J-A31032-14
2015 PA Super 28
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RAHIEM CARDEL FANT
Appellee No. 386 MDA 2014
Appeal from the Order Entered February 26, 2014
In the Court of Common Pleas of Clinton County
Criminal Division at No: CP-18-CR-0000415-2013
BEFORE: BOWES, OTT, and STABILE, JJ.
OPINION BY STABILE, J.: FILED FEBRUARY 09, 2015
The Commonwealth appeals from the February 26, 2014 order entered
in the Court of Common Pleas of Clinton County granting the suppression
motion filed by Rahiem Cardel Fant (Appellee).1 Following review, we
reverse.
In its opinion accompanying the order, the trial court explained:
[Appellee] is charged with four (4) counts of alleged criminal
conduct, i.e., Aggravated Assault, a felony of the first degree,
Aggravated Assault, a felony of the second degree, Simple
Assault, a misdemeanor of the second degree, and Recklessly
Endangering Another Person, a misdemeanor of the second
degree. All allegations of [Appellee’s] criminal conduct arise out
of an incident that occurred on North Grove Street in the City of
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1
Appellee’s motion was titled “Motion in Limine to Exclude Evidence Relating
to Telephone Recordings and Personal Belongings.” It was properly treated
by the trial court as a suppression motion.
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Lock Haven on May 11, 2013, wherein [Appellee] allegedly
stabbed an adult male in the abdomen and the arm. [Appellee]
is scheduled for jury trial to commence on Thursday, February
27, 2014. [Appellee] filed a Motion in Limine to Exclude
Evidence Relating to Telephone Recordings and Personal
Belongings on February 21, 2014. This [c]ourt conducted a
hearing on February 25, 2014. At the hearing, the
Commonwealth offered the testimony of Jackie Motter, Warden
of the Clinton County Correctional Facility and Jenifer Bottorf,
Victim/Witness Coordinator of Clinton County. The
Commonwealth also offered four (4) exhibits which were entered
into evidence.
[Appellee’s] Motion seeks the exclusion of recordings made at
the Clinton County Correctional Facility between [Appellee] and
unknown persons and the subsequent receipt by law
enforcement personnel of a bag of clothing and other personal
belongings formerly owned by [Appellee] which were in the
basement of Angela Monks, the previous paramour of [Appellee].
[Appellee] argues numerous reasons why these items should not
be admitted into evidence.
Trial Court Opinion (T.C.O.), 2/26/14, at 1-2.
The trial court granted Appellee’s suppression motion and prohibited
the introduction of, and references to, recordings made during Appellee’s
visitation sessions at the Clinton County Correctional Facility (the facility) as
well as the introduction of, and references to, personal belongings
discovered as a result of the recordings. Trial Court Order, 2/26/14, at 1.
The Commonwealth filed this timely appeal from the February 26, 2014
order. On March 16, 2014, in accordance with the trial court’s directive, the
Commonwealth filed its Rule 1925(b) statement of errors complained of on
appeal asserting five errors, which are condensed into the three issues
presented to this Court as follows:
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I. Did the court err in finding that the recordings made of
Appellee’s correctional facility visitation calls were not
telephone calls which fell within the exception to the
Wiretap Act?
II. Did the court err in suppressing evidence without finding
that Appellee had a reasonable expectation of privacy in
the correctional facility visitation calls?
III. Did the court err in suppressing the personal belongings of
Appellee seized as the seizure was based upon lawfully
obtained information?
Commonwealth Brief at 5.2
We begin by setting forth our scope and standard of review. As this
Court has recognized:
When reviewing a grant of a suppression motion, the appropriate
scope and standard of review are as follows:
[W]here a motion to suppress has been filed, the burden is
on the Commonwealth to establish by a preponderance of
the evidence that the challenged evidence is admissible.
In reviewing the ruling of a suppression court, our task is
to determine whether the factual findings are supported by
the record. If so, we are bound by those findings. Where,
as here, it is the Commonwealth who is appealing the
decision of the suppression court, we must consider only
the evidence of the defendant’s witnesses and so much of
the evidence for the prosecution as read in the context of
the record as a whole remains uncontradicted.
Moreover, if the evidence supports the factual findings of
the suppression court, this Court will reverse only if there
is an error in the legal conclusions drawn from those
findings.
