J-A32033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEROME SHERWIN GRIER,
Appellant No. 1429 EDA 2013
Appeal from the Judgment of Sentence April 24, 2013
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001348-2011
BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY OLSON, J.:
FILED OCTOBER 15, 2015
I agree with the learned majority that the trial court correctly denied
Appellant’s motion to suppress. My reasoning, however, differs from that of
the learned majority. I also agree that the trial court did not abuse its
discretion in admitting evidence relating to cocaine not directly associated
with Appellant. I do so not only for the reasons expressed in the trial court’s
opinion (which the learned majority adopts as to this issue) but for an
additional reason as well. I fully join the majority’s disposition on
Appellant’s claim under Alleyne v. United States, 133 S.Ct. 2151 (2013).
I dissent, however, from the majority’s holding that Appellant is eligible to
participate in the Recidivism Risk Reduction Initiative (“RRRI”). In my view,
the trial court should apply the modified categorical approach upon remand
* Former Justice specially assigned to the Superior Court
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when determining if Appellant is RRRI eligible. I therefore respectfully
concur in part and dissent in part.
As the learned majority correctly states, the order authorizing
interception of co-defendant Philip DiMatteo’s (“DiMatteo’s”) telephone calls
was required to list Appellant if there were probable cause to believe that
Appellant’s communications would be intercepted. See Majority
Memorandum at 8-9, citing Commonwealth v. Whitaker, 546 A.2d 6, 8
(Pa. 1988). The learned majority concludes that “the Commonwealth lacked
knowledge that Appellant—and not KL Bugg—was communicating with
DiMatteo.” Majority Memorandum at 10. I disagree. After careful review
of the documents submitted to the Honorable Paula Francisco Ott, I conclude
that the Commonwealth was fully aware that Appellant, and not KL Bugg,
was communicating with DiMatteo.
As the learned majority notes, the probable cause affidavit submitted
with the Chester County District Attorney’s (“DA’s”) original application to
Judge Ott listed Appellant’s telephone number along with the subscriber
information. Majority Memorandum at 3-4, quoting Exhibit A to
Application for an Order Authorizing the Interception of Electronic and Wire
Communications, 3/19/10, at 34-36. Although the subscriber information
listed KL Bugg as the subscriber, the three affiants stated that their search
returned no results for a KL Bugg. The affiants noted, however, that
Appellant was known to use the address listed for KL Bugg. The affiants
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therefore listed Appellant’s prior drug related offenses in a (successful)
attempt to establish probable cause that DiMatteo used his telephone to
engage in drug transactions. On March 19, 2010, Judge Ott signed the DA’s
proposed order authorizing the interception of electronic communications.
That order never referenced Appellant nor did it incorporate the probable
cause affidavit. See generally Order Authorizing the Interception of
Electronic and Wire Communications, 3/19/10.
More importantly, on April 20, 2010, the DA submitted an application
to Judge Ott seeking an order extending the wiretap authorization. In that
application, the DA stated “[t]here is probable cause to believe that . . .
[Appellant has] committed and [is] committing offenses involving the
distribution and possession of controlled substances[.]” Application for an
Order Extending the Authorization for the Interception of Electronic and Wire
Communications, 4/20/10, at 16-17. The DA then averred that Appellant
and DiMatteo discussed illegal drug transactions during intercepted
communications. Id. at 17-18. The DA contemporaneously submitted a
proposed order to Judge Ott with his application. After carefully reviewing
the application, probable cause affidavit, and status updates, Judge Ott
signed the DA’s proposed order on April 20, 2010. That order was
unchanged from the version submitted by DA.
The April 20, 2010 order did not mention Appellant. Furthermore, the
order did not incorporate by reference the DA’s application. Therefore, it is
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evident that the order only applied to DiMatteo despite the fact that the DA
argued in his application that there was probable cause that Appellant’s
communications with DiMatteo would be intercepted. Judge Ott did not
reject this averment by the DA. Instead, she signed the order requested by
the DA. Based upon the evidence presented in the March 19, 2010 probable
cause affidavit, the April 20, 2010 probable cause affidavit, and the
intervening progress reports, I believe there was probable cause that
Appellant’s drug-related communications with DiMatteo would be
intercepted. Although there was no record of KL Bugg, Appellant used the
address associated with the KL Bugg telephone line. Police then intercepted
numerous conversations between Appellant and DiMatteo in which they
discussed drug transactions. This easily satisfied the probable cause
standard.
