J-S15023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MARCUS MYERS :
: No. 3121 EDA 2017
Appellant :
Appeal from the Judgment of Sentence January 19, 2017
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002290-2015,
CP-45-CR-0002291-2015
BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED APRIL 26, 2018
Appellant, Marcus Myers, appeals from the Judgment of Sentence
entered in the Monroe County Court of Common Pleas following his conviction
by a jury of Retaliation Against Witness, Victim or Party and Harassment1 at
Docket No. 2290 and of Fleeing or Attempting to Elude a Police Officer2 at
Docket No. 2291.3, 4 Appellant challenges the admission of evidence obtained
by wiretap interception. After careful review, we conclude Appellant waived
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1 18 Pa.C.S. § 4953(a) and 18 Pa.C.S. § 2709(a)(4), respectively.
2 75 Pa.C.S. § 3733(a).
3 The trial court joined these cases by Order following the Commonwealth’s
oral Motion at Appellant’s final pre-trial conference.
4 The court also convicted Appellant of nine summary traffic offenses related
to Appellant’s unsafe driving.
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his challenge by failing to raise it in a Motion to Suppress as required by
Section 5721.1 of the Wiretapping and Electronic Surveillance Control Act
(“The Wiretap Act”), 18 Pa.C.S, §§ 5703, et seq. Accordingly, we affirm.
The facts and procedural history are as follows. On September 7, 2015,
while conducting a stationary speed detail, Patrolman Aaron Anglemyer of the
Pocono Township Police Department observed Appellant driving a 2005 Honda
Motorcycle erratically and at a high rate of speed through a residential
neighborhood. When Patrolman Anglemyer attempted to conduct a traffic
stop, Appellant failed to stop his motorcycle and fled. Patrolman Anglemyer
gave chase, but was unable to catch Appellant. Shortly thereafter, another
officer located a motorcycle and helmet matching the description of the one
driven and worn by Appellant during the chase. PENNDOT records revealed
that Appellant owned the motorcycle, and that both the motorcycle’s
registration and Appellant’s driver’s license had expired. PENNDOT records
also identified 191 Cherry Lane Road, Tannersville, Monroe County,
Pennsylvania as Appellant’s address.
Patrolman Anglemyer commenced surveillance at 191 Cherry Lane and
spoke with two individuals standing in Appellant’s driveway, one of whom was
Robert Gerhold. Gerhold advised him that Appellant “is and has been using
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methamphetamine regularly and that this has been causing [Appellant] to act
irrationally.” Anglmeyer’s Affidavit of Probable Cause, 10/8/15, at 2.5
On September 17, 2015, pursuant to the Wiretap Act, the
Commonwealth filed an Application for an Order Authorizing the Consensual
Interception of Oral Communications in a Home to permit the recording of oral
communications between Gerhold and Appellant at Appellant’s residence at
191 Cherry Lane Road. Wiretap Application, 9/17/15, at 1 (unpaginated).
The Commonwealth’s application included the Affidavit of Detective James
Wagner of the Pocono Township Police Department.6
The Honorable Margherita Patti-Worthington granted the Application.
Relevant to the instant appeal, the court’s Order provided:
(4) The residence of [Appellant] is located at 191 Cherry Lane
Road, Tannersville, Monroe County, Pennsylvania.
(5) As a result of the foregoing, the Pennsylvania State Police
are hereby authorized to intercept the oral and/or visual
communications of Robert Gerhold, [Appellant,] and others yet
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5 From speaking to Gerhold, Patrolman Anglemyer came to believe that
Gerhold may have narcotics in his car; Gerhold consented to a search of his
vehicle; and Patrolman Anglemyer found 56 grams of crystal
methamphetamine in the car, which Gerhold admitted he intended to sell to
Appellant. Police, thus, arrested Gerhold for Possession with Intent to Deliver
a Controlled Substance. N.T. Trial, 9/15/16, at 81, 126. Gerhold pleaded
guilty to this charge. Id. at 83.
