J-S56039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
WILLIAM MCRAE,
Appellant No. 2572 EDA 2016
Appeal from the Judgment of Sentence July 22, 2016
in the Court of Common Pleas of Monroe County
Criminal Division at Nos.: CP-45-CR-0000152-2014
CP-45-CR-0000153-2014
BEFORE: BOWES, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 06, 2017
Appellant, William McRae, appeals from the judgment of sentence
imposed on July 22, 2016, following his jury conviction, in two consolidated
cases, of one count each of murder in the first degree, conspiracy, robbery,
unlawful restraint, theft by unlawful taking, receiving stolen property, and
tampering with evidence, and his non-jury conviction of prohibited possession
of a firearm.1 On appeal, Appellant challenges the denial of his motion for a
mistrial, various evidentiary rulings of the trial court, and the denial of his
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2501, 903, 3701, 2902, 3921, 3925, 4910, and 6105,
respectively.
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motion to suppress his statements to the police. For the reasons discussed
below, we affirm.
We take the underlying facts and procedural history in this matter from
the trial court’s October 17, 2016 opinion, and our independent review of the
certified record.
On July 31, 201[3], the Pocono Mountain Regional Police
Department (hereinafter “PMRPD”) responded to a report of an
injured man. The PMRPD arrived at the Emerald Lakes Estates
residence and found Gerald Rothbart bleeding from his head, with
his hands zip–tied behind his back. Rothbart had responded to a
Craigslist personal ad, which he believed to be an [eighteen]-year-
old female soliciting sex. However, upon his arrival to meet the
“female” at a wooded area in Emerald Lakes, two males attacked
Rothbart. One of the males wielded an aluminum baseball bat and
struck Rothbart multiple times. The males took Rothbart’s wallet,
money, and credit cards.
On August 6, 2013, a PMRPD patrol officer in Emerald Lakes
reported a Nissan Altima with its rear window blown out and a
deceased male inside. The male was identified as Brandon
Fraser,[2] who was lying face down in the back of the car, dead
from a gunshot wound to the back of the head. Through
investigation it was revealed that Fraser masterminded the
robbery of Rothbart. Fraser had posted the Craigslist ad, and had
texted with Rothbart for approximately one month, posing as the
[eighteen]-year-old female.
On August 7, 2013, as part of the robbery investigation,
PMRPD executed a search warrant on Appellant’s house. Appellant
shared the house with his mother, Sharon McRae-Coe. Ms.
McRae-Coe had informed the PMRPD that her home had a video
surveillance system and that Fraser was in her house on July 31,
2013. After observing the surveillance video obtained from
____________________________________________
2 The victim’s name is occasionally spelled “Frazier” in the certified record.
(See e.g., N.T. Trial, 5/10/16, at 109). As the spelling “Fraser” is used the
majority of the time, and as this is the version used by the parties, in the
interest of continuity, we will use that spelling.
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Appellant’s residence, PMRPD found that the footage implicated
Appellant, Fraser, and Emily Woodman in a conspiracy to commit
the robbery of July 31, 2013. Based on this footage, the PMRPD
executed another search warrant on Appellant’s residence.
On August 11, 2013, a criminal complaint was filed charging
Appellant with three counts of [r]obbery, two counts of [c]riminal
[c]onspiracy to [c]ommit [r]obbery, and one count each of
[a]ggravated [a]ssault, [u]nlawful [r]estraint, [t]heft by
[u]nlawful [t]aking, [r]eceiving [s]tolen [p]roperty, and
[p]ossessing [i]nstruments of a [c]rime. A warrant was issued for
Appellant’s arrest in connection with the robbery of Rothbart. In
order to locate Appellant, PMRPD arranged for the wiretap of
several phone conversations between Appellant and Kwaku Sims.
These wiretaps were conducted with Sims’ consent. The PMRPD
learned from these conversations that Appellant was in New York.
On August 19, 201[3], the U.S. Marshall’s Office arrested
Appellant and took Appellant into custody to await extradition.
That same day, Appellant had retained Attorney Lamb to
represent him in New York. Also on August 19, 2013[,] Lieutenant
Chris Wagner and Detective Sargent Kenneth Lenning of the
PMRPD went to New York to interview Appellant for the first time.
Appellant’s attorney was not present during the interview, but
Detective Sargent Lenning verbally advised Appellant of his
Miranda[3] rights. [Appellant signed a waiver of his Miranda
rights and made a statement to the police.]. . . .
* * *
On December 18, 2013, Appellant waived extradition and
was returned to Pennsylvania. That same day, a new criminal
complaint was filed against Appellant charging him with one count
each of [c]riminal [h]omicide, [t]ampering with [p]hysical
[e]vidence, and [p]rohibited [p]ossession of a [f]irearm. After
arraignment before Magisterial District Judge Richard Claypool,
Appellant was held without bail.