Having determined that Appellant should have been named in the
wiretap orders, I turn to whether suppression is the appropriate remedy. It
is well-settled that intercepted wire communications can only be suppressed
on six non-constitutional grounds. Commonwealth v. Steward, 918 A.2d
758, 760 (Pa. Super. 2007), appeal denied, 945 A.2d 170 (Pa. 2008).
Specifically, the evidence can be suppressed if:
(1) Unless intercepted pursuant to an exception set forth in
section 5704 (relating to exceptions to prohibition of interception
and disclosure of communications), the interception was made
without prior procurement of an order of authorization under
section 5712 (relating to issuance of order and effect) or an
order of approval under section 5713(a) (relating to emergency
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situations) or 5713.1(b) (relating to emergency hostage and
barricade situations).
(2) The order of authorization issued under section 5712 or the
order of approval issued under section 5713(a) or 5713.1(b) was
not supported by probable cause with respect to the matters set
forth in section 5710(a)(1) and (2) (relating to grounds for entry
of order).
(3) The order of authorization issued under section 5712 is
materially insufficient on its face.
(4) The interception materially deviated from the requirements
of the order of authorization.
(5) With respect to interceptions pursuant to section 5704(2),
the consent to the interception was coerced by the
Commonwealth.
(6) Where required pursuant to section 5704(2)(iv), the
interception was made without prior procurement of a court
order or without probable cause.
18 Pa.C.S.A. § 5721.1(b).
In this case, none of those six situations apply. First, there were
orders entered pursuant to section 5712. Second, there was probable cause
to issue the orders. Third, the interception did not materially deviate from
the requirements of the orders. Fourth, the orders were not issued pursuant
to section 5704(2). Thus, the only colorable argument supporting
suppression is that the orders were materially insufficient on their face. I
conclude, however, that suppression is not warranted on this ground.
Pertinent federal case law supports this conclusion. In United States
v. Donovan, 429 U.S. 413 (1977), the government had probable cause that
the defendant would be overheard on a wiretap, however, it failed to include
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the defendant, a known individual, in the wiretap authorization order. The
Supreme Court of the United States held that such error did not require
suppression of the evidence against the defendant. Id. at 436 n.24.
Instead, it concluded that the order was valid and that the defect was not
material. Although Donovan dealt with a Title III wiretap under federal law,
I find its rationale persuasive. The orders in this case listed everything
necessary to lawfully intercept Appellant’s communications with DiMatteo.
Although the orders failed to list Appellant as a known individual, this was a
minor error in drafting the orders and did not rise to the level of a material
defect. Finally, to the extent that Appellant argues that exclusion of his
name from the orders violated his constitutional rights, Donovan makes
clear that such an omission does not constitute an unconstitutional search.
Therefore, I would affirm the trial court’s suppression ruling on this basis.
As to the second issue raised on appeal, I fully concur with the
reasoning set forth in the trial court opinion and adopted by the learned
majority. I write separately on this issue, to emphasize my belief that the
evidence of DiMatteo’s other drug deals was admissible notwithstanding Rule
404(b). In this connection, I note that a substantial component of the
Commonwealth’s theory in this case was that Appellant committed, by way
of telephone, dozens of crimes involving the solicitation of delivery of
controlled substances by DeMatteo. To meet its burden of proof, then, the
Commonwealth needed to prove that DeMatteo was a viable source of the
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drugs Appellant sought to acquire for resale. Thus, in this case, the cocaine
showed to the jury, and other evidence Appellant objected to, was
admissible to prove that DeMatteo was such a viable source. Accordingly, I
would affirm on this basis in addition to the basis set forth in the trial court’s
opinion.
As to Appellant’s last issue, I agree with the learned Majority that our
Supreme Court has “specifically rejected [Appellant’s] suggestion to apply
the maxim of expression unius est exclusion alterius.” Majority Memorandum
at 20 (citation omitted). I also agree that 61 Pa.C.S.A. § “4503(1)
encompasses all violent behavior in addition to the enumerated crimes
contained in [s]ection 4503(2)-(6)[.]” Id. (citation and internal quotation
marks omitted; emphasis removed). I respectfully disagree, however, with
the learned Majority’s holding that the trial court erred or abused its
discretion in finding that Appellant was not eligible to receive an RRRI
reduced sentence.
