J. A04019/16
2016 PA Super 269
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DENNIS ANDREW KATONA, : No. 1995 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 10, 2014,
in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-CR-0002549-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 02, 2016
Dennis Andrew Katona appeals from the November 10, 2014 judgment
of sentence from the Court of Common Pleas of Westmoreland County
following his conviction for two counts each of possession with intent to
deliver (“PWID”) and possession of a controlled substance.1 This case
presents an issue of first impression, which we are confident will ultimately
be resolved by the Pennsylvania Supreme Court or the legislature. As for
our review, we vacate and remand.
Appellant’s charges were the result of the execution of a search
warrant at his home on June 29, 2011. Following the denial of his motion to
* Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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suppress the contraband discovered in the search, appellant was convicted
of the aforementioned offenses on November 10, 2014. That same day, the
trial court sentenced appellant to an aggregate term of 40 to 80 months’
imprisonment. On November 20, 2014, appellant filed a motion to modify
his sentence, which the trial court denied on November 24, 2014. On
December 8, 2014, appellant filed a timely notice of appeal. On December
19, 2014, the trial court ordered appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied with the trial court’s order on January 13, 2015. Thereafter, on
February 11, 2015, the trial court issued an opinion in support of its order
denying appellant’s motion to suppress evidence. On February 13, 2015,
the trial court issued an opinion pursuant to Rule 1925(a).
On appeal, appellant raises the following issues for our review:
I. Whether the June 29, 2011 search warrant for
appellant’s home was rendered invalid because
it relied almost exclusively on an order or
search warrant as described in
Commonwealth v. Brion, [652 A.2d 287 (Pa.
1994),] and as codified in 18 Pa.C.S.[A.]
§ 5704(2)(iv) which order or warrant allowed
for, inter alia, unlimited intercepts over a
period of thirty days, as opposed to allowing
only a single intercept?
II. Whether the June 29, 2011 search warrant was
invalid because it failed to meet the specific
requirements of an anticipatory warrant?
III. Whether the Commonwealth presented
insufficient evidence of possession to sustain
the conviction against appellant?
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Appellant’s brief at 3 (capitalization omitted).
The crux of appellant’s suppression claim is whether the June 29 th
search was unconstitutional because it was based on a May 16, 2011 order
signed by Judge John Blahovic that authorized consensual intercepts by a
confidential informant (“CI”) over a 30-day period in appellant’s home.
Specifically, as a result of numerous in-home intercepts, probable cause was
established for the full search of appellant’s home. Appellant asserts that
the May 16th order violated our Supreme Court’s decision in Brion, in that it
allowed for unlimited intercepts in his home over a period of 30 days. (See
appellant’s brief at 17-34.)
Our standard of review in addressing a challenge to the denial of a
motion to suppress is as follows:
Our standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether
the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed
before the suppression court, we may consider only
the evidence of the Commonwealth and so much of
the evidence for the defense as remains
uncontradicted when read in the context of the
record as a whole. Where the suppression court’s
factual findings are supported by the record, we are
bound by these findings and may reverse only if the
court’s legal conclusions are erroneous. Where . . .
the appeal of the determination of the suppression
court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding
on an appellate court, whose duty it is to determine
if the suppression court properly applied the law to
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the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Best, 120 A.3d 329, 346 (Pa.Super. 2015), quoting
Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), appeal
denied, 124 A.3d 309 (Pa. 2015) (citations omitted).
Both the United States Constitution and the Pennsylvania Constitution
guarantee that individuals shall not be subject to unreasonable searches or
seizures.
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. Amend. IV.
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches
and seizures, and no warrant to search any place or
to seize any person or things shall issue without
describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const. Art. I, § 8.
Evidence obtained as a result of an unlawful
search is subject to the fruit of the poisonous tree
doctrine. The United States Supreme Court has
stated that any material, tangible, or verbal evidence
“obtained either during or as a direct result of an
unlawful invasion” is inadmissible at trial. Wong
Sun v. United States, 371 U.S. 471, 485 (1963).
