Commonwealth v. Shreffler

J-S32029-18 & J-S32030-18

2018 PA Super 350

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT ALLEN SHREFFLER :
:
Appellant : No. 1375 MDA 2017

Appeal from the Judgment of Sentence May 26, 2017
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000247-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT ALLEN SHREFFLER :
:
Appellant : No. 1376 MDA 2017

Appeal from the Judgment of Sentence May 26, 2017
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000250-2016

BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J.*

OPINION BY NICHOLS, J.: FILED DECEMBER 21, 2018

Appellant Scott Allen Shreffler appeals from the judgment of sentence

following a jury trial and his convictions for three counts of delivery of a

controlled substance.1 He claims the trial court erred by not suppressing the

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
J-S32029-18 & J-S32030-18

Commonwealth’s wiretap recordings of his conversations with a confidential

informant based on the Commonwealth’s failure to comply with the disclosure

provisions of Pa.R.Crim.P. 573(B)(1)(g) and the Wiretapping and Electronic

Surveillance Control Act (Wiretap Act).2 We are constrained to vacate the

judgment of sentence and remand for a new suppression hearing due to the

Commonwealth’s insufficiently justified failure to comply.

We glean the facts from the record that existed at the time of the

suppression hearing.3 On March 28, 2016, the police arranged a controlled

buy between a then-confidential informant (CI)4 and Appellant that occurred

____________________________________________

2 18 Pa.C.S. §§ 5701-5782.
3 Our scope of review of an order denying a pretrial motion to suppress is
limited to the evidence presented at the suppression hearing.
Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016), appeal
denied, 169 A.3d 524 (Pa. 2017). The facts adduced at the suppression
hearings, however, were—charitably—sparse. We occasionally reference
evidence adduced at trial solely for context.
4 As later explained at trial, this buy was the third controlled buy between the
then-confidential informant, Dale Mesmer (who testified at trial), and
Appellant. N.T. Trial, 3/22/17, at 60; Omnibus Pretrial Mot., 8/22/16. On
March 21, 2016, the police conducted a controlled buy at Appellant’s home
between Appellant and Mesmer. N.T. Trial, 3/21/17, at 26, 31. Mesmer
purchased crack cocaine from Appellant. Id. at 39, 137. As a result of that
purchase, the police obtained a warrant to intercept communications inside
Appellant’s home. Id. at 46. The police executed a second controlled buy on
March 25, 2016. Id. at 45. As with the first transaction, the police used
Mesmer to purchase drugs—heroin this time—from Appellant. Id. at 45, 51.
This time, however, Mesmer was wearing a wire and he recorded a
conversation consistent with the sale of illegal narcotics. Id. at 50, 59, 140.

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at Appellant’s home. Aff. of Probable Cause, 4/5/16. The CI was wired and

recorded their conversation. Id. The CI purchased two Buprenorphine pills,

a controlled substance, from Appellant. Id. As a result of the buy, the police

obtained a search warrant that evening and searched Appellant’s home,

recovering a bottle of Buprenorphine. Id. The police arrested Appellant and

charged him with multiple counts of delivery of a controlled substance. 5

On June 10, 2016, Appellant’s counsel informally requested the

Commonwealth’s discovery. Omnibus Pretrial Mot., 8/22/16, at 4. On August

22, 2016, Appellant filed an omnibus pretrial motion seeking, among other

things, to compel the Commonwealth to disclose the identity of the

confidential informant. Id. Appellant acknowledged that the Commonwealth

provided some discovery materials, but none of the materials pertained to the

informant. Id. The court scheduled a hearing for November 16, 2016.

On the day of the hearing, but before it started, Appellant filed a

supplemental omnibus pretrial motion requesting that the court suppress

evidence obtained as a result of the wiretap. Suppl. Omnibus Pretrial Mot. to

Suppress, 11/16/16, at 1. Appellant averred that he had been provided the

March 25 and 28, 2016 recordings from the second and third controlled buys.

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5 From Appellant’s wallet, the police recovered the money used by Mesmer to
purchase the Buprenorphine pills. N.T. Trial, 3/21/17, at 81. Subsequently,
the police testified that after giving Miranda v. Arizona, 384 U.S. 436
(1966), warnings, Appellant admitted he sold crack cocaine, heroin, and
Buprenorphine. Id. at 82-83.