6 In his Affidavit of Probable Cause, Wagner attested to the facts as set forth
supra. See Wagner Affidavit of Probable Cause, 9/17/15, at 1-2
(unpaginated).
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unknown within the business described in paragraph 4 for 30
days from the date of September 17, 2015.
(6) The Monroe County District Attorney shall assume custody and
control of any resultant original recordings as required by 18
Pa.C.S.[] 5704(2).
Order, 9/17/15 (emphasis added).
Gerhold agreed to permit police to record a conversation between him
and Appellant using a key chain digital audio and video recorder.7 During a
recorded conversation on September 22, 2015, Gerhold accused Appellant of
setting him up for a drug arrest and Appellant made incriminating statements
that identified himself as the driver of the motorcycle on the night of
September 7, 2015. Anglemyer Affidavit of Probable Cause, 10/8/15, at 4.
See Memorandum of Interception, 9/22/15.
Pursuant to an arrest warrant, on October 9, 2015, Patrolman
Anglemyer arrested Appellant for felony Fleeing or Attempting to Elude a
Police Officer. At his arraignment that same day, Appellant received a copy
of the Arrest Warrant and Patrolman Anglemyer’s Affidavit of Probable Cause,
which identified Gerhold as having cooperated with the police investigation.
Id.
Almost immediately thereafter, Appellant began sending Gerhold
threatening and vulgar text messages. Anglemyer Affidavit of Probable
Cause, 10/13/15, at 1. Between October 9, 2015, and October 11, 2015,
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7 See Written Consent, 9/17/15. Gerhold testified at Appellant’s trial that
Patrolman Anglemyer “brought up the possibility of [Gerhold] wearing a
wire[,]” and Gerhold “said yes.” N.T., 9/15/16, at 128.
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Appellant sent Gerhold several text messages, at all hours of the day and
night. Based on the threatening nature of the text messages, on October 13,
2015, Patrolman Anglemyer sought, and received, a warrant for Appellant’s
arrest on charges of Intimidation of a Witness, Retaliation Against Witness,
Victim, or Party, and Harassment.8
On October 27, 2015, Appellant waived his arraignment and preliminary
hearing on the Intimidation of a Witness charge.9 In his signed Waiver of
Arraignment, Appellant acknowledged that the last day for him to file a timely
Omnibus Pretrial Motion was December 12, 2015. Appellant did not file an
Omnibus Pretrial Motion on or before the deadline.
On September 13, 2016, two days before the start of his consolidated
jury trial—and more than eleven months after Appellant became aware that
Gerhold had recorded the incriminating conversation with Appellant—
Appellant filed a Motion in Limine to Exclude the Gerhold Recording. Appellant
averred that the recording should be excluded at trial because the
Commonwealth’s intercept of the communication between Appellant and
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8See Anglemyer Affidavit of Probable Cause, 10/13/15, at 1 (where Patrolman
Anglemyer explained that at Appellant’s October 9, 2015 arraignment on the
Fleeing and Eluding a Police Officer charge, Appellant received a copy of the
Arrest Warrant and Affidavit of Probable Cause, which identified Gerhold as
having cooperated with the police investigation and described the contents of
the recorded September 22, 2015 conversation between Gerhold and
Appellant).
9That same day, Appellant also waived his preliminary hearing on the Fleeing
or Attempting to Elude a Police Officer charge. The trial court consolidated
Appellant’s cases for trial.