Our supreme court further stated:
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We need not hold that all evidence
is “fruit of the poisonous tree” simply
because it would not have come to light
but for the illegal actions of the police.
Rather, the more apt question in such a
case is “whether, granting establishment
of the primary illegality, the evidence to
which instant objection is made has been
come at by exploitation of that illegality
or instead by means sufficiently
distinguishable to be purged of the
primary taint.”
Commonwealth v. Cunningham, 370 A.2d 1172,
1176-1177 (Pa. 1977), quoting Wong Sun, 371 U.S.
at 487-488.
Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa.Super. 2015).
Both appellant and the Commonwealth cite and discuss the seminal
case of Brion. In Brion, our Supreme Court considered a case in which an
informant agreed to wear a body wire when he purchased marijuana from
Mr. Brion in his home. Brion, 652 A.2d at 287. The use of the informant
wearing the wire was approved by the Lycoming County First Assistant
District Attorney, but was not approved by any judicial authority. Id. This
court reversed the trial court’s order granting Mr. Brion a new trial. Id. at
288.
Our Supreme Court subsequently reversed this court, stating the
controlling issue as follows:
[W]hether, under the Pennsylvania Constitution, the
police can send a confidential informer into the home
of an individual to electronically record his
conversations and transmit them back to the police.
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Because the right to privacy in one’s domain is
sacrosanct, we hold that Article 1 § 8 of the
Pennsylvania Constitution precludes the police from
sending a confidential informer into the home of an
individual to electronically record his conversations.
Id. at 287.
While recognizing that 18 Pa.C.S.A. § 5704 of the Pennsylvania
Wiretap Act (“the Act”) specifically allows for consensual intercepts without
prior court approval, the Brion court reasoned as follows:
In accordance with the analysis articulated by
Judge Cirillo in Schaeffer I, see 370 Pa.Super. at
207-214, 536 A.2d at 368-372 we hold that an
individual can reasonably expect that his right to
privacy will not be violated in his home through the
use of any electronic surveillance. In so holding,
. . . . “[A] reasonable construction of the Act allows
the conclusion that the General Assembly's
exemption of participant monitoring from the
prohibitions and requirements of the Act was not
necessarily a legislative declaration that the practice
was free of state constitutional constraints as well.”
370 Pa.Super. at 185, 536 A.2d at 357. With
respect to oral communications occurring within
one’s home, interception pursuant to 18 Pa.C.S.
§ 5704(2)(ii) can only be deemed constitutional
under Article 1, Section 8 if there has been a prior
determination of probable cause by a neutral, judicial
authority.
Id. at 289 (some citations omitted).
The General Assembly later codified the Brion court’s holding.
§ 5704. Exceptions to prohibition of
interception and disclosure of communications
It shall not be unlawful and no prior court approval
shall be required under this chapter for:
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....
(2) Any investigative or law enforcement
officer or any person acting at the
direction or request of an investigative or
law enforcement officer to intercept a
wire, electronic or oral communication
involving suspected criminal activities
. . . where:
....
(ii) one of the parties to the
communication has given
prior consent to such
interception. However, no
interception under this
paragraph shall be made
unless the Attorney General
or a deputy attorney general
designated in writing by the
Attorney General, or the
district attorney, or an
assistant district attorney
designated in writing by the
district attorney, of the
county wherein the
interception is to be initiated,
has reviewed the facts and is
satisfied that the consent is
voluntary and has given prior
approval for the interception
...
....
(iv) . . . If an oral interception
otherwise authorized under
this paragraph will take place
in the home of a
nonconsenting party, then, in
addition to the requirements
of subparagraph (ii), the
interception shall not be
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conducted until an order is
first obtained from the
president judge, or his
designee who shall also be a
judge, of a court of common
pleas,[2] authorizing such in-
home interception, based
upon an affidavit by an
investigative or law
enforcement officer that
establishes probable cause
for the issuance of such an
order. No such order or
affidavit shall be required
where probable cause and
exigent circumstances exist.