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J-S32029-18 & J-S32030-18

Id. at 1. Appellant asserted the Commonwealth failed to comply with various

provisions of the Wiretap Act, including approval of the wiretap by the district

attorney and president judge “based upon a sufficient Affidavit of Probable

Cause of the investigative or law enforcement officer establishing probable

cause for the issuance of said Order.” Id. at 2.

The trial court held the November 16, 2016 hearing on Appellant’s initial

omnibus pretrial motion, but did not address his supplemental motion. The

court denied the initial motion on November 17, 2016, and scheduled a

hearing on Appellant’s supplemental motion.

At the January 5, 2017 evidentiary hearing on the supplemental motion,

Appellant argued that the recordings should be suppressed because the

Commonwealth allegedly failed to fully comply with the Wiretap Act. N.T. Mot.

Hr’g, 1/5/17, at 8. As examples, Appellant claimed the Commonwealth bore

the burden of establishing the CI’s consent to be recorded and that any

wiretap must be justified with an affidavit of probable cause.6 Id. at 8-9. The

Commonwealth countered that the order authorizing a wiretap was under seal

and that only the trial court had possession of it. Id. at 9.

During the hearing, the Commonwealth called Detective Craig Snyder.

Id. at 13. Detective Snyder testified that he prepared the application for the

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6Although the parties did not specifically cite the statutes in question, it was
evident they were discussing 18 Pa.C.S. § 5721.1(b)(2) and (5). N.T. Mot.
Hr’g, 1/5/17, at 8-9.

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J-S32029-18 & J-S32030-18

in-home wiretap and a trial judge approved it. Id. at 17. As noted above,

the in-home recordings were provided to Appellant during discovery. Id. at

21. After further testimony, Appellant again objected that documents

pertaining to the wiretap application were not provided. Id. at 23; see also

id. at 16-17 (objecting on the basis of the best evidence rule regarding the

wiretap documents).

Appellant again contended that he cannot assail the sufficiency of the

wiretap application absent the documents. Id. The Commonwealth reiterated

that these documents were under seal and absent a court order, it would not

turn over the documents to Appellant. Id. at 24. At the conclusion of the

hearing, the trial court requested Appellant to file a letter brief. Id. at 28-29.

On January 12, 2017, Appellant filed a letter brief, which argued, among other

things, that the Commonwealth failed to comply with the statutory disclosure

requirements of 18 Pa.C.S. § 5720.7 Appellant’s Ltr. Br. in Supp. of Suppl.

Mot. in Limine, 1/12/17.

On January 17, 2017, the trial court denied Appellant’s motion. In

relevant part, the trial court quoted 18 Pa.C.S. § 5720 and stated that the

Commonwealth notified Appellant of the existence of wiretapped

conversations and provided Appellant with copies of the recorded

conversations. Order, 1/17/17, at 2-3. The court further observed that the

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7 We quote the statute, infra.

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J-S32029-18 & J-S32030-18

Commonwealth had not yet attempted to introduce the contents of the

recordings at any proceeding. Id. at 3. For these reasons, the court denied

the motion.8

The trial court scheduled a jury trial to begin on March 21, 2017. That

morning, Appellant again filed a motion in limine objecting to, among other

items, the use of the intercepted communications because the Commonwealth

failed to disclose the application, supporting affidavit, order, and final report.

Appellant’s Mot. in Limine, 3/21/17. Appellant reasoned that the

Commonwealth’s failure to comply with the mandatory disclosure

requirements denied him the opportunity of challenging the court’s

authorization of the wiretap and the ability to effectively cross-examine

witnesses. Id. The court overruled Appellant’s objection. N.T. Trial, 3/21/17,

at 3.

Trial commenced, and a jury found Appellant guilty.9 Following a pre-

sentence investigation, the trial court sentenced Appellant to an aggregate

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8 On February 10, 2017, the court granted the Commonwealth’s motion to
consolidate dockets 247-2016 and 250-2016 for trial. Order, 2/10/17.
9 At trial, the Commonwealth played the March 25 and 28, 2016 recordings of
the conversations between Appellant and Mesmer for the jury. N.T. Trial,
3/21/17, at 141, 145. Mesmer testified that their March 25th conversation
was about the purchase of heroin. Id. at 141. For the March 28th
conversation, Mesmer verified his and Appellant’s voice on the recording. Id.
at 145. No party introduced the wiretap application, affidavit of probable
cause, or final report into the record.