Also on December 18, 2013, but before he was arraigned,
PMRPD interviewed Appellant for a second time, this time at
PMRPD headquarters. Lieutenant Wagner was again present,
____________________________________________
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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accompanied by Detective Christopher Boheim. Appellant was
properly Mirandized and Appellant never made any clearly
articulated invocation of his Miranda rights.
On January 21, 2014, the criminal complaints from August
11, 2013 and December 18, 2013 were consolidated into a single
hearing before MDJ Claypool, who held all charges for [the trial
c]ourt. On January 30, 2014, the Commonwealth filed [c]riminal
[i]nformation[]s for both matters. Pursuant to Pa.R.Crim.P.
582(B)(1), on February 10, 2014 notice was given to the Appellant
that the above-captioned cases were joined for trial.
On July 2, 2014, Appellant filed an [o]mnibus pretrial
motion. A hearing on said [m]otion was held on August 25, 2014
and [the trial c]ourt issued its [o]pinion on January 20, 2015. On
December 16, 2015, Appellant filed a motion to sever the two
cases. A hearing was scheduled on December 21, 2015. [The trial
c]ourt issued its [o]pinion denying Appellant’s motion to sever on
March 4, 2016.
Appellant filed supplemental pretrial motions on April 5,
2016, requesting: 1) [the trial court] preclude the Commonwealth
from introducing evidence about “the facts and circumstances
surrounding the Appellant’s conviction for [b]urglary in
11/04/09;” 2) [s]everance, and a bench trial of the offense of
[p]ersons not to [p]ossess a [f]irearm; 3) the Commonwealth be
precluded from introducing the certified records from Joseph
Harrigan of his [w]ritten [j]uvenile [a]llegation, [a]dmission
[f]orm, [a]djudicatory [h]earing [o]rder, and [s]tatement of
[f]acts; 4) [the trial court] preclude the Commonwealth from
introducing any evidence of the pending assault charges; and 5)
a continuance. After conference and submission of memoranda
of law in support of their respective positions, [the trial court]
granted Appellant’s motion[]s to exclude evidence of his burglary
and his subsequent assault charge. [The trial court] further
granted Appellant’s severance request but denied his continuance
request. By stipulation of counsel, the Commonwealth agreed to
not introduce the certified records of Joseph Harrigan.
[At trial, Enrique Perez testified that he was involved in a
feud with Appellant over monies he claimed Appellant owed him
for damaging his motorcycle. (See N.T. Trial, 5/11/16, at 33-36).
He stated that, on the evening of July 18, 2013, a car drove up to
his home and beeped, a woman passed him an object wrapped in
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toilet paper and said, “[t]his is compliments of Will.” (Id. at 33).
Appellant was the only Will that Mr. Perez was engaged in a
dispute with. (See id.). The object was a shell. (See id.). Mr.
Perez reported the incident to the police. (See id. at 36-37). He
described the woman as being mixed race, light-skinned Hispanic
and African-American. (See id. at 39).
PMRP Patrol Officer Jeff Papi testified and confirmed that Mr.
Perez reported the incident to him and gave him the shell in
question. (See id. at 43-44). Office Papi stated that Appellant’s
description of the person he was feuding with and the address he
gave him matched Appellant. (See id. at 44-45). Officer Papi
was unable to identify the female who delivered the shell. (See
id. at 45). Later ballistic testing confirmed that the shell matched
those in the murder weapon. (See N.T. Trial, 5/10/16, at 6-7).
The Commonwealth was unable to locate the Hispanic-
looking female in question. (See id. at 8). Approximately, two
weeks before trial, during trial preparation with cooperating
witness, Jacqueline Harrigan, the Commonwealth asked her if she
could identify the female. (See id.). Ms. Harrigan volunteered
that she was the woman in question, explaining that she tans quite
darkly in the summer and looked Hispanic. (See id.). After the
commencement of trial, the Commonwealth disclosed this
information to defense counsel, who objected to its admission.
(See id. at 6-9). However, the trial court allowed the testimony.
(See id. at 9)].
On May 16, 2016 Appellant was convicted by jury of [the
above-cited offenses]. . . . Appellant was acquitted of [r]obbery—
[i]nfliction of [s]erious [b]odily [i]njury and [a]ggravated
[a]ssault.
On July 22, 2016 Appellant was sentenced in case No. 153
CR 2014 and 152 CR 2014 of life imprisonment without the
possibility of parole followed by a period of incarceration of [not
less than two hundred and sixty-four nor more than five hundred
and twenty-eight months]. Appellant filed the current appeal on
August 16, 2016 and filed his [c]oncise [s]tatement of [errors]
[c]omplained of on [a]ppeal on September 6, 2016. [See
Pa.R.A.P. 1925(b). On October 17, 2016, the trial court issued an
opinion. See Pa.R.A.P. 1925(a).]