For the purposes of this
paragraph, an oral
interception shall be deemed
to take place in the home of
a nonconsenting party only if
both the consenting and
nonconsenting parties are
physically present in the
home at the time of the
interception.
18 Pa.C.S.A. § 5704(2)(ii), (iv).
In the instant matter, a CI consented to wear a wire for the purposes
of recording conversations and transactions with appellant. Pursuant to the
statute, Deputy Attorney General Michael M. Ahwesh, as designated by the
Attorney General, applied for an order with the trial court authorizing the
consensual interception of oral communications between the CI and
2
Although the Brion court suggested that the order be obtained from the
Superior Court as this court has original jurisdiction over non-consensual
applications, the legislature opted for requesting the order from the Court of
Common Pleas.
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appellant in appellant’s home. In an order dated May 16, 2011, the trial
court granted the Commonwealth’s request, permitting the interceptions of
communications between appellant and the CI over a 30-day period. The
relevant text of the order reads as follows3:
1. Intercept conversations between Jasup
Hoffman and Dennis Katona which may occur
between the date of this Order and thirty (30)
days thereafter, at the residence of
Dennis Katona or at any other location within
Westmoreland County where Dennis Katona
may have an expectation of privacy such as
one would have in one’s own home. The type
of communications to be intercepted will
concern the commission of offenses involving
violations of the Controlled Substance, Drug,
Device & Cosmetic Act, Corrupt Organization
and conspiracy to commit said offenses, in
violation of Section 903 of the Crimes Code,
18 Pa. C.S. § 903.
2. Engage in such consensual interception
pursuant to Section 5704(2)(IV) of the Act,
18 Pa. C.S. § 5704(2)(IV), based upon the
facts contained in the Application and Affidavit
establishing probable cause to believe that
additional communications of the same type
may be obtained thereafter, and due to the
character of the investigation, such
interception need not automatically terminate
when the type of communication described
above in paragraph (1) has first been obtained
3
It should be noted that a 30-day period is the permissible length of a
non-consensual interception under Section 5710 of the Act. Additionally,
unlike the lack of restrictions under Section 5704, non-consensual intercepts
are presented to this court’s general jurisdiction and require a myriad of
safeguards, such as establishing that other means to gather evidence are
unavailable or too risky, requiring periodic progress reports be made to the
authorizing judge, minimizing intercepts of unrelated conversations and
ceasing interception at the earliest time once evidence is gathered.
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but may continue intercepting such
conversations with the consent of the
participant until communications are
intercepted which establish and reveal the
complete manner in which Dennis Katona and
others either known or as yet unknown,
conduct the criminal enterprise in violation of
the criminal offenses set forth above and the
identities of confederates, places and manner
of operation, and the nature of the conspiracy
involved therein, or at diverse times during the
period of thirty (30) days from the date of this
order.
Trial court order, 5/16/11 at 4-5. The Commonwealth sought, and the trial
court granted, extensions of the trial court’s original order.
The Brion issue presented in this appeal is whether a separate finding
of probable cause was required each time the CI intercepted a conversation
with appellant in his home or whether permitting unlimited intercepts over a
30-day period was constitutional. We find that, based on a clear reading
and the intent of both the Brion decision and the statute, a separate finding
of probable cause was required for each in-home intercept. The probable
cause requirement addressed in Brion was very much in the nature of a
search warrant with all of its attendant protections. Although an order
issued by an independent judicial authority is all that is required by
Section 5704(2)(iv), the rationale underlying the Brion decision is no less
important. Tellingly, the order signed by Judge Blahovic clearly disregards
the very purpose and framework of Brion’s constitutional analysis.
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We further recognize that the legislature did not set a period of time
for intercepts in Section 5704(2)(ii). However, we cannot ignore that the
amendment to the statute was specifically drafted to incorporate the
decision in Brion. Certainly, the Brion court did not anticipate that a “prior
determination of probable cause by a neutral judicial authority” for an
intercept taking place in the “sanctity of one’s home” could continue for
2 weeks, 30 days, or even indefinitely. Additionally, the Commonwealth has
failed to assert that applying for additional orders based on probable cause
to intercept conversations each time the CI entered appellant’s home
throughout the 30-day period would have been burdensome or onerous.