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J-S32029-18 & J-S32030-18

sentence of 106 to 212 months’ imprisonment. N.T. Sentencing Hr’g,

5/26/17, at 31.10

Appellant filed a timely post-sentence motion challenging the trial

court’s denial of his suppression motion. Specifically, Appellant contended the

court did not recognize the Commonwealth’s failure to comply with the

disclosure requirements of the Wiretap Act, which should have resulted in

suppression of the recordings. Appellant’s Post-Sentence Mot., 6/5/17, at 5.

Appellant also challenged the discretionary aspects of his sentence. Id. at 2-

5. The court denied the post-sentence motion on August 4, 2017.

Meanwhile, Appellant also filed a pro se motion on July 25, 2017.11 In

that motion, Appellant claimed that at an unrelated civil proceeding, the trial

court said it had sua sponte changed his sentence because the sentence for

distribution of Buprenorphine exceeded the statutory maximum. Appellant’s

____________________________________________

Appellant testified in his own defense and denied selling Mesmer drugs on
March 21 and 25, 2016. Id. at 194, 196. Appellant admitted multiple times
to selling Buprenorphine to Mesmer on March 28, 2016. Id. at 202, 218, 232.
Appellant conceded that the March 25th and 28th recordings were accurate.
Id. at 219-20. Appellant, however, disputed that the substance of the
recordings consisted of an illegal narcotics transaction. Id. at 220-21. He
also denied confessing to the sale of the narcotics after the police gave him
Miranda warnings. Id. at 224-25, 227.
10 Specifically, the trial court sentenced Appellant to 32 to 64 months’
imprisonment for delivery of buprenorphine, 32 to 64 months’ imprisonment
for delivery of cocaine, and 42 to 84 months’ imprisonment for delivery of
heroin, for an aggregate total of 106 to 212 months’ imprisonment.
11The record reflects that the trial court forwarded the motion to Appellant’s
counsel that same day. See Pa.R.Crim.P. 576(A)(4).

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J-S32029-18 & J-S32030-18

Pro se Mot. to Clarify Court’s Sua Sponte Amendment of Sentence. On August

9, 2017, the court granted Appellant’s pro se motion to clarify the court’s sua

sponte amendment of his sentence. Order, 8/9/17. The court stated that it

erred by sentencing Appellant to a term exceeding five years for distribution

of Buprenorphine. Id. Thus, it corrected the original sentence of 32 to 64

months’ imprisonment for delivery of Buprenorphine to 30 to 60 months’

imprisonment. Id. Appellant’s corrected aggregate sentence is 104 to 208

months’ imprisonment.

Appellant filed a single timely counseled notice of appeal on September

1, 2017, under a caption listing both docket numbers.12 Appellant also filed a

timely counseled court-ordered Pa.R.A.P. 1925(b) statement. We add that

the Rule 1925(b) statement stated that Appellant intended to raise the issues

within his post-sentence motion, a copy of which was attached to the Rule

1925(b) statement. Appellant’s Rule 1925(b) Statement, 9/28/17. The trial

court filed a responsive Rule 1925(a) decision.

Appellant raises the following issues:

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12 The court had previously granted the Commonwealth’s motion to
consolidate the cases at each docket number for trial. See generally
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (holding, “that
when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” (footnote omitted)). Here, since Appellant’s
cases had been previously consolidated by court order, quashal is
inappropriate.

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J-S32029-18 & J-S32030-18

1. Did the trial court commit reversible error by failing to order
suppression of the Commonwealth’s electronic interception of
Appellant’s oral communications with the Confidential Informant
in Appellant’s home, due to the [C]ommonwealth’s failure to
comply with the disclosure provisions of the Wiretap Act?

2. Must the sentences imposed by the trial court be vacated as
illegal and/or manifestly excessive and an abuse of discretion?