Two prior appellate decisions in Pennsylvania have addressed a
question similar to that which we confront in the present case. In
Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014), our Supreme Court
concluded that a prior conviction for first-degree burglary constituted violent
behavior that disqualified a defendant’s eligibility for a reduced minimum
sentence under the RRRI statute. In reaching this conclusion, the Court
noted the historical treatment of burglary as a crime of violence in
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Pennsylvania. Id. at 64. In addition, the Court noted that all burglaries
qualify as aggravating circumstances for capital sentencing purposes. Id.
The Court also observed that first-degree burglary, unlike its second-degree
counterpart, is listed as a crime of violence under the recidivist minimum
sentencing provision in 42 Pa.C.S.A. § 9714(g) and that first-degree
burglary precludes an offender from participation in motivational boot camp
pursuant to 61 Pa.C.S.A. § 3903. Id. Lastly, based upon its determination
that first-degree burglary “contemplates [a] potential for confrontation [that
second-degree burglary does not],” the Court concluded that first-degree
burglary constitutes “violent behavior” under § 4503(1). Id. at 65.
Prior to Chester, this Court considered whether second-degree
burglary constituted disqualifying violent behavior in Commonwealth v.
Gonzalez, 10 A.3d 1260 (Pa. Super. 2010). In Gonzalez, we observed
that second-degree burglary was not included as a crime of violence under
42 Pa.C.S.A. § 9714, that it did not disqualify an offender from participation
in motivational boot camp under 61 Pa.C.S.A. § 3903, and that it did not
constitute a personal injury crime within the definition of 18 Pa.C.S.A.
§ 11.103. Gonzalez, 10 A.3d at 1263. Accordingly, we found Gonzalez
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eligible to receive a reduced RRRI sentence notwithstanding his second-
degree burglary conviction.1
My review of Chester and Gonzalez leads me to conclude that
Appellant is not eligible to participate in the RRRI program. A conviction for
resisting arrest presupposes a situation in which an offender’s conduct
invites a forceful response on the part of a law enforcement officer. This
circumstance draws into play the concerns surrounding first-degree burglary,
not second-degree burglary. Where resisting arrest has been charged, no
fewer than two individuals, with wholly divergent goals, are presently
engaged in a confrontation. On one hand, the suspect seeks to avoid
capture and arrest. On the other hand, the officer(s) seek to subdue the
subject. A conviction results where the defendant either creates a
substantial risk of bodily injury to the officer or anyone else or employs
means that require substantial force to overcome. See 18 Pa.C.S.A. § 5104.
The statute clearly contemplates the potential for confrontation and, as
such, the risk of a violent encounter is direct and immediate and neither
remote nor speculative. For this reason, I agree with the trial court that
Appellant should be excluded from the RRRI program.
I am unpersuaded by the Majority’s efforts to demonstrate that a
conviction for resisting arrest does not involve a history of violent behavior.
1
In Chester, the Supreme Court stated that it would not consider whether a
second-degree burglary conviction demonstrated a history of violent
behavior for purposes of § 4503.
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Among other things, the Majority reviews the emergence of the current
resisting arrest statute and points out that the statute now does not impose
liability for minor scuffles or efforts to flee from an officer. See Majority
Memorandum at 26-27. If the Majority offers this analysis to prove that
resisting arrest somehow does not involve violent behavior, then these
observations miss the mark. By definition, a conviction for resisting arrest
excludes instances involving only minor scuffles or efforts to flee from an
officer. Thus, an individual convicted of resisting arrest has previously
created a substantial risk of bodily injury to an officer or someone else or
engaged in conduct that required substantial force to overcome. I am
unable to agree that this conduct does not involve a history of violent
behavior.
Moreover, while I understand that there may be situations in which
individuals employ so-called “passive resistance” in which they do not
overtly or aggressively attack an arresting officer, I cannot agree that this
conduct salvages their eligibility for participation in the RRRI program. In
Chester, our Supreme Court noted that, “the fact that [a]ppellant did not
actually engage in any violent acts while committing first-degree burglary
does not render the crime ‘non-violent.’” Chester, 101 A.3d at 65.
Instead, it is the offender’s conduct in merely committing a crime that
“invites dangerous resistance” and the potential for a forceful response that
makes the offense a violent one. Id. By every metric, then, a prior
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conviction for resisting arrest disqualifies an offender for RRRI participation.
For each of these reasons, I respectfully dissent from the Majority’s decision
to remand this case for resentencing.
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