(Trial Court Opinion, 10/17/16, at 1-6) (footnotes omitted).
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On appeal, Appellant raises the following questions for our review:
A. Whether the [c]ourt erred in denying Appellant’s
[m]otion for [m]istrial after the Commonwealth admitted 404(b)
[c]haracter [e]vidence]; [c]rimes or [o]ther [a]cts despite the
[c]ourt’s previous ruling which granted Appellant’s [m]otion in
[l]imine precluding 404(b) [c]haracter [e]vidence[?]
B. Whether the [c]ourt erred in allowing the
Commonwealth to admit intercepted telephone calls between
Appellant and Kwaku Sims[?]
C. Whether the [c]ourt erred in allowing the
Commonwealth to admit statements of Appellant made during
custodial interrogations on August 19, 2013 and December 18,
2013[?]
D. Whether the [c]ourt erred by allowing the
Commonwealth to introduce the testimony of Jaqueline Harrigan
identifying herself as the “Hispanic” looking female that delivered
a [shell] where said testimony was not provided to Appellant via
discovery until after the commencement of trial[?]
(Appellant’s Brief, at 9).
In his first issue, Appellant contends that the trial court erred in denying
his motion for a mistrial after the Commonwealth introduced prior bad act
testimony in violation of its previous grant of Appellant’s motion in limine
precluding evidence regarding Appellant’s prior conviction for burglary. (See
id. at 17-18). For the reason discussed below, we find that Appellant waived
this claim.
The following standards govern our review of the denial of a motion for
mistrial:
In criminal trials, declaration of a mistrial serves to eliminate
the negative effect wrought upon a defendant when prejudicial
elements are injected into the case or otherwise discovered at
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trial. By nullifying the tainted process of the former trial and
allowing a new trial to convene, declaration of a mistrial serves
not only the defendant’s interest but, equally important, the
public’s interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to grant a
mistrial whenever the alleged prejudicial event may reasonably be
said to deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern whether
misconduct or prejudicial error actually occurred, and if so, . . .
assess the degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether the court
abused its discretion. Judicial discretion requires action in
conformity with [the] law on facts and circumstances before the
trial court after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner lacking
reason.
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal
denied, 145 A.3d 724 (Pa. 2016) (citation omitted). “A mistrial is an extreme
remedy that is required only where the challenged event deprived the accused
of a fair and impartial trial.” Commonwealth v. Smith, 131 A.3d 467, 475
(Pa. 2015), cert. denied, 137 S.Ct. 46 (2016) (citation omitted). “The trial
court is in the best position to assess the effect of an allegedly prejudicial
statement on the jury, and as such, the grant or denial of a mistrial will not
be overturned absent an abuse of discretion.” Commonwealth v. Parker,
957 A.2d 311, 319 (Pa. Super. 2008), appeal denied, 966 A.2d 571 (Pa. 2009)
(citation omitted).
In the instant matter, the objected to statement took place during the
playing of an audio version of Appellant’s August 7, 2013 interview with
PMRPD. (See N.T. Trial, 5/05/16, at 64-65). Thus, the objected to statement
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is not of record.4 (See id.). Appellant did not immediately object to the
statement but, instead, waited until the jury had been excused for lunch and
then moved for a mistrial. (See id. at 70). Thus, this Court is only able to
determine the content of the statement from the precis provided by counsel
during argument on the issue. (See id. at 70-71, 77-79). In his brief,
Appellant does not provide the text of the objected-to statement. (See
Appellant’s Brief, at 17-18). While the Commonwealth, in its brief, and the
trial court, in its opinion, are more specific, neither quotes to a transcript of
the actual interview but instead cite to the argument mentioned above. (See
Commonwealth’s Brief, at 4-7; Trial Ct. Op., 10/17/16, at 7-8).
We have stated “[w]hen the appellant . . . fails to conform to the
requirements of [Pa.R.A.P.] 1911 [relating to transcript requests], any claims
that cannot be resolved in the absence of the necessary transcript or
transcripts must be deemed waived for the purpose of appellate review.”
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc),
appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted). Further, it is the
appellant’s responsibility to make certain that the certified record contains all
items necessary to ensure that this Court is able to review his claims. See
____________________________________________
4 This Court made an unsuccessful inquiry to the trial court in an attempt to
obtain the transcript of the August 7, 2013 interview. We have also examined
Appellant’s request for transcripts and he did not seek to have this interview
transcribed. (See Request for Transcripts, 8/16/16, at 1).
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Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc).
This Court has stated:
It is black letter law in this jurisdiction that an appellate
court cannot consider anything which is not part of the record in
the case. It is also well-settled in this jurisdiction that it is
Appellant’s responsibility to supply this Court with a complete
record for purposes of review. A failure by appellant to insure that
the original record certified for appeal contains sufficient
information to conduct a proper review constitutes waiver of the
issue sought to be examined.
Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007), appeal
denied, 940 A.2d 363 (Pa. 2008) (citations and quotation marks omitted). In
Commonwealth v. O’Black, 897 A.2d 1234 (Pa. Super. 2006), we found
waiver after noting that the trial transcript was not in the reproduced or
certified record and that our attempt to find the transcript had been
unavailing. See O’Black, supra at 1238.
An appellant’s failure to ensure that the original record as certified for
appeal contains sufficient documentation to enable the court to conduct a
proper review constitutes a waiver of the issues sought to be reviewed on
appeal. See Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007),
appeal denied, 951 A.2d 1164 (Pa. 2008); see also Smith v. Smith, 637
A.2d 622, 623-24 (Pa. Super. 1993), appeal denied, 652 A.2d 1325 (Pa.
1994). Accordingly, we find that Appellant’s failure to request transcription of
the August 7, 2013 interview, waived his first issue on appeal.
Moreover, even if Appellant had provided the necessary transcript, we
would still find this issue waived because Appellant’s argument is
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undeveloped. His argument on this issue consists of three brief paragraphs.
(See Appellant’s Brief, at 17-18). The first paragraph is boilerplate law
concerning the admission of character evidence and the trial court’s standard
for granting a mistrial. (See id. at 17). The second paragraph is an
inadequate discussion of Appellant’s motion in limine and the trial court’s order
granting it. (See id. at 17-18). The third paragraph consists of a single
conclusory sentence that the Commonwealth played a portion of Appellant’s
interview with the police that outlined his prior criminal conduct. (See id. at
18). Appellant never attempts to apply the law to the facts of the case, never
discusses how the trial court’s ruling on his motion in limine covers the
statement in questions,5 or explains how a reference to his prior criminal
activity, made during the course of a two-hour interview played in a trial that
lasted nearly two weeks, so prejudiced him as to require the extreme remedy
of a grant of a mistrial.
We have stated:
____________________________________________
5 We note that this Court has reviewed Appellant’s supplemental pretrial
motion, wherein he sought to exclude any reference to any “facts and
circumstances surrounding [Appellant’s] conviction for Burglary (F-1) [on
November 4, 2009].” (Appellant’s Supplemental Pretrial Motion, 4/05/16, at
3). We have also reviewed the transcript of oral argument on this issue, (see
N.T. Hearing, 4/06/16, at 2-28), as well as the argument made during
Appellant’s motion for a mistrial (see N.T. Trial, 5/05/16, at 70-79), to the
extent we can make a determination, it is not at all apparent that Appellant
moved to exclude the statements made during the August 7, 2013 interview
or that they were covered by the trial court’s ruling. (See Supplemental
Pretrial Motion at 3; N.T. Hearing, 4/06/16, at 2-28, N.T. Trial 5/05/16, at 70-
79).
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In an appellate brief, parties must provide an argument as to each
question, which should include a discussion and citation of
pertinent authorities. Pa.R.A.P. 2119(a). . . . This Court is neither
obliged, nor even particularly equipped, to develop an argument
for a party. Commonwealth v. Williams, 566 Pa. 553, 577, 782
A.2d 517, 532 (2001) (Castille, J., concurring). To do so places
the Court in the conflicting roles of advocate and neutral arbiter.
Id. When an appellant fails to develop his issue in an argument
and fails to cite any legal authority, the issue is waived.
Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super.
1996). . . .
B.D.G., supra at 371-72. Thus, failure to cite case law or other legal authority
in support of an argument results in waiver of the claim. See
Commonwealth v. Liston, 941 A.2d 1279, 1285 (Pa. Super. 2008) (en
banc), affirmed in part and vacated in part, 977 A.2d 1089 (Pa. 2009);
Pa.R.A.P. 2101. Thus, even if Appellant had provided a transcript of the
August 7, 2013 interview, we would have found the claim waived based upon
his undeveloped argument. See B.D.G., supra at 371-72.
In his second claim, Appellant argues that the trial court erred in denying
his motion to suppress consensual telephone intercepts between himself and
cooperating witness Kwaku Sims because 18 Pa.C.S.A. § 5704, is
unconstitutional.6 (See Appellant’s Brief, at 18-24). We disagree.
Our standard of review is settled:
[w]hen an appellant challenges the constitutionality of a statute,
the appellant presents this Court with a question of law. Our
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6Although Appellant challenges the constitutionality of a statute, he need not
notify the Attorney General, as the Commonwealth is a party to this matter.
See 201 Pa. Code § 521.
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consideration of questions of law is plenary. A statute is presumed
to be constitutional and will not be declared unconstitutional
unless it clearly, palpably, and plainly violates the constitution.
Thus, the party challenging the constitutionality of a statute has a
heavy burden of persuasion.