Appellant’s Brief at 4.13

In support of his first issue, Appellant reiterates that he filed a motion

to suppress the intercepted communications because the Commonwealth

failed to comply with sections 570414 and 5714 of the Wiretap Act. Id. at 9.

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13 Appellant, with leave of this Court, filed identical briefs for both appeals.
14In pertinent part, Section 5704(2) identifies three scenarios in which prior
court approval is not required for a wiretap, of which two are relevant:

It shall not be unlawful and no prior court approval shall be
required under this chapter for [a wiretap if]:

* * *

(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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J-S32029-18 & J-S32030-18

In Appellant’s view, the order authorizing the in-home wiretap was

discoverable under Pa.R.Crim.P. 573(B)(1)(g). Id. at 10-11. Although his

motion in limine sought suppression, Appellant construes his motion as

seeking discovery of not only the order, but discovery of the wiretap

application and affidavit of probable cause, as well. Id. at 11. Appellant

contends he needed those documents in order to properly challenge the

validity of the wiretap application. Id. Absent the documents, Appellant

argues his cross-examination of the affiant at the suppression hearing was

unduly limited. Id. Appellant points out that the affiant testified he could not

recall whether the affidavit of probable cause referenced the confidential

____________________________________________

shall be the custodian of recorded evidence obtained therefrom;
[or]

(iv) the requirements of this subparagraph are met. 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 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, 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. § 5704(2)(ii), (iv).

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informant’s reliability. Id. at 13. Appellant notes he renewed his objection to

the admissibility of the recordings in a motion in limine on the basis that the

Commonwealth failed to provide the documents at least ten days prior to trial.

Id. at 14.

The Commonwealth counters that it complied with the disclosure

requirements because it “provided notice of the fact and nature of the

interceptions, along with digital recordings of the interceptions[], far in

advance of trial.” Commonwealth’s Brief at 11. In the Commonwealth’s view,

it complied with the disclosure requirements. Id. at 11-12. As for Appellant’s

contention that he was entitled to the sealed documents, the Commonwealth

responds that no application was made to unseal under 18 Pa.C.S. § 5715.15

Id. at 13-14.

The trial court reasons that it was sufficient for the Commonwealth to

have provided Appellant with the recordings of the intercepted

communications. Trial Ct. Op., 1/17/17, at 4. The trial court states that

because the Commonwealth had not yet introduced the recordings at trial or

a hearing, it was not obligated to provide the order, wiretap application, and

final report. Id.

The standard of review follows:

Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the

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15 We quote the statute below.

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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. 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 our plenary review.

Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.

Freeman, 150 A.3d at 34-35 (citation omitted).

Rules of Statutory Construction

Before quoting the relevant wiretap statutes, we briefly state the rules

of statutory construction.

In evaluating a trial court’s application of a statute, our standard
of review is plenary and is limited to determining whether the trial
court committed an error of law. In making this determination, we
are guided by the Statutory Construction Act, which dictates:

§ 1921. Legislative intent controls

(a) The object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the
General Assembly. Every statute shall be construed, if
possible, to give effect to all its provisions.

(b) When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.

1 Pa.C.S. § 1921. As a general rule, the best indication of
legislative intent is the plain language of a statute.

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J-S32029-18 & J-S32030-18

Every statute shall be construed, if possible, to give effect to all
its provisions. We presume the legislature did not intend a result
that is absurd, impossible, or unreasonable, and that it intends
the entire statute to be effective and certain. When evaluating
the interplay of several statutory provisions, we recognize that
statutes that relate to the same class of persons are in pari
materia and should be construed together, if possible, as one
statute. If two statutes conflict, they are to be construed so effect
may be given to both, if possible; if this is not possible, the special
provision prevails over the general one as an exception to it,
unless the general one was enacted later and there is manifest
legislative intent that it prevail.

Commonwealth v. Anderson, 169 A.3d 1092, 1095-96 (Pa. Super. 2017)

(en banc) (some formatting and some citations omitted).

“[T]he Wiretap Act is to be strictly construed to protect individual privacy

rights” because it derogates a fundamental Pennsylvania constitutional right—

the right to privacy. Karoly v. Mancuso, 65 A.3d 301, 310 (Pa. 2013)

(citations omitted). Given that “private conversations are [being] overheard

by governmental authorities,” courts should closely scrutinize law

enforcement authorities for strict compliance with the Act’s requirements. Id.