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Gerhold was illegal. He based this conclusion on alleged errors on the face of
the Wiretap Order, contending that it: (1) authorized the wiretap for
Appellant’s business, not his residence; (2) granted authority to conduct the
intercept to the Pennsylvania State Police (“PSP”) and not the Pocono
Township Police Department; and (3) did not grant wiretapping authority
specifically to Detective James Wagner of the Pocono Township Police. Motion,
9/13/16, at ¶ 10. Appellant argued that the Commonwealth’s failure to adhere
strictly to the Wiretap Order, i.e., by having the Pocono Township Police,
rather than the PSP, record the conversation at Appellant’s residence, rather
than at his business, invalidated the recording and the court should exclude it
from trial.10
The court heard argument on the Motion in chambers prior to the start
of trial on September 15, 2016, and denied the Motion as untimely. See Trial
Ct. Op., 3/29/17, at 5-6. The trial judge further concluded that the “errors”
in the Wiretap Order upon which Appellant based his argument were merely
typographical in nature. Id. at 6-7. Last, the court also found that any errors
in the Order were harmless, observing that the authorizing court concluded
the Commonwealth demonstrated probable cause for the wiretap, Gerhold
consented freely to the recording, and Gerhold testified to the contents of the
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10Appellant does not dispute that his residential and business addresses are
one in the same. Appellant’s Brief at 7-8.
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recording at Appellant’s trial. Id. at 8-9. The court, thus, admitted the
recorded conversation between Appellant and Gerhold at trial.
Following a two-day jury trial, the jury convicted Appellant of Retaliation
Against Witness, Victim or Party; Harassment; and Fleeing or Attempting to
Allude a Police Officer. On January 19, 2017, the court sentenced Appellant
to two to six years’ incarceration. Appellant filed timely Post-Sentence
Motions, which the trial court denied on March 29, 2017.11
On April 5, 2017, Appellant’s trial counsel filed a Petition for Withdrawal
of Appearance, which the court denied the next day, subject to reconsideration
after “perfection of any appeal filed on behalf of” Appellant. Order, 4/6/17.
On April 21, 2017, Appellant filed a counselled Notice of Appeal.
On May 4, 2017, trial counsel renewed his request for leave to withdraw
as counsel. The trial court granted counsel’s Petition to Withdraw on May 16,
2017, and advised Appellant of his option to obtain other counsel, make an
application for counsel to the Monroe County Public Defender’s Office, or
proceed pro se. Appellant obtained alternate counsel, who filed a timely
Pa.R.A.P. 1925(b) Statement on Appellant’s behalf. On June 19, 2017, the
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11 Appellant also filed a Motion for Transcripts of his trial, which the court
granted by Order dated February 2, 2017. However, after Appellant failed to
pay the transcript deposit, the court vacated the Order without prejudice on
February 17, 2017. The court noted in its March 29, 2016 Order and Opinion
denying Appellant’s Post-Sentence Motions that, at the time of its disposition,
the court did not have the benefit of the Notes of Testimony.
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trial court indicated that it would rely on its March 29, 2017 Order and Opinion
denying Appellant’s Post-Sentence Motion in lieu of a Rule 1925(a) Opinion.
Appellant raises the following issue on appeal:
Whether evidence obtained by wiretap interception should have
been precluded at trial where the wiretap application and order
were defective and, therefore, whether [Appellant] should be
granted a new trial[?]
Appellant’s Brief at 4.
Appellant claims the trial court should have granted his Motion for a New
Trial because the Commonwealth violated his constitutional rights by obtaining
the intercept evidence admitted at trial with an Order that did not conform to
the requirements of 18 Pa.C.S. § 5712. Appellant’s Brief at 11. Our standard
of review for a trial court’s denial of a motion for a new trial is well settled.
We will reverse a trial court’s decision to deny a motion for a new
trial only if the trial court abused its discretion. . . . An abuse of
discretion exists when the trial court has rendered a judgment
that is manifestly unreasonable, arbitrary, or capricious, has failed
to apply the law, or was motivated by partiality, prejudice, bias,
or ill will.
Gbur v. Golio, 932 A.2d 203, 206–07 (Pa. Super. 2007) (citations and
quotation marks omitted).