Commonwealth v. Beaman, 846 A.2d 764, 768 (Pa. Super. 2004), affirmed,
880 A.2d 578 (Pa. 2005) (citation omitted).
18 Pa.C.S.A. § 5704 provides, in relevant part:
It shall not be unlawful and no prior court approval shall be
required under this chapter for:
* * *
(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, including, but not limited
to, the crimes enumerated in section 5708 (relating to
order authorizing interception of wire, electronic or
oral communications), 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; however, such interception shall
be subject to the recording and record keeping
requirements of section 5714(a) (relating to recording
of intercepted communications) and that the Attorney
General, deputy attorney general, district attorney or
assistant district attorney authorizing the interception
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shall be the custodian of recorded evidence obtained
therefrom[.]
18 Pa.C.S.A. § 5704(2)(ii).
Here, Appellant does not dispute that the intercepts were made in
accordance with this statute, but rather alleges that the statute violates
Appellant’s “right to privacy under the Fourth Amendment of the United States
Constitution and Article I, § 8 of the Pennsylvania Constitution.” (Appellant’s
Brief, at 18). We disagree.
In disposing of this issue, the trial court addressed, and properly
rejected, Appellant’s claim, stating:
Article I, Section 8 of the Pennsylvania Constitution requires
that searches and seizures by the Commonwealth be permitted
only upon obtaining a warrant based upon probable cause issued
by a neutral and detached magistrate. [See] Com. v. Labron,
669 A.2d 917, 920 (Pa. 1995)[, reversed on other grounds by,
Pennsylvania v. Labron, 518 U.S. 9328 (1996)]. Thus,
generally, searches and seizures conducted without a prior
determination of probable cause are unreasonable for
constitutional purposes. [see i]d. However, the probable cause
requirement only applies to situations in which the citizen
possesses a reasonable expectation of privacy in the item
searched or seized. [See] Com. v. DeJohn, [403 A.2d 1283,
1289 (Pa. 1979), cert. denied, 444 U.S. 1032 (1980)]. Therefore,
we must determine whether [Appellant] had a reasonable
expectation of privacy.
The Pennsylvania Supreme Court has stated that the
concurring opinion of Justice Harlan in Katz v. United States,
[389 U.S. 347 (1967)] “sets forth the foundation for both federal
and Pennsylvania constitutional law analysis with respect to
constitutionally-protected privacy expectations.” Com. v.
Rekasie, 778 A.2d 624, 628 ([Pa.] 2001). The test is: (1)
whether [Appellant] exhibited an actual subjective expectation of
privacy, and (2) whether that expectation is one that society is
prepared to recognize as reasonable. [See I]d. [(]citing Katz,
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supra at 361-62 (Harlan, J., concurring)[)]. Notably, the Court
in Rekasie highlighted that information that is voluntarily
disclosed does not track federal constitutional jurisprudence;
insofar as it does not automatically render it unprotected. [See
i]d. at 630 (“under Pennsylvania Constitutional jurisprudence, it
is manifest that a citizen’s expectation of privacy can extend, in
some circumstances, to information voluntarily disclosed to
others.”).
The Pennsylvania Supreme Court already addressed the
constitutionality of not requiring a warrant for one party
consensual interceptions in Rekasie.
In this appeal, our court revisits the area of one
party consensual wire interceptions. The sole issue
before our court is whether Article I, Section 8 of the
Pennsylvania Constitution requires the
Commonwealth to obtain a determination of probable
cause by a neutral, judicial authority before an agent
of the Commonwealth may initiate a telephone call to
an individual in his home and record that
conversation.
Rekasie, [supra at] 625. They held an individual does not have
a reasonable expectation of privacy that their telephone
conversation would be free from monitoring and thus the
Pennsylvania Constitution does not require a determination of
probable cause for one party consensual wire interceptions. [See
i]d. The facts of Rekasie are as follows:
Pursuant to an ongoing drug investigation, agents of the
Attorney General’s Office seized cocaine from Tubridy. Tubridy
told the agents that Rekasie was a drug courier and agreed to
participate in an investigation of Rekasie and consented to have
his telephone conversations with Rekasie taped. In accordance
with the Wiretapping and Electronics Surveillance Control Act (the
“Act”), Tubridy voluntarily consented to the recording of his
conversations with Rekasie. Tubridy twice called Rekasie at
Rekasie’s home and based on those intercepts, a search warrant
was issued which permitted the Attorney General’s office to seize
and search Rekasie’s luggage while he was disembarking from an
airplane flight from Fort Lauderdale, Florida to Pittsburgh,
Pennsylvania. The search revealed just under a pound of cocaine.
Rekasie was subsequently charged with possession with intent to
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deliver a controlled substance, possession of a controlled
substance and criminal conspiracy. Rekasie filed a motion to
suppress on the ground that his constitutional rights had been
violated by the interceptions. A suppression hearing was held in
which the Commonwealth presented evidence that it had
permission to record the conversations pursuant to section
5704(2)(ii) of the Act.