In establishing a violation of the Wiretap Act, a defendant is not required to

establish actual prejudice. Commonwealth v. Hashem, 584 A.2d 1378,

1381-82 (Pa. 1991) (holding, “We . . . specifically reject the Superior Court’s

holding that before relief can be granted in this type of claim the Defendant

must bear the burden of showing how the failure to comply with the [Wiretap]

Act prejudiced him. As we [held previously], where an act is in derogation of

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this Commonwealth’s constitutionally protected right to privacy its provisions

must be strictly applied.” (citation omitted)).16

Obtaining A Wiretap

For example, in Commonwealth v. Fetter, 770 A.2d 762 (Pa. Super.

2000), this Court addressed the evidentiary burden to obtain a wiretap. In

Fetter, the defendant argued to the Fetter Court that the wiretap evidence

should have been suppressed because “normal investigative procedures

should have been used instead of the wire, as required under 18 Pa.C.S. §§

5709(3)(vii) and 5710(A)(3), because this was an in-home interception and

the wire would otherwise violate Article I, Section 8 of the Pennsylvania

Constitution.” Fetter, 770 A.2d at 766.

Initially, the Fetter Court noted that the defendant’s argument was

based on a holding in Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994).

Id. The Fetter Court continued:

In response to Brion the Legislature amended the Wiretap Act to
include § 5704(2)(iv), which requires the president judge of the
court of common pleas, or his designee, to independently review

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16 In Commonwealth v. Donahue, 630 A.2d 1238 (Pa. Super. 1993), the
defendant contended on appeal that the intercepted communications should
have been suppressed because the final report was not timely served on him.
Donahue, 630 A.2d at 1247. The Donahue Court disagreed, holding that
violation of Section 5720 was not a basis for suppression under Section 5721,
which has since been repealed and replaced by Section 5721.1. Id. at 1248;
see 18 Pa.C.S. § 5721 historical and statutory notes. The holding of the
Donahue Court must be viewed in light of the issue raised, specifically that
in Donahue, the defendant actually received the final report, but not in a
timely fashion.

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the affidavit and establish that probable cause exists. This is in
addition to meeting the other requirements of § 5704(2)(ii),
involving review and approval by a designated authority, rules for
recording and record keeping, and custodial care by the
designated authority. However, 18 Pa.C.S. § 5704 is not subject
to other sections of the Wiretap Act, unless specifically
enumerated; instead, it lists exceptions to the generally stringent
requirements for wiretaps when the interception occurs at the
direction of a law enforcement officer and one party voluntarily
consents to the interception. Therefore, it was unnecessary for
the Commonwealth to establish that “normal investigative
procedures with respect to the offense have been tried and failed,
or reasonably appear to be unlikely to succeed if tried or are too
dangerous to employ.” 18 Pa.C.S. §§ 5709(3)(vii) and
5710(A)(3). The Commonwealth did not violate the Pennsylvania
Constitution for using a wiretap, even in the [defendant’s] home,
as long as they established one-party consent and probable cause
to the designated authorities.

Id. at 766-67.

The Fetter Court thus addressed the Commonwealth’s burden for

obtaining a wiretap occurring in the home of a nonconsenting party: absent

exigent circumstances and probable cause, the president judge of the court of

common pleas, or his or her designee, must conduct an independent review

of the affidavit and authorize the wiretap based upon the a determination of

probable cause. See id.; accord 18 Pa.C.S. § 5704(2)(ii), (iv).

The holding of Fetter, therefore, must be read in light of the issue raised

by the defendant: whether the Commonwealth was required to comply with

normal investigative procedures set forth in 18 Pa.C.S. §§ 5709(3)(vii) and

5710(a)(3). The Fetter Court, however, disagreed with the defendant: “18

Pa.C.S. § 5704 is not subject to other sections of the Wiretap Act, unless

specifically enumerated . . . .” Fetter, 770 A.2d at 766. The defendant in

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Fetter, however, did not challenge whether a section 5704 one-party consent

wiretap was excluded from the disclosure requirements of section 5720. Thus,

any implicit suggestion otherwise by the Fetter Court must be viewed as

dicta. See Rendell v. Pa. State Ethics Comm’n, 983 A.2d 708, 714 (Pa.