The Commonwealth argues that interception orders should remain in
effect over an extended period of time because Section 5704 (2)(ii) does not
“set forth a specific length of time during which the consent of the CI
remains viable.” (Commonwealth’s brief at 7-8.) The consent of the CI,
however, is not the issue in this case. The issue is whether the interception
order can remain in effect over an extended period of time, allowing for
unlimited interceptions to occur in appellant’s home without any additional
determination of probable cause that incriminating conversations will occur
upon each entry. Pursuant to Brion’s clear intent, probable cause
determinations lack constitutional grounding when based upon unfettered
wire-interception orders spanning an extended duration of time and,
therefore, cannot stand.
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Our holding is also based on the level of privacy an individual can
expect during a face-to-face conversation within the confines of his or her
home that is subject to interception under Section 5704. Both the United
States Constitution and the Pennsylvania Constitution recognize the
enhanced expectation of privacy afforded to an individual inside his or her
home. See e.g., Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring) (recognizing that activities taking place inside the
home not within the “plain view of outsiders” are entitled to Fourth
Amendment protection); Commonwealth v. Dunnavant, 107 A.3d 29, 31-
32 (Pa. 2014) (per curiam) (Todd, J., in support of affirmance) (“We have
long recognized the sanctity of the home in this Commonwealth as we have
repeatedly stated that ‘[u]pon closing the door to one’s home to the outside
world, a person may legitimately expect the highest degree of privacy known
to our society.’”), quoting Commonwealth v. Bricker, 666 A.2d 257, 261
(Pa. 1995) (citations omitted).
Our Supreme Court considered a similar issue in Commonwealth v.
Rekasie, 778 A.2d 624 (Pa. 2001). The Rekasie court determined that an
individual holds more of an expectation of privacy during a face-to-face
conversation within the individual’s home as compared to a telephone
conversation. Rekasie, 778 A.2d at 631-632.
Qualitatively different than a face-to-face
interchange occurring solely within the home in
which an individual reasonably expects privacy and
can limit the uninvited ear, on a telephone call, an
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individual has no ability to create an environment in
which he or she can reasonably be assured that the
conversation is not being intruded upon by another
party. On the telephone, one is blind as to who is on
the other end of the line. Thus, while society may
certainly recognize as reasonable a privacy
expectation in a conversation carried on face-to-face
within one’s home, we are convinced society would
find that an expectation of privacy in a telephone
conversation with another, in which an individual has
no reason to assume the conversation is not being
simultaneously listened to by a third party, is not
objectively reasonable.
Id. at 632. Because society places a higher expectation of privacy in a
face-to-face conversation taking place within an individual’s home compared
to a telephone conversation, a 30-day period of time in which to obtain such
in-home intercepted communications does not comport with the protections
afforded by the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution.
We, therefore, hold that, because the General Assembly did not
enumerate any time restrictions regarding how long an order authorizing the
interception of communication involving a consenting party is to remain in
effect, such an order is subject to the same probable cause determinations
as a traditional search warrant in order to maintain the level of privacy
citizens of this Commonwealth have always come to expect with face-to-face
communications within their own homes. Accordingly, any evidence
obtained as a result of the intercepted conversations, and the subsequent
search warrant issued on June 29, 2011, should have been suppressed.
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Therefore, we are constrained to vacate appellant’s judgment of sentence
and remand for a new trial.
Any discussion of appellant’s second and third issues on appeal is not
necessary, as the issues are now moot. As noted, we are cognizant of the
fact that this court will not be the final word on this issue. We strongly
advocate that our Supreme Court review this case and determine whether
our interpretation is in line with its seminal decision in Brion. We recognize
this decision has broad ramifications for law enforcement.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Shogan, J. joins this Opinion.
Strassburger, J. files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2016
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