark and Mr. Wintrode to be recorded; isn’t that true?
A That’s something I wanted to do, yes.
Id. at 501-02. Later in his cross-examination, Mr. Ambrose asked:
Q Right, and you kind of got to the point — at least by the beginning of December — you really didn’t want to sign anymore of these forms; isn’t that true?
A No. The investigation got quite involved where it was quite pertinent that I keep signing these.
Q You are saying you wanted to do this?
A Yes.
Id. at 530. Later, Mr. Ambrose asked:
Q So, you feared repercussions from the state police, didn’t you, that if there wasn’t enough performance *269on your part, that they would come back on you, true?
A I just did what I agreed to do.
Id. at 535.
Similar statements are contained throughout the extensive testimony of McCullough at appellant’s pre-trial suppression hearing. On cross-examination he said he “felt it was the right thing to do” when approached about electronic surveillance. Id. at 537-38. He testified that during the period covered by the consent forms, the police were not holding anything over his head. Id. at 540.
In explaining an earlier statement that the wiretaps were against his “best wishes,” McCullough said, “It wouldn’t be anybody’s best wishes to have their telephone tapped.” Id. at 547-48. He further explained, “At the particular time that they were recorded, it was my best wishes that they be recorded so I could get out of the situation that I am \sic ] in____ I weighed out all the possibilities, and it was to my best interests that’s what I should do.” Id. at 618.
It was in the midst of McCullough’s extensive testimony that the leading questions quoted in the majority opinion were asked and answered. The transcript simply does not convey to me the impression that McCullough was subject to coercive tactics which had the effect of overbearing his will. McCullough testified that it was only a “possibility” that he would be prosecuted if he did not consent to wiretapping, id. at 535, and that he was never threatened with prosecution if he did not continue to cooperate, id. at 605-06.
I consider three other facts to be important. First, I think it is significant that McCullough’s cooperation was initiated by McCullough, not by the district attorney or by the police. Second, his cooperation was initiated on the advice of and in the presence of his attorney. Finally, the pattern established by McCullough’s fifteen signed consent forms and his continuous participation in the wiretapping over a period of several months indicates that he was doing *270so voluntarily. He indicated that even after he felt safe from repercussions from the police, he continued to cooperate. Id. at 535.
Even though McCullough’s confession was a factor in his consent to the wiretap investigation, an examination of all the circumstances leads me to conclude that his consent was voluntary. I would therefore reverse the order suppressing the tapes of McCullough’s conversations with appellee and would permit the Commonwealth to introduce them at appellee’s trial.