2009) (“Courts only adjudicate issues directly raised by the facts in a case or

necessary to a solution of the legal problems involved.” (citation omitted)).

Mandatory Disclosure of Authority for Wiretap

Section 5715 provides that sealed wiretap applications, final reports,

and orders authorizing wiretaps

may be disclosed only upon a showing of good cause before a
court of competent jurisdiction except that any investigative or
law enforcement officer may disclose such applications, orders
and supporting papers and monitor’s records to investigative or
law enforcement officers of this or another state, any of its political
subdivisions, or of the United States to the extent that such
disclosure is appropriate to the proper performance of the official
duties of the officer making or receiving the disclosure.

18 Pa.C.S. § 5715.

In any event, notwithstanding the “good cause” requirement, section

5720 of the Wiretap Act compels disclosure of the following at least ten days

before trial:

The contents of any wire, electronic or oral communications
intercepted in accordance with the provisions of this subchapter,
or evidence derived therefrom, shall not be disclosed in any trial,
hearing, or other adversary proceeding before any court of the
Commonwealth unless, not less than ten days before the trial,
hearing or proceeding the parties to the action have been served
with a copy of the order, the accompanying application and the
final report under which the interception was authorized or, in the
case of an interception under section 5704 (relating to exceptions

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to prohibition of interception and disclosure of communications),
notice of the fact and nature of the interception. The service of
inventory, order, application, and final report required by this
section may be waived by the court only where it finds that the
service is not feasible and that the parties will not be prejudiced
by the failure to make the service.

* * *

18 Pa.C.S.A. § 5720 is suspended by Pa.R.Crim.P. Rule 1101(5)
insofar as § 5720 may delay disclosure to a defendant seeking
discovery under Pa.R.Crim.P. Rule 573(B)(1)(g).

18 Pa.C.S. § 5720 & note (italics omitted).17 The obligatory disclosure

requirements of section 5720 necessarily presume that the section 5715 seal

was lifted. See 18 Pa.C.S. § 5715.

Rule of Criminal Procedure 573(B)(1)(g) addresses mandatory discovery

disclosure by the Commonwealth:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.

* * *

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17Pennsylvania Rule of Criminal Procedure 1101(5) states that “18 Pa.C.S. §
5720[] is suspended as inconsistent with Rule 573 only insofar as the section
may delay disclosure to a defendant seeking discovery under Rule
573(B)(1)(g).” Pa.R.Crim.P. 1101(5).

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(g) the transcripts and recordings of any electronic
surveillance, and the authority by which the said transcripts
and recordings were obtained.

Pa.R.Crim.P. 573(B)(1)(g). The comment to this subsection provides that it

is intended to insure that the statutory provision and Rule
573(B)(1)(g) are read in harmony. A defendant may seek
discovery under paragraph (B)(1)(g) pursuant to the time frame
of the rule, while the disclosure provisions of Section 5720 would
operate within the time frame set forth in Section 5720 as to
materials specified in Section 5720 and not previously discovered.

Id. cmt. Thus, Rule 573(B)(1)(g) mandates disclosure of the “authority”, i.e.,

the application and order for the one-party consent wiretap as part of the

Commonwealth’s mandatory discovery requirements. See Pa.R.Crim.P.

573(B)(1)(g).

Statutes Governing a Motion to Exclude Wiretapped Communications

Section 5721.1 sets forth the procedures for a motion to exclude a

wiretapped communication. See 18 Pa.C.S. § 5721.1. That section sets forth

six different grounds for exclusion. See 18 Pa.C.S. § 5721.1(b)(1)-(6). In

relevant part, we state the specific grounds at issue:

(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. § 5721.1(b)(5)-(6).

The respondent—usually the Commonwealth—has the burden of proof

for (b)(5). 18 Pa.C.S. § 5721.1(c)(4). The movant—usually the defendant—

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has the initial burden of proof under (b)(6) of establishing the interception

took place at the movant’s home, and then the burden shifts to the

respondent—usually the Commonwealth—to prove that the interception

complied with section 5704(2)(iv). Id. § 5721.1(c)(5).