The trial court initially denied the motion to suppress. After
reconsideration, however, the court granted the motion on the
basis of Com. v. Brion, [652 A.2d 287 (Pa. 1994) (Pennsylvania
Constitution requires determination of probable cause by neutral
judicial authority before Commonwealth may conduct electronic
interception of face-to-face conversation in one’s home by
individual wearing body wire)]. The Superior Court reversed
holding that Brion was limited to the use of a body wire by a
confidential informant in the home of a defendant and did not
apply to the interception of telephone conversations.
The Supreme Court granted allocatur to determine whether
our Commonwealth’s Constitution requires that the
Commonwealth obtain a probable cause determination from a
neutral judicial authority before it may monitor a telephone
conversation between a cooperative informant and another
individual.
The Supreme Court, applying the Katz privacy expectation
test found that while Rekasie might have possessed an actual or
subjective expectation of privacy, because of the nature of
telephonic communication, it is not an expectation that society
was willing to accept as objectively reasonable.
[]A telephone call received by or placed to another is
readily subject to numerous means of intrusion at the
other end of the call, all without the knowledge of the
individual on the call. Extension telephones and
speakerphones render it impossible for one to
objectively and reasonably expect that he or she will
be free from intrusion. The individual cannot take
steps to ensure that others are excluded from the call.
Based upon these realities of telephonic
communication, and the fact that Rekasie could not
reasonably know whether Tubridy had consented to
police seizure of the contents of the conversation, we
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hold that Rekasie did not harbor an expectation of
privacy in his telephone conversation with Tubridy
that society is willing to recognize as reasonable.[]
Rekasie, [supra at] 631. Thus, the Commonwealth was not
required to obtain a determination of probable cause by a neutral
judicial authority prior to monitoring the telephone conversation
between Rekasie and the confidential informant Tubridy.
In [Brion, supra], the Supreme Court held that the
Pennsylvania Constitution requires a warrant before police may
send a confidential informant into one’s home with a body wire to
record a conversation with the defendant. [Brion, supra at 287].
They determined that interceptions of oral conversation within
one’s home could only pass constitutional muster if a neutral
judicial authority makes a prior determination of probable cause.
Brion is distinguished form Rekasi and the case currently before
us because a face-to-face interchange occurring solely within the
home is substantially different than a conversation, on a telephone
call; where an individual has no ability to create an environment
in which they can reasonably be assured that the conversation is
not being recorded by another party. On the telephone, one can
never be sure who is actually listening on the other end.
[]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[].
Rekasie, [supra at] 632.
As the Pennsylvania Supreme Court has already decided the
constitutionality of not requiring a warrant for one party
consensual interceptions under the Katz test, we find no
compelling reason to reach a contrary resolution of this issue. A
defendant’s expectation of privacy in a telephone conversation
with another is not one that society is prepared to recognize as
objectively reasonable, therefore [Appellant’s] motion to suppress
is denied.
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(Trial Ct. Op., 1/20/15, at 5-9) (footnotes omitted some citation formatting
provided).
Moreover, we are unpersuaded by Appellant’s contention that the United
States Supreme Court’s decision in Riley v. California, 134 S.Ct. 2473
(2014), necessitates a revisiting of this settled law. (See Appellant’s Brief, at
22-24). In Riley, the United States Supreme Court held that when a cell
phone is recovered during a search incident to arrest, police must obtain a
warrant before searching the contents of the cell phone. See Riley, supra at
2485. We see nothing in Riley, which persuades us that the Supreme Court
intended to apply its holding outside of the context of searches incident to
arrest or that it in any way implies that the decision had any impact
whatsoever with respect to a consensual wiretap.
Moreover, in a recent case, Commonwealth v. Diego, 119 A.3d 370
(Pa. Super. 2015) (en banc), appeal denied, 129 A.3d 1240 (Pa. 2015), this
Court specifically refused to extend Riley outside of that context. In Diego,
a cooperating witness set up a drug deal with the defendant by using the text
messaging service on his iPad, while police officers watched him and read the
messages. See id. 372-73. After a hearing, the trial court suppressed the
evidence. See id. at 373. The Commonwealth appealed. See id. On appeal,
a panel of this Court reversed, specifically rejecting the appellee’s argument
that “he possessed a heightened expectation of privacy” pursuant to Riley.
Id. at 377; see id. at 377-78. We stated:
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Here, Appellant’s reliance on Riley is simply misplaced. The
police did not obtain the contents of Appellant’s text message
conversation with [the cooperating witness] by searching
Appellant’s phone incident to his arrest. . . . Thus, the heightened
expectation of privacy recognized in Riley, is not applicable to this
case.