“When reviewing a trial court’s denial of a motion in limine, this Court
applies an [ ] abuse of discretion standard of review.” Commonwealth v.
Schley, 136 A.3d 511, 514 (Pa. Super. 2016). “An abuse of discretion will
not be found based on a mere error of judgment, but rather exists where the
court has reached a conclusion which overrides or misapplies the law, or where
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the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.” Id. (citation omitted).
The Wiretap Act requires an order authorizing the intercept of an oral
communication to include the following information:
(1) The identity of the investigative or law enforcement officers or
agency to whom the authority to intercept wire, electronic or oral
communications is given and the name and official identity of the
person who made the application.
(2) The identity of, or a particular description of, the person, if
known, whose communications are to be intercepted.
(3) The character and location of the particular communication
facilities as to which, or the particular place of the communication
as to which, authority to intercept is granted.
(4) A particular description of the type of the communication to
be intercepted and a statement of the particular offense to which
it relates.
(5) The period of time during which such interception is
authorized, including a statement as to whether or not the
interception shall automatically terminate when the described
communication has been first obtained.
18 Pa.C.S. §5712(a).
Most relevant to this appeal, the Act also provides that a defendant who
wishes to challenge the constitutionality of a communications intercept must
file a Motion to Suppress.12 18 Pa.C.S § 5721.1(b), (c), (e). Here, Appellant
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12 See also Pa.R.Crim.P. 581 cmt. (explaining that Rule 581 “is designed to
provide one single procedure for the suppression of evidence alleged to have
been obtained in violation of the defendant’s rights). Rule 581 works in
tandem with Section 5721.1(c)(1), which provides that where, as here, a
defendant seeks to exclude evidence obtained by an allegedly materially
insufficient wiretap authorization order, the motion to exclude the evidence
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concedes that he did not file a Motion to Suppress.13 Rather, two days before
the commencement of his trial, he filed a Motion in Limine.
We note the distinction between a motion in limine and a suppression
motion:
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. It gives the trial judge the opportunity
to weigh potentially prejudicial and harmful evidence before the
trial occurs, thus preventing the evidence from ever reaching the
jury. [A] suppression motion is designed to preclude evidence
that was obtained in violation of a defendant’s constitutional
rights, while a motion in limine precludes evidence that was
constitutionally obtained but which is prejudicial to the moving
party.
Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011) (citation
omitted).
Here, the crux of Appellant’s argument is that, because the Wiretap
Order contained the errors noted supra, the Commonwealth obtained the
wiretap evidence in violation of his constitutional rights. Appellant’s Brief at
10. Appellant summarily concludes, therefore, that the court should have
suppressed the evidence because “such an error may not be disregarded when
ones’ fundamental constitutional rights are at stake.” Id. at 10.14 While
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“shall be made in accordance with the applicable rules of procedure governing
such proceedings.” 18 Pa.C.S. § 5721.1(c)(1).
13 Appellant’s Brief at 8-9.
14 Appellant also disputes the trial court’s characterization of the Order
granting the intercept Application as containing “mere typographical errors,”
and its conclusion that any error was harmless. Appellant’s Brief at 9-10.
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Appellant concedes that the proper and exclusive remedy to challenge the
interception of a wire, electronic, or oral communication is by filing a timely
motion to suppress, he nevertheless argues that the court can consider an
untimely challenges when, as in the instant matter, it is in the “interests of
justice.” Id. at 9.15
As discussed above, the Wiretap Act required Appellant to file a Motion
to Suppress. See 18 Pa.C.S § 5721.1(b),(c), (e). Moreover, any such Motion
should have been filed within 30 days after arraignment pursuant to
Pa.R.Crim.P. 579(A).16 Appellant’s eleventh-hour Motion in Limine was, thus,
an improper vehicle for obtaining the relief he sought. Because Appellant
failed to file a timely “motion to the court to suppress any evidence alleged to
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15 Appellant cites Commonwealth v. Micklos, 672 A.2d 796 (Pa. Super.