Critically, in evaluating a motion to exclude under (b)(5) or (b)(6), the

Commonwealth has the burden of establishing one-party consent under

section 5704(2), see id. § 5721.1(b)(5), (c)(4), or compliance with section

5704(2)(iv), see id. § 5721.1(b)(6), (c)(5). Section 5704(2)(iv), as set forth

above, requires an affidavit of probable cause and an order authorizing the

wiretap signed by the president judge, or a judge designated by the president

judge, of the court of common pleas. See 18 Pa.C.S. § 5704(2)(iv). In other

words, the respondent, i.e., the Commonwealth, has the burden of unsealing

the affidavit of probable cause in response to a defendant’s motion to exclude

invoking subsection (b)(5) or (b)(6). See 18 Pa.C.S. § 5721.1(b)(5), (b)(6),

(c)(4), (c)(5).

Commonwealth Erred By Failing to Comply with Mandatory Discovery

Here, Appellant moved to exclude the wiretapped conversations on the

basis that the Commonwealth failed to provide the affidavit of probable cause,

wiretap application, and order approving the wiretap. Suppl. Omnibus Pretrial

Mot. to Suppress, at 1-2. At the hearing on the motion, Appellant accurately

noted that the Commonwealth bore the burden of establishing probable cause

for the wiretap order. N.T. Mot. Hr’g, 1/5/17, at 8-9; see also 18 Pa.C.S. §

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5721.1(b)(5), (b)(6). The Commonwealth’s argument that only the court

could unseal the requested documents is in tension with 18 Pa.C.S. §

5721.1(c)(4) and (c)(5). As set forth above, those subsections state that in

considering a motion to exclude under those subsections, the Commonwealth

generally bears the burden of proof.

But even if section 5721.1 did not apply, the Commonwealth failed to

comply with its mandatory discovery obligations under Pa.R.Crim.P.

573(B)(1)(g). Rule 573(B)(1)(g) obligated the Commonwealth to disclose the

authority for the wiretap. See Pa.R.Crim.P. 573(B)(1)(g). The

Commonwealth did not.

The Commonwealth attempts to evade responsibility by shifting the

burden to Appellant to file a motion to unseal. See Commonwealth’s Brief at

13-14. But the Commonwealth, in response to an appropriate motion to

suppress, has the burden of establishing, by a preponderance of the evidence,

that it had consent or probable cause, or both. See 18 Pa.C.S. § 5721.1(c)(4),

(c)(5). It cannot sidestep its burden of proof by claiming that Appellant had

the burden of filing a motion to unseal. See id.

Given our Supreme Court’s admonition that the Wiretap Act must be

strictly construed to preserve the fundamental Pennsylvania constitutional

right of privacy, see Karoly, 65 A.3d at 310, Appellant need not establish any

prejudice from the Commonwealth’s procedural violations. See Hashem, 584

A.2d at 1381. Accordingly, having discerned an error of law, Freeman, 150

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A.3d at 34-35, we are reluctantly compelled to vacate Appellant’s judgment

of sentence, vacate the order denying Appellant’s post-sentence motion,

vacate the January 17, 2017 order denying Appellant’s motion, and remand

for a new suppression hearing. The Commonwealth must file a motion to

unseal the affidavit of probable cause, order authorizing the wiretap, and

documentation evidencing consent, and also provide them to Appellant’s

counsel. Appellant’s counsel may file an amended motion to suppress based

upon the unsealed documents and the trial court has the discretion to hold a

new suppression hearing. If the trial court again denies Appellant’s

suppression motion, then it shall reimpose the corrected sentence, and

Appellant is entitled to his post-sentence and appellate rights.

Judgment of sentence vacated. Order denying Appellant’s post-

sentence motion vacated. Trial court’s January 17, 2017 order vacated. Case

remanded for a new suppression hearing. Commonwealth directed to file a

motion to unseal and produce the affidavit of probable cause, order

authorizing the wiretap, and documentation of consent to Appellant’s counsel.

Appellant’s counsel may file an amended motion to suppress, and the court

may hold a suppression hearing at its discretion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2018

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