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2
We remind the Commonwealth of the requirement to include a copy of the
statement of errors complained of on appeal in briefs filed with this Court.
Pa.R.A.P. 2111(a)(11).
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Commonwealth v. Burgos, 64 A.3d 641, 647 (Pa. Super. 2013) (quoting
Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010)
(citations omitted)).
As noted, this Court is bound by the findings of the suppression court
that are supported by the record. Because this is an appeal by the
Commonwealth, we must consider only the evidence of Appellee’s witnesses
and the evidence of the Commonwealth that remains uncontradicted in the
context of the record. Id.
Here, Appellee did not present any witnesses at the suppression
hearing. The only two witnesses who testified were the facility’s warden and
the Clinton County victim/witness coordinator, both of whom were called by
the prosecution. Four exhibits were admitted in the course of their
testimony. The exhibits included Policy Number 100:15, “Telephone
Regulations for Inmates,” from the Clinton County Correctional Facility Policy
and Procedure Manual; the Clinton County Correctional Facility Inmate
Handbook; The Inmate I.D. Card Agreement and Acknowledgement of
Inmate Rules and Regulations, both of which were signed by Appellee; and
the Clinton County Correctional Facility Inmate Telephone ID Number
Release Form signed by Appellee. Absent any witnesses for Appellee, this
Court must determine whether the suppression court’s factual findings are
supported by the evidence of the Commonwealth that remains
uncontradicted in the context of the record.
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At issue are recordings of conversations that took place between
Appellee and visitors in the facility’s visitation room and whether the
recorded calls were “telephone calls” under § 5704(14) the Pennsylvania
Wiretap Act, 18 Pa.C.S.A. § 5704(14). Regarding the suppression court’s
factual findings, no Findings of Fact or Conclusions of Law were announced
at the conclusion of the suppression hearing. Instead, the court “ordered
that [the court] will take this matter under advisement, attempt to do some
legal research, and reach a decision tomorrow morning.” N.T., 2/25/14, at
38. In its opinion and order issued the following day, the court stated:
[Appellee’s] first argument in support of excluding the recordings
is that it violates § 5704 of the Pennsylvania Wiretap Statute. 18
PaC.S.A. § 5704. The Commonwealth has argued that
§ 5704(14) permits these recordings. A close examination
indicates that “telephone calls” may be intercepted and recorded
by the correctional facility and then forwarded to law
enforcement for the prosecution or investigation of any crime.
Initially, although this [c]ourt attempted to seek clarifications
throughout the proceedings because of the intricacies of the
Wiretap Statute, this [c]ourt must note that all the recordings
but two (2) are not what this [c]ourt would refer to as
“telephone calls.” The District Attorney admitted at the hearing
on February 25, 2014 that no case law exists regarding this
case.
The system in place at the Clinton County Correctional Facility
for visitation is that Defendant picks up an apparatus that
resembles a telephone and punches in an i.d. number and the
other individual across the glass from Defendant picks up that
apparatus and a discussion ensues. These are the discussions
except for two (2) short phone calls that were intercepted. This
[c]ourt does not believe that this was what the Legislature
contemplated when it indicated that it was allowing telephone
calls from the correctional facility to be intercepted and
recorded. Clearly, the conversation is between a visitor at a
correctional facility and an inmate. These conversations do not
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involve the use of a telephone company, telephone lines or
equipment outside the correctional facility. The every day
common sense use of the word telephone does not include this
scenario. Therefore, this Court rules that the “visit”
conversations are not telephone calls and are not subject to the
Wiretap accession under § 5704(14). Therefore, the
Commonwealth has offered no other argument for any exception
and therefore, those calls must be suppressed.
T.C.O., 2/26/14, at 2-3.
As is evident from the excerpt quoted above, the trial court made few
“factual findings.” Cf. Pa.R.Crim.P. 581(I) (“At the conclusion of the
hearing, the judge shall enter on the record a statement of findings of fact .
. . .”). Essentially, the findings of fact were limited to (a) describing the
facility’s visitation system as one in which the inmate and his visitor carry on
a discussion through a glass partition using an apparatus that resembles a
telephone activated by the inmate punching in an I.D. number, and (b)
announcing that all but two of the recorded conversations did not involve the
use of a telephone company, telephone lines or equipment outside the
correctional facility. A fair reading of the trial court’s opinion does not reveal
any additional findings of fact. To the extent those findings are supported
by the record, we are bound by them.3 However, our review of the
suppression hearing transcript reveals additional uncontradicted facts not
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3
As noted below, the trial court’s finding that the recordings in question did
not involve a telephone company is not supported by the evidence. The
evidence supports the remaining findings.