Id. at 378. Thus, we find that the trial court did not commit an error of law
in declining to find that 18 Pa.C.S.A. § 5704 is unconstitutional. Appellant’s
second issue lacks merit.
In his third issue, Appellant contends the trial court erred in denying his
motion to suppress statements made to the police during his August 19, 2013
and December 18, 2013 interviews. (See Appellant’s Brief, at 24-28). In a
case involving an appeal from the denial of a motion to suppress:
[our] standard of review . . . 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, [the appellate court is] bound by [those]
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 the facts. Thus, the conclusions
of law of the courts below are subject to [ ] plenary review.
Commonwealth v. Randolph, 151 A.3d 170, 175 (Pa. Super. 2016), appeal
denied, 2017 WL 1734370 (Pa. filed May 2, 2017) (citation omitted).
However, we are constrained to find the issue waived.
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In the instant matter, like the August 7, 2013 interview, the August 19,
and December 18, 2013 interviews with PMRPD are not transcribed and
Appellant did not request that they be transcribed. (See N.T. Suppression
Hearing, 8/25/14, at 4-48; Request for Transcripts, 8/16/16, at 1). Again,
this Court sought to obtain transcriptions from the trial court but was
unsuccessful. It appears from our review of the trial court opinion and both
parties’ briefs, that the tapes contain pertinent discussion surrounding
Appellant’s ultimate decision to waive his Miranda rights.7 (See Appellant’s
Brief, at 24-28; Commonwealth’s Brief, at 16-25; Trial Ct. Op., 1/20/15, at 3-
4, 9-16).
In its ruling, while the trial court does quote from the relevant portion
of the August 19, 2013 interview, it admits that its description of the
conversation is based upon a poor quality audio recording and it constitutes
“[the trial court’s] best interpretation of the tape[;]” while it references the
December 18, 2013 interview, it does not directly quote from it. (Trial Ct.
Op., 1/20/15, at 3 n.11; see also id. at 9-16). In his statement of the case,
Appellant occasionally quotes from DVDs of the August 19, 2013 and
December 18, 2013 interview. (See Appellant’s Brief, at 13-14). There is no
DVD contained in the certified record and it is not clear if this DVD is identical
____________________________________________
7 After making inquiry of the trial court, this Court was able to obtain copies
of Appellant’s written waiver of his Miranda rights. (See N.T. Suppression
Hearing, 8/25/14, at Commonwealth’s Exhibits seven and eight).
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to the audio recording listened to by the trial court. The Commonwealth also
quotes from a portion of the August 19, 2013 interview, but its citation is to
the trial court’s January 20, 2015 opinion, which as noted above is the trial
court’s best guess of what was said during that interview. Absent
transcription, this Court has no means to assess the accuracy of Appellant’s
quotations from the interviews or the trial court’s interpretation of what was
said during the August 19, 2013 interview.
As discussed above, it is Appellant’s responsibility to ensure that the
certified record is complete. See B.D.G., supra at 372. Again we note, that
“[i]n the absence of an adequate certified record, there is no support for an
appellant’s arguments and, thus, there is no basis on which relief could be
granted.” Preston, supra at 7. Accordingly, we are compelled to find that
Appellant waived his third issue.
In his final claim, Appellant avers that the trial court erred in admitting
witness Jacqueline Harrigan’s testimony that she was the previously
unidentified woman who gave a shell to witness Enrique Perez at Appellant’s
request. (See Appellant’s Brief, at 28-32). Appellant claims that the
Commonwealth failed to disclose this evidence in violation of the United States
Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), and
Pennsylvania Rule of Criminal Procedure 573(D).8 We disagree.
____________________________________________
8 Pennsylvania Rule of Criminal Procedure 573 provides in pertinent part:
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Initially we note our standard of review. This Court has held that:
With regard to evidentiary challenges, it is well established
that [t]he admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error. An abuse of
discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.
Furthermore, if in reaching a conclusion the trial court overrides
or misapplies the law, discretion is then abused and it is the duty
of the appellate court to correct the error.
Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation
and quotation marks omitted).
The law governing alleged Brady violations is settled.
Under Brady and subsequent decisional law, a prosecutor
has an obligation to disclose all exculpatory information
material to the guilt or punishment of an accused, including
evidence of an impeachment nature. To establish a Brady
violation, an appellant must prove three elements: (1) the
evidence at issue was favorable to the accused, either because it
is exculpatory or because it impeaches; (2) the evidence was
suppressed by the prosecution, either willfully or inadvertently;
and (3) prejudice ensued. The burden rests with the appellant to
prove, by reference to the record, that evidence was withheld or
suppressed by the prosecution. The evidence at issue must have
____________________________________________
(D) Continuing Duty to Disclose. If, prior to or during trial,
either party discovers additional evidence or material previously
requested or ordered to be disclosed by it, which is subject to
discovery or inspection under this rule, or the identity of an
additional witness or witnesses, such party shall promptly notify
the opposing party or the court of the additional evidence,
material, or witness.