1996) (en banc), in support of this argument; however, we find Appellant’s
reliance on Micklos misplaced. In Micklos, the Commonwealth objected to
an oral suppression motion presented by defense counsel at the close of
evidence in the defendant’s bench trial. Micklos, 672 A.2d at 802. At the
time, the trial court “questioned the timeliness of the motion[,]” but
“considered it in the interests of justice[,]” suppressed the Commonwealth’s
evidence, and dismissed the charges against the defendant. Id.
On appeal, this Court concluded that the trial court did not abuse its discretion
in allowing the defendant to present an untimely motion to suppress after both
parties had rested, but did abuse its discretion in “failing to provide the
Commonwealth with an opportunity to re-open its case.” Id. at 804. Our
review of Miklos, indicates that, although it mentions the general concept of
the “interest of justice,” it is factually and procedurally dissimilar from the
instant case and does not lend any support to the argument Appellant asserts
in this appeal.
16Pa.R.Crim.P. 579(A) requires a defendant to file an Omnibus Pretrial Motion
within 30 days after arraignment unless certain exceptions are met.
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have been obtained in violation of [his] rights[,]” Appellant waived this issue.
Pa.R.Crim.P. 581(A), (B).
We acknowledge that Appellant attempts to overcome his waiver
problem by alleging that the “interests of justice,” as provided in Pa.R.Crim.P.
578, should excuse his having failed to file an Omnibus Pretrial Motion to
suppress the Commonwealth’s evidence. Appellant’s Brief at 9-10, citing
Pa.R.Crim.P. 578.
Pa.R.Crim.P. 578 requires a defendant to include all pretrial requests for
relief, including for the suppression of evidence, in one omnibus motion,
“unless otherwise required in the interests of justice.” Pa.R.Crim.P. 578,
cmt.3. Although the rule specifically provides that “the omnibus pretrial
motion is not intended to limit other types of motions,” including motions in
limine, it emphasizes that the “earliest feasible submissions” are encouraged.
Id. at cmt.
Pa.R.Crim.P. 579 provides additional guidance on requests to suppress
evidence. It requires a defendant to file an Omnibus Pretrial Motion within 30
days after arraignment unless any of the following three circumstances are
present:
(1) opportunity therefor did not exist; or
(2) the defendant or defense attorney, or the attorney for the
Commonwealth, was not aware of the grounds for the motion; or
(3) the time for filing has been extended by the court for cause
shown
See Pa.R.Crim.P. 579(A).
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Appellant does not argue in his Brief that he did not have an opportunity
prior to September 13, 2016, to file a Motion to Suppress, that he or his
attorney was not aware of grounds for a Motion to Suppress, or that the court
permitted him an extension of time to file such Motion. Nor does he explain
how consideration of his Motion in Limine is in the interests of justice beyond
baldly claiming that errors of the kind in the court’s Wiretap Order “may not
be disregarded when one’s fundamental constitutional rights are at stake.”
Appellant’s Brief at 10.
Following our review of the record, we conclude that none of the Rule
579(A) circumstances, which would support Appellant’s “interests of justice”
argument, were present. There is nothing in the record to justify Appellant’s
failure to file an Omnibus Pretrial Motion to suppress the Commonwealth’s
evidence.17
Judgment of Sentence affirmed.
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17We agree with the trial court that, given the record in this case, even if
Appellant had not waived his issue on appeal, his claim would not merit relief
because any errors in the Authorizing Order were harmless. See Trial Ct. Op.,
3/29/16, at 8-9. See also Commonwealth v. Katze, 658 A.2d 345, 348
(Pa. 1995) (confirming that this Court may employ a harmless error analysis
when reviewing the admission of evidence obtained in violation of the Wiretap
Act and noting that “a determination that an error is harmless is not an
approval of the behavior which may have led to the error.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/18
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