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enunciated by the trial court that must be considered to determine whether
error in the trial court’s legal conclusions warrants reversal of its order.
From our review of the suppression hearing transcript, we glean the
following. The uncontradicted testimony of the facility’s warden established
that the facility’s Inmate Handbook contains information regarding the
recording of telephone calls. N.T. Suppression Hearing (N.T.), 2/25/14, at
6; Commonwealth Exhibit 2. Section 3001 on page 7 of the handbook
provides in bold typeface that “[t]elephone calls are subject to monitoring,
recording, and may be intercepted or divulged.” Id. at 6-7. Appellee signed
an acknowledgement of receipt of his Inmate ID Card Agreement and an
acknowledgement of the Inmate Rules and Regulations on his booking date,
May 12, 2013. Id. at 7-8; Commonwealth Exhibit 3. Appellee also signed a
release form on the same date that explains the inmate telephone system
and the unique telephone ID number assigned to him. Id. at 8;
Commonwealth Exhibit 4. The form includes an acknowledgement that
telephone calls are subject to monitoring, recording and interception. Id.
An inmate uses his telephone ID number to initiate calls outside the
facility as well as visitation calls within the facility for face-to-face visits
using a telephone to communicate through glass. Id. at 13-17. Both
external and internal calls are recorded on the same system and are stored
on the prison’s computer server. Id. at 9-10; 12-14. Calls are designated
as calls to an outside number or a visitation call. Id. at 14. Visitation calls
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go through and are recorded by the inmate phone company. Id. at 14; 16.4
Those having access to the stored calls include the warden, the deputy
warden, the lieutenants, and the office and records manager who has been
designated to record phone calls during the warden’s one year tenure as
warden and during the 13 years she served as deputy warden. Id. at 10-
12. According to the uncontradicted testimony of the victim/witness
coordinator, the recordings in question here, with the possible exception of
two outside calls, were from visitation calls within the facility during face-to-
face visits using a telephone activated by Appellee entering his telephone ID
number. Id. at 25. The request for the recordings stemmed from a
February 3, 2014 call from a Commonwealth witness who expressed concern
about “the players involved and the possibility of somebody reaching out to
her to . . . talk to her about what she was going to say.” Id. at 19.
In his motion to suppress, Appellee contended that “[b]y letter dated
February 18, 2014, the office of the District Attorney provided [Appellee’s]
counsel with three (3) CDs containing recordings of telephone
conversations taken during various visits at the Clinton County
Correctional Facility between [Appellee] and various visitors.” Motion in
Limine to Exclude Evidence Relating to Telephone Recordings and
Personal Belongings, 2/21/14 at ¶ 4 (emphasis added). Much of Appellee’s
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4
See footnote 3.
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motion focused on the Commonwealth’s delay in producing voluminous
amounts of discovery material relating to the recordings and the burden on
the defense of reviewing the materials in the short time remaining before
trial. Id. at ¶¶ 5-8 and ¶¶ 11-19. However, Appellee also challenged the
anticipated use of the recordings at trial based on the alleged failure of
officials at the facility to follow the process and regulations outlined in the
Pennsylvania Wiretap Act with respect to the recordings. Id. at ¶ 10.
Section 5704(14) of the Wiretap Act provides, in pertinent part, that:
It shall not be unlawful and no prior court approval shall be
required under this chapter for: . . .
(14) An investigative officer, a law enforcement officer or
employees of a county correctional facility to intercept,
record, monitor or divulge any telephone calls from or to
an inmate in a facility under the following conditions:
(i) The county correctional facility shall adhere to the
following procedures and restrictions when
intercepting, recording, monitoring or divulging any
telephone calls from or to an inmate in a county
correctional facility as provided for by this
paragraph:
(A) Before the implementation of this
paragraph, all inmates of the facility shall be
notified in writing that, as of the effective date
of this paragraph, their telephone
conversations may be intercepted, recorded,
monitored or divulged.