Pa.R.Crim.P. 573(D).
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been material evidence that deprived the defendant of a fair trial.
Favorable evidence is material, and constitutional error results
from its suppression by the government, if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.
Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa. Super. 2016) (citations
and quotation marks omitted) (emphasis added). Here, the testimony in
question by Jacqueline Harrigan was inculpatory, and, therefore, not governed
by Brady. See Commonwealth v. Maldonodo, -- A.3d --, 2017 WL
4001659, at *3 (Pa. Super. Sept. 12, 2017) (en banc) (holding that Brady
requires that evidence in question be favorable to accused); Commonwealth
v. Counterman, 719 A.2d 284, 297 (Pa. 1998), cert. denied, 528 U.S. 836
(1999). Thus, Appellant’s claim that the Commonwealth did not fulfill its
obligations under Brady lacks merit.
In addition, the trial court correctly analyzed Appellant’s claim that it
should have disallowed the evidence because of the Commonwealth’s violation
of Pa.R.Crim.P. 573 as follows:
In [Counterman, supra], the Pennsylvania Supreme Court
held that the Commonwealth had violated its disclosure duties
under the Rules of Criminal Procedure[a] in a homicide trial where
it failed to disclose inculpatory statements from the defendant’s
wife until after the commencement of trial. [See] Counterman,
[supra at] 298. However, the Court also held that, despite the
Commonwealth’s failure to properly disclose this evidence, there
was no trial court error in admitting same because the defendant
did not demonstrate prejudice. Id. In coming to this conclusion,
the Supreme Court discussed the trial court’s “broad discretion in
deciding the appropriate remedy for a discovery violation” and
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that “a defendant seeking relief from a discovery violation must
demonstrate prejudice.” Id.
The Supreme Court in Counterman cites to Rule
[a]
305(B) which is substantially the same as the present
Rule 573(B). Compare Counterman, [supra at]
298 (citing Rule 305(B)) and Rule 573(B).
Like the defendant in Counterman, Appellant has failed to
demonstrate how Ms. Harrigan’s testimony worked to his
prejudice. Independent of Ms. Harrigan’s testimony, there was
sufficient testimony, all of which had been provided to the
Appellant in discovery, that Appellant sent a woman to deliver the
shell casing in question to Enrique Perez. Mr. Perez testified that
a Hispanic-looking female had approached his residence and
delivered to him a shell casing wrapped in toilet paper with the
message “[c]ompliments of Will.” N.T., Trial, 5/11/16, pp. 33, 37-
39. Mr. Perez additionally testified that the only “Will” he had
problems with was Appellant. See N.T., Trial, 5/11/16, p. 33.
Officer Papi further corroborated these statements when he
testified that the description of the “Will” Mr. Perez had problems
with and the description of where that individual lived both
matched Appellant. N.T., Trial, 5/11/16, p. 44.
In light of this independent testimony, which had been
included in pretrial discovery, Ms. Harrigan’s statements were
cumulative at best. The identity of the woman who delivered the
shell casing to Mr. Perez is of no consequence-whomever she was,
Ms. Harrigan or otherwise, she stated the shell casing was
“Compliments of Will.” Furthermore, Appellant was the only “Will”
Mr. Perez had a problem with and that same shell casing was tied
to the rifle used to kill Mr. Fraser. Appellant cannot show prejudice
and this allegation of error is, therefore, without merit.[b]
[b][The trial court] also note[s] that even if [it] erred
in admitting Ms. Harrigan’s testimony, the Superior
Court will consider any such error harmless where
“erroneously admitted evidence was merely
cumulative of other, untainted evidence which was
substantially similar to the erroneously admitted
evidence.” Commonwealth v. Miles, 846 A.2d 132,
137-38 (Pa. Super. 2004) (en banc)[, appeal
dismissed, 871 A.2d 1248 (Pa. 2005)] (citation
omitted).
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(Trial Ct. Op., 10/17/16, at 13-15) (some citation formatting provided).
We have thoroughly reviewed the parties’ arguments and the testimony
in question and agree that the trial court acted within its discretion to admit
Ms. Harrigan’s testimony. See Maldonodo, supra at *3, Counterman,
supra at 298. As the trial court correctly notes, Ms. Harrigan’s testimony was
cumulative of that of Mr. Perez and Officer Papi. (See N.T. Trial, 5/11/16, at
30-46; N.T. Trial, 5/12/16, at 16-18). Appellant has failed to show how he
was prejudiced by this testimony, particularly in light of defense counsel’s
withering cross-examination about Ms. Harrigan’s habit of dribbling out
information to the Commonwealth in exchange for favorable treatment. (See
N.T. Trial, 5/12/16, at 83-93). Appellant’s final claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2017
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Com. v. McRae, W.
Combined Opinion