(B) Unless otherwise provided for in this
paragraph, after intercepting or recording a
telephone conversation, only the
superintendent, warden or a designee of the
superintendent or warden or other chief
administrative official or his or her designee, or
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law enforcement officers shall have access to
that recording.
(C) The contents of an intercepted and
recorded telephone conversation shall be
divulged only as is necessary to safeguard the
orderly operation of the facility, in response to
a court order or in the prosecution or
investigation of any crime.
18 Pa.C.S.A. § 5704(14) (emphasis added).
The Commonwealth and Appellee both acknowledge that the Wiretap
Act does not define the word “telephone.” Commonwealth Brief at 12;
Appellee Brief at 7. The Commonwealth offers the Webster’s Dictionary
definition of a telephone as “[a]n instrument for reproducing sounds,
especially articulate speech, at a distance,” and an alternate definition of “an
electrical device for transmitting speech, consisting of a microphone and
receiver mounted on a handset,” from Collins English Dictionary – Complete
& Unabridged 10th Edition 2009. Appellee offers a Merriam-Webster Online
Dictionary definition indicating that a telephone is “a device that is
connected to a telephone system and that you use to listen or speak to
someone who is somewhere else.” (http://www.merriam-
webster.com/dictionary/telephone?show=0&t=1409159323.) Another online
source, BusinessDictionary.com, explains that a “telephone consists of two
essential parts; a microphone and a speaker. This allows the user to speak
into the device and also hear transmissions from the other user.”
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(http://www.businessdictionary.com/definition/telephone.html#ixzz3O4MV4
vqJ).
Appellee argues that the Commonwealth’s selected definitions are self-
serving and suggests that his definition should be accepted because it
includes an important distinction, i.e., that a telephone must be connected
to a telephone system and used to listen or speak to someone who is
somewhere else. Appellee Brief at 7. However, the uncontradicted evidence
from the suppression hearing reveals that the telephones in the facility’s
visitation room are connected to the “inmate phone company.” N.T.,
2/25/14, at 16. Calls on both the inmate phone system and the facility’s
Verizon telephone system are recorded by the same computer system. Id.
Further, the telephones in the visitation room are used to listen or speak to
someone who is somewhere else, i.e., on the other side of a glass partition
that would otherwise prevent prisoners and their visitors from
communicating audibly. Those facts bring the visitation calls within
Appellee’s proffered definition.
Under any of the “common meanings” of telephone, as listed above,
we conclude the record does not support the trial court’s legal conclusion
that the “apparatus that resembles a telephone” is not a telephone and that
the recorded telephone “visit” conversations are not subject to the exception
set forth in § 5704(14) of the Wiretap Act. The Act does not distinguish
between external and internal telephone calls from or to an inmate in a
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county correctional facility. Because the motion to suppress was granted
based on an unwarranted distinction between the two, we reverse the trial
court’s order suppressing the recorded conversations as well as the evidence
obtained as a result of those conversations.5
Order reversed. Case remanded. Jurisdiction relinquished.6
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5
Because our resolution of the Commonwealth’s first issue enables us to
dispose of the matter before us, it is not necessary to address separately the
Commonwealth’s remaining issues.
6
We note and agree with Appellee’s contention that this Court lacked
jurisdiction to entertain this appeal under Pa.R.A.P. 341 relating to final
orders. Although the Commonwealth’s brief suggests the appeal is taken
pursuant to Rule 341, the Commonwealth certified in its notice of appeal
that the trial court’s order “will terminate or substantially handicap the
prosecution,” satisfying the requirement of Pa.R.A.P. 311(d) (“In a criminal
case, under the circumstances provided by law, the Commonwealth may
take an appeal as of right from an order that does not end the entire case
where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.”). While the trial court
suggests that it would be “extremely difficult” for this Court to determine
whether the prosecution would be substantially handicapped by the
suppression order, Trial Court 1925(a) Opinion, 4/1/14 at 3-4, our Supreme
Court has recognized that the grant of a suppression motion is a proper
basis for invoking Rule 311(d). See, e.g., Commonwealth v. Cosnek, 836
A.2d 871, 875 (Pa. 2003) (“When a pretrial motion removes evidence from
the Commonwealth’s case, only the prosecutor can judge whether that
evidence substantially handicaps his ability to prove every essential element
of his